Macleay Tower & Villas [2006] QBCCMCmr 221 (3 May 2006)

Last Updated: 19 December 2006

REFERENCE: 0288-2006

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	24663
Name of Scheme:	Macleay Tower & Villas
Address of Scheme:	QUEENSLAND

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

the Body Corporate for the scheme

I hereby order that until this dispute resolution application is resolved by way of final order, the owner of lot 108 is not to enclose the car space of lot 108 without prior written consent of the body corporate.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0288-2006

"Macleay Tower & Villas" CTS 24663

THE SCHEME

The Macleay Tower & Villas community titles scheme is registered as a building units plan (now known as a building format plan), comprises 106 lots and operates under the Body Corporate and Community Management (Standard Module) Regulation 1997 (the Standard Module).

APPLICATION

This application was submitted with this office by the body corporate on 20 April and seeks the following interim order:

that the owner of lot 108 be directed not to proceed with enclosing of their car space until the Body Corporate has time to meet and formulate a response and proceed with appropriate action.

The applicant also seeks the following final order:

that the owner of lot 108 not be permitted to enclose the car space of lot 108 without prior written consent from the body corporate.

BACKGROUND

The owners of lot 108 have advised the body corporate committee of their intention to enclose their car park space but have met with opposition from the body corporate.

By letter dated 15 September an agent for the owners of lot 108 wrote to the body corporate advising that it was not entitled to reject their proposal for enclosure of their car space on the grounds that enclosure of car spaces created a fire safety concern and that existing installations are an "eyesore".

By letter dated 15 February, the Body Corporate advised that a lot owner is required to obtain the consent of the Body Corporate the Act, Standard Regulation Module or by-laws.
Require a lot owner to seek such consent. It is argued that to enclose the car space would not involve a breach of the Act, Standard Regulation Module or by-laws.

The Body Corporate believes that because enclosure of the space may involve affixation of the structure to common property, the consent of the Body Corporate is required pursuant to by-law 5.
Further, the Body Corporate also believes that the proposed enclosure is an alteration to the structure of the building within the meaning of By-law 13 which also requires the consent of the Body Corporate .

The Body Corporate also raised the following concerns:

• The car park space should be used for car parking rather than storage as proposed and may involve a breach of by-law 31;
• The enclosure may involve obstruction of common property in breach of by-law 3;
• The use of the space as a storage area could increase the risk of fire and involve a breach of by-law 22.

The Body Corporate advised the lot owners that it cannot, by prior written approval or otherwise, authorise non-compliance with these by-laws.

The Body Corporate also raised concerns that the enclosure would:

• Create a fire hazard;
• Adversely impact on adjoining owners’ access to their car spaces;
• Set a precedent to the detriment of the building’s appearance;
• Cause the car park to be used inappropriately as a storage area;
• Reduce acceptable levels of ventilation in the car park area;
• Restrict emergency access;
• Create an "eyesore";
• Possibly contravene building codes and WH&S codes; and
• Encroach on neighbouring car parks.

In a reply dated 21 March 2006 the lot owners’ agent advised as follows:

•	The common property would not be damaged and all affixations would be within their lot;
•	The proposed enclosure is not structural;
•	The lot owners would use the lot for vehicle parking and would comply with by-law 31, which would mean that they comply with by-law 22;
•	The proposed enclosure would not restrict access to common property;
•	Enclosures have already been constructed for a number of other parking spaces; and
•	The owners of the lot intend to go ahead with construction of the enclosure without further notice.

SUBMISSIONS

This is a request for interim relief in the nature of an order restraining the owners of lot 108 from constructing an enclosure in their car park space until the matter can be considered at the next committee meeting scheduled for 23 May 2006 and finally determined by way of an adjudicator’s order. Given the temporary nature of the relief sought I have not sought submissions from the owners of lot 108 at this stage. Submissions will of course be sought from all affected parties prior to making final 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-

(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)).
Section 279(1) & (2) provide that -
(1) The adjudicator may make an interim order if satisfied, on reasonable grounds, that an interim order is necessary because of the nature or urgency of the circumstances to which the application relates.
Examples
1. The adjudicator may stop the body corporate from carrying out work on common property until a dispute about the irregularity of proceedings has been investigated and resolved.
2. The adjudicator may stop a general meeting deciding or acting on a particular issue until it has been investigated and resolved.
(2) An interim order
(a) has effect for a period (not longer than 1 year) stated in the order; and
(b) may be extended, varied, renewed or cancelled by the adjudicator until a final order is made; and
(c) may be cancelled by a later order made by the adjudicator; and
(d) if it does not lapse or is not cancelled earlier, lapses when
(i) the application is withdrawn; or
(ii) the commissioner gives the person who made the application a written notice under section 241 rejecting the application; or
(iii) a final order is made by an adjudicator to whom the application is referred. ...

DETERMINATION

This dispute resolution application has been referred to me pursuant to section 267 of the Act for consideration of whether an interim order should be made. At this time, I am concerned with the threshold issue of whether because of the nature or urgency of the circumstances relating to the application, an interim order is in fact necessary or appropriate. The examples included in the Act under section 279 are suggestive of the usual circumstances where an interim order might be made. Both examples are in the nature of injunctive relief.

The purpose of an interim order is not to determine the substantive issues involved in a dispute, but rather, to maintain the status quo until the issues can be finally determined. Accordingly, I propose to order that until this dispute resolution application is resolved by way of final order, the owner of lot 108 is not to enclose the car space of lot 108 without prior written consent of the body corporate.

Submissions will be sought from all affected persons prior to making of a final order which will finally determine the issues raised.