Marcus Dunes [2004] QBCCMCmr 483 (15 October 2004)

Last Updated: 30 September 2005

REFERENCE: 0092-2004

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	26506
Name of Scheme:	Marcus Dunes
Address of Scheme:	512 David Low Way MARCUS BEACH QLD 4573

TAKE NOTICE that pursuant to an application made under the abovementioned Act by

Mr Michael & Mrs Elizabeth Huddart, the Owner(s) of lot 30

I hereby order that the application for an order that the body corporate be required to approve motor vehicle access to lot 30 via the beach access road is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0092-2004

"Marcus Dunes" CTS 26506

Application

Marcus Dunes Community Titles Scheme (Marcus Dunes) is a 36 lot scheme under the Body Corporate and Community Management Act 1997 (Act) and the Act’s Standard Module Regulation (Standard Module). The scheme is designed for residential purposes.

This application is by Michael and Elizabeth Huddart, owners of lot 30 (applicants) seeking orders against the body corporate (respondent). The applicants are seeking to require the body corporate to approve vehicular access to their lot via a common property road designed to allow pedestrian access to the beach rather than via the main access road at the front of their lot.

Background

Marcus Dunes consists of 36 lots subdivided under a standard format plan in an area of land adjacent to Marcus Beach. The applicants purchased their lot from the developer as vacant land and intend to build a house on it. The applicants have had the house designed and they claim that the design of their house is deemed to be approved by the developer under the conditions on which they purchased their lot. However, the design has not yet been approved by the local council.

The present dispute arises because the design of the applicants’ house assumes that the applicants can have vehicular access to their lot via the beach access road rather than via the main access road at the front of their lot. This would require the body corporate to consent to the partial removal of a fence and gardens. The body corporate would also need to consent to the construction of a driveway partially on the common property.

The body corporate has refused this consent. The reasons given include safety concerns, concerns about local government approvals, and a reluctance to alter the common property. The applicants have brought this application challenging the refusal of the body corporate to grant its consent to the proposal.

Submissions

The applicants’ main submissions were to the effect that:

• Their proposal is a better outcome aesthetically then access from the front of the residence;
• The gradient of the land does not allow for vehicular access from the front of the residence if following the present design that has a garage area underneath the proposed house;
• The proposed access, though designated as a pedestrian access, is also required to be used by local council and tradespersons’ vehicles in order to access a sewerage pumping station;
• The proposed access is not greatly different from an access road between lots 32 and 33 which is similar in scale and also designated for pedestrian access; and
• The applicants’ design is already deemed to be approved by the developer so the body corporate cannot legally object to the design.

The body corporate’s main submissions were to the effect that:

• The proposed access will be via a pedestrian access to the beach. Allowing this access will be a hazard to other owners. In particular, it will be a hazard to children standing around the adjacent shower area;
• The vast majority of residences have access from the main access road at the front of their lot. A similar access to the applicants’ lot would not have any significant detrimental aesthetic impact on the scheme;
• The access between lots 31 and 34 is quite different from the pedestrian access to the beach. The primary designation for the access between lots 31 and 34 is for vehicular traffic. Pedestrian access is provided by nature strips on each side of this driveway; and
• Any vehicular access along the pedestrian access to the beach is likely to be one vehicle per month to service the sewerage pumping station. This is quite different from allowing vehicular access to a house along that pedestrian access.

Other owners have also provided submissions. All submissions are available for the parties to inspect upon request and it is unnecessary for me to summarise these submissions here.

Decision

Reasonableness of body corporate

The applicants are seeking to overturn a decision of the body corporate committee that refused the applicants permission under the by-laws to re-landscape part of the common property to allow for the proposed driveway. This decision of the committee takes effect as a decision of the body corporate (Act, 100). The applicants would appear to also need authorisation of the body corporate in the form of a special resolution by owners authorising the proposed changes as an improvement to common property (Standard Module, 114). However, this has not been directly raised in the application.

