Gibbon Place [2005] QBCCMCmr 5 (7 January 2005)

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Peter Neville, the owner of Lot 1 and John Gillard, acting under a power of attorney for Joan Gillard, the owner of Lot 2.

I hereby order that the application by Peter Neville, the owner of Lot 1 and John Gillard, acting under a power of attorney for Joan Gillard, the owner of Lot 2 for the following orders:

1. That Mr Gibbon of Lot 3 make keys available to the locked gates on the eastern boundary of the property while he is residing in Victoria.
2. That the resolution made on motion 10 at the annual general meeting dated 26 May 2004 be overturned and that approval be granted to extend the brick walls between Lots 1 and 2 and between Lots 2 and 3 a further distance to ensure privacy.
3. That the resolution made on motion 11 at the annual general meeting dated 26 May 2004 be overturned and that approval be granted to extend the patios and privacy walls and roof area to all 3 lots, or to Lots 1 and 2 only.
4. That the resolution made on motion 13 at the annual general meeting dated 26 May 2004 be overturned and that approval be granted to install bi-fold doors.
5. That the resolution made on motion 17 at the annual general meeting dated 26 May 2004 be overturned and that approval be granted to Lot 2 to install ducted air-conditioning.

is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0538-2004

"Gibbon Place" CTS 8877

APPLICATION

This application is by Peter Neville, the owner of Lot 1 and John Gillard acting under a power of attorney for Joan Gillard, the owner of Lot 2 (applicants) seeking an order against the body corporate (respondent). The applicants are seeking the following orders:

JURISDICTION

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 for distribution to the owner of each lot (excluding the applicants). A submission was received from Mr Gibbon, on behalf of the owner of Lot 3.

FACTS

"Gibbon Place" Community Titles Scheme 8877 is a 3 lot scheme under the Body Corporate and Community Management Act 1997 (Act) and the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module). Lot boundaries are designated under a building units plan (now taken to be a building format plan of subdivision under the Land Title Act 1994).

The by-laws for the scheme include by-laws which have been recorded by the Registrar of Titles, Department of Natural Resources, Mines and Energy granting exclusive use to each lot of specifically identified parts of the common property.

DETERMINATION

That Mr Gibbon of Lot 3 make keys available to the locked gates on the eastern boundary of the property while he is residing in Victoria.

The applicants main submissions were to the effect that:

By-Law 24 of the scheme by-laws provides that the owner of Lot 3 "shall be entitled to the exclusive use for himself and his licensees of all that part of the common property shaded in green in the sketch plan". The plan indicates this area to be on the southern and eastern sides of Lot 3. By-Law 22 grants a similar area of exclusive use to Lot 1 over a similar area of common property on the southern and western sides of the lot. By-Law 25 provides for access to the exclusive use areas "for the purpose of inspecting common property".

The purpose of the exclusive use by-law is that the owner is granted exclusive use to the rights and enjoyment over an identifiable part of the common property. While the Act provides certain conditions on the exclusivity of the use, the body corporate can also impose conditions in the by-law. By-Law 25 places a right of access for a specified purpose which does not include a right of access for work associated with another lot in the scheme. Section 163 of the Act gives the body corporate power to enter an exclusive use area for the purposes of carrying out work that the body corporate is authorised or required to perform. This access can be at any time in an emergency but in usual cases only at a reasonable time after 7 days notice.

While the order seeks that keys being generally available, it can be concluded from the grounds that the keys are only required by the owner of Lot 2. Due to the exclusive use allocations, the owner of Lot 2 does not have the same access rights to the northern part of scheme land as the other two owners. The applicants are not claiming access on behalf of the body corporate, and are not claiming that access is required to utility infrastructure such as an electricity meter or fuse box for the scheme. While the owner of Lot 2 considers that equitable access should be available, I do not consider that the restriction when the owner of the lot is not resident constitutes unreasonable interference with another’s use of their lot or the common property.

Access is simply required at times when the owner of the lot is not at the scheme, and for purposes associated with Lot 2 when it would appear that access is available over the exclusive use area of Lot 1. The owner of Lot 3 has exclusive use of this part of the common property, and as such is entitled to the exclusive use and enjoyment of this area. I do not consider that the owner of Lot 3 has an obligation to provide keys for the stated reasons. Therefore, this order is dismissed.

That the resolution made on motion 10 at the annual general meeting dated 26 May 2004 be overturned and that approval be granted to extend the brick walls between Lots 1 and 2 and between Lots 2 and 3 a further distance to ensure privacy.

