Hossegor [2005] QBCCMCmr 409 (29 July 2005)

Last Updated: 19 July 2006

REFERENCE: 0194-2005

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	7590
Name of Scheme:	Hossegor
Address of Scheme:	14 Rivera Street MIAMI QLD 4220

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

Helen Maree Montgomery, the Owner(s) of lot 4

I hereby order that in relation to the application seeking an order that pavers installed on common property by the Respondents (Debra and Francis Taylor – owners of Lot 1) be removed in this matter that the Body Corporate will approve their installation within 6 months of the date of this order conditional upon them having been installed by a qualified tradesperson. I order further that if the above condition is not complied with then the pavers will be lifted and the area returned to its original condition by 1 April 2006. I order further that the costs associated with complying with this order will be paid for by the Respondents. I order further that in relation to the application seeking an order that the cat cage installed by the Respondents be removed that the Respondents remove the cat cage within 6 months of the date of this order unless approval is given by the Body Corporate before the final date for compliance with this order. I order further that in relation to the application to remove the Respondents cat that the Body Corporate will approve the keeping of this one cat only by the Respondents within their lot only and not on any part of the common property within 6 months of the date of this order. I order further that in relation to the application regarding payment of the extra expense of treating for Redback Spiders that each lot owner is to pay the cost (between $20 and $30) above the pest treatment costs as agreed at the AGM. I order further that in relation to the application seeking evidence of approval of the installation of the roof on the Respondents pergola I order that the Body Corporate approve the installation of the roof within 6 months of the date of this order conditional upon it having been installed by a qualified tradesperson. I order further that if this condition is not complied with that the roof is to be removed by 1 April 2006. I order further that the costs associated with complying with this order will be paid for by the Respondents. I order further that all other orders sought in this application are dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0194-2005

"Hossegor" CTS 7590

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

1.	Remove bamboo structure on common property;
2.	Remove pavers on common property;
3.	Remove the pet cage on common property;
4.	Restore the termite barrier interfered with by extension to interior/exterior wall;
5.	Remove cat;
6.	Provide evidence of council permit for pergola roof;
7.	Obtain body corporate approval for changes to exterior walls/common property;
8.	Provide evidence of the integrity of the concrete slab after changes to extensions;
9.	Detailed identification of any changes to common property that occurred as a result of extensions;
10.	Provide evidence regarding the effects of stability of the building as a result of repositioning of interior/exterior ground floor walls;
11.	Provide clarification of any changes made to common property eg front doors.

Jurisdiction:

This is a dispute between an owner (Helen Montgomery - the Applicant) and other owners (Debra and Francis Taylor – the Respondents) of lots in the Hossegor Community Titles Scheme concerning the nature and extent of renovations made to their lot and common property. This is a matter that 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 other owners within the scheme with an invitation to them to respond to the matters raised in the application. The Respondents have provided a submission to the application.

The brief facts of the matter are as follows. The Applicant alleges numerous breaches of the Act, regulation module and by-laws applicable to the scheme principally as a result of renovations done by the Respondents to their lot and improvements to the common property. To resolve these matters the Applicant seeks 12 different orders which are listed above. I propose to outline each issue, outline the allegations from the Applicant and reply by the Respondents and thereafter make my determination on each issue.

Determination:

"Hossegor" was established as a building units plan (now termed a building format plan) in 1987. Having been established under the Building Units and Group Titles Act 1980, under the transitional provisions of the (new) Act it became subject to the provisions of the (new) Act upon its commencement. A new community management statement was lodged in 2000 which brought the scheme under the regulation of the Body Corporate and Community Management (Standard Module) Regulation 1997 ("the Standard Module"). Despite these legislative changes the by-laws applicable to the Hosseger scheme remain those as provided in Schedule 3 of the Building Units and Group Titles Act 1980.

The Applicant has raised the following issues:

Bamboo structure on common property

The Applicant alleges that the Respondents have installed a bamboo structure on the front fence line which is on the common property of the scheme. The Applicant alleges further that the installation was without Body Corporate approval.

The Respondents advise that they had installed a bamboo structure to give them some privacy. They go on and advise that the structure has now been removed. They make no comment regarding its location being on common property or otherwise. I do note that they do not specifically deny this aspect of the allegation.

As the bamboo structure no longer appears to be in place I can see no reason to make the order as sought. I will however make the comment that if an improvement is made to common property then it is usual that Body Corporate approval is first obtained (see section 159 of the Act and section 114 of the Standard Module). To do otherwise may result in legal action being taken against the offending lot owner and the imposition of significant costs in the form of legal fees, rectification costs etc.

Accordingly I will make no order regarding this aspect of the application.

