Villa Edgewater [2004] QBCCMCmr 117 (26 February 2004)

Last Updated: 30 September 2005

REFERENCE: 0569-2003

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	23092
Name of Scheme:	Villa Edgewater
Address of Scheme:	6 Harbourview Court RABY BAY QLD 4163

TAKE NOTICE that pursuant to an application made under the abovementioned Act by William Frank Batt & Erica Batt, the owners of lot 13

I hereby order that the application by William Frank Batt & Erica Batt, the owners of lot 13 for an a determination from the adjudicator to allow them to construct the proposed addition to their lot and to instruct the body corporate to give approval without further delay, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0569-2003

"Villa Edgewater" CTS 23092

The applicants, William Frank Batt & Erica Batt, the owners of lot 13 have sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) quote -

We seek a determination from the adjudicator to allow us to construct the sought after addition and to instruct the body corporate to give approval without further delay.

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 the 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)). An adjudicator's order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate (section 284(1)).

The scheme

The scheme is a subdivision of 74 lots registered under a group title plan (now a standard format plan).

The application and submissions

This office sought submissions in respect of the application from all owners and the body corporate committee. I do not intend to set out in any detail the applicant’s grounds, nor the contents of submissions in response. I am satisfied that all parties are aware of the position of the other from the application, submissions and the right of reply processes, all of which have been availed of.

I make the observation that submissions were received from some 34 individual owners, both supporting and opposing the application, and as well the committee. The response by individual owners to the application is considerable. It is rare in my experience to see this level of response (almost 46% of owners) from a body corporate of this size. I suspect that the average level of response would be less than 10% in respect of most applications. I consider the response by owners a reflection of the seriousness which owners attach to the matter the subject of the application. I have not done a calculation to determine the number of submissions for and against. I consider that this would be too simplistic and artificial an approach to the situation. The only observation I will make is that, having read all the material including the submissions, I suspect that those in favour and those opposing the application are roughly equal; there is certainly no clear majority. This further suggests to me that the issue is somewhat complex, and that there are divergent opinions.

The facts of the application, in contrast to the merits or otherwise of what is being proposed, are relatively straightforward. The applicant is alleging that the committee of the body corporate has acted unreasonably in assessing their proposal to construct "a pergola / car shelter" addition to their unit. The application states –

The body corporate (through its committee) has failed to act expeditiously, responsibility, or to deal in a reasonable way with a properly prepared and presented request for a simple addition of a pergola / car shelter to our home on our private property.

... We understand and accept any owner’s right to improve the amenity of their own property and in view of all the precedents we find it difficult to understand the committee’s reluctance to approve our proposal.

The applicants allege that the committee has vacillated in making a determination of their proposal.

The response of the committee notes the following –

• 02/07/2003 – committee meeting at which applicant’s proposal received;
• 05/07/2003 – on site meeting;
• 07/07/2003 – architect engaged by committee;
• 12/08/2003 – preliminary report by architect received at next committee meeting;
• 09/09/2003 – final report by architect received at next committee meeting identifying "a number of issues;
• 12/09/2003 – applicants advised of position by committee;
• ??/09/2003 – a sub-committee (established??) and met to consider the proposal;
• 15/09/2003 – sub-committee met with town planner;
• 29/09/2003 – applicants advised of progress of application;
• 24/10/2003 – awaiting town planner’s report, and receipt of correspondence from local authority;

The submission concludes –

The body corporate committee is now in possession of sufficient information to make an informed decision on Mr Batt’s application. In the event of a drawn vote on this matter by the committee, it will be recommended that the matter be put to a vote at the next AGM. ...

Relevantly it should be noted that -

• The applicant’s original request to the committee was dated 20 June 2003;
• The committee first met after this date on 2 July 2003 at which it commenced its consideration of the applicant’s proposal;
• the applicants pre-empted the making of this application on 16 August, 2003, and the application was in fact received by this office on 26 August, 2003.

I conclude that the relevant time period complained of is 45 days (from 2 July to 16 August).

The jurisdiction of the committee in this matter is derived from By-law 45 headed Garden and Private Car Parking Area. It relevantly provides that an owner shall not construct or permit the construction of any improvement in respect of any part of a lot without the prior written consent of the body corporate. The by-law further provides –

The body corporate must not give its written consent unless the proposed alteration, addition, landscaping, gardening or construction is in keeping with the overall design, construction and / or landscaping of the adjoining common property.

