Bauhinia [2005] QBCCMCmr 44 (28 January 2005)

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

I hereby order that the application for the following orders –

"1. The new structure is demolished.

2. (a) If a class 10 building building is to be built on the site then all by-laws are to be complied with. The points are already detailed in our letter to PBC dated 19-10-03.
(b) PBC and ARC are not allowed to give exemption to clauses of the by-laws which impact on our lot.
(c) The final approval of drawings occurs only after we are consulted and that our views are taken into account.
(d) Clause 3.12.2. The structure does not adversely affect our amenity. Aesthetics of the building are in keeping with the character of our lot.
(e) Clause 2.10.2. The details of finish as detailed in this clause area is givern to us for approval.

3. Clause 3.10.1(b). That the conduct of PBC and ARC being considered as wilful misconduct or bad faith due to their failure to uphold the by-laws as well as their failure to investigate what has occurred on the site and accepting the new structure (cabana) as existing when it is new",

is dismissed.

STATEMENT OF REASONS FOR REFEREE’S DECISION - REF 0694-2003

"Bauhinia" GTP 1701

The applicant also sought an interim order for the works to cease until such time as the dispute was investigated, however at the time the amended application was in a form to proceed, the work had been largely completed and the application for an interim order was to no purpose.

JURISDICTION:
This is a dispute between an owner (the applicant Mellish) and both the Principal Body Corporate ("PBC"), and another owner, Mediterranean Consulting Limited of Lot 75, as first and second respondents respectively, concerning an alleged breach of by-laws by the second respondent in the construction of structures on or near the eastern boundary of its lot, and by the first respondent in not properly monitoring and halting the construction.

Jurisdiction for a Referee under the Building Units and Group Titles Act 1980 ("the BUGT Act") to determine matters arising under the Sanctuary Cove Resort Act 1985 ("the SCR Act") was provided for by the following amendment to the SCR Act commencing from 4 March 2003 –

In my Statement of Reasons to other applications I have commented on the inadequacy and inappropriateness of the above and similar amendments purporting to give jurisdiction to deal with disputes arising under the SCR Act and other specified Acts (see sections 5A and 325 of the Body Corporate and Community Management Act 1980). I refer, for example, to the statement of reasons to Interim Order 209-2003 for "Bauhinia" of 25 February 2004, and also to Order 377-2004 for "Roystonia and Colvillia" of 12 January 2005 where jurisdiction to deal with certain matters under the SCR Act was found not to exist. Both of these orders relate to residential bodies corporate within the Sanctuary Cove Resort complex, being residential subsidiary bodies corporate to the PBC. The reasons to both of those orders, in particular the comments concerning jurisdiction, are not determinative of this application, but may be of assistance in a general understanding of the reasons to this order and any other for a specified Act – the orders and reasons are readily available by linkages given in the departmental website.

Despite the flaws outlined in those statements of reason, I intend to assume jurisdiction exists in respect of this dispute at least so far as it concerns the application of by-laws of a PBC.

APPLICATION AND SUBMISSIONS:
Under section 73(1)(c) of the BUGT Act, a copy of the application was supplied to Mediterranean Consulting Limited (director John Baines), through its solicitors Summerton De Vere (Michael De Vere) and to the PBC through its secretary David Wall of Body Corporate Services, the Body Corporate Manager to the resort complex. Both respondents made written submissions to the application, opposing the application. The applicant Mellish inspected the submissions and subsequently made a written response.

The applicant contends that the respondents have not only breached the PBC Development Control by-laws but commenced the construction without the proper prior approvals. The common boundary (eastern boundary of applicant’s lot) comprises the controlled aspect wall of the applicant’s lot.

The applicant has supplied a comprehensive list as to how the construction breaches various by-laws, including as to the height, the projection of guttering, the composition of the material used, distances to the boundary line, the soundness of the construction, and other technical matters. She is also concerned that the PBC and the ARC have allowed improper structures to be built, has allowed the respondent to avoid the correct process for having structures approved (plans, timing etc), and, also, there has not been true independence in the approval process and, at the least, there has been wilful misconduct or bad faith by PBC and ARC.

The applicant claims the result is that, "The amenity and aesthetic of the new structure are impacting on our lot" and "Our view along the waterway and access to breeze will be significantly reduced as well as the visual aspect of the facing to our lot is not in keeping with details of the existing structures."

The solicitor for the respondent has submitted that its client had consulted the applicant on 16 October 2003 when she stated being satisfied with the proposed structure. The respondent also states that the views enjoyed by the applicant were only available because the boundary structure was only ever 1.25m though under the PBC Development Control By-law 2.11.1(c) it can be 2.00m (the constructed wall is reportedly 1.54m). Further, it claims that all approvals were obtained and has submitted a copy of the recommendation for approval by ARC dated 13 June 2003 and the subsequent approval by the PBC of the respondent’s plan (with 2 minor conditions) by letter to Baines dated 24 October 2003 and his architect (MPS Architects) dated 11 November 2003.

