Westlake Villas [2004] QBCCMCmr 162 (25 March 2004)

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Richard Zande and Jocelyn Catherine Zande, the co-owners of lot 22

I hereby order that the application for an order

a) that the decision arrived at the annual general meeting of Westlake Villas body corporate held on 1 December 2003 disallowing a motion submitted by the applicants namely motion 13 set out in the minutes of the meeting be rescinded on the grounds that it is unreasonable and unjust, having regard to all of the circumstances of the case and the submissions, responses and the findings in Application No. 0188-2003 and further having regard to the number of yes votes recorded in response to the motion.
b) that the applicants be permitted to erect a wooden balustrade enclosing the front porch of lot 22 and complementing the existing colour scheme of lot 22, similar to the illustration lodged at the annual general meeting.

is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0822-2003

"Westlake Villas" CTS 23115

The applicants, Richard Zande and Jocelyn Catherine Zande, have sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) as follows:

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

(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)).

In the supporting grounds the applicants stated that they merely wish to construct a wooden balustrade enclosing the front porch of their lot which would be in good taste and complementary to their building and the complex as a whole. The applicants further stated that it would be unjust to refuse their application, and noted that, in any event, the by-laws of the scheme allow for such a construction.

The body corporate committee was invited to respond to the application. In its submission, prepared by the body corporate manager, the committee stated that the decision by owners to reject the applicants’ motion seeking approval for the balustrade was just and reasonable, and should be allowed to stand. The committee repeated its earlier opposition to the proposal, as set out in application 0188-2003. In the submission lodged in response to that application, the committee stated: "while the committee is sensitive to owners wanting to change the appearance of their lot, it has endeavoured to balance this against maintaining the integrity and harmony of the complex. ...The application to erect a wooden railing across the front of lot 22 would establish a precedent and have far reaching ramifications for all lot owners."

The committee further stated that as the applicants’ proposal has been considered by all owners, as ordered by me (see details below), then the applicants should accept the democratic process, by which the proposal was defeated.

On 20 October 2003, I made the following order in application 0188-2003:

I hereby order that the applicants shall be at liberty to propose such motions as they deem necessary for inclusion on the agenda of the annual general meeting to be held on or about 1 December 2003 to allow owners to consider the applicants’ proposal to enclose their front porch by the installation of a wooden balustrade and railings.

I further order that the secretary shall include such motions on the agenda of the annual general meeting provided that the motions have been conveyed in writing by the applicants to the secretary by no later than 5.00pm on Monday 3 November 2003.

In my statement of reasons accompanying the order, the following appeared:

In the supporting grounds, the applicants expressed the view that the body corporate committee’s decision to refuse their request to install wooden railings around their porch area was unreasonable. The applicants pointed out that there is ample evidence within the scheme of a variety of structures approved by the body corporate. The applicants noted that by-law 15, in respect of building alterations, required that the body corporate shall not unreasonably withhold its permission for such structural alterations (including the closing in of balconies and roof decks) provided that certain requirements are met. The applicants further noted that one of the requirements of the by-law was that the design, colour scheme and materials complement the existing design of the building, which their proposal had always intended to achieve. The applicants complained that in spite of their offer to meet with the committee and to try to resolve the issue by mediation, there had been no response from the committee.

All owners and the body corporate committee were invited to respond to the application.

Submissions were received from the body corporate manager, on behalf of the committee, and from numerous owners.

The body corporate manager stated that the committee considered it had acted reasonably, and was concerned that the erection of a wooden railing on the applicants’ porch would establish a precedent, which would have far reaching ramifications for all owners.

Owners were evenly divided in their support for the applicants or the committee. Some owners expressed disappointment that the applicants’ requests to meet with the committee had been ignored. Still others pointed out that there are numerous structural additions to lots, such as high wooden fences and balconies which block the view to the lake from the driveway in the scheme, which have not been properly approved. Another group of owners stated that for the sake of uniformity and aesthetics the applicants’ proposal should not be allowed.

I inspected the scheme and met with the applicants, the committee and the body corporate manager on 17 October 2003. During the discussion which took place with all of the parties, it became evident that the issue had caused some distress. On the one hand the applicants felt that they had been unfairly dealt with, because other owners had made various alteration, some of which had not been approved, and on the other hand the committee believed that it had acted in the interests of all owners because the applicants’ proposed alteration would be highly visible from the common property.

I noted that many of the lots have constructed fences, which, although uniform in colour, have different styles of timber. I also noted that the view to the lake between lots has, in almost every instance, been blocked by these fences. In one instance, however, a lot backing on to the lake has erected a pool style of fence. I was advised that in most cases the fences were intended to provide greater privacy for owners. I also observed the use of lattice to create privacy screens, or, in one case, to reduce the visual impact of air conditioning units. In another lot, a garden shed had been erected, albeit behind a fence, but with its roof visible above the fence from the common property driveway. Opinion was divided as to whether body corporate approval had been given in every case.

