Balmoral Manor [2006] QBCCMCmr 708 (7 September 2006)

Last Updated: 29 March 2007

REFERENCE: 0503-2006

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	19728
Name of Scheme:	Balmoral Manor
Address of Scheme:	31 Wright Street BALMORAL QLD 4171

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

Ellenare P/L, the Owner(s) of lot 1

I hereby order that the application for orders that the body corporate approve the requests for permission for lot 1 to install a gable roof structure over its front balcony and install a blind for sun protection is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0503-2006

"Balmoral Manor" CTS 19728

Application

Balmoral Manor Community Titles Scheme (Balmoral Manor) is a 3 lot scheme under the Body Corporate and Community Management Act 1997 (Act) and the Act’s Small Schemes Module Regulation (Small Schemes). The scheme is designed for residential purposes.

This application is by Ellenare Pty Ltd, owner of lot 1 (applicant) seeking orders against the body corporate for Balmoral Manor (respondent). The applicant is seeking an order that the body corporate approve a request for permission to extend the lot roof over its front pergola. The applicant also seeks an order that the body corporate approve a request for permission to install a blind for sun protection at the front of the pergola.

Background

Balmoral Manor consists of a single building divided into three adjacent lots divided by common walls. At the front of each lot is an open air balcony covered by a pergola.

The pergola of lot 1 is not presently covered with any material and is open to the elements.
The pergola of lot 2 has been covered by something with the appearance of white shade cloth. The pergola of lot 3 has been covered by something of the appearance of white acrylic sheeting.

Submissions

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

• The front stairs and balcony receive the full extent of the western sun and inclement weather and are not sheltered in any manner from the elements. They also become slippery in wet weather;
• Units 2 and 3 have a covering over their pergola. The coverings are not identical;
• Unit 1 now wishes to install blinds and extend the roof over its pergola;
• Unit 1’s proposal obtained "in principle" agreement but was not approved at general meeting despite additional information being provided as requested; and
• The blinds will only be visible when in use, which would be mainly on weekends. It is unreasonable to refuse approval based only on the reason that the proposed grey blinds would introduce a new colour to Balmoral Manor; and
• The failure to approve the roof extension is not fair and equitable in the circumstances, particularly as unit 3 was given approval without detailed drawings.

Submissions from the other two owners were to the effect that:

• Flat roofing similar to the roofing on the pergolas of unit 2 or 3 is effective and does not detract from the appearance of the building;
• An extended gabled roofing requires detailed drawings showing how the finished extensions would look and must be professionally constructed to enhance the appearance and value of Balmoral Manor. The applicants have been willing to approve extended gabled roofing but according to professional plans and on the basis that all three owners would have the work done at the same time; and
• Unit 1 has not provided a sample of the fabric or actual colour of the proposed blind. The proposed colour has been described as grey, which does not match the cream, green and brown colours of the complex. As a minimum, any blinds will need to be retractable, of good quality, and of a colour consistent with the colours of the complex.

Decision

Applicable law

Balmoral Manor has the following by-laws:

12 Structural alterations or extensions
There shall be no external structural alterations or extensions or repainting to a lot visible from common areas without the approval in writing of the body corporate. Future approvals by the body corporate must be based on consistency with existing improvements already approved by the Body Corporate from the date of this meeting.

13 Alterations and additions

Owners are to seek approval from the Body Corporate for the erection of pergolas, structures, repairs and alterations to units that are visible from common areas in order to maintain a good standard of external appearance to the property. These must be of a high standard of construction in regard to materials and workmanship and future approvals by the Body Corporate must be based on consistency.

Further, the proprietors, occupiers or lessees of lots shall not paint, affix or display any signs, advertisements, notices, posters, placards, banners or like matter to or on any part of the building that is visible from common areas without the prior consent in writing of the Committee. In addition, (a) there shall be no external re-painting to a lot without the approval of the Body Corporate and
(b) that no external blinds, awnings, pergolas or other structures that are of a permanent nature be erected that are visible from common areas without the previous consent in writing of the Committee.

Consent by the Committee shall not be construed or taken as approval for construction as and from any state or local authority regulatory body.

