Pinnacles Whitsunday [2005] QBCCMCmr 369 (8 July 2005)

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Catherine Meallin, the owner of Lot 24

I hereby order that Catherine Meallin, the owner of Lot 24 must remove the improvement made to common property in the form of the installation of a small key safe located near Lot 24 from common property and reinstate the common property to its original condition if the body corporate, at the next general meeting at which it is practicable to include a motion submitted in accordance with this Order does not authorise the making of the improvement in accordance with section 113 of the Body Corporate and Community Management (Accommodation Module) Regulation 1997.

I further order that Catherine Meallin, the owner of Lot 24 must as soon as practicable submit a motion to the body corporate in accordance with the requirements of the Body Corporate and Community Management (Accommodation Module) Regulation 1997 to request body corporate authorisation for the installation of the key safe on the common property near Lot 24.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0168-2005

"Pinnacles Whitsunday" CTS 31039

APPLICATION

This application is by Catherine Meallin, the owner of Lot 24 (applicant) against the body corporate (respondent). The applicant is seeking the following outcome, quote:

"That the small Key Safe belonging to Catherine Meallin be allowed to remain on the inside dividing wall adjacent to Unit 24 front door."

Mark Meallin has also been named as an applicant to the application. Given that Mark Meallin is not recorded on the registered title as an owner of Lot 24, and appears to reside in Rose Bay, it is questionable whether he has the capacity to be a party to the application. However, the reference to Mark Meallin should not prevent the application from proceeding as Catherine Meallin has been correctly named as the applicant. The applicant has also named Debbie and Warren Scottman as persons who would be affected by the outcome sought.

JURISDICTION

"Pinnacles Whitsunday" Community Titles Scheme 31039 is a scheme under the Body Corporate and Community Management Act 1997 (Act) and the Body Corporate and Community Management (Accommodation Module) Regulation 1997 (Accommodation Module).

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:

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)).

SUBMISSIONS

In accordance with the Act, submissions were called and a copy of the application was provided to the body corporate manager for distribution to the owner of each lot (excluding the applicant) and the committee. As the applicant subsequently provided further material, the applicant was required to distribute this material to all lot owners and the committee. A submission was received from the body corporate manager on behalf of the committee, Debbie and Warren Scottman (the resident unit managers for the scheme) and a number of lot owners. The applicant made a written reply to submissions under section 244 of the Act.

DETERMINATION

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

The applicant included a letter from a lot owner and a letter from the representative of a lot owner supporting the installation of the applicant’s key safe. One submission made in response to the Commissioner’s invitation supported the application. The applicant also provided one unsigned letter of support in the reply to submissions.

Five submissions opposed the application for reasons, including:

I have noted that a number of statements have been made about the lease management arrangements for lots in the scheme. I wish to make it clear that these comments have been disregarded in the making of this order. This is a dispute with respect to the use of common property by a lot owner, and the determination made is based on this fact.

"Pinnacles Whitsunday" was established by the registration of the building format plan of subdivision. A building format plan "defines land using the structural elements of a building, including, for example, floors, walls and ceilings". Structural elements "of a building, includes projections of, and references to, structural elements of the building" (section 48C, Land Title Act 1994). Section 49C of the Land Titles Act 1994 provides that "except to the extent permitted under directions of the registrar about the required format for a building format plan of subdivision, the boundary of a lot created under the plan, and separated from another lot or common property by a floor, wall or ceiling, must be located at the centre of the floor, wall or ceiling". The plan of subdivision (SP 144387) shows the lots in the scheme and the common property. Generally, the boundary on each Lot is the centre of the floor, wall or ceiling. The parts of scheme land which are not part of the Lots included in the scheme are common property.

Section 35 of the Act provides that owners own the common property as tenants in common which gives each owner a general proprietary right to use the common property. Sections 94 and 152 of the Act provide that the body corporate administers, manages and controls the common property. A lot owner may only perform work on the common property, or make use of the common property if authorised by the Act or by a body corporate in accordance with the Act, or in accordance with a body corporate by-law. Section 113 of the Accommodation Module provides for improvements to common property by a lot owner for the benefit of the owner’s lot. Section 146 of the Accommodation Module specifies that the body corporate must keep a register recording each authorisation for the owner of a lot to make an improvement to common property for the benefit of the owner’s lot. By-Law 6 "Damage to Common Property" of the scheme By-Laws may also be applicable.

