Scenic Point [2003] QBCCMCmr 299 (22 December 2003)

TAKE NOTICE that pursuant to applications made under the abovementioned Act by

the body corporate for Scenic Point, the owner of lot 6, and the owner of lot 7

I hereby order that the respondents may retain their pergolas subject to the following conditions:

1. To avoid the pergolas causing nuisance or interfering unreasonably with other lots, the louvres of the pergolas must be kept open, at all times except when it is raining; and
2. To comply with the terms of the initial approval, the pergolas must be kept clean and well maintained.

I further order that the above conditions should be recorded in the body corporate’s register of improvements to common property for the benefit of an owner’s lot. This will facilitate giving notice of the conditions to any future purchasers of the respondents’ lots.

I further order that, as the pergolas appear to encroach slightly onto common property of the scheme:

1. The respondents may seek a special resolution of the body corporate authorising any encroachment of the pergola roofs onto the common property of the scheme;
2. If the respondents fail to obtain this special resolution within three months then the body corporate is entitled to engage a surveyor to determine if the pergola roofs do actually encroach onto common property of the scheme;
3. If the pergola roofs do encroach onto common property, the body corporate is entitled to recover the costs of the surveyor from the respondents and require the respondents to, within a further three months, lower the pergolas to ensure the pergola roofs are wholly within the boundaries of the respondents’ lots.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0215-2003

"Scenic Point" CTS 12031

Scenic Point Community Titles Scheme (Scenic Point) is a 23 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).

The body corporate for Scenic Point (applicant) has brought an application seeking removal of the pergolas built by David Ryan and Mary Lawrie, the owners of lots 2 and 3 respectively (respondents). This is application 215-2003.

The owners of the lots directly above the respondents’ lots have also lodged applications seeking removal of the pergolas. Application 236-2003 is brought by Suzetta Hulme, an owner of lot 6 against David Ryan, the owner of lot 2. Application 237-2003 is brought by Marion Hamilton, an owner of lot 7 against Mary Lawrie, the owner of lot 3.

I will deal with applications 215-2003, 236-2003, and 237-2003 together because the subject matter is the same and all material on each application has been available to all owners for inspection upon request. These reasons for decision and the orders made will be identical in respect of each application.

This dispute arose after the respondents constructed pergolas for the benefit of their lots. The respondents sought and obtained permission to build pergolas on their lots. However, after construction of the pergolas, the body corporate claimed that the respondents did not obtain proper approval to build the pergolas or did not build the pergolas in accordance with representations they had made to the committee. Some owners have also claimed that the pergolas constitute a nuisance, particularly due to increased glare from the roof of the pergolas.

On 14 March 2002 the respondents submitted an application to the body corporate manager seeking approval of the body corporate to the construction of the pergolas. The application for approval of the pergolas sought body corporate approval of "an open air pergola with an adjustable louvre system to be erected on a portion of the open air decks of Lot 2 and Lot 3". Representations made in that application include the following:

One of the drawings enclosed was a basic line drawing showing the proposed dimensions of the pergola. This drawing is very basic and it is hard to imagine it could have greatly assisted the body corporate to visualise the proposed pergola. However, a second drawing showed the proposed dimensions of the pergolas from a bird’s eye view in the context of the lot boundaries and the balconies of the lots above. This second drawing would have assisted the body corporate to visualise the size and position of the patios but would not have assisted much in evaluating the height or visual impact of the patio. The respondents also attached a brochure that would have assisted the body corporate to visualise the structure, type of materials, and visual impact of the pergola. This brochure does not, however, give a strong indication of what the pergolas would look like from above with the louvres shut. It also appears that some members of the committee may not have been given full copies of this brochure, though the respondents did submit a full copy to the body corporate.

On 4 April 2002 the committee approved the request for permission to erect the pergolas. Each committee member reviewed the application and made up there own mind whether to vote for or against approving the application. The application was approved by a narrow margin.

By letter dated 5 April 2002 the respondents were given notification that their application for pergolas had been approved by the body corporate committee.