Remove pavers on common property

The Applicant alleges that late in 2004 the Respondents installed pavers onto common property without Body Corporate approval. The Applicant has provided a photograph of the subject area which appears to be about 16 square meters in area.

The Respondents acknowledge the presence of the ‘new’ paved area and state that this area was previously ‘grassed’. The Respondents advise that the grass did not grow well because of the surrounding trees. They do not deny the allegation that Body Corporate approval was not given prior to the installation of the pavers.

I accept that the Respondents have installed the pavers without the prior approval of the Body Corporate (as required in By-law 4 of the Community Management Statement, section 159 of the Act and section 114 of the Standard Module). I also accept that the subject area would be shaded by the surrounding trees and therefore difficult keep grass growing on.

In determining what order I will make regarding this matter it is relevant to note that common property is property owned by all owners and managed on their behalf by the Body Corporate. Therefore it is important to consider the nature of the unauthorised improvements and their ‘value’ to all lot owners collectively.

As the improvements have already been completed to order their removal would be counter- productive to all lot owners and occupiers within the scheme generally. Therefore I will order that the Body Corporate approve their installation within 6 months of the date of this order conditional upon them having been installed by a qualified tradesperson. I would expect that if this condition is not complied with that the pavers will be lifted and the area returned to its original condition or a qualified tradesperson would be engaged to reinstall the pavers. I will also order that the costs associated with these works will be borne by the Respondents.

Remove the pet cage on common property

The Applicant alleges that the Respondents constructed a large pet cage (cat enclosure). The Applicant alleges that the cage was installed without Body Corporate approval on common property. The Applicant states that the timber construction is of concern because of the ongoing problems with termites in the area. The Applicant points out that regular pest inspections identify the necessity to remove timber which is termite susceptible being in contact with the ground and the building. The Applicant also alleges that the cage is highly visible from the street. To this end the Applicant has provided photographs of the cage taken from a location next to some rubbish bins. I note that the Applicant has only just recently taken issue with the cage.

The Respondents do not deny that the cage is on common property or that they did not receive approval from the Body Corporate before its installation. They say that the cage is constructed of treated timber which is termite resistant. The Respondents have provided photographs of the cage as seen from the street.

I am unable to clearly identify the cage in the photographs provided by the Respondents. The cage appears to blend in with the surrounding foliage etc. I do not believe its installation detracts from the amenity of the scheme however by its nature the cage limits access to this area of the common property as a thoroughfare or simply its use by other lot owners or occupiers. As mentioned above common property is property owned by all owners and managed on their behalf by the Body Corporate.

Free access to all areas of common property is a right that all lot owners and occupiers must enjoy and accordingly I will make an order that the cage be removed as correct Body Corporate approval has not been secured. If the Respondents wish to seek the necessary approvals them they will need to seek approval in accordance with section 114 of the Standard Module. I will order that the Respondents remove the cat cage that is located on common property within 6 months of the date of this order.

Remove cat

The Applicant alleges that the Respondents brought a cat into the scheme without the requisite Body Corporate approval in 1997. The Applicant alleges that the Respondents cat died and they acquired a second cat from a former neighbour. The Applicant alleges that the Respondents were advised of the need to seek Body Corporate approval to keep an animal but despite this have never sought the required approval. The keeping of any animal within the scheme is subject to By-law 11 (Keeping of animals) which requires written consent to keep an animal in a lot or on common property.

The Respondents admit that they have a cat which was acquired from an animal refuge but deny cat ownership when they moved into the scheme. The Respondents say that the presence of the cat has not been a ‘secret’ and that all other owners have known about the cat for a significant period of time. The Respondents advise that the presence of the cat has never been the subject of any complaint to their knowledge. This is no doubt due to the Respondents ‘vigilance’ and level of care provided to the cat.

Considering the length of time the cat has been ‘in residence’ and not the subject of significant complaint I will order that the Body Corporate approve the keeping of this one cat only by the Respondents within their lot only and not on common property. This approval is to be given within 6 months of the date of this order. To be very clear my order relates to the one cat currently in residence. It does not provide a precedent for the Respondents to acquire a further (second) cat or another in the future without the prior written approval of the Body Corporate. Any further applications to the Body Corporate will have to be dealt with on their merits and may be refused.

In the event that Body Corporate approval is given for the installation of a cat cage (as referred to above in the discussions re the installation of the cat cage) then necessarily the Body Corporate is to approve the cats’ presence on common property in the cage only.

Pest control

The Applicant alleges that a pest treatment for spiders (at a cost of $70-80 per lot) was performed on the say so of one of the Respondents (in particular Francis Taylor). This treatment had not been approved however a cockroach treatment had been previously approved at the AGM at a cost of $50 per lot. The Respondent raises the issue that this is an example of the unilateral decision making that goes on in the scheme and how little regard is had for usual body corporate approval processes.

