Meadowglen [2006] QBCCMCmr 389 (21 July 2006)

Last Updated: 19 December 2006

REFERENCE: 0136-2006

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	19139
Name of Scheme:	Meadowglen
Address of Scheme:	100 Meadowlands Road CARINDALE QLD 4152

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Keith White, a co-owner of Lot 24

I hereby order that the decisions of the committee on Motions 8 and 9 at the Committee Meeting dated 23 January 2006 are void.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0136-2006

"Meadowglen" CTS 19139

APPLICATION

This application is by Keith White, a co-owner of Lot 24 (applicant) against the body corporate seeking the following outcome, quote:

Invalidate motions eight (8) and nine (9) passed at the Meadowglen Committee Meeting 23^rd January 2006 (Carport Alterations).

JURISDICTION

"Meadowglen" Community Titles Scheme 19139 is a scheme under the Body Corporate and Community Management Act 1997 (Act) and the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module).

Section 276(1) of the Act provides that an adjudicator may make an order that is just and equitable in the circumstances to resolve a dispute, in the context of a community titles scheme, about a claimed or anticipated contravention of the Act or the community management statement; or the exercise of rights or powers, or the performance of duties, under the Act or the community management statement.

SUBMISSIONS

In accordance with the Act, submissions were called and a copy of the application was provided to the body corporate manager for distribution to the owner of each lot (excluding the applicant) and the committee. A submission was received from the committee and a number of lot owners.

DETERMINATION

The following provisions of the Act are applicable to this determination:

• A body corporate may make by-laws regulating the use and enjoyment of the lots included in the scheme^[1].
• A body corporate’s general functions include administering the common property for the benefit of lot owners and enforcing the community management statement (including any by-laws for the scheme)^[2].
• A body corporate must act reasonably in anything it does under section 94(1)^[3].
• A body corporate has the powers necessary for carrying out its functions^[4].
• The committee for a body corporate has the power to make a body corporate decision provided the decision is not on a restricted issue for the committee^[5].

The committee at its meeting dated 23 January 2006 (the Committee Meeting) determined:

1. To approve the alteration of the carport for Lot 59 in accordance with Motion 11 passed at the Annual General Meeting dated 8 August 2005 (Motion 8); and
2. To approve the alteration of the carport for Lot 55 in accordance with Motion 11 passed at the Annual General Meeting dated 8 August 2005 (Motion 9).

The body corporate at the Annual General Meeting dated 8 August 2005 (the 2005 AGM) passed Motion 11 that, quote:

Where an Owner of a lot has made an application for approval to erect a carport or the alteration to an existing carport approval will not be withheld by the Committee of the Body Corporate, provided there is compliance with 10(g) of the by-laws and the width of the carport does not encroach or extend beyond the boundary of the lot and onto the common property.

Explanation

A carport may be erected provided the width of the carport does not extend beyond the boundary of the lot and onto the common property.

The owners of Lots 55 and 59 propose to extend their respective carports. The Minutes of the Committee Meeting refer to requests received for approval, documents which were not submitted for this dispute. For the reason that I consider that this information will help resolve the issues raised in the application, on 17 July 2006 I required the body corporate manager to provide a copy of the requests received from Lots 55 and 59. The manager provided a copy of each request on 20 July 2006. The application by Leo McNulty of Lot 55 dated 3 January 2006 referred to the resolution for Motion 11 at the 2005 AGM and requested approval to extend the width of the carport that is attached to Unit 55 in accordance with the requirements as set out in the aforementioned. The application from AB & CA Andrews of Lot 59 dated 5 January 2006 sought to extend the carport stating that paving – as close a match as is possible. Design – in keeping with existing. Storm water – into existing drain at side of villa. Construction – by professional erectors. Will align with west side of villa. Materials – similar to existing. The Andrews’ application included drawings indicating the size of the extension.

