Oceanside Cove [2003] QBCCMCmr 102 (5 September 2003)

Last Updated: 17 May 2005

REFERENCE: 0085-2003

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	2188
Name of Scheme:	Oceanside Cove
Address of Scheme:	1 First Avenue BURLEIGH HEADS QLD 4220

TAKE NOTICE that pursuant to an application made under the abovementioned Act by The Body Corporate for Oceanside Cove

I hereby order that, within 30 days, the owners in Oceanside Cove of lot 21 (Bruce Fisher and Marilyn Fisher) and lot 22 (Royce Noble and Judith Noble) undertake in a professional manner either: a) the addition of privacy sheers to their vertical blinds; b) the painting of one side of their vertical blinds; or c) the replacement of their vertical blinds, so as to present (as far a practicable) a uniform appearance with other window coverings of Oceanside Cove when viewed from outside the building.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0085-2003

"Oceanside Cove" CTS 2188

Application

Oceanside Cove Community Titles Scheme 2188 (Oceanside Cove) is a 30 lot residential scheme under the Body Corporate and Community Management Act (Act) and the Act’s Standard Module Regulation (Standard Module).

This application relates to a dispute between the Oceanside Cove body corporate (applicant) and the respective owners of two Oceanside Cove units (respondents) about the colouring of interior vertical blinds. The body corporate alleges that the lot owners have contravened Oceanside Cove’s by-law 11 by installing yellow vertical blinds.

Oceanside Cove’s by-law 11 provides that "A proprietor or occupier of a lot shall not hang curtains visible from outside the lot unless those curtains have a backing of such colour and design as shall be approved by the Council. A proprietor or occupier of a lot shall not install, renovate and/or replace curtain backing without having the colour and design of same approved by the Council. In giving such approvals the Council shall ensure so far as practicable that curtain backing used in all lots presents a uniform appearance when viewed from outside the Building."

The body corporate has applied for orders to the effect that the respondents’ blinds contravene by-law 11 and are to be removed and replaced with ones of an approved colour.

Background

It is unfortunate that this dispute has required adjudication. However, the factual circumstances themselves are not highly contentious.

Oceanside Cove contains 30 units. The standard interior window covering for most units has historically been vertical blinds made of a greyish fabric. However, for some time, there has been variation in the window covering for different units. This includes some units displaying cream or whitish cloth curtain backings rather than vertical blinds. Some vertical blinds also have a greenish tinge. Further, some unit owners have installed privacy sheers of a whitish colour which, I understand, consist of light cloth curtains hung inside the window between the glass and the interior vertical blind.

In late 2001 (or early 2002) the respondents upgraded and updated the interior of their respective units. As part of this modernisation, the respondents installed interior vertical blinds. There has been some disagreement about the best description of the colour of these blinds. Based on the descriptions given, and from viewing sample fabric and photographs of the binds, I am prepared to say that the blinds are best described as yellowish.

The respondents did not seek approval of their blinds pursuant to by-law 11 before installing their blinds and in February 2002 the committee alleged the respondents were contravening by-law 11.

From February 2002 to December 2002 the committee and the respondents engaged in various communications. In the course of these communications the committee appears to have advised the respondents that it would approve the blinds if privacy sheers similar to those already used by some units were installed. The committee also seems to have indicated that the blinds would be approved if the side of the blinds that is visible from outside the unit was painted a colour that matched the majority of other blinds at Oceanside Cove.

In January 2003 the blinds remain unaltered and the committee resolved to bring this application.

Submissions

The body corporate’s main submissions were to the effect that:

•	The term "curtains" in by-law 11 refers to all types of window treatment and includes interior vertical blinds;
•	The blinds installed by the respondents are not of an approved colour; and
•	It was necessary to bring this application to enforce the by-law.

The respondents’ main submissions were to the effect that:

• The term "curtains" in by-law 11 means that the by-law does not apply to the interior vertical blinds installed by the respondents;
• Some variety of materials and colours of external window treatments exist already, with some curtain backings being of a yellow tinge;
• Most window treatments are not obvious due to a diverse range and colour of patio furniture, screen treatments, pot plants on balconies, lush greenery throughout the complex, and the blinds being open most of the time. Further, window treatments fade in time;
• The selected window treatment was chosen to blend in with the creams in the existing exterior treatment of the building;
• The by-law may need to be revised as after this length of time many units would be requiring make overs and owners may like to introduce some individuality to their own premises keeping in mind that the exterior look is not dramatically affected;
• The suggestion of ‘privacy sheers’ between the window and the blinds was not acceptable as they hold dust, can look unsightly, and can suffer damage if they are partially blown out open windows;

Comments and submissions from other Oceanside Cove unit owners have also been received, some in support of the applicant and some in support of the respondents. These submissions included:

• The respondents ought to have been fully aware of the by-laws and ought to follow them;
• The matter has been unresolved for 16 months and needs to be resolved as it is causing rifts between owners;
• The dispute is trivial, petty and a waste of the time and resources of all parties involved;
• More flexibility in colour could be allowed in this modern day of design and colour;
• A small number of preselected lighter shade verticals for owners to choose from would not detract from the general appearance of the external facade of the building;
• It is ridiculous to keep to the current rule of a cold and insipid grey colour which is not in keeping with the bright holiday nature of the complex;

Decision

Applicability of by-law 11

Oceanside Cove’s by-law 11 provides that "A proprietor or occupier of a lot shall not hang curtains visible from outside the lot unless those curtains have a backing of such colour and design as shall be approved by the Council. A proprietor or occupier of a lot shall not install, renovate and/or replace curtain backing without having the colour and design of same approved by the Council. In giving such approvals the Council shall ensure so far as practicable that curtain backing used in all lots presents a uniform appearance when viewed from outside the Building."

