Kavel Close [2005] QBCCMCmr 108 (28 February 2005)

Number of Scheme:	18158
Name of Scheme:	Kavel Close
Address of Scheme:	21 Campbell Street Torquay Qld 4655

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

I hereby order that the body corporate is deemed to have consented to the installation of the extension to the patio of lot 2 subject to the following condition:
That the owner of lot 2 engage a suitably qualified person to certify that the structure complies with all applicable building regulations.

I further order that the cost of obtaining such certification is to be borne by the owner of lot 2.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0548-2004

"Kavel Close" CTS 18158

The scheme
The scheme is a subdivision of 4 lots registered under a building unit plan of subdivision, now known as a building format plan. The Standard Regulation Module applies to this scheme.

Application

The applicant, is the Body Corporate for this scheme and is seeking the following orders of an adjudicator:

With reference to the attached contravention notices, we wish to have the body corporate rules adhered to.

Jurisdiction

This dispute was originally referred to the Wide Bay Dispute Resolution Centre operated by the Department of Justice and Attorney-General with a view to resolution of this dispute by way of informal mediation. The Wide Bay Dispute Resolution Centre was unable to contact the applicants and in any event, Mr Mauric indicated that he was not willing to participate in mediation. Consequently this dispute has been referred to me for mediation.

Section 227(1)(b) of the Body Corporate and Community Management Act 1997 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.

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)).

Background
The applicant has issued to the owner of lot 2 a number of "Notices of Continuing Contravention of a Body Corporate By-Law" relating to:

The applicant submits that the garden has been changed over the last 2 years and "is an issue of conformity rather than appearance with exception of the lattice and the pines that will certainly grow and create an overall visual distraction in the future".

It is advised that the hose reel was erected on the porch of lot 2 in 2003/ 2004.

It is further advised by the applicant that the extension to the rear patio of unit 2 has been in place for some time and neither body corporate nor local authority approval has been obtained for the structure.

Submissions

The owner of unit 2, Mr. Mauric, submits that he was previously the Chairman of this Body Corporate and since making complaints regarding the behaviour of short-term holiday tenants has suffered retribution from the new Body Corporate.

He also raises certain matters regarding parking in common areas which I have dealt with in dispute application 479-2004.

In relation to the hose holder, Mr. Mauric submits that it is a tidy way to store the hose which he uses every day and is attached to the wall with 3mm screws, and in any event, is situated on his porch which is not common property.

The owner of lot 2 also submits that his patio is not an "outdoor kitchen" but a barbeque area. Plans provided by the applicant show that the structure consists of a lean- to "laserlite" roof spanning an area of 1.6 metres out from the original patio. It contains a brick barbeque and portable gas stove. It is also submitted that the structure has been in place for some 10 years.

The owner of lot 2 advises that it is a long standing practice for each lot owner to look after the garden bed outside their lot. The building is close to the beach and many plants cannot survive in sand. When the original plants died he replaced them with plants of a different type.

He points out that some of the gardens, including the gardens outside lot 4, are unhealthy and refutes the claim that this is due to the gardens being tampered with at the end of September, as the photographs provided to this office on 23 July 2004 show the gardens were in a poor state at that time.

Determination

The Body Corporate and Community Management Act 1997 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". However, it is recognised that it is not always possible for owners to achieve consensus. Accordingly I have sought to make an order that is just and equitable and hope that this, together with the appointment of a Body Corporate Manager and the clarification of parking rights, puts an end to disputes within this scheme.

Mounting of Hose-Holder on Wall Outside Unit

I have taken the opportunity to examine the plan for this scheme (BUP 100445) which was registered with the titles office on 26 July 1994. On this plan, I note that on "Level A" (ground level) each lot consists of 90 square metres including the front porch and rear patio. On "Level B" each lot consists of 79 square metres including the balcony area which is directly above the front porch. What this means is that the wall on which is hose- holder has been placed, is not common property, but rather is within the confines of lot 2.

