Grand Palais Boolarong Resort [2006] QBCCMCmr 80 (21 February 2006)

Last Updated: 19 December 2006

REFERENCE: 0752-2005

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	26548
Name of Scheme:	Grand Palais Boolarong Resort
Address of Scheme:	188 Alexandra Parade ALEXANDRA HEADLAND QLD 4572

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

the body corporate

I hereby order that Steve Adams, owner of lot 56, may retain the improvements he has made to his lot in the form of painting his rooftop area and installing lattice screens. This is provided that he maintains these improvements in good condition so far as they affect the external appearance of his lot.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0752-2005

"Grand Palais Boolarong Resort" CTS 26548

Application

Grand Palais Boolarong Resort Community Titles Scheme (Grand Palais) is a 70 lot scheme under the Body Corporate and Community Management Act (Act) and the Act’s Accommodation Module Regulation (Accommodation Module). The scheme appears to be designed for predominantly holiday letting purposes and has a caretaker and letting agent.

Applications 629-2005 and 752-2005 both concern the same subject matter. In the first application Steve Adams, owner of lot 56 (owner) is seeking orders against the body corporate for Grand Palais (body corporate) to allow him to retain some improvements he has made to the roof garden forming part of his lot. The second application is by the body corporate against the owner seeking an order requiring him to remove these improvements.

All owners have had the opportunity to, on request, inspect the material for both of these applications and all owners have been given the opportunity to make submissions in respect of these applications. This order is to resolve the disputes in both related applications and these reasons for decision apply to both applications.

Background

The owner says that he purchased the unit in January 2005 and in February 2005 spoke to the caretaker about painting the walls of his rooftop area a similar blue colour to the walls of a nearby rooftop area. The exact contents of that conversation are disputed but it is not disputed that the owner subsequently painted the walls of his rooftop area blue and placed some lattice screens and other furnishings on his rooftop area.

It is also not disputed that the owner had not obtained any permission from the body corporate committee to make these alterations to his rooftop area and the committee subsequently served notices on the owner to remove the lattice screens and repaint his rooftop area to the original colour.

Submissions

The body corporate’s main submissions were to the effect that the building is predominantly a holiday let complex and the committee would like the building to remain uniform. It is submitted that, in making these changes to his lot, the owner has breached one of the by-laws for the scheme.

The owner’s main submissions were to the effect that he understood from a discussion with the caretaker that he could paint his rooftop area and that he has decorated the area to match with the rest of the building, including another rooftop area that has been painted blue and is featured in the brochure for Grand Palais.

The owner has also submitted a letter from his psychiatrist to the effect that it is in the owner’s medical interests to be allowed these improvements for additional peace and privacy. In this respect, the owner does not currently occupy the premises but says that he intends to move back into his apartment in April 2006.

Other owners have also provided submissions. All submissions are available for the parties to inspect upon request and it is unnecessary for me to summarise these submissions here.

Decision

External appearance of lot

Owners in Grand Palais have recently voted to amend their by-laws, this amendment being effective from 4 July 2005. However, the relevant by-law regarding appearance of a lot at the time the owner made the changes was:

"The occupier of a lot must not, without the body corporate’s written approval, make a change to the external appearance of the lot unless the change is minor and does not detract from the amenity of the lot and its surrounds".

If the changes to the owner’s lot are minor and do not detract from the amenity of the lot and its surrounds then the owner did not need to obtain any permission from the committee to make the changes. Otherwise, permission should have be sought and the owner will normally be required to reverse the changes unless he can establish that the committee’ refusal to grant permission was unreasonable.

Evidence provided

Submissions by the committee are to the effect that the repainted walls fail to conform to the original and existing exterior colour scheme of the building and that the lattice screens may be dislodged in high winds.

Evidence supporting the contrary view includes:

• A brochure advertising the scheme that features photographs of another rooftop area that has been painted in a similar colour;
• Photographs showing the owner’s rooftop has been painted in a colour that I conclude is a reasonably close match to large areas of the front of the building that have been painted blue;
• Photographs showing the lattice screens are a reasonably close match to the colour of the balcony railings and other trim of the building; and
• Letters from the tradesperson who installed the lattice screens indicating that the screens have been secured to the building.

Decision

This dispute concerns painting of the owner’s own lot rather than painting of a common property area. This painting is a close match to the colour scheme of the building and to another rooftop area that is painted blue. As a result, the change to the external appearance of the building is minor. The changes have also been made in such a way that they cannot reasonably be said to detract from the amenity of the lot or its surrounds. Given particularly the similarity of colour to the colour scheme of the building and another rooftop area, I conclude that the painting in itself does not detract from the amenity of the lot and only amounts to a minor change to the appearance of the lot.

The lattice screens have also been painted to match the colour scheme of the building and correspond with the colour of the balcony railings. As these rooftop areas form part of various lots, it will be expected that various owners will place furniture on these areas that may alter the external appearance of their lot. Photographs indicate that the owner in question has tables and chairs, a water feature and various pot plans. I conclude that all these furnishings, including the lattice screens, amount to minor changes to the external appearance of the lot that do not detract from the amenity of the lot and its surrounds.

Further, letters from the tradesperson who secured the lattice screens have been provided and the screens do not appear to present an unreasonable risk of damage in high winds in the context of other furnishings on the rooftop areas. In this respect, submissions indicate that the lattice screens may be screwed to the owner’s rooftop. This would obviously assist in preventing the screens being blown around in high winds and an owner can make these types of alteration to his own lot. However, the owner must be careful that these alterations do not damage any waterproofing membranes or similar items that the body corporate is responsible for maintaining. If so, then the body corporate could seek to recover the costs of repairing the membrane from the owner (Act, 281). It would then be for the owner to determine if he should pay repair costs himself or seek to recover those costs from the tradesperson who installed the lattice screens. In addition, photographs show small metal brackets that extend onto common property to secure the lattice screens to the adjacent wall. Permission is required if alterations are to be made to common property. However, in all the circumstances, it would appear unreasonable for the body corporate to refuse consent to minor alterations of this nature (Act 94, Accommodation Module, 113).

Order

An adjudicator is required to make an order that is just and equitable to resolve a dispute (Act, 276). In all the circumstance, I consider it just and equitable to order that the owner may retain the improvements he has made to his lot provided that these improvements are maintained in good condition so far as they affect the external appearance of the lot.

For these reasons, I make the order above.