Olims Hotel Brisbane [2006] QBCCMCmr 726 (15 September 2006)

Last Updated: 29 March 2007

REFERENCE: 0627-2006

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	3563
Name of Scheme:	Olims Hotel Brisbane
Address of Scheme:	355 Main Street KANGAROO POINT Q 4169

TAKE NOTICE that pursuant to an application made under the abovementioned Act by the Body Corporate for Olims Hotel Brisbane

I hereby order that the owner of lot 70, Christina Todorovic, shall within three (3) months of the date of this order, make an Impact Assessment Development Application for Extension to a Multi-Unit Dwelling relating to her enclosure of the balcony of lot 70 to the Brisbane City Council. I further order that if the Brisbane City Council does not approve the balcony enclosure, then within two months of the date of written notice in that regard by Council to Ms Todorovic, she shall, unless ordered differently by Council, reinstate at her expense the wooden framed door and glass of lot 70 so that it resembles as closely as practicable the wooden framed door and glass previously removed by her. I further order that these orders shall not prevent Ms Todorovic from residing in lot 70 in the meantime.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0627-2006

"Olims Hotel Brisbane" CTS 3563

ORDER SOUGHT

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

That lot 70, 355 Main Street Kangaroo Point have all structural modifications carried out by the owner Christina Todorovic removed and the unit returned to its original structural condition as per the original building construction drawings using original building materials where the building code permits.

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

That lot 70 not be sold or rented or inhabited until this dispute is finalised and the work required has been carried out.

JURISDICTION

The application evidences a dispute between the 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

Olims Hotel Brisbane is a community titles scheme comprising 94 lots and common property. The scheme was established upon registration of the building units plan (now described as a building format plan) on 17 September 1992, 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 70, Ms Todorovic, has carried out improvements to her lot for which she has not obtained body corporate approval.
The applicant provided a copy of an undated letter Ms Todorovic wrote to the body corporate in September 2005 seeking permission to carry out various improvements within her lot. However, the applicant pointed out that the work carried out within the lot differed significantly from that detailed in Ms Todorovic’s letter.

The applicant explained that its concerns centre on the following matters:

• In addition to not obtaining body corporate approval Ms Todorovic did not obtain Brisbane City Council approval for the work
• Because the gross floor area of the lot does not include the balcony, it will be necessary for the registered building units plan to be withdrawn and a new application to be submitted for approval to allow for the modification brought about by Ms Todorovic’s renovation
• The external appearance of the lot has been altered in such a way that it is out of character with other lots in the building
• It is possible that the building code has been compromised with some of the building materials used in the renovation not being of the correct specification
• The brickwork supporting the wooden framed door leading onto the balcony has been completely removed
• The balcony area has been paved and the drain on the balcony has been covered over
• An aluminium and glass window assembly has been installed just inside the balcony rail

Ms Todorovic responded to the application in the following terms:

• She purchased her lot in December 2004 because it was an affordable unit in close proximity to Mt Olivet Hospital, where she is employed as a registered nurse.
• During her weekend inspection of the property prior to signing the contract, she noticed some noise levels from the passing traffic on Main Street, but was assured by the owners that this was "substantially reduced" once the windows over the sliding door were closed. Ms Todorovic stated that she was unable to do this on the day of the inspection.
• After settlement when she discovered that the traffic noise during the week was significant, she sought and obtained approval for the installation of double glazed doors, however the cost was prohibitive. Her financial problems were exacerbated after she suffered a work related knee injury and was unable to walk for 3-4 months.
• As Ms Todorovic only had a small budget for renovation she received advice from a friend with acoustic engineering experience who told her that her balcony was acting as a "sound shell", and that if she were to move the doors forward her noise problems would be solved.
• She also thought that it would overcome her problems with stepping down onto the balcony area if the floor levels were uniform throughout. Ms Todorovic provided medical evidence in relation to her knee condition following a work related injury in June/July 2005.
• Ms Todorovic was informed that the work was structurally sound and provided a letter from the contractor stating that the aluminium joinery and windows have been manufactured in accordance with relevant building codes and design criteria..
• Ms Todorovic does not accept that the renovation has changed the external appearance of the building, particularly as the body corporate also approved an external blind which covers the whole of the front of her lot.

On 7 September 2006 I spoke with Ms Joanne Pettiford, a Call Centre Town Planner with the Brisbane City Council, who advised me that the renovation carried out by Ms Todorovic would require Council approval. Ms Pettiford stated that it would be necessary for Ms Todorovic to lodge an impact assessment development application, and pay a minor development fee, after which the Council would consider the application on its merits.

Ms Pettiford further stated that it would not be necessary for the registered plan for the whole building to be withdrawn in order for this application to be made.

Ms Pettiford also referred to a decision of the Planning and Environment Court in Bartlett & Anor v Brisbane City Council (2003) QPEC1 (31 January 2003), which considered whether a development application had been validly made when signed only by the owners of a lot in a multi lot building. The Court found that such an application was "properly made" with the written consent only of the owners of the lot in question.