The applicants main submissions were to the effect that the extension of the walls will enhance the enjoyment of the exclusive use areas of Lots 1 and 3, improve security, improve the value of the property, and enhance the enjoyment and privacy of the enclosed area of Lot 2. The applicants make reference to a report providing details of the requested extensions to the walls.

Mr Gibbon submits that while he has no objection to a wall between Lots 1 and 2, he objects to the proposed height which he considers to be higher than permitted by the building regulations. He does not want the existing fence between the exclusive use areas of Lots 2 and 3 to be extended or replaced as it will only confine the area and detract from the appearance of the lot.

While the applicants have not specified the relevant parts of the report they refer to, the information included on the application which I have relied on includes:

The walls are proposed to be constructed on common property exclusive use areas. The walls would constitute an improvement to common property, and are proposed to be made by the lot owners, not the body corporate. Section 124 of the Standard Module provides that an improvement of this nature can only be made if authorised by the body corporate by special resolution. Motion 10 at the AGM dated 26 May 2004 sought approval to extend the brick wall to the front of the units to a height to provide greater security. This motion was defeated with 1 no vote recorded.

The owner of Lot 3 voted against the motion primarily because a fence is not wanted between the areas allocated to Lots 2 and 3. There is also a concern about the proposed height of the wall. This objection would only be reversed by order if I am satisfied that it is unreasonable. In the circumstances, I am of the view that the reasons provided by Mr Gibbon are creditable. The applicants have given reasons such as enjoyment and security for seeking to construct a brick wall. However, they have not provided any information in support of these claims and have not stated why the existing fence or fences are inadequate or otherwise in need of maintenance.

In addition, the effect of motion 10 is that it seeks to direct a lot owner to make an improvement to a part of common property allocated for the exclusive use of that owner’s lot. The body corporate (without good reason) does not have the power to make this direction. If an individual owner proposes to make an improvement to allocated common property, that owner submits a motion to the body corporate for authorisation as required by section 124 of the Standard Module. However, a lot owner cannot seek to require another owner (without that person’s consent) to contribute to the owner’s proposal.

For these reasons, I have dismissed this part of the application.

It is also proposed to construct a wall to the eastern side of Lot 1’s courtyard. As stated above, the proposed position of this wall does not appear to be on the boundary of the exclusive use allocations between Lots 1 and 2. I have no indication that the owner of Lot 1 is aware of this fact or its implications. For example, part of the allocation to Lot 1 will be walled off and effectively expand the allocation to Lot 2 without any consequential change in the exclusive use allocations. Further, that part of the wall wholly within the allocation to Lot 1 will, without new by-laws, be the responsibility of the owner of Lot 1 under section 123 of the Standard Module. Also the claimed issue with the height of the fence requires resolution. Therefore, I am not willing to make an order authorising this improvement to the common property.

Mr Gibbon has indicated an in principle agreement to the wall. If the owners of Lots 1 and 2 can resolve what I consider to be valid issues, I would suggest they submit an appropriate motion or motions to another general meeting ensuring that the motion or motions clearly specify the exact position of the wall, the type of structure and its height. If the owner of Lot 2 wants to construct a wall in addition to the existing fence between the allocation to Lots 2 and 3, then that owner should consider submitting a motion or motions to a general meeting seeking body corporate authorisation. This wall would have to be on Lot 2’s exclusive use allocation and would be at the cost of the owner if the approved by the body corporate. The body corporate could approve such work subject to a subsequent notification from the appropriate lot owner that the necessary construction approval has received from for example, the local authority.

That the resolution made on motion 11 at the annual general meeting dated 26 May 2004 be overturned and that approval be granted to extend the patios and privacy walls and roof area to all 3 lots, or to Lots 1 and 2 only.

The applicants main submissions were to the effect that:

Mr Gibbon’s submission detailed his opposition to this proposal which can be summarised as:

The proposed extensions will be on part of the common property for the scheme. While 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 it is the body corporate which administers, manages and controls the common property. The work being proposed constitutes an improvement to common property by a lot owner, and under section 114 of the Standard Module, the improvement must be authorised by special resolution of the body corporate.

Motion 11 at the AGM dated 26 May 2004 sought approval to extend the patios and roof structures over common property at the cost of the lot owners concerned. The motion requiring a special resolution was defeated with one no vote being recorded.

