River Park [2005] QBCCMCmr 31 (20 January 2005)

Last Updated: 5 July 2005

REFERENCE: 0270-2004

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	14630
Name of Scheme:	River Park
Address of Scheme:	40 Watson Esplanade SURFERS PARADISE QLD 4217

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

the body corporate

I hereby order that, within one month, Peter Bowers, the owner of lot 40 (respondent) is to submit to the secretary a motion to seek the approval of the body corporate to the alteration of the external appearance of his lot by the enclosure of his balcony. This motion is to be decided by owners in general meeting as an ordinary resolution and by secret ballot. I further order that if the owners in general meeting fail to approve the alterations to the appearance of the respondent’s lot then the respondent must either: 1. within one month of the meeting, bring an application before this office with grounds that the refusal of the body corporate to grant its authorisation is unreasonable or otherwise unlawful; or 2. within three months of the meeting, restore the appearance of his lot to, as nearly as practicable, its original appearance. I further order that all owners are authorised to submit to the secretary a motion proposing an alteration of the by-laws for River Park to deal specifically with the enclosure of balconies. Any such motions are to be decided by owners in general meeting as a special resolution and by secret ballot. I further order that the committee of the body corporate for River Park is to include, in a separate schedule of the committee’s explanatory material for the meeting, up to three A4 photocopied pages of explanatory material submitted by a person putting forward a motion pursuant to this order. This material may include photocopies of plans or photographs. I further order that the respondent is entitled to retain his balcony enclosure pending owners in general meeting considering whether or not to approve the change to the appearance of his lot. I further order that, within 14 days, the body corporate is to send a copy of this order and reasons for decision to all owners.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0270-2004

"River Park" CTS 14630

Application

River Park Community Titles Scheme (River Park) is a 44 lot scheme under the Body Corporate and Community Management Act 1997 (Act) and the Act’s Standard Module Regulation (Standard Module). The scheme is designed for residential purposes. Lot boundaries are designated under a building units plan (now known as a building format plan).

This application is by the body corporate (applicant) seeking orders against Peter Bowers, the owner of lot 40 (respondent). The body corporate claims that the respondent has enclosed his balcony without authorisation and seeks an order requiring the respondent to remove the balcony enclosure and restore the external appearance of his lot to its original state.

Submissions

The body corporate’s main submissions were to the effect that:

• The enclosure of the balcony was not approved;
• The respondent was asked to stop work shortly after he commenced the work; and
• The respondent has subsequently been asked to remove the enclosure but has refused to do this.

The respondent’s main submissions were to the effect that:

• He planned to make the alterations before purchasing the unit and the real estate agent led him to believe that he would be able to make the alterations;
• He told the body corporate manager of the proposed renovations on 8 April 2003;
• It was not until five weeks after he had told the body corporate manager about the renovations, and after he had commenced the renovations, that the chairperson told him that he could not make the renovations. He says that the body corporate manager and building manager had both indicated that he could make the proposed renovations;
• The chairperson said that he had been the chairman for 20 years and that he did not approve the renovations and would never approve the renovations. The reason he gave was that it would make his unit look like the penthouse unit above. The chairperson said that he would not present the letter describing the alterations to the body corporate;
• The chairperson is friends with the owner of the unit directly above which was allowed to enclose its balcony;
• There is no requirement to seek body corporate approval as the enclosure is not detrimental to the appearance of the lot;
• Any refusal to give approval is unreasonable as other lots have enclosures on their balconies; and
• The committee has not properly considered the applicant’s request for approval in meetings;

Some other owners have also provided submissions. All these submissions oppose the balcony enclosure on the basis that it constitutes an alteration to the external appearance of the building.

Decision

Alterations to the external appearance of a lot

The legislation provides generally that the body corporate is responsible for common property and lot owners and occupiers are responsible for their own lot. An owner of a lot in a community titles scheme must maintain their lot in good condition and the occupier must keep the parts of the lot readily observable from another lot or common property in a clean and tidy condition (Standard Module, 120).

The legislation does not specifically regulate the ability of owners to make cosmetic changes to their own lots. However, the legislation gives the owners of units in a scheme the power to vote on what by-laws will apply to their scheme. All owners and occupiers are obliged to comply with registered by-laws, unless or until the owners vote to modify or remove a particular by-law.

In this instance, River Park’s by-law 8.1 provides:
Appearance of lot

The 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 body corporate has a duty to enforce the by-laws (Act, 94(1)). Rights of individuals are protected to the extent that the body corporate is required to act reasonably in enforcing the by-laws and carrying out its functions (Act, 94(2)).

Contravention of the by-law

The respondent says that the only change to his lot is the repositioning of a glass wall a couple of metres forward and that this is a minor change to the external appearance of the lot that does not detract from the amenity of the lot.

I have reviewed photographs of the scheme that show the external appearance of the respondent’s lot. The photographs indicate that the respondent has not made any change to the balcony railing but has merely added a glass wall just inside the balcony railing. The respondent’s unit is near the top of the building and the changes made are consistent with the style of the building. I do not think that these changes could fairly be said to detract from the appearance of the building.

However, the changes are not unimportant or insignificant. It is noticeable that the balcony has been enclosed with glass and I do not consider this to be a minor change to the external appearance of the lot even though the change does not detract from the amenity of the building. The respondent has therefore contravened by-law 8.1 by making an unauthorised change to the external appearance of the lot that is not minor.