Given the requests received from the owners of Lots 55 and 59, the committee authorised the making of the alterations to Lots 55 and 59 in accordance with Motion 11 at the 2005 AGM which refers to By-Law 10. In the circumstance where the alterations will be restricted to the Lots, the body corporate’s powers are primarily derived from its By-Laws. By-Law 10 for the scheme included in the community management statement provides for Alterations to Lots. The By-Law does not prevent the making of alterations, including structural alterations. However, the By-law regulates the making of alterations by for example:

• By-Law 10(a) states a wish to retain conformity as to style and colour of buildings and to maintain a high standard in relation to the external appearance of buildings.
• The external appearance of a building may only be altered with the consent of the committee (By-Law 10(b)).
• Structural alterations, renovations or additions may be made with the consent of the committee (By-Law 10(f)).

Further, By-Law 10(g) provides instruction when consideration is being given to a request under By-Law 10(f).

The applicant has not claimed that any procedural irregularities were evident in the calling and holding of the Committee Meeting. In my view, the By-Law does not preclude the making of alterations of the nature being proposed by the owners of Lots 55 and 59. While By-law 10 regulates alterations to lots in the scheme, the construction of the By-Law contemplates the making of structural alterations. The primary purpose of the By-Law is to ensure that conformity is retained and a high standard of external appearance is maintained (10(a)), and that the style, colour and materials are in keeping with the overall appearance of the scheme (10(g)). Given that By-Law 10 authorises the committee to decide on requests of the nature mentioned in the By-Law, the committee has the power to make decisions on the issues mentioned in Motions 8 and 9 at the Committee Meeting.

The applicant has referred to Application Ref. No. 0244-2002 which related to a previous request by the owner of Lot 55 to extend the carport. By Order dated 19 June 2002, the Adjudicator dismissed the owner’s application primarily for the reason that it could not be held that the committee unreasonably refused consent given the terms of By-Law 10(g). Principally, the Adjudicator considered the effect the extension may have on the ‘style’ of the carport or the scheme. I am not convinced (given the absence of specific information in the requests from Lots 55 and 59) that the proposed extensions would not be in keeping with the style of the scheme.

The absence of specific information in the requests is significant in the determination of this dispute. I am not satisfied that the requests include the necessary plans and specifications to enable a reasonable determination to be made by the committee. While the owner of Lot 59 has provided a drawing and some undertakings, the committee must be satisfied as to the exact position of each alteration and have information about the proposed specifications to make a decision in accordance with the By-Law to ensure that conformity is maintained with respect to style, colour and materials.

In my view, the requests made by the owners of Lots 55 and 59 do not provide information which would allow reasonable consideration based on the terms of By-Law 10. The owner of Lot 55 cannot simply rely on Motion 11 at the 2005 AGM. This Motion provides some instruction with regard to carport extensions, but does not change the terms of By-Law 10. The owner of Lot 59 has only provided limited information about the materials and location of the extension.

For the reason that the committee has not reasonably considered requests which satisfy the requirements of By-Law 10, I have ordered that the decisions of the committee on Motions 8 and 9 at the Committee Meeting are void.

The applicant and the owners’ submissions supporting the application claim that an extension of carports would detract from the appearance of the scheme. Given the absence of information in the requests by the owners of Lots 55 and 59, I consider that this argument is not based on any objective criteria. By-law 10 contemplates the making of structural alterations to lots, the By-Law does not prohibit alterations of the nature being proposed, and the body corporate at the 2005 AGM has given general consideration to such extensions. In my view, unless the terms of By-Law 10 are amended, consideration can be given to extending a carport in accordance with the By-Law.

Additionally, I consider that arguments relating to traffic and noise do not have any basis without supporting evidence. The issue of precedent is important and is instructive to the committee giving proper consideration to any requests for alterations. It is essential that a committee decision is based on specific and unambiguous material.

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^[1] Section 169, Act.
^[2] Section 94(1), Act.
^[3] Section 94(2), Act.
^[4] Section 95, Act.
^[5] Section 100, Act.