Gayundah Gardens [2003] QBCCMCmr 362 (3 February 2003)

Last Updated: 7 September 2007

RA MeekREFERENCE: 0555-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	15452
Name of Scheme:	Gayundah Gardens
Address of Scheme:	38 Gayundah Esplanade WOODY POINT QLD 4019

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

Berenice Marie Lucey and Michael Joseph Lucey, the co-owners of lot 6


I hereby order that if the improvement of the owner of lot 5, William Robert Hatton in enclosing the space between the dividing wall and the pergola roof intrudes or encroaches onto the exclusive use area allocated to the owners of lot 6, Berenice Marie Lucey and Michael Joseph Lucey, then the owner of lot 5 William Robert Hatton shall at his expense and within six (6) weeks of the date of the order, remove the improvement to the common dividing wall and return the common property to its former state and condition of repair.

Provided that the improvement of the owner of lot 5, William Robert Hatton in enclosing the space between the dividing wall and the pergola roof does not intrude or encroach onto the exclusive use area allocated to the owners of lot 6, Berenice Marie Lucey and Michael Joseph Lucey, RA MeekRA MeekI further order that the owner of lot 5, William Robert Hatton, must within two (2) weeks of the date of this order, forward to the secretary for inclusion on the agenda of the next general meeting of the body corporate, a motion seeking approval for the improvements which he has made to the common property dividing wall in his exclusive use area, which motion shall be determined by special resolution in accordance with the requirements of section 114.

I further order that -

• if Hatton fails to submit the motion for inclusion on the agenda of the next general meeting, then he shall at his expense be required to remove the improvement to the dividing wall 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 motion is not carried by special resolution, then Hatton shall at his expense, and within six (6) weeks of the date of the meeting, remove the improvements to the dividing wall and return the common property to its former state and condition of repair within six (6) weeks of the date of this order. n

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0555-2002

"Gayundah Gardens" CTS 15452

The applicants, Berenice Marie Lucey and Michael Joseph Lucey, the co-owners of lot 6, have sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

Order to be made against Mr Hatton with a direction to dismantle the panels he has inserted in the dividing wall of our roof garden and return the wall to its original condition. This work has been done without approval by ourselves or the body corporate.

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)).

Before proceeding with my determination, I make the observation that both parties have referred to many additional matters which are not the subject of this dispute. Both parties acknowledge that the application is restricted to the issue of the enclosure of the dividing wall by Hatton, but nevertheless both have considered it necessary to refer to numerous other aspects and matters, presumably to support their position. I intend to restrict my determination strictly to the issue of the dividing wall and its enclosure by Hatton, and to not comment on any other aspect.

In the supporting grounds, the applicant state that the application concerns the owner of lot 5, William Robert Hatton, "having changed the appearance of our dividing common wall on our Roof Garden". The applicants state that Hatton has "inserted some 14 feet of solid panelling between the top of the wall and the pergola beam ... without any discussion with ourselves or any permission of the body corporate". The applicant states that "this has changed the appearance of our wall and has blocked any daylight previously enjoyed in the pergola area".

Hatton has responded by way of submission. Hatton claims that the reason for extending the wall to the height of the pergola was because of concern for fire safety. Hatton claims that an officer from the local Fire Brigade "concurred" and an engineer commissioned by the body corporate regarding another matter declared the additions were "satisfactory". I am not satisfied that the view of these people is in any way relevant to the legitimacy of Hatton’s action. If some relevant authority had sent a notice requiring the body corporate to enclose the wall, this would be very different. However this is not the case here, and Hatton is simply seeking to rely on the allegedly favourable opinion of alleged experts in support of his position.

Hatton states –

The work we have done on the roof garden is in our exclusive use area and we would not have thought that body corporate approval was required. ... The addition of the firewall, which we have done, has not altered the external look of the building, as it cannot be seen from the exterior of the building. The Luceys say it has blocked their light, but this is not so, the roof is open to the skies, when it rains everything gets wet, when the sun is shining the light penetrates and shines on everything.

There are two aspects here that require comment. Firstly, improvements to common property by an owner to whom exclusive use has been granted are not as of right, as Hatton appears to believe. Section 124 of the standard module states –

124 Improvements--Act, s 136
(1) An exclusive use by-law may authorise the lot owner who has the benefit of the by-law to make stated improvements to the part of the common property to which the by-law applies.
(2) Without limiting subsection (1), improvements stated in the by-law may include the installation of fixtures on the common property and the making of changes to the common property.
(3) If the exclusive use by-law does not authorise the lot owner to make an improvement, the lot owner may make the improvement only if the body corporate authorises it to be made.
(4) However, if the value of the improvement mentioned in subsection (3) is more than $200, the making of the improvement must be authorised by a special resolution of the body corporate.

It is clear from the terms of this section that all improvements to common property by an owner, even though that owner has been granted exclusive use of the common property in question, are subject to body corporate approval. In fact a special resolution in general meeting is required if the proposed improvement is more than $200 in value. There is not much that can be installed these days with any installed value of less then $200.

Hatton has failed to obtain the requisite body corporate approval for the making of the improvement, and consequently the improvement is not authorised. In the circumstances, I am prepared to authorise Hatton to submit a motion seeking authorisation for the improvement for inclusion on the agenda of the next general meeting of the body corporate subject to one other aspect.

The applicants state that the improvement has been made to "our dividing common wall". Hatton claims that the work done is "in our exclusive use area". The question I consider needs to be determined is weather the improvement is within the exclusive use area of lot 5 only, or does it straddle the exclusive use areas of both lots 5 and 6. Whilst I consider the body corporate might authorise an owner to make an improvement to an area of exclusive use allocated to that owner, this certainly does not extend to authorising an owner to make in improvement partly within their exclusive use area and partly within the exclusive use area of another.

The boundary line for the two exclusive use areas is shown on the plan or sketch as simply a black centre line. I therefore assume that the dividing line between the two exclusive use areas is the centre of the wall. Consequently if the improvement made by Hatton extends beyond the centre or mid point of the dividing wall, then I consider that the improvement is partly situated in the exclusive use area allocated to lot 6. This cannot be authorised by the body corporate, and must be removed. In the circumstances, I will leave this for the parties to determine. If the parties are unable to agree on this aspect (and I really don’t believe there is much room for doubt or uncertainty in the question to be determined), then I consider the body corporate committee should inspect and make a finding as to whether the improvement encroaches beyond the centre or mid point of the wall. y