Ellenmac [2005] QBCCMCmr 140 (10 March 2005)

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

I hereby order that the applicant’s proposal for internal alterations for the installation of an internal staircase to allow access to the roof deck on level G shall by this order be deemed to have been approved by the body corporate, subject however to the applicant providing the body corporate with written confirmation from the Brisbane City Council that such alterations comply with all of Council’s requirements (if any) under the Integrated Planning Act 1997, or any other relevant legislation, prior to commencing such alterations.

I further order that the application for an order approving the remaining internal alterations (including the installation of spa, entertainment unit and bathroom facilities) in accordance with the development permit (plumbing works) dated 20 April 2004, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0595-2004

"Ellenmac" CTS 16423

ORDER SOUGHT

The applicant has sought an order 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 applicant stated that it obtained a development permit from a private certifier, Mr Graham Nunn, on 20 April 2004 for proposed new internal stairs and plumbing works to be carried out within the applicant’s lot. The applicant also stated that it obtained a structural engineer’s certificate from Mills Engineers Pty Ltd in relation to the structural design of the proposed stairs.

The matter was originally intended to be considered by the body corporate committee at a meeting held on 6 August 2004 (postponed from 5 August 2004) however I made an interim order on 6 August 2004 in Application 0502-2004 that the proposal was a restricted issue for the committee and that it would have to be considered by the body corporate in general meeting.

The applicant subsequently proposed a motion for consideration by the body corporate at an extraordinary general meeting, which was held on 14 September 2004. The motion was defeated, with 5 votes in favour and 8 votes against. In general discussion prior to a vote being taken on the motion, the chairperson addressed the meeting and summarised the history of the applications to the Commissioner’s Office.

After the vote was taken, one of the owners (also a roof deck owner) requested that those present at the meeting advise their reasons for voting against the motion. Another owner stated that although she agreed that owners should be able to do as they wish with their own property, she could see no reason for having double access to the roof deck area. The applicant’s director responded that the present access is neither pleasant (it is open to the weather) nor safe. The opposing owner suggested that the present access be made safe.

Another area of concern for the opposing owners in relation to the applicant’s proposal is that in carrying out the works and enclosing the roof deck area of the applicant’s lot there is a risk that the area might be used as a habitable area.

At a meeting of interested parties held on 3 February 2005 the applicant’s director categorically denied that there is any intention to use the space in that manner.

In the course of the meeting, another of the owners present advised me that she had been in contact with a Brisbane City Council officer, Mr Paul Maxwell, in relation to her concerns about the proposed enclosure of the roof deck areas of lots 12, 13 and 14.

Following the meeting 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 deck areas and other matters of concern raised by the aggrieved owner.

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 deck areas. 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.

Submissions were sought from all owners and from the body corporate. Seven owners responded.

The applicant’s roof deck neighbours supported the application. The chairperson supported the application provided that appropriate approval was obtained from the local authority and further provided that the actual construction complied with any special conditions imposed by the local authority. Another owner expressed similar support, provided that the area was not to be used as a habitable area, noting that the applicant’s director had asserted that it was not his intention to use the area for this purpose.

The three opposing owners all expressed similar views that the applicant had misled the body corporate and also had misled this office. The underlying theme in these submissions was that the mistrust that had been engendered by the applicant’s actions should result in the application being dismissed.

DETERMINATION

By-law 14 provides that no structural alterations shall be made to any lot without the prior permission of the committee. However, the committee may not consider a matter if it is a restricted issue.

In application 0502-2004 one of the matters under consideration was this applicant’s proposal to penetrate the slab between levels F and G of the scheme for the purpose of constructing an internal staircase. It is appropriate that I should repeat here part of my statement of reasons for decision in that application.

Firstly, I note that by-law 14 provides that no structural alterations shall be made to any lot without the prior permission of the committee. Clearly the owner of lot 13 has attempted to commence work within his lot without having the prior permission of the committee (given that work initially commenced on 27 July 2004, and the committee meeting was not scheduled until 5 August 2004).

Secondly, I am not satisfied that the proposed works for lot 13 can be approved by the committee in any event because in my view any proposal which involves a penetration to the slab of the building is a restricted issue for the committee for the following reasons.

Section 26(1)(b) of the Body Corporate and Community Management (Standard Module) Regulations 1997 (Standard Module) (by which this scheme is regulated) provides that a decision is a restricted issue for the committee if it is a decision to change rights, privileges or obligations of the owners of lots included in the scheme.

