Patura Glen [2005] QBCCMCmr 579 (20 October 2005)

Last Updated: 19 July 2006

REFERENCE: 0342-2005

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	29529
Name of Scheme:	Patura Glen
Address of Scheme:	30 Patura Drive ASHMORE QLD 4212

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

Nathan Edward Watts, the owner of lot 3

I hereby order that the application by Nathan Edward Watts, the owner of lot 3 for an order that the Body Corporate be prevented from entering the property 10/30 Patura Drive, in order to remove any structures and or fittings, is dismissed. I further order that within one (1) month of the date of this order, Nathan Edward Watts, the owner of lot 3 shall submit to the secretary of the body corporate for inclusion on the agenda of the next general meeting of the body corporate a motion seeking body corporate approval for the storage shed he has constructed on his lot. I further order that at its next general meeting that body corporate shall consider and determine by ordinary resolution the motion submitted by Nathan Edward Watts, the owner of lot 3 regarding body corporate approval for the storage shed constructed on his lot. I further order that if Nathan Edward Watts, the owner of lot 3 fails to submit a motion for approval of the storage shed to the secretary within one (1) month of the date of this order, then within two (2) months of the date of this order Nathan Edward Watts, the owner of lot 3 shall be required to remove the storage shed from the lot.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0342-2005

"Patura Glen" CTS 29529

The application and interim order

The applicant, Nathan Edward Watts, the owner of lot 3, has sought an order of an Adjudicator under the Body Corporate and Community Management Act 1997 (the Act) quote:

Body Corporate prevented from entering the property 10/30 Patura Drive, in order to remove any structures and or fittings.

The applicant also sought an interim order, and on 26 May, 2005 the following interim order was made:

I hereby order that the Body Corporate committee for Patura Glen shall not take any step, or further step, or other action to remove, or require the removal of, the structure constructed by Nathan Edward Watts, the owner of lot 3 upon that lot until such time as a final order to this application is made, this application is withdrawn, or this order does not apply through operation of law.

I further order that within fourteen (14) days of the date of this order, the owner of lot 3, Nathan Edward Watts, shall provide to this office a further statement of grounds addressing the several points set out in the accompanying statement of reasons and referred to as "rudimentary grounds" required in order to make a final determination.

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 the 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)). An adjudicator's order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate (section 284(1)).

The scheme is a subdivision of 13 lots recorded under a group title plan (now a standard format plan) of subdivision. The regulation module applying to the scheme is the standard module.

The interim order reasons

In the interim order, I had cause to comment as follows:

What this requested order, and the applicant’s material generally failed to provide (in particular, the stated grounds), is any clear and concise statement of facts pertaining to the dispute. Whilst there is elaboration of reasons why the structure should be retained, there is not concise statement of the basis of this dispute. For example, rudimentary information like:

•	What has been constructed (size, dimensions, purpose, aesthetics);
•	Where and when was it constructed (on the applicant’s lot or on common property; if common property has the applicant been allocated exclusive use of this part of the common property);
•	What consents of the body corporate were required (either under a by-law or pursuant to the legislation) if any;
•	What consents of the body corporate were in fact sought and obtained;
•	If not, and consents were seemingly required, why not;
•	What is the body corporate now seeking which the applicant opposes (what has bought this dispute to a head);
•	If removal is required, what action has the body corporate taken to require this (eg. has the body corporate committee issued the applicant a notice of contravention);
•	Is removal by the body corporate threatened or imminent? What is the evidence of this?
•	What are the reasons the applicant opposes removal of the scheme (this is when the points 1-7 of the applicant’s grounds is relevant).

