Runaway Cove Villas [2004] QBCCMCmr 599 (30 November 2004)

Last Updated: 30 September 2005

REFERENCE: 0512-2004

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	25499
Name of Scheme:	Runaway Cove Villas
Address of Scheme:	76 Bayview Street RUNAWAY BAY QLD 4216

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Valda Elizabeth MARTIN, the Owner of Lot 40

I hereby order that the application for an order for permission to install aluminium pool fencing around the patio of Lot 40, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0512-2004

"Runaway Cove Villas" CTS 25499

APPLICATION

This application is by Valda Martin, the owner of Lot 40 (applicant) seeking an order against the body corporate (respondent). The applicant is seeking "permission to install unobtrusive heritage green aluminium pool fencing around her patio section to prevent access by small children and others from wandering or falling down steep decline to canal or jetty and drowning".

The applicant’s main submissions were to the effect that:

• The land from Lot 40 slopes down towards a canal.
• The applicant has relatives, including young children staying at her premises.
• A fence adjacent to her patio would prevent straying children and pets from falling into the canal and drowning.
• The fence would be similar to the fence constructed on Unit 21.
• The fence would not be visible by any other resident, other than persons using the canal.

JURISDICTION

"Runaway Cove Villas" Community Titles Scheme 25499 is under the Body Corporate and Community Management Act 1997 (Act) and the Body Corporate and Community Management (Accommodation Module) Regulation 1997 (Accommodation Module) and is a subsidiary scheme in a layered arrangement of community titles schemes constituted by a principal scheme and one other subsidiary scheme.

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)).

SUBMISSIONS

In accordance with the Act, submissions were called and a copy of the application was provided to the body corporate secretary for distribution to the owner of each lot (excluding the applicant) and the committee. A submission was received from the committee and a number of lot owners.

The committee’s main submissions were to the effect that:

• By-Law 14 relates to making external alterations to a lot.
• The committee gave consideration to the request from the applicant to install a fence on Lot 40 and decided that the fence would not be in keeping with the standard appearance of other buildings.
• The committee was also concerned that the body corporate has not approved similar fences on other lots in the scheme.
• The bodies corporate within the various schemes in the layered arrangement have required the removal of fences because of complaints about the effect on the appearance of the complex. The committee is currently requiring the fence on Lot 39 to be removed.
• The intent of the development has been to provide an open plan environment.

Submissions from other lot owners indicated that:

• The applicant should have been aware of the potential problems associated with purchasing a lot on a canal.
• A fence on the patio of Lot 40 could be clearly visible from Units 23 to 27.
• A fence of this nature would be unsightly and would affect the appearance of the complex.
• The reference to the existing fence on unit 21 should be disregarded as the body corporate requires the removal of this fence.
• A precedent would be set which could lead to unsightly fences being erected throughout the scheme.

FACTS

The by-laws for the scheme are contained in Community Management Statement 25499. The committee rely on By-Law 14 which states:
"Alterations to the exterior of Lots
Where an owner and occupier proposes to carry out work which will alter the exterior of any Lot, he shall follow the procedures set out below:

(a)	Apply in writing to the Body Corporate, outlining the proposed work and provide plans and specifications. Such plans and specifications must be of the same architectural standard as the development.
(b)	The Body Corporate, on behalf of the owner and occupier, shall submit to the Architect nominated from time to time the plans and specifications for his consent in writing. The Body Corporate will use its best endeavours to ensure that he Architect gives a decision with reasonable expedition."

The applicant applied for body corporate approval to construct the fence by letter dated 5 July 2004. This letter indicates that approval for the fence was sought on the basis of keeping a small dog on the lot.

The committee, at its meeting dated 21 July 2004 refused the applicant’s request. The minutes of this meeting state "that the request for a fence at Villa 22 be declined as it would not conform to the standard appearance of the complex". The minutes also indicate that the owners of Villa 21 have been instructed to remove a fence constructed on the lot without committee approval.

DETERMINATION

The by-laws are contained in the community management statement (CMS) for a community titles scheme. The CMS is binding on each lot owner (section 59 of the Act). A general function of the body corporate is to act reasonably in the enforcement of the CMS, including the by-laws (section 94 of the Act).

The applicant has sought permission to install a fence primarily for safety reasons as young children stay at her lot, although the request for approval referred to the keeping of a dog. The body corporate and other lot owners have opposed the installation of a fence around the patio of Lot 40.

The "Runaway Cove Villas" scheme is a subsidiary scheme in a layered arrangement of community titles schemes involving a principal scheme and another subsidiary scheme. The principal scheme consists of 2 lots and there are a total of 70 lots in the subsidiary schemes. The committee’s submission also states that there are another 20 lots in the development precinct which are not part of the layered arrangement. The committee submits that 33 of the scheme lots have canal frontage, as do all 20 of the non-scheme lots. Given the proximity of many lots to the canal and the fact that exclusive use has been granted to many individual lots of that part of the common property between the lot and the canal, it would seem that the canal would be of appeal to lot owners and prospective purchasers alike. While such a focal point has lifestyle advantages, a prospective purchaser or resident of a lot in the scheme should also give consideration to how its proximity could affect the use and enjoyment of the lot or an exclusive use area. For instance, the potential dangers of a waterway should always be considered, particularly the supervision and control of young people who may be able to access it.

A lot owner or a person proposing to become a lot owner must also give consideration to body corporate by-laws and guidelines. It is common for a development of this size and nature to establish and regulate architectural standards for lots. Such standards provide guidelines for the appearance of the complex where it is desirable to maintain a level of design uniformity, and given the importance placed on the canal, these rules may have special application for lots near the canal. By-Laws 14 and 15 of this scheme and By-Law 18 of the principal scheme, "Runaway Cove Bayside" clearly indicate that alterations to the exterior of lots and the application of architectural standards are a significant issue. It is reasonable for a body corporate to consistently apply such standard rules to protect the rights of all lot owners.

The applicant feels that the fence is only a minor change and states that it would not be visible by any other resident, other than persons using the canal. This statement is disputed as the body corporate and other owners consider that it will change the appearance of the building and the scheme. The rights of the other owners in the scheme need to be considered. The submissions to the application demonstrate that the committee and lot owners believe controlling uniformity in the appearance of the scheme is important. The body corporate has demonstrated that it has applied the by-laws consistently and without discrimination, particularly in relation to the construction of fences. The applicant has relied on the fence installed on Lot 39. It is evident that this installation was not approved by the body corporate, and that the body corporate are taking steps for its removal.

To my mind, the applicant has not demonstrated that the body corporate has unreasonably refused its approval for the construction of a fence. While the applicant may feel that the fence is only a minor change and needed to protect children or pets from the canal, the body corporate and other owners consider that it will change the appearance of the building and the scheme. The rights of the other owners in the scheme need to be considered, and in a scheme where the body corporate has consistently and reasonably applied the by-law, I am of the opinion that the application must be dismissed.