Gresham Gardens [2004] QBCCMCmr 459 (28 September 2004)

TAKE NOTICE that pursuant to an application made under the abovementioned Act by David Marsh and Fiona Marsh, the Occupiers of Lot 56:

I hereby order that subject to the following order, David Marsh and Fiona Marsh (the Occupiers of Lot 56) may erect, keep in place, and put to any reasonable use, the portable sunshade described in this application in the backyard area of Lot 56.

I further order that if the Occupiers of Lot 56 are issued with notice that the Caretaking Service Contractor for the scheme (the Caretaker) intends to carry out work to the backyard of Lot 56 (such work being properly authorised by the Body Corporate or the Owners of Lot 56):

1. The Occupiers of Lot 56 shall remove the sunshade at least 12 hours prior to the time that the work is scheduled to be carried out; and
2. The Occupiers of Lot 56 shall not return the sunshade to the backyard of Lot 56 until the Caretaker has completed the authorised work.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0106-2004

"Gresham Gardens" CTS 20316

On 23 February 2004, the Occupiers of Lot 56 (the Applicants) filed a dispute resolution application with the Commissioner for Body Corporate and Community Management under the Body Corporate and Community Management Act 1997 (the Act).

The Applicants have sought an order allowing them to keep a portable sunshade in the backyard of Lot 56.

"Gresham Gardens" is a community titles scheme under the Act and the Body Corporate and Community Management (Standard Module) Regulation 1997.

Department of Natural Resources, Mines and Energy (NRME) records show that the scheme was originally created under a group titles plan of subdivision (now known as a standard format plan) registered on 16 May 1991. The scheme land has been further subdivided by subsequent plans of re-subdivision. Currently, the scheme land consists of 54 lots and common property.

A standard community management statement was recorded for "Gresham Gardens" on 15 July 2000. However, I note that a new community management statement was recorded for the scheme on 14 September 2004. The new community management statement includes changes to the body corporate by-laws.

On 8 March 2004, I issued an interim order in response to this application. Specifically, I ordered that "pending a final determination of this application, the Occupiers of Lot 56 (the Applicants) may retain the sunshade currently installed within the backyard area of Lot 56".

On 11 March 2004, the Commissioner issued the Body Corporate with formal notice of the application, and invited the Body Corporate Committee and all owners of a lot included in the scheme to make written submissions about the application.

I have before me submissions from the Committee and the owners of a number of lots included in the scheme. The majority of submissions oppose the application.

The Commissioner has provided the Applicants with copies of the submissions made about the application. I have before me a written response from the Applicants addressing the submissions from other lot owners and the Committee.

The Commissioner has determined that this dispute should be resolved by departmental adjudication and has referred the application to me for consideration and determination.

This application concerns a dispute between the occupiers of a lot included in a community titles scheme and the body corporate for the scheme. As a result, the matter is a "dispute" within the meaning of section 227(1)(b) of the Act and may be resolved under the Act’s dispute resolution provisions.

Section 276(1) of the Act authorises adjudicators to make just and equitable orders to resolve disputes in community titles schemes, about-

The key issue in dispute is whether the Applicants have contravened the Act and the relevant community management statement by maintaining a portable sunshade in the backyard of Lot 56. As a result, the matter falls within the jurisdiction of an adjudicator.

From the material it is apparent that the Applicants have erected a portable sunshade in the backyard area of Lot 56. It appears that the backyard is entirely within the boundaries of Lot 56, and that the sunshade does not encroach upon any part of the common property for the scheme.

The Applicants have provided photographs which show that the sunshade consists of green and white material over a four posted frame. According to the Applicants, the horizontal dimensions of the sunshade are approximately 3.65 metres by 3.35 metres.

The Applicants explain that the purpose of the sunshade is to provide shade and sun-protection for their young son while he is playing in the backyard.

It is apparent that the Body Corporate objects to the presence of the sunshade. The Applicants have provided a copy of a letter dated 10 January 2004 from the Caretaking Service Contractors for the scheme indicating that the sunshade contravenes by-law 14 of the Body Corporate by-laws. While the caretaking service contractors do not restate the terms of by-law 14 in the letter, NRME records show that at that time, by-law 14 provided the following:

The Applicants have also provided a copy of a Notice of Continuing Contravention of a Body Corporate By-law stating that the Body Corporate believes that the Applicants are contravening by-law 15. At that time, by-law 15 provided the following:

In the notice the Body Corporate states that it believes the Applicants are contravening by-law 15 by erecting "an awning in the courtyard of Unit 56 without prior approval of the Body Corporate committee". The notice goes on to require the Applicants to cease the alleged contravention of by-laws.

The Applicants do not consider that they have contravened the above by-laws by keeping the sunshade in the backyard of Lot 56. In making this application, the Applicants are seeking a determination as to whether the sunshade does in fact breach the Act or the Body Corporate’s by-laws.