The first issue is whether the term "curtain" should be read broadly to encompass window coverings generally, or read strictly to exclude vertical blinds which are not commonly referred to as curtains. While both interpretations can be argued, I am prepared to conclude that the broader interpretation should be favoured. This is based on the expressed purpose of by-law 11 to ensure "that curtain backing used in all lots presents a uniform appearance when viewed from outside the Building". This interpretation is also supported by evidence suggesting that a substantial number of units had grey vertical blinds installed at the time the by-law was adopted. The purpose of the by-law appears to have been to maintain a consistent overall appearance of the building. This type of by-law is not uncommon.

I therefore conclude that by-law 11 applies to the respondents’ internal vertical blinds. For the avoidance of doubt, I also conclude that the term "Council" refers to the Oceanside Cove committee.

Contravention of by-law 11

Given by-law 11 applies, it is necessary to determine whether the respondents have contravened the by-law by the installation of their blinds.

A determination that the respondents have contravened by-law 11 seems initially obvious, based on the conclusions that:

•	by-law 11 applies;
•	the blinds are visible outside the lot (at least partially); and
•	the respondents did not seek approval before installing their blinds and the committee had not published any general approval of window coverings of a yellowish colour.

However, before making this determination, the respondents’ submissions make it necessary to consider whether the body corporate, through its committee, has acted reasonably.

Reasonableness of committee

A body corporate is under an obligation to administer and enforce by-laws but must act reasonably in doing do (Act, s 94). If the committee has acted unreasonably in refusing to approve the respondents’ blinds or in seeking to enforce the by-law then these resolutions should be overturned.

The respondents’ submissions require me to consider whether the committee has acted unreasonably:

1. in their administration of the by-law itself;
2. by unfairly discriminating between different owners; or
3. by unreasonably causing detriment to the owners in question.

Firstly, the by-law must be administered reasonably and according to its specific terms that "In giving such approvals the Council shall ensure so far as practicable that curtain backing used in all lots presents a uniform appearance when viewed from outside the Building." A number of comments and submissions are relevant here, including those to the effect that the issue is trivial, the blinds will fade anyway, the blinds are not obvious for various reasons, and the blinds were chosen to blend in with the creams in the existing exterior treatment.

Secondly, the by-law must be administered fairly between different owners. The submission that some variety of window coverings exist already, with some curtain backings being of a yellow tinge is relevant in this context.

Thirdly, administration of the by-law should not unreasonably cause detriment to any of the owners. An example of this could be if the committee knew the respondents intended to install the blinds before they were purchased, allowed the respondents to think the blinds were suitable, but requested the blinds be removed after the respondents had spent money purchasing and installing the blinds.

I have found that the respondents installed their blinds without the approval of the committee. The evidence does not bear out a claim that the differences between the respondents’ blinds and other window coverings are so small that the respondents have been unfairly treated or could reasonably have expected that it was unnecessary to seek approval of their blinds before installation. The committee considered the respondents’ blinds in light of by-law 11’s purpose of promoting a uniform appearance of the building. While there is some variation in window coverings (grey, grey with greenish tinge, white, white with yellowish tinge) it seems that the respondents’ blinds are of a colour that is outside the range of previously accepted window coverings. This difference may be trivial in the eyes of some owners, but is not trivial in the eyes of other owners. Therefore, the decision is one best left to the discretion of the elected committee. In this instance the committee has sought to resolve the dispute by indicating that approval would be given if either:

• suitable privacy sheers are installed; or
• the side of the blinds visible from outside the lot are painted a suitable colour.

However, the respondents have refused to take these suggested actions.

A body corporate has a duty to enforce its by-laws. There is no clear evidence that the committee has acted unreasonably and the body corporate’s application will therefore be granted.

However, I have some empathy for the position of the respondents. To avoid similar disputes the committee may wish to engage in a greater degree of consultation with owners and perhaps give the owners some guidelines of what the committee will consider acceptable. Further, a body corporate is required to act reasonably in enforcing by-laws and, particularly where the body corporate can approve an action that would otherwise be a breach of a by-law, a reasonable and conciliatory approach by the body corporate can assist in gaining a resolution to a dispute that is to the satisfaction of both parties. On the other hand, if owners and occupiers apply for permission prior to undertaking an act that would otherwise breach a by-law then there is a lot more scope for negotiating a satisfactory solution. This could have included negotiating a slightly different shade of blind, proposing a wider range of agreed colours, or even seeking support for revision of the by-law in question.

Order

I have determined that the respondents are in contravention of by-law 11 and I make the orders above. These orders reflect the present tolerance at Oceanside Cove for some variation in window coverings, and the indications from the committee that they would be willing to allow the respondents’ blinds to be retained if an appropriate privacy sheer is used or the side of the blind visible from outside the building is painted a suitable colour.