Doubleview Terrace [2005] QBCCMCmr 484 (30 August 2005)

Last Updated: 30 September 2005

REFERENCE: 0308-2005

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	23551
Name of Scheme:	Doubleview Terrace
Address of Scheme:	2 Simpsons Road CURRUMBIN WATERS QLD 4223

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

Darrell Paul Olive and Wendy Lee Olive, the Owner(s) of Lot 27:

I hereby order that Darrell Paul Olive and Wendy Lee Olive need not replant or re-instate the two Tea-trees previously felled. I order further that Darrell Paul Olive and Wendy Lee Olive will remove all the lopped branches from the vicinity of the scheme at their own cost within 1 month of the date of this order. I decline to make any order on the deck issue on the basis that I have no jurisdiction to deal with this aspect of the application.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0308-2005

"Doubleview Terraces" CTS 23551

This application seeks an order of an adjudicator under the Body Corporate and Community Management Act 1997 ("the Act"):-

"A declaration that the Applicant has constructed the deck and roofing structure in accordance with the approval granted by the Body Corporate; and
That the Applicant not be required to replant or reinstate any trees previously felled at the direction of the Chairman."

The Applicants (Darrell and Wendy Olive) seek these orders against the Body Corporate of the Doubleview Terraces Titles Scheme (the Respondent).

Jurisdiction:

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 Respondent and all other owners within the scheme with an invitation to them to respond to the matters raised in the application. The Respondent and some owners have provided submissions to the application.

The brief facts of the matter are as follows. The Applicant alleges that they put a letter to the Respondent which was considered at a Committee meeting held on 9 October 2004 seeking approval to replace and extend their deck as it was in poor condition. Relevantly, the Applicant admits that the Respondent gave approval upon certain conditions which included that all necessary approvals were received, a copy of the plan is submitted to the Respondent and that work is to be undertaken by a qualified tradesman.

The Applicants admit that their written request did not include a request to build a roof over the deck however do state that they made it clear at the meeting that their plans included a roof. The Applicants state that even the colour of the roof was discussed. Despite these discussions the Applicant states that the Respondent failed to record these extra details in the minutes of the meeting.

The Respondents provided written approval to the Applicants for their deck in a letter dated 29 November 2004. The letter relevantly provided that:-

"We would ask that once Council approval is gained that a copy of this be sent to this office for our files."

The Applicants allege that the necessary approvals were secured and work completed on the deck (including the roof) in early January 2005. The Applicants allege that in accordance with the conditions of the approval given by the Respondent a copy of the Council approval (Development Application Decision Notice with plans) was provided to the Respondent in December 2004.

Despite this the Respondent sent a letter requesting that no further work was to proceed until such time as the plan was provided in accordance with the approval conditions. A further letter was received in late January 2005 from the Respondents requiring the removal of the roof as it was not in keeping with the appearance of the scheme and should be removed. The deck and roof had of course been completed by this stage.

A further matter raised by the Applicant is the ‘approval’ was given by the Chairman of the Respondent (Bill Horwood) for the removal of two Tea-trees which overhung the Applicants’ Lot. The Applicants allege that the trees posed a fire hazard and that they had spoken with the Chairman who gave his ‘approval’ and actually witnessed the ‘removal’ of the trees. The trees were not totally removed but severally lopped down to a height of 1 metre above the ground.

Shortly after this event the Applicants received a letter from the Respondent mentioning that the tree lopping was not approved and further that the Applicant had left branches from the tree on the ground. The Applicants suggest that they were acting with the ‘approval’ of the Chairman in undertaking the tree lopping.

In reply to the application the Respondents allege that no discussion was had at the meeting held 9 October 2004 regarding the inclusion of a roof on the deck. The Respondent states that a roof is totally inconsistent with the appearance of the scheme where none of the decks have roofs and that on this basis no roof would have been approved by the Respondent in any event.

A reply has been provided on behalf of the Chairman of the Respondent which indicated that at no time did he discuss the dimensions of the deck with the Applicants or had he given any ‘approval’ for the removal of any trees. It goes on to say that as no other decks within the scheme have a roof then approval would not had been given for a roof in this current matter.

Other replies raise associated issues such as nuisance and privacy. An adjoining lot owner to the Applicants Lot complains that the cream coloured roof materials causes significant glare and reflects heat into their lot. A further issue raised is that, due to the position of the deck, their privacy is affected in that people on the deck and can look straight into the living area of the lot.

