Village on the Park [2005] QBCCMCmr 249 (10 May 2005)

Last Updated: 5 July 2005

REFERENCE: 0146-2005

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	19271
Name of Scheme:	Village on the Park
Address of Scheme:	18 Spano Street, ZILLMERE QLD 4034

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

the Body Corporate for Village on the Park

I hereby order that the application by the body corporate for Village on the Park for an order requiring the owner of lot 13, Mervyn Douglas Black to comply with an order of the committee of the body corporate, to remove or to cause to have removed a garden shed which was installed on his lot in contravention of by-law 21(a), is dismissed. I further order that the erection of the garden shed by the owner of lot 13, Mervyn Douglas Black in the garden of his lot is deemed to have been approved by the committee under the provisions of by-law 21(a) on the condition that the owner shall maintain the garden shed at all times in a clean and tidy condition in accordance with the obligations of an owner regarding their lot contained in section 120(1) of the standard module.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0146-2005

"Village on the Park" CTS 19271

The applicant, the Body Corporate for Village on the Park, has sought the following order of an adjudicator under the Body Corporate and Community Management Act (the Act) quote –

The body corporate seeks an order which requires the owner of lot 13, Mr MD Black to comply with an order of the committee of the body corporate, to remove or to cause to have removed a garden shed which was installed on his lot by himself in contravention of by-law 21(a).

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

(c) a claimed or anticipated contractual matter about-

(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)).

The scheme is a subdivision of 175 lots registered under a group title plan (now a standard format plan). The regulation module applying to the scheme is the standard module.

The facts here are essentially not in dispute. The applicant body corporate seeks an order against the owner of lot 13, Mervyn Douglas Black (Black) for removal of a "garden shed" which Black has erected in the backyard of his lot. The body corporate alleges that the shed has been erected in contravention of a by-law which denies the construction or erection of an "outbuilding of any kind within or upon a lot or on common property without the approval in writing of the body corporate". Black does not deny that the shed has been erected, but argues that the refusal of permission by the body corporate is unreasonable.

The position of both parties can perhaps be summarised by brief quoting of their material:

The applicant Body Corporate:

Further, the body corporate via the committee have a long standing policy of NOT approving applications for garden sheds, satellite dishes, and sail type structures. ...
A number of owners have in the past made applications to the committee to install certain items or structures on their lots and the committee has either approved or declined the applications on the basis of past policy. The policy is in place to protect the interests of all owners and to ensure that the complex does not lose the feel and ambiance that it currently holds.

The respondent Black:

Obviously this dispute is not about obtaining (the committee’s) position, but enforcing an unreasonable and uncompromising position on the erection of garden sheds within this complex. I believe every case should be assessed individually on its merits. It seems one can install air conditioners, erect pergolas, awnings, fences etc but not a garden shed.

Section 94 of the Act provides:

94 Body corporate’s general functions
(1) The body corporate for a community titles scheme must--
(a) administer the common property and body corporate assets for the benefit of the owners of the lots included in the scheme; and
(b) enforce the community management statement (including any by-laws for the scheme); and
(c) carry out the other functions given to the body corporate under this Act and the community management statement.
(2) The body corporate must act reasonably in anything it does under subsection (1).

The significance of this section is the dual statements that:

1. The body corporate must enforce the by-laws for the scheme;
2. In doing so, the body corporate must act reasonably.

The body corporate has argued that it is enforcing the by-laws, and in this regard should be supported by an order of this office. In contrast, Black has firmly raised the allegation that the body corporate has not acted unreasonably in enforcing the by-laws. I will now consider the overall question in the determination of this application. However, I must indicate that I recently (in application 68 of 2004) had cause to determine an application which I consider has significant parallels with the current dispute. In my accompanying statement of reasons, several points which I consider relevant to this application were made and I intend to re-produce those statements here:

The applicant, the body corporate for (deleted) has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) quote
Adjudication of dispute ... between committee and owner of apartment 43 ... regarding the installation of a roll up blind on the northern deck of that apartment. Specifically, a decision by adjudicator as to the correctness or otherwise of the committee’s request that the blind be removed. ...
This office sought submissions in respect of the application from the owner of lot 43, ... and all other owners. I do not intend to set out in any detail the applicant’s grounds, nor the contents of submissions in response. I am satisfied that all parties are aware of the position of the other from the application, submissions and the right of reply processes. I therefore intend only to refer to those materials necessary for a determination of the issues raised.
The respondent has installed a clear blind on part of her lot without seeking committee approval under by-law 8.1. The committee resolved not to authorise or approve the fitting of the blind and have directed the respondent to remove it. The respondent has refused believing that no authorisation is required under the by-law and consequently that she is not in contravention. This dispute has been referred to me for determination.

