Gardenia [2002] QBCCMCmr 572 (16 September 2002)

DJ ReardonREFERENCE: 0328-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	9953
Name of Scheme:	Gardenia
Address of Scheme:	4-6 Kalyan St, CHEVRON ISLAND QLD 4217

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

Walter Correll, a Co-owner of Lot 8


DJ ReardonI hereby order that within 7 days of the date of this order, the Owners of Lot 8 must present a motion (“the motion”) to the Secretary for the Body Corporate, seeking approval of the Body Corporate for the installation of fibreglass meshing on the railings of Lot 8.

I further order that the Secretary for the Body Corporate must include the motion as an agenda item for the next general meeting of the Body Corporate.

I further order that if the Body Corporate does not approve the motion by ordinary resolution, the Owners of Lot 8 must remove the fibreglass meshing, and return the railings to their previous condition within 7 days of the meeting.

I further order that if the Owners of Lot 8 fail to present the motion in accordance with this order, the Owners of Lot 8 must remove the meshing, and return the railings to their previous condition within 21 days of the date of this order. 2n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0328-2002

“Gardenia” CTS 9953

1.	Order sought

The Applicant, a Co-owner of Lot 8, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the BCCM Act”), quote-

“I am seeking approval from Body Corporate at owner’s expense to fill in the existing balustrade with shade cloth.”

Section 223(1) of the BCCM 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 BCCM Act or the community management statement; or
b)	the exercise of rights or powers, or the performance of duties, under the BCCM 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 “Gardenia” community titles scheme consists of 9 lots and common property, and was originally created under a building units plan of subdivision (now known as a building format plan). 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 inspection

This dispute resolution application was made on 31 May 2002. On 6 June 2002, the Commissioner for Body Corporate and Community Management (“the Commissioner”) requested the Applicant to provide further information regarding, and clarification of, the application.

On 20 June 2002, the Commissioner invited the Committee for the Body Corporate, and all owners of lots included in the “Gardenia” community titles scheme, to make a written submission about the application. The Committee for the Body Corporate has made a submission about the application, as have the Owners of Lots 5, 6 and 7, and a Co-owner of Lot 4.

On 25 July 2002, the Commissioner made an initial case management recommendation that the application should be the subject of departmental adjudication.

On 28 August 2002, pursuant to section 221(1)(c) of the BCCM Act, I conducted an inspection of scheme land, and met with the Applicant and a number of owners. In a letter dated 5 September 2002, I requested the Secretary of the Body Corporate to provide me with some further material in relation to this application. Specifically, I sought clarification of the Secretary regarding a reference to “Body Corporate Rule 17” referred to in the Committee’s submission, copies of any correspondence relating to the shade cloth, and copies of relevant minutes of meetings relating to the shade cloth.

3.	Matters in dispute

This application primarily concerns an alteration to the scheme land by the Applicant. Specifically, the Applicant has “woven” material (described by the Applicant as fibreglass meshing) through the balcony railings, mainly located on the north-west and south-east aspects of Lot 8. In the application, the Applicant states that the purpose of the material is to enhance privacy and to provide protection as a windbreak.

In the supporting grounds to the application, the Applicant states that he has sought Body Corporate approval for the installation of the meshing, however the Committee for the Body Corporate has refused to grant permission for the alteration. The Applicant goes on to indicate that he believes the refusal is unreasonable, given that the Committee has either approved, or at least not required the removal of, a number of alterations including the installation of a roof above a balcony of Lot 9, the enclosure of a room forming part of Lot 9, and the installation of an antenna outside Lot 7. The Applicant also states that recently, the Owner of Lot 9 has been given approval to install a skylight, and the Owner of Lot 7 has been given approval to install a split system air conditioner.

A number of submissions have been submitted regarding this application, including two submissions by Owners in support of the Applicant’s position on this matter, and a submission from the Committee opposing the application.

4.	Alterations and Improvements

The Act makes provision for improvements to the common property for the scheme by both the body corporate, and by individual owners of lots included in the scheme. Generally, if the owner of a lot included in the scheme wants to make an improvement to the common property for the benefit of the owner’s lot, the owner will need to seek and obtain the authority of the body corporate for the improvement before making the improvement. Section 114 of the Standard Module sets out the form of authority required for improvements to common property by a lot owner.