Motion 11 has a similar effect as motion 10 in that its intention is to direct a lot owner to make an improvement to common property. In this instance, the body corporate does not have the power to make this direction. If an individual owner proposes to make an improvement to common property for the benefit of the owner’s lot, that owner submits a motion to the body corporate for authorisation as required by section 114 of the Standard Module. However, a lot owner cannot seek to require another owner (without that person’s consent) to contribute to the owner’s proposal. In addition, Mr Gibbon has raised what I consider to be reasonable objections to a proposal involving the carrying out of extensive improvements to common property. While the applicants’ intentions may have merit, they are proposing to make an improvement to common property which is owned by all owners, and a lot owner is entitled to question elements of the proposal.

Section 167 of the Act provides that an owner must not use, or permit the use of, the lot or the common property in a way that causes a nuisance or interferes unreasonably with another person’s use or enjoyment of their lot or the common property. The proposed construction would impact on the owner of Lot 3’s use of the lot and the common property. Based on the concept drawing, a person could use any part of the patio, including that part outside Lot 3. As the patio extends over common property, it is conceivable that it will have an impact on another person’s use of the common property as it is in effect is an alienation of part of the common property for personal use.

This matter was addressed in the matter of Platt v Ciriello (1997) QCA 33 (14 March 1997), where the Court of Appeal found that the primary test for determining an owner’s use of common property is that of "unreasonable interference" (see earlier reference to section 167 of the Act). That is, an owner may exercise his general proprietary right to use common property so long as it does not interfere unreasonably with another’s use of their lot or the common property. This interference may not just be physical, it may, for example, include a consideration of the effect the use has on the appearance and aesthetics of the scheme generally. However, even where the use may not be causing an unreasonable interference, an "exclusive use" test may apply in the circumstances to require the owner to only hold that use under an exclusive use by-law. That use was characterised by Ambrose J as being "the sort of exclusive use which a proprietor makes of his lot". Pincus JA gave as an example of a unilateral claim by an owner amounting to exclusive use, which therefore required an exclusive use by-law, an annexe from the owner’s lot being built out onto common property.

This brief overview of the case is sufficient to show that the construction of the patio, even if it may not interfere unreasonably with another’s use of the relevant area of common property or does not adversely effect the appearance or aesthetics of the scheme, is such a use of common property that requires the authority of an exclusive use by-law. That is, the use of the area of common property being proposed by the applicants is a use that comes within the sort of use that an owner makes of his lot and therefore requires an exclusive use by-law.

Given that the applicants have not considered the exclusive use implications, and the owner of Lot 3 has reasonable objections to the proposal, I have dismissed this order sought.

That the resolution made on motion 13 at the annual general meeting dated 26 May 2004 be overturned and that approval be granted to install bi-fold doors.

The applicants main submissions were to the effect that:

Mr Gibbon’s submits that his objections to the motion were based on the detrimental affect of the installation on the appearance from outside the building.

Common property for a scheme is primarily determined by reference to the plan of subdivision applying to the scheme. As mentioned above, this scheme was originally created pursuant to what is now known as a building format plan of subdivision. In accordance with section 48C of the Land Title Act 1994 ("the LTA"), a building format plan of survey defines land using structural elements of a building, such as floors, walls and ceilings. Generally, where a lot is separated from another lot or common property by a floor, wall or ceiling, the boundary of the lot is the centre of the floor, wall or ceiling (see section 49C(4) of the LTA). The existing sliding door is on the northern boundary of Lot 2 and adjoins an unallocated common property concrete patio. Based on the determination of the lot boundary for a building format plan of subdivision, the replacement of the sliding door with a bi-fold door would constitute an improvement to common property.

Motion 13 at the AGM dated 26 May 2004 sought approval to install bi-fold doors to Lot 2 in place of the existing aluminium door. The motion refers to item 2 on page 5 of a seven report which has been referred to previously in this order. Item 2 concerns a proposal relating only to Lot 2 and states that the existing door would be replaced with "Rosewood" timber and glass panels, bi-fold doors. Even though the motion and outcome sought refer only to Lot 2, the grounds state that the owners of Lots 1 and 2 wish to replace the doors.

The plan to install doors appears to be part of a program of works being proposed, it would seem principally by the owner of Lot 2. These doors would have complemented the patio extension, a proposal which has not been approved. In the absence of approval for the extension, the installation of wooden doors leading onto an unallocated part of common property would affect the appearance of the building. This is an important consideration as the installation of such doors without any plan to ensure uniformity of design or installation could have a detrimental effect on the building.