Clearly, from this perspective, much relevant information has not been provided. This is the nature of information I require in order to make a determination under the relevant legislation. Much of the applicant’s allegations are general and vague, and of little if any relevance to me. For example, I am not interested in any complaints made to the Anti Discrimination Commissioner or even concerns the local authority might have. These agencies have their own procedures for complaints or compliance with requirements. I do not operate in conjunction with these agencies, and nor is it my role to enforce their various requirements. Rather, I will determine disputes before me in accordance with the principles set out in the relevant Body Corporate and Community Management legislation, in respect of which there is very little reference in the application.

Similarly, regarding the body corporate committee submission, I commented that whilst denying the accuracy of much the applicant’s material, is of little real assistance.

I concluded the interim order with:

This is an interim order application. At this point, all I am determining is whether or not to make an interim order in the terms as sought, or to dismiss the application for interim relief. Clearly there is a dispute concerning a structure which has been erected. The committee appear to require its removal. The applicant seeks to retain the structure. So as to preserve the status quo until a final determination can be made, I propose that the committee take no step or other action to remove the structure located upon the applicant’s lot 3. However all parties should note; this order is intended merely to preserve the status quo. It should not be interpreted by either party as an indication of the merits of this application. It is a possible outcome of this application that the applicant might be ordered to remove the structure in dispute. This aspect will be determined in the final order.

However before proceeding to further submissions from the committee and all owners, I require the applicant to provide to me a statement of grounds addressing the several points I raised above. This, and a response to this, is the information I require to make a final determination. The applicant has 14 days from the date of this order to provide the required statement, after which time further submissions will be sought. However, if the applicant fails or refuses to provide the information, I will proceed with further submissions, and a determination in any event. In the circumstances, I await receipt of the relevant statement.

Administrative matters

• The applicant’s additional or further information was received, and appeared to deal with the dispute in a more structured way, as requested in my interim order;
• Submissions on the final order application, including the applicant’s further information, were then sought (I am satisfied that the applicant’s additional or further information was sent to the body corporate manager on 15 June 2005);
• Despite the comment in the interim order to the effect that once the applicant’s further information was received, further submissions would be sought on the final order, no submission in respect of the final order was made by the body corporate committee;
• When contacted regarding this by this office, the body corporate manager, Ms Reid stated that the "submission made for the interim order is to also be used for the final submission";
• Given my comments generally in the interim order on the question of the sufficiency of the materials provided by both parties, the applicant and the body corporate, and the fact that I had now obtained further, and seemingly more specific, information from the applicant, I was surprised that the body corporate committee elected not to make a further submission;
• I concluded that I was not in a position to determine this dispute without a further submission from the body corporate committee. To this end I wrote to the secretary on 24 August, 2005 and required that the committee provide a submission in respect of the applicant’s further information. This letter elicited a reply from "Liz Hay, chair" certain aspects of which need to be responded to.
• Ms Hay states that It was felt that any submission would not be given sufficient consideration as there appeared to be some sympathy for Mr Watts erroneous claims. Is Ms Hay suggesting or alleging bias on my part. If so, Ms Hay is wrong. My role here is to resolve disputes. To do this I need full information. I consider that at all times my dealings in relation to this application have been even handed. By way of observation, I have had cause to be critical of both parties in respect of the information which has been provided to me. When the committee failed to provide a further response to the additional, and more specific, information I had managed to obtain from the applicant, I wrote to the committee requiring that such a submission be provided. I am not concerned with what Ms Hay thinks regarding the tone or otherwise of my correspondence. Had the committee simple responded initially and provided a submission in respect of the further information elicited from the applicant, such further correspondence would not have been required. All my efforts have been directed to obtaining sufficient information to make a reasoned determination of this dispute. I reject absolutely any allegation of bias.
• Ms Hay further comments that The Patura Glen Body Corporate committee cannot be held responsible for the response your office received from Strata Solutions. I am not quiet sure which particular response Ms Hay is referring to here, but in any event, this statement is also incorrect. The appointed body corporate manager should act on the direction of, and instructions of, the body corporate committee. This office is entitled to make the assumption that information it receives from the manager reflects the body corporate’s position, and is provided as the instruction of the committee, or the body corporate in general meeting.

