Kensington Gardens Retirement Village [2006] QBCCMCmr 42 (3 February 2006)

Last Updated: 19 December 2006

REFERENCE: 0708-2005

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	30198
Name of Scheme:	Kensington Gardens Retirement Village
Address of Scheme:	45 Glen Kyle Drive BUDERIM QLD 4556

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

Karen Hall, the Owner(s) of lot 54

I hereby order that motion 3 put forward at the general meeting of Kensington Gardens Retirement Village on 22 September 2005, seeking approval for the owner of lot 54 to install a spa, is deemed to be passed on the conditions set out in that motion. I further order that the applicant must take all reasonable steps to ensure that use of the spa does not cause nuisance to occupiers of lots in the immediate vicinity.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0708-2005

"Kensington Gardens Retirement Village" CTS 30198

Application

Kensington Gardens Retirement Village Community Titles Scheme (Kensington Gardens) is an 80 lot scheme under the Body Corporate and Community Management Act 1997 (Act) and the Act’s Standard Module Regulation (Standard Module). The scheme is designed for residential purposes and submissions indicate that it operates as a retirement village under the Retirement Villages Act 1999.

This application is by Karen Hall, owner of lot 54 (applicant) seeking orders against the body corporate for Kensington Gardens (respondent). The applicant is seeking an order to enable her to install a spa pool in her exclusive use area.

Submissions

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

• Unit 80 had been given permission to install a spa in their rear courtyard by letter signed by the chairperson dated 17 February 2003;
• The applicant applied to the ten properties located near her unit for approval to install a spa and eight of those ten agreed;
• Having already purchased the spa the body corporate decided that the vote needed to be by the whole 80 units. Some people canvassed others to vote against the spa; and
• The noise from the spa will be less than the air conditioner that 95% of units have and the applicant agrees to abide by any by-laws.

Other owners have also provided submissions. The majority of these submissions support allowing the applicants to install a spa and indicate that one owner has already installed a spa without any problems. The only owners that oppose permission for the applicant to install a spa are the owners of lots 33, 44 and 45. The main concerns raised by these owners are the possibility of noise from use of the spa disturbing the peace. The owners of lot 45 also raise a concern that persons climbing stairs to enter the spa will be able to see over the fence into other properties.

The applicant has responded to these submissions by saying that she has guaranteed to the committee that she would strictly adhere to the curfew imposed by the committee and will line the inside of the cabinet of the spa with soundproofing material. A submission is made to the effect that the spa will not cause any noise disturbance when compared with air conditioners running day and night. In respect of the concerns raised by the owners of lot 45, the applicant makes submissions to the effect that this owner should not have privacy concerns as a walkway of over two metres separates the two properties and their fence has a vine covered extension. It is also submitted that other neighbours have not made any similar objection.

Decision

Applicable law

The legislation includes provisions to the effect that:

• An exclusive use by-law attaches to a lot in the scheme and gives the occupier of the lot for the time being exclusive use to the rights and enjoyment of an area of common property (Act, 170);
• The owner of the lot to whom exclusive use is given is responsible for the maintenance and operating costs for the part of common property to which the exclusive use by-law applies in the absence of any specific provision in the by-law to the contrary (Standard Module, 123);
• An owner may make improvements to their exclusive use area only if authorised to do so by the body corporate. If the value of the improvement is more then $250 the authorisation must be by special resolution (Standard Module, 124); and
• The occupier of a lot must not use or permit use of the common property in a way that causes a nuisance or interferes unreasonably with the use or enjoyment of another lot (Act, 167).

Permission to install spa

From the material provided I conclude that the committee acting in February 2003 had approved the installation of a spa in unit 80. However, on the applicant making a request to install a spa in her unit 54, the current body corporate manager correctly advised the current committee that the applicant’s request for approval to install a spa would need to be approved by a special resolution of all owners in general meeting.

The minutes of a general meeting on 22 September 2005 indicate that votes were cast by only 41 of the 80 lots in respect of the motion seeking authorisation to install a spa. Twenty-four votes were granted in favour of giving authorisation and only seventeen votes against. However, since amendments to the legislation on 4 March 2003, a special resolution will only be passed if two thirds of the votes cast are in favour of the motion (Act, 106). The motion therefore failed.

Grounds to override vote

An adjudicator is required to make a decision that is just and equitable to resolve a dispute (Act, 276). A vote of owners in general meeting will normally be final, unless or until owners change their minds. However, there will be occasions when it is appropriate for an adjudicator to make an order that overturns a decision of the body corporate.

For example, the body corporate is required to administer the common property reasonably and for the benefit of all lot owners (Act 94, 152). Voting by owners may be overturned if, for example, votes are made for entirely irrelevant reasons or there is simply no reasonable basis for the vote.

The particular vote in question was very close. A majority of owners favoured allowing the applicant to install a spa but a few more votes would have been necessary for the applicant to have a majority support the motion.

As a result of making this application, all owners have been given an opportunity to provide details for or against the proposal rather than simply exercising their vote. Only three owners have made a submission giving reasons opposing the installation of the spa, as compared with seventeen owners who voted against the proposal. The proposed spa is to be installed on the exclusive use area of lot 54 and would appear to have minimal impact on other owners. Specific provision has been made to sound proof the spa motor and the committee reserves the right to impose usage time frames in response to any legitimate noise or nuisance concerns. Of particular relevance, eight of the ten owners of lots in the area immediately adjacent to the applicant’s lot have previously indicated that they support giving the applicant permission to install the spa. This is a strong majority of people who are most likely to be affected whereas most of the votes against installation of the spa seem to have been by owners in a completely different area of the scheme.

Some submissions have been made to the effect that permission should not be granted because the body corporate has voted and legislative requirements were followed. However, I do not consider this particular argument to be persuasive in that the legislation does impose requirements on the body corporate to act reasonably in administering the common property and the legislation specifically provides for the process of adjudication by which decisions of the body corporate can be overturned.

I do place significant weight on the submissions by the owners of lot 45 that is situated diagonally to the rear of the applicant’s lot. These include concerns about proximity to the fence, noise pollution and loss of privacy. However, I note that the conditions of approval in the motion included requirements that the installation be subject to noise and nuisance requirements, and comply with local authority requirements.
The applicant has provided assurances about soundproofing and has indicated that there is a walkway, fence and vine between the two units. In the circumstances, any additional noise or loss of privacy seems likely to be of a very limited nature. Looking in particular at the totality of objections by owners in the immediate vicinity of the applicant’s lot, the owners of lot 45 are in a clear minority and I have formed the view that the applicant should be entitled to proceed to install the spa.

Having said that, the legislative requirement that an occupier must not create a nuisance or cause unreasonable interference to the enjoyment of other lots is very clear. If the installation of the spa does result in nuisance being called then the owners of lot 45 will be entitled to make an application seeking orders appropriate to prevent any further nuisance.

Order

Few owners provided any detailed reasons for opposing the installation of a spa by the applicants and I conclude that some opposition to the motion seeking permission was unreasonable. As the vote was otherwise quite close I conclude that the unreasonable opposition should be overruled and the motion declared passed.

I note that a small minority of owners expressed some concerns about possible noise pollution or loss of privacy. I consider that the applicant should take all reasonable steps to ensure that use of the spa does not result in nuisance being caused to occupants of lots in the immediate vicinity.

For these reasons, I make the order above.