Maria Creek Estate [2002] QBCCMCmr 659 (4 November 2002)

C G YOUNGREFERENCE: 0474-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	25253
Name of Scheme:	Maria Creek Estate
Address of Scheme:	51 Rebecca Jane Parade

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

Peter Alfred George HABLETHWAITE and Marcia Heather HABLETHWAITE, as the co-owners of Lot 3,



C G YOUNGI hereby order that Melivan Pty Ltd, the owner of Lot 4, must submit a motion to the body corporate secretary being an application to the body corporate to approve the erection of the shadehouse on the exclusive use area of common property for Lot 4, to be determined by special resolution at the next general meeting of the body corporate.

I further order that the pool wall erected as part of the swimming pool installed on the exclusive use area of common property for Lot 4, is permissible under the terms of approved use set out in By-law 4 of the body corporate by-laws. 2y

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0474-2002

“Maria Creek Estate” CTS 25253

The applicants, Peter and Marcia Hablethwaite of Lot 3 (and Lots 2, 6, 7, 8 and 9), have sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”) -

“The brick or block wall located on the northern side of the swim pool & the shadehouse located on the northern side of the house, both located on the E.U.A.(exclusive use area) of Lot 4 should be approved by special resolution of the Body Corporate in accordance with s.124(4) of the Reg Module or be removed. We the applicants are chairperson & secretary of the Body Corp but we have obligations as lot owners & as the Commissioner BODY CORPORATE&CM has made us personally aware of a similar significant breach of the by-laws we consider it our duty to have this breach remedied.”

JURISDICTION:
This is a dispute between an owner, the applicants Peter and Marcia Hablethwaite of Lot 3, and the respondent Melivan Pty Ltd (the Andrijevic’s) of Lot 4, concerning the removal of two structures erected on the exclusive use area of Lot 4. This is therefore a matter that comes within the dispute resolution provisions of the legislation (see sections 182, 183 and 223 of the Act).

General powers of an adjudicator in making an order:
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 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) of the Act). 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, a copy of the application was served on the respondent (Melivan Pty Ltd – the Andrijevic’s) with an invitation to respond to the matters raised. The respondent subsequently lodged a submission; the applicants viewed the submission and submitted a written reply.

The applicants state that Order 119-2002 brought to their attention the need for owners to obtain the approval of the body corporate before effecting an improvement to common property for the benefit of their lot, unless the improvement is located on an exclusive use area and the by-law granting the right itself authorises the improvement. Further, if the improvement costs more than $200 then approval has to be by way of special resolution. The applicants believe the cost of both the pool wall and the shadehouse would be well in excess of $200.

The respondent claims that that neither item needs body corporate approval as they come within the approval provisions of By-law 4. This by-law grants each owner the exclusive use of a defined area of common property surrounding their respective lots, and both items have been erected by the respondent on the exclusive use area for Lot 4. The by-law states –

By-law 4

Each lot owner will have exclusive use of the common property bounding his lot as defined in Schedule E and as identified on the Sketch Plan marked “A” attached hereto. The area may be used for paths, driveways, swimming pool, tennis court, gardens, otherwise with permission of the Body Corporate.

(NOTE: Adjudicator’s highlighting)

The respondent states that the wall is an integral part of the swimming pool and therefore is covered by By-law 4 which authorises swimming pools on exclusive use areas. The respondent also contends that the shadehouse is home to my orchids, ferns and soft foliage plants. And as such is an extension of the gardens, and also that the cost of the greenhouse is negligible as we erected it ourselves consisting of green shade cloth.

In their reply to the submission, the applicants reject the respondent’s claims that the items are permissible under the by-law, and that reaffirms its belief that the shadehouse cost far in excess of the $200 threshold amount.


DETERMINATION:
The applicants have specifically drawn my attention to a previous order made by a fellow adjudicator, Order 119-2002 of 4 June 2002, and the obligation they felt in having to make this application based on the findings in that order. They refer to the Architectural and Garden Review Committee report of 27 November 2001 (not submitted) that shows it did not intend to take any action in respect of the pool wall until receipt of the order.

