Takapa [2002] QBCCMCmr 44 (30 January 2002)

DJ ReardonREFERENCE: 0414-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	10635
Name of Scheme:	Takapa
Address of Scheme:	54 Avocet Parade PEREGIAN BEACH QLD 4573

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

DJ ReardonI hereby order that within 6 weeks of the date of this order, the Owner of Lot 3 is to remove (or cause to be removed) the lattice screen and pavers erected and installed on common property outside of Lot 3, and must restore (or cause to be restored) the common property to its previous condition. 2n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0414-2001

“Takapa” CTS 10635

The applicant, the Body Corporate for Takapa community titles scheme 10635 has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”), quote-

“The Body Corporate (Takapa) is seeking to have the community lawn outside Unit 3 cleared of all structures so that it can return to being a community lawn rather than a private lawn for Unit 3 with all others excluded. Also excluded is normal and usual access for groundsmen, and other workmen who may need to have access to rear of building to do necessary work on pool, BBQ, & lawn.”

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)).2n

The community management statement for the “Takapa” scheme indicates that the Body Corporate and Community Management (Standard Module) Regulation 1997 (“the Standard Module”) applies to the scheme.

Matters in Dispute

This application concerns two improvements that have been made to the common property outside of Lot 3 by the Owner of Lot 3. The improvements in dispute are a lattice screen and 9 pavers.

The body corporate is seeking the removal of the improvements on the basis that the Owner of Lot 3 did not obtain the approval of the body corporate to install the lattice screen or pavers.

Improvements to common property by a lot owner

Section 114 of the Standard Module allows owners of lots in a community titles scheme to make improvements to the common property for the benefit of their lots in particular circumstances. Section 114 provides the following:

ÿ

114.(1) The body corporate may, if asked by the owner of a lot, authorise

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

authorised improvement is not likely to promote a breach of the

owner’s duties as an occupier.

(3) An authorisation may be given under this section on conditions the

body corporate considers appropriate.

(4) The owner of a lot who is given an authority under this section —

(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 term “minor improvement” is defined in the Schedule of the Standard Module to mean “an improvement with an installed value of $200 or less”.

Whether or not an improvement detracts from the appearance of a lot or the common property is by its nature a subjective issue. Generally in the case of improvements that are significantly visible, it is arguable that the improvement detracts from the appearance of the common property for the scheme. For example, in the case of a lattice screen and pavers that are visible from other parts of the scheme land, I consider that it is arguable that the improvements would detract from the appearance of the common property. Therefore, in my view the legislation requires that the improvements described in this application be authorised by special resolution of the body corporate.

Does the applicant have body corporate approval for the improvements?

Pavers

In a letter to the secretary dated 11 July 2001, the Owner of Lot 3 acknowledges that she did not obtain prior approval of the body corporate before installing the pavers on the common property outside of Lot 3. In the submission made in response to the application on behalf of the Owner of Lot 3, it is stated that the Owner of Lot 3 considered that the lawn area outside of Lot 3 was sinking and that urgent action was required to alleviate a hazard to the tenants of Lot 3 and other persons using the common property.

As a result of the failure of the Owner of Lot 3 to obtain body corporate approval for the installation of the pavers, I intend to order that the Owner of Lot 3 remove the pavers. However, I consider that the Owner of Lot 3 has raised genuine and significant safety concerns with the area of lawn outside of Lot 3. To this end, I remind the body corporate of its maintenance obligations under section 109 of the Standard Module. It is essential that the body corporate ensure that this area is maintained in a good condition. If an owner considers that the body corporate is failing in its obligations to maintain the area, or any other area of common property in a good condition, then they are entitled to make an application to this office seeking a determination of the matter.

Lattice Screen

In relation to the lattice screen, there is a disagreement regarding whether or not the body corporate gave approval for the Owner of Lot 3 to install the lattice screen at the annual general meeting held on 16 July 2000. The Owner of Lot 3 has provided a copy of handwritten notes written on the Secretary’s report and agenda for the annual general meeting of 16 July 2000. The notes include a statement “Yes to screen-lattice-beware of sump. my cost. Go ahead”. The minutes of the annual general meeting of 16 July 2000 provided by the applicant states “SCREEN OUTSIDE UNIT 3 – meeting approved Judy obtain particulars of what is intended and then seeking final approval before proceeding. Any cost to be borne by the owner of Unit 3”.

There is a clear difference in the parties recollection of the annual general meeting of 16 July 2000. A further complicating factor as raised by the Owner of Lot 3 is that the minutes of the annual general meeting of 16 July 2000 were not distributed until some 10 months after the meeting was held, after the installation of the lattice screen. This point was not disputed in the reply to submissions made by the secretary for the scheme.

It is extremely difficult if not impossible for me to verify either of the recollections of the discussion that took place at the annual general meeting of 16 July 2000 in relation to the lattice screen. I note that the issue of erecting the lattice screen was not an item on the agenda for the general meeting, which would normally result in the invalidity of any decision made by the body corporate regarding the issue. However, as the minutes indicate that all 3 lots were represented at the meeting and therefore would have been aware of and able to vote on any proposal, I would not order that the lattice screen be removed on this basis.

I am not prepared to accept one version of events at the general meeting over another without any substantial basis. Therefore I intend to resolve this issue based on the nature and characteristics of the improvements made by the Owner of Lot 3.

I have viewed photographs and sketch plans detailing the lattice screen erected by the Owner of Lot 3. It is apparent from the material before me that the lattice screen is intended to provide privacy for the occupiers of Lot 3. The body corporate objects to the lattice screen on the basis that it impedes access (particularly for tradespersons) to the north-western (rear) side of the scheme land.

Departmental records indicate that the area of common property outside of Lot 3 is not subject to any exclusive use by-laws. As such, I consider that it is an area that owners, occupiers and other persons lawfully entitled to use common property should have unimpeded access to. The photographs I have viewed of the lattice screen illustrate that very little space is left for persons to access the area of common property outside of Lot 3 and as a result, the northern access to the rear of the scheme is also impeded. It is clear to me that it would be difficult for tradespeople with mowers or other equipment to access this area of common property without using the balcony of Lot 3, which is included within the boundaries of the lot.

As a result I intend to order that the owner of Lot 3 remove the lattice screen that has been erected outside of Lot 3. I would point out to all parties that this order does not prevent the Owner of Lot 3 seeking body corporate approval to erect a lattice screen for the benefit of Lot 3, (which does not impede access to areas of common property), in the future.