Ellenmac [2004] QBCCMCmr 385 (6 August 2004)

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Irene June Lenneberg, the owner of lot 11

I hereby order that the body corporate committee shall not consider the motion adjourned for consideration to 6 August 2004 relating to the proposed works within lot 13, as that matter is a restricted issue for the committee.

I further order that the owner of lot 13 shall, until further order, immediately cease any work being carried out within the lot for which body corporate approval is required, and in particular shall ensure that no further attempt is made to penetrate any portion of the slab within the lot between levels F and G (roof deck).

I further order that the body corporate shall not consider motion 3 on the agenda of the extraordinary general meeting scheduled for 16 August 2004.

I further order that the body corporate shall convene a further extraordinary general meeting at which it shall consider appropriate motions for the entirety of the proposed additional work on the roof by all three lots involved, namely lots 12, 13 and 14.

I further order that the owners of lots 12, 13 and 14 shall not undertake any work contemplated by them, or any of them, on levels F and G of the scheme until further order, or until that work has been authorised by the body corporate in general meeting, whichever is the earlier.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0502-2004

"Ellenmac" CTS 16423

ORDERS SOUGHT

The applicant, Irene June Lenneberg, has sought an interim order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) as follows:

JURISDICTION:

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)).

Section 279(1) of the Act allows an adjudicator to make an interim order if satisfied, on reasonable grounds, that an interim order is necessary because of the nature or urgency of the circumstances of the application.

BACKGROUND:
The application for interim orders was received in the Commissioner’s office on 4 August 2004. The applicant stated in her supporting grounds that a committee meeting was scheduled for 5 August 2004, and that an extraordinary general meeting was scheduled for 16 August 2004.

The agenda of the committee meeting revealed that one of the matters under consideration was the approval by the committee of certain plans for internal works proposed by the owner of lot 13. Those plans include the installation of a spiral staircase from level F to the roof deck on Level G, which of necessity requires penetration of the floor slab.

The agenda of the extraordinary general meeting revealed that the meeting intended to consider motions relating to additional work on the roof by the owners of lots 12 and 14, and proposed modifications to the present roof structure by the owners of lots 12, 13 and 14. The meeting also intended to consider a third motion relating to an application to the Commissioner for Body Corporate (sic) in respect of the validity of the approval of the original roof structure.

On 5 August 2004 I conducted a teleconference with the applicant, and with Mr Ross Harvey, the chairperson of the body corporate. The body corporate is named as one of the respondents to the application. The other respondents are the owners of lots 12, 13 and 14, who will have an opportunity to respond formally to this application. All other owners are of course affected parties, and they too will be given the opportunity to respond to the application. The purpose of the teleconference was simply to provide me with further information to assess whether an interim order would be appropriate in the circumstances, given that the time frame did not allow for formal submissions prior to the committee meeting.

Mr Harvey informed me that on 27 July 2004 he had instructed the workmen in lot 13 to cease any work related to the penetration of the slab between levels F and G of the scheme until the body corporate had had the opportunity to consider the proposed works. Mr Harvey stated that at the time of his attendance in lot 13 he observed that a hole had been cut in the false ceiling on level F exposing the slab, and that holes had been drilled through the tiles on level G around the circumference of the portion of the slab which would be required to be removed so as to accommodate the internal staircase intended to be installed by the owner of lot 13. Mr Harvey further stated that as far as he could ascertain there had also been one 1/2 inch diameter "pilot" hole drilled through the slab between levels F and G.

Mr Harvey further stated that he had attended at lot 13 again on 28 July 2004 to ensure that no further attempts had been made to penetrate the slab, and although it appeared that nothing more had been done in that regard, the body corporate was concerned to ensure that the structural integrity of the slab would be preserved until all appropriate investigations had been carried out by the body corporate.

The applicant stated that many of the owners in the scheme are concerned about the proposed works, not only by the owner of lot 13 within his own lot, but also by the owners of lots 12, 13 and 14 in relation to the roof.

On 6 August 2004 the applicant wrote advising that the body corporate committee had decided to delay voting on the motion approving the works proposed by the owner of lot 13 until 4.00pm on 6 August 2004. The applicant reiterated her concern that the interim order be made available before that time. The applicant stated that she understood that the owner of lot 13 had builders ready to commence the proposed work within lot 13 this weekend.