The real question in issue is whether the decision of the committee should be overturned because it is unreasonable. The body corporate is required to act reasonably in administering the common property for the benefit of owners (Act, 94). In this instance, the applicants have provided a number of arguments that, if accepted, would indicate that the body corporate has failed to act reasonably in making its decision.

Role of adjudicator

An adjudicator is required to make an order that is just and equitable in the circumstances to resolve a dispute (Act, 276). Orders that an adjudicator may make include orders requiring the body corporate to agree to the proposal by the owner of a lot to make changes to the common property where the adjudicator is satisfied that the body corporate’s decision about the proposal is an unreasonable decision (Act, Schedule 5 - 17).

In determining whether to give the applicants the relief sought I intend to consider whether the decision of the body corporate is reasonable when considered objectively, taking into account all relevant circumstances. This does not mean that I will lightly overturn a decision of the body corporate. For example, it would not be enough to show that a different decision could have been reached or even that a different decision may have been more appropriate.

However, if the decision was shown to be unfairly discriminatory or a decision that no body corporate acting reasonably could have made then it would seem just and equitable that the decision be overturned.

Basis for decision

The body corporate committee has provided reasons for its decision. These reasons include safety considerations and show a reluctance to alter the common property to allow alternate vehicular access. I have reviewed photographs of the proposed access and I accept that the safety concerns are genuine. The beach access road is not much wider than a car, which would leave little room for pedestrians to walk. Also, it is possible to anticipate safety concerns if pedestrians are standing around the area when one of the owner’s vehicles is emerging from behind the lot fence.

The applicants have criticised the body corporate’s safety concerns on the basis that council or tradespersons’ vehicles will sometimes use the beach access road.
However, I accept the body corporate committee’s submission to the effect that occasional access by council or tradespersons’ vehicles to the sewerage pumping station is very different to use of the pedestrian beach access by a lot owner in order to access their lot.

This matter is obviously of great significance to the applicants and may result in them needing to redesign their house to allow for only having vehicular access from the main access road at the front of their lot. However, the body corporate has not done anything specific to lead the applicants to believe that the body corporate would agree to the proposed access and the proposed alterations to the common property.

On looking objectively at the decision of the body corporate, it does appear to be a decision that a body corporate, acting reasonably, could properly make.

Decision unfairly discriminatory

A decision that appears reasonable when taken in isolation may appear unreasonable in the context of other decisions made by the body corporate. The applicants’ claim that beach access road to which the applicants are being denied vehicular access is not greatly different from an access road between lots 32 and 33 that allows vehicular access.

On balance, I consider that beach access road is substantially different from the access road between lots 32 and 33. The beach access road is a thoroughfare to the beach, which can reasonably be expected to have high levels of pedestrian access. A beach shower area is located nearby and the thoroughfare consists of a roadway that would leave little room for pedestrians to be passed by a car.

The roadway between lots 32 and 33 (and between lots 31 and 34) is a dead end road that leads only to those lots. Therefore, pedestrian use of that roadway could be expected to be significantly less then pedestrian use of the beach access roadway. Further, a review of photographs and the plan indicate that this roadway is wider than the beach access road and contains a grassed area on each side upon which pedestrians can walk.

I am therefore unwilling to overturn the body corporate’s decision on the basis that the decision is unfairly discriminatory.

Deemed approval of plans

The applicants’ submit that, under the conditions of sale, the developer selling the land is deemed to have approved the design of their house through failing to raise any objections within fourteen days of the submission of their design.

However, even if this was the case, this does not mean that the applicants have an absolute right to build a house according to that design. For example, the applicants would still require local council approval and the local council would not be bound by any deemed approval of the developer. Similarly, the body corporate is not bound by any decision of the developer in this regard. The body corporate is required to administer the common property for the benefit of owners and a decision that approval of vehicular access via the pedestrian beach access road should be refused for safety reasons is not rendered unreasonable by any deemed approval of the developer.

The body corporate is not objecting to the proposed design. It is simply refusing to allow alterations to the common property to facilitate the applicants’ use of that design.

Order

On balance, I am not persuaded that the body corporate’s decision is unreasonable. The application is therefore dismissed.

For these reasons, I make the order above.