Ellenmac [2005] QBCCMCmr 133 (7 March 2005)

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

I hereby order that the application for an order that the unapproved roof not be approved as it is, and that it be pulled down, is dismissed.

I further order that the owners of lots 12 and 14 shall within 1 month of the date of this order replace the solid core doors leading to their respective roof deck areas with a grille type door.

I further order that within 1 month of the date of this order the condensing unit servicing lot 9 shall be repositioned so as to allow the air produced during its operation to be expelled towards the grille door leading into lot 12.

I further order that the owners of lots 12, 13 and 14 shall bear the cost of the modifications ordered above in equal shares.

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

"Ellenmac" CTS 16423

ORDER SOUGHT

The applicant, Irene June Lenneberg, has sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) as follows:

That the unapproved roof not be approved as it is, and that it be pulled down

JURISDICTION

The application evidences a dispute between an owner of a lot included in a community titles scheme and the body corporate for that scheme, as well as between that owner and other owners of lots included in the scheme (sections 227(1)(a) and 227(1)(b) 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)).

SCHEME DETAILS

Ellenmac registered as a building units plan (now known as a building format plan) on 4 January 1996. The scheme comprises 14 residential lots and common property, and is regulated by the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module).

BACKGROUND

This dispute centres on the roof which has been constructed on Level G (the roof deck) of the scheme building. The Development Approval was given by Council in October 2000, subject to certain conditions. One of those conditions was that the roof was not to encroach on the common property because the Development Application had only been signed by the three owners concerned and was not endorsed with the consent of the body corporate. The construction of the roof was first considered by the body corporate at an extraordinary general meeting held on 13 August 2002. Prior to the meeting, owners had been provided with a copy of an artist’s impression of the roof, together with Council approved plans. The body corporate resolved by ordinary resolution that the owners of lots 12, 13 and 14, at their expense, could construct "a uniform roof over the top decks of their said units in accordance with the Brisbane City Council approved plans".

When the roof was constructed its appearance differed from the approved plans, and it also was built over the area of common property near the central stairs leading up from level F. This allegedly caused considerable disquiet amongst owners.
At the annual general meeting held on 28 April 2004 the body corporate resolved that "the owners of lots 12, 13 and 14 engage an independent architect and engineer to modify the present structure of the roof to comply with original plans and the artist impression which was approved by the owners and the Development and Regulatory Services of the Brisbane City Council".

On 30 June 2004 the body corporate committee resolved to submit a motion to an extraordinary general meeting for approval of proposed modifications to the roof. That motion was carried by ordinary resolution at the extraordinary general meeting held on 16 August 2004. The proposed modifications include the addition of a 600mm spandrel around the entire roof structure and the extension of the eastern roofline so that it is symmetrical with the western roofline.

On 14 October 2004 the body corporate committee resolved that the roof over the common area on level G be removed and that the owners of lots 12, 13 and 14 be responsible for all costs. The motion was proposed by Mr Noel Capp, whose air conditioner (the external component) is installed on the common property on level G.

At a committee meeting on 29 October 2004 the chairperson advised the other members of the committee that he was uncomfortable with the motion passed at the previous meeting to remove the roof over the air conditioner. The chairperson advised the committee that he had been advised by the commissioner’s office (the information service) that the committee cannot decide to remove the roof and that such a matter should be considered at an extraordinary general meeting. The chairperson proposed a motion that "acting on advice from the commissioner’s office the committee rescind the decision of the previous meeting to remove the roof." However voting on that motion was deferred pending receipt of written advice from the commissioner. The committee did not have authority to resolve to remove the roof when the roof itself had been approved by the body corporate in general meeting. A motion can be rescinded by a further motion, but it must be a like motion. In other words, a motion passed by ordinary resolution can only be rescinded by a motion passed by ordinary resolution, and a motion passed by resolution without dissent can only be rescinded by a motion passed by resolution without dissent. Accordingly, the committee resolution on 14 October 2004 to remove the roof over the common area was invalid.

