Ellina Court [2003] QBCCMCmr 87 (27 August 2003)

Last Updated: 17 May 2005

REFERENCE: 0407-2003

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	1578
Name of Scheme:	Ellina Court
Address of Scheme:	7 Ackers Street HERMIT PARK QLD 4812

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

I hereby order that the proposal by Glynn John Hagstrom, the owner of Lot 8, to enclose the lot balcony with the aluminium and insect screen structure as notified to the body corporate committee, would, if installed, be in breach of both By-laws 5 and 17.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0407-2003

"Ellina Court" CTS 1578

This is the final order to an application by the body corporate which has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 ("the Act") -

"Interim Order to stop installation of insect screen on patio (unit 8) until dispute is resolved. Clarification that insect screening of patio effectively makes it an enclosure and Bylaw 17 must then be followed ie "Enclosure of patios must be in keeping with the patios already enclosed"

On 23 June 2003, I issued the following Interim Order 366-2003 -

I hereby order that Glynn John HAGSTROM, the owner of Lot 8, must not carry out any improvement to the lot balcony, including its enclosure by aluminium framing and insect screening, pending determination of the final order to this application.

I further order that this interim order has effect for a period of three months from the date of this order.

As stated in the reasons to my interim order (hereafter "the Reasons"), the applicant did not specify a final order in its application however it can be easily inferred from the wording of the above interim order as being to prevent the balcony of Lot 8 from being enclosed with a screen structure.


JURISDICTION:
Jurisdiction was established in my Reasons as follows –

This is a dispute between the body corporate (the applicant) and an owner (the respondent owner of Lot 8, Glynn John HAGSTROM), concerning a proposal to enclose a lot balcony allegedly in breach of the body corporate by-laws. This is a matter that falls within the dispute resolution provisions of the legislation (see sections 227, 228 and 276 of the Act).

General powers of an Adjudicator in making an order:
Section 276(1) of the Act 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:
In my interim order Reasons I provided the following information concerning notification of the application to the relevant parties -

The requirement under section 247 of the Act to seek submissions from interested parties may, in appropriate circumstances, be dispensed with and the application for an interim order dealt with directly by an adjudicator. That course is considered appropriate in this instance for the following reasons –

•	the proposal set out in the respondent’s undated letter (date stamped 9 May 2003 by the Body Corporate Manager) that he has, "decided to have the balcony professionally insect screened using aluminium framing and screening", and, on the face of it, there is a likelihood that the proposal breaches the by-laws (see under heading "Determination").
•	the respondent has (in the same letter) advised that he believes his proposal would not breach the by-laws and he intends to "carry out the work prior to the start of next Summer".
•	if the respondent carries out the work and it is found to be in breach, then an order to demolish and remove the structure will likely be issued, with financial loss to the respondent.

Following the issue of the interim order, a copy of the application was provided to the respondent Glynn Hagstrom and to all other owners, with an invitation to each to respond to the matter of dispute raised in the application. The respondent Hagstroom lodged a written submission. No other owners made a submission, though a check with the Body Corporate Manager confirmed that all owners were supplied with a copy of the application and the invitation to respond. The body corporate declined the opportunity to view the respondent’s submission or make a written reply (see sections 246 and 244 of the Act respectively).

The brief facts of the matter given in my Reasons are as follows –

The body corporate committee says that the respondent Hagstrom stated soon after his purchase of Lot 8 (June 2002) that he wished to enclose his balcony, and he was informed of the requirements of By-law 17 which states –

By-law 17
No external blinds or awnings shall be erected by a proprietor to a lot without the previous consent in writing of the Committee.
Enclosure of patios must be in keeping with the patios already enclosed."

The committee suggested he submit his proposal for consideration, however no submission was made.

In his letter of early May 2003 referred to above, the respondent stated that he was not given a copy of the by-laws until September 2002 (some 3 months after purchase) and would not have purchased if he was aware he could not enclose his balcony as a dining room as was his intention.
He further states that he cannot construct a conforming enclosure as the materials are no longer available, however, he believes an aluminium structure supporting insect screening is within the exception provided by By-law 5(b) and intends to install this structure. By-law 5 states –

By-law 5. Damage to Common Property.
A proprietor or occupier of a lot shall not mark, paint, drive nails or screws or the like into, or otherwise damage or deface, any structure that forms part of the common property except with the consent in writing of the body corporate, but this By-law does not prevent a proprietor or person authorised by him from installing –

(a) any locking or other safety device for protection of his lot against intruders; or
(b) any screen or other device to prevent entry of animals or insects upon his lot;

Provided that the locking or other safety device or, as the case may be, screen or other device is constructed in a workmanlike manner, is maintained in a state of good and serviceable repair by the proprietor and does not detract from the amenity of the building, and details have been submitted to the Body Corporate for approval prior to installation. Uniformity of any exterior screens would be a requirement.

