Glades Easthill North [2006] QBCCMCmr 650 (12 December 2006)

Last Updated: 27 March 2007

REFERENCE: 0446-2006

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

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

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

The Body Corporate, the Body Corporate of lot XXX

I hereby order that the application for orders that: • the owner of lot 21 be ordered to remove unapproved awnings from their lot that currently detract from the amenity of the scheme; • an order be made to enforce by-law 22; is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0446-2006

"Glades Easthill North" CTS 32506

APPLICATION

This application is by the Body Corporate for Glades-Easthill North (the applicant) against Shirley Brown, the owner of lot 21, Mrs Shirley Brown (the respondent). The applicant is seeking the following outcomes:

•	the owner of lot 2 be ordered to remove unapproved awnings from their lot that currently detract from the amenity of the scheme;
•	further, that the order be made to enforce by-law 22.

JURISDICTION

"Glades Easthill North" Community Titles Scheme 32506 is a 80 lot scheme under the Body Corporate and Community Management Act 1997 (Act) and the Body Corporate and Community Management (Accommodation Module) Regulation 1997 (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) 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)).

GROUNDS

The Body Corporate states:

The owner of lot 21 has installed folding arm awnings to the rear of their lot. The Body Corporate committee had resolved to approve the awnings with the material being beige in colour. The awnings were green in colour when installed which contravened by law 22. The owners were advised of this on 14 October 2005 and asked to remove the awnings. This was ignored and a contravention notice was issued on 10^th April 2006. Further lack of response has resulted in the Body Corporate committee submitting a dispute resolution application.

The Body Corporate has provided a copy of the Notice of Continuing Contravention, the letter of 14 October 2005 and minutes of the committee meeting of 4 May 2006 where they resolved to make the dispute resolution application.

I note that there has been some delay in the finalisation of this matter due to the death of one of the respondents after lodgement of the application by the Body Corporate, combined with my request for photographs to assist me in determining the matter.

SUBMISSIONS

Only one submission was received and that was from the respondent. She advises that her husband died on 3 August 2006 from multiple cancers.

She provides a copy of correspondence dated 24 February 2006 she has sent to the committee, but has not received a response to. This correspondence states that she has medical documents stating that Mr Brown required 100% ultraviolet protection. The letter states that the only fabric that provides that protection was the green one used.

She advises that the contravention notice sent by the committee never reached her. She states this may be due to a change in body corporate manager. She states she would have entered further discussions with the committee had she received it.

She states that her husband had endured more than 100 surgeries for skin cancers in the few years before this dispute.

She advises that they had sought permission to build a fixed roof previously, however had been refused based on the materials proposed. She alleges that a similar structure was approved 2 lots away.

She states that the beige fabric approved by the Body Corporate only provides 50-60% ultraviolet protection. She states this was repeatedly advised to the Body Corporate in letters dated 27 October 2005, 2 December 2005 and 13 January 2006.

She states the retractable awning she installed, shows only beige when closed. She states it is closed most of the time and only used around 3 to 6 hours per week and not at all in May, June and July.

She says within the complex that only her next door neighbours can see the awning and neither has complaints. She says that a retractable awning should be treated in the same way as umbrellas.

The respondent has provided photographs of the awning when extended. These include photographs from the golf course on the other side of the creek, from inside the lot, from the creek bank and from the front of the lot.

DETERMINATION

By law 22 of the scheme states:

