Westlake Villas [2003] QBCCMCmr 174 (20 October 2003)

Number of Scheme:	23115
Name of Scheme:	Westlake Villas
Address of Scheme:	241 Horizon Drive WESTLAKE QLD 4074

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Richard Zande & Jocelyn Catherine Zande, the co-owners of lot 22

I hereby order that the applicants shall be at liberty to propose such motions as they deem necessary for inclusion on the agenda of the annual general meeting to be held on or about 1 December 2003 to allow owners to consider the applicants’ proposal to enclose their front porch by the installation of a wooden balustrade and railings.

I further order that the secretary shall include such motions on the agenda of the annual general meeting provided that the motions have been conveyed in writing by the applicants to the secretary by no later than 5.00pm on Monday 3 November 2003.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0188-2003

"Westlake Villas" CTS 23115

The applicants, Richard Zande and Jocelyn Catherine Zande, have sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) as follows:

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

(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 expressed the view that the body corporate committee’s decision to refuse their request to install wooden railings around their porch area was unreasonable. The applicants pointed out that there is ample evidence within the scheme of a variety of structures approved by the body corporate. The applicants noted that by-law 15, in respect of building alterations, required that the body corporate shall not unreasonably withhold its permission for such structural alterations (including the closing in of balconies and roof decks) provided that certain requirements are met. The applicants further noted that one of the requirements of the by-law was that the design, colour scheme and materials complement the existing design of the building, which their proposal had always intended to achieve. The applicants complained that in spite of their offer to meet with the committee and to try to resolve the issue by mediation, there had been no response from the committee.

All owners and the body corporate committee were invited to respond to the application.

Submissions were received from the body corporate manager, on behalf of the committee, and from numerous owners.

The body corporate manager stated that the committee considered it had acted reasonably, and was concerned that the erection of a wooden railing on the applicants’ porch would establish a precedent, which would have far reaching ramifications for all owners.

Owners were evenly divided in their support for the applicants or the committee. Some owners expressed disappointment that the applicants’ requests to meet with the committee had been ignored. Still others pointed out that there are numerous structural additions to lots, such as high wooden fences and balconies which block the view to the lake from the driveway in the scheme, which have not been properly approved. Another group of owners stated that for the sake of uniformity and aesthetics the applicants’ proposal should not be allowed.

I inspected the scheme and met with the applicants, the committee and the body corporate manager on 17 October 2003. During the discussion which took place with all of the parties, it became evident that the issue had caused some distress. On the one hand the applicants felt that they had been unfairly dealt with, because other owners had made various alteration, some of which had not been approved, and on the other hand the committee believed that it had acted in the interests of all owners because the applicants’ proposed alteration would be highly visible from the common property.

I noted that many of the lots have constructed fences, which, although uniform in colour, have different styles of timber. I also noted that the view to the lake between lots has, in almost every instance, been blocked by these fences. In one instance, however, a lot backing on to the lake has erected a pool style of fence. I was advised that in most cases the fences were intended to provide greater privacy for owners. I also observed the use of lattice to create privacy screens, or, in one case, to reduce the visual impact of air conditioning units. In another lot, a garden shed had been erected, albeit behind a fence, but with its roof visible above the fence from the common property driveway. Opinion was divided as to whether body corporate approval had been given in every case.

The committee appeared to be of the view that alterations to the rear of lake side lots should be regarded differently to alterations proposed or made to the front of lots which would then be visible from the common property, such as would be the case with the applicants’ proposal. In the body corporate manager’s letter dated 27 February 2003 to the applicants, the following statement appears:

"Committee considers that the railings present on other lots do not constitute a precedent, as these are at the rear of the lots, and facing the lake area, and so have no visual impact within the complex."

I consider that by-law 10, dealing with the appearance of the building, should be applied uniformly. In other words, if lake side lots wish to install decks, fences, pergolas and the like, at the rear of their lots then the committee should ensure that the same principles apply to such installations as would apply to lots wishing to make an improvement to the front of the lot. The intent of the by-law is that the appearance of lots should be uniform, whether viewed from the common property, or from another lot.

One of the points raised in the submissions, and in my discussions on 17 October 2003, was the need to preserve the value of lots and the scheme generally by ensuring that the aesthetics of the scheme are maintained. This was readily acknowledged by the applicants, and has been apparent in their material from the outset. In a letter dated 27 February 2003 from the applicants to the body corporate, they explained that "it was and is our intention to erect something which was tasteful and which would blend in with our building."

The majority of the by-laws for this scheme have been in place since 1995, with a further 3 by-laws added in 1996. The scheme is regulated by the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module).

By-law 10(i) provides that an owner shall not do anything to vary the external appearance of the unit except with the consent in writing of the body corporate. By-law 15 provides that no structural alteration, altering the external appearance of the building, shall be made to any lot without the prior written permission of the body corporate in respect of the design and material used. The by-law further provides that the body corporate shall not unreasonably withhold its permission, provided certain requirements are met, as stated above.

The committee members present at the inspection reiterated their concern that by allowing the alteration proposed by the applicants a precedent would be set, and that in any event not all lots would want to define their front porch areas in the same manner, because a significant number of lots have much smaller porch areas. It is certainly correct that if the alteration were to be allowed, a precedent would be set. However, the first fence that was approved in the scheme also set such a precedent, as did the first pergola, the first screen and so on. The importance of the applicants’ proposal was that it recognised that a precedent would be set, which was the reason that they wished to discuss it with the committee from the outset. For some reason best known to the committee, no such discussion ever took place.

It was generally agreed at the inspection that the applicants’ proposal should now be considered by all owners, with the next opportunity to do so being the annual general meeting scheduled for 1 December 2003. I consider that this course of action will allow the applicants to present the details of their proposal, which, if accepted, will represent the conditions applicable to all future proposals so that the ambience and aesthetics of the scheme can be maintained, whilst at the same time affording owners some privacy on their front porch areas.

Owners would be aware that they usually have to have submitted motions by the end of the scheme’s financial year in order to have them considered at the annual general meeting (section 41(2) of the Standard Module). As the financial year for this scheme has already ended, motions proposed by the applicants at this stage would either have to wait for the next annual general meeting, or, any earlier extraordinary general meeting. Alternatively an extraordinary general meeting could be called especially to consider this issue, however, I can see no purpose in incurring unnecessary costs to the applicants or the body corporate, particularly as the annual general meeting is imminent, and it is possible for any motions to be included without undue disruption to the body corporate or additional cost to anyone.

I have therefore made orders to facilitate the agreement.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Westlake Villas [2003] QBCCMCmr 174 (20 October 2003)