Adelphi Springs [2005] QBCCMCmr 306 (7 June 2005)

Last Updated: 2 August 2005

REFERENCE : 0239-2005

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	28838
Name of Scheme:	Adelphi Springs
Address of Scheme:	100 Cotlew Street East, SOUTHPORT QLD 4215

TAKE NOTICE that pursuant to an application made under the abovementioned Act by the Body Corporate of the Adelphi Springs Community Titles Scheme:

I hereby order that the owners of Unit 15 Aegean (Mr and Mrs B Brown) remove the screen attached to their rear entry gate within 3 months of the date of this order.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0239-2005

"Adelphi Springs" CTS 28835

The applicant has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 ("the Act") -

"The owners of Unit 15 Aegean remove the white screen attached to their rear entry gate."

Jurisdiction:

This is a dispute between the Body Corporate of the Adelphi Springs Community Titles Scheme ("the applicant") and owners of Lot 8, Mr & Mrs B Brown ("the respondents") concerning the installation of a screen onto the back entry gate of the respondent’s lot. This is a matter which falls within the dispute resolution provisions of the legislation (see sections 227, 228 and 276 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 this 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) of the Act). An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 284(1) of the Act).

Application and Submissions:

Under section 243 of the Act, a copy of the application was provided to the respondents and all owners in the scheme with an invitation to respond to the matters raised in the application. The respondent and a few owners have provided submissions in reply to the application.

The facts in this matter do not appear to be in contention and therefore I will rely upon the following as a brief synopsis of the facts. I have omitted some minor or irrelevant points.

A screen was attached to the rear entry gate of the respondent’s lot (Lot 8) in late 2004. At this time the screen was white in colour. A letter was sent to the respondents on or about 20 December 2004 referring to the installation of the screen and advising them of the requirements of By-law 20.1 which was in force. The letter invited the respondents to put a formal request to the applicant seeking approval for the installation of the screen to be submitted by 5 January 2005 otherwise further action (the issue a contravention notice) would be taken.

It appears that no such application was submitted and a Notice of Continuing Contravention was issued to the respondents shortly after 5 January 2005 seeking the removal of the screen within 7 days. It appears that the screen had not been removed in accordance with the Notice and on 22 February 2005 the applicant resolved to make application to the Commissioner for Body Corporate and Community Titles to resolve the situation. The application was made on 23 March 2005.

It is not entirely clear when however the respondents have taken steps to address the situation. The respondents had at least one discussion with Mr Ted Wilkes (Chairman of the Committee of the applicant) regarding the issue. It appears that Mr Wilkes advised the respondents that the issues with the screen were two fold. These were that it was eye catching (it being white in colour made it stand out) and that if approval is given to this screen that it will open the door to other similar screens that may detract from the appearance of the scheme.

Mr Wilkes also admitted that the respondent’s reason for the installation of the screen (for privacy) was not unreasonable and that a screen that was more "appropriate" (which I will interpret as aesthetically pleasing) may get the applicant’s approval. So much was confirmed in writing by Mr Wilkes. In response to this contact the respondent’s painted the screen black. The respondents do not appear to have taken the opportunity to make further application to the applicants for approval of the ‘new’ scheme.

After considering the application the Commissioner for Body Corporate and Community Titles determined that this matter would be an appropriate matter to be referred for adjudication.

Determination:

The "Adelphi Springs" scheme was established as a group titles plan (now termed a standard format plan) on 2 December 1996. Having been established under the Building Units and Group Titles Act 1980, under the transitional provisions of the (new) Act the scheme was immediately subject to the Body Corporate and Community Management (Standard Module) Regulation 1997. One new community management statement has been lodged since the creation of the scheme which changed the regulatory module to the Body Corporate and Community Management (Accommodation Module) Regulation 1997 ("the Accommodation Module"). The new community management statement became operative in May 2004.

Section 94 of the Act sets out the general functions of bodies corporate. These functions include enforcing the community management statement (including any by-laws) for the scheme. It is important to note section 94(2) of the Act, which provides that bodies corporate must act reasonably in carrying out their general functions. These provisions give the applicant clear authority to enforce the by-laws contained within the community management statement.

By-law 20.1 is quite specific regarding the installation of fences, pergolas or screens. It requires that approval be given prior to installation. The drafting of the by-law is not ambiguous and in my opinion applies to the current situation. I have formed the view that a contravention of By-law 20.1 has occurred.

The applicant took steps to comply with section 184 of the Act by, before making the application to the Commissioner serving a contravention notice on the respondents. I have considered the Notice that was issued and am of the opinion that the notice complies with section 182 of the Act. I therefore am of the view that the applicant has complied with all statutory requirements necessary to facilitate bring this application.

I am also of the view that the applicant has acted reasonably in this matter and (by way of the course suggested by Mr Wilkes) provided a method which all parties could have arrived at an acceptable arrangement. In particular it would appear that if further discussion is had some acceptable design (colour and design) of screen could be agreed to which will provide a precedent for application within the scheme generally.

I note with interest that there is at least one lot with a large shade cloth screen installed which is clearly less appealing than the respondent’s screen. I have no details of whether this was installed with the approval of the applicant or otherwise however I see it as serving the same purpose (privacy) as the respondent’s screen. Therefore if it was installed with approval then it would be reasonable for the applicant to take their previous approval as a "precedent" and work towards resolving this matter to the mutual satisfaction of both parties.

I hereby order that the owners of Unit 15 Aegean (Mr and Mrs B Brown) remove the screen attached to their rear entry gate within 3 months of the date of this order.

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