Fences, Pergolas, Screens, External Blinds, TV Antennas and Awnings
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, TV antenna 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. An owner may construct a pergola on the patio area of the owner’s lot, provided that the style, design and colour of the pergola shall be consistent with the lot and does not detract from the amenity of the Scheme and is according to plans approved by the Body Corporate at a Committee meeting. The occupier of the lot shall repair and maintain the pergola so that any part of the pergola visible from outside the lot is kept in an attractive state. An Occupier shall not, except with the consent in writing of the Body Corporate, change the size, type or colour of pergola once constructed. Any work, alteration, improvement or structure carried out or erected in breach of this by-law may be forthwith removed with or without notice by the Body Corporate, the Manager and each of their respective employees, agents and contractors and any entry on to the lot pursuant to this by-law shall not constitute trespass. An owner of a lot may also enclose that part of the lot (if any) designed for storage of a golf buggy provided enclosure is consistent with the lot to which it attaches and the enclosure will not detract from the amenity of the Scheme. An owner must obtain the committee’s prior written approval prior to commencement of construction of the enclosure. The committee will be entitled to request copies of such plans and specifications as it might consider necessary to enable it to grant its approval and an owner will comply with all such requests.

There is nothing in this by-law that leads me to believe that the colour of external awnings is limited to anything other than a choice that is "consistent with the lot and does not detract from the amenity of the Scheme". From the photos that have been provided to me, I do not find the colour of the awning to be at odds with the scheme. As the respondent points out, the fact that the awning may be retracted, is retracted most of the time and is beige in colour when retracted, means the visual impact of the awning is limited in the same was as an umbrella.

The by-law also requires that the awning erected "is according to plans approved by the Body Corporate at a Committee meeting". However, in making a determination in whether or not to approve the plans it is necessary to refer to Section 94(1)(b) and 94(2) of the Body Corporate and Community Management Act 1997 which says:

The Body Corporate for a community titles scheme must .....enforce the community management statement (including any by-laws for the scheme)...........

The Body Corporate must act reasonably in anything it does under Section (1).

Therefore in my view, the decision of the Body Corporate to refuse the erection of an awning that provided the ultraviolet protection the respondent’s husband required (regardless of the fact that the preferred colour did not offer the required level of protection) must be examined for reasonableness.

Following is an extract of a decision made by Adjudicator Ex on 26 June 2006 ^[1]:

The Committee appears to suggest that the only permissible covering materials are canvas, lattice and Venetian blinds. The Committee has provided no explanation why these materials are acceptable and why shade cloth cannot be included in this class of materials. The respondent has provided reasons for choosing shade cloth. The reasons given are to lessen heat, allow breeze, a high ultra-violet radiation (UVR) block factor, sturdiness, strength and ‘great looks’. The last factor is a matter of opinion but the previous factors are certainly claimed by the manufacturer for the shade cloth fabric. In particular, the manufacturer claims the relevant fabric blocks out 90% of UVR. I consider this to be a significant advantage. Queensland has the highest rate of skin cancer in the world with over 2000 cases of melanoma diagnosed in Queensland and over 200 deaths from this disease occurring annually^[2]. It is universally accepted that skin cancer is mainly caused by cumulative exposure to UVR from the sun^[3].

When balancing a subjective detriment to the external appearance of a building against the potential harm to the health of lot owners I would come down in favour of the latter. As potentially unpleasant as respondents’ shade cloth fixture may be to some people’s eyes, the deleterious effect of sun exposure is now universally accepted. I consider it only reasonable that lot owners be able to maximise their enjoyment of their lots and safeguard their health at the same time.

I am aware that the respondent might be said to have "defied" the committee by erecting an awning that did not comply with the terms of the approval given by the Body Corporate committee. However, it is not the role of this office to punish parties for defiance, but rather to consider the appropriateness of the outcome.

Given:

•	the general dangers associated with sun exposure;
•	the need to limit the reflection of light from the creek upon the underside of the awning, back down upon lot occupants;
•	the inoffensive colour chosen;
•	the need for greater opacity in the fabric used; and
•	the circumstances of the respondent’s husband;

I regard the refusal by the committee to allow the green awning as unreasonable.

I will dismiss the application.

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^[1] Re Melaleuca Court 0161-2006
^[2] Information taken from Queensland Skin Cancer Prevention Strategic Plan
2001-2005 of Queensland Health - http://www.health.qld.gov.au
^[3] http://www.health.qld.gov.au/sunsafety/skin_cancer/what.asp