Chandalay [2006] QBCCMCmr 38 (31 January 2006)

Last Updated: 19 July 2006

REFERENCE: 0871-2005

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	11965
Name of Scheme:	Chandalay
Address of Scheme:	44 Brisbane Street TOOWONG

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

Mr and Mrs Harrington and Mr Todd, the Owners of lots 8 & 13.

I hereby order that the application for an interim order preventing the construction of any garden wall that runs within 2 metres of the outside walls of units 8 & 13 Is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0871-2005

"Chandalay" CTS 11965

THE SCHEME

The "Chandalay" community titles scheme was registered as a building units plan (now known as a building format plan) on 16 January 1979. It comprises 50 lots and is operating under the Body Corporate and Community Management (Standard Module) Regulation 1997 (the Standard Module).

BACKGROUND

This application relates to a proposal by the body corporate to effect certain repairs and alterations to common property podium area consisting of 4 concrete slabs upon which a number of garden beds have been constructed. Synthetic expansion joints between the concrete slabs require periodic replacement and were last replaced in 1990. It would appear that the deterioration of the joints has been accelerated by roots extending from trees in garden bed that cover the joints in certain places.

It is proposed that instead of excavating the garden beds to access the joints, the existing garden beds are to be replaced and plant pots are to be used in places where the garden previously covered the expansion joints. The applicants claim that reshaping, replacement and removal of the garden beds involves a loss of privacy to lots 3, 7, 8, 13 and 17.

APPLICATION

The applicants seek an interim order preventing the construction of any garden wall that runs within 2 metres of the outside walls of units 8 & 13.

The final outcome sought by the applicants is an order directing the body corporate to modify existing plans for the podium works so that units 8 and 13 will not lose the privacy currently afforded by the existing garden beds.

The applicants submit that privacy could be restored by construction of a fence 2400 mm from, but parallel to, the affected sides. On one side the fence would meet the safety fence at the end of the podium while at the other end the fence would turn and proceed up to the building wall.

SUBMISSIONS

Submissions in support of the application were received from the owners of lots 1 and 3 while submissions in support were received from the body corporate and the owners of 15 lots.

The submissions from lot 1 and 3 support the applicants’ contention that removal and/ or reduction of garden areas will impact on the privacy of the unit owners/ occupiers. At present a number of trees are growing in the garden beds and further, positioning of garden beds adjacent to the building walls prevents persons from coming within close proximity of the units unless they climb onto the garden beds.

The body corporate has made the following submissions:

• The perceived loss of privacy to units 8 & 13 is not serious and other owners who are similarly affected have agreed to accept the changes to gain the benefit of the current refurbishment;
• The existing gardens and foliage does not deter persons who are intent on gazing through a ground floor window;
• Privacy concerns can be easily addressed by installation of blinds, curtains, security screens etc.
• The solution proposed by the applicants is not acceptable as it would excise areas from the common property when the intent of the new design is to open up the podium, create more open space and provide better views;
• An order preventing construction of a garden beds within 2 metres of the outside walls could involve additional cost owing to potential problems such as discontinuity of the membrane, lack of free drainage, inconsistent finish to the trafficable surface and damage to earlier completed work;
• Existing garden walls at the edge of the podium are a safety risk- in some places disintegrating 500mm walls fence off a 3-4 metre drop;
• Planning for the project has been underway for over 2 years, was approved at an EGM convened on 30 October and work began in November 2005, yet the applicants did not lodge this application until January 2006;
• Implementation of the applicants’ proposal would probably result in objections from other owners whose views would be adversely affected;
• In conclusion, it is submitted that the application should be dismissed because the body corporate has contractual obligations and a commitment to its insurers to complete the work within a specified time period, it is obliged to look after the interests of the majority and not incur costs because of delays and alterations. Privacy issues can be addressed upon completion of the work.

Submissions from individuals opposing the application raised similar concerns. More specifically, a number of owners pointed out the need to address dangers associated with water pooling in the car park area below the podium and walkways which currently become slippery when wet.
Further it is pointed out that the works were approved on 30 October 2005 by special resolution as contemplated by the Act.

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. ...

INTERIM ORDERS

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. Whilst the range of matters that might be the subject of an interim order is not capable of definition, the applicant does need to establish that the circumstances of the application warrant the making of an interim order.

DETERMINATION

The applicants seek an interim order preventing the construction of any garden wall that runs within 2 metres of the outside walls of units 8 & 13. The (final) outcome sought by the applicants is an order directing the body corporate to modify existing plans for the podium works so that units 8 and 13 will not lose the privacy currently afforded by the existing garden beds.

While I acknowledge the applicants’ concerns, I have also perused the submissions and evidentiary material including photographs, and on balance, I do not believe that the proposed alterations to the garden beds are likely to cause a nuisance or an appreciable detriment to the owners of ground floor units. While persons may traverse the common property in closer proximity to the ground floor units than previously, I am not convinced that any perceived loss of privacy would justify the making of the interim order.

I believe that before issuing an interim order I should be satisfied that the balance of convenience is in favour of the granting such an order. On reviewing the submissions and evidentiary material, it is evident that remedial work is well overdue, has been validly approved by special resolution, and is now underway. In my opinion, there are good reasons why the balance of convenience favours the body corporate’s opposition to the interim order.

For these reasons, I have dismissed the request for an interim order. I will now refer this application back to the Commissioner to be administered in accordance with the Act and the normal processes of this Office. The matter will be finally determined in due course and affected parties will have an opportunity to make further written submissions about the application.

Finally, I would point out that at this point in time, failure to make an interim order should not be taken as any indication of what final orders will be made.