Kookaburra Park Eco Village [2002] QBCCMCmr 679 (20 November 2002)

P J HANLYREFERENCE: 0672-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	19671
Name of Scheme:	Kookaburra Park Eco Village
Address of Scheme:	C/- M/S 368 GIN GIN QLD 4671

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

Rudolf Ondrich, the co-owner of lot 73



I hereby order that the application for an interim order that all works on the concrete slab to be constructed on common property near the applicant’s lot be stopped until a final order of an adjudicator is received, is dismissed.

I further order that the application for an order that the proposed concrete slab be relocated to a more suitable site and that a public forum take place to answer any concerns which may be raised, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0672-2002

“Kookaburra Park Eco Village” CMS 19671

The applicant, Rudolf Ondrich, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act):

That the proposed concrete slab be relocated to a more suitable site and that a public forum take place to answer any concerns which may be raised.

The applicant has also sought the following interim order of an adjudicator, quote -

To stop all works on site until the order of an adjudicator is received and until that time make the site safe as per council regulations – specifications.

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)).

In the supporting grounds, the applicant states that when he purchased his lot five years ago he was attracted to it because of the amount of common property adjacent to it. The applicant further states that he is unhappy about the concrete slab being located near his lot as he considers that there are several more suitable sites.

The body corporate committee was invited to respond to the application. A submission signed by the chairperson and the secretary made the following points:

• To the best of their knowledge there had been no irregularity in the process leading up to the commencement of the children’s slab project.

• The motion (number 15) seeking body corporate approval for the project was properly included on the agenda of the extraordinary general meeting held on 20 May 2001, and was passed as an ordinary resolution.

• The committee does not consider that motion 17 passed at the annual general meeting held on 21 October 2001 had retrospective effect, and therefore did not apply to motion 15 relating to the children’s slab project.

• The applicant has had ample opportunity to propose a motion seeking to rescind motion 15, as there have been seven general meetings since motion 15 was passed and before the commencement of the project, but has not done so.

The body corporate committee subsequently advised, in response to a query from this office, that the children’s slab project was being conducted at no cost to the body corporate.

Section 113 of the Standard Module, by which this scheme is regulated, provides as follows:

113 Improvements to common property by body corporate—Act,

s 121

The body corporate may make improvements to the common property

if—

(a) the cost of the improvements, or, if the improvements together

with associated improvements form a single project for

improvement of the common property, the cost of the entire

project, is not more than an amount worked out by multiplying

the number of lots included in the scheme by $250; or

(b) the improvements are authorised by special resolution;23 or

(c) an adjudicator, under an order made under the dispute resolution

provisions, decides the improvements are reasonably necessary

for the health, safety or security of persons who use the common

property and authorises the improvements.

In this instance, the committee has stated that the body corporate is not financially liable for any costs associated with the children’s slab project, and therefore the motion placing the project before the body corporate for its approval was quite properly decided by ordinary resolution.

The applicant has certainly had ample time to propose a motion for the rescission of motion 15, particularly as he raised his first objection to the project at the meeting at which it was considered. In addition, the applicant has not provided good reason why his application to effectively overturn motion 15 was not made within 3 months of the meeting at which that motion was decided, as required by section 193 of the Act.

I also do not accept the applicant’s submission that motion 17, passed at the annual general meeting held on 21 October 2001, should apply to the project approved by motion 15 at the earlier extraordinary general meeting. The wording of motion 17 was as follows:

That all projects approved by the body corporate that are not started within a 12 month period are reviewed unless a longer time period is specifically stated in the original proposal.

In my view, if motion 17 had been intended to apply retrospectively, the motion would have used the words “that all projects approved by the body corporate that have not been started within a 12 month period ...”, rather than the words “that all projects approved by the body corporate that are not started within a 12 month period ...”.

The other factor upon which the applicant relies in support of his request for the relocation of the children’s slab project is the likelihood of noise interfering with his quiet enjoyment of his lot. The by-laws for this scheme provide regulation in relation to noise and behaviour (by-law 5) and behaviour of invitees and children (by-law 8). If children using the concrete slab were to create noise or exhibit behaviour which interfered with the applicant’s enjoyment of his lot, then he would be entitled to seek some redress under the Act, which itself prohibits nuisances (see section 129). However, the sizes of lots in this scheme (the applicant’s lot is 6228m2) suggest that there would be some noise buffer provided by the area of land surrounding homes, and, I would expect, by the naturally occurring foliage. There would certainly be more protection than would be afforded in a normal suburban setting.

I am not persuaded to make the orders sought by the applicant. I have therefore dismissed the application in its entirety.

In the circumstances, it is not intended to invite further submissions regarding this matter, or to make a further order, since this decision, though an interim one as sought by the applicant, is final in its determination of this matter. If the applicant considers that an appeal of this decision is warranted, then he should appeal this order.