Before continuing, it is important to note that the Body Corporate has purported to amend and combine the above by-laws by including the following by-law (by-law 14) in the new community management statement for the scheme:

The sunshade in question is located within the boundaries of Lot 56. Therefore, it seems to me that the Occupiers of Lot 56 are free to erect, retain and use the sunshade without prior approval of the body corporate subject to any applicable by-laws.

The Act allows bodies corporate to adopt by-laws which, among other things, may provide for "the regulation of, including conditions applying to, the use and enjoyment of lots included in the scheme" (section 169(1)(b)(i) of the Act). The by-laws for a particular community titles scheme are part of the community management statement that applies to the scheme (section 168(1) of the Act). In accordance with section 59(2) of the Act, the community management statement for a scheme is binding on the body corporate for the scheme, as well as the owners and occupiers of lots included in the scheme.

Under section 94(1)(b) of the Act, bodies corporate have an obligation to "enforce the community management statement (including any by-laws for the scheme)". However, it is essential to note that in carrying out this function, bodies corporate must act reasonably (section 94(2)).

It seems to me that the first matter to be considered in determining this application is whether or not the Applicants have contravened any of the body corporate by-laws. If the Applicants are found to be contravening the by-laws by erecting the sunshade, it is necessary for me to consider whether the Body Corporate has acted reasonably in the way that it has administered and enforced the relevant by-law in this instance.

In this case, the Body Corporate (including via its representatives) has claimed that the Applicants have contravened two of the previous by-laws for the scheme. These by-laws restricted structural alterations and the installation of blinds. I will consider these two by-laws separately. However, it is important to note that these by-laws have been amended since the commencement of this dispute. Presumably, the Body Corporate considers that the Applicants are also in breach of the newly drafted by-law 14.

The Act does allow bodies corporate to make amendments and alterations to by-laws. Amended by-laws become binding on owners and occupiers upon the recording of a new community management statement incorporating the changes to the by-laws. However, I consider that in discharging its obligation to enforce by-laws reasonably, a body corporate must take into account the fact that owners and occupiers may have made decisions and taken actions in good faith and on the understanding of the terms of previous by-laws. It is not the case that a change in by-laws will automatically mean that an owner or occupier loses the right to do something that they were previously entitled to do under the terms of previous by-laws. Of course, this is a matter that must be considered on a case by case basis.

As a result, I intend to consider whether the Applicants have breached the previous by-laws as referred to by the Body Corporate in its dealings with the Applicants and whether the Applicants have breached by-law 14 as currently drafted. If I find that the Applicants are in breach of any of these by-laws, it will then be necessary for me to assess whether the Body Corporate has been reasonable in its approach to enforcing the relevant by-law.

It seems to me that a "structural alteration" to a unit would normally involve some form of improvement, change or adjustment that directly pertained to the structure of a building or other construction. Without purporting to create an exhaustive list, "structural alterations" could include adjustments to the essential supporting framework of a building, or perhaps significant improvements to fundamental aspects of a building such as brickwork, roofing or decking. Normally, I would also expect that structural alterations would be of a relatively long term, if not permanent nature. I would not normally expect "structural alterations" to be readily removable.

I do not see how the sunshade in question could be reasonably described as a structural alteration to a unit. It does not form any alteration (minor or otherwise) to the existing building on Lot 56. In addition, I do not see how the sunshade could be reasonably described as any form of significant additional building or construction on Lot 56. Unlike most "structural alterations", the sunshade is of a temporary and highly portable nature.

To my mind, the sunshade shares similar characteristics to common outdoor settings which include a covering umbrella, which I also do not consider could reasonably be described as a structural alteration to a unit.

For all of these reasons, I do not consider that the sunshade is a structural alteration and as a result, I do not consider that the above by-law is applicable.

In its dealings with the Applicants, the Body Corporate also made reference to the then by-law 15, which at the time provided the following:

The Body Corporate considers that the sunshade is an "awning" and as a result, is subject to the above by-law. In its submission that Body Corporate states that the Oxford Dictionary defines the term "awning" to include "canvas placed on a frame for protection from sun and rain".

This is a very broad definition of the term "awning", and in my opinion could include a number of items that go well beyond what most people would consider to be an awning. For example, items described as "canvas placed on a frame for protection from sun and rain" could include umbrellas and tents. Few people would describe these items as "awnings".

I agree that awnings normally consist of canvass or other material placed over a frame and are usually used for protection from the weather. However, it seems to me that "awnings" as they are more commonly known are generally attached to and extend from a building. Often, awnings are installed above windows and doors. The sunshade in question is not attached to any part of the building.

