Stuart Court [2003] QBCCMCmr 16 (10 July 2003)

Last Updated: 17 May 2005

REFERENCE: 0393-2003

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	14462
Name of Scheme:	Stuart Court
Address of Scheme:	10 Raby Road, COORPAROO QLD 4151

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Gary Bernard McGlinchey, the co-owner of lot 4

I hereby order that the application for an order that the owner of lot 5 cease all work until resolutions that were passed at the Stuart Court AGM on 12 May 2003 are complied with, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0393-2003

"Stuart Court" CTS 14462

The applicant, Gary Bernard McGlinchey, the co-owner of lot 4, has sought an interim order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) against the owners of lot 5, as follows:

Cease all work on unit 5 until resolutions that were passed at the Stuart Court AGM on 12 May 2003 are complied with.

The applicant also sought a final order of an adjudicator that work in unit 5 comply with the resolutions of the AGM held on 12 May 2003, and, further, that all expenses incurred by the body corporate to resolve the matter be paid by the owners of unit 5.

Section 276(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 the Act or the community management statement; or

(c) a claimed or anticipated contractual matter about-

(i) the engagement of a person as a body corporate manager or service contractor for a community titles scheme; or

(ii) the authorisation of a person as a letting agent for a community titles scheme.

An order may require a person to act, or prohibit a person from acting, in a way stated in the order (section 276(2)). An adjudicator's order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate (section 284(1)).

Section 279(1) of the Act allows an adjudicator to make an interim order if satisfied, on reasonable grounds, that an interim order is necessary because of the nature or urgency of the circumstances of the application.

In the supporting grounds, the applicant stated that the renovation in lot 5 has been going on for approximately 6 months, and he has now grown tired of the noise of grinding and other such construction noise that occurs on weekends. However, the applicant further stated that his main concern is that internal walls have been demolished in lot 5, which he believes might impact on the structural integrity of the roof. The applicant pointed out that to date no structural plans or drawings had been submitted to the body corporate. The applicant attached a copy of the minutes of the annual general meeting held on 12 May 2003.

The respondents and all other owners were invited to respond to the application. A submission was received from Mr Raymond Parker, the owner of lot 5.

Mr Parker stated that, in an effort to remain on good terms with his neighbours, he had ensured that most of the heavy work was carried out between 8.00am and 12 noon, Monday to Friday. He acknowledged, however, that some noise would have emanated from lighter work, involving drills and saws, over some weekends since the renovations began. He also acknowledged that on Sunday 6 June 2003 he used an electric sander to sand one side of a door. He contended that since mid-April he has made very little noise that would transfer to the applicant’s lot.
Addressing the applicant’s concerns as to the structural integrity of the roof, Mr Parker stated that he had consulted an engineer before the work was commenced, and had recently obtained a report, which he intended to provide to the body corporate.

Mr Parker provided a copy of a letter dated 23 May 2003 from John Snook, Consulting Engineer. Mr Snook expressed the opinion that the roof structure, after removal of the wall, will continue to comply with the Building Code of Australia to at least the same extent as before the alterations were carried out.

The applicant has sought both interim and final orders "as per resolutions passed at the Stuart Court AGM on 12 May 2003". The "resolutions" to which the applicant referred were in fact simply items of general business discussed at the end of the meeting in question. A motion can be considered by the body corporate at a general meeting only if it appears on the agenda of the meeting (sections 42 and 45 of the Standard Module).

The applicant expressed concern as to the structural integrity of the roof, given the demolition of internal walls in lot 5.

Section 115N of the Land Title Act 1994 provides as follows:

115N Easements for support

(1) An easement of lateral or subjacent support exists--

(a) in favour of a lot against another lot capable of supplying lateral

or subjacent support; and

(b) in favour of a lot against common property capable of supplying

lateral or subjacent support; and

(c) in favour of common property against a lot capable of supplying

lateral or subjacent support; and

(d) in favour of common property against other common property

capable of supplying lateral or subjacent support.

(2) An easement for support under subsection (1)--

(a) entitles the owner of a lot ("lot X") to enter a lot or common

property supplying support to lot X under the easement to

maintain or replace any support; and

(b) entitles the body corporate to enter a lot or common property

supplying support to common property under the easement to

maintain or replace any support.

(3) An easement for support under subsection (1) subsists until the

scheme no longer exists.

Section 165 of the Body Corporate and Community Management Act 1997 provides:

165 Interference with easements of support or shelter

The occupier of a lot included in a community titles scheme must not

interfere, or permit interference, with support or shelter provided by the lot

for another lot included in, or the common property for, the scheme.

Maximum penalty--100 penalty units.

Whilst there is no by-law for this scheme which requires an owner to seek body corporate approval for internal renovations, it is of course necessary that such renovations not interfere with the statutory easement for support. In this case, the letter from Mr Snook confirms that the roof structure has not been compromised by the removal of the wall.

As to the allegation that the renovations have created noise for the applicant, and perhaps others, the respondents should be aware of section 167 of the Act, which provides:

167 Nuisances

The occupier of a lot included in a community titles scheme must not

use, or permit the use of, the lot or the common property in a way that--

(a) causes a nuisance or hazard; or

(b) interferes unreasonably with the use or enjoyment of another lot

included in the scheme; or

(c) interferes unreasonably with the use or enjoyment of the

common property by a person who is lawfully on the common

property.

It appears from Mr Parker’s submission that he has made an effort to ensure that the major work was carried out at reasonable times, although conceding that lesser work was occasionally carried out on some weekends. It is a matter of which Mr Parker needs to be mindful when completing the remaining work.

In all of the circumstances, I do not propose to make the orders sought by the applicant. I expect that Mr Parker would, by now, have provided a copy of Mr Snook’s letter to the body corporate, but in any event I have attached a copy of that letter to these Reasons so that it may be placed on the body corporate’s records.

I have not made an order in relation to costs, as there is no relevant provision in the Act which enables me to do so in the circumstances of this application.

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 any party considers that an appeal of this decision is warranted, then they should appeal the interim order.