Fernbrook [2002] QBCCMCmr 570 (12 September 2002)

DJ ReardonREFERENCE: 0388-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	20243
Name of Scheme:	Fernbrook
Address of Scheme:	29 Yoorala Street, THE GAP Q 4061

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

Thomas Peel, and Joan Peel, the Owners of Lot 9


I hereby order that the application for an order concerning alterations to an area of common property adjacent to the eastern boundary of Lot 9 (“the relevant area”), as authorised by the Committee at a meeting held on 13 June 2002, is dismissed.

I further order that the Body Corporate may proceed with the alterations and work described in items 1-12 of the plan annexed to the minutes of the committee meeting held on 13 June 2002 (“the proposed plan”).

I further order that the Body Corporate may proceed with the creation of a new BBQ area, including a new BBQ, tiling and roof, in accordance with items 13-15 of the proposed plan, except that the new BBQ area shall be located as far as practicable to the eastern side of the relevant area, and as close as practicable to the proposed pool fence.
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0388-2002

“Fernbrook” CTS 20243

1.	Orders sought

The Applicants, the Owners of Lot 9, have sought an order of an adjudicator concerning improvements and alterations to common property proposed by the Body Corporate, which the Applicants consider will detract from the amenity of their lot. The Applicants also sought an interim order regarding this matter.

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 the Act or the community management statement; or
c)	a claimed or anticipated contravention of the terms of, 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 “Fernbrook” community titles scheme was originally created under a group titles plan of subdivision (now known as a standard format plan of subdivision) and consists of 64 lots, and common property. The community management statement for the scheme indicates that the Body Corporate and Community Management (Standard Module) Regulation 1997 (“the Standard Module”) applies to the scheme.

2.	Application, submissions and interim orders

This application was made on 2 July 2002. On 3 July 2002, I conducted a teleconference with the Applicants and the Body Corporate Manager for the scheme, for the purposes of gathering information to assist me in my consideration of the application for an interim order. On 4 July 2002, as a result of the teleconference, and largely with the agreement of the Applicants and the Body Corporate Manager, I issued the following interim orders,

“I hereby order that the Body Corporate must immediately cease any work being carried out as described in items 7 and 8 of the minutes of the committee meeting held on 13 June 2002.

I further order that the Body Corporate must immediately instruct any person it has engaged to carry out work described in items 7 and 8 of the minutes of the committee meeting held on 13 June 2002, to cease carrying out the work.

DJ ReardonI further order that the Body Corporate must not carry out, or engage a person to carry out, any further work as described in items 7 and 8 outlined in the minutes of the Committee Meeting held on 13 June 2002, until this application is determined by final order”.

On 5 July 2002, the Commissioner for Body Corporate and Community Management (“the Commissioner”) invited the Committee, and the Body Corporate Manager to make a written submission about the application. The Body Corporate Manager provided a submission on behalf of the Body Corporate under cover of a letter dated 26 July 2002. Pursuant to section 196 of the Act, the Applicants requested, and were provided with a copy of the Body Corporate’s submissions. The Applicants have provided a brief reply to the submissions.

On 13 August 2002, the Commissioner made an initial case management recommendation that the application should be the subject of departmental adjudication.

On 28 August 2002, the Body Corporate Manager sent me a facsimile indicating that in the course of carrying out repair and maintenance work prior to the interim order being issued, parts of the swimming pool fence had been dismantled. The Body Corporate Manager went on to express concern regarding the health and safety, and insurance implications of not having the swimming pool properly fenced.

I conducted a further teleconference on 29 August 2002 with the Applicants and the Body Corporate Manager regarding the swimming pool fence. On 29 August 2002, again with the agreement of the Applicants and the Body Corporate Manager, I issued the following supplementary interim order

“I hereby order that notwithstanding my interim order of 4 July 2002, the Body Corporate may take any reasonable and necessary steps to ensure that the common property swimming pool is fully and properly fenced in compliance with local government requirements, and to ensure that the swimming pool area is appropriately secured”.

On 10 September 2002, I conducted an inspection of the common property and met with the Applicants, the Body Corporate Manager, and a number of members of the Committee.

