Fairways Mews [2002] QBCCMCmr 529 (27 August 2002)

C G YOUNGREFERENCE: 0494-2002

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	2100
Name of Scheme:	Fairways Mews
Address of Scheme:	38 Suncoast Beach Drive MOUNT COOLUM QLD 4573

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

Robert Anthony CHURCH, as the owner of Lot 2,



C G YOUNGI hereby order that Momcilo FILIPOVSKI, the owner of Lot 1, must immediately stop carrying out any further work on the construction of a shed on common property pending the determination of this application by final order. 2n

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0494-2002

“Fairways Mews” CMS 2100

The applicant, Robert Church of Lot 2, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”) -

1. Stop any further building of the shed to north-west corner of common property.

2. Remove the formwork and building materials from the north-west corner.

3. Replace removed trees to north-west with trees or plants to screen the adjoining property’s shed (No. 40).

4. Mr Filipovski to accept that he has to advise of proposed developments and seek Body Corporate approval before commencing any work anywhere on the Common Building or Grounds.

The applicant has also made application for an interim order of an adjudicator in the same terms as the final order sought above.

JURISDIOCTION:
This is a dispute between one owner, the applicant Church of Lot 2, and another owner, the respondent Filipovski of Lot 1, concerning the erection of an improvement, namely a shed, on the common property for the benefit of the owner of the lot, without the approval of the body corporate. This is therefore a matter that falls within the dispute resolution provisions of the legislation (see sections 182, 183 and 223 of the Act).

Section 225(1) of the Act provides that an adjudicator may make an interim order if satisfied on reasonable grounds that an interim order is necessary because of the nature or urgency of the circumstances to which the application relates. An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 230(1) of the Act).


APPLICATION AND SUBMISSIONS:
Under section 194 of the Act, the requirement to seek submissions from interested parties may be dispensed with by the Commissioner and the application for an interim order dealt with directly by an adjudicator. That course is considered appropriate here as the formwork for the foundations of a shed has been set in place and there is therefore urgency to the work being stopped pending determination of the application.

The applicant states that the shed is being built on common property and has not been approved by the body corporate in general meeting. This is after Filipovski cut down trees in the general area which, when standing, obscured Church’s view of the neighbour’s metal shed.

The applicant Church has supported the application with a photograph of the formwork the respondent Filipovski has set up in the north-west corner of the scheme. He states that if a shed is built on the spot it will be visible from the rear room of his lot building, as the back of the scheme slopes upwards.


DETERMINATION:
The property details for the scheme are that it comprises two lots and was registered as a building units plan (now termed a “building format plan”) on 10 March 1994. There are no by-laws recorded to show that the common property is subject to any by-law giving exclusive use to one or both owners.

All common property therefore is under the administration, management and control of the body corporate (see sections 87 and 114 of the Act). That is, although under section 37(1) of the Act all of the owners own the common property as tenants in common, it is the body corporate which determines the maintenance, use and other aspects of the common property. Owners do not have “control” or the “use” of any particular part of the common property – this is only the case if the common property is subject of an exclusive use by-law (or a lease) to an owner.

Accordingly, the body corporate (the owners voting in meeting) must approve any improvements of the nature of the proposed shed (see section 114 of the Standard Module regulations). However, at this time I have only the information from the applicant and it is necessary that the respondent Filipovski is given the opportunity to respond to the application before I make a final order in the matter.

My order is therefore for Filipovski to stop any further work on the shed until I have received his response and made a final determination of the dispute.

This matter will now be investigated in accordance with the usual processes undertaken by this office. A final order regarding the application will be made in due course.

All parties should note the provisions of section 225(2) of the Act which provides that -

An interim order -

a) has effect for a period (not longer than 3 months) stated in the order; and

b) may be extended, renewed or cancelled by the adjudicator until a final order is made; and

c) may be cancelled by a later order made by the adjudicator; and

d) if it does not lapse or is not cancelled earlier - lapses when a final order is made by the adjudicator.

All parties should be aware of this section and its effect on this interim order. In particular, the applicant may need to request a renewal of the interim order, before a final order is made. The onus of renewing an interim order rests with the applicant. This office will not automatically renew an interim order.2n