Cairns City Palms [2006] QBCCMCmr 8 (5 January 2006)

Last Updated: 19 July 2006

REFERENCE: 0674-2005

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	18313
Name of Scheme:	Cairns City Palms
Address of Scheme:	60 - 66 Martyn Street PARRAMATTA PARK QLD 4870

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Desmond Crowe, the owner of Lot 4

I hereby order that the application for an order by Desmond Crowe, the owner of Lot 4 seeking an outcome to authorise the construction of a fence on the patio of Lot 4, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0674-2005

"Cairns City Palms" CTS 18313

APPLICATION

This application is by Desmond Crowe, the owner of Lot 4 (applicant) against the body corporate (respondent). The applicant is seeking an outcome to have the patio area of Lot 4 fenced using similar fencing as used by Lots 1 and 2.

JURISDICTION

"Cairns City Palms" Community Titles Scheme 18313 is a scheme under the Body Corporate and Community Management Act 1997 (Act) and the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard 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)).

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 applicant) and the committee. A submission was received from the committee and a lot owner.

DETERMINATION

Lots 1 to 4 are located on Level A of Building Units Plan 100155. Each of these lots includes a patio. The applicant seeks to construct a fence on the patio to provide protection to occupiers of Lot 4 as the scheme is not secured. The applicant submits that he proposes to use a fencing material similar to that used by other ground floor units. The applicant has shown that he unsuccessfully sought body corporate approval to fence the patio at the Annual General Meeting dated 19 August 2005 (AGM).

The submission from the body corporate manager on behalf of the body corporate was to the effect that:

• The patios of Lots 1 and 2 are not fenced, but the adjacent common property has been fenced around a swimming pool.
• The fencing of the patio on Lot 4 would be inconsistent with the other 3 lots on Level A and would detract from the northerly aspect of the building.
• The use of material similar to that used for the pool fence would be inconsistent with the fencing or railings used on the patios of the upper level lots.
• A fence on the patio of Lot 4 would provide limited benefit against intruders and would reduce the safety and security of the upper level lots.

The owner of Lot 3 supported the application.

Section 94 of the Act makes provision for the general functions of a body corporate. Section 94(1) provides that the body corporate must administer common property for the benefit of lot owners, must enforce the community management statement (CMS), and must carry out other functions given to it under the Act and the CMS. The body corporate can make by-laws for the scheme regulating the use and enjoyment of lots included in the scheme (section 169, Act). The by-laws applying to the scheme are included in the CMS for the scheme (section 66, Act).

The applicant proposes to install a fence or railing on the patio of Lot 4. Given that it is not proposed to affect common property, the applicant’s proposal is subject to applicable scheme by-laws. The CMS for the scheme contains 19 By-Laws. In my view, By-Law 9 is relevant to this proposal and in part provides that "Occupiers must not make a change to the external appearance of a Lot or make any structural alterations to a Lot, except with the consent in writing of the Body Corporate Committee". The applicant had sought the approval of the body corporate at the AGM. The minutes of the AGM indicate that the applicant’s motion "To fence in patio area of my unit similar to other ground floor units as per body corp rules" was ruled out of order for the reason that "no other units on the ground floor are fenced".

Given the photographs provided by the body corporate, I am satisfied that the patios of Lots 1 and 2 are not fenced. It is evident that a fence is relatively adjacent to the patios of these Lots, but this fence bounds a common property swimming pool and does not serve the purpose of bounding the patios of Lots 1 and 2. Further, it is apparent that the patio of Lot 3 is not fenced. Given that no other ground floor units are fenced, it is reasonable that the person chairing the AGM would rule the applicant’s motion out of order. I do not consider that the applicant can rely on a claim that other ground floor patio areas are fenced. Neither can the applicant rely on the fact that the upper level lots have a railing on their patios as these railings are obviously essential given the location of the respective lots. Further, I am not satisfied that there are security reasons to warrant the making of the order. A patio railing would not, in my view, prevent intruders and the applicant has not provided any grounds to support a view that there is a problem with animals which roam on the common property. For these reasons, the application is dismissed.

However, the applicant is entitled to seek body corporate approval to install a railing or fencing on the patio of his Lot pursuant to By-Law 9. Given the terms of the By-Law, the applicant can seek the approval of the committee. Alternatively, the applicant can choose to submit a motion to the body corporate in general meeting. In submitting a proposal to the body corporate, the applicant should ensure that he provides sufficient detail to enable a decision to be made (for example, a plan of the position of the patio railing and a description of the proposed railing). While the applicant has a right to submit a request to the body corporate, if the body corporate refuses a proper request, I do not consider that based on the arguments presented by the applicant in this application and on the current circumstances, that there is any reason to support a view that the refusal by the body corporate could be considered to be unreasonable.