Emerald Lagoon [2002] QBCCMCmr 310 (20 May 2002)

DP GardinerREFERENCE: 0134-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	5260
Name of Scheme:	Emerald Lagoon
Address of Scheme:	24 Ron Penhaligon Way ROBINA QLD 4226

TAKE NOTICE that pursuant to an application made under the abovementioned Act by

Mr Thomas Andrew Wade, the Owner(s) of lot 24

DP Gardiner

I hereby:

1. declare that the decision of the body corporate committee meeting held on 19^th January 2002 which purported to reject an application by the applicants for the approval of improvents to lot 24 is, and was, void for irregularity.

2. order the body corporate, at the next general meeting, to deal with a special resolution seeking authorisation for the construction of an extension by the applicants as owners of lot 24 on common property.

3. order the body corporate committee to include as part of the agenda of the general meeting a copy of these reasons and the applicants’ original submission to the body corporate committee, including plans of the proposed extension and photographs of other lots where extensions have been constructed.2n

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0134-2002

“Emerald Lagoon” CTS 5260

The applicant Mr Thomas Andrew Wade, the Owner(s) of lot 24, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

“Request the Commissioner to issue an order overruling the body corporate’s decision to reject my proposal as per their letter dated 29 January 2002.

Section 223(1) provides that an adjudicator may make an order that is just and equitable in the circumstances (including a declaratory order) to resolve a dispute, in the context of a community titles scheme, about –

a) a claimed or anticipated contravention of the Act or the community management statement; or

b) the exercise of rights or powers, or the performance of duties, under this Act or the community management statement; or

c) a claimed or anticipated contravention of the terms, or the termination of, or the exercise of rights or powers under the terms of, or the performance of duties under the terms of an engagement contract or an authorisation contract.

An order may require a person to act, or prohibit a person from acting, in a way stated in the order (section 223(2)). An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 230(1)).

In the supporting grounds, the applicant states that the body corporate committee rejected an application for approval to build an extension to his premises.

This is a scheme to which the provisions of the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module) apply.

Section 114 of the Standard Module provides as follows:

114.(1) The body corporate may, if asked by the owner of a lot, authorize the owner to make an improvement to the common property for the benefit of the owner’s lot.
(2) The improvement must be authorised by special resolution of the body corporate unless—

(a) the improvement is a minor improvement; and

(b) the improvement does not detract from the appearance of any lot included in, or common property for, the scheme; and

(c) the body corporate is satisfied that use and enjoyment of the authorized improvement is not likely to promote a breach of the owner’s duties as an occupier.

(3) An authorization may be given under this section on conditions the Body Corporate
body corporate considers appropriate.
(4) The owner of a lot who is given an authority under this section 24 —

(a) must comply with conditions of the authority; and

(b) must maintain the improvement made under the authority in good

condition, unless excused by the body corporate.

The minutes of the informal meeting of the Body Corporate Committee record:

Owner Unit 24: re Application to extend patio and tiled roof as per plans submitted earlier. The owner of Unit 23, having objected to the original proposal for a 4 metre extension, has since conceded to a 2.5 metre extension. The owner of Unit 24 now wants a 3 metre extension.

After considerable discussion and examination of the dimensions in relation to Unit 23 which has already lost much of its” view” due to an earlier large extension to Unit 22, the committee resolved to reject Unit 24’s application on the following grounds:

• Potential distortion to the architectural integrity of the complex at large and to the architectural balance in the unit itself, also to the architectural harmony between it and neighbouring units.

• Throughout the complex, the original architectural design was deliberate in arranging the Units ( in all the four-unit blocks ) so that each unit would have a lake side aspect forward of, or backward from its neighbour - the villas being placed considerably backward from the front patios and balconies of the neighbouring townhouses. This design provided for considerable privacy to the residents of both (villas and townhouses) in their use of their personal use areas.

• The desired extension would encroach considerably toward the privacy aspect of Unit 23 and in so doing would considerably alter the surrounding environment which its owners purchased into with the expectation that, in such a fully designed complex, no material encroachments would be added.”

This section of the Standard Module confers decision-making power in these circumstances upon the Body Corporate, not the Body Corporate Committee. As a result, the Body Corporate Committee did not have the power to make the decision it purported to make.

It follows that the decision of the Body Corporate Committee must be set aside. The order which I have made requires the Body Corporate in general meeting to determine whether approval of the extensions sought by the applicant will be granted.

It is noted that an annual general meeting is scheduled for the 25^th May 2002. If it can be achieved, it would be desirable to deal with this issue at that meeting.

I have also ordered that a copy of these reasons and the applicant’s original submission to the Body Corporate Committee, including plans of the proposed extension and photographs of other lots where extensions have been constructed are to be attached to the notice of meeting when it is sent out to members of the Body Corporate.

It is important that the Body corporate be as fully informed as possible when this special resolution is considered by it. In the event that the present applicant is dissatisfied with the decision of the Body Corporate, a right of review of that decision by an adjudicator is preserved by the Body Corporate and Community Management Act 1997.




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