Magnolia Lane [2004] QBCCMCmr 280 (28 May 2004)

Last Updated: 30 September 2005

REFERENCE: 0068-2004

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	28868
Name of Scheme:	Magnolia Lane
Address of Scheme:	179 Ocean Drive, MUDJIMBA

TAKE NOTICE that pursuant to an application made under the abovementioned Act by the Body Corporate for Magnolia Lane

I hereby order that the application by the body corporate for Magnolia Lane for an order confirming the correctness or otherwise of the committee’s request that the blind be removed, is dismissed. I further order that the committee resolution at its meeting held on 13 October 2003 that the fitting of the blind by the owner of lot 43, Jill Norma Allaway to her lot not be approved and that the owner be required to remove the blind is invalid and of no effect. I further order that the fitting of the blind by the owner of lot 43, Jill Norma Allaway to her lot is deemed to have been approved by the committee under the provisions of by-law 8.1 on the condition that the owner shall maintain the blind at all times in a clean and tidy condition, and should it fall into disrepair, shall removal or replace the blind, but if so, shall replace only in materials and finishes consistent with the existing blind, unless body corporate committee approval to another blind or form of covering is first obtained.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0068-2004

"Magnolia Lane" CTS 28868

The applicant, the body corporate for Magnolia Lane has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) quote –

Adjudication of dispute ... between committee and owner of apartment 43 (Mrs J. Allaway) regarding the installation of a roll up blind on the northern deck of that apartment. Specifically, a decision by adjudicator as to the correctness or otherwise of the committee’s request that the blind be removed.

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 48 lots registered under a building format plan. The regulation module applying to the scheme is the accommodation module.

The application and submissions

This office sought submissions in respect of the application from the owner of lot 43, Jill Norma Allaway, and all other owners. 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. I therefore intend only to refer to those materials necessary for a determination of the issues raised.

The respondent Allaway has installed a clear blind on part of her lot without seeking committee approval under by-law 8.1. The committee resolved not to authorise or approve the fitting of the blind and have directed Allaway to remove it. Allaway has refused believing that no authorisation is required under the by-law and consequently that she is not in contravention. This dispute has been referred to me for determination.

The relevant by-law is by-law 8.1 headed "Appearance of lot" which provides –

The owner or occupier of a lot must not, without the Body Corporate’s written approval, make a change to the external appearance of the lot unless the change is minor and does not detract from the amenity of the lot and its surrounds.

The by-laws for the scheme would appear to be a replication of the standard Schedule 4 by-laws to the Act, with certain additions.

Allaway has argued that the committee have misinterpreted the by-law and that the by-law does not apply. Further, even if it applies, then the change she has made is minor, and consequently is exempted under the by-law. With respect, Allaway’s interpretation is convoluted, and simply wrong. Essentially Allaway interprets the wording "external appearance of the lot" as the external façade. Allaway concludes that as the blind has been installed on a part of her lot internal to this area, that the installation is not caught by the by-law. Allaway has included photocopied pictures of the complex on which she has outlined in pink the areas she regards as "external" parts of the lot caught by the by-laws. The areas Allaway has outlined are in fact for the most part areas of common property and not parts of the lot at all.

The by-law is intended to cover "external" parts of the lot. External parts of a lot are those which are not internal. The distinction is pretty clear in my view. The part of Allaway’s lot where the blind has been installed is an external part, and is subject to the by-law.

Secondly, Allaway has argued that even if it is external, then the blind is minor, and therefore not subject to the by-law. The by-law goes further however than simply a reference to "minor". It concludes with and does not detract from the amenity of the lot and its surrounds. The body corporate chairperson advised the dual objection to Allaway in correspondence of 24 November 2003 at paragraph 5.7 – 5.9.

I conclude that the by-law does apply to the circumstance of the installation of the blind by Allaway. Consequently Allaway should have applied for authorisation to erect the blind. The question to be determined is whether the committee determination to not approve the blind and to require its removal is a reasonable one in the circumstances.

In its correspondence of 24 November 2003 to Allaway, the committee outlined its basis for concluding as it did regarding the blind. It concluded that the blind –

• Could be seen from certain other apartments and parts of the complex;
• May deteriorate in the future;
• Will create a precedent for similar, or varied, installations by other owners "and in so doing, will seriously detract from the aesthetics of the complex".

Allaway has challenged these statements in her material.

I do not intend to descend to a minute analysis of the pluses and minuses of the installation. Such matters are largely subjective, and different arguments can be advanced depending on your particular point of view on the matter.

I consider however that in assessing such an application, the committee must first accept that the improvement in question is to part of an applicant’s lot, and is not being made to the common property. This in my view requires a greater allowance by the committee of the individual preferences of owners for the enjoyment of their lot. In respect of common property, I consider, and the legislation provides, that a body corporate has a far greater role to play, but for a lot, I consider that the committee should restrict its objections to proposals which clearly, not arguably or possibly, detract from the amenity of the lot and its surrounds.

I conclude that the objections of the committee to the installation are somewhat vague and lacking in any real substance. The fact that the installation can be seen from other lots is not the point. So can very colourful interior room colours, but these cannot be prevented. I suggest that not only must the installation be able to be seen, but in so being seen the general consensus must be that the installation detracts from the amenity of the lot. I consider that this is not evidenced here. I find that the blind is made for the most part of clear plastic materials and where not clear, is coloured consistent with its surrounds, appears to have been professionally installed, and is unobtrusive.

The suggestion that it may deteriorate in the future lacks merit. Everything may deteriorate if not properly maintained. Section 119 of the Accommodation Module provides that an occupier of a lot must maintain their lot in good condition, and parts of a lot readily observable from another lot or common property in a clean and tidy condition. I consider there is sufficient regulation to ensure that Allaway maintain the blind. In any event, a person who is making improvements to their lot for its amenity is unlikely in my view to thereafter allow the lot, or parts thereof, to deteriorate.

Finally, I disagree with the concern regarding precedent. To oppose all installations on the ground of potential for precedent is not to make an objective assessment of the proposal on its merits. What the committee needs to do is in respect of each proposal, to ensure that the particular proposal does not detract from the amenity of the lot. In doing this, previous approvals can be used as a guide. Another approach is for a committee to approve in advance a particular style (including colour scheme) for blinds or awnings which will be authorised.

In support of all the above conclusions, I note that submissions regarding the application were sought from all owners. Notwithstanding that two owners apparently complained of the installation, not a single owner (of 48) made a submission in support of the application for removal of the blind. I interpret this as at least an acknowledgement by owners that the installation of the blind does not in fact detract from the amenity of the lot, and the scheme generally.

In all the circumstances, while I disagree with Allaway on the interpretation of the by-law and the issue of whether she in fact needed the approval of the committee, I conclude that the objection of the committee and its requirement for the removal of the blind by Allaway should be overruled and the installation deemed to have been approved by the committee. I have ordered to this effect.