Danna Lodge [2004] QBCCMCmr 651 (17 December 2004)

Last Updated: 30 September 2005

REFERENCE: 0567-2004

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	12470
Name of Scheme:	Danna Lodge
Address of Scheme:	23 Britannia Avenue Broadbeach Qld 4218

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

Mr Ken Michael, the Owner of lot 3

I hereby order that the body corporate permit the applicant to swap the locations of the bin area and garden shed on the common property if requested by the applicant, subject to the condition that the shed, bins and paving tiles be moved by the applicant to the satisfaction of the committee at the cost of the applicant. I further order that the application for an order that improvements to common property need to be designed by a "professional person qualified in designing improvements and landscaping for apartment buildings" be dismissed. I further order that the application for an order that no improvements involving BBQ/ entertainment areas should be undertaken until such time as by laws relating to their use have been created be dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0567-2004

"Danna Lodge" CTS 12470

By application dated 5 September 2004, the applicant, who is the owner of lot 3 sought an order regarding the repositioning of the bin area on the common property of the scheme.

The application was subsequently amended to request additional orders relating to the design and installation of improvements to the common property in the following terms:

Firstly
That any improvements to the common property adjoining unit 3, including the relocation of refuse bin areas, be carried out to design plans that are either

1. Generally in accordance with the submitted preliminary design plan 197-040921-SDA by Gordon Gould Ipson, or
2. In accordance with some other design plan that

• Has been prepared by a professional person qualified in designing improvements and landscaping for apartment buildings;
• Meets landscaping and improvement criteria established in local planning schemes and building codes for apartment buildings;
• Endeavours to maintain the existing privacy and amenity of the unit immediately adjoining the common property undergoing improvement;
• Has been circulated and improved by members of the body corpoprate in accordance with trhe resolution appropriate for the value of the improvements being professionallly designed and constructed.

Secondly
If any improvements to the common property adjoining unit 3 are not to be undertaken in a professional manner as described above then the common property should be returned to the state that it has been for the last 5 years.

Following receipt of submissions, the application was further altered by seeking the following "order/ direction/ advice":

• that the bins be returned to their original position on the Western fence at the end of the driveway as the location of the bin area is dark and insecure at night and also remote from the collection point;
• No improvements should be undertaken on the rear common property until a professional design of proposed improvements and a full costing for the professional installation of the improvements has been obtained and approved by the correct resolution of the body corporate; and
• No improvements involving BBQ/ entertainment areas be undertaken on the rear common property until such time as by laws relating to their use have been presented to the full body corporate and passed by the correct resolution.

Jurisdiction

Section 227(1)(b) of the Act provides that a dispute between an owner or occupier of a lot and the body corporate, is a dispute which may be resolved under the dispute resolution provisions of the Act. As this is a dispute between lot owners and the body corporate, it is a dispute which may be resolved under the dispute resolution provisions of the Act.

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)).

The Scheme

Danna Lodge" CTS 12470 is a subdivision of 4 lots registered under a building unit plan (now known as a building format plan) and has been in existence since 1977. The regulation module applying to the scheme is the standard module.

Background

With the recent election of a new body corporate committee, a number of changes were implemented for this scheme. One change was to amend the by-laws so as to give lot owners/ occupiers exclusive use of the courtyard areas behind their units. It was also decided to tidy up the remaining common property area at the rear of the building. At an Extraordinary General Meeting held on 2 August 2004, the following resolution was passed:

That the appearance of the common area at the rear of the building be improved, by building garden beds, planting shrubs, using more attractive clotheslines, improving the appearance of and possibly moving the shed, improving the appearance of and possibly moving the bins, and creating an attractive cold water shower area.

The applicant’s courtyard abuts a "shared common property" area from which it is separated by a fence with a gate. The applicant submits that the rubbish bin area has been re-positioned on the shared common property too close to his unit. When the gate is open, the rubbish bins are visible from his courtyard, as they are when accessing the courtyard through common property. A garden shed has also been repositioned on the common property to an area in the far corner behind the rubbish bin area.

While the body corporate claims the decision to move the bins to the rear common property was approved unanimously, the applicant submits the sketch plan presented to the meeting showed the bins on a different part of the common property. The applicant has previously requested the body corporate to reverse the location of the garden shed and rubbish bin area so that the shed would act as a physical buffer to minimise impacts associated with bin usage.

In its submission to this Office, the body corporate submits that it will allow the applicant to reposition the bins and shed to his satisfaction subject to the following conditions:

• The shed, bins and paving tiles be moved by Mr Michael to the satisfaction of the committee and Mr Michael not be paid for his labour; and

• Because movement of the bins would place them next to the Eastern clothes line and other owners do not want their washing next to the bins, that Mr Michael predominately use the one next to the bin.