DETERMINATION

It is uncontested that Ms Todorovic did not receive specific approval to remove the existing door and install glass windows inside the balcony railing, or to raise the level of the balcony floor to provide one level of flooring throughout her lot.

I note that the balcony forms part of Ms Todorovic’s lot, and that all work to which the body corporate has objected has therefore been carried out within her lot. The external blind, which is affixed to the exterior of the building, and therefore common property, is not in issue.

The by-laws which the body corporate has claimed have been breached by Ms Todorovic are by-laws 4, 5, 7 and 9.

By-law 4 relates to painting, alteration etc of common property. Although the body corporate has not particularised its claim concerning by-law 4, I note that Ms Todorovic has raised her balcony flooring to create one level of flooring throughout her lot. In so doing, she has covered the shared drain on the balcony, although she has noted on a photograph of the area that prior to the installation of her (approved timber) flooring, a trap is to be constructed to enable access to the drain.

The shared drain forms part of the common property, being a component of the utility infrastructure of the scheme. As the drain is not supplying a utility service (drainage) solely to Ms Todorovic’s lot, it does not fall within the exception set out in section 20(1) of the Act. As the body corporate has responsibility for maintaining common property, and therefore this shared drain, in good condition it is reasonable to require that the drain be accessible. Furthermore, the drain would be unlikely to function correctly if it were covered.

By-law 5 sets out the duties of proprietors and occupiers. The body corporate did not specify which particular duty Ms Todorovic had failed to perform.

I note that by-law 5.2 requires that all floor space other than kitchen, laundry, lavatory, bathroom, balcony or outdoor area be carpeted or otherwise treated to an extent sufficient to prevent transmission of noise to another lot. The body corporate committee has approved the installation of timber or bamboo flooring with approved under floor insulation, as requested by Ms Todorovic in her initial letter to the body corporate, so there would not appear to be any breach in this regard.

I further note that by-law 5.8(h) prohibits any structural alteration to be made to any lot.
"Structural" is defined in The New Shorter Oxford English Dictionary (Thumb Index Edition 1993) as meaning "Of or pertaining to the structure of a building etc. as distinguished from its decoration or fittings".

In my view the wooden framed door and fixed glass removed by Ms Todorovic did not pertain to the structure of the building. I would not expect that the assembly was load bearing. Accordingly, I am not satisfied that there has been any breach of by-law 5.8(h).

Without any specific details from the body corporate I am unable to consider the alleged breach under by-law 5 any further.

By-law 7 relates to the maintenance of the character of the exterior of the building.

By-law 7.1 states:

A proprietor or occupier of a residential lot shall not do any thing or permit any thing to be done which may interfere with the uniform appearance of the outside parts of the building.
By-law 7.3 states:

The proprietor or occupier of a lot shall not without the written consent of the body corporate maintain within the lot anything visible from outside the lot that viewed from outside the lot is not in keeping with the rest of the building.

It is evident from the photographs supplied by both the body corporate and Ms Todorovic that all lots, when viewed from the street, reveal an expanse of glass at the front of the lot. In my view, the expanse of glass in Ms Todorovic’s case, although further forward than the other lots, is not out of keeping with the rest of the building. I accept that the window frames differ from the door frames of other lots, but I am not satisfied that this warrants the removal of the windows, for the following reasons.

It is evident in any event that there is not uniformity in the external appearance of the building, because several lots have an external blind fitted, but many more lots do not. These blinds appear to have been approved by the body corporate. In addition, the glass windows fitted by Ms Todorovic have been installed behind the balcony railing, so, to that extent, the uniformity of balcony railings has not been altered, and with her external blind in place, one would have great difficulty in determining what lay behind it, should she choose to leave her external blind lowered.

I am therefore satisfied that there has not been a breach of by-law 7.

By-law 9 relates to alterations of the lot or common property.

It is common ground that Ms Todorovic did not seek Brisbane City Council approval for her renovations insofar as they included an enclosure of her balcony resulting in an increase of the gross floor area of her lot. From Council’s perspective, the gross floor area of a lot does not include the balcony, even though the registered plan shows the area of the lot on title (33m2) as including the balcony. As a result of my telephone conversation with Ms Pettiford in the Town Planning Department of Council, it is evident that Council approval is required for the balcony enclosure.

It is also common ground that Ms Todorovic’s renovations differed from those initially approved by the body corporate. It would appear from the body corporate’s statement of grounds for the application that its concern was in relation to building and structural issues. I have addressed the structural element in relation to the removal of the wooden framed door and glass, but the balcony enclosure from a building perspective must of course be determined by Council.

I therefore propose to allow Ms Todorovic a period of three months within which to apply to the Brisbane City Council for approval of her balcony enclosure. In the event that Council does not approve the enclosure, I shall allow a further period of two months for Ms Todorovic to reinstate the wooden framed door and glass.

I have also ordered that Ms Todorovic is not prevented from residing in the lot in the meantime as a result of these orders. I have made this determination because I am not persuaded that there are any safety issues associated with Ms Todorovic’s renovations.

These orders, although made on the interim application, finally dispose of the application, and no further orders will be made.