The Respondents state that a cockroach treatment had been approved (at the recent AGM) and for convenience the lot owners agreed to be charged $50 each for the service payable when they were levied other payment to other funds administered by the Body Corporate. However during the treatment Redback Spiders were discovered. The Respondents (Francis Taylor) made an effort to contact other lot owners however only spoke with the occupier of one lot regarding the matter who agreed that the spider treatment should proceed. The Respondents advise that another issue considered was the presence of young children in the scheme. For these reasons a decision was made to treat for the spiders without reference to the usual approval process. The Respondents suggest that this approach was only sensible considering the possible consequences to some occupiers of a bite.

In addressing this matter it is important to clearly identify in what context the initial pest treatment was ‘approved’ at the AGM. The treatment appears to be as per section 119 of the Standard Module, an ‘agreement to supply services by the body corporate’. Such agreements typically include ‘bulk’ pest control treatments for lot owners. Not all lot owners need be included in agreements of this sort if they choose not to be. Accordingly they would attend to the matter themselves at their own expense.

The actions of the Respondents (Francis Taylor) were reasonable in the circumstances. The cost of having to do the work done at a subsequent visit, the clear urgency and possible life threatening consequences to all lot owners (and occupiers and casual visitors) and efforts to raise the matter with other lot owners are all matters that I have taken into account. I therefore believe that the extra treatment and associated expense incurred by each lot owner is reasonable. The just and equitable order that must follow is that each lot owner is to pay the extra cost of the Redback Spider treatment.

Renovations

The balance of the issues raised by the Applicant relate to the renovations done by the Respondents. The Applicant alleges generally that neither the Body Corporate or local government approval have been given for these works.

The renovations and associated issues are:

• Remodelled their kitchen, bathroom and toilet;
• Installed a roof onto the pergola;
• Enclosed their garage (walls and new doors);
• The structural integrity of the scheme building may have been affected by the movement of an internal wall;
• Disturbed the chemical termite barrier.

The Respondents have provided an extensive reply to these allegations. I will deal with their reply under the following headings.

Renovations - Kitchen, bathroom and toilet

The Respondents advise that they did renovate the kitchen, bathroom and toilet in their lot but did not move any walls internally or externally. The Respondents also advise that the toilet was not moved.

Internal renovations of the sort discussed above do not generally require Body Corporate approval. There is nothing in the by-laws applicable to the scheme, the Act or Standard Module which requires approval for these types of renovations. Whether there are local government approvals that are required to be given is not a matter I have jurisdiction to consider. The enforcement of local government regulations is a matter for the relevant local authority.

Accordingly I will make no order regarding this aspect of the application.

Renovations – Roof on pergola

The Respondents admit that they have caused a roof to be installed onto the pergola as was done to other units in the scheme. The Respondents admit that they did not receive the necessary Body Corporate or local government approval to undertake this work. They explain that they are now seeking local government approval and will seek Body Corporate approval in due course.

The pergola is of course common property and is the property of all owners within the scheme and managed on their behalf by the Body Corporate. The installation of the roof on any pergola within the scheme would require the necessary Body Corporate approval in accordance with section 159 of the Act and section 114 of the Standard Module and By-law 5.

As the roof is now in place it would be unreasonable to order its removal. Therefore I will order that the Body Corporate approve the installation of the roof within 6 months of the date of this order conditional upon it having been installed by a qualified tradesperson. I would expect that if this condition is not complied with that the roof be removed or a qualified tradesperson be engaged to reinstall it. I will also order that the costs associated with these works be borne by the Respondents.

Renovation (enclosure) of garage and structural integrity of scheme building

The Respondents state that during the process of organising the renovations to the kitchen, bathroom and toilet they became aware of the limitations that they had to operate under (i.e. they could not extend or improve common property without approval). This caused them to reconsider their original plans to extend their living space. It was decided to enclose the garage to achieve their objective. The respondents advise that these renovations did not affect any structural elements of the scheme building.

Internal renovations of the sort discussed above generally do not require Body Corporate approval. There is nothing in the by-laws applicable to the scheme, the Act or Standard Module which requires approval for this type of renovation. Whether there are local government regulations that are required to be complied with is a matter I do not have jurisdiction to deal with. The enforcement of these regulations is a matter for the relevant local government.

Accordingly I will make no order regarding this aspect of the application.

Renovations - Chemical termite barrier

The Respondents advise that, as far as the integrity of the chemical termite barrier is concerned that no alterations were made to the existing floor slab or walls and therefore no damage was done to the integrity of the chemical termite barrier that is in place. The Respondents admit that they have enclosed their garage which brought the new garage walls down into close vicinity of the ground however they did seek professional advice on how to minimise the chances of termite invasion and have implemented this advice.

