Ellenmac [2005] QBCCMCmr 136 (8 March 2005)

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

I hereby order that the application for a declaration that the resolution in respect of motion 3 considered at the extraordinary general meeting held on 16 August 2004 be set aside as being invalid and beyond the powers of the members to decide, is dismissed.

I further order that the application for a declaration that the resolution in respect of motion 3 considered at the extraordinary general meeting held on 16 August 2004 be set aside as being unreasonable in the circumstances, is dismissed.

I further order that the application for an order that approval be granted to the owners of lots 12 and 14 for the completion of their roof gardens by enclosing the areas with a combination of louvres, bi-fold glass doors, sliding glass doors and windows in powder-coated white to match the existing structure, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0574-2004

"Ellenmac" CTS 16423

ORDERS SOUGHT

The applicant, Stephen Edward Ayles, has sought orders of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) as follows:

JURISDICTION

The application evidences a dispute between an owner of a lot included in a community titles scheme and the body corporate for the scheme (section 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

The dispute centres on a proposal by the owners of lots 12, 13 and 14 to perform additional work on their roof decks following on from the construction of a roof over the lots on level G. This application deals with the proposal by the owners of lots 12 and 14. The proposal by the owner of lot 13 is the subject of a separate application, with which I shall also deal, but by separate order.

The applicant explained the background to the dispute, and provided relevant supporting material in the form of minutes of meetings and correspondence. The applicant argued that it is unreasonable for the body corporate to prevent the owners of lots 12 and 14 (and by implication lot 13) to legally improve their own property. The applicant denied that the proposed works for the roof gardens would be contrary to Brisbane City Council regulations and the Integrated Planning Act 1997.

I intend to repeat here the background material to which I referred in another application concerning Ellenmac (that application (0502-2004) having been lodged by Mrs Irene Lenneberg). I do so for the sake of completeness in relation to the construction of the roof and the concerns of owners over the proposed additional work on the roof decks of lots 12, 13 and 14.

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.

The body corporate committee and all owners were invited to respond to the application. Submissions were received from seven owners, including the owners of lots 12 and 13. Some owners were vehemently opposed to the proposed works, whilst others were prepared to allow the work to be carried out provided that it received appropriate approval from Council, and further provided that there were safeguards in place to ensure that the area was not used as a habitable area.

The applicant replied to the submissions.

DETERMINATION

I note that motion 3 was defeated at the extraordinary general meeting held on 16 August 2004, so there was in fact no resolution of the body corporate in relation to the subject matter of that motion. Accordingly, I have dismissed the application insofar as the first two orders sought.

By-law 14 provides that "(n)o structural alterations shall be made to any unit (including any alteration to gas, water, electrical installations or work for the purpose of enclosing in any manner whatsoever the balcony (if any) of any unit) without the prior permission of the committee."

The proposed work to lots 12 and 14, as depicted in the plans attached to the application, are wholly within lots 12 and 14. Whilst by-law 14 allows for approval of such works to a lot by the committee, the proposal was put to owners for their consideration at an extraordinary general meeting held on 16 August 2004. As stated above, the motion was defeated, with 7 votes cast in favour of the motion and 7 votes cast against it.

Section 276(1) of the Act requires an adjudicator to whom a dispute application is referred to make an order that is "just and equitable in the circumstances". Those owners who lodged submissions opposing the proposed works on the roof deck have all expressed their concern over the use to which the enclosed area might be put. Some of those owners have also referred to the Gross Floor Area, and the changes that might be effected to a building which is in a medium density residential area. All of these matters are ones to which the Brisbane City Council will have regard when considering the Development Application which apparently Council has determined must now be lodged by the applicant, and his fellow roof deck lot owners.

My jurisdiction in considering this application is limited to the Body Corporate and Community Management Act 1997 (BCCM Act). Council’s jurisdiction is under the Integrated Planning Act 1997 (IPA), amongst others. Any order that I might be minded to make under the BCCM Act would in any event by subject to any requirements that Council might have in relation to the project under the IPA.

I am not persuaded that I should disregard the votes of those 7 owners who voted against motion 3 at the extraordinary general meeting held on 16 August 2004. Although I have noted the denial by the owners of lots 12, 13 and 14 in relation to such matters, I consider that the opposing owners’ concerns about GFA and habitable areas are, prima facie, justifiable concerns. It may be that Council, after proper investigation, finds that the proposal meets all of Council’s requirements, and approves the Development Application. If at that time owners voted against a motion to approve the proposed works, then I would most likely have a different view because the aspects about which concern had previously been expressed would have been addressed by Council. However, for the present, I intend to dismiss the application.

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

1.	A declaration that the resolution in respect of motion 3 considered at the extraordinary general meeting held on 16 August 2004 be set aside as being invalid and beyond the powers of the members to decide upon the matters the subject of the said motion or in the alternative
2.	A declaration that the resolution in respect of motion 3 considered at the extraordinary general meeting held on 16 August 2004 be set aside as being unreasonable in the circumstances.
3.	An order that approval be granted to the owners of lots 12 and 14 for the completion of their roof gardens by enclosing the areas with a combination of louvres, bi-fold glass doors, sliding glass doors and windows in powder-coated white to match the existing structure and as indicated in plans submitted to the body corporate committee and body corporate, such works to be approved by Brisbane City Council (where necessary) and to be done at the cost and expense of the owners of lots 12 and 14.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Ellenmac [2005] QBCCMCmr 136 (8 March 2005)