Helensvale Villas [2006] QBCCMCmr 648 (8 December 2006)

Last Updated: 27 March 2007

REFERENCE: 1007-2006

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	7889
Name of Scheme:	Helensvale Villas
Address of Scheme:	11-15 Lindfield Road HELENSVALE QLD 4212

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

The Body Corporate for Helensvale Villas CTS 7889

I hereby order that the owner of lot 7, Joseph Arthur Northcott, shall immediately cease all works being undertaken on the exclusive use area allocated to lot 7 and also on the common property in front of lot 7.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 1007-2006

"Helensvale Villas" CTS 7889

ORDERS SOUGHT

The applicant has sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) as follows:

1. That the owner of lot 7 reinstate the areas of common property that he has damaged with a mechanical excavator to its original condition.
2. That the owner of lot 7 applies to the committee for approval for work he plans to carry out in the exclusive use area.
3. That the owner of lot 7 removes the air conditioner installed on the front of the unit without body corporate approval.

The applicant has also sought an interim order of an adjudicator under the Act as follows:

1. That the owner of lot 7 immediately ceases all work on the common property and damage to the common property.
2. That the owner of lot 7 immediately ceases all work in the exclusive use area at the lot.

JURISDICTION

The application evidences a dispute between an owner of a lot included in a community titles scheme and the body corporate for the scheme (Act s227(1)(b)).

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) of the Act allows an adjudicator to make an interim order if satisfied, on reasonable grounds, that an interim order is necessary because of the nature or urgency of the circumstances of the application.

SCHEME DETAILS

Helensvale Villas is a community titles scheme comprising 32 lots and common property. The scheme was established upon registration of the building units plan (now described as a building format plan) on 20 May 1986, and is regulated by the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module).


BACKGROUND

The applicant stated that the owner of lot 7 brought a mechanical excavator onto scheme land on the weekend of 25-26 November 2006 and removed a fence on the boundary of his exclusive use area, as well as removing a concrete edged garden area on the common property in front of his lot and the adjacent lot. The applicant further stated that all areas were scaped back to bare earth.

The applicant advised that after the Contravention Notice was issued to the owner of lot 7, he contacted the body corporate manager and stated that his real estate agent had told him that all affected areas were his property and he intended increasing the value of his lot by undertaking the works.

The applicant reported that the owner of lot 7 had allegedly told other owners that he intended to install colorbond fencing, retaining walls, car parking areas and a swimming pool.

DETERMINATION

If, as reported, the owner of lot 7 has been advised by his real estate agent that all affected areas on which the works are being undertaken belong to him then that is incorrect. The common property for a community titles scheme is owned by the owners of the lots included in the scheme, as tenants in common, in shares proportionate to the interest schedule lot entitlements of their respective lots (Act s35(1)).

Even when an allocation of exclusive use of a portion of the common property has been made, the owner still has to seek body corporate approval to make any improvements to the exclusive use area.

Lot 7 has an area of 135m2 of common property allocated to it under an exclusive use by-law, which is recorded in the community management statement. The common property area in front of lot 7 has not been allocated to lot 7’s exclusive use.

By-law 13 provides that an owner shall not construct or permit the construction or erection of any fence, pergola, screen, awning or other structure or outbuilding of any kind within or upon the common property without the approval in writing of the body corporate.

Section 114 of the Standard Module also provides that if an owner wishes to make an improvement to the common property for the benefit of the owner’s lot, then approval for the improvement must be given by special resolution of the body corporate, even if the area concerned is allocated to the exclusive use of the lot. This is because even an exclusive use area still remains common property.

If the nature of the improvement were such as to effectively annex that area of common property to the exclusive use of the owner (a swimming pool would fall into this category in my view) then a further allocation of exclusive use would be necessary, if the pool were not to be constructed in the exclusive use area already allocated. In such circumstances a resolution without dissent would be required, and then a new community management statement with the new exclusive use by-law would have to be lodged, with the associated costs of same being borne by the owner.

On the face of the material before me, the owner of lot 7 does not appear to have sought any approval from the body corporate for the work being undertaken on the common property outside his lot or on his exclusive use area.

I am aware that the owner of lot 7 has not been invited to respond to this application for an interim order. However, the photographic material provided with the application demonstrates that the owner has caused extensive damage to the common property and in the circumstances, I am satisfied that the balance of convenience favours the body corporate, and the works must be stopped before further damage is caused.

The owner of lot 7 is of course at liberty to make immediate application to the body corporate for approval of the works. If he wants to have the matter considered expeditiously, he can pay the costs of convening an extraordinary general meeting.

This application will now be processed in accordance with the usual practices of this office. The owner of lot 7, and all other owners, will have the opportunity to make a submission in relation to the final orders.