The application

The applicant seeks an order that the Body Corporate be prevented from entering his property to remove any structures and or fittings.

The body corporate states that it seeks to have the external appearance of unit 10 either returned to its original condition or rectified to a state that is acceptable to the aesthetics of Mr Watt’s neighbours.

This view of the body corporate is further enforced by the statement:

It is the common opinion of Patura Glen residents that Mr Watts has expended a large sum of money to create a very ugly external appearance to his property thus impacting on the general appearance of Patura Glen.

The body corporate is relying on by-law 8 headed Appearance of Lot. That by-law relevantly states:

The occupier of a lot must not, without the body corporate’s written approval:-
(1) Make a change to the external appearance of the lot. ...

I do not consider the by-law to be specific to what the applicant has constructed, which is described by the applicant as "a lean-too shed ... for the purpose of storage". The by-law is generic in nature, and would cover a huge range of potential changes to the external appearance of a lot. For example, it would presumably catch any action from changing the colour of an external awning or building facia (that is, a relatively minor change) to erecting a patio or deck attaching to the lot (a significant change to external appearance). Given that the by-law is potentially so wide and all encompassing, then it is essential that the application of the by-law is reasonable.

I have previously determined two matters where the body corporate was seeking the removal of items from a lot because of alleged change to external appearance. These orders are 0068 of 2004 and 0146 of 2005.

In 0068 of 2004 (a dispute regarding the installation of a clear roll up blind on the northern deck of an apartment by the owner without seeking committee approval under by-law 8.1), I observed as follows:

I do not intend to descend to a minute analysis of the pluses and minuses of the installation. Such matters are largely subjective, and different arguments can be advanced depending on your particular point of view on the matter.
I consider however that in assessing such an application, the committee must first accept that the improvement in question is to part of an applicant’s lot, and is not being made to the common property. This in my view requires a greater allowance by the committee of the individual preferences of owners for the enjoyment of their lot. In respect of common property, I consider, and the legislation provides, that a body corporate has a far greater role to play, but for a lot, I consider that the committee should restrict its objections to proposals which clearly, not arguably or possibly, detract from the amenity of the lot and its surrounds.
I conclude that the objections of the committee to the installation are somewhat vague and lacking in any real substance. The fact that the installation can be seen from other lots is not the point. So can very colourful interior room colours, but these cannot be prevented. I suggest that not only must the installation be able to be seen, but in so being seen the general consensus must be that the installation detracts from the amenity of the lot. I consider that this is not evidenced here. I find that the blind is made for the most part of clear plastic materials and where not clear, is coloured consistent with its surrounds, appears to have been professionally installed, and is unobtrusive.

In the later decision, 0146 of 2005 (a dispute where the applicant body corporate sought an order against an owner for removal of a "garden shed" erected in the backyard of a lot, allegedly in contravention of a by-law which denied the construction or erection of an "outbuilding of any kind within or upon a lot or on common property without the approval in writing of the body corporate"), I observed as follows:

Firstly, it must be noted that the garden shed in question is located within Black’s lot and not on any part of the common property. As indicated, I consider that an owner should have somewhat greater latitude in the use and enjoyment of their lot, including the making of improvements thereto, then say the making of improvements to common property. The legislation recognises this distinction in its requirements for approval. In the case of improvements to a lot, often only committee approval is required and this is usually the case because of the existence of a by-law to this effect. If no by-law existed, then no approval would be required. However, improvements to common property usually require the approval of the body corporate in general meeting by special resolution. Moreover, this distinction exists even if the improvement in question is the same, eg. an airconditioning condenser unit.

