Glades Easthill North [2006] QBCCMCmr 469 (28 August 2006)

TAKE NOTICE that pursuant to an application made under the abovementioned Act by David Huddy, a co-owner of Lot 28 and Andrew Butlin, a co-owner of Lot 48

I hereby order that the resolution passed by the committee at the committee meeting dated 3 February 2006 approving "the request by the Owner of Lot 5 to approve shade sails as erected (as modified from the original approval)" is void.

I further order that the outcome sought by David Huddy, a co-owner of Lot 28 and Andrew Butlin, a co-owner of Lot 48 "for the said shade sails and supporting posts to be removed from the Scheme" is dismissed.

I further order that Kari Eliasson and Anna Eliasson, the owner of Lot 5 is deemed to have been authorised by the body corporate by special resolution to install 2 sandstone coloured shade sails on the common property allocated as exclusive use to Lot 5. The first authorised shade sail is to be triangular in shape with dimensions of 3x3x3 metres, to be set at a height of 2.5 metres and to be installed starting in the centre of the balcony of Lot 5 and heading south for approximately 3 metres. The second authorised shade sail is to be square and positioned on the corner south of the balcony and set at a height of 3 metres.

I further order that, to the extent an existing shade sail and any supporting structure installed on common property for the scheme by Kari Eliasson and Anna Eliasson, the owner of Lot 5 is not specifically approved by the body corporate by special resolution, the shade sail and supporting structure is deemed to have been authorised by the body corporate. This authorisation continues until the body corporate, at the next general meeting at which it is practicable to include an appropriate motion on the agenda, considers authorising the shade sail and supporting structure by special resolution.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0312-2006

"Glades Easthill North" CTS 32506

APPLICATION

This application is by David Huddy, a co-owner of Lot 28 and Andrew Butlin, a co-owner of Lot 48 (applicants) against the body corporate. The applicants are seeking the following outcomes, quote:

That the decision by the Body Corporate Committee at its meeting of 3 February 2006 to approve the request by the joint owner of Lot 5 for approval of shade sails as erected (as modified from the original approval) be set aside.

That an order be made for the said sails and supporting posts to be removed from the Scheme.

The applicants main submissions were to the effect that:

JURISDICTION

"Glades Easthill North" Community Titles Scheme 32506 is a scheme under the Body Corporate and Community Management Act 1997 (the Act) and the Body Corporate and Community Management (Accommodation Module) Regulation 1997 (the Accommodation Module).

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 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.

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)).

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 applicants) and the committee. The time for making submissions was subsequently extended. A submission was received from the committee and a number of lot owners. The applicants made a written reply to submissions under section 244 of the Act.

It is apparent that the owner of Lot 5 is affected by the outcomes being sought by the applicants. While the owner of Lot 5 was entitled to receive a copy of the Notice of Application and Invitation to Make a Submission distributed by the body corporate manager, the owner did not make a submission. In accordance with the investigative powers stated in section 271 of the Act, I subsequently invited the owner to make written submissions. On 9 August 2006, a submission was received from Robert Eliasson, a co-owner of Lot 5. The applicants were invited to make a written reply to this submission.

The body corporate’s main submissions were to the effect that:

DETERMINATION

The background to the installation of the shade sails
"Glades Easthill North" community titles scheme was established in April 2004 by the registration of the plan of subdivision (SP158879) and the recording of the First Community Management Statement under the Land Title Act 1994. The First CMS relevantly included By-Law 22 – Fences, Pergolas, Screens, external Blinds or Awnings; By-Law 24 – Alterations to the Exterior of Lots; and By-Law 41 authorising the original owner to allocate parts of the common property to lots included in the scheme as exclusive use. These By-Laws are stated in the current CMS applying to the scheme which was recorded in December 2004.

Exclusive use of common property was attached to Lot 5 when a New CMS was recorded under the Land Title Act 1994 in May 2004. The Plan of Exclusive Use Areas shows the common property exclusive use area allocated to Lot 5.

On 22 July 2004, the committee approved the request from the owner of Lot 5 to make a number of alterations to the Lot and common property, including the installation of 2 shade sails of a prescribed colour and size over the exclusive use area.
In September 2004, the owner of Lot 5 unsuccessfully sought body corporate approval to make adjustments to the approved alterations, including to the shade sails.

