Palm Grove Village [2003] QBCCMCmr 333 (17 January 2003)

Last Updated: 7 September 2007

RA meekREFERENCE: 0546-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	28536
Name of Scheme:	Palm Grove Village
Address of Scheme:	86 Lawrence Drive NERANG QLD 4211

TAKE NOTICE that pursuant to an application made under the abovementioned Act by the Body Corporate for Palm Grove Village

RA meekI hereby order that the owner of lot 20, Victor Anthony Troiani, must within one (1) month of the date of this order, forward to the secretary for inclusion on the agenda of the next general meeting of the body corporate, separate motions seeking approval in respect of each of the improvements which he has made to the common property adjacent to his lot, which motions shall be determined by special resolution in accordance with the requirements of section 114 of the standard module.

I further order that -

• if Troiani fails to submit the motions, or any of them, for inclusion on the agenda of the next general meeting, then he shall at his expense be required to remove all of the improvements, or those in respect of which a motion was not submitted, and return the common property to its former state and condition of repair within six (6) weeks of the date of this order;

• if at the general meeting, the motions, or any of them, are not carried by special resolution, then Troiani shall at his expense, and within six (6) weeks of the date of the meeting, remove the improvements which were not authorised and return the common property to its former state and condition of repair, subject to any application being make to the Office of the Commissioner, Body Corporate and Community Management to overturn the decision taken by the body corporate in general meeting regarding the improvements or any of them.

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STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0546-2002

"Palm Grove Village" CTS 28536

The applicant, the Body Corporate for Palm Grove Village, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

That the owner of unit 31 (Lot 20 on BUP 6428) remove the veranda structure and roofing from the front of the unit, also that he remove the lattice panels added to the fences and other existing structures and relocate the air conditioning unit from common property to an area within his lot. All works to be carried out within one month and the property fully restored to a uniform appearance to the rest of the properties in the scheme.

Section 223(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 contravention of the terms, or the termination of, or the exercise of rights or powers under the terms of, or the performance of duties under the terms of an engagement contract or an authorisation contract.

An order may require a person to act, or prohibit a person from acting, in a way stated in the order (section 223(2)). An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 230(1)).

I intend to approach this application in the same manner I have previously for applications of this nature. Firstly, there are clear errors in the approach of both parties. The body corporate, in suggesting that the owner of lot 20, Victor Anthony Troiani, failed to obtain committee approval and Troiani, in not obtaining body corporate approval where, as these are improvements to common property requiring special resolutions, body corporate approval in general meeting, by special resolution, is required.

I am satisfied that two of the three improvements in question, namely the veranda structure including roof and the lattice panels, are improvements to common property which have been made for the benefit of Troiani’s lot. Section 114 of the Standard module provides –

114 Improvements to common property by lot owner--Act, s 121
(1) The body corporate may, if asked by the owner of a lot, authorise the owner to make an improvement to the common property for the benefit of the owner’s lot.
(2) The improvement must be authorised by special resolution of the body corporate unless--
(a) the improvement is a minor improvement; and
(b) the improvement does not detract from the appearance of any lot included in, or common property for, the scheme; and
(c) the body corporate is satisfied that use and enjoyment of the authorised improvement is not likely to promote a breach of the owner’s duties as an occupier.
(3) An authorisation may be given under this section on conditions the body corporate considers appropriate.
(4) The owner of a lot who is given an authority under this section24--
(a) must comply with conditions of the authority; and
(b) must maintain the improvement made under the authority in good condition, unless excused by the body corporate.

In respect of the air conditioner, I am unable to determine whether this is on common property or part of the lot. In the photos supplied by Troiani, there is a wall mounted air conditioner located in an upper floor window. The body corporate states that the air conditioner is located on common property. However, in his submission, Troiani states that –

I have the unit sitting on my grounds in a closed off part of the complex which nobody has access to nor can they get access to this area. I have my a/con unit sitting inside the 1m boundary of my titled land, all unit holders owner 1m from there brick line, this has been instructed to me by the on-site committee and the titles of land.

There is conflicting, and insufficient information to determine whether the air conditioner is located on common property. If it is the window mounted air conditioner, then this is common property, as the plan shows the boundary of the lot is the wall of the building. If it is elsewhere then I suggest that it is nevertheless common property, as the plan shows that the boundary of the lot with common property is the wall of the building. The area between the residence and the garage is common property. I have checked and no grant of exclusive use exists in respect of this area between the residence and the garage. Whoever has indicated the "1 metre" rule to Troiani is incorrect. I conclude that it likely that the air conditioner in question is located on common property, and consequently, will require the approval of the body corporate in general meeting by special resolution as is the case with the other two items.

Given the form of approval required, I propose to order that Troiani must within one (1) month of the date of this order, submit to the Secretary of the body corporate separate motions for each of the three improvements in question, seeking approval of the body corporate in general meeting, by special resolution. These motions will then be included on the agenda of the next general meeting of the body corporate and determined accordingly.

Once that meeting is held, and the outcome of each of the three motions is known, the parties will then need to consider their position. If all of the motions, or any of them, are carried then the dispute is at an end, at least to the extent of the items approved. It follows that if all or some of the motions are not carried, then Troiani will be required to remove the improvements the subject of the motions.

In this eventuality, Troiani is prima facie obliged to remove the improvements and I have ordered to this effect. However, he would in these circumstances be entitled to make application to this office on the follow basis –

• Apply for an interim order that the improvement not authorised be allowed to remain in situ pending the outcome of an application for an order of an adjudicator; and

• A final order that approval be given by the adjudicator for the improvement not authorised, on the basis that the body corporate refusal of approval is unreasonable.

In any future application of this nature, it will be for the then applicant Troiani to make a case as to way the refusal of the body corporate to authorise the improvement in question is not reasonable. Given all this, it is premature at this time to consider all the allegations and counter-allegations which have been made as part of this application. Such matters, if relevant, will need to be the subject of a future application in the terms contemplated by this order.