Determination:

"Doubleview Terraces" is a community titles scheme which is now regulated by the (new) Act. A new community management statement was lodged in March 1999 which brought the scheme under the regulation of the Body Corporate and Community Management (Accommodation Module) Regulation 1997 ("the Accommodation Module"). The scheme is registered as a group titles plan of subdivision.

The application seeks orders declaring that the deck (and roofing structure) have been constructed in accordance with the approval granted by the Respondent. Further, the Applicants seek an order that they need not replant trees which they lopped. The first order sought appears to be a reasonably clear request however the administrative structure of the scheme may not allow me to make orders regarding this matter of the application. The second order sought is a little easier to deal with.


The Deck

In summary the Applicants seek the approval of the Respondent for the deck. The Respondent says that the Applicants failed to provide a copy of the approved plan for the work prior to its commencement and that the work included a roof which was never discussed with the Committee. The Applicants state that the roof was discussed and the Committee members were aware of it being part of the planned deck.

It is commonly understood that in community titles schemes any improvements have to be approved through the body corporate of a scheme. This is true in the case of improvements which are covered by the legislation. For example if an improvement is made to common property and the improvement is solely for the benefit of one lot then approval must be given by the body corporate for the work to proceed. (A simple example of this is where a lot owner wishes to install a air conditioning compressor onto common property.) This accords with the requirements of section 159 of the Act and section 113 of the Accommodation Module. Similarly, if a by-law requires approval for improvements within a lot or approval for improvements which affect the aesthetics or appearance of the scheme then this must be complied with also.

However, where an improvement is not affected by the legislation (or an applicable by-law) then approval from the body corporate is not required.

Current Situation

In the current case the improvement was the installation of a deck. I have reviewed the registered plan for the scheme and the community management statement (which lists the by-laws applicable to the scheme). On this information it appears that the deck was built within the boundaries of the Applicants lot and not on common property. I have also been unable to locate any by-law which would require the Respondent to give approval for the deck. Put simply the Respondent does not appear to have any jurisdiction over the deck in so far as having any right to give its approval or otherwise pursuant to the legislation being applied in this application.

This raises an important issue for me. My jurisdiction (or legal power or right) to deal with this aspect of the application is express in section 276(1) of the Act. Section 276(1) is listed above. It lists pre-conditions that must be present before I may deal with a matter. I have considered the wording of section 276(1) and have been unable to identify any subsection under which this aspect of the application falls. I therefore believe I do not have jurisdiction to deal with this aspect of the application and accordingly will make no orders in relation to it.

If the Respondent wished to assume more control over improvements within lots within the scheme then it should seek its own independent legal advice regarding introducing by-laws which may address this issue.

Despite this position I will make the comment that the Applicants ought to consider the complaint raised about glare and privacy. Although these are incidental issues to this application and not matters that can reasonably be dealt with here they may be the basis of a future application by the affected party. Specifically By-Law 1 ‘Noise’ and section 167 ‘Nuisance’ of the Act prohibit the causing of a nuisance to other lot owners. To avoid this, the Applicants may consider painting the roof and installing a privacy screen on the deck. These are matters entirely for the Applicants at this stage.

The Trees

The second issue (tree lopping) is a matter which I may deal with as it involves an alleged by-law contravention and affects common property within the scheme.

I have read and considered all materials submitted by the Applicants and Respondent regarding this aspect of the matter. I believe that the trees have been dramatically lopped down to 1 metre in height. I have formed the view that the Applicants did not have the written approval of the Respondent prior to undertaking such work and in so lopping the trees have breached By-Law 4 ‘Damage to Lawns’. I also note that the Applicants do not contest the fact that they left the lopped branches behind on the ground.

I understand that two Tea-trees are affected. I believe that these are a hardy variety which can survive pretty tough treatment. If this was not the case I would have been inclined to require the Applicants to replace the trees at their costs. Given that the trees will most probably survive I will not make any order against the Applicants in this regard.

Although I will not make an order requiring replacement of the trees may I suggest that if it is apparent that the Tea-trees have not survived in 6 months time that the Applicants consider offering to replant two native trees on the common property at their own costs and at the direction of the Respondents. I do not believe the trees need be any larger than 50 cm in height.

Orders

I hereby order that Darrell Paul Olive and Wendy Lee Olive need not replant or re-instate the two Tea-trees previously felled.

I order further that Darrell Paul Olive and Wendy Lee Olive will, within 1 month of the date of this order, remove all the lopped branches from the vicinity of the scheme at their own cost.

I decline to make any order on the deck issue on the basis that I have no jurisdiction to deal with the matter.

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