Drifters [2003] QBCCMCmr 164 (14 October 2003)

Last Updated: 17 May 2005

REFERENCE: 0193-2003

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	24464
Name of Scheme:	Drifters
Address of Scheme:	3 William Street, NOOSAVILLE QLD 4566

TAKE NOTICE that pursuant to an application made under the abovementioned Act by John Hancock Whitfield & Dorothy Whitfield, the co-owners of lot 1

I hereby order that the application for an order that the owners of lot 1 be granted permission to install a pool gate in the pool fence adjacent to their lot, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0193-2003

"Drifters" CTS 24464

The applicants, John Hancock Whitfield and Dorothy Whitfield, have sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) as follows:

We request permission to install a pool gate to unit 1/3 William Street, Noosaville (garden apartment).

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)).

In the supporting grounds, the applicants stated that they are the only residential owners on site and consider that they are being victimised by 2 absentee owners, who voted against their proposal to install a pool gate adjacent to their lot.

The body corporate committee and all owners were invited to respond to the application. Submissions were received from 2 owners, one of whom was the original developer, and the other of whom is also a member of the committee.

Both owners expressed concern that if a gate were to be installed in the section of fencing adjacent to the applicants’ lot, then sunbathers wishing to use the grassed area onto which the gate would open would be inconvenienced and would no longer have the privacy they previously enjoyed. One of the owners stated that he had voted in favour of the gate being installed when the matter was considered at the annual general meeting held on 23 January 2003, however he had since changed his mind. He noted that since the meeting the creeper which had previously covered the last panel of fencing on the south west corner of the pool area on the boundary of the applicants’ lot had been removed (the other owner stated that the applicants had removed the creeper) without body corporate consent. The owner stated that the removal of the creeper had detracted from the ambience of the pool surrounds, and this, in addition to the concerns of owners regarding sunbathers, had influenced his changed attitude to the issue of the gate.

Section 152(1) of the Act provides that the body corporate must administer, manage and control the common property and body corporate assets reasonably and for the benefit of all lot owners.

I am not persuaded that the applicants have been victimised by other owners, as they allege. The existing gate by which the pool is accessed is a very short distance from the applicants’ lot. Even though the gate is in close proximity to lot 2 and its exclusive use area, the gate is not a private access gate for lot 2, as the applicants describe it, as it leads from the common property, and provides access to the pool for all owners. Furthermore, I note from the photographs supplied by the applicants that the existing gate leads onto a paved area of the pool surrounds. I further note that the grassed area at the end of the pool is not large but it would appear to be a logical place for people to sunbathe or to relax and perhaps read a book. In the circumstances, I accept the concerns expressed by the other owners that allowing a gate to be installed in the area proposed by the applicants would have a material impact on the enjoyment of other owners and their guests if the applicants, their family and their friends were able to treat the grassed area as their private thoroughfare to the pool.

I do not propose to make the order sought by the applicants, and I have therefore dismissed the application.