19th Avenue [2004] QBCCMCmr 529 (3 November 2004)

Number of Scheme:	6625
Name of Scheme:	19th Avenue
Address of Scheme:	2 - 10 19th Avenue PALM BEACH QLD 4221

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

I hereby order that R St J Brown & Associates Pty Ltd, the owner of Lot 6, must –

a. immediately remove all furniture and any other personal property from the common property slab area adjacent to the lot eastern boundary; and

b. within four (4) months of the date of this order, remove the door constructed in the eastern boundary wall and restore the previous window, or a near identical window, in its stead.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0360-2004

"19th Avenue" CTS 6625

The applicants, R St J Brown & Associates Pty Ltd (through R St J Brown, Director) of Lot 6, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 ("the Act") -

(Adjudicator’ Note: Order is sought in reference to the door installed by the applicant accessing the slab area of common property which forms the covering for the restaurant entrance below).

JURISDICTION:
This is a dispute between an owner (the applicant owner of Lot 6) and the body corporate (the respondent) concerning a notice from the body corporate committee requiring a door installed to provide access to a slab area of common property adjacent to the lot, be removed and the window it replaced, be restored. This is a matter that falls within the dispute resolution provisions of the legislation (see sections 227, 228 and 276 of the Act) and therefore may be determined by an adjudicator.

General powers of an Adjudicator in making an order:
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 –

An order may require a person to act, or prohibit a person from acting, in a way stated in the order (section 276(2) of the Act). An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 284(1) of the Act).

APPLICATION AND SUBMISSIONS:
Under section 243 of the Act, a copy of the application was provided to the following parties: the respondent body corporate (committee); and to all other owners (first 3 pages only with right to obtain full application from secretary), with an invitation to each to respond to the matter of dispute raised in the application. The respondent body corporate committee made a submission opposing the application. Individual submissions were received from: K Partridge of Lot 70; P Beard of Lot 39; and a joint submission was received from owners representing 19 lots which included photographs of the relevant area – these three submissions also opposed the application. The applicant viewed the submissions and subsequently lodged a written reply to them (see sections 244 and 246 of the Act).

The brief facts of the matters are as follows.

The applicant company states that around 3 years ago, after consulting the Resident Letting Manager, it subsequently removed a full-length window and replaced it with a glass and metal door, giving occupants of the lot access to the adjacent common property slab which forms a cover over the entrance to the restaurant below. The applicant states that it installed the door for two reasons: to provide ventilation on hot days; and to allow easy removal of tennis balls that are accidentally hit onto the slab area from the nearby courts. It also submits that the door is similar to the window it replaced and the external appearance of the change is therefore minor.

The body corporate and other owners have responded with the following information -

In response, the applicant states that the submissions wrongly relate to use of the slab area, saying the matter in dispute is the door itself, not the access it provides to the slab area. The appearance of the door is very similar to the window it replaced and that of nearby windows, and therefore does not affect the external appearance of the building.

The applicant has forwarded an opinion by T. Tan, Engineer, of Rymark Engineering Pty Ltd, that "based on our inspection and in-house computation, I am of the opinion that the as is (sic) would be safe to be used as a private balcony" (though he does recommend a concrete up-stand be constructed to strengthen the edges).

The applicant has also provided a series of photographs, one of which shows a railing constructed enclosing the adjacent common property slab area for "Unit 12D". The applicant believes the railings are not part of the original construction. Unit 14A may also have a similar railing enclosing its slab but no similar photograph was supplied.

I would point out in respect to this "reply to submissions" by the applicant, that it includes fresh evidence in both submitting the engineer’s opinion and information that Unit 12D (and perhaps Unit 14A) has constructed railings enclosing slab areas of common property. That information should have been put in the application so the other parties could respond. Were it not clear to me that there are clear grounds to dismiss the application, I would have sought further submissions on the new material, or alternatively disregarded the reply.

DETERMINATION:
Titling records show that "19^th Avenue" was registered as a building units plan (now termed a building format plan) on 5 September 1988 and comprises 78 lots. The scheme is regulated by the Body Corporate and Community Management (Standard Module) Regulation 1997 ("the Standard Module").

I have viewed the registered plan for this scheme and it shows that both the immediately adjacent slab and the additional slab, the "slab area", are common property. The registered plan has not been modified to show the added area though whether or not it has been properly approved is not my concern here; it is sufficient that I am satisfied it is common property.

