Ellenmac [2005] QBCCMCmr 139 (9 March 2005)

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Diamond World Corporation Pty Ltd as trustee, the owner of Lot 13:

I hereby order that the purported committee resolution on 14 October 2004 that the roof over the common area on level G be removed was at all times void.

I further order that the roof over the common area on level G shall hereby be deemed to have been approved by the body corporate, subject to the owners of lots 12, 13 and 14 obtaining Brisbane City Council approval for the variation to the original plan to allow for the roof to cover the common area.

I further order that the preceding order is intended merely to formalise the roof over the common area under the Body Corporate and Community Management Act 1997 and is not intended to restrict any future requirements that the Brisbane City Council might have in relation to that part of the roof, or the roof generally, under the Integrated Planning Act 1997 or any other relevant legislation.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0675-2004

"Ellenmac" CTS 16423

ORDER SOUGHT

On 28 October 2004, the Owner of Lot 13 (the Applicant) made a dispute resolution application to the Commissioner for Body Corporate and Community Management under the Body Corporate and Community Management Act 1997 (the Act). In the application, the Applicant states that it is seeking the following final outcome from the application:

The Applicant also requested an interim order for the application. Adjudicator Reardon determined this request on 12 November 2004 and issued the following interim order:

JURISDICTION

Section 227(1) of the Act limits the disputes that may be resolved under the Act’s dispute resolution provisions to those between particular combinations of parties involved in community titles schemes. This application, which describes a dispute between the owner of a lot included in a community titles scheme and the body corporate for that schemes, falls into the category of dispute contemplated by section 227(1)(b).

Section 276(1) of the Act allows adjudicators to make just and equitable orders to resolve disputes in community titles schemes about a wide range of matters, including claimed or anticipated contraventions of the Act or a scheme’s community management statement.

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). The building consists of seven levels (Levels A to G).

BACKGROUND

This is one of four dispute resolution applications lodged in the past eight months concerning "Ellenmac". This particular application concerns the roof that has been constructed over the roof deck level (Level G on the registered building format plan). I have detailed the background to the roof in another application in respect of which I have made an order on 7 March 2005. I shall repeat that detail here to the extent that it is relevant to this application.

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 body corporate committee and all owners were invited to respond to the application. Submissions were received from five owners. Three of the owners opposed the application and two supported it.

The owners opposing the application relied upon the fact that the roof over the common area had not been approved, and referred to difficulties with the Capp’s air conditioning unit as justifying the removal of the roof. One of the owners also queried whether the roof over the common area would need to be approved by special resolution.

One of the two owners who supported the application pointed out that the roof over the common area actually provides protection to the building as a whole from the point of view of waterproofing. The owner provided a copy of his letter dated 17 October 2004 to the body corporate manager in relation to water penetration to his lot, in which it was noted that the roof provided such protection.

The other owner who supported the application pointed out that there were other methods of ensuring that the Capp’s air conditioning unit operated efficiently.

DETERMINATION

Section 58 of the Standard Module provides:

only by a resolution of the same type.

The roof was originally approved by the body corporate on 13 August 2002, when a motion was passed by ordinary resolution. At that time the plans to which the body corporate gave its approval showed the roof as extending only over the roof decks of lots 12, 13 and 14. Accordingly, the motion was appropriately considered by ordinary resolution, particularly as by-law 14 actually allowed the committee to consider and approve structural alterations to a lot. At the very least, therefore, the body corporate could only rescind the motion to approve the roof by ordinary resolution.

Accordingly, the purported committee resolution on 14 October 2004 that the roof be removed was invalid.

The applicant seeks a further order that the roof remain in its present state, with the addition of the spandrel and the extension to the eastern roofline approved by the body corporate on 16 August 2004. Such an order would of necessity include that part of the roof which has been constructed over the common area.

It is common ground that the body corporate did not approve the roof over the common area when it passed the motion concerning the roof on 13 August 2002, because at that time the plans did not show the roof extending over the common area, and in fact the Brisbane City Council specifically stated that it was not to be built over the common area. This was because the Development Application (DA) had only been signed by the owners of lots 12, 13 and 14, and not by the body corporate, as would have been necessary for Council to have allowed the roof over the common area. Thus, as I understand the material, it was not that there was any particular impediment to the roof being constructed over the common area from Council’s perspective, apart from the absence of the body corporate’s approval.

The roof as a whole was once again considered by the body corporate on 16 August 2004. On that occasion, the roof was already in place so owners knew that the roof extended over the common area on level G. The purpose of their further consideration of the roof was to approve modifications which were intended to make the appearance of the roof more closely resemble the plans which were originally provided to owners in 2002. The motion was passed by ordinary resolution. In order to approve that part of the roof which was constructed over the common area, the motion should have been passed by special resolution. I am however required to make an order that is just and equitable in the circumstances. On that basis I can, if I consider it appropriate to do so, make an order deeming that part of the roof over the common area to have been approved by the body corporate.

In order to satisfy myself that such an order would be appropriate, I must examine the reasons for owners’ opposition to the roof. It seems that the opposition has been based upon three key factors: the departure from the original plans and therefore the changed appearance of the roof; the problems caused to the Capp’s air conditioning unit; and concerns over the intention of the owners of lots 12, 13 and 14 to utilise the roof for their latest proposal to enclose their roof decks.

I am satisfied that the first of those factors in relation to the appearance of the roof has been addressed by the modifications approved on 16 August 2004, namely the 600mm spandrel and the extension of the eastern roofline.

I am further satisfied that the problems in relation to the Capp’s air conditioning unit will be resolved by the work to be carried out as a result of my orders on Application 0502-2004. An important element of that work was that following the installation of grille doors on lots 12 and 14 (providing ventilation to the common area) the roof would then be beneficial to the air conditioning unit because it would provide shade to the area, thereby lowering the ambient temperature around the unit, and allow it to operate more efficiently.

I am further satisfied that owners’ concerns over the proposed enclosure of the roof deck by the owners of lots 12, 13 and 14 will be resolved by the Brisbane City Council’s consideration of the Development Application that Council has stated it requires before the proposal can proceed.

In my view therefore, it is appropriate to make an order deeming the roof over the common area to have been approved by the body corporate. I can see no other detriment to the body corporate by making such an order. It has been stated that the roof provides waterproofing for the building as a whole. I have no evidence to challenge that assertion. The order will, however, be subject to the owners of lots 12, 13 and 14 obtaining Council approval for the variation to the original plan to allow for the roof to cover the common area. My order deeming body corporate approval should ensure that, to that extent at least, Council does not have to be concerned about the absence of body corporate approval, as was allegedly the problem when the Development Application was lodged in 2000.

Of course the Brisbane City Council may take a different view in relation to the roof over the common area when considering the Development Application in relation to the enclosure of the roof deck areas, and if it should do so, then it could require the body corporate to remove that portion of the roof. My order does not prevent such an outcome. My order simply formalises the roof over the common area under the Body Corporate and Community Management Act 1997. Any decisions made by Council under the Integrated Planning Act 1997 or any other relevant legislation will be a separate issue entirely.

Number of Scheme:	16423
Name of Scheme:	Ellenmac
Address of Scheme:	150 Swann Road Taringa, Queensland

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Ellenmac [2005] QBCCMCmr 139 (9 March 2005)