The second aspect is the nature of the scheme and the nature of the improvement proposed. In this case, the scheme was registered under a group title plan. A group title plan usually means that each lot includes a parcel of land which forms part of the lot. This is distinct from a building unit plan, where in contrast, it is unusual for the lot to comprise a parcel of land. The nature of the improvement here is a garden shed. The photographic evidence provided by Black shows an area of garden attaching to the lot. Moreover, this garden appears to be reasonably dense and to be surrounded by a paling fence. I conclude that due to the fencing and garden planting, Black’s lot is reasonably private and cannot be easily observed by others, or from adjoining lots. The applicant body corporate has not provided any evidence to the contrary. As well, given that the lot includes a garden area which is not common property, then the lot owner will need to maintain this garden. This requires certain tools and equipment. I note Black’s submission that:

... Whilst ever I am able to do so, I will look after (my) own yard and maintain my own property and this requires keeping certain items and equipment which need to be stored safely. ... Instead of being left out in the open, it is only basic common sense that I should wish to lock dangerous and toxic items away responsibly, to safeguard them, or anyone else for that matter, from possible injury.

The lawn locker is 152 cm x 80 cm (approximately the size of a wardrobe), painted cream, the same colour as the security screens and doors of my unit. The locker sits on pavers in an alcove against the wall of the unit. It is not visible to anyone from outside my property, unless someone chooses to peek through a crack in the fence.

I consider that it is not an unrealistic expectation for a lot owner in a group title plan, which has a garden attaching to the lot, to have some area for storage of garden maintenance equipment. Others might suggest that such items could be stored in the garage of the lot, however I consider that this is not always either practical or possible.

Finally, I note that the application was distributed to all 175 owners in the scheme seeking submissions in respect thereof. In response, only one owner’s submission was received, and that is generally supportive of position of Black, whilst recognising the needs of the committee. That owner states:

Whilst I understand and support the committee’s desire to maintain the aesthetic appearance of he lots and the complex, I, as an owner occupier also understand and support owners wanting storage for items used when complying with the requirements of by-law 22. I feel that a compromise needs to be found ... Perhaps one alternative might be that the garden shed / locker be limited to a certain size or smaller, be of a certain quality / standard and colour, be properly installed and maintained, and installation be limited to certain positions on the lot.

I consider that the committee’s refusal to approve the storage shed is based purely on precedent. No objective assessment of the application has been made. Whilst the committee allege that Black has failed to attend a meeting of the committee at which the matter of the shed might be discussed, similarly, the committee have failed to inspect the shed in situ and to realistically evaluate its impact etc. In the circumstances, the committee has not acted reasonably as it is required to do in enforcing the by-laws.

In the circumstances, I am not prepared to order in terms as sought by the applicant body corporate. I consider the blanket prohibition on the installation of garden sheds to be unreasonable in the circumstances pertaining to this body corporate. I suggest to the committee that rather than a blanket prohibition, it should seek to assess all applications on their merits, and perhaps, even be proactive and prescribe standard criteria which those owners wishing to install such an improvement might be required to meet.

Whilst approval of the committee to the erection of the garden shed was not obtained, I am not prepared to order in terms sought by the applicant. Rather I intend to dismiss the application for the reasons set out, and to order that the garden shed is deemed to have been approved by the committee on the condition that Black shall maintain the garden shed at all times in a clean and tidy condition.

The above decisions provide the background and context in which I am considering the current application. Again the scheme is a group title plan, and no part of the storage shed has been constructed on common property of the parcel. The by-laws do however require that the applicant obtain body corporate approval for the changes he has made to the external appearance of his lot. In his additional material, the applicant acknowledges that the consent of the body corporate was not obtained prior to the construction of the storage shed, quote:

Consent for the cementing was sought, and obtained. ... Consent for the structure was initially sought, but the structure was erected before it was obtained.

