Calypso Plaza Cairns Commercial [2002] QBCCMCmr 410 (24 June 2002)

DJ ReardonREFERENCE: 0222-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	27323
Name of Scheme:	Calypso Plaza Cairns Commercial
Address of Scheme:	53 - 57 The Esplanade CAIRNS QLD 4151

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

Body Corporate for “Calypso Plaza Cairns Commercial” community titles scheme 27323


DJ ReardonI hereby order that within 4 weeks of the date of this order, the Owner of Lots 132 and 133 must remove the roller shutter doors installed on the exterior surfaces of Lots 132 and 133, and return Lots 132 and 133 and the common property to their previous condition and appearance. 2n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0222-2002

“Calypso Plaza Cairns Commercial” CTS 27323

1. Order Sought

The Applicant, the Body Corporate for “Calypso Plaza Cairns Commercial” community titles scheme 27323 has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”), quote-

“Removal of Roller Shutter Doors installed to the exterior of Lot 132 and 133.”

Section 223(1) of the Act 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 community management statement for the “Calypso Plaza Cairns Commercial” community titles scheme indicates that the Body Corporate and Community Management (Accommodation Module) Regulation 1997 (“the Accommodation Module”) applies to the scheme.

2. Application and Submissions

This dispute resolution application was originally made on 12 April 2002. On 19 April 2002, the Commissioner for Body Corporate and Community Management invited the Owner of Lots 132 and 133 to make a written submission about the application. A submission has been made on behalf of the Owner of Lots 132 and 133. On 29 May 2002 , the Commissioner for Body Corporate and Community Management determined that the dispute should be the subject of departmental adjudication.

3. Matters in dispute

This application concerns roller shutter doors that have been installed on the exterior of Lots 132 and 133.

From the material before me it appears that the Owner of Lots 132 and 133 notified the Body Corporate of the installation of roller shutter doors to the exterior of the lots on 2 April 2001. On 19 April 2001, the Body Corporate issued a letter stating that the correspondence of 2 April 2001 would be tabled at the Committee meeting scheduled for 23 April 2001.

The minutes of the Committee meeting held on 23 April 2001 contain the following statement, quote-

“In respect to the installation of the roller shutter doors to lots 132 and 133 the committee does not approve of these unapproved alterations to the exterior of the building and requests the secretary to advise the owners that they are to be removed immediately. Photographs of the infringements have been taken and will be forwarded to the architects for confirmation of their not complying with the by-laws of the body corporate.”

In a letter dated 3 May 2001 on behalf of the Body Corporate to the Owner of Lots 132 and 133, the Body Corporate Manager make the following statements, quote-

“The modification of the exterior appearance of a lot contained within the scheme requires the prior consideration and approval of the Body Corporate. It is the consideration of the Body Corporate that the installation of these doors is detrimental to the appearance of the scheme, therefore approval of the Body Corporate has not been granted.

Accordingly, the Body Corporate requires that immediate steps be taken to remove the roller doors and to reinstate the common property. If future modifications are planned that will alter the exterior appearance of the Lot then an application must be made in writing to the Secretary in the first instance.”

The submission made on behalf of the Owner of Lots 132 and 133 appears to acknowledge that the roller shutter doors are required to be removed. The submission, dated 9 May 2002, includes the following statements, quote-

“At no time have we refused to remove the roller doors. We have been held up in replacing the doors due to legal restraints associated with the termination of the leases on both lots”, and

“The legalities are now complete and we expect to receive the quotation by Friday of this week or Monday at the latest. We will authorise this work to commence upon receipt of the quotation.”

On 17 June 2002, a member of the Office of the Commissioner for Body Corporate and Community Management contacted the representative of the Owner of Lots 132 and 133 to confirm whether or not the roller doors had been removed. In the conversation the representative of the Owner of Lots 132 and 133 indicated that the doors had not been removed, but anticipated that the removal of the doors would commence in around 14 days.

4. Alterations to the appearance of lots

The community management statement for the “Calypso Plaza Cairns Commercial” community titles scheme contains the following by-law relating to “structural and other alterations”, quote-

“56. STRUCTURAL AND OTHER ALTERATIONS

An Owner or Occupier must not without the prior written consent of the Body Corporate:-

Carry out structural alterations to his Lot;

Alter gas, water, drainage, sewerage or electrical connections and services on or to his Lot;

Alter the external colour scheme of his Lot or change the external appearance of the lot as an improvement to the lot.”

I note that the “Calypso Plaza Cairns Commercial” community titles scheme is created under a number of building format plans of subdivision. It would seem to me that the installation of doors to the external surfaces of the lot would likely be an improvement to common property, which would require the approval of the Body Corporate pursuant to section 113 of the Accommodation Module. However, from the material before me, particularly the letter from the Body Corporate Manager to the Owner of Lots 132 and 133 dated 3 May 2001, and the minutes of the Committee meeting held on 23 April 2001, it appears that the Body Corporate is relying on the breach of the above by-law as grounds for requiring the removal of the doors.

The third aspect of the above by-law is drafted quite broadly to require changes to the external appearance of the Lot to be authorised by written consent of the Body Corporate. I consider that the installation of roller shutter doors to the exterior of lots would likely be a significant alteration to the appearance of the lots and the common property for the scheme.

5. Conclusion

The Owner of Lots 132 and 133 has not argued in its submission that Body Corporate approval for the roller doors was not required, or that proper approval for the installation of the roller doors was obtained. Rather, the Owner of Lots 132 and 133 appears to be stating the roller doors will be removed in the near future. As such I am prepared to accept as uncontested that approval for the installation of the doors was required, and was not obtained.

Given the length of time that roller shutter doors have been installed, and notwithstanding the statement of the Owner of Lots 132 and 133 that the doors will be removed, I intend to order that within 4 weeks of the date of this order the Owner of Lots 132 and 133 must remove the roller shutter doors installed on Lots 132 and 133 and return the Lots and common property to their previous appearance and condition.