Furthermore, it seems to me that the inclusion of the term "awning" in a by-law that also refers to "blinds" suggests that the by-law was intended to regulate window and other coverings that are attached to the building itself.

For the above reasons, I am not satisfied that the sunshade is an "awning" which would be regulated by the above by-law.

Blinds, awnings, sails and like constructions (including any alteration to gas, water, electrical installations or work for the purpose of enclosing in any manner whatsoever any external part of a unit and including the installation of an air conditioning system) without the prior permission in writing of the Committee. The colour of any approved structural alterations must be in keeping with the existing colour scheme of the complex."

As I alluded to previously, even if I found that this by-law restricted the ability of the Applicants to keep the sunshade in their backyard, it would not necessarily follow that it would be reasonable for the Body Corporate to require the removal of the sunshade where the Applicants have installed the item in good faith and in accordance with previously applicable by-laws.

However, in any event, I am not convinced that the terms of this by-law encompass the sunshade in question. For reasons outlined above, it seems to me that the use of the phrase "structural alterations" in the title indicates that the by-law is intended to regulate improvements, additions or changes to the buildings already located within the lot, and to regulate the construction of significant new structures on the lot.

Furthermore, I am not satisfied that the sunshade can be properly described as a blind, awning, sail or a like construction. I have already discussed my views on the nature of blinds and awnings. In addition, it seems to me that sails, particularly in the context of this by-law which refers to structural alterations, would normally be attached to buildings or alternatively would be supported by significant, permanent structures constructed on the lot.

In conclusion, I do not consider that this by-law prevents the Applicants from retaining their sunshade.

For the reasons outlined above, I do not consider that any of the by-laws referred to restrict the Applicants from keeping the sunshade described in their backyard. As a result, I have made a conditional order allowing the Applicants to keep the sunshade in the backyard of Lot 56.

However, even if the by-laws were applicable, in all of the circumstances I am not convinced that the Body Corporate would be acting reasonably by refusing to allow the Applicants to erect the described sunshade in its current location. I will make some further brief comments on this issue below.

It is obvious that the question of whether or not the sunshade detracts from the appearance of the scheme is largely subjective. However, in my opinion and from the photographs presented to me, I would make the following observations. Firstly, the sunshade appears to be neatly presented and well maintained. Secondly, I note that the backyard of Lot 56 is fully fenced. Therefore, while I have no doubt that the sunshade can be seen from other lots, it is strongly arguable that the sunshade has not become a highly visible aspect of the scheme land. Thirdly, I do not see that this type of sunshade is a particularly unusual item to erect in a backyard.

For all of these reasons, I am not entirely convinced by the argument that the sunshade significantly detracts from the appearance of the scheme. However, I do accept that other owners have particular views on the matter.

Turning to the second concern, I do consider that it is entirely reasonable and appropriate for bodies corporate to endeavour to treat all owners equally when it comes to matters such as the granting of requests for body corporate approval of proposed improvements to lots. However, if a by-law gives a committee or body corporate discretion to grant approval for particular requests, committees and bodies corporate must be careful not to adopt "blanket" approaches to these matters, simply for fear of creating a precedent. It is important that bodies corporate and committees in these circumstances give full and proper consideration to the merits of each individual request, balanced with the goal of treating all owners and occupiers equally.

In this case, there are good and obvious reasons for the Applicants to be able to have a portable sunshade in their backyard, especially their desire to provide some protection from the sun for their young child while he is in the backyard. If the by-laws were applicable, in my view the Body Corporate would be bound to give serious consideration to the needs of the Applicants in deciding whether it was reasonable to grant approval for the sunshade. A desire to avoid creating precedents does not automatically override these types of individual considerations.

For all of the reasons outlined above, I consider that it is just and equitable for the Applicants to be permitted to erect, retain, and put to any reasonable use, the sunshade described in this application. I have issued a final order to this effect. However, I have also issued an order requiring the Applicants to remove the sunshade prior to any scheduled times for the Caretaking Service Contractor for the scheme to carry out authorised work to the backyard area of Lot 56.

Number of Scheme:	20316
Name of Scheme:	Gresham Gardens
Address of Scheme:	30 Weller Road Tarragindi, Queensland

(a)	claimed or anticipated contraventions of the Act or a scheme’s community management statement; or
(b)	the exercise of rights or powers, or the performance of duties, under the Act or a scheme’s community management statement; or
(c)	claimed or anticipated contractual matters about the engagement of a person as a body corporate manager or service contractor for a scheme, or the authorisation of a person as a letting agent for a scheme.

•	The sunshade detracts from the appearance of the scheme land; and
•	If the Applicants are permitted to retain the sunshade, other owners and occupiers may also install sunshades which will further detract from the appearance of the scheme.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Gresham Gardens [2004] QBCCMCmr 459 (28 September 2004)