The relevant by-law is by-law 8.1 headed "Appearance of lot" which provides
The owner or occupier of a lot must not, without the Body Corporate’s written approval, make a change to the external appearance of the lot unless the change is minor and does not detract from the amenity of the lot and its surrounds.
The by-laws for the scheme would appear to be a replication of the standard Schedule 4 by-laws to the Act, with certain additions.
The respondent has argued that the committee have misinterpreted the by-law and that the by-law does not apply. ... The by-law is intended to cover "external" parts of the lot. External parts of a lot are those which are not internal. The distinction is pretty clear in my view. The part of the respondent’s lot where the blind has been installed is an external part, and is subject to the by-law.

Secondly, the respondent has argued that even if it is external, then the blind is minor, and therefore not subject to the by-law. The by-law goes further however than simply a reference to "minor". It concludes with and does not detract from the amenity of the lot and its surrounds. The body corporate chairperson advised the dual objection to the respondent in correspondence of 24 November 2003 at paragraph 5.7 5.9.
I conclude that the by-law does apply to the circumstance of the installation of the blind by the respondent. Consequently the respondent should have applied for authorisation to erect the blind. The question to be determined is whether the committee determination to not approve the blind and to require its removal is a reasonable one in the circumstances.
In its correspondence of 24 November 2003 to the respondent, the committee outlined its basis for concluding as it did regarding the blind. It concluded that the blind
Could be seen from certain other apartments and parts of the complex;
May deteriorate in the future;
Will create a precedent for similar, or varied, installations by other owners "and in so doing, will seriously detract from the aesthetics of the complex".
The respondent has challenged these statements in her material.
I do not intend to descend to a minute analysis of the pluses and minuses of the installation. Such matters are largely subjective, and different arguments can be advanced depending on your particular point of view on the matter.
I consider however that in assessing such an application, the committee must first accept that the improvement in question is to part of an applicant’s lot, and is not being made to the common property. This in my view requires a greater allowance by the committee of the individual preferences of owners for the enjoyment of their lot. In respect of common property, I consider, and the legislation provides, that a body corporate has a far greater role to play, but for a lot, I consider that the committee should restrict its objections to proposals which clearly, not arguably or possibly, detract from the amenity of the lot and its surrounds.
I conclude that the objections of the committee to the installation are somewhat vague and lacking in any real substance. The fact that the installation can be seen from other lots is not the point. So can very colourful interior room colours, but these cannot be prevented. I suggest that not only must the installation be able to be seen, but in so being seen the general consensus must be that the installation detracts from the amenity of the lot. I consider that this is not evidenced here. I find that the blind is made for the most part of clear plastic materials and where not clear, is coloured consistent with its surrounds, appears to have been professionally installed, and is unobtrusive.
The suggestion that it may deteriorate in the future lacks merit. Everything may deteriorate if not properly maintained. Section 119 of the Accommodation Module provides that an occupier of a lot must maintain their lot in good condition, and parts of a lot readily observable from another lot or common property in a clean and tidy condition. I consider there is sufficient regulation to ensure that the respondent maintain the blind. In any event, a person who is making improvements to their lot for its amenity is unlikely in my view to thereafter allow the lot, or parts thereof, to deteriorate.
Finally, I disagree with the concern regarding precedent. To oppose all installations on the ground of potential for precedent is not to make an objective assessment of the proposal on its merits. What the committee needs to do is in respect of each proposal, to ensure that the particular proposal does not detract from the amenity of the lot. In doing this, previous approvals can be used as a guide. Another approach is for a committee to approve in advance a particular style (including colour scheme) for blinds or awnings which will be authorised.
In support of all the above conclusions, I note that submissions regarding the application were sought from all owners. Notwithstanding that two owners apparently complained of the installation, not a single owner (of 48) made a submission in support of the application for removal of the blind. I interpret this as at least an acknowledgement by owners that the installation of the blind does not in fact detract from the amenity of the lot, and the scheme generally.
In all the circumstances, while I disagree with the respondent on the interpretation of the by-law and the issue of whether she in fact needed the approval of the committee, I conclude that the objection of the committee and its requirement for the removal of the blind by The respondent should be overruled and the installation deemed to have been approved by the committee. I have ordered to this effect.