The applicants submit that the actual shade sails installed by the owner of Lot 5 were noticed by the committee when inspecting the adjoining Lot 4 or an adjacent area in or about June 2005. By letter dated 14 October 2005, the body corporate informed the owner of Lot 5 that the shade sails are contrary to the approval given by the committee in July 2004 and therefore breach By-Laws 22 and 24. The body corporate sought to have the unapproved sails and support posts removed within 30 days. Despite a request from the owner of Lot 5 to relocate a post and replace a sail, by letter dated 1 November 2005, the body corporate informed the owner that the sails constituted a breach of By-Laws 22 and 24 and that the sails be changed to what was approved on 21 July 2004.

At its meeting dated 3 February 2006, the committee (with new members) approved the request from the owner of Lot 5 for the sails as erected. The applicants are disputing this decision.

Committee resolution at the Committee Meeting dated 3 February 2006
The minutes of the Committee Meeting dated 3 February 2006 indicate that it was resolved (that following a request from the owner of Lot 5) to approve the shade sails as erected. The owner of Lot 5 was present at the meeting as a committee member. There is no suggestion that the owner of Lot 5 voted on the disputed motion. The applicants have not claimed that any procedural irregularities were evident in the calling and holding of the Committee Meeting. Rather, the applicants are disputing this resolution given an Adjudicator’s order on Application 0763-2005 and on the basis of equity and precedence.

Application 0763-2005 concerned this scheme and related to the installation of a garden shed in the exclusive use area of Lot 17. In his consideration of the dispute, the Adjudicator relevantly stated, quote:

It is not disputed that the shed in question is located on common property which has been allocated to the owner for the time being of lot 17 or the occupier of that lot "to be used by the occupiers of each lot as a garden and courtyard area only" (see by-law 41.4). Under that sub-paragraph of the by-law, each occupier is authorised to make certain specified improvements to the area (air conditioning unit / hot water system / satellite dish) after first obtaining consent of the body corporate. In addition, by-law 41.6 refers to the right to install a spa or pool in the rear courtyard exclusive use area.

The body corporate has alleged a contravention of by-laws 22 and 24. I fail to see the relevance of by-law 24 given that it refers to alterations to the exterior of lots, given that here the shed has been erected not on any part of the lot but rather common property. In particular, the by-law does not refer to changes to the external appearance of the lot.

By-law 22 provides relevantly that except as allowed under an exclusive use by-law, an owner of a lot shall not construct or permit the construction or erection of any fence, screen, external blind or awning or other structure or outbuilding of any kind within or upon a lot or on common property unless the prior written consent of the body corporate is obtained.

A garden shed is clearly within the contemplation of the words or other structure or outbuilding of any kind. In the circumstances, I agree that by-law 22 applied and that the applicants required approval for the erection of the shed.

By-law 22 refers to upon a lot or on common property. A by-law must not be inconsistent with the Act and is invalid to the extent of the inconsistency (see section 180(1)). I consider that in the circumstances, the level of approval required will depend on whether the improvement is to a lot or to common property.

With a lot, then I suggest that as per the by-law, the written consent of the body corporate is required. This might include committee consent. However, the position with improvements to common property is somewhat different. Section 123 of the Accommodation Module provides as follows:

(1) An exclusive use by-law may authorise the lot owner who has the benefit of the by-law to make stated improvements to the part of the common property to which the by-law applies.

(2) Without limiting subsection (1), improvements stated in the by-law may include the installation of fixtures on the common property and the making of changes to the common property.

(3) If the exclusive use by-law does not authorise the lot owner to make an improvement, the lot owner may make the improvement only if the body corporate authorises it to be made.

(4) However, the making of the improvement mentioned in subsection (3) must be authorised by a special resolution of the body corporate if the value of the improvement is more than $250.

Clearly, this section is applicable here. The relevant by-law, whilst it does make provision for improvements to common property areas the subject of the exclusive use, does not authorise garden sheds or the like. Consequently, the level of approval of the body corporate required by the owner of the lot (in contrast to the occupier) is in fact a special resolution of the body corporate in general meeting. Any suggestion that the committee might approval such improvements is incorrect and in conflict with the requirements of the legislation.

By-Law 41 relates to the parts of the common property allocated to lots as exclusive use. The By-Law authorises the making of specified improvements to an allocated exclusive use area including the installation of an air conditioning unit, hot water system and satellite dish (41.4); spa or pool (41.6) and pergola (41.7). I do not consider that the installation of shade sails could be classified as being of the nature specifically mentioned in the By-Law. Consequently, the installation of a shade sail on an exclusive use area is caught in a similar manner as the installation of the garden shed mentioned in Application 0763-2005.

