Elllenmac [2004] QBCCMCmr 672 (16 August 2004)

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Irene June Lenneberg, the owner of lot 11

I hereby order that the interim order made on 6 August 2004 shall be varied by the cancellation of the following orders:

• that the body corporate shall not consider motion 3 on the agenda of the extraordinary general meeting scheduled for 16 August 2004.
• that the body corporate shall convene a further extraordinary general meeting at which it shall consider appropriate motions for the entirety of the proposed additional work on the roof by all three lots involved, namely lots 12, 13 and 14.
• that the owners of lots 12, 13 and 14 shall not undertake any work contemplated by them, or any of them, on levels F and G of the scheme until further order, or until that work has been authorised by the body corporate in general meeting, whichever is the earlier.

I further order that provided motion 2 on the agenda of the extraordinary general meeting scheduled for 16 August 2004 is passed by the body corporate, then the body corporate may consider motion 3 on the agenda of the same meeting, however, I direct that neither the body corporate nor the body corporate committee nor any member of the body corporate shall make a determination as to whether the plans referred to in motion 3 comply with the Integrated Planning Act 1997 or with Brisbane City Council regulations as that is not a matter for the body corporate.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0502-2004A

"Ellenmac" CTS 16423

INTERIM ORDER MADE ON 6 AUGUST 2004:

On 6 August 2004, I made the following interim orders:

I hereby order that the body corporate committee shall not consider the motion adjourned for consideration to 6 August 2004 relating to the proposed works within lot 13, as that matter is a restricted issue for the committee.

I further order that the owner of lot 13 shall, until further order, immediately cease any work being carried out within the lot for which body corporate approval is required, and in particular shall ensure that no further attempt is made to penetrate any portion of the slab within the lot between levels F and G (roof deck).

I further order that the body corporate shall not consider motion 3 on the agenda of the extraordinary general meeting scheduled for 16 August 2004.

I further order that the body corporate shall convene a further extraordinary general meeting at which it shall consider appropriate motions for the entirety of the proposed additional work on the roof by all three lots involved, namely lots 12, 13 and 14.

I further order that the owners of lots 12, 13 and 14 shall not undertake any work contemplated by them, or any of them, on levels F and G of the scheme until further order, or until that work has been authorised by the body corporate in general meeting, whichever is the earlier.

JURISDICTION:

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

(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)).

Section 279 of the Act provides:

FURTHER ORDER SOUGHT:

On 12 August 2004 I received a submission from Mullins Lawyers (Mullins), acting on behalf of the owners of lots 12 and 14. Essentially, Mullins had been instructed to make an urgent interlocutory application seeking cancellation or variation of parts of the interim order, in light of the fact that a general meeting of owners is to be conducted on 16 August 2004. In their submission, Mullins provided further background to the dispute, and challenged many of the claims made by the applicant, noting especially the lack of particularity in relation to those claims.

FURTHER BACKGROUND:

In relation to my finding in my interim order that the Brisbane City Council "approval would undoubtedly be based on the project as a whole", Mullins referred me to the decision of Bartlett & Anor v Brisbane City Council [2003] QPEC 1 (Bartlett). Mullins pointed out that the roof deck is divided into four distinct areas, with the three main areas forming part of the individual freehold titles of lots 12, 13 and 14. Mullins noted that whilst the owners of lots 12 and 14 had used the same architect to prepare the plans for the additional works to the roof gardens of their respective lots so as to ensure a consistent visual appearance, there is no requirement in the by-laws or the Body Corporate and Community Management Act 1997 that the proposed works be carried out as a single project or that a single approval for the works be obtained from the body corporate.

Mullins also stated that the effect of the interim order would be to delay consideration by the body corporate of the proposal by lots 12 and 14, and that there would be no benefit granted to the applicant nor any other owner by virtue of the interim order, particularly as the body corporate committee had already decided that the proposal should be considered by owners in general meeting. I note in this regard that the applicant is a member of the committee, and at a committee meeting held on 30 June 2004 voted in favour of the proposal being considered by owners in general meeting.

Mullins also advised that the architects overseeing the proposed project has informed the owners of lot 14 that if the proposal cannot be considered by owners on 16 August 2004 then the architects will be committed to other unrelated works, thereby preventing them from attending to the proposed project for some months. Mullins attached a copy of a letter dated 10 August 2004 from Dennis Nicholl & Associates Architects to the owner of lot 14 in confirmation.

Mullins concluded that the owners of lots 12 and 14 should not be subjected to such detriment when that could be avoided by allowing motion 3 to be properly considered at the scheduled meeting.

