Gemini Towers [2003] QBCCMCmr 241 (25 November 2003)

Last Updated: 17 May 2005

REFERENCE: 0248-2003

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	14084
Name of Scheme:	Gemini Towers
Address of Scheme:	23 -27 Griffith Street NEW FARM QLD 4005

TAKE NOTICE that pursuant to an application made under the abovementioned Act by

Mr M Stephens, an Owner(s) of lot 8

I hereby order that the body corporate is authorised to replace the balcony railings installed by the owner of lot 25, Ira Smith (respondent) if the respondent does not gain body corporate approval of those railings within two months of the date of this order.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0248-2003

"Gemini Towers" CTS 14084

Application

Gemini Towers Community Titles Scheme (Gemini Towers) is a 33 lot scheme under the Body Corporate and Community Management Act (Act) and the Act’s Standard Module Regulation (Standard Module). The scheme is designed for residential purposes.

Lot boundaries are designated under a building units plan (now known as a building format plan).

This application is by Michael Stephens, an owner of lot 8 (applicant) seeking orders against Ira Smith, the owner of lot 25 (respondent). The respondent has replaced the balcony railings of his lot with balcony railings of a different style. The applicant is seeking order requiring the respondent to replace the new railings with railings of the original style.

Background

The minutes of the annual general meeting of Gemini Towers held on 20 January 2002 reflect that the respondent addressed the meeting to "convey his concerns regarding the adequacy of the balustrades fitted to the side balconies of each lot" and advise the meeting "that he intended to replace those fitted to his lot during upgrade work to his lot".

By letter dated 25 January 2002, the respondent wrote to the secretary in relation to the proposed replacement of the balcony railings relating to his lot. This letter included the following:

"I am aware that from time to time the inadequacy of the safety rails fitted outside the window ledges has been raised to successive ‘Gemini Towers’ committees and then the matter allowed to stand over. Merely because of a perceived difficulty in maintaining uniformity and the philosophy that because it was acceptable when the premises were built in the early seventies is no reason not to do something about it now....Extensive remodelling will shortly be taking place within my apartment extending over a period of several weeks. Before the main work is commenced I propose to have the existing bars removed from the balconies of my apartment and replaced by balustrade of the specification contained in the attached page. I shall be having mine done in iron, which although is slightly cheaper than aluminium, is more durable. In the event of the body corporate later deciding to expend money on this vital aspect of maintenance I expect to be reimbursed for my outlays."

This letter also stated:

"If the committee has any reasonable objection to what I intend please advise me promptly and I shall be pleased to hold discussion. In the absence of any communication from you within fourteen days of your receiving this letter I propose to proceed without further reference to you."

The committee never responded to this letter. However, the applicant alleges that several members of the body corporate had previously advised the respondent not to touch common property, change the external appearance of the property, or act unilaterally without body corporate approval. This was alleged to have occurred at the annual general meeting in which the respondent raised his intention to alter the balcony railings relating to his lot. This is admitted by the respondent to the extent that he states in his submission that "tongue-in-cheek threats and warnings were mouthed to me by the complainant and two others regarding my declared intention to install safety rails". On the evidence before me it is difficult to determine the extent of opposition to the respondent’s proposed acts. However, it seems clear that the respondent was aware that there was at least some real opposition to his proposal and that maintenance of balcony railings was a body corporate responsibility.

Despite this initial opposition the respondent claims that the body corporate has never requested that he restore the balcony railings to their original state. The body corporate committee has, however, entered a submission supporting the applicant. Further, I am satisfied that there is a dispute between the applicant and the respondent about whether the respondent’s replacement of the railings was permissible. It is surprising that an application has only been brought now rather than at the time the work was actually done. However, the reason advanced for bringing this application now is a concern that the respondent will sell his unit and the body corporate will be unable to enforce any rights it has against a new purchaser who may be unaware of the dispute. There is no evidence that this application has been made with a vindictive, discriminatory or prejudicial intent as alleged by the respondent.

Submissions

The applicant’s main submissions were to the effect that:

•	The respondent changed the balcony railings without express or implied permission from the body corporate; and
•	The railings are common property and the respondent requires the passing of a special resolution to approve an alteration of the railings.

The respondents’ main submissions were to the effect that:

• The body corporate did not respond to a letter in which advised he would replace the railings unless the body corporate objected. He therefore had implied approval to change the railings;
• The body corporate has never formally objected to his railings;
• The railings are within the boundary of his own lot and he is therefore able to change the railings;
• He changed the railings for safety reasons; and
• His new railings are more aesthetically pleasing than the old railings.

The body corporate committee has provided submissions in support of the applicant.

Decision

Approval to alter balcony railings

Owners under a building format plan should obtain body corporate approval before altering balcony railings.