Based on the photographs supplied by the applicants, each lot has a sliding door in its northern Level A boundary wall. The common property adjoining this boundary serves as a patio, which is either fully or partially covered by the Level B balcony. While this common property has not been allocated as exclusive use, the brick wall between each patio indicates that each owner enjoys sole use of the patio outside their respective lots. The plants and furniture situated on the patios adjoining Lots 1 and 2 reinforce this observation.

Given that there is no evidence of opposition to the current use of the patios, it is apparent that the lot owners consider they have sole use of these areas. However, this use has not been formalised by the making of an exclusive use by-law. In the absence of such a by-law, a lot owner does not have a right to sole use of the patio outside their lot. The installation of bi-fold doors to improve the enjoyment and liveability of lots increases the likelihood of a lot owner annexing this part of the common property, which should not occur without an appropriate exclusive use by-law. Given that the doors were part of the not authorised project involving the patio extension, the doors on their own would detrimentally affect the appearance of the building. For these reasons, I have ordered that this application be dismissed.

In making this decision and to a certain extent, the decisions on the other proposals I have recognised that two of the three owners would like to make some improvements to the property which will enhance the use of lots and common property. This is a reasonable expectation given that the scheme was established in 1984; the building design may now be 20 years old, and the fact that the scheme faces a lake. However, in proposing improvements for the benefit of the lot, owners must recognise that they are part of a community living environment, and the impacts of such work on other owners must be considered.

In addition, the application of the Act and other regulatory requirements must be taken into account. While the applicants have made a report and presented motions and information to a general meeting, I consider that they have not supplied adequate information to Mr Gibbon to enable him to make an informed decision. I would suggest that if the applicants would like to proceed with these proposals, that they discuss the matters fully with Mr Gibbon and give consideration of the relevance of legislative requirements.

That the resolution made on motion 17 at the annual general meeting dated 26 May 2004 be overturned and that approval be granted to Lot 2 to install ducted air-conditioning.

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

Motion 17 at the AGM dated 26 May 2004 sought approval to install ducted air conditioning to Lot 2 on the roof of the building. The motion stated that the unit would not be visible from the street and was designed to satisfy domestic sound level tolerances.

The proposed installation will be on part of the common property for the scheme. While 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 it is the body corporate which administers, manages and controls the common property. The work being proposed constitutes an improvement to common property by a lot owner, and under section 114 of the Standard Module, the improvement must be authorised by special resolution of the body corporate. Motion 17 required a special resolution and was defeated with one no vote being recorded.

The minutes state that the objection from Lot 3 was due to potential noise levels and a belief that the compressor unit should be at ground level. There is also a concern about the impact on the appearance of the scheme and on electricity capacity. This objection would only be reversed by order if I am satisfied that it is unreasonable. In the circumstances, I am of the view that the reasons provided by Mr Gibbon are creditable.

The applicants have given reasons such as property value and standard of living. However, they have not provided any information to the body corporate or in this application in support of these claims and have not:

Without any information to the contrary, the owner of an adjoining lot in a scheme of this nature is entitled to be concerned. In my opinion, an owner intending to make use of common property for this purpose has an obligation to provide material from the relevant authorities and from qualified persons to other owners about issues of the above nature. I consider that a simple note in a motion or in a self-written report is insufficient. The body corporate has a by-law about noise and section 167 of the Act provides that an owner must not use, or permit the use of the common property in a way that causes a nuisance or interferes unreasonably with another person’s use or enjoyment of their lot or the common property. If this work was completed and either or both the by-law or section 167 were being contravened, then a decision could be made to remove the unit or limit its use. Obviously, such an outcome is unacceptable. Therefore, it is essential that these concerns are satisfied at the outset. In my view, the applicants have not reasonably provided this information and the owner of Lot 3 has valid concerns. For these reasons, I have dismissed this outcome sought.

I have noted a record of a telephone conversation dated 24 November 2004 between Mr Gibbon and a member of the Commissioner’s Office where Mr Gibbon claimed that Mr Neville has installed air-conditioning. This order relates to Motion 17 which referred only to Lot 2, and not Lot 1. Therefore, any installation by Mr Neville is not the subject of this application. It is a matter for the body corporate to consider this installation, and if an owner considers it to be in breach of the Act, to make an application under the dispute resolution provisions of the Act seeking for example, the removal of the installation.

Number of Scheme:	8877
Name of Scheme:	Gibbon Place
Address of Scheme:	11 Barbet Place Burleigh Waters Qld 4220

(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

Gibbon Place [2005] QBCCMCmr 5 (7 January 2005)