By-laws for the scheme

The Act gives the owners of units in a scheme the power to vote on what by-laws will apply to their scheme. All owners and occupiers are obliged to comply with registered by-laws, unless or until the owners vote to modify or remove a particular by-law. Modifications to the by-laws can be made by special resolution (Act, 62(3)) and take effect on the recording of the modified by-laws by the registrar of titles (Act, 179).

The body corporate has a duty to enforce the by-laws (Act 94(1)). Rights of individuals are protected to the extent that the body corporate is required to act reasonably in enforcing the by-laws (Act 94(2)). Further, by-laws cannot be inconsistent with the Act (Act, 180).

Consent not unreasonably withheld

From a legal perspective, the application is founded on a claim that owners have acted unreasonably in refusing to approve the applicant’s request to install a roof over the front balcony and install blinds. However, the submissions provided indicate that the other owners gave reasonable consideration to the applicant’s requests and refused approval for the requests based on the individual merits of those requests.

The by-laws show a desire to protect the external appearance of the scheme and to ensure consistency in any improvements made by lot owners. It is not unreasonable for owners considering requests to authorise improvements to require a reasonable level of detail about a proposed improvement, place reasonable conditions on that improvement, and place reasonable restrictions on colours used.

The proposed improvement of a gabled roof over the pergola of unit 1 is of a significant nature. The applicant provided other owners with a single page quotation for $6,200 including a rough sketch showing the dimensions of the proposed roof. The other owners have obtained a letter from a valuer that expresses concern that the added gable proposed by the applicant will appear as an addition rather than part of the original construction and that a more satisfactory addition would be the extension of the roof over the balconies of each unit with a symmetrical overhang of side soffits.
Further, it is not unreasonable for owners to require further information to assist them to properly consider the proposal. In fact, the other owners have gone to the significant lengths of obtaining their own quotation to have a gable roof installed on the balconies of all units at once. This quotation proposes a continuous roof extension supported by steel posts, with gables to be centred over the balcony and stairs.

If the applicant was merely seeking to install a white shade cloth type material with an appearance similar to the material covering the balcony of the adjacent unit 2 then it would seem unreasonable for other owners not to grant authorisation for the improvement. This is because the applicant would only be seeking a similar advantage to that already granted to the neighbouring owner. In fact, with reference to the by-laws, such an improvement would actually contribute to the consistency of appearance of the building. It is also likely to be unreasonable for the body corporate to refuse authorisation for the applicant to install a flat roof of the applicant’s preferred "Solarspan" material provided the external appearance of this material is consistent with the roofing of the adjacent lots. However, it is not unreasonable for owners to refuse the present application for a gable roof that is not consistent with the roofing over the front balconies of the other two lots.

Similarly, it is not unreasonable for the body corporate as a whole to specify a colour or range of colours for blinds or awnings as well as a particular type of awning. Submissions indicate that owners may ultimately be able to agree on cream coloured blinds of the "Sunmaster 35T" type proposed by the applicant. However, the applicant’s original request for approval does not specify any colour. Further, it might be assumed that the applicant intend to install only one blind at the front of the balcony. This is not entirely clear and I will therefore leave it to the applicant to make this clear in a subsequent application to the body corporate for approval.

In short, it would probably be unreasonable for owners not to give the applicant approval for roofing that is similar in appearance to the covering on the other two lots.
However, the authorisations actually sought would result in changes to the appearance of the building that are not consistent with changes already made by other owners. Further, the applicant may need to provide further detail to demonstrate the proposals comply with the requirement of the by-laws that improvements maintain consistency with existing improvements and a high standard of construction.

Order

The applicant has failed to establish that the body corporate has acted unreasonably in refusing to authorise the proposed alterations. For this reason, the application is dismissed.

However, if the applicant was able to put forward detailed proposals for improvements that could be demonstrated to comply with by-law 12 and 13 by demonstrating a high standard of construction in regard to materials and workmanship and consistency of appearance with other lots then it may become unreasonable for the body corporate to refuse authorisation. I would therefore recommend that the applicant consider its proposals in more detail, preferably in consultation with the other owners, and put forward detailed proposals for consideration at the next relevant meeting.