The applicant’s argument that the issue here is the door itself and not the use of the adjacent common property slab, is clearly wrong. The only possible reason for replacing the window with a door is to provide ready access to the adjacent area and therefore that use is at the core of the dispute. Further, the fact that the applicant has placed deck furniture on the area, and uses it, shows that the use is a continuous one and it is not in the nature of, for example, an emergency exit in case of fire.

The door is located in the boundary structure between Lot 6 and the common property, and is the maintenance responsibility of the body corporate under section 109(2(a)(ii) of the Standard Module. The applicant needed to obtain the approval of the body corporate before making the change, whether the window was in good condition or not.

The main point for determination, though, is the character of the use the applicant has been making of the relevant area, and what type of approval is necessary to lawfully continue that use.

In brief, the law concerning an owner’s use of common property is as follows.

Section 35 of the Act provides that owners own the common property as tenants in common, which gives each owner a general proprietary right to use the common property. Sections 94 and 152 of the Act then provide that it is the body corporate which administers, manages and controls the common property, though it must do so reasonably and for the benefit of owners. Each owner’s right to use the common property is regulated by the legislation (the Act and the relevant regulations, here the Standard Module regulations), and any valid and relevant by-laws, through the body corporate. The basic rule governing an owner’s use of common property is contained in section 167 of the Act which prohibits an owner from using, or permitting another from using, their lot or the common property in such a way that, amongst other things, interferes unreasonably with another’s use or enjoyment of their lot or the common property.

Whereas on the authority of a special resolution under section 114 of the Standard Module an owner can effect an improvement on common property for the benefit of the owner’s lot, this only applies where the use is incidental, as for example in the case of an air-conditioner positioned in a window where it overhangs common property.

Where the owner wishes to use part of the common property as if it were their own lot, for example by extending their lot to include a carport, a room or a deck, then this is beyond a mere improvement and is an alienation of the relevant area of common property. In the matter of Platt v. Ciriello (1997) QCA 33 (14 March 1997), the Court of Appeal found that the primary test for determining an owner’s use of common property is that of "unreasonable interference" (see earlier reference to section 167 of the Act). That is, an owner may exercise his general proprietary right to use common property so long as it does not interfere unreasonably with another’s use of their lot or the common property. This interference may not just be physical, it may, for example, include a consideration of the effect the use has on the appearance and aesthetics of the scheme generally. Also, even where the use may not be causing an unreasonable interference, the "exclusive use" test may apply in the particular circumstances to require the owner to only hold that use under an exclusive use by-law. That use was characterised by Ambrose J as being "the sort of exclusive use which a proprietor makes of his lot".

While this is only a brief overview of the case, it is sufficient to show that the use of the slab as a sun-deck or balcony, even though the use neither interferes unreasonably with another’s use of the area nor adversely effects the appearance or aesthetics of the scheme (and I am not giving any opinion on this), is a use of common property that requires the authority of an exclusive use by-law. That is, the use of the relevant area of common property is that of exclusive use by the occupiers of Lot 6 as if it were an extension of the lot.

Accordingly, the applicant requires a resolution without dissent under the requirements of section 171 of the Act. Motion 18 put by the applicant to the 2003 annual general meeting (see above) was a motion seeking such a resolution. It failed with 51 owners voting against it. An adjudicator has power to overturn the dissent of a body corporate and order a body corporate to give effect to such a motion (see clause 10 of Schedule 5 to the Act). However, such a discretionary power is not exercised lightly by an adjudicator and in the circumstances here where the proposed use is not necessary to overcome some inadequacy or unfairness but merely to provide additional leisure area to an owner, and, more particularly, the proposal was voted down by a large majority of owners, I do not hesitate to refuse to exercise that discretion.

The applicant has raised the instance of railings being constructed on the outside slab area of Unit 12D and perhaps Unit 14A (I do not know the lot numbers for these lots). I am not aware of the circumstances of these instances and what approvals were given. While they do not influence my decision to this application, the body corporate should investigate as necessary.

While the applicant may undertake not to use the door to access the slab area either at all or only to retrieve tennis balls, to leave the door in place would be, apart from ratifying an unlawful improvement, an unsatisfactory resolution of the dispute as it leaves in place the means for unauthorised use of the area whether by current occupants or invitees or future such persons. The proper order for me to make is for the door to be replaced by the previous window, if recoverable, or a similar one. My order is to allow the owner to do so at his expense within a reasonable period, failing which the body corporate may exercise it rights under section 121(1)(d) of the Act.

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 this 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.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

19th Avenue [2004] QBCCMCmr 529 (3 November 2004)