DETERMINATION:

The purpose of an interim order is to maintain the status quo until proper investigation can be carried out. A number of aspects of this application persuade me that an interim order should be made.

Firstly, I note that by-law 14 provides that no structural alterations shall be made to any lot without the prior permission of the committee. Clearly the owner of lot 13 has attempted to commence work within his lot without having the prior permission of the committee (given that work initially commenced on 27 July 2004, and the committee meeting was not scheduled until 5 August 2004).

Secondly, I am not satisfied that the proposed works for lot 13 can be approved by the committee in any event because in my view any proposal which involves a penetration to the slab of the building is a restricted issue for the committee for the following reasons.

Section 26(1)(b) of the Body Corporate and Community Management (Standard Module) Regulations 1997 (Standard Module) (by which this scheme is regulated) provides that a decision is a restricted issue for the committee if it is a decision to change rights, privileges or obligations of the owners of lots included in the scheme.

Section 109(2)(b) of the Standard Module provides:

walls.

Accordingly, the body corporate has an obligation to maintain in a structurally sound condition roofing structures providing protection (the roof slab in this case) and essential supporting framework (also the roof slab). Obviously the proposed penetration within lot 13 through the slab between Levels F and G involves the consideration of structural issues (see letter dated 26 March 2004 from Mills Engineers Pty Ltd to the owner of lot 13). It goes without saying that the body corporate must be satisfied that the structural integrity of the slab will not be compromised by the penetration, and that the body corporate’s obligations in relation to its duty to maintain the slab will not be altered in any way as a result. In that case, the matter is one which must be considered by the body corporate in general meeting. I therefore propose to order that the committee shall not consider whether to approve the proposed works within lot 13, and that that matter shall instead be placed on the agenda of a general meeting for consideration.

Having so decided, I need also consider whether to effectively restrain the owner of lot 13 from proceeding with his proposed works. It may be that the owner of lot 13 has no intention of having the hole cut in the slab until he has received permission to do so from the body corporate, but in view of the fact that preliminary steps for such work had commenced last week, well before the matter even came before the committee, I am satisfied that the circumstances warrant the making of an interim order to ensure that the structural integrity of the building is preserved until the body corporate has properly considered all aspects of the matter, and been provided with written evidence that all necessary Council approvals have been obtained.

I am also concerned that the motion on the agenda of the extraordinary general meeting scheduled for 16 August 2004 relating to the proposed additional work on the roof only refers to that work contemplated by lots 12 and 14. It is obvious from the plans accompanying the meeting material and from the letter dated 23 June 2004 from the owner of lot 13 to the body corporate committee that lots 12, 13 and 14 intend carrying out similar work on each of their lots, so that the whole project, when completed, will have a uniform appearance. Furthermore, Council approval would undoubtedly be based on the project as a whole. I therefore consider that it would be inappropriate for owners to be expected to consider the project piecemeal. I therefore propose to order that the body corporate shall not consider motion 3 (Proposed Additional Work on the Roof) at the extraordinary general meeting scheduled for 16 August 2004, and that, instead, the body corporate shall convene a further extraordinary general meeting at which it shall consider appropriate motions for the proposed additional work on the roof by all three lots involved, namely lots 12, 13 and 14.

All parties will now be provided with a copy of the application and invited to respond to it. I shall also obtain the minutes of the two meetings referred to above, as they will provide additional information for my consideration in my final determination.

The parties should be aware of the following provisions of the Act:

Maximum penalty--400 penalty units. (Adjudicator’s note – 1 penalty point=$75.00)

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Irene June Lenneberg, the owner of lot 11

I hereby order that the interim order made on 6 August 2004 shall be varied by the cancellation of the following orders:

• that the body corporate shall not consider motion 3 on the agenda of the extraordinary general meeting scheduled for 16 August 2004.
• that the body corporate shall convene a further extraordinary general meeting at which it shall consider appropriate motions for the entirety of the proposed additional work on the roof by all three lots involved, namely lots 12, 13 and 14.
• that the owners of lots 12, 13 and 14 shall not undertake any work contemplated by them, or any of them, on levels F and G of the scheme until further order, or until that work has been authorised by the body corporate in general meeting, whichever is the earlier.