3.	Matters in dispute

As stated previously, this application concerns proposed improvements and alterations to the common property by the Body Corporate. The area of common property in question is adjacent to the eastern side of Lot 9. The northern side of the area contains a swimming pool, gazebo and small BBQ area. The southern aspects of the area are largely unutilised gardens and lawns. The common property tennis court is located to the east of the area in question.

At a committee meeting held on 13 June 2002, the Committee for the Body Corporate resolved to carry out a number of proposals in relation to this area, at a cost not to exceed $4000. The specific proposals are detailed on a plan that was annexed to the minutes of the meeting. At the inspection and meeting on 10 September 2002, the Applicants indicated that they were not concerned with most of the work (for example proposals in relation to repairing fences and drainage), however they were concerned with a proposal to relocate the BBQ, and a suggestion of installing a pergola.

If my understanding is correct, the Applicants’ general concern regarding this matter is that the alterations will reduce the amenity of Lot 9. I understand that the Applicant’s feel that the proposed sites of the new BBQ area and proposed pergola are too close to Lot 9, and the new BBQ area and pergola would be used by a significant amount of people resulting in noise that would unreasonably interfere with the peaceful enjoyment of Lot 9. The Applicants also expressed concern regarding the impact of the alterations on the value of Lot 9.

4.	Determination

One of the general functions of a body corporate is to administer the common property and body corporate assets for the benefit of the owners of the lots included in the scheme (section 87(1)(a) of the Act. As well as maintaining common property, the legislation certainly contemplates bodies corporate making improvements and alterations to the common property for the scheme. It is not the case that the use and features of common property must remain stagnant, or unchanged from the time of the establishment of the scheme. However, it is important to note that the Body Corporate has an overriding obligation to act reasonably in anything it does in carrying out its general functions (section 87(2) of the Act).

In relation to the proposed site for a new BBQ area, I note that the proposed site is located on the eastern side of the area in question, and as close as practicable to the tennis court (the proposed site is quite close to the existing BBQ site). There is also a large tree between the proposed site and Lot 9. At the meeting, the Committee indicated a desire to keep this tree, however, I am aware that this will depend on final decisions being made on a proposed pergola and eating area which will be discussed below. While I am satisfied that the new site has the potential to have some impact on the Applicants, I consider that the impact will be minimal. For this reason, I consider that the Committee’s proposal on this point is a reasonable and should be allowed to proceed.

As stated previously, there has been a suggestion of erecting a pergola on the area in question. The plan annexed to the minutes of the committee meeting of 13 June 2002, indicated that the proposed pergola could be located adjacent to the boundary fence separating Lot 9 from the common property. Due to the fact that the Body Corporate has made no determination as to whether or not to erect a pergola, I do not consider that it is appropriate or necessary for me to make an order on this point at this time. However, in general terms, I consider that the Applicants concerns on this point are quite compelling. In my view, it would be reasonable to say that erecting a pergola in such proximity to the Applicants’ lot could have a significant impact on the amenity of Lot 9. Clearly, it is likely that groups of people would congregate in this area for significant amounts of time and generate substantial noise.

However, at the inspection and meeting, Committee members indicated that the location was simply a preliminary suggestion, and that the Committee was prepared to work with the Applicants toward finding a mutually satisfactory solution. At the inspection and meeting a number of alternative proposals started to be formed which the parties can now investigate and consider further. These proposals included consideration of possible locations and sizes of a pergola, the possibility of a table and chairs being placed in the area rather than erecting a permanent pergola, and the potential to restrict the times that this area could be used by owners and occupiers of lots included in the scheme in order to minimise the impact of the use of this area on the Applicants.

At the inspection and meeting, it appeared to me that there is a substantial degree of goodwill between the Committee and the Applicants. Therefore, I am hopeful that a mutually acceptable proposal regarding the possible pergola/eating area can be formulated, and if necessary, be presented to the Body Corporate for consideration at a general meeting. If the Applicants still have concerns about the pergola after the Body Corporate or Committee have made a decision on the pergola/eating area, they would be entitled to make a further dispute resolution application on this point.

In conclusion, subject to my concerns about the possible pergola discussed above, I consider that the Committee has acted reasonably in relation to its management of this area of common property. I have ordered accordingly.