It does not matter whether the balcony railing is actually situated on common property or within the lot. Provided the railing is for all practical purposes at the boundary of a lot and common property the body corporate must maintain it and can recover expenses from a person who damages a railing (Standard Module 109(2)(a) and 109(4)).

Further, if the railing is partially on common property then a special resolution may be necessary to approve any alterations to the railing (Standard Module, 114). For the purposes of this decision it is unnecessary for me to decide whether the railings are on common property or not. However, from perusal of the plans and photographs of the scheme it seems likely that the railings are at least partially on common property. The plans are consistent with defining the boundaries of the lot according to lines running along the centre of the exterior walls of the building (Land Title Act, 49C). The photographs show the railings are attached to, and run in line with, the exterior wall. Parts of the railings appear to protrude past the centre of this wall.

In seeking body corporate approvals it is relevant to consider if common property will be affected as any improvement or structural change to common property, except a minor improvement, will require approval by special resolution (Standard Module, 114). Minor improvements only require approval from the committee or by ordinary resolution but are limited to improvements that do not detract from the appearance of a lot, are not likely to promote breaches of occupier duties, and are valued at $200 or less.

Was approval actually given?

The respondent suggests that approval can be implied from the failure of the body corporate to respond to his letter seeking approval within the time frame he set out in the letter. It is true that the body corporate did not respond to the letter from the respondent within the time frame set by the respondent. However, this does not mean the body corporate has approved the proposal outlined in the letter.

It will not be just and equitable for a body corporate to deny it gave an implied approval to a proposal in some circumstances. These may include situations in which the body corporate has encouraged an owner to think they have approval and then allowed the owner to proceed in reliance on that assumption. However, this is not the situation that has arisen here.

Based on the matters outlined above, it seems clear that the respondent was aware that there was opposition to his proposed replacement of the balcony railings. In the face of this opposition, it was not reasonable for the respondent to rely on a failure to respond to his letter as authorisation for him to proceed with the proposed changes. In particular, the respondent did not show any attempt to follow up on his original request or to obtain confirmation of an approval in writing after the expiry of his self imposed deadline.

If an owner is making changes that require authorisation then it is the responsibility of that owner to obtain the proper authorisation. If there are unreasonable delays in obtaining this authorisation then an appropriate course of action may be to bring an application under the dispute resolution chapter of the Act to seek the approval. Owners cannot simply proceed to make changes to the building without a necessary approval.

Other matters

The respondent claims he was concerned about safety. The applicant viewed it as surprising that the respondent suddenly claimed to be concerned about safety in 2002 in the face of evidence that the respondent has owned the unit since 1994.

I am willing to accept that changed circumstances may have led the respondent to grow genuinely concerned about the safety of the balcony railings. However, there is no evidence that the respondent acted in circumstances of significant urgency. If the respondent was genuinely only concerned about safety then he could have properly pursued approval and supplied the body corporate with evidence supporting his view that the balcony railings were unsafe.

Further, if the respondent had properly pursued approval and discussed the matter constructively with the body corporate it may have been possible to come to a mutually acceptable solution. For example, photographs show that railings of a balcony on another lot have been supplemented by clear glass or plastic sheeting behind the railing that presumably makes the railings more child proof.

While it is possible to understand the respondent’s position he has not been able to establish that he gained the necessary approval to change the balcony railings. Where lots are created under a building format plan the body corporate is responsible for maintaining balcony railings on the boundaries between the lot and the common property. Owners cannot simply change these balcony railings at will in the face of the body corporate’s responsibility to maintain those railings.

However, I think it is fair to give the respondent an opportunity to seek the approval of the body corporate for the replacement railings rather than simply ordering that they be replaced. If the respondent is confident that the majority of owners can be satisfied with the safety and appearance of his replacement railings then he should seek that approval, if necessary by special resolution. I have allowed two months for this to occur. If an extraordinary general meeting is required then I would expect the committee to cooperate with a request by the respondent to call the meeting subject to the respondent agreeing to pay the reasonable costs of the body corporate in calling the meeting.

On the other hand, if the respondent has not obtained approval within two months then the body corporate is authorised to replace the railings. In replacing the railings any entry onto the respondent’s lot must be in accordance with the Act (Act, 163). The body corporate will also need to comply with any other legal obligations including those under the Building Act 1974 and the Building Code of Australia. If the original balcony railings do not comply with current building standards then approvals may need to be gained before installing railings of that type. The body corporate may also wish to consider upgrading all railings if the original railings do not meet current building safety standards.

Any reasonable costs resulting from the respondent removing the original railings will be recoverable by the body corporate from the respondent (Act 36 (damage to common property), Standard Module 109(4) (damage to part of a lot)). However, if the body corporate chooses to replace all railings in the building then it seems unlikely that the premature removal of the original railings by the respondent would have put the body corporate to any extra expense that would require compensation from the respondent.

Order

For these reasons, I make the order above.