Heritage Park [2005] QBCCMCmr 323 (14 June 2005)

Last Updated: 2 August 2005

REFERENCE: 0273-2005

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	201543
Name of Scheme:	Heritage Park
Address of Scheme:	25 Tristan Street, BENOWA QLD 4217

TAKE NOTICE that pursuant to an application made under the abovementioned Act by K & P Booker owners of Lot 6:

I order that the application seeking permission to retain the existing colour of black (charcoal) on the garage door, trim and guttering made by the owners of Lot 6 - K & P Booker, is dismissed. I further order that the owners of Lot 6 - K & P Booker make a further application to the Body Corporate of the Heritage Park Community Titles Scheme within 3 months of the date of this order for approval of a colour scheme for the garage door, trim and guttering on the lot.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0273-2005

"Heritage Park" CTS 20153

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

"Permission to retain the existing colours of our home in Heritage Park."

Jurisdiction:

This is a dispute between the owners of Lot 6 (K & P Booker) (the applicants) and the Body Corporate of the Heritage Park CTS 20153 (the respondent), regarding the painting of a lot in colours not approved pursuant to a By-law of the scheme. 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 respondent with an invitation to it and all owners within the scheme to respond to the matters of dispute raised in the application. Responses were received from various owners within the scheme and from the respondent in this matter. I have considered these along with the application in my determination.

The brief facts of the matter are as follows. The applicants reside in Lot 6 of the scheme. In November 2003 the applicants sought approval to do various extensions to their lot including painting however omitted to specify a colour for the garage door, trim and guttering. Approval for all of the works was given by the respondent at that time. Despite not getting approval for the colour of the garage door, trim and guttering the applicants proceeded to have these painted a "charcoal" colour, a colour which appears close to black.

The applicants were informed by the respondent in April 2004 that the colour of the garage door, trim and guttering was in conflict with the colour scheme as previously approved by the respondent. Despite this the respondent elected to put the applicant’s request to the Annual General Meeting ("the AGM") of the scheme to seek further approval. The application was subsequently defeated at the AGM and the applicants were advised of this on 1 June 2004.



A further written request was made to the respondent to approve the subject colours. The respondent advised that this further written request was denied in a letter dated 6 August 2004. The basis of this denial was that the application had previously been denied by the respondent and at the AGM of the scheme. The respondent advised the applicants to select a "heritage" type colour that is in keeping with the overall appearance of the complex and to seek approval for this colour to be used within 21 days of the date of that letter.

In October 2004 the respondent wrote to the applicant in reply to a letter from the applicants dated 20 August 2004. Although I have not been briefed with a copy of the applicant’s letter I believe that it may have been to seek advice from the respondent regarding what colours would be acceptable to them. The respondents advised that "a colour similar to the colour of the timber in place (on the applicant’s lot) or a cream colour would be acceptable".

The applicants had not taken steps to repaint the offending parts of their lot by the time the respondent held a meeting in March 2005. At this time the respondent resolved to issue a continuing contravention notice ("the notice") for a breach of By-law 6 - Structural Alterations and Extensions. The notice was issued on or about 29 March 2005.

An officer of the Office of the Commissioner for Body Corporate and Community Management contacted Mrs Dawn Adams a member of the Committee of the Body Corporate regarding what colours might be acceptable "heritage" colours that may receive the approval for use in the scheme. Mrs Adams advised that the respondent’s do not have an acceptable range of colours as they do not have it in their by-laws. She advised further that all homes in the scheme are in a heritage style and colour range.

The applicants have made application to the Commissioner for Body Corporate and Community Management seeking relief from this situation on 14 April 2005.

Determination

"Heritage Park" was registered in January 1992. Upon commencement of the Act it became subject to the provisions of the Act and the Body Corporate and Community Management (Standard Module) Regulation 1997 ("the Standard Module"). A new community management statement was registered on 11 May 2000. The scheme remains under the regulation of the Act and the Standard Module.

It is generally recognised that the bodies corporate of community titles schemes are responsible for the management of the scheme including the enforcement of the relevant community management statement (including by-laws) within the scheme. This is supported by sections 94 and 152 of the Act and 109 of the Standard Module. It is also 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 16 is quite specific regarding the repainting of lots. It requires that approval be given prior to repainting the lot. The applicants have not done this. The drafting of the by-law is not ambiguous and in my opinion applies to the current situation. It is clear that the applicants have contravened the by-law however whether the respondent has acted reasonably in the circumstances needs to be considered.

The respondent was unable initially to reach a view as to whether the selected colour (charcoal) was in keeping with the desired theme for the scheme. In light of this the applicant’s request was put to the all of the members of the scheme at the Annual General Meeting and failed to get the necessary support at the meeting. The decision to refuse the application was then that of the majority of members rather than the Committee’s solely. I am hesitant to upset this decision.
I believe the process used by the respondent was reasonable in the circumstances and will refuse to make the orders sought made by the applicants.

I will however make the point that the respondent must address the issue of using unclear and difficult to apply criteria in their decision making. I refer to the somewhat objective "heritage" paint criteria which applies within the scheme. As advised by Mrs Adams the respondent does not have any acceptable range of colours. During my research into this matter I discovered one paint supplier has over 140 different colours in their "heritage" range. (I will however make the comment that I was unable to find any charcoal or black colour amongst them.) By having no clear guidelines it makes it extremely difficult for owners to plan renovations and even more difficult for future Committees to make consistent decisions in this area. I would encourage the respondent to work with the applicants (which might include developing clearer criteria expeditiously) to resolve the matter within the time frames as required by this order.

I order that the application seeking permission to retain the existing colour of black (charcoal) on the garage door, trim and guttering made by the owners of Lot 6 - K & P Booker, is dismissed.

I further order that the owners of Lot 6 - K & P Booker make a further application to the Body Corporate of the Heritage Park Community Titles Scheme within 3 months of the date of this order for approval of a colour scheme for the garage door, trim and guttering on the lot.

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