Reasonableness of the notice of contravention

Having come to the conclusion that the respondent has contravened by-law 8.1 it would appear at first glance that I should order the respondent to comply with the notice of contravention issued by the body corporate and have the glass enclosures completely removed from his lot within seven days. However, given the nature of the alterations made by the respondent to his lot, it does not seem reasonable to expect the respondent to reverse these alterations within such a short time period.

The body corporate must act reasonably in enforcing the by-laws and carrying out its functions under the Act (Act, 94). A period of seven days to reverse these alterations seems unreasonable, particularly when it appears that this removal would leave the living areas of the unit exposed until the respondent was able to replace the original wall and sliding doors. I will therefore allow the respondent a period of three months to restore the appearance of the unit to its original state should that be necessary.

However, before finally deciding that question it is necessary to consider the other arguments raised by the respondent. These include arguments to the effect that the respondent did seek approval to make the alterations but that representatives of the body corporate mislead him about those approvals or unreasonably refused to grant him approval even though other unit owners had fully or partially enclosed their own balconies.

Reasonableness of refusal to authorise the enclosure

The respondent makes a number of allegations to the effect that the body corporate is acting unreasonably. He says that, when purchasing the unit, the real estate agent and caretaker had both told him he would be able to move the glass balcony doors out to near the railing as had been done for the unit above. The respondent has also provided a copy of an email sent to the body corporate manager on 8 April 2003 which advises the body corporate of the proposed renovations. He claims it was unreasonable for the body corporate manager to only tell him to stop work and obtain consent from the committee in late May 2003 after work was partially completed. Further, he says then when he did seek the committee’s authorisation the chairperson initially refused to present his request for approval and told him that he had no chance of approval. In particular, the respondent suggests that the lot above his is owned by a member of the committee and that this person is being favourably treated.

The chairperson and building manager both dispute a number of the claims made by the respondent and the chairperson says that no balcony is completely enclosed other than that of the lot above the respondent, which was possibly enclosed as the result of a deal with the developer. He also says that several units have partially enclosed balconies but that these do not detract from the overall appearance of the building. The respondent has said that his investigations have revealed that the firm of Prestige Glass refitted the balcony above. However, the respondent has not provided details of when this may have occurred. This information would be relevant to indicate whether the enclosure was approved after the original developer was no longer in control of the scheme.

There is therefore significant conflict in the submissions of interested parties and more investigation would be required to determine if, in all the circumstances, the body corporate has acted unreasonably by refusing to approve the changes to the appearance of the respondent’s lot.

If, for example, an adjudicator is satisfied that the body corporate’s decision about a proposal by the owner of a lot to make improvements is an unreasonable decision then the adjudicator can order the body corporate to agree to the proposal (Act 276, Schedule 5 – 17. ) However, I note that all owners have not yet been given an opportunity to vote on whether the changes to the appearance of the respondent’s lot should be approved or not. Whether or not owners should be entitled to enclose their balconies is a significant question for all owners to consider. It seems that, as a preliminary step, the respondent should be required to put an application for approval of his balcony enclosure to the body corporate in general meeting.

Request for approval from the body corporate in general meeting

I propose to make an order requiring the respondent to request approval for his alterations from the body corporate in general meeting. A decision by owners in general meeting will be binding on the respondent unless it can be shown to be unlawful, for example, if it is shown to be an unfairly discriminatory and unreasonable decision. I will therefore make an order that if owners in general meeting do not approve the changes to the external appearance of the respondent’s lot then the respondent must either restore the original appearance of his lot within three months or make another application on the grounds that the decision by owners in general meeting was unreasonable or otherwise unlawful.

Some owners have made submissions to the effect that allowing one person to enclose their balcony will set a precedent that will allow other owners to argue that it is unfair for the body corporate not to also allow them to enclose their balconies. There is some force in this argument as, all things being equal, it would appear to be unreasonably discriminatory for the body corporate to allow one person to enclose their balcony and refuse permission to another person. In fact, the situation appears uncertain at the moment with one apparently authorised balcony enclosure on lot 43 and the respondent’s unauthorised balcony enclosure on lot 40.

Owners may therefore wish to consider whether they would like to be able to enclose their balconies and whether there are any particular standards that should apply to the enclosure of balconies. These are matters properly to be decided by owners in general meeting rather than only the committee members as decisions of this nature can affect the value of lots, the right to enjoy and modify lots, and the overall appearance of the building. If a sufficient number of owners are able to agree on these issues then, to minimise future uncertainty, it may be prudent to pass a by-law that deals specifically with the enclosure or otherwise of balconies.

I will therefore make an order to give all owners an opportunity to put forward any proposal they desire to amend the by-laws to specifically address the issue of enclosure of balconies and to allow those owners to provide up to three pages of explanatory material regarding their proposal.

Order

For the above reasons, I will order that the respondent be given an opportunity to seek permission of the body corporate in general meeting for the alteration to the appearance of his lot through the enclosure of his balcony. If the motion seeking permission is not passed then the respondent will need to either restore the original appearance of his unit or apply to this office to establish that the decision of the body corporate is an unreasonable decision.

To ensure owners have an opportunity to make a fully informed decision I will make a supplementary order that the respondent be able to submit additional explanatory material with his motion seeking permission from the general meeting. Relevant explanatory material may include photocopies of diagrams showing the modifications made to his unit and photographs showing the alteration to the external appearance of the building. I will also make an order that any person putting forward a proposal to change the by-laws in respect of the enclosure of balconies should be entitled to provide additional explanatory material in respect of that by-law. Finally, to avoid undue pressure being placed on owners in respect of their vote, I will order that any ballot on these issues be by secret ballot.