Concerned that the respondent may install the inappropriate structure proposed, the committee authorised the Body Corporate Manager, Kingsberry Body Corporate Management, to issue a by-law breach notice against the respondent and this was done by notice given on 29 May 2003. I note that by letter dated 18 June 20003, the body corporate notified the respondent of its approval for him to install insect screens.

In his submission to the application, the respondent Hagstrom states that he did not lodge an application with the body corporate (committee) because he had been told by a committee member that any proposed balcony structure would be rejected unless it conformed to the "aesthetics of the building". He states that a builder had informed him that the existing fittings enclosing balconies could not be matched as they were no longer available in Townsville.

He states further that his proposed screening of the balcony does not infringe the second limb of By-law 17 in that his proposal is for a screening of the balcony and not an "enclosure", the term used in the by-law. He supports this argument with the different meanings ascribed to the two terms as defined in Second Edition of The Oxford English Dictionary. He suggests that the committee recognises the difference in its following statement, "Should Mr Hagstrom decide to "enclose" his balcony in terms of By-law 17 according to updated specifications, full and careful consideration would be given to any submission for insect "screening": in terms of By-law 5." The way this is written by the committee, they are admitting one is an "enclosure" and the other a "screen" and this is the crux of the whole disagreement".

In regard to the application of By-law 14, the respondent states that the proposal involves no "structural change", on the basis that building permits are required by the local government body (Council) for "structural changes" but this does not include the screening of balconies.

The respondent concludes by stating that he had no intention of proceeding with any work that was in breach of the by-laws or otherwise unlawful, and explained that his mention of taking legal action and seeking costs against the body corporate over the matter, was advice and not a threat. He is pleased that the body corporate has referred the dispute to a formal adjudication process for resolution, and has attached copies of relevant correspondence between the parties to assist in resolving the matter.


DETERMINATION:
"Ellina Court" was registered as a building unit plan (now termed a building format plan) on 12 May 1975, and comprises 8 residential lots. On 1 October 1993, new by-laws were recorded by the body corporate and under the transitional provisions of the new Act, these by-laws continue in force. Also under those provisions, the body corporate is regulated by the Body Corporate and Community Management (Standard Module) Regulation 1997 ("the Standard Module").

Before addressing the particular issues bearing on the dispute, I want to repeat comments made in my Reasons concerning the binding nature of the by-laws of a body corporate –

Firstly, section 59 of the Act provides that the community management statement (which includes the by-laws) for a body corporate binds the body corporate and each member (including owners), as if each had entered into mutual covenants to observe its provisions. Accordingly, the respondent was bound by the by-laws immediately upon becoming an owner whether or not he had knowledge of the by-laws. I might also add that the legislation provides that the first page of a contract for the purchase of a lot must include a prescribed "Warning" statement of two pages that gives various items of advice, including that a body corporate’s by-laws could and should be searched by a purchaser prior to settlement of the purchase of a community titles lot.

The relevant by-laws in this dispute are By-law 5 and 17, while I also intend also to make a reference to By-law 14. For ease of reference I shall repeat those by-laws before continuing with my finding as to how each by-law applies to the respondent’s proposal -


By-law 17.
No external blinds or awnings shall be erected by a proprietor to a lot without the previous consent in writing of the Committee.
Enclosure of patios must be in keeping with the patios already enclosed.

By-law 17, in its second part, explicitly requires that patio (read "balcony") enclosures must be "in keeping" with existing enclosures. The existing enclosures in the scheme, which lie to the side and beneath the respondent’s lot, feature a combination of upper glass hopper windows and lower aluminium louvres. The respondent’s proposal is for the balcony to be entirely screened off by a structure comprising aluminium framing supporting insect screening mesh. The structure (as it is referred to by the respondent in both the heading and comments on the sketch plan supplied to the Body Corporate Manager), consists of vertical and horizontal aluminium frames attached to the balcony ceiling and floor, just inside the railing. The aluminium will be coloured to match existing building structures.

The respondent’s definition reference for "enclose" is "To surround with a boundary or mark off converting common land into private property". He regards the balcony railing as the enclosure and that the proposed screening is not an enclosure.

I disagree with that view. The term "enclosure", which is the term used in the by-law, is defined in the Shorter Oxford Dictionary as including "A thing that encloses; an encompassing barrier". That definition, and enclosure in its common usage, would include the aluminium frame and screen structure proposed. As an enclosure within the meaning of the by-law, it must therefore be viewed against existing enclosures, and there is no doubt that it is vastly different.