On 3 February 2005 I held a meeting with the applicant, the owners of lots 12, 13 and 14, the chairperson and Mr and Mrs Capp. Discussion took place about the roof, the plans of lots 12, 13 and 14 for enclosing their roof gardens, the location of the external component of Mr and Mrs Capp’s air conditioner, and the involvement of the Brisbane City Council in relation to the roof garden enclosure.

A considerable amount of time was spent discussing the air conditioner, which appears not to function properly in its present location because of a lack of proper ventilation, allegedly caused by the combination of the roof over the common property and the doors leading into the roof deck area of the lots. One suggestion was that the roof could be removed over the common property. Another suggestion was that the doors leading into the lots could be fitted with grilles so as to allow air to circulate. A further suggestion was that the air conditioner could be relocated to Mr and Mrs Capp’s balcony, provided that in so doing, they were still provided with adequate air conditioning to their lot.

The applicant advised me that she had been speaking with a Council officer, Mr Paul Maxwell, in relation to the proposed enclosure of the roof gardens, expressing her belief that it would be contrary to Council regulations. The applicant subsequently provided me with a copy of her letter dated 27 January 2005 to Mr Maxwell, in which she outlined her concerns about the Gross Floor Area of the scheme, as well as her further concerns that the scheme is in a five storey medium density residential area.

On 3 February 2005 I telephoned Mr Maxwell, who advised me that he is an Enforcement Officer with the Brisbane City Council. Mr Maxwell informed me that he had decided to seek advice from the Council’s legal department so as to determine the future course that Council might take in relation to the proposed enclosure of the roof gardens and other matters of concern raised by the applicant.

On 11 February 2005 I telephoned Mr Maxwell again. He advised me that the file had been forwarded to Mr Steve Adams, a Senior Town Planner in the Brisbane City Council. I subsequently telephoned Mr Adams on 11 February 2005. He informed me that he was still awaiting further material to be able to fully consider Council’s position. On 4 March 2005 I telephoned Mr Adams and he advised me that the Council had determined that a Development Application was required for the proposed enclosure of the roof gardens. Upon receipt of such an application, Mr Adams advised me that Council will consider factors such as gross floor area for the site. He noted that the roof itself had already been approved by Council.

DETERMINATION

The roof in question covers, in the main, lots 12, 13 and 14. A small portion of it, however, is constructed over the common property, contrary to Council’s requirement that it not be so constructed. The basis for this requirement was that the Development Application was signed by the owners of lots 12, 13 and 14, and not for and on behalf of the body corporate. The body corporate had approved the roof (albeit in a slightly different form to that which is presently in place) by ordinary resolution at the extraordinary general meeting held on 13 August 2002. In order to approve the roof over the common property the body corporate would have needed to pass a motion by special resolution unless the improvement was a minor improvement (that is, with an installed value of (then) $200 or less), which did not detract from the appearance of any lot or the common property. Although the area of common property over which the roof is constructed is relatively small, I am satisfied that it would not have had an installed value of $200 or less. Accordingly, that portion of the roof should have been approved by special resolution. The roof over the lots only required approval by the body corporate committee (see by-law 14) so that part of the roof was certainly approved on 13 August 2002 when the body corporate considered a motion at a general meeting.

The next question to determine is whether the actual construction (differing as it does from the original plans) has been approved by the body corporate. Once again, approval could have been given by the committee (except for the part of the roof over the common property, with which I shall deal shortly). The body corporate has, however, approved the proposed modifications to the roof by ordinary resolution at the extraordinary general meeting held on 16 August 2004. In my view those modifications were proposed so that the finished roof will more accurately resemble the plans originally approved on 13 August 2002. On that basis therefore, I consider that the deficiencies in the appearance of the roof have been addressed by the body corporate.