While the initial issue of contention was the proximity of the bins and possible nuisance to lot 3, the applicant subsequently raised a number of additional issues with this office as outlined above, and is now seeking the following "order/ direction/ advice":

• that the bins be returned to their original position on the Western fence at the end of the driveway as the location of the bin area is dark and insecure at night and also remote from the collection point;
• No improvements should be undertaken on the rear common property until a professional design of proposed improvements and a full costing for the professional installation of the improvements has been obtained and approved by the correct resolution of the body corporate; and
• No improvements involving BBQ/ entertainment areas be undertaken on the rear common property until such time as by laws relating to their use have been presented to the full body corporate and passed by the correct resolution.

The body corporate committee does not agree that improvements need to be prepared by a "professional person qualified in designing improvements and landscaping for apartment buildings". Rather, the body corporate has expressed a willingness to use the preliminary architectural plans obtained by the applicant and believes that it can comply with any relevant codes without placing additional financial burdens on a small body corporate.

Determination

The Body Corporate and Community Management Act 1997 (the Act) establishes rights and imposes obligations on participants in community titles schemes to promote the provision of flexible and contemporary communally based arrangements. One of the specified objects of the Act is "to balance the rights of individuals with the responsibility for self management as an inherent aspect of community titles schemes". Accordingly, the Act provides for democratic decision making processes combined with specific safeguards such as differing types of resolutions and in exceptional circumstances, there is scope for an adjudicator to override decisions of the body corporate.

The first matter for consideration is the decision to relocate the bins which was dealt with in general terms at the EGM held on 2 August 2004 where the following resolution was passed:

That the appearance of the common area at the rear of the building be improved, by building garden beds, planting shrubs, using more attractive clotheslines, improving the appearance of and possibly moving the shed, improving the appearance of and possibly moving the bins, and creating an attractive cold water shower area.

Having perused relevant plans and photographs presented to this office I am of the view that location of the bin area on the rear common property does not create a nuisance for lot 3. Accordingly, I do not propose to order that the bins be returned to their original position on the Western fence at the end of the driveway.

Nevertheless, the current location of the bin area does have some impact on the visual amenity of unit 3.

As a compromise, the body corporate has stated that it will allow the applicant to reposition the bins and shed to his satisfaction subject to the following conditions:

• The shed, bins and paving tiles be moved by Mr Michael to the satisfaction of the committee and Mr Michael not be paid for his labour and
• Because movement of the bins would place them next to the Eastern clothes line and other owners do not want their washing next to the bins, that Mr Michael predominately use the one next to the bin area.

I am of the view that permitting the applicant to swap the locations of the bins and garden shed is a reasonable solution to this part of the dispute. However, I would not go so far as to order the applicant to use a particular clothes line. The applicant has already expressed the view that location of the bins would not affect the use of the clothes line. In any event, this form of clothes line is relatively inexpensive and the body corporate may consider acquisition of an additional clothesline if there is insufficient hanging space apart from that space in the vicinity of the bin area.

The next matter for consideration is the applicant’s request that no improvements should be undertaken on the rear common property unless a professional design of proposed improvements and a full costing for the professional installation of the improvements has been obtained and approved by the correct resolution of the body corporate.

The body corporate committee does not agree that improvements need to be designed by a "professional person qualified in designing improvements and landscaping for apartment buildings". Rather, the body corporate has expressed a willingness to use the preliminary architectural plans obtained by the applicant and believes that it can comply with the codes without placing additional financial burdens on a small body corporate.

I believe that this is a reasonable response by the body corporate which is free to decide whether it wishes to fully or partly rely on professional design of improvements. As a very small scheme, the cost burden involved in obtaining professional landscape design could be significant, resulting in the need for a special levy.

Of course the body corporate would need to comply with section 113 of the Body Corporate and Community Management (Standard Module) Regulation 1997 which provides that improvements to common property must be authorised by a special resolution where the cost of the improvements is greater than the number of lots multiplied by $300 i.e. $1,200.

Finally, the applicant submits that no improvements involving BBQ/ entertainment areas should be undertaken on the rear common property until such time as by-laws relating to their use have been presented to the full body corporate and passed by the correct resolution.

While the current by-laws for the scheme deal with use of common property, the body corporate could well decide that more specific by-laws dealing with the use of the proposed BBQ/ entertainment areas are necessary. However, It is up to the body corporate, rather than an adjudicator to decide when such additional by-laws should be made. The procedure for making additional by-laws or amending existing by laws are set out in part 5 of the Act. Except in the case of exclusive use by laws, which require a resolution without consent, by-laws may be altered at any time by means of a new Community Management Statement (CMS) consented to by special resolution.

Conclusion

I do not propose to order that the bins be returned to their original position on the Western fence at the end of the driveway, but do propose to order that the body corporate permit the applicant to swap the locations of the bin area and garden shed on the common property at the applicants cost (if any), if requested by the applicant.

I do not propose to order that that improvements need to be designed by a "professional person qualified in designing improvements and landscaping for apartment buildings".

Nor do I propose to order that no improvements involving BBQ/ entertainment areas should be undertaken until such time as by laws relating to their use have been created.

These are matters to be determined by the body corporate and I am of the view that there are no exceptional circumstances to warrant my intervention.