The committee appeared to be of the view that alterations to the rear of lake side lots should be regarded differently to alterations proposed or made to the front of lots which would then be visible from the common property, such as would be the case with the applicants’ proposal. In the body corporate manager’s letter dated 27 February 2003 to the applicants, the following statement appears:

"Committee considers that the railings present on other lots do not constitute a precedent, as these are at the rear of the lots, and facing the lake area, and so have no visual impact within the complex."

I consider that by-law 10, dealing with the appearance of the building, should be applied uniformly. In other words, if lake side lots wish to install decks, fences, pergolas and the like, at the rear of their lots then the committee should ensure that the same principles apply to such installations as would apply to lots wishing to make an improvement to the front of the lot. The intent of the by-law is that the appearance of lots should be uniform, whether viewed from the common property, or from another lot.

One of the points raised in the submissions, and in my discussions on 17 October 2003, was the need to preserve the value of lots and the scheme generally by ensuring that the aesthetics of the scheme are maintained. This was readily acknowledged by the applicants, and has been apparent in their material from the outset. In a letter dated 27 February 2003 from the applicants to the body corporate, they explained that "it was and is our intention to erect something which was tasteful and which would blend in with our building."

The majority of the by-laws for this scheme have been in place since 1995, with a further 3 by-laws added in 1996. The scheme is regulated by the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module).

By-law 10(i) provides that an owner shall not do anything to vary the external appearance of the unit except with the consent in writing of the body corporate. By-law 15 provides that no structural alteration, altering the external appearance of the building, shall be made to any lot without the prior written permission of the body corporate in respect of the design and material used. The by-law further provides that the body corporate shall not unreasonably withhold its permission, provided certain requirements are met, as stated above.

The committee members present at the inspection reiterated their concern that by allowing the alteration proposed by the applicants a precedent would be set, and that in any event not all lots would want to define their front porch areas in the same manner, because a significant number of lots have much smaller porch areas. It is certainly correct that if the alteration were to be allowed, a precedent would be set. However, the first fence that was approved in the scheme also set such a precedent, as did the first pergola, the first screen and so on. The importance of the applicants’ proposal was that it recognised that a precedent would be set, which was the reason that they wished to discuss it with the committee from the outset. For some reason best known to the committee, no such discussion ever took place.

It was generally agreed at the inspection that the applicants’ proposal should now be considered by all owners, with the next opportunity to do so being the annual general meeting scheduled for 1 December 2003. I consider that this course of action will allow the applicants to present the details of their proposal, which, if accepted, will represent the conditions applicable to all future proposals so that the ambience and aesthetics of the scheme can be maintained, whilst at the same time affording owners some privacy on their front porch areas.

The motion to approve the balustrade, proposed by the applicants, was considered by the body corporate at the annual general meeting held on 1 December 2003. The motion was defeated, with 12 owners voting in favour of it, 14 owners voting against it, and 12 owners abstaining from voting.

Notwithstanding the remarks made by me in relation to application 0188-2003, concerning a variety of fences which have been constructed between and at the rear of lots, and a lattice trellis which has been used as a privacy screen, I consider that the open porch areas of this scheme are a quite distinct feature of the scheme. The applicants correctly point out that by-law 15 allows for the closing in of balconies (I assume this to be a reference to porches), provided certain requirements are met. The applicants say that they have met those requirements and therefore the (now) opposition of owners to their proposal is unreasonable.

I accept that the proposed balustrade would be "tastefully and decoratively constructed and painted to fit in and complement the existing paint work and décor" of (the applicants’ lot)". My concern however, is that the balustrade would substantially alter the overall style of the porch, and unless all lot owners decided to construct a similar balustrade then the visual impact of just one lot with such a balustrade could have a detrimental affect on the scheme as a whole.

I have some sympathy for the applicants’ position. At my inspection on 17 October 2003, Mrs Zande explained that she feels very much in the public gaze if she sits on her porch to read, whereas with the proposed balustrade, she believes she would have a greater sense of privacy. I consider that the porches of all lots, as constructed, are nothing more than visual features of the lot, and certainly do not present to me as "useable" areas. It also does not appear to me that the developer gave a great deal of thought to privacy issues when incorporating the porches into the design of the lots.

However, having said that, I am also mindful of the fact that owners have bought into the scheme with the porches in their present state. The applicants have owned their lot since 1995, and have now signed a contract for the sale of the lot. Mr Zande advised a member of the Commissioner’s staff on 17 March 2004 that the contract is not conditional upon the approval of the porch enclosure; however the purchaser is aware of the dispute. Mr Zande further stated that settlement of the sale is subject to the settlement of the purchaser’s property, which is currently complicated by other issues, (not associated with this dispute).

I am aware of course that the voting on this issue was very close, and that many owners also abstained from voting, so it is clear that owners are fairly divided on the issue. It has been no less easy for me to determine the application, as I can see some merit in both arguments. However, the motion has been defeated, and, on balance, I am not persuaded that I should overturn it. I might say I would also not have been prepared to overturn the vote if the motion had succeeded by 2 votes.

In the circumstances, I have dismissed the application in its entirety.

Number of Scheme:	23115
Name of Scheme:	Westlake Villas
Address of Scheme:	241 Horizon Drive WESTLAKE QLD 4074

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Westlake Villas [2004] QBCCMCmr 162 (25 March 2004)