By letters dated 5 April 2002 and 11 April 2002 the body corporate manager notified all lot owners that the committee had resolved to approve lots 2 and 3 installing a pergola with an adjustable louvre system. The second of these letters attached the drawings of the proposed dimensions of the pergolas. These letters also invited owners to object to the pergolas and confirmed the approval would be void if at least half the lots gave written objection within seven days.

After the body corporate committee had approved the respondents’ application, the respondents sought local council approval. On 12 August 2002 this approval was received. Construction commenced on 15 October 2002 and was completed on 22 October 2002. Two days later, at the annual general meeting of the body corporate, one of the owners of lot 6 expressed her dislike for the pergolas. A dispute developed, culminating in members of the committee claiming the application for approval contained misrepresentations and the body corporate resolving to require the respondents to remove their pergolas.

The body corporate’s main submission was that the approval for the pergolas given by the committee was based on misrepresentations. It was submitted that the approval could therefore be rescinded.

The main submission of the owners of lots 6 and 7, situated directly above the lots in question, is that the pergolas cause a nuisance and interfere unreasonably with the use and enjoyment of their lots. These owners submit that the roof of the pergolas adversely affects them in terms of reflective glare, reflective heat, and interference with their view of the river.

A number of specific submissions in support of the application to have the pergolas removed include submissions to the effect that:

The respondents’ solicitors submit that there is no jurisdiction to make an order, relying on K.G. Tully & Anor v The Proprietors The Nelson Body Corporate^[1] to submit that there is no ‘dispute’ in existence. In K.G. Tully & Anor v The Proprietors The Nelson Body Corporate the applicants wanted exclusive use of an area of common property. The applicants brought a dispute resolution application before even following the procedures necessary to seek the body corporate’s authorisation for exclusive use. The court found the dispute resolution application was premature. The applicants anticipated a dispute but there was no dispute in existence.

The present circumstances are quite different. The body corporate has passed resolutions purporting to rescind any approval given by the committee to the erection of the pergolas, seeking removal of the pergolas, and seeking an application be brought to require the respondents to remove the pergolas. The respondents clearly do not wish to remove their pergolas. The parties are in ‘dispute’ both in the ordinary sense of the term and as that term is defined in the Act. There is jurisdiction to make the orders sought (Act, 276).

To the extent that the application seeks to overturn the approval given by the committee the respondents’ solicitors submit that the application is out of time. An application to declare void a resolution of the committee must be lodged within three months of the resolution being passed unless an adjudicator, for good reason, waives non-compliance with the time limit (Act, 242).

The approval was given in April 2002, the pergolas were built in October 2002, objections were raised almost immediately after the pergolas were built, and discussions about removal of the pergolas continued from December 2002 culminating in the application being lodged in March 2002. In deciding whether to waive the time limit it is relevant to balance the length of the delay, the reason for the non-compliance, the effect of the delay and the entitlement of the applicant to the relief sought^[2]. The applicant submits that "the principal bases for this application was not known until the structures were erected well after the three month time limit, and the matter was raised soon after the erection". The applicant points to alleged differences between the application for approval and the pergolas that were actually built. The claim is that, because of these differences, the approval should be void for misrepresentation. If the applicant is successful the delay will have seriously disadvantaged the respondents as they have expended around $30,000 on the construction of the pergolas. On the other hand, the applicants have provided evidence that the pergolas are different from what they were led to believe in the application. Because these alleged differences only became apparent after the pergolas were constructed this does seem to be an appropriate basis on which to waive the time limit. The applicants have sought resolution of the dispute in a reasonably timely manner since the construction of the pergolas. In all the circumstances, I consider a just result requires the waiver of the time limit and a consideration of the application on its merits.

The reasons for this decision will deal with each of the following questions in turn:

The committee approved the respondents’ application for authorisation to build the pergolas. However, there have been submissions suggesting that the approval given by the committee was invalid (or can be invalidated) because the pergolas were not built in accordance with the approval. As a matter of law, I am satisfied that the approval given by the committee is valid.