Accordingly, the body corporate has an obligation to maintain in a structurally sound condition roofing structures providing protection (the roof slab in this case) and essential supporting framework (also the roof slab). Obviously the proposed penetration within lot 13 through the slab between Levels F and G involves the consideration of structural issues (see letter dated 26 March 2004 from Mills Engineers Pty Ltd to the owner of lot 13). It goes without saying that the body corporate must be satisfied that the structural integrity of the slab will not be compromised by the penetration, and that the body corporate’s obligations in relation to its duty to maintain the slab will not be altered in any way as a result. In that case, the matter is one which must be considered by the body corporate in general meeting. I therefore propose to order that the committee shall not consider whether to approve the proposed works within lot 13, and that that matter shall instead be placed on the agenda of a general meeting for consideration.

Those owners who oppose the applicant’s proposal appear to do so for two main reasons, which are, firstly, that the enclosed roof deck area created on level G might be used as a habitable area and, secondly, that the applicant will have two sets of stairs by which to access the roof deck area, when one set should be sufficient.

As I have stated in the other three applications for this scheme (Applications 0502-2004, 0574-2004 and 0675-2004) the issues relating to habitable areas, gross floor areas and any other matters relating to medium density residential buildings are matters for the Brisbane City Council under the Integrated Planning Act 1997 and any other relevant legislation. I do not have jurisdiction in relation to those issues, nor do I purport to have jurisdiction. It appears that the Council requires the applicant, and the owners of lots 12 and 14, to lodge a Development Application in relation to the proposed enclosure of the roof deck areas of the three lots, and ultimately Council will determine the abovementioned issues. The concerns of owners opposed to the proposed works will be addressed at that time.

However, I consider that I should make a determination in relation to those matters with which this application deals and which can appropriately be considered under the BCCM Act.

I have already ordered that the applicant’s proposal to penetrate the slab so as to construct an internal staircase between the two levels of his lot had to be considered by the body corporate in general meeting. Now that the body corporate has rejected the proposal (when motion 1 was defeated at the extraordinary general meeting on 14 September 2004) I must consider whether that rejection was reasonable.

The only explanation offered at the meeting itself was that the applicant should not have double access to the roof deck area. I do not consider this to be a reasonable objection, particularly as the present access to the roof deck area is on the outside of the building and is open to the elements. Furthermore all costs associated with the installation of the stair case will be borne by the applicant.

No objection was expressed at the meeting or in the submission process that the penetration of the slab would interfere with the structural integrity of the building. One owner expressed the view that because of water damage to the balcony ceiling of the lot beneath the applicant’s lot (not owned by the owner making the claim) then the integrity of the slab on level 5 had been compromised. I find no evidence to support this assertion. Firstly the slab through which the applicant wishes to make the penetration so as to install the staircase is not the slab which forms the ceiling of the lot allegedly water damaged. Secondly, if the penetration were to compromise the integrity of the slab to the extent that water penetration occurred, the greatest impact would be on the applicant’s lot. Thirdly, the owners of the lot whose balcony ceiling was allegedly damaged did not lodge a submission complaining of such damage nor stating any concern about the applicant’s proposal. Fourthly, later in the submission, the same owner making the complaint attributed the alleged damage to the ceiling to the fact that the applicant had extended the glass line on the balcony by 600mm.

I also note that the engineer’s report dated 26 March 2004 certifies that the structural design of the building work is in accordance with the relevant provisions of the Building Act 1975 and all relevant statutes, Australian Standards and any other relevant standards acceptable to the building certifier and in accordance with sound widely accepted engineering principles, and that full responsibility is taken by the engineer for the design.

To the extent, therefore, that body corporate approval is required for the penetration of the slab for the purpose of installing an internal staircase from level F to level G of lot 13, I propose to order that the proposal shall be deemed to have been approved by the body corporate, on the basis that the objections raised to the proposal were, in my view, unreasonable. However, I propose to further order that prior to commencing any work relating to the penetration of the slab or the installation of the staircase, the applicant must provide the body corporate with written confirmation from the Brisbane City Council that such work complies with all of Council’s requirements (if any) under the Integrated Planning Act 1997, or any other relevant legislation.

I do not propose at this stage to make any orders in relation to the installation of the spa and the plumbing works on level G, as I consider those matters to be integral to the proposal to enclose the roof deck area of lot 13, and I have already stated in my reasons for decision in other Ellenmac orders that such proposal should now be considered by the Council under the Development Application which Council requires to be lodged. If Council ultimately approves the proposal then owners’ concerns over habitable areas, GFA and the like should have been allayed.

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

(1)	Internal alterations (namely the installation of an internal staircase) to allow access to the roof deck in accordance with the development permit dated 20 April 2004 (exhibit 1); and
(2)	Internal alterations (including the installation of spa, entertainment unit and bathroom facilities) in accordance with the development permit (plumbing works) dated 20 April 2004 (exhibit 1)

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Ellenmac [2005] QBCCMCmr 140 (10 March 2005)