However, in this case, it seems to me that the railings that the Applicant has altered are within the boundaries of Lot 8. Generally, an owner may make improvements to their lot without the approval of the body corporate, subject to any by-laws for the scheme. A common by-law requires owners of lots to obtain the approval of the body corporate for any improvements that alter the external appearance of the scheme.

As stated above, the “Gardenia” Body Corporate was originally created under a building units plan of subdivision recorded on 5 October 1994. At this time the Building Units and Group Titles Act 1980 (“the BUGT Act”) applied to the scheme. In accordance with section 30 of the BUGT Act, the by-laws contained in the third schedule of the BUGT Act applied to the Body Corporate, until such time as the Body Corporate resolved to change the by-laws, and the Registrar of Titles recorded the changes. As there were no changes to the by laws recorded for the “Gardenia” Body Corporate, the by-laws contained in the third schedule of the BUGT Act, continued to apply to the scheme.
The BCCM Act commenced on 13 July 1997. As a result of the transitional provisions of the BCCM Act, (see section 285(5)(a), the third schedule by-laws continue to apply to the “Gardenia” Body Corporate. In my view, the third schedule by-laws of the BUGT Act do not contain a by-law applicable to the alterations made by the Applicant in this case.

While the above may seem to indicate that the Applicant does not have an obligation to obtain the approval of the Body Corporate for the installation of fibreglass meshing on the railings, I consider that the matter is somewhat complicated by the affect of section 109(2) of the Standard Module. Section 109(1) of the Standard Module imposes an obligation on bodies corporate to maintain the common property for the scheme in a good condition. Section 109(2) of the Standard Module goes on to provide that in the case of a scheme created under a building format plan of subdivision, the body corporate must maintain any “railings, parapets or balustrades on (whether precisely or for all practical purposes) the boundary of a lot and common property” in a good condition.

Therefore, while the railings of Lot 8 may be strictly within the boundaries of the Lot, the Body Corporate has an obligation to maintain the railings in a good condition. I consider that as the Body Corporate carries this maintenance responsibility, it is necessary for owners to seek approval for any proposed alterations to the railings prior to carrying out the alterations.

5.	Determination

In summary, the main objection to the installation of the fibreglass meshing seems to be that it negatively alters the appearance of the scheme. The Applicant’s position appears to be that given that other alterations have been made which affect the appearance of the scheme, it would be unreasonable to prevent him from retaining the fibreglass meshing.

Notwithstanding that I consider that the Body Corporate has a right to decide whether or not to grant the Applicant approval to retain the meshing, given that the Body Corporate does not have a by-law about changing the external appearance of a lot in this regard, I do not consider that the Body Corporate should give weight to the appearance of the improvement in deciding whether or not to grant approval. However, I do consider that in making this decision the Body Corporate is perfectly entitled to consider factors such as the potential impact of the improvement on its maintenance responsibilities, and whether or not the improvement is installed in a proper workmanlike manner.

From the material before me, it does not appear that the Body Corporate has considered this issue at a properly convened general meeting of the Body Corporate. As such, I intend to order that the Applicant seek the approval of the Body Corporate at a general meeting. This position is consistent with the secondary objects of the Act, which include “to balance the rights of individuals with the responsibility for self-management as an inherent aspect of community titles schemes”. As the improvement is not strictly an improvement to common property, I consider that the improvement should be authorised by an ordinary resolution of the Body Corporate, rather than a special resolution as required by section 114(2) of the Standard Module.

In respect of the other improvements that the Applicant makes reference to, that is, the roof installed above the balcony of Lot 9, the antenna installed above Lot 7 and the enclosed room on Lot 9, I would simply state that these improvements each have their own characteristics and features. While the Body Corporate has an obligation to act reasonably in deciding whether or not to give approval for changes and improvements, the Body Corporate should decide each case on its merits. I do not consider that the granting of approval for one improvement, or similarly a failure of the Body Corporate to require an owner to remove an unauthorised improvement, necessarily binds the Body Corporate to accept any future improvements by owners. Again, each instance should be decided on its merits.

For the reasons outlined above, I intend to order that the Owner of Lot 8 present the Secretary for the Body Corporate with a motion seeking approval for the meshing for consideration at the next general meeting of the Body Corporate. I also intend to order that if the motion is not passed, then the Owner of Lot 8 must remove the meshing and return the railings to their previous condition.