I further order that provided motion 2 on the agenda of the extraordinary general meeting scheduled for 16 August 2004 is passed by the body corporate, then the body corporate may consider motion 3 on the agenda of the same meeting, however, I direct that neither the body corporate nor the body corporate committee nor any member of the body corporate shall make a determination as to whether the plans referred to in motion 3 comply with the Integrated Planning Act 1997 or with Brisbane City Council regulations as that is not a matter for the body corporate.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0502-2004A

"Ellenmac" CTS 16423

INTERIM ORDER MADE ON 6 AUGUST 2004:

On 6 August 2004, I made the following interim orders:

I hereby order that the body corporate committee shall not consider the motion adjourned for consideration to 6 August 2004 relating to the proposed works within lot 13, as that matter is a restricted issue for the committee.

I further order that the owner of lot 13 shall, until further order, immediately cease any work being carried out within the lot for which body corporate approval is required, and in particular shall ensure that no further attempt is made to penetrate any portion of the slab within the lot between levels F and G (roof deck).

I further order that the body corporate shall not consider motion 3 on the agenda of the extraordinary general meeting scheduled for 16 August 2004.

I further order that the body corporate shall convene a further extraordinary general meeting at which it shall consider appropriate motions for the entirety of the proposed additional work on the roof by all three lots involved, namely lots 12, 13 and 14.

I further order that the owners of lots 12, 13 and 14 shall not undertake any work contemplated by them, or any of them, on levels F and G of the scheme until further order, or until that work has been authorised by the body corporate in general meeting, whichever is the earlier.

JURISDICTION:

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

FURTHER ORDER SOUGHT:

On 12 August 2004 I received a submission from Mullins Lawyers (Mullins), acting on behalf of the owners of lots 12 and 14. Essentially, Mullins had been instructed to make an urgent interlocutory application seeking cancellation or variation of parts of the interim order, in light of the fact that a general meeting of owners is to be conducted on 16 August 2004. In their submission, Mullins provided further background to the dispute, and challenged many of the claims made by the applicant, noting especially the lack of particularity in relation to those claims.
FURTHER BACKGROUND:

In relation to my finding in my interim order that the Brisbane City Council "approval would undoubtedly be based on the project as a whole", Mullins referred me to the decision of Bartlett & Anor v Brisbane City Council [2003] QPEC 1 (Bartlett). Mullins pointed out that the roof deck is divided into four distinct areas, with the three main areas forming part of the individual freehold titles of lots 12, 13 and 14. Mullins noted that whilst the owners of lots 12 and 14 had used the same architect to prepare the plans for the additional works to the roof gardens of their respective lots so as to ensure a consistent visual appearance, there is no requirement in the by-laws or the Body Corporate and Community Management Act 1997 that the proposed works be carried out as a single project or that a single approval for the works be obtained from the body corporate.

Mullins also stated that the effect of the interim order would be to delay consideration by the body corporate of the proposal by lots 12 and 14, and that there would be no benefit granted to the applicant nor any other owner by virtue of the interim order, particularly as the body corporate committee had already decided that the proposal should be considered by owners in general meeting. I note in this regard that the applicant is a member of the committee, and at a committee meeting held on 30 June 2004 voted in favour of the proposal being considered by owners in general meeting.

Mullins also advised that the architects overseeing the proposed project has informed the owners of lot 14 that if the proposal cannot be considered by owners on 16 August 2004 then the architects will be committed to other unrelated works, thereby preventing them from attending to the proposed project for some months. Mullins attached a copy of a letter dated 10 August 2004 from Dennis Nicholl & Associates Architects to the owner of lot 14 in confirmation.

Mullins concluded that the owners of lots 12 and 14 should not be subjected to such detriment when that could be avoided by allowing motion 3 to be properly considered at the scheduled meeting.

A submission was also received from the owner of lot 14 in which further background material was provided. The submission pointed out that most of the application was concerned with matters which are properly within the jurisdiction of the Integrated Planning Act 1997, and are therefore not matters for the applicant, the body corporate or the office of the Commissioner. The submission reiterated that no work would commence with respect to lots 12 and 14 until all necessary body corporate and Brisbane City Council approvals had been obtained.