It may be true, as the respondent states, that his lot is situated furthest from the entrance, but despite this the difference will be very noticeable because the structure would be wholly surrounded by the existing, uniform enclosures of the balconies of Lots 5, 6 and 7.

In summary, I consider the proposed structure would be an enclosure within the meaning of By-law 17 and as it is not in keeping with existing enclosures, it would breach the by-law if installed.


By-law 5. Damage to Common Property.
A proprietor or occupier of a lot shall not mark, paint, drive nails or screws or the like into, or otherwise damage or deface, any structure that forms part of the common property except with the consent in writing of the body corporate, but this By-law does not prevent a proprietor or person authorised by him from installing –

(c) any locking or other safety device for protection of his lot against intruders; or
(d) any screen or other device to prevent entry of animals or insects upon his lot;

Provided that the locking or other safety device or, as the case may be, screen or other device is constructed in a workmanlike manner, is maintained in a state of good and serviceable repair by the proprietor and does not detract from the amenity of the building, and details have been submitted to the Body Corporate for approval prior to installation. Uniformity of any exterior screens would be a requirement.

By-law 5 gives conditional approval to owners to install "any screen...to prevent entry of...insects upon his lot" The conditions include that the screen "does not detract from the amenity of the building" and that "details have been submitted to the Body Corporate for approval" and that "uniformity of any exterior screens would be a requirement." That is, the body corporate has limited grounds on which it may refuse the installation of an insect screen by an owner, namely that the amenity of the building is not interfered with and exterior screens are uniform.

In my previous Reasons, I suggested that this by-law would allow the respondent to install a screen-door alongside the sliding-glass door dividing the balcony from the internal lot rooms, provided it met the dual conditions of amenity and uniformity. This does not suit the respondent as he purchased with a view to using the balcony area as an "eating/entertainment/cool sitting area". The condition of amenity could not, in my view, be met. The term amenity is defined in the Shorter Oxford Dictionary as being pleasantness, agreeableness, a pleasant feature. While the proposed structure, which is to be professionally constructed, may in itself be of agreeable appearance, when it is in place and viewed against the surrounding window and louvre structures the "amenity of the building" will be adversely affected. The phrases amenity of the building and uniformity used in the by-law, show that the overall presentation of the building is an overriding consideration when applying the by-law to a proposal.

In any case, this by-law must be read in conjunction with By-law 17, and, in my view, the installation of screening must be read down in giving effect to the explicit provision of By-law 17 in requiring uniformity of enclosures.

In summary, I consider the proposal would breach the requirements of By-law 5.


By-law 14.
No structural alteration shall be made to any lot (including any alteration to gas, water or electrical installations) without the prior permission in writing of the Committee.

Given that I am of the firm opinion that the proposal does not conform with the requirements of By-laws 5 and 17, I do not need, or intend, to fully explore the application of this by-law.

The term "structural alteration" would include new structures as well as changes to existing structures. The term "structure" in a building sense has a narrower scope than the term in common usage; in the former it may be restricted to changes that affect the essential supporting framework of a building whereas in the latter it could refer to a child’s playhouse made of sticks and hessian bags. The extension of the term in the by-law to encompass any alteration to gas, water or electrical installations, suggests a wider meaning than that related only to a building. The definition in the same previous source, includes "any framework or fabric of assembled material parts", and that may well apply to the proposed structure. While the matter warrants a more reasoned examination, I incline to the view that the proposed aluminium framework and screen assembly is caught by this by-law and prior permission is necessary. However, I think it is common ground that the body corporate has to authorise the structure under at least By-law 5 so this by-law adds very little to my determination of the dispute.

In summary, for the above reasons I consider the proposed aluminium and screening structure to enclose the balcony of Lot 8 would breach By-laws 5 and 17 if installed.

Having made my decision I would offer the following comments. I am not convinced that the hopper windows or the aluminium louvres are no longer available. It may be that the windows have to be manufactured to specifications, but that does not mean that they are not available. The style or pattern of glass may be difficult, if not nigh impossible, to obtain, however it would be unreasonable of the body corporate not to approve a glass of similar style whose difference would be hard to detect from the common property area below. The aluminium louvres should be readily available in the same, or a very similar, style. Again, it would be unreasonable for the body corporate to reject a style whose difference was virtually undetectable from the common property. I am unaware if the owner has suggested such close alternatives, but offer these comments to assist both parties if Hagstrom wants to pursue the enclosure of his balcony in a manner acceptable to the body corporate.