In response to why the requisite consent was not obtained, the applicant submits:

1.	The structure did not required structural change or modification to the unit.
2.	Time (and alleges delay on the part of the body corporate in considering the matter).
3.	Time ... permission, even if granted would still have taken too long.
4.	Unreasonable expectations for planning, documentation and approval. ... The process of obtaining permission would prove far more costly than the project.
5.	In ability of the body corporate to comprehend plans and understand planning ...
6.	Retrospective change of body corporate approval rendered permission worthless (the applicant the references a previous dispute).
7.	Lack of correct procedure by the chair ...

The applicant concludes:

As a result requesting permission from the body corporate seemed doomed to failure, irrelevant of the level and professionalism of the planning that I submitted.

I do not consider any of the applicant’s explanations for failure to obtain body corporate approval for the erection of the shed satisfactory. In particular, using the applicant’s numbering system, I consider:

1. The structure did require body corporate approval under the by-laws (8.1). Whether or not it required structural change to the applicant’s unit is irrelevant;
2. No evidence of this, and in any event, this does not excuse the applicant’s proceeding without approval;
3. This statement evidences contempt of body corporate requirements and processes;
4. By who. Perhaps the applicant is confusing requirements the body corporate might impose with requirements of the local authority. I reject that body corporate approval would prove far more costly than the project;
5. No evidence to substantiate this statement. Again, this does not excuse the applicant’s proceeding without approval;
6. A previous dispute does not justify the applicant’s actions relative to the present dispute;
7. I conclude there is evidence of underlying dispute between the applicant and the chairperson.

The second aspect I consider relevant is the scale or scope of the work undertaken by the applicant. In the previous two applications I have dealt with, I consider that the improvements made to the lots were significantly more minor than that made here. In the first application, it was a roll up plastic blind, and in the second, it was a garden shed, but of considerable less dimensions than that erected by the applicant. In that instance, the structure was stand alone (and not attaching to the applicant’s unit) and had an area of 1.2 sq metres. In the instant case, the structure is "3.1 metres by 3.3 metres of which .6 metres by 3.3 metres ... is under the cover of the unit eve". This statement acknowledges that the structure attaches in part to the applicant’s lot (presumably this is why local authority approval is also required) and further, is some 10.2 sq metres in size.

The applicant alleges that there is a precedent for his structure. He states:

Several units have completed similar work in their rear yards, including 4, 6, 13 and 12. Unit 12 completed a project ... in January 2005 ... that requires the same regulatory approval body corporate maintains is necessary at unit 10.

The body corporate committee rejected this assertion in its original submission, quote:

No precedent was used by Mr Watts for construction as there was no other structure such as his on Patura Glen property.

I am not satisfied that the applicant has evidence his allegation of precedent.

I am not satisfied that the circumstances leading to the applicant constructing his storage shed without body corporate approval were reasonable. I do not intend to order in terms as sought by the applicant. Rather I intend to order that within one (1) month of the date of this order, the applicant as owner of the lot shall submit a motion for inclusion on the agenda of the next general meeting of the body corporate seeking approval for the storage shed he has constructed. I note that in any event, the applicant requires body corporate approval in order to satisfy part of the requirements of the local authority.

I further intend to order that at its next general meeting the body corporate shall determine the motion submitted by the applicant by ordinary resolution. If the motion is approved in general meeting, then this is the end of the matter so far as the body corporate is concerned. Alternatively if the motion is not approved in general meeting, then the applicant will have two options. Either to remove the storage shed he has constructed or alternatively to make a further application to this office for a determination of whether the decision of the body corporate in general meeting not to approve the construction of the storage shed was unreasonable. Ultimately the applicant might be required to remove the storage shed in any event. However, at the present time, the body corporate has not had an opportunity to make this determination, and this is the purpose and intention of this order.

If the applicant fails to submit a motion for approval of the storage shed to the secretary within one (1) month of the date of this order, then I intend to order that the applicant shall be required to remove the storage shed from the lot within two (2) months of the date of this order. Finally it is implicit in the above orders that the body corporate should not take any steps to remove the applicant’s shed whilst the terms of this order are still being implemented.