The PBC submitted copies of a large number of relevant documents relating to decisions and actions by ARC and PBC, and correspondence with Mellish and MPS Architects for the respondent. It acknowledges that Mellish brought to its notice aspects of the proposed work that did not comply with the Development Control by-laws, resulting in the respondent having to submit an amended plan which was subsequently approved. An independent architect, Design Imagery, was engaged by PBC which reviewed the plans and recommended approval in its report of 20 October 2003.

I have all of the submissions of the parties though do not propose to reiterate all of the points here, for example, all of the breaches alleged by the applicant against the respondent’s structures.

DETERMINATION:
"Bauhinia" was registered as a group titles plan under the BUGT Act on 18 August 1987 and comprises 91 residential lots. It is one of the residential bodies corporate subsidiary to the principal body corporate-residential precinct (PBC) which is itself, along with non-residential precincts, subsidiary to the primary thoroughfare body corporate (PTBC). It comprises mostly "harbour front" and "river front" villas such as the applicant’s and respondent’s respective Lots 74 and 75 situated on Anchorage Terrace facing the Coomera River.

At the outset I must apologise to all parties concerned with this dispute for the delay in the issue of this order.

The simple reason is that after my visit to Sanctuary Cove to inspect the physical aspects of the dispute, the body corporate secretary Wall (who was present at the inspection) offered to attempt to mediate what was essentially a simple dispute between the parties. Having placed the dispute into abeyance, I was unaware that Wall had subsequently written to this office on 21 April 2004 advising that the attempt was unsuccessful. I would point out that had the applicant (or the respondent) inquired as to the progress of the application then this would have brought the file and the oversight to my attention.

My visit to the resort on 7 April 2004 was to view the construction complained of by the applicant Mellish. The inspection took place in the presence of Mellish and Mr Mellish, and as previously stated, David Wall. Following the inspection of the structures on or near the eastern boundary of the respondent’s Lot 75, Mr Mellish reviewed the relevant by-laws and the conduct of the PBC and the Architectural Review Committee ("ARC") which both the applicant and he believed was improper in allowing the structures to be built.

There is no doubt that Mellish (in particular Mr Mellish) has sieved the development control by-laws to determine what aspects of the construction are or may be in breach – I have mentioned the major ones and do not intend to revisit them or deal with them in detail.

While the applicant states "The core of our dispute is that ... the construction is not in accordance with the Sanctuary Cove Principal Body Corporate by-laws", the real concern of the applicant is not that the respondent has breached development/construction by-laws, but that their river view has been limited and, they claim, the breeze to their lot also.

At the inspection I asked both the applicant and Mr Mellish what in particular was their major objection to the structure. The response was that their view of the river towards the east was now reduced by the increased height of the stepped wall constructed on the respondent’s lot. An example of that given was that while previously they enjoyed a view of the eastern reach of the river while breakfasting on the elevated area of their lot, that view was no longer available.

I did point out to them that if the river end of the stepped wall was reduced in height then while it is true that they may recover some of that view, the privacy now afforded by that raised wall of persons using the adjoining (pool) area of the respondent’s lot, would be lost. Without the wall the upper part of persons’ torsos would be visible. I suggested that the loss of the river-reach view (though retaining a much more significant view of the river immediately adjoining their lot) was more than compensated for by the screening off of persons using the pool/recreation area in Lot 75. Neither Mr nor Mrs Mellish agreed with that view and of course that is a personal matter.

However, it was and still is my opinion that this matter is not a dispute of substance that warrants adjudication – it simply largely concerns, in the end, views of a large part of the river as opposed to a view of an even larger part of a river, and is a matter that should be resolved between the parties themselves, if necessary with the assistance of a trained mediator. If that assistance is necessary I would refer the parties to the Dispute Resolution Centre of the Department of Justice and Attorney-General. I have read the submissions of the applicant in respect to the breaches of by-laws and am of the opinion that the breaches, where they exist, are minor in that they have not led to any damage or adverse affect on the applicant’s use and enjoyment of her lot. As to the allegations against the PBC and ARC, a Referee does not have a policing role and even if they did act as the applicant maintains, which I do not say, there is no sanction I can order of the kind sought by the applicant.

Under the power available to me under section 75(4) of the BUGT Act, I dismiss the application.

Having made that decision, it might be that the silence of the applicant in not pursuing the progress of the application is because an accommodation of the differences has been reached with the respondent, or the applicant has accepted the structures in preference to a continuing point of contention with a neighbour, in which case any order is of no service or value. However, in the absence of a withdrawal I have had to formally deal with it.

Number of Scheme:	GTP 1701
Name of Scheme:	Bauhinia
Address of Scheme:	Sanctuary Cove HOPE ISLAND QLD 4212

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Bauhinia [2005] QBCCMCmr 44 (28 January 2005)