Coconut Grove Villa [2003] QBCCMCmr 24 (17 July 2003)

Last Updated: 17 May 2005

REFERENCE: 0790-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	6987
Name of Scheme:	Coconut Grove Villa
Address of Scheme:	16 Broadmeadows Road MAROOCHYDORE QLD 4558

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Joy May COLEMAN, as the owner of Lot 1, and Kevin William MEYNELL and Barbara Gae GUYTON, as the (past) co-owners of Lot 3,

I hereby order that the application by Joy Coleman, the owner of Lot 1, for the following order -

That approval be given to the owner of Lot 1 to construct a timber deck over the exclusive use area at the rear of her unit,

is dismissed.


I further order that the application by Kevin Meynell and Gae Guyton, the former co-owners of Lot 3, for the following order –

That approval be given to the owners of Lot 3 to:

•	construct a concrete and tiled deck over the exclusive use area at the rear of their unit.
•	install a pontoon jetty to the canal at the rear of their unit.
•	extend the existing timber patio deck from the main bedroom on the upper level of their unit,

is dismissed for lack of jurisdiction.



STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0790-2002

"Coconut Grove Villa" CTS 6987

The applicants: Joy Coleman of Lot 1; and Kevin Meynell and Gae Guyton (previously) of Lot 3; have sought the following orders of an adjudicator under the Body Corporate and Community Management Act 1997 ("the Act") -

1. That approval be given to the owner of Lot 1 to:

•	construct a timber deck over the exclusive use area at the rear of her unit.

2. That approval be given to the owners of Lot 3 to:

•	construct a concrete and tiled deck over the exclusive use area at the rear of their unit.
•	install a pontoon jetty to the canal at the rear of their unit.
•	extend the existing timber patio deck from the main bedroom on the upper level of their unit.

JURISDICTION:
This is a dispute between the owners of two lots (the applicants of Lots 1 and 3) and the remaining owner (the respondent Patricia Mae JOHNSON the owner of Lot 2), concerning the rejection of special resolutions (upon the negative vote of Johnson) to grant authorisation to the two applicant owners to carry out certain improvements on their respective common property exclusive use areas. These are matters falling within the disputes resolution provisions of the legislation (see sections 227, 228 and 276 of the Act, and section 17 of Schedule 5 of the Act).

Since lodgement of the application the co-owners Meynell and Guyton have sold Lot 3. This raises the question as to whether they continue to have standing for the matter of their dispute to proceed. Whether standing survives in the situation of an applicant no longer being an owner (or other category of disputant under section 227 of the Act) depends on the nature of the dispute. In this instance, the matters these applicants had an interest in, which were the subject of motions put to the body corporate and rejected, were the proposed improvements to Lot 3 as set out in the second order sought above. As the dispute concerns the construction of improvements to the lot building, they do not have any further interest in these improvements to the lot and therefore jurisdiction lapses. I would also mention that they did not advise this office of the sale, and it was unknown until I visited the scheme (see later under heading "Determination").

I therefore have dismissed the order sought with respect to improvements for Lot 3 on the grounds of a lack of jurisdiction.

Jurisdiction survives for the remaining dispute regarding a rejected improvement for the benefit of Lot 1 owned by Coleman.

General powers of an Adjudicator in making an order:

Section 276(1) 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 this 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) of the Act). An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 284(1) of the Act).


APPLICATION AND SUBMISSIONS:
In accordance with section 243 of the Act, a copy of the application was provided to the respondent Johnson with an invitation to respond to the matters of dispute raised in the application. Johnson lodged a submission against the application. The applicants Meynell and Guyton viewed her submission and subsequently lodged a written reply (see sections 246 and 244 of the Act respectively), however this submission is now irrelevant. The reply also states that Joy Coleman is currently overseas but has confirmed the information contained in it.