That order required the applicants to remove a wall erected on common property (not subject to any exclusive use grant) that the adjudicator found was erected for their benefit and not for the benefit of the body corporate under section 113 of the Body Corporate and Community Management (Standard Module) Regulation 1997 (“Standard Module”). The adjudicator went on to say that the wall, being for their benefit, was rather subject to the provisions of section 114 of the Standard Module, and it is this finding that the applicants say applies equally to the respondent in this application for the pool wall and shadehouse.

There is quite a difference between the wall erected by the Hablethwaite’s on a common property access strip separating the exclusive use areas of Lots 3 and 4, and that erected by the respondent. The Hablethawite’s wall was not erected on their lot or on their exclusive use area, and therefore they could not rely on it being either a personal property asset sited on their lot, or that it fell within the approval provisions of By-law 4.

Nevertheless, the applicants are correct in saying that any improvement to an exclusive use area of common property must be considered against both the by-law approval provisions and the requirements of the legislation, specifically section 124 of the Body Corporate and Community Management (Standard Module) Regulation 1997 (“Standard Module”).

As section 124 does not apply if the by-law itself allows the improvement, then I should deal with this aspect first.

In regard to the pool wall, it is my view that it does come within the meaning of swimming pool as provided for in the by-law. The term is not limited by the words of the by-law in any way, and therefore must be viewed in a broad sense so as to encompass all the elements that are necessary for a swimming pool, and also those decorative and utility features that can be reasonably considered to be part of a swimming pool. Necessary elements would include such items as: pool pump and filter; ladder; and surrounding fence. Decorative features would include: tiling; decking; surrounding bushes, gardens and pot planters; landscape features such as an artificial rock waterfall and feature wall. Utility features would include: a diving board; exterior and underwater lighting; and seating.

I consider that a wall such as the respondent has erected (a photograph has been supplied), is a normal decorative feature for the type of pool that it is – a semi-formal Tuscan pool setting, being a type not unusual in contemporary hotel and suburban pools and gardens. In similar fashion, a rock-mound featuring a waterfall would be an acceptable decorative feature for a natural/rain forest pool setting. Accordingly I consider the wall is permissible under the By-law 4 and no body corporate approval is necessary.

I have a different view in regard to the shadehouse. The respondent contends that it comes within the meaning of gardens as provided for in the by-law, as it is home to my orchids, ferns and soft foliage plants. The shadehouse is a large structure that is visible from the applicant’s lot, and to a lesser extent from the common property driveway and other lots.

The term gardens would include built-up planted garden beds, shrubs and general landscaping such as soil-mounds, rockeries, and the like. It may extend to certain structures but I do not have to consider those here, as I believe that the respondent’s shadehouse could not be part of any such permissible category of structures. I use the term category not to exclude shadehouses per se, but those of the size and visibility of the respondent’s shadehouse.

The respondent should have obtained the prior approval of the body corporate as required by section 124 of the Standard Module, before erecting the shadehouse. I also agree with the applicant’s statement that the shadehouse is caught by section 124(4) and therefore approval must be by special resolution. For while the respondent states that the cost of the greenhouse is negligible as we erected it ourselves consisting of green shade cloth, the $200 threshold does not relate to the cost of the improvement but to its value – the definition of minor improvement in the Dictionary Schedule of the Standard Module states that it means an improvement with an installed value of $200 or less. The value of the shadehouse is obviously in excess of $200. I might also comment here that the respondent may have misunderstood the significance of the $200 threshold - if the value was $200 or less, it would not mean no approval was necessary, but that approval could be given by the committee rather than by special resolution in general meeting.

I note that in Order 119-2002 the adjudicator ordered the wall to be removed within 3 months unless it was sooner approved by special resolution of the body corporate. In that case the wall was erected on common property that was not subject to an exclusive use by-law in favour of an owner, whereas the wall here is. Accordingly I only propose to order that the respondent must seek its approval, by the immediate submission of a motion to that effect, within a certain period. The removal of the wall will follow if the motion is rejected, unless the applicant is successful in securing an order to overturn the refusal (see section 223(3)(a) of the Standard Module). I am not suggesting here that such an application would be successful, but only pointing out what the legislation provides. 2y