Donard [2002] QBCCMCmr 712 (11 December 2002)

DJ ReardonREFERENCE: 0731-2002

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	13030
Name of Scheme:	Donard
Address of Scheme:	8 Doris Street HILL END QLD 4101

TAKE NOTICE that pursuant to an application made under the abovementioned Act by the Body Corporate for Donard community titles scheme 13030

DJ ReardonI hereby order that pending determination of this application, the Owner of Lot 29 shall not carry out, or engage a person to carry out, any improvements, alterations, or other work to the common property for “Donard”, including utility infrastructure forming part of the common property. 2n

I further order that pending determination of this application, the Owner of Lot 29 shall not carry out, or engage a person to carry out, any improvements, alterations, or other work contrary to by-law 9, as outlined in the community management statement for the “Donard” community titles scheme.
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0731-2002

“Donard” CTS 13030

1.	Orders sought

The Applicant, the Body Corporate for Donard community titles scheme 13030, has sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”), concerning alterations to Lot 29 being carried out on behalf of the Owner of Lot 29.

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

“We ask that the builders currently on site stop work immediately until further information is given to the Body Corporate.”

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)).

The “Donard” community titles scheme was originally created under a building units plan of subdivision (now referred to as a building format plan of subdivision) registered on 26 February 1976. The scheme consists of 34 lots and common property. The community management statement for “Donard” indicates that the Body Corporate and Community Management (Standard Module) Regulation 1997 (“the Standard Module”) applies to the scheme.

2.	Application and submissions

This dispute resolution application was made on 3 December 2002. On 4 December 2002, a staff member of this Office contacted the Body Corporate Secretary on behalf of the Commissioner for Body Corporate and Community Management, and requested further information regarding the application.

Between 5 December 2002 and 10 December 2002, I attempted to organise a teleconference (or a meeting) with the parties to enable me to establish the precise nature and progress of the work in dispute with a view to determining the application for an interim order. Unfortunately, due to the commitments of the parties, I was unable to arrange either a teleconference or meeting.

Given that the work that is the subject of the dispute has already commenced, I have decided not to delay considering the application for an interim order further.

3.	Interim Orders

At this time, I am solely concerned with the application for an interim order. In any consideration of an application that seeks the making of an interim order, it is necessary to determine whether, because of the nature or urgency of the circumstances relating to the application, an interim order is in fact necessary or appropriate.

The examples included in the Act under section 225(1) are suggestive of the usual circumstances where an interim order might be made. Both examples are in the nature of injunctive relief. Whilst the range of matters that might be the subject of an interim order is not capable of definition, the applicant does need to establish that the circumstances of the application warrant the making of an interim order.

An interim order will not be made, or will be refused, in circumstances where the only urgency relates to the applicant’s desire to resolve or expedite the matters in dispute, or where the nature of the circumstances are such that the matter is not capable of being dealt with in the context of an interim order. Again, it is not possible to define these circumstances.

However, given that an interim order may be made ex parte (ie. without reference to, or submission from the respondent named in the matter), then as a guide, where the circumstances or matters in dispute include matters or allegations not capable of expeditious, and objective consideration, then the request for an interim order may be refused. It is a matter for an adjudicator to determine in respect of each application.

4.	Determination

This application concerns alterations and improvements currently being carried out on behalf of the Owner of Lot 29.

In general terms, if an owner of a lot in a community titles scheme wishes to make an improvement to the common property for the benefit of the owner’s lot, the owner must obtain the approval of the body corporate (refer section 114 of the Standard Module). Again in general terms, an owner may make an alteration to the owner’s lot, subject to any relevant by-laws that apply to the body corporate.

In a building format plan of subdivision, boundaries of lots are defined on the survey plan by references to the structural elements of a building such as the floors, walls and ceilings. These structural elements can include projections of, and references to, structural elements of the building. Where a lot is separated from another lot or common property by a floor, wall or ceiling, the boundary of the lot is the centre of the floor, wall or ceiling (Sections 48C and 49C(4) of the Land Title Act 1994).

The community management statement for “Donard” includes the following by-law relating to alterations to lots included in the scheme, quote-

“9. ALTERATIONS TO LOT

(a)	Occupiers must not make a change to the external appearance of a lot or make any structural alterations to a Lot, except with the consent in writing of the Body Corporate Committee.
(b)	A change to the external appearance or a structural alteration to a Lot means, but is not limited to, erecting external aerials, blinds or awnings, changes to utility infrastructure, the installation of an air conditioning system or the enclosure of a balcony.”

As mentioned previously, I have had some difficulty establishing the particulars of the work that has been carried out, and the work proposed to be carried out by the Owner of Lot 29. However, it is clear that significant work is being carried out to Lot 29.

From the material before me, I understand that the Body Corporate’s concerns regarding the work being carried out on behalf of the Owner of Lot 29 include:

•	The potential effect of the work on the structural integrity of the building,
•	The impact of the work on the appearance of the building, and
•	Noise generated in the course of carrying out the work.

From my telephone contact with the Body Corporate Secretary, and a member of the Committee, I also understand that there are concerns regarding the effect of the changes to Lot 29 with respect to the privacy of the Occupier of Lot 33.

As I understand it, the Body Corporate’s basis for this application is that the Owner of Lot 29 has failed to obtain the proper approval of the Body Corporate before carrying out the alterations and improvements in question.

In the circumstances, and while I have been unable to ascertain the precise particulars of the work being carried out, I intend to issue interim orders that prevent the Owner of Lot 29 from carrying out any alterations to the common property for the scheme, or any alterations to Lot 29 that breach by-law 9 as outlined previously. This interim order does not prevent the Owner of Lot 29 continuing with work that he is otherwise entitled to carry out.

This application will now be investigated and administered in accordance with the Act, and the normal processes of this Office, including providing affected parties with an opportunity to make a written submission about the application. The application will be finally determined in due course.

All parties should note the provisions of section 225(2) of the Act, which provides that -

An interim order -

a)	has effect for a period (not longer than 3 months) stated in the order; and
b)	may be extended, renewed or cancelled by the adjudicator until a final order is made; and
c)	may be cancelled by a later order made by the adjudicator; and
d)	if it does not lapse or is not cancelled earlier - lapses when a final order is made by the adjudicator.

All parties should be aware of this section and its effect on this interim order. In particular, the applicant may need to request a renewal of the interim order, before a final order is made. The onus of renewing an interim order rests with the applicant. This office will not automatically renew an interim order.2y