The respondents applied to the committee for permission to erect pergolas for the benefit of their lots. The respondents provided some information and representations about the proposed pergolas. It appeared from the application that the pergolas would be built wholly within the respondents’ own lots. On its face, the application was one that was within the power of the committee to approve. The committee did in fact approve the application.

The body corporate has submitted that the respondents did not build the pergolas in accordance with the approval given. I am satisfied that the respondents did not deliberately misrepresent the proposed pergolas to the body corporate. Even if the respondents have subsequently breached the terms of the approval, breach of an approval does not render the approval itself invalid^[3]. The approval remains validly given even if the structure itself is unauthorised and does not accord with the approval.

Therefore, rather than seeking to overturn the validity of the approval itself, it is necessary to consider whether the pergolas are unauthorised because they fail to accord with the approval.

As an aside, one submission suggests that there was a procedural irregularity in the committee decision as it was unclear which persons were members of the committee or one committee member was not given proper notice of the proposal to erect the pergolas. This submission claims this is a procedural irregularity that should void the approval. I am not completely satisfied on the evidence before me that there was a procedural irregularity. In any event, I consider the committee would be estopped from denying that purely procedural matters were not properly complied with due to the lapse of time and the reliance of the respondents on the approval given. Further, decisions of the committee will normally stand irrespective of a defect in the election of one or more of the members (Act, 100(4)).

Another submission was that many owners opposed the committee approval of the pergolas but the owners were not given long enough to prepare a notice of opposition to the committee approval. In particular, there is a suggestion that many owners were away and did not even receive notice of the committee’s approval until after the 7 days had elapsed. This submission cannot be accepted for the reason that the 7 day period is prescribed by the legislation (Standard Module, 37). In any event, it appears that owners who opposed the pergolas chose to accept the committee’s decision on the understanding that some concessions need to be made when living within a body corporate. Further, if sufficient owners opposed the decision it would probably not have been unreasonable for those owners to pass a resolution to overturn the decision at any time prior to the respondents spending significant amounts of money in preparation for building the pergolas. This opportunity was lost by these owners waiting until after the pergolas were built.

Finally, some owners have submitted a letter from a real estate agent indicating that their units have dropped $30,000 in value due to the respondents’ construction of pergolas. These owners say that it was unreasonable for the committee to approve the pergolas without first consulting other owners who would be directly affected.
I do not find this argument persuasive. The committee is elected to administer the day to day operations the body corporate, the approval appeared to be within the scope of the committee to decide, and it is not possible for the committee to consult owners on all decisions within its power. Interestingly, the respondents have submitted a letter from another real estate agent indicating the pergolas have increased the value of the units above due to an increase in mutual privacy.

The committee gave a valid approval. However, after construction of the pergolas, the body corporate passed a number of resolutions in general meeting that could be seen as altering or retracting the committee approval.

The respondents argue that the body corporate should not be able to approve the pergolas, allow them to be built, and then alter or retract that approval. There is some strength in this argument both under the Act and according to general principles of equity. In particular, the Act requires a body corporate to act reasonably (Act, 94). In the absence of special circumstances, it would not be reasonable for a body corporate to approve a proposal, allow an owner to spend a significant sum of money in implementing that proposal, and then withdraw approval without any compensation to the owner.

The resolutions passed by the body corporate were to the effect that:

The first resolution is unavailable to the body corporate as this application has not established any legal grounds for properly rescinding the approval. I therefore declare this resolution void.

I am also prepared to declare the second resolution void. This is on the basis that the circumstances make it unreasonable for the body corporate to withdraw the approval. The respondents received the approval and the body corporate manager provided notice of the approval to all owners. It is not reasonable for the body corporate to withdraw the approval, without compensation, after the respondents have spent significant amounts of money building the pergolas. The third resolution is void for similar reasons to the second resolution.

The fourth resolution appears reasonable. Obviously, after obtaining an approval to build pergolas, the actual construction of those pergolas must be in accordance with the approval. The difficulty in construing this resolution comes from use of the words "accord fully with" the approval. This could be construed as describing the scope of compliance (reasonable compliance with every statement) or the degree of compliance (exact compliance to the nearest millimetre). It appears reasonable to interpret this phrase as relating only to the scope of compliance and requiring the respondents to comply reasonably with every statement in the application for approval. It would be unreasonable if "accord fully with" was taken to mean exact compliance with every aspect of the original application, especially given the draft nature of the application and the subjective nature of some of the statements within the application.