Accordingly I will make no order regarding this aspect of the application.

External door

The Applicant also seeks clarification of the ‘changes to common property’ in particular the front door to unit 1. Although I believe that the common property issues are mostly addressed in the body of this decision I will comment on the front door situation.

Pursuant to section 109 of the Standard Module a front entrance door which separates a lot from common property is the responsibility of the Body Corporate. Therefore if a lot owner wishes to change their front door then the necessary approvals must be given. As no specific orders are sought by the Applicant and on the advice that the doors have not been changed to date I can see no reason why any order need be made regarding this aspect of the application.

Accordingly I will make no order regarding this aspect of the application.

Annual budgets and Statement of income and expenditure

I will now turn to the issue of the budgets as raised by the Applicant. The Applicants concern in raising the financial records is unclear. The Respondents have provided no specific comments on this issue either. I am therefore at a disadvantage in dealing with this matter as there is insufficient information provided for me to identify any clear breaches of the legislation. Accordingly I will make no orders on this issue.

I will make the general comment that it is critical that accounts of this nature are accurate in all respects and can be readily explained when questions are put to the Body Corporate Manager. Part 7 of the Standard Module deals with the financial management (including the keeping and presentation of specific records) of a community titles scheme. It may be prudent for the Body Corporate Manager at this time to inform all owners of the nature of the issue raised and be available to explain any issue or question that may arise from owners.

Accordingly I will make no order regarding this aspect of the application.

Conduct of Applicant

It is alleged that the Applicant is attempting to take steps to remove the current Body Corporate Manager from their appointed role unilaterally. The Respondents express some concern about this and the Body Corporate Manager has already replied to the Applicant regarding this situation. I have considered all materials provided in this matter and are unable to find any issue which I can address by way of making any order involving the Body Corporate Manager. I will however advise generally that a body corporate manager is engaged to provide body corporate services to the scheme and should not be subject to unnecessary interference without good reason.

Accordingly I will make no order regarding this aspect of the application.

Comments about the application

It is apparent from the application and the reply provided by the Respondents that all parties have been placed in difficult situations on occasions in trying to ‘keep the peace’ yet achieve their desired outcomes. Regretfully sometimes misunderstandings can cause considerable problems which I believe may be the root of a number of the issues raised in the application. I make this statement on the basis that a good number of the issues raised were resolved simply by sharing information. I will also make the general observation that community titles living necessarily requires concessions by all parties and I would encourage all parties to accept that this type of approach is required more often than not. Unreasonably blocking motions which are properly brought for no good reason will just cause future problems.

I will say that I concur with the Applicant’s general approach of trying to ensure that the scheme is run in accordance with the legislation as much as is possible. The legislation, despite its complexities in some areas, provides a system that facilitates an equitable approach to managing community titles schemes. This is why all parties involved in community titles living should make themselves fully aware of the processes required under the legislation. A ready source of information is of course the Information Service a service provided by the Office of the Commissioner for Body Corporate which provides free information and general advice to any person. I would encourage all parties to consider using this resource.

Orders:

In resolving this dispute I make the following orders:

I hereby order that in relation to the application seeking an order that pavers installed on common property by the Respondents (Debra and Francis Taylor – owners of Lot 1) be removed in this matter that the Body Corporate will approve their installation within 6 months of the date of this order conditional upon them having been installed by a qualified tradesperson. I order further that if the above condition is not complied with then the pavers will be lifted and the area returned to its original condition by 1 April 2006. I order further that the costs associated with complying with this order will be paid for by the Respondents.

I order further that in relation to the application seeking an order that the cat cage installed by the Respondents be removed that the Respondents remove the cat cage within 6 months of the date of this order unless approval is given by the Body Corporate before the final date for compliance with this order.

I order further that in relation to the application to remove the Respondents cat that the Body Corporate will approve the keeping of this one cat only by the Respondents within their lot only and not on any part of the common property within 6 months of the date of this order.

I order further that in relation to the application regarding payment of the extra expense of treating for Redback Spiders that each lot owner is to pay the cost (between $20 and $30) above the pest treatment costs as agreed at the AGM.

I order further that in relation to the application seeking evidence of approval of the installation of the roof on the Respondents pergola I order that the Body Corporate approve the installation of the roof within 6 months of the date of this order conditional upon it having been installed by a qualified tradesperson. I order further that if this condition is not complied with that the roof is to be removed by 1 April 2006. I order further that the costs associated with complying with this order will be paid for by the Respondents.

I order further that all other orders sought in this application are dismissed.