The facts of this matter are that the applicant installed a key safe on the common property adjacent to Lot 24 without body corporate approval. The record of a motion voted on other than at a committee meeting and passed on 12 January 2004 (sic 2005) indicates that it was resolved by 6 votes to nil that the body corporate would not approve the installation of a key safe to Lot 24. The body corporate manager has also provided the record of a motion voted on other than at a committee meeting and passed on 1 June 2005 granting approval to the managers of the complex to have a key safe and key return box located outside the reception area, for the sole use of operating their business from Lot 1.

In my view, the installation of the key safe on the common property adjacent to Lot 24 constitutes an improvement to common property. The term "improvement" is defined in Schedule 6 Dictionary of the Act as, quote:

(c) a non-structural change, including, for example, the installation of air conditioning.69

69 Change includes addition--see the Acts Interpretation Act 1954, section 36, definition change.

The key safe is an addition to common property. The applicant has stated that the key safe was installed for the reasonable enjoyment of the lot. I agree with this statement which effectively means that the key safe was installed for the benefit of the owner’s lot. Therefore, in my opinion, the provisions of section 113 of the Accommodation Module apply. Section 113 states, quote:

(1) The body corporate may, if asked by the owner of a lot, authorise the owner to make an improvement to the common property for the benefit of the owner’s lot.

(2) The improvement must be authorised by special resolution of the body corporate unless--

(b) the improvement does not detract from the appearance of any lot included in, or common property for, the scheme; and

(c) the body corporate is satisfied that use and enjoyment of the authorised improvement is not likely to promote a breach of the owner’s duties as an occupier.

(3) An authorisation may be given under this section on conditions the body corporate considers appropriate.

(b) must maintain the improvement made under the authority in good condition, unless excused by the body corporate.

A minor improvement is defined in the Dictionary of the Accommodation Module as "an improvement with an installed value of $250 or less".

The installation of the key safe could have been considered by the committee if its installation satisfied the provisions of section 113(2) of the Accommodation Module. However, for the following reasons, I have determined that this matter should be submitted for the consideration of lot owners in general meeting.

Firstly, the key safe may or may not be a "minor improvement". This is a matter for the applicant to consider initially. If the applicant considers that it is a "minor improvement", then the applicant must provide adequate material to the body corporate indicating that the requirements of section 113(2) are satisfied. A motion submitted to a general meeting requesting body corporate authority to make a "minor improvement" to the common property is resolved by ordinary resolution. If the installation of the key safe does not constitute a "minor improvement" the motion must be decided by special resolution of the body corporate.

Secondly, this is a relatively new scheme established in 2003. I note from the submissions and other written material provided that there is a degree of support and opposition to the installation which may or may not affect the appearance of the scheme, and establish a precedent. It is common for a development of this nature and size to establish and regulate the appearance of lots and common property, and to regulate the use of common property by individual lot owners. Such standards provide guidelines for the appearance of the complex and the use of common property where it is desirable to maintain a level of uniformity. It is reasonable for a body corporate to consistently apply such standard rules to protect the rights of all lot owners. Given that the scheme has only been established for approximately 2 years and that this decision could conceivably have a lasting effect on the management of the body corporate and bind future body corporate decisions on related requests, the body corporate should, in my view, make the determination on this matter. Therefore, in my opinion, even if the installation is a "minor improvement" it is appropriate that the installation is tested at a general meeting of the body corporate in accordance with the requirements of section 113 of the Accommodation Module.

For these reasons, I have ordered that the installation of the key safe on common property near to Lot 24 is subject to consideration by the body corporate in general meeting. The key safe can remain on the common property provided the body corporate properly authorises the installation. I have also ordered that the owner of Lot 24 must submit a relevant motion requesting the authority of the body corporate. The applicant should note that the submitter of a motion has a right under section 40C of the Accommodation Module to include an explanatory note about the motion of not longer than 300 words.

By-law 6 of the scheme By-Laws relates to damage to common property, including installing a locking or safety device. In my view, this by-Law does not apply to the installation of the key safe.

It is evident that the committee has approved the installation of another key safe for the managers of the complex. In the absence of any special privilege to the managers in for example, the scheme by-Laws, it should be noted that the provisions of section 113 of the Accommodation Module may also apply to this installation if it is on the common property for the scheme and it can be demonstrated that the key safe is for the benefit of the owner’s lot. Consequently, this may be a matter which may also have to be put to lot owners in general meeting.

It should also be noted that in making a decision or decisions, the body corporate has an obligation to act reasonably and for the benefit of the lot owners.

Number of Scheme:	31039
Name of Scheme:	Pinnacles Whitsunday
Address of Scheme:	16 Golden Orchid Drive AIRLIE BEACH QLD 4802

(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.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Pinnacles Whitsunday [2005] QBCCMCmr 369 (8 July 2005)