Raintree Glen [2002] QBCCMCmr 57 (4 February 2002)

RA MeekREFERENCE: 0532-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	19967
Name of Scheme:	Raintree Glen
Address of Scheme:	27 Raintree Glen RUNAWAY BAY QLD 4216

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

RA MeekI hereby order that the application by the Body Corporate for Raintree Glen, for an order that Sally Baily re-instate the driveway and pathway to their original finish within lot 24, is dismissed.
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STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0532-2001

“Raintree Glen” CTS 19967

The applicant, the Body Corporate for Raintree Glen, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

That Sally Baily be ordered to re-instate the driveway and pathway to their original finish within lot 24.

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 owner of lot 24, Sally Baily has “altered the finish of the entry drive and pathway within lot 24. This work has altered the external appearance of lot 24. There is no other lot within the scheme that has altered the finish of their drive from that originally applied.”

The body corporate refers to by-law 10(f) which provides –

An occupier must not make any structural alterations, renovations or additions to the external part of a lot ... except with the consent in writing of the body corporate committee.

The body corporate concludes –

The body corporate committee has not granted consent for the alterations made, nor did Sally Baily at any time prior to work commencing refer the matter to the body corporate.

The owner of lot 24, Sally Baily (Baily) has responded to the application by way of submission. That submission includes an architect’s report from The MPS Group dated 8 October 2001. The submission is lengthy and I intend to only refer to those aspects I consider pertinent. The submission acknowledges that Baily has “resurfaced the exposed aggregate driveway and path with stencil concrete”. The submission states that the driveway is part of the common property of the parcel, but in respect of which Baily has exclusive use. This however is not correct as the most recent CMS recorded for the scheme indicates that no allocations of exclusive use have been created for this scheme. The submission further states –

(Baily) has resurfaced the driveway and access path with a beige coloured stencilled concrete in a square tiled pattern. The work has been done in a competent manner and the surface is clean and attractive. The edges of the work match the existing levels and appears as original work rather than modification. The colour of the stencilled concrete is neutral beige, which is complementary of the colour of the brickwork of the building.

The submission further states that the reason for the change to the driveway surface was that Baily had sought to repair the driveway some seven years ago, by re-pebbling it, but that “once again, the pebbles uplifting forcing deterioration and an uneven surface”. Baily states that it was for this reason that she “looked for another form of works that would last a significantly longer period of time at her premises”.

The submission concludes that “the resurfacing of the driveway by (Baily) is part of this positive process and is consistent with the long-standing policy of the body corporate”.

It should be noted that the submission on behalf of Baily relies on, and quotes extensively from, the architect’s report. The architect’s reports includes photos of other driveways, and makes the statement that –

Many of the other existing driveways appear to have differing colours of aggregates and have discoloured with age. Some have started to break up with the surface delaminating presenting a difficult and expensive problem for the body corporate in the future.

Under the heading “Aesthetics and Visual Impact”, the report states –

From most angles looking down the street the driveways are invisible and secondary at least with regard to the effect of the gardens.

The report concludes that the stencilled concrete is an attractive and competent installation, and that the gardens are the visually dominant element of the streetscape and not the driveways.

I consider paragraph (a) of the by-law to be a statement of the intent of the by-law; namely for the body corporate to retain conformity as to style and colour of buildings and to maintain a high standard in relation to the external appearance of those buildings.

It is arguable in my view whether by-law 10(f) has any application to this scenario at all. The by-law refers to structural alterations, renovations or additions to the external part of a lot. It is very arguable in my view that there is no structural aspect to the renovation of a driveway. Moreover, (a) refers to the style and colour of buildings and the external appearance of those buildings. The buildings on a lot can be distinguished in my view from the gardens and driveways on a lot.

In any event, it is not necessary in my view, to draw technical distinctions. I conclude that the alteration which has been effected here does not have a detrimental impact on the aesthetic appearance of the lot in particular, or the scheme in general. Specifically, the body corporate in its grounds has not alleged that this has occurred. In fact, Baily could be said to be complying with her obligation to maintain her lot in good condition (see section 120(2) of the standard module).

Whilst the consent of the body corporate committee might technically have been required, I conclude that the failure to obtain such consent has not had a detrimental effect on the body corporate, such that an order to install a new driveway in exposed aggregate is warranted. Accordingly, I have dismissed this application.