The fifth resolution also appears reasonable to the extent that it requires the respondents to make sure the pergolas are fully within their own lots. The committee only had limited power to approve construction outside of the respondents’ own lots.
The respondents would have required a special resolution to be passed by the body corporate as a whole to authorise anything but minor improvements to the common property (Standard Module, 114). However, in approving the pergolas the committee appears to have accepted any minor works to attach the pergolas to the face of the building that are within the power of the committee to authorise (Standard Module, 114(2)). It seems unreasonable to require the respondents to remove sealant connecting the roofs to the face of the building if that sealant does not detract from the appearance of the scheme. Further, it seems it would be necessary for the body corporate to conduct a survey to determine whether the pergolas do actually encroach onto common property before it can require the respondents to lower the pergolas roofs.

Based on these findings, it is necessary to give consideration to whether the pergolas accord with the approval and whether a survey is necessary to determine if the pergolas encroach onto common property.

The committee resolution granting approval for building the pergolas states "THE following resolution was PASSED: - THAT the attached request ... be approved". The approval therefore incorporates the terms of the request for approval.

The alleged discrepancies between the request for approval and the pergolas as built relate to:

An inspection of the pergolas was conducted. The purpose of this inspection was to determine if the respondents built the pergolas ‘in accordance with’ the approval they had received. Where approvals are given for subsequent construction, it is commonly necessary to determine whether the construction has been performed in accordance with the approval. For these purposes, the meaning of the phrase ‘in accordance with’ has the same meaning as the phrase ‘generally in accordance with’.^[4] In a town planning context the courts have stated "The need for some level of flexibility in a comparison of an approved plan with a finally settled design needs no explanation ... Where there is any deviation, its importance in determining whether it makes a proposal something that is not ‘generally in accordance with’ an approved plan must be judged by reference to the town planning consequences of that deviation."^[5]

In this instance, I have inspected the pergolas to determine if they are generally in accordance with the terms of the approval, judged by reference to the consequences of any deviation in the context of the operation of a community titles scheme.

Width and depth
I have measured the width and depth of one of the pergolas and I am satisfied that the size is generally in accordance with the terms of the approval. The application stated that each pergola would measure approximately 3 x 7.5 metres and cover only 25% of the total area of each deck. This is broadly true with the pergolas being approximately 3.15 x 7.28 metres (with a small additional area between the two pergolas). There may well be a variation of a few percent in the total area of the deck covered. Again, I would accept this small variation as reasonable. One of the committee members has claimed that he felt the description of only covering 25% of deck area was misleading because he did not take into account the area of the deck that is already covered by the balcony of the lot above. However, strictly speaking, this covered area of the deck should be taken into account and a diagram provided with the application did show the proposed positioning of the pergolas in relation to the balconies of the lots above. Even if this diagram was not exactly to scale, it is reasonable to expect some inaccuracy given the rough nature of this diagram.

From the inspection, it appears that the pergolas may actually extend higher than the boundary of the respondents’ lots into common property airspace. The actual height of the pergolas may only be some centimetres higher than indicated in the diagram approved by the committee. However, this is of significance if it means the pergolas extend higher than the boundaries of the lots on which they are built.

The committee is responsible for day to day management of the body corporate and a decision of the committee is a decision of the body corporate (Act, 100). However, certain types of decision are viewed as having particular significance to the owners as a whole and are required to be made by the body corporate in general meeting (Act 100(2), Standard Module 26).

Typically, if an owner wants to build something within their own lot the committee will be able to give any approvals required. Again, if an owner wants to make only minor changes to the common property then committee approval will normally suffice (Standard Module, 114(2)). However, to make any significant improvements to the common property approval will need to be given by a special resolution of the owners in general meeting (Standard Module, 114).