A submission was also received from the owner of lot 14 in which further background material was provided. The submission pointed out that most of the application was concerned with matters which are properly within the jurisdiction of the Integrated Planning Act 1997, and are therefore not matters for the applicant, the body corporate or the office of the Commissioner. The submission reiterated that no work would commence with respect to lots 12 and 14 until all necessary body corporate and Brisbane City Council approvals had been obtained.

DETERMINATION:

On 16 August 2004 I conducted a teleconference with the applicant, the owners of lots 12 and 14 and their legal representatives and the owner of lot 13 and his legal representative. Discussion took place concerning the matter generally. I was also advised that the existing roof extends over common property only near lot 13, and that the roof over lots 12 and 14 is wholly within the boundaries of lots 12 and 14.

In addition, I was advised that a page of the architect’s report was missing from the material circulated to owners for the scheduled extraordinary general meeting, although the complete report was provided to committee members when they considered the proposal at the committee meeting held on 30 June 2004. The fascia treatment sketch referred to on page 4 of the architect’s report, however, has apparently not been provided to anyone, including the owners of lots 12 and 14. The owner of lot 14 advised me that he would ensure that the sketch and the missing page from the report were available for owners attending the meeting to peruse.

The owners of lots 12 and 14 also confirmed that if I were to cancel my earlier interim order and allow motion 3 to be considered at the scheduled meeting, it would only be considered if the body corporate had passed motion 2.

The applicant stated that she had only been provided with the submissions by Mullins and by the owner of lot 14 on Friday afternoon (13 August 2004) and even then she had not received all pages (a separate note by a member of the Commissioner’s staff which came to my notice after the teleconference confirmed that the applicant had telephoned at 5.25pm on Friday 13 August 2004 advising that her fax machine had run out of paper). On that basis the applicant contended that the interim order should not be cancelled or varied as she had not been given sufficient opportunity to respond to the new material. The applicant confirmed, however, that she had been present at the committee meeting held on 30 June 2004, and that she had voted at that meeting in favour of submitting the proposal of lots 12 and 14 to a general meeting.

The owner of lot 13 expressed his concern that the interim order preventing his new staircase being installed meant that his lot currently resembled a demolition site, and was virtually uninhabitable. His legal representative questioned whether the proposed installation of the staircase was a restricted issue for the committee. I advised them that this was a matter which they could address in their submission for the final orders. I also advised that I would shorten the submission and reply periods (to 10 days and 7 days respectively) so that the final determination of the matter could be made without delay. At the time, I was unaware that the Commissioner had already sought final order submissions on 9 August 2004, and that a period of 21 days had been allowed from that date, which effectively allows four more days than I would have allowed had submissions been sought today for a period of 10 days. I do not therefore propose to interfere in that time frame. I similarly note that the applicant has been advised that she has a period of 14 days after the close of submissions within which to reply. I also do not propose to interfere in that time frame, however the applicant should be aware that no further extensions of time to reply will be allowed.

It might be that lot 13’s proposal could be referred to an extraordinary general meeting before a final order could issue from this office, in which case a final order in that regard might become unnecessary.

In light of the new material presented to me, and having regard to the Court’s findings in Bartlett, I am satisfied, contrary to my earlier view, that the Council could consider the plans of lots 12 and 14 individually, and that in order to do so, an application by each of them would be a "properly made application" if it were signed by them as the registered owners of their respective lots.

It was common ground that the only part of the present roof structure which encroaches on common property is that part relating to lot 13. I am therefore of the view that that matter could be properly considered by the body corporate when the owner of lot 13 proposes his plans for further development of his roof garden, at which time the body corporate could impose such conditions as it deemed appropriate. In this regard, I also note that the owner of lot 13 has already undertaken to ensure that any construction carried out in his lot would match that carried out by the owners of lots 12 and 14.

I am further satisfied that the owners of lots 12 and 14 should not be disadvantaged by having motion 3 delayed for consideration by the body corporate, given the substantial further delay that might occur if their architects are forced to proceed with other projects. I am also satisfied that there will be no detriment to the applicant, nor to owners generally, if motion 3 is considered at the scheduled meeting. Obviously the proposal would ultimately be considered by owners even under my earlier order. I intend therefore to vary my interim order made on 6 August 2004 by cancelling those orders relating to motion 3, and substituting a further order allowing the body corporate to consider the motion at its scheduled meeting, provided that motion 2 has been passed by the body corporate at that same meeting.

Number of Scheme:	16423
Name of Scheme:	Ellenmac
Address of Scheme:	150 Swann Road TARINGA QLD 4068

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Elllenmac [2004] QBCCMCmr 672 (16 August 2004)