The committee of the body corporate has the power to make a body corporate decision provided the decision is not on a restricted issue^[1]. The installation of the shade sails on the common property by the owner of Lot 5 for the benefit of the Lot is subject to the requirements of section 123 of the Accommodation Module. Given the requirements of section 123, in my view the owner of Lot 5 could only be authorised by special resolution of the body corporate to install the shade sails. Consequently, the decision to authorise the installation is a restricted issue^[2] for the committee. For this reason, the resolution passed by the committee approving the shade sails on the exclusive use area for the benefit of Lot 5 is void.

Removal of sails
The applicants have also sought an outcome against the body corporate that the sails and supporting posts be removed. However, the applicants have not provided any grounds to support a view that the body corporate is responsible for the removal of the sails given that it is evident that the owner of Lot 5 installed the shade sails. The applicants have not sought this outcome against the owner of Lot 5. In the circumstances, I do not consider that it is just and equitable that such an order be made against the body corporate. Certainly, this order cannot be made against the owner of Lot 5 who was not specifically named as a party to the dispute.

However, I do consider it appropriate that consequential orders are made.

It is apparent that the owner of Lot 5 received committee approval in July 2004 to install two shade sails. The owner has relied on this approval even though additional unapproved sails were also installed. It is evident that a committee of the body corporate in late 2005 sought to have the unapproved sails (and not all sails) removed from the exclusive use area allocated to Lot 5. An adjudicator is required to make an order that is just and equitable in the circumstances to resolve a dispute^[3]. In making an order it is relevant to consider the fact that limited formal steps were taken to require the removal of all the shade sails until recently. In the circumstances, I do not consider it just and equitable to suddenly require the removal of all the shade sails. Rather, I consider that the body corporate has acquiesced to the shade sails installed as a consequence of the committee resolution in July 2004. That is, the body corporate has agreed to allow the shade sails to remain by failing to take appropriate action to have the sails removed.

For this reason, I have ordered that the body corporate is deemed to have approved the installation of the shade sails on the basis of the resolution of the committee in July 2004.

The deemed approval does not relate to the additional shade sail structures installed without body corporate approval. I have already stated that I cannot make an order against the owner of Lot 5 to remove the sails. Similarly, I am not satisfied that this order should authorise the keeping of all the shade sails. Further, I do not consider that the body corporate has properly authorised these improvements to common property. The body corporate has shown that, at the Annual General Meeting dated 13 July 2006 it resolved by ordinary resolution to approve the shade sails adjacent to Lot 5. Given my decision with respect to the committee resolution, it is clear that the body corporate could not determine this matter by ordinary resolution. It should also be noted that Motion 9 would not have been passed if it had properly required a special resolution^[4].

In my view, the body corporate has not by its actions acquiesced to the additional sail structure as the body corporate committee (at the time) sought removal of the sail structure soon after becoming aware of the installation. Further, I have taken into consideration the fact that the owner of Lot 5 allowed the installation of shade sails of a particular size despite the unsuccessful request made to the body corporate and did not subsequent to the installation of the sails pursue the matter with the body corporate.

I consider that it is appropriate that this matter be put to owners to determine by special resolution in accordance with the legislation. In my view, this is the just and equitable outcome. The scheme is relatively new and owners should give proper consideration to the ongoing use and enjoyment of lots and common property exclusive use courtyard areas in the scheme. For instance, given the absence of provision in By-Law 41, it may be appropriate that the body corporate give consideration to forms or types of protection from the sun or inclement weather able to be used or installed which may enhance the reasonable use of the courtyard areas and not interfere unreasonably with the use or enjoyment of another lot or common property. The motion about the retention of the shade sails could be submitted by the owner of Lot 5^[5], and may include allowable explanatory material^[6]. The agenda for the relevant meeting may also include a motion requiring the removal of any unapproved structure within a prescribed and reasonable time.

Given that the body corporate has only recently held its Annual General Meeting, it is possible that the body corporate may not hold another general meeting until 2007. Given that there is no material on the application to suggest that the shade sails are unsafe and that there is not a generally held view that the sails are detrimental to the appearance of the scheme or the use of a lot in the scheme, I have ordered that the owner of Lot 5 is deemed to have the approval of the body corporate until such time as the body corporate makes a decision at the general meeting mentioned in this order.

^[1] Section 100(1), (2), Act.
^[2] Section 24(1)(d), Accommodation Module.
^[3] Section 276, Act.
^[4] Section 106, Act.
^[5] Section 39, Accommodation Module.
^[6] Section 40C, Accommodation Module.

Number of Scheme:	32506
Name of Scheme:	Glades Easthill North
Address of Scheme:	Easthill Drive ROBINA QLD 4226

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Glades Easthill North [2006] QBCCMCmr 469 (28 August 2006)