In this instance, the respondents own large deck areas and the majority of these deck areas are uncovered. However, lot boundaries do not normally extend beyond a height equivalent to the centre of the slab forming the ceiling of the respondents’ lots and the floor of the lots above (Land Title Act, 49C) and the plan itself specifically states that the height of the deck area is limited to ceiling height. Broadly speaking, the respondents’ lots comprise a rectangular prism running from the front door to the rear of the deck area and bounded by the floor, ceiling and walls. Even though the deck area seems to extend upwards indefinitely, the area owned by the respondents only extends to, at most, the height of the centre of the slab that forms the respondents’ ceiling. Airspace above this boundary forms part of the common property of the scheme.

If the pergolas are solely within the respondents own lots then the only approval necessary would have been approval of the committee to allow the respondents to alter the appearance of their lots, pursuant to by-law 8. The respondents’ application made it clear that the pergolas would alter the appearance of their lots and I find that the committee did actually give this approval.

Further, minor works required to affix the pergolas to the face of the building could be approved even if they intruded onto the common property. There are some limitations to this including that these works must be minor and must not detract from the appearance of any lot or the common property (Standard Module, 114(2)). However, the gluing of the pergolas to the face of the building would not appear to go beyond these limitations.

On the other hand, a special resolution in a general meeting would have been required to allow the pergola roofs themselves to encroach upwards onto common property (Standard Module, 114). This is because the pergola roofs, as against any mechanism attaching those roofs to the building, would not constitute minor improvements that can be authorised by the committee.

In planning and building the pergolas Trueline appears to have failed to properly take into account the respondents’ lot boundaries or failed to take into account the width of the louvre section (especially when the louvres are open). As a result, parts of the roof appear to extend beyond the height specified in the application and into the common property above the respondents’ deck areas. If so, the respondents will require the passing of a special resolution by the owners in general meeting in order to authorise this use of common property.

The respondents claim that, when seeking approval, they offered to pay for an extraordinary general meeting that would have properly authorised the pergolas. However, it was implicit in the application that the pergolas would be built on the respondents’ own lots. On its face, the application was one that the committee could properly approve. It is because the pergolas extend beyond the height expressed in the application that the respondents should now seek a special resolution authorising any encroachment onto common property. If that approval is not forthcoming then the body corporate is entitled to obtain a survey of the boundary and require the respondents to lower the roofs to within their own lots. The respondents will be responsible for any costs of doing this, although they may wish to seek contribution from Trueline if the fault lies in Trueline’s planning or construction of the pergolas.

The terms of the approval also adopted a statement that the louvres are "non-reflective".

This is not the case. The louvres are highly reflective. When closed with the sun shining on them, the louvres present a flat reflective surface that reflects a large amount of glare into the units directly above. However, when the louvres are open, most of the glare appears to be dissipated in a way that will not adversely affect other units to any substantial degree.

Therefore, to bring the pergolas into general accordance with the approval, it seems necessary that the respondents take steps to stop this glare. Based on the inspection and the submissions of the parties, the most just and equitable order in the circumstances seems to be to require the respondents to keep the louvres open whenever they are in direct sunlight. I therefore propose to order that a condition be added to this effect. To give any future purchasers notice of this condition it would be beneficial to add this condition to the register of improvements for scheme.

Having said this, the respondents or subsequent owners may ultimately determine that there is a better way to avoid glare to other lots. If so, they should approach the committee and seek an amendment of this condition.

The terms of the approval adopted a statement in the respondents’ application that the louvre design "prevents heat being radiated above".

When the louvres of the pergola roof are kept open there is relatively little heat radiated above onto the balcony of the lot above. However, when the louvres are closed, they form a flat reflective roof that radiates heat when the sun is shining directly on it.

Similarly to the problem of glare, radiation of heat will be sufficiently avoided provided the louvres are kept open when in direct sunlight.

The terms of the approval adopted a description of the pergolas as being of an "‘Ivory Coast’ colour to provide a soft ambiance to blend with the style and character of the building".

