Reeflections Clifton Beach [2005] QBCCMCmr 232 (28 April 2005)

Number of Scheme:	31385
Name of Scheme:	Reeflections Clifton Beach
Address of Scheme:	Arlington Esplanade, Clifton Beach, QUEENSLAND 4879

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

I hereby order that pending final determination of this application, the owners of Lot 1 are not to allow any building work to take place on Lot 1 until such time as the relevant plans are approved by the body corporate.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0283-2005

"Reeflections Clifton Beach" CTS 31385

"Reeflections Clifton Beach" is a subdivision of 8 lots on a Standard format plan. The regulation module applying to the scheme is the Standard Module.

Application

By application received by this Office on 20 April 2005, the applicant body corporate has sought the following interim order of an adjudicator:

To prevent any building taking place on Lot 1 until such time as the plans are approved by the body corporate.

Jurisdiction

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)).

Section 279(1) & (2) provide that -
(1) The adjudicator may make an interim order if satisfied, on reasonable grounds, that an interim order is necessary because of the nature or urgency of the circumstances to which the application relates.
Examples
1. The adjudicator may stop the body corporate from carrying out work on common property until a dispute about the irregularity of proceedings has been investigated and resolved.
2. The adjudicator may stop a general meeting deciding or acting on a particular issue until it has been investigated and resolved.
(2) An interim order
(a) has effect for a period (not longer than 1 year) stated in the order; and
(b) may be extended, varied, renewed or cancelled by the adjudicator until a final order is made; and
(c) may be cancelled by a later order made by the adjudicator; and
(d) if it does not lapse or is not cancelled earlier, lapses when
(i) the application is withdrawn; or
(ii) the commissioner gives the person who made the application a written notice under section 241 rejecting the application; or
(iii) a final order is made by an adjudicator to whom the application is referred. ...

Interim Orders

This dispute resolution application was made on 20 April March 2005 and has been referred to me pursuant to section 267 of the Act for consideration of an interim order. At this time, I am solely concerned with the threshold issue of whether an interim order is warranted. In any consideration of an application that seeks the making of an interim order, it is necessary to determine whether, because of the nature or urgency of the circumstances relating to the application, an interim order is in fact necessary or appropriate. The examples included in the Act under section 279 are suggestive of the usual circumstances where an interim order might be made. Both examples are in the nature of injunctive relief. Whilst the range of matters that might be the subject of an interim order is not capable of definition, the applicant does need to establish that the circumstances of the application warrant the making of an interim order.

Pursuant to a resolution passed on 13 April 2005, the body corporate for Reeflections Clifton Beach has sought an order preventing any building taking place on Lot 1 until such time as the plans are approved by the body corporate.

The owners of lot 1 (the respondents) intend to build a house and have engaged an architect to prepare plans for this purpose. The proposed building has been the subject of on-going negotiations between the respondents , the developer and the body corporate during 2003 and 2004 due to concerns that the proposed building does not comply with the Building and Development Covenants.

Clause 12 of the Community Management Statement dated 26 May 2003 relevantly provides as follows:

The Building and Development Covenants are quite lengthy and include the following relevant clauses:

1.1 Written approval must be obtained by the buyer/ owner from the body corporate prior to commencing any building works. The body corporate will from time to time determine approval process guidelines, in order to consider and process such approval(s) as soon as reasonably practicable and in any event within 28 days of such written request....

1.4 The buyer must not submit any plans of building works to the Cairns City Council or other relevant authority for approval before obtaining the seller’s/ body corporate approval.

At the AGM held on 23 August 2004, the plans submitted by the respondents were discussed with the developer and the body corporate raising a number of issues concerning extensions to the upper living areas and the nature of the fencing. The applicant claims that these parts of the proposed building work do not comply with the building covenants and "footprints" specified by the developer. Following further discussions, amended plans were submitted in late 2004 but were also allegedly rejected by the body corporate.

On 4 April the respondent’s Solicitor advised the Body Corporate that amended plans were delivered to it on 20 December and as nothing further was heard from the Body Corporate, the respondent would proceed to seek Cairns City Council approval of the plans and commence construction in accordance with clause 1.1 of the Building and Development Covenants (above).

The applicant submits that there have been numerous communications between the parties since that date including an email communication with the respondent’s solicitor on 22 December 2004.

Submission by Respondent

On 26 April 2005 this Office received a submission by facsimile from Mr Cameron Price, Solicitor for the respondents. Mr Price has advised that as the plans were submitted for approval on 20 December 2004, but not considered and processed by within 28 days as required by clause 1.1 of the Building and Development Covenants, the respondents are entitled to proceed to obtain the approval of the Cairns City Council.

It is submitted that on 22 December 2004, an email message was received from Body Corporate Services advising that the decision maker was away until 20 January 2005. This is confirmed by a copy of the email communication provided by the applicant in which Mr Price stated "My client has complied with every request. I think the only way for us to proceed is to go to the Commissioner" .

The respondents’ solicitor further states that he and his clients are unaware of letters allegedly forwarded to him on or around 28 January 2004 and 14 February 2005.

Finally, it is submitted that the plans comply with all reasonable requirements necessary to ensure that the dwelling house blends in with development of the scheme land and there is no untoward blockage of any other owner’s esplanade views.

Determination

Pending a final decision, an interim order is sought to prevent any building taking place on Lot 1 until such time as the plans are approved by the body corporate.

On the face of the application and annexed material it is at least arguable that the owners of Lot 1 have not acted in compliance with clause 12(3) of the Community Management Statement dated 26 May 2003 which provides "An owner may not carry out any building work on a lot except in accordance with the Building and Development Covenants".

On the other hand I acknowledge the respondents’ argument that the body corporate has acted unreasonably and capriciously.

At this point in time I intend to grant the interim order requested by the applicant i.e. to prevent any building taking place on Lot 1. However, given the lengthy delays which have occurred to date regarding approval of the plans by the body corporate, I do not propose to order that the plans already submitted to the Cairns City Council be withdrawn, although should it subsequently transpire that the body corporate is entitled to insist on further changes to the plans, the respondent will need to inform the Cairns City Council accordingly.

For the above reasons, I order that pending final determination of this application, the owners of Lot 1 are not to allow any building work to take place 1 until such time as the relevant plans are approved by the body corporate.

It should be noted that this is an interim order which is temporary in nature until a final order is made or the application is withdrawn. I consider that an effective resolution of this application requires further investigation, particularly by requesting further written submissions before the matter is finally determined. At this point in time I have been provided with only a bare outline of the body corporate’s concerns and how these have been address by the respondents.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Reeflections Clifton Beach [2005] QBCCMCmr 232 (28 April 2005)