The body corporate’s "general functions" are outlined in section 94 of the Act, quote -

94 Body corporate’s general functions
(1) The body corporate for a community titles scheme must--
(a) administer the common property and body corporate assets for the benefit of the owners of the lots included in the scheme; and
(b) enforce the community management statement (including any by-laws for the scheme); and
(c) carry out the other functions given to the body corporate under this Act and the community management statement.
(2) The body corporate must act reasonably in anything it does under subsection (1).

The order sought by the applicants is implicitly twofold. It seeks an order requiring the body corporate to approve the applicant’s proposal. The applicants seek this on the basis that the committee have acted unreasonably in assessing their proposal. The order sought therefore also requires a determination of whether the body corporate committee have in fact acted unreasonably.

Determination

I conclude that actions of the body corporate in respect of this matter to date have not been unreasonable. I consider that the applicant’s grounds do not support a conclusion that "the body corporate (through its committee) has failed to act expeditiously, responsibly, or to deal in a reasonable way with a properly prepared and presented request for a simple addition of a pergola / car shelter to our home unit on our private property".

The applicant expectation of the body corporate committee in terms of making a determination are unreasonable in the circumstances. The usual practice of the committee is to meet once a month. Given this, then I conclude that a minimum time period of 3 months might reasonably be required to determine such an application. I see no failings or delay in the actions taken by the committee in assessing the applicants proposal, particularly in view of the requirements of the Act (section 94 I have outlined which requires that the body corporate enforce the by-laws and must act reasonably in doing so) and the additional requirements in the specific by-law which specifically prohibits the body corporate from giving its consent under the by-law unless the proposed alteration, addition, landscaping, gardening or construction is in keeping with the overall design, construction and / or landscaping of the adjoining common property. I conclude that the body corporate (including its committee) is obliged to undertake a thorough investigation of the proposal. I conclude that the actions of the committee are simply this. I do not agree that there has been delay, or a lack of responsibility, or that the body corporate committee have otherwise acted unreasonably in the circumstances.

I further consider that the applicant’s statement is to some extent misleading. They describe their proposal as "a simple addition". The evidence evinced in submissions suggests that perhaps this is not a wholly accurate statement. In particular, it is clear that this is the first approval sought in respect of the enclosure of a previous open parking space. Moreover, it is further clear that this is the first approval sought for a proposal involving an area of a lot which is clearly and prominently visible from common property. It seems that all other previous approvals have been for improvements at the rear of lots. I conclude that these aspects, clearly evidenced in a number of submissions, make the proposal a first for the scheme, and requires careful and perhaps additional consideration by the committee.
For all the above reasons, I conclude that the actions of the body corporate committee are not unreasonable. The consequence of this is that I further decline to make the order as sought by the applicants. I consider that before any determination of the merits of the proposal can be considered, that a determination must first be made by the body corporate. In the circumstances, given the clear level of owner interest in the outcome of this proposal, and to avoid allegations of bias, I suggest and even recommend to the committee that it decline to make a determination, but rather refer the matter for determination by all members of the body corporate in general meeting. In circumstances such as this, I consider that this is the appropriate decision making body. In a general meeting, the motion should be determined by ordinary resolution.

In their reply, the applicants have stated –

We do not think it is reasonable to contemplate that the matter be voted on at an EGM or an AGM as we will once again be the subject of vilification both verbal and written before the vote is taken by those determined to prevent our application being considered objectively on its merits. ... We therefore again ask you to exercise your authority and instruct the committee to approve our application.

I do not consider that the legislature intended decisions of this nature to be made by an external third party not associated with the scheme. Rather, the scheme of the legislation is to put in place processes by which such matters are determined through the democratic vote of owners. If the proposal is rejected or not carried by the body corporate in general meeting, then the applicants will have a further right to apply to this office alleging that the body corporate has acted unreasonably and this office will make a determination. The distinction to be drawn between this situation and the current situation is that the current situation requires that a determination of the merits of the proposal be made by this office, without this aspect first being considered by the body corporate. In my view, unless and until this occurs, I consider that it is not appropriate that an adjudicator consider the actual merits or otherwise of the applicant’s proposal. I therefore decline to do so.