In the case of a Building Unit Plan most of the external walls are common property, but porches, balconies and patios are often located on individual titles. As the hose-holder is located within lot 2, I can see no basis upon which the installation of the hose-holder involves a breach of the by-laws. Indeed it is arguable that use of a hose-holder is desirable to ensure that a hose is not left lying on the ground, thereby creating a trip hazard.

Construction of "outside kitchen"

From my perusal of the plans and by-laws I note that the extension to the patio is located on common property over which lot 2 has exclusive use. From my perusal of the plans I note that the structure is similar to an open pergola area with the exception that it has a roof made of a polycarbonate product known as "laserlite".

While not expressly mentioned in the Notices of Contravention, I note that by-law 13 provides as follows:
A proprietor or occupier of a lot shall not make any structural alterations to any lot (including any alteration to gas, water or electrical installations) without the prior written consent of the body corporate.

It is also noted that by-law 5 contains certain restrictions on damage to, or alteration of common property.

However, it should be noted that the body corporate is required to act reasonably in enforcing the by-laws (Act 94(2)). For example, there may have been acquiescence on the part of the body corporate such as where the body corporate has failed to act on the matter for some time causing the person in question to assume some implicit approval.

The owner of lot 2 submits that this extension to his patio has been in place for some 10 years and this has not been disputed by the applicant. In the present circumstances, I believe that the principle of acquiescence is applicable to estop the body corporate from requiring removal of this extension, provided that the approval of the local authority has been obtained. The long period of time which has elapsed before the body corporate sought to take action in respect of the alleged breach of by-laws is such that it would be unreasonable to now allow an action for its removal to be contemplated.

Please note that I am referring only to the extension to the rear patio which extends onto the exclusive use area attached to lot 2. I am unable to make a ruling on the fibre cement and ceramic tiles affixed to the fence as no specific order has been sought in respect of this, and in any event, I have insufficient evidence upon which to make a determination.

Planting of Pencil Pines, Flowering Plants and Trellis in Garden

On 23 July 2004, as part of dispute resolution application 479-2004, this Office received in excess of 30 photographs depicting the grounds and gardens of the scheme. The owner of lot 2 advises that it is a long standing practice for each lot owner to look after the garden bed outside their lot. When the original plants died, he replaced them with plants of a different type. I note from the photographs that the garden bed outside lot 2 is healthy and includes 2 palms, 2 conifers (pencil pines), a climbing rose and numerous trumpet-shaped flowers which appear to be hippeastrums. As at 21 July 2004, some of the other garden beds in the grounds appeared quite healthy while others were in a poor condition, possibly due to lack of water, having regard to the condition of the adjoining lawn areas.

The alleged infringement of by-laws is that

Garden bed has been changed to pencil pines, roses & trellis- original garden is tropical in appearance.

By-law 4 – Damage to lawns etc. on common property.
4. A proprietor or occupier of a lot shall not
(a) Damage any lawn, garden, tree, shrub, plant or flower being part or situated upon common property; or
(b) except with the consent in writing of the body corporate, use for his own purposes as a garden any portion of the common property.

I have not been provided with any evidence that the owner of lot 2 has damaged any lawn, garden, tree, shrub or plant. The photographs show that the two original palm trees are still growing. The owner of lot 2 advises that the pines, roses and flowering plants were planted by him to replace plants which had died. If the by-law stipulated that only "tropical" plants could be planted, then the situation may have been slightly different.

Similarly, it is clear that the garden bed in question has always been dedicated as a garden bed with a perimeter constructed by the developer.

The applicant has not demonstrated how the owner of lot 2 has breached the relevant by-law or continues to breach the by-law. Consequently, I am unable to make an order in this regard.
However, I would point out that the garden area is common property and as such, the body corporate may resolve that changes be made to the gardens.

Order

Accordingly, the only order which I make is that the body corporate is deemed to have consented to the installation of the extension to the patio of lot 2 subject to the following condition:
That the owner of lot 2 engage a suitably qualified person to certify that the structure complies with all applicable building regulations. I further order that the cost of obtaining such certification is to be borne by the owner of lot 2.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Kavel Close [2005] QBCCMCmr 108 (28 February 2005)