A number of submissions have been made to the effect that the pergolas do not have a ‘soft ambiance’ and do not match the character of the building. However, I am willing to accept that the colour of the pergolas is a ‘soft’ colour and that the pergolas do not clash strongly with the general appearance of the building. Whether the pergolas accord with this statement is a question of degree. On balance, I am satisfied that the pergolas are in general accordance with this statement.

The terms of the approval adopted a statement that "The construction company ‘Trueline’, will provide ongoing maintenance and cleaning of the pergolas. These costs will be met by the owners of Lot 2 and Lot 3".

There have been complaints that the pergolas are not kept clean. The respondents therefore need to ensure they keep the pergolas properly cleaned and maintained. It will be generally in accordance with the approval if the pergolas are properly cleaned and maintained, regardless of who performs the actual cleaning and maintenance. However, it would again be useful to formally add a condition to this effect on the register of improvements. This would provide any future owners with notice of the cleaning and maintenance requirements.

The respondents will be able to bring the pergolas into accordance with the approval by taking the steps outlined above.

However, the respondents are strictly prohibited from causing nuisance or unreasonably interfering with the use or enjoyment of other lots (Act, 167). No authorisation can permit retention of improvements if the improvements cause nuisance or unreasonably interfere with other lots.

There have been complaints that the pergolas cause nuisance and unreasonable interference with other lots due to glare, interference with views, and reduction of security.

Glare is an issue that has been recognised by the courts as capable of generating a nuisance^[6]. Based on the inspection, I am satisfied that the glare from the pergolas can be severe enough to constitute a nuisance. However, with the louvres open at an appropriate angle the glare is reduced to reasonable levels.

It is incumbent on the respondents to ensure they do not allow glare from the pergolas to cause nuisance to other occupiers. They can do this by keeping the louvres at an appropriate angle to deflect most of the glare away from other occupiers. Alternatively, the respondents may wish to agree with the committee on other ways to avoid glare constituting a nuisance.

The courts have shown a reluctance to say that interference with a person’s view can constitute a nuisance^[7]. However, in the context of a community titles scheme, the legislation does not only prohibit nuisance. It also prohibits unreasonable interference with other lots.

The pergolas do interfere with the view from the lots above. From a seated position in the main living area of the lot above, the closed roof of the pergola can block the view of a significant portion of the river. With the louvres open this portion of the river is only partially obscured.

There is no absolute right to a view. However, it is obvious that the view of the river is an important consideration for lots in Scenic Point. Some owners have claimed that detracting from this view of the river does significantly interfere with their enjoyment of their lots. I am willing to accept this. However, the legislation contemplates that some interference with other owners will always occur and will not necessarily contravene the legislation. The real question is whether the interference is reasonable.

It is expected that neighbouring occupiers will cause some interference with each other’s enjoyment of their lots. For example, if the respondents were to occasionally use collapsible umbrellas on their deck area to protect against sun and rain then this would be likely to comprise a reasonable interference with the view of the units above. However, it seems that an entire roof blocking a significant portion of the view at most times would require strong justification before it is considered reasonable. I accept a submission from the owner of lot 3 that she made a conscious decision to refrain from covering the entire width of her deck area to minimise interference with the view of the lots above. However, even with the reduced width of the pergolas there is significant interference with the view of the river from the lot above.

The best way for the respondents to avoid unreasonably interfering with the view of other occupiers seems to be to keep the louvres open at most times. This means the view of the river by other occupiers will only be partially obscured. In addition, there will occasionally be a particular reason for closing the louvres, for example due to rain. It would seem reasonable for the respondents to close the louvres in these circumstances. Another consideration is whether persons seeking removal of the pergolas can move their furniture to minimise any interference with their view.

On balance, I consider the interference with the view to be reasonable if the respondents keep the louvres open at all times except when it is raining.

As an aside, the respondents have suggested that it is important to be able to close the louvers to protect them against water dripping from pot plants above, and from objects falling from balconies above. However, it seems preferable to require other occupiers to take steps to avoid creating nuisance to the respondents in the form of dripping water or falling objects rather than allowing the respondents to create an additional nuisance to other occupiers. The respondents’ deck area has been uncovered for a number of years. Most of the respondents’ deck area remains uncovered and it is not clear that keeping the louvres shut would provide a substantially greater degree of protection for the respondents. In order to minimise these safety concerns the respondents should approach the committee and request other occupiers be required to take appropriate precautions to avoid these problems continuing.