Determination

I conclude that many of the points made in the above determination are similarly relevant to this determination.

Firstly, it must be noted that the garden shed in question is located within Black’s lot and not on any part of the common property. As indicated, I consider that an owner should have somewhat greater latitude in the use and enjoyment of their lot, including the making of improvements thereto, then say the making of improvements to common property. The legislation recognises this distinction in its requirements for approval. In the case of improvements to a lot, often only committee approval is required and this is usually the case because of the existence of a by-law to this effect. If no by-law existed, then no approval would be required. However, improvements to common property usually require the approval of the body corporate in general meeting by special resolution. Moreover, this distinction exists even if the improvement in question is the same, eg. an airconditioning condenser unit.

The second aspect is the nature of the scheme and the nature of the improvement proposed. In this case, the scheme was registered under a group title plan. A group title plan usually means that each lot includes a parcel of land which forms part of the lot. This is distinct from a building unit plan, where in contrast, it is unusual for the lot to comprise a parcel of land. The nature of the improvement here is a garden shed. The photographic evidence provided by Black shows an area of garden attaching to the lot. Moreover, this garden appears to be reasonably dense and to be surrounded by a paling fence. I conclude that due to the fencing and garden planting, Black’s lot is reasonably private and cannot be easily observed by others, or from adjoining lots. The applicant body corporate has not provided any evidence to the contrary. As well, given that the lot includes a garden area which is not common property, then the lot owner will need to maintain this garden. This requires certain tools and equipment. I note Black’s submission that:

... Whilst ever I am able to do so, I will look after (my) own yard and maintain my own property and this requires keeping certain items and equipment which need to be stored safely. ... Instead of being left out in the open, it is only basic common sense that I should wish to lock dangerous and toxic items away responsibly, to safeguard them, or anyone else for that matter, from possible injury.

The lawn locker is 152 cm x 80 cm (approximately the size of a wardrobe), painted cream, the same colour as the security screens and doors of my unit. The locker sits on pavers in an alcove against the wall of the unit. It is not visible to anyone from outside my property, unless someone chooses to peek through a crack in the fence.

I consider that it is not an unrealistic expectation for a lot owner in a group title plan, which has a garden attaching to the lot, to have some area for storage of garden maintenance equipment. Others might suggest that such items could be stored in the garage of the lot, however I consider that this is not always either practical or possible.

Finally, I note that the application was distributed to all 175 owners in the scheme seeking submissions in respect thereof. In response, only one owner’s submission was received, and that is generally supportive of position of Black, whilst recognising the needs of the committee. That owner states:

Whilst I understand and support the committee’s desire to maintain the aesthetic appearance of he lots and the complex, I, as an owner occupier also understand and support owners wanting storage for items used when complying with the requirements of by-law 22. I feel that a compromise needs to be found ... Perhaps one alternative might be that the garden shed / locker be limited to a certain size or smaller, be of a certain quality / standard and colour, be properly installed and maintained, and installation be limited to certain positions on the lot.

I consider that the committee’s refusal to approve the storage shed is based purely on precedent. No objective assessment of the application has been made. Whilst the committee allege that Black has failed to attend a meeting of the committee at which the matter of the shed might be discussed, similarly, the committee have failed to inspect the shed in situ and to realistically evaluate its impact etc. In the circumstances, the committee has not acted reasonably as it is required to do in enforcing the by-laws.

In the circumstances, I am not prepared to order in terms as sought by the applicant body corporate. I consider the blanket prohibition on the installation of garden sheds to be unreasonable in the circumstances pertaining to this body corporate. I suggest to the committee that rather than a blanket prohibition, it should seek to assess all applications on their merits, and perhaps, even be proactive and prescribe standard criteria which those owners wishing to install such an improvement might be required to meet.

Whilst approval of the committee to the erection of the garden shed was not obtained, I am not prepared to order in terms sought by the applicant. Rather I intend to dismiss the application for the reasons set out, and to order that the garden shed is deemed to have been approved by the committee on the condition that Black shall maintain the garden shed at all times in a clean and tidy condition.