DETERMINATION:

On 16 August 2004 I conducted a teleconference with the applicant, the owners of lots 12 and 14 and their legal representatives and the owner of lot 13 and his legal representative. Discussion took place concerning the matter generally. I was also advised that the existing roof extends over common property only near lot 13, and that the roof over lots 12 and 14 is wholly within the boundaries of lots 12 and 14.

In addition, I was advised that a page of the architect’s report was missing from the material circulated to owners for the scheduled extraordinary general meeting, although the complete report was provided to committee members when they considered the proposal at the committee meeting held on 30 June 2004. The fascia treatment sketch referred to on page 4 of the architect’s report, however, has apparently not been provided to anyone, including the owners of lots 12 and 14. The owner of lot 14 advised me that he would ensure that the sketch and the missing page from the report were available for owners attending the meeting to peruse.

The owners of lots 12 and 14 also confirmed that if I were to cancel my earlier interim order and allow motion 3 to be considered at the scheduled meeting, it would only be considered if the body corporate had passed motion 2.

The applicant stated that she had only been provided with the submissions by Mullins and by the owner of lot 14 on Friday afternoon (13 August 2004) and even then she had not received all pages (a separate note by a member of the Commissioner’s staff which came to my notice after the teleconference confirmed that the applicant had telephoned at 5.25pm on Friday 13 August 2004 advising that her fax machine had run out of paper). On that basis the applicant contended that the interim order should not be cancelled or varied as she had not been given sufficient opportunity to respond to the new material. The applicant confirmed, however, that she had been present at the committee meeting held on 30 June 2004, and that she had voted at that meeting in favour of submitting the proposal of lots 12 and 14 to a general meeting.

The owner of lot 13 expressed his concern that the interim order preventing his new staircase being installed meant that his lot currently resembled a demolition site, and was virtually uninhabitable. His legal representative questioned whether the proposed installation of the staircase was a restricted issue for the committee. I advised them that this was a matter which they could address in their submission for the final orders. I also advised that I would shorten the submission and reply periods (to 10 days and 7 days respectively) so that the final determination of the matter could be made without delay. At the time, I was unaware that the Commissioner had already sought final order submissions on 9 August 2004, and that a period of 21 days had been allowed from that date, which effectively allows four more days than I would have allowed had submissions been sought today for a period of 10 days. I do not therefore propose to interfere in that time frame. I similarly note that the applicant has been advised that she has a period of 14 days after the close of submissions within which to reply. I also do not propose to interfere in that time frame, however the applicant should be aware that no further extensions of time to reply will be allowed.

It might be that lot 13’s proposal could be referred to an extraordinary general meeting before a final order could issue from this office, in which case a final order in that regard might become unnecessary.

In light of the new material presented to me, and having regard to the Court’s findings in Bartlett, I am satisfied, contrary to my earlier view, that the Council could consider the plans of lots 12 and 14 individually, and that in order to do so, an application by each of them would be a "properly made application" if it were signed by them as the registered owners of their respective lots.

It was common ground that the only part of the present roof structure which encroaches on common property is that part relating to lot 13. I am therefore of the view that that matter could be properly considered by the body corporate when the owner of lot 13 proposes his plans for further development of his roof garden, at which time the body corporate could impose such conditions as it deemed appropriate. In this regard, I also note that the owner of lot 13 has already undertaken to ensure that any construction carried out in his lot would match that carried out by the owners of lots 12 and 14.

I am further satisfied that the owners of lots 12 and 14 should not be disadvantaged by having motion 3 delayed for consideration by the body corporate, given the substantial further delay that might occur if their architects are forced to proceed with other projects. I am also satisfied that there will be no detriment to the applicant, nor to owners generally, if motion 3 is considered at the scheduled meeting. Obviously the proposal would ultimately be considered by owners even under my earlier order. I intend therefore to vary my interim order made on 6 August 2004 by cancelling those orders relating to motion 3, and substituting a further order allowing the body corporate to consider the motion at its scheduled meeting, provided that motion 2 has been passed by the body corporate at that same meeting.

Number of Scheme:	16423
Name of Scheme:	Ellenmac
Address of Scheme:	150 Swann Road TARINGA QLD 4068

Number of Scheme:	16423
Name of Scheme:	Ellenmac
Address of Scheme:	150 Swann Road TARINGA QLD 4068

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Ellenmac [2004] QBCCMCmr 385 (6 August 2004)