Another issue is whether the pergolas cause security concerns for the lots above by making it easier for people to climb onto the pergolas and access the balcony of the lots above.
I do not accept that the pergolas cause any additional security concerns. If a person were on the respondents’ deck area then, even prior to the pergolas being built, a wall between the respondents’ lots would make it very easy for a person to climb onto the balcony of the lots above. The building of the pergolas may in fact make it more difficult for someone to climb undetected from the respondents’ deck area to the balcony of the lots above.

The committee approval to build the pergolas is a valid approval and the respondents are entitled to build pergolas in accordance with this approval.

However, the respondents remain subject to the general prohibition in the Act against causing nuisance or interfering unreasonably with the use and enjoyment of other lots. In this respect, I consider it necessary to add a condition requiring the respondents to keep the pergola louvres open at all times, except when it is raining. This will minimise interference with other lots in terms of glare, heat and blocking the view of part of the river.

Further, there is no question that the respondents must comply with the terms of the approval given. This means that the respondents must keep the pergolas clean and well maintained.

A final issue is that the pergolas appear to encroach slightly on common property rather than being wholly within the area of respondents’ own lots. Any encroachment is not extensive and it is not possible to verify that the pergolas do actually encroach without conducting a proper survey. However, if the pergola roofs do encroach on common property then the owners as a whole are entitled to consider whether the respondents should be required to lower the pergola roofs slightly to bring them within their own lots.

The respondents claim that it would be unreasonable for the body corporate to require them to spend significant amounts of money to lower the pergolas when lowering them a few centimetres would be unlikely to provide any benefit to other occupiers. If the respondents comply with the above conditions and the pergolas no longer interfere unreasonably with any other lots then the owners as a whole may be willing to allow any small encroachment onto common property. However, this is a decision that the body corporate in general meeting should determine. Owners have an opportunity to advance reasons for or against the required resolution. The legislative requirement is that the body corporate as a whole must act reasonably in executing its functions under the Act (Act, 94).

^[1] Weeks v Commissioner for Body Corporate [2000] QDC 31, 10 March 2000.
^[2] Unreported, District Court, Appeal 13/1999, 22 September 1999.
^[3] Tynan & Ors v Meharg & Newcastle City Council, CA 40119-98 [1998] NSWSC 592 (30 September 1998).
^[4] Jefflane Pty Ltd v Brisbane City Council [2002] QPEC 45 (8 August 2002).
^[5] Firefast Pty Ltd v Gold Coast City Council [1999] QPELR 200.
^[6] Bank of New Zealand v Greenwood [1984] 1 NZLR 525.
^[7] St. Pierre v. Ontario (Minister of Transportation and Communications) [1987] 1 S.C.R. 906.

Number of Scheme:	12031
Name of Scheme:	Scenic Point
Address of Scheme:	26 Archer Street TOOWONG QLD 4066

•	"Each pergola will measure approximately 3 x 7.5 metres...and cover only 25% of the total area of each deck";
•	"Each pergola will be constructed of aluminium of a non-reflective ‘Ivory Coast’ colour, to provide a soft ambience to blend with the style and character of the building";
•	"The unique louvre design prevents heat being radiated above and below the structure";
•	"The construction company "Trueline", will provide ongoing maintenance and cleaning of the pergolas. These costs will be met by the owners of Lot 2 and Lot 3";
•	"Due to objects occasionally falling from lots above, we have been concerned for ourselves and our guests’ safety when using the exposed deck. The proposed pergola structure will improve our safety in this regard";
•	"We are confident that the pergola extension proposed in this submission will be an attractive and tasteful addition to the building; and
•	"We enclose drawings and pictures to assist in visualising the finished product".

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Scenic Point [2003] QBCCMCmr 299 (22 December 2003)