Meadowglen [2002] QBCCMCmr 399 (19 June 2002)

M.F.MorganREFERENCE: 0244-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	19139
Name of Scheme:	Meadowglen
Address of Scheme:	100 Meadowlands Road CARINDALE QLD 4152

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

Mr Leo McNulty, the Owner of lot 55


M.F.MorganI hereby order that the application for an order to overturn the decision of the Committee of the Body Corporate of "Meadowglen" not to grant approval to make an extension to the carport of lot 55 is dismissed.2n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0244-2002

“Meadowglen” CTS 19139

The applicant Mr Leo McNulty, the Owner(s) of lot 55, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

I am seeking and order to overturn the decision of the Body Corporate of "Meadowglen" not to grant me approval to make an extension to the carport of my dwelling.

The dispute has arisen as a consequence of my application to the Body Corporate "Meadowglen" seeking approval to extend my existing carport to the extremity of my property boundary. This being an increase in width of 1.9 meters. It will not encroach on the common property of the scheme.

Relevant provisions

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)).

The extension of the applicant’s existing carport is governed by the following by-law.

By-law 10: Alterations to Lots

a) The Body Corporate wishes to retain conformity as to style and colour of buildings on both the Common Property and Lots and to maintain a high standard in relation to the external appearance of those buildings.

b) An occupier must not, except with the consent in writing of the Body Corporate Committee-

i.	Alter the external appearance of a building on any Lot, or
ii.	Paint the external surfaces of a building on any Lot.

c) To ensure compliance with by-laws 10(a) and (b), the Body Corporate may supply, or engage another person to supply, painting services for the benefit of Owners.

d) Where the Body Corporate supplies to an Owner painting services in accordance with by-law 10(c ), the Owner must reimburse the Body Corporate for the cost of the service provided by the Body Corporate. The amount owing by the Owner to the Body Corporate is recoverable by the Body Corporate in the same way as it is entitled to recover contributions levied on Owners.

e) An Occupier must not erect any fence on a Lot or on the boundary of a Lot and the Common Property, except with the consent in writing of the Body Corporate Committee.

f) An Occupier must not make any structural alterations, renovations or additions to the external part of a Lot (including, but not limited to the erection of an aerial, pergola, screen, awning or other outbuilding, the installation of an air conditioning unit, alterations to utility infrastructure or enclosing a balcony) except with the consent in writing of the Body Corporate Committee.

g) In relation to any consent given under by-laws 10(e) and (f), the Body Corporate’s consent will not be unreasonably withheld if-

i.	An application is made in writing
ii.	The style colour and materials to be used are in keeping with the overall appearance of the Scheme Land
iii.	Details of the method of installation are given, and
iv.	The Occupier remains responsible for the ongoing repair, maintenance, insurance and replacement of the installation.

Background

On 18^th February 2002, the Body Corporate Manager advised that permission was given to extend the applicants pergola so that it gives him extra cover from the weather was given but that permission to increase the width of his carport was rejected. This was because the current width is standard within the complex.

Of relevance, the Body Corporate Committee submitted that there are four basic styles in the scheme. The width of the frontage of each style of unit determines how far a carport extends across the front. Some carports extend across the whole of the frontage of the dwelling; others don’t. No carport space has the capacity for two vehicular spaces. It is considered that carports should be standard and allow sufficient space for one vehicle only. It is considered that this extension would detract from the overall appearance of the scheme. Further double carports may lead to more traffic and noise.

Issue

In my view the main issue in this matter is whether the Body Corporate Committee has unreasonably withheld its consent under by-law 10(g) because the style of the extended carport will not be in keeping with the overall appearance of the scheme land.

The applicant has submitted that the style colour and materials will be the same as the existing carport and this demonstrates compliance. The fact that his carport will be wider does not mean that it is non-conforming as to ‘style’. By way of analogy he states that you and I may purchase a suit of the same style and colour, the size maybe different, but they would remain the same as to style and colour. He states that there is no reference to size or width in by-law 10 and the Committee does not have any power to make a determination regarding the width of a carport. Others regularly park two vehicles out the front of their lots.

Firstly I do not agree that the extension of the carport does not impact on the style of either the carport itself or on the scheme as a whole. It is not a mere extension as the applicant contends.
Increasing the width of the carport by 1.9 metres imbrues it with an additional characteristic namely that it then also has the feature of being a double carport. In my view if you change the characteristics of the carport to create something new and not just make it bigger, then you are changing the style of this building. There are no other double carports in the scheme. This carport therefore will not be in keeping with the other carports in so far as this characteristic or style is concerned.

The applicant wishes to extend the carport so that it gives cover and protection from the weather to the bedroom window located at the front of the Villa. He doesn’t want to use the space as a double carport. Notwithstanding, a double carport will be the carports new characteristic or style even if the applicant does not use it for this purpose.

Secondly, if this carport extension was allowed, then the Body Corporate Committee could hardly refuse another, unless there were compelling reasons to do so. When I inspected the scheme on 18^th June 2002, I considered that the consistent size of the carports contributed to the overall style of the scheme. Also the space next to the carports on the type C lots contributed to a sense of green spaciousness. This would be lost if other carports were extended into double carports which may also tend to give a more clustered or congested style to the scheme.

Having regard to this and whilst appreciating the applicant’s viewpoint, I do not think that the Body Corporate Committee has acted unreasonably so that I should overturn their decision.





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