I note that one of the concerns expressed about the portion of the roof which extends over the common property, apart from the fact that it did not have body corporate or Council approval, is that it has created problems for Mr and Mrs Capp’s air conditioner. A technician from Langfield Industries stated on 2 February 2005 that the head pressure in the air conditioner was building up because there was insufficient heat exchange. The technician expressed the view that the problem would be solved if the roof were open over that area to allow more fresh air to circulate.

On 9 February 2005, the owner of lot 12 advised that an air conditioning consultant inspected the premises on 7 February 2005. A report dated 8 February 2005 from Trane Australia was enclosed with the owner’s letter. That report stated, in part, as follows:

"We would recommend that the condensing unit is faced so the hot air is discharged directly out the exit door to the roof area. The door adjacent to the condensing unit should have an open type grille fitted and the door at the other end of the enclosure should also have a grille fitted. The grilles should have a maximum open area to allow for circulation. The existing roof would provide shade to the area thus lowering the ambient temperature and increase the units performance."

The owners of lots 12 and 14 have both confirmed in writing that they agree to the replacement of the solid core doors on their respective roof areas with grille type doors as recommended in the Trane report. The owner of lot 12 also agreed that the condensing unit could be angled towards the door leading to his roof area, provided that this does not unduly impede his access to the area.

All owners were given the opportunity to respond to this proposal. Several submissions were received. The chairperson gave his support to the proposal, but expressed the view that the cost of the modifications should be borne by the owners of lots 12, 13 and 14, as it was for their respective benefit that the roof was constructed in the first place. Mrs Clarke also considered that "all costs for the required alterations should be borne by the creators of the problems not the body corporate". Mr Capp expressed a similar view about the costs, and also expressed concern about the relocation of the condenser on the basis that the air conditioning consultant allegedly stated at the time of his visit that "it was logistically impractical to move the unit".

On 4 March 2005 I spoke by telephone with Mr Steve Erzetic, the air conditioning consultant from Trane Australia who provided the report dated 8 February 2005. I put Mr Capp’s comment to Mr Erzetic, who informed me that his statement about the impracticality of moving the condensing unit was in relation to the proposal that it might be moved to the balcony of Mr and Mrs Capp’s lot, not in relation to angling it in its present location.

I am satisfied that one of the problems presented by the roof being over the common area on level G can therefore be resolved by the placement of grille doors leading into lots 12 and 14, and the slight angling of the condenser unit in its present location so that the hot air produced during its operation can be expelled towards the door leading into lot 12. In fact with those modifications, it appears that the presence of the roof over the common property will then be beneficial, as it will provide shade over the condensing unit, thereby lowering the ambient temperature.

Although it was not an order specifically sought by the applicant, she expressed considerable concern in the written material and during the discussion on 3 February 2005 that Mr and Mrs Capp’s air conditioning should operate efficiently. I therefore propose to order that the doors leading into the roof areas of lots 12 and 14 be replaced with grille doors, and that the condensing unit be angled so that the hot air produced by it can be expelled towards the door leading into the roof area of lot 12. The cost of these modifications shall be borne by the owners of lots 12, 13 and 14. I have included the owner of lot 13 because although his door does not have to be modified, the offending portion of the roof benefits his lot as well as lots 12 and 14, and had I otherwise determined that the roof had to be removed over the common area, I would have further ordered that the owners of all three lots share the cost of that removal.

It follows that I do not propose to order that the roof generally, or that part of it over the common area, be removed, and to that end, I have dismissed the application.

Of course, it remains to be seen whether the Brisbane City Council has any further requirement in relation to the roof deck area but my jurisdiction is limited to the matters available for determination under the Body Corporate and Community Management Act 1997. Any order made by council, or any conditions imposed in relation to the development application for the enclosure of the roof deck area will be a separate issue for the body corporate and for the relevant owners.

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

Ellenmac [2005] QBCCMCmr 133 (7 March 2005)