The brief facts of the matter are as follows. The applicant Coleman wishes to construct a timber deck over that area of common property situated at the rear (western) of her lot which she has exclusive use of under the body corporate by-laws. The proposed deck would extend out towards the canal, level with the present pebblecrete verandah at the rear of the lot building, over tiered grassed levels of landscaping to the concrete block wall set some 2 metres back from the scheme boundary. The deck would sit at least a metre above the present level of the block wall.

The applicant submitted the proposal (not a formal motion) to the annual general meeting held on 27 June 2002 but it was rejected by the then owners of Lots 2 (the respondent) and 3.

At an extraordinary general meeting held on 6 November 2002, the meeting considered the applicant’s motion for the construction of the timber deck however it was lost as a special resolution on the dissenting vote of Johnson of Lot 2, the vote being 2 in favour and 1 against the motion. At that same meeting, motions put by the previous owners of Lot 3 for the pontoon and decking, were similarly lost.


DETERMINATION:
"Coconut Grove Villas" was established as a building units plan (now termed a building format plan) on 28 March 1988, and comprises three residential lots. Having been established under the Building Units and Group Titles Act 1980, under the transitional provisions of the (new) Act the scheme was immediately subject to the Body Corporate and Community Management (Standard Module) Regulation 1997 ("the Standard Module"). As no new community management statement has been lodged since to alter that regulatory status, the scheme continues to be regulated by the Standard Module.

In order to better understand the proposals and the views of the parties, on 25 June 2003 I visited the scheme after having given written notice to all parties. As stated earlier, it was only at this time that I became aware that Meynell and Guyton had sold their lot, when the respondent Johnson, who was present for the inspection, told me they had sold some months ago.

Written notice was mailed to the applicant Colemen at her residential address in Oxley, however she was not present at the inspection.

The proposed deck by Coleman matches the deck proposed by Meynell and Guyton for Lot 3, though theirs was to be of concrete and tile. As is stated in their submission, the profile of the decks from the canal would be balanced by matching block extension walls up to the end of the decks. With the application now only concerned with Lot 1, that balance of presentation is no longer a consideration.

Section 124 of the Standard Module requires that improvements constructed on exclusive use common property for the benefit of the owner’s lot must be authorised by special resolution (unless valued at $200 or less). In a three-lot scheme such as this, one owner can effectively block such authorisation. Section 17 of Schedule 5 to the Act gives the example of the powers of an adjudicator extending to overturning such a refusal is unreasonable.

There are two grounds upon which I have determined to dismiss the application. However I would generally point out that the onus of showing a body corporate’s rejection of an improvements proposal was unreasonable rests with the relevant owner. In providing so, the legislation is recognising that owners buy into a scheme that has a certain configuration of lot buildings, appearance, functionality and noise and privacy measures. Internal renovation of a lot is a matter for the owner, but alteration of the lot that is visible from outside involves a consideration of the effect on other lots in the scheme and the scheme generally.

Firstly, the construction of a deck on Lot 1 alone would in my view detract from the presentation of the scheme on the canal side. Given that the front areas of the scheme are fenced in and therefore very private, the rear of the scheme is its main presentation. While individual owners may obtain a benefit from an improvement, that improvement may also be to the detriment of other owners. Where this arises, it is a matter of balance between allowing an owner a benefit and causing a detriment to others. In considering the presentation of the scheme, there is a detriment of some significance in the departure from the balanced tiered landscaping built in by the original developer.

Secondly, the design of the scheme building with the centre common property landscaping (Lot 2 exclusive use area) projecting further out than the exclusive use areas either side (benefiting Lots 1 and 3), and all three areas landscaped in a descending tiered manner, provide a measure of privacy to all three lots. With the extension of the deck at verandah height, the privacy existing between users of the rear areas of Lots 1 and 2 will be impaired. The respondent Johnson has pointed this out and, having viewed the relevant areas, I agree that her privacy would be reduced if the proposal was to proceed.

For the above reasons I have dismissed the application by Coleman.