Brentford Villas [2007] QBCCMCmr 16 (11 January 2007)

Last Updated: 15 January 2007

REFERENCE: 0789-2006

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	22161
Name of Scheme:	Brentford Villas
Address of Scheme:	99 - 103 Sunshine Boulevard MERMAID WATERS QLD 4218

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

Lois Martin, an owner of lot 3

I hereby order that the application for an order seeking permission to remove a concrete slab located at the front of lot 3 and parallel to Sunshine Boulevard, and replace it with grass to match existing properties on either side of lot 3 is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0789-2006

"Brentford Villas" CTS 22161

Scheme

"Brentford Villas" was registered as a group title (now known as standard format) plan of subdivision comprising 13 lots and common property on 20 February 1979. It is regulated by the Act’s Standard Module.

Application

This application is brought by an owner of lot 3, Lois Martin (the applicant) against the body corporate, seeking permission to remove a concrete slab in front of her lot and replace it with grass to match existing properties either side of lot 3.

In her grounds, the applicant states that the concrete slab in question is located partly on common property and partly on council land. She states that she has approached the body corporate on three occasions to have the concrete slab removed. The first time she states no explanation was given, the second time she states permission was refused as the area was partly on council land and the third time she states she was told to wait for the next annual general meeting of the body corporate. A copy of the minutes of the AGM held on 19 January 2006 were included with the application and reveal that the body corporate has refused the applicant’s request. The minutes state that the area is partly on common property and partly on council land and it is not possible to have it removed.

The applicant further states that she has permission from the council to remove the concrete slab and has included copies of relevant correspondence to and from the Gold Coast City Council (GCCC) with her application.

Submissions

Submissions in response to the application were sought from all owners (excluding the applicant) and the committee. Submissions were received from ten individual owners and the chairperson. Of the ten individual submissions received, three stated briefly that they had no objection to the concrete slab being removed and being replaced with grass. Seven individual submissions and the submission of the chairperson opposed the making of the order sought, citing reasons to the following effect:

	The area in question is needed for vehicle parking.
	"Brentwood Villas" is located on Sunshine Boulevard, a very busy road with no street parking and opposite a major shopping centre.
	There are only four parking spaces provided for the 13 lots.
	The area in question is used "very often" by visitors to units 1 – 5, as well as tradespersons’ vehicles and is available for use by emergency vehicles.
	A letter dated 22 September 2006 from the owner of lot 11 (who made a submission supporting the applicant) was included, complaining of "visitors, tradesmen, etc parking in inappropriate areas and blocking access to driveways and garages" and asking that all owners and occupiers be reminded to use the "parking bays parallel at the front of the fences" to evidence the parking problems already present at the scheme.
	A number of owners also expressed concern over who would be responsible for maintaining the grass if the concrete slab was removed.

The applicant exercised her right to inspect the submissions and made a reply. She states in effect, as follows:

 The applicant has never been made aware of any car parking problems at the scheme.
 She mistakenly took the permission from the GCCC as authority for her to proceed with the work and the concrete had already been cut into ten squares before work was stopped pending resolution of the matter.
 The applicant denies Mr Ellis’ claim that she is being vexatious and further denies that the letter of complaint in relation to car parking written by the owner of lot 11 can detract from her submission in support of the application.
 Four unit owners only can be described as "elderly"; the others are "baby boomers".

Jurisdiction

This is a dispute between an owner and the body corporate and comes within the dispute resolution provisions of the Act.^[1]

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)).

Decision

At the outset, I think it is important to clarify the nature of the land on which the concrete slab is located. My perusal of group title plan 325 and photographs of the area suggests that, contrary to the parties’ belief that the area is partly on common property and partly on council land, the area is in fact entirely within the common property for the scheme. To confirm this, I telephoned Mr David Walker of the GCCC and was informed that the area in question is not part of a council "Road Reserve" and is entirely within the common property for the scheme. I appreciate that this information is contrary to that written to the applicant on 6 July 2006 from GCCC, however, Mr Walker advised me that the council had not been provided with all relevant information at the time the letter was written. He further advised me that, although the applicant had been advised that the council had no objection to her removing the concrete slab, she was advised verbally that she would need body corporate permission before she could proceed.

I regard the removal of the concrete slab as an "improvement" within the meaning of that term as defined in Schedule 6 of the Act, to common property for the benefit of a lot. As such, section 114 of the Standard Module applies. It provides as follows:

114 Improvements to common property by lot owner--Act,s 159
(1) The body corporate may, if asked by the owner of a lot,
authorise the owner to make an improvement to the common
property for the benefit of the owner’s lot.
(2) The improvement must be authorised by special resolution of
the body corporate unless--
(a) the improvement is a minor improvement; and
(b) the improvement does not detract from the appearance
of any lot included in, or common property for, the
scheme; and
(c) the body corporate is satisfied that use and enjoyment of
the authorised improvement is not likely to promote a
breach of the owner’s duties as an occupier.
(3) An authorisation may be given under this section on
conditions the body corporate considers appropriate.
(4) The owner of a lot who is given an authority under this
section42--
(a) must comply with conditions of the authority; and
(b) must maintain the improvement made under the
authority in good condition, unless excused by the body
corporate.

While the applicant has not provided any evidence of ever having submitted a formal motion to a general meeting of the body corporate for owners to vote on the issue, I am satisfied, based on the minutes of the AGM held on 19 January 2006 and submissions made in response to this application, that the majority of owners are opposed to the removal of the slab because it is needed and used as a parking space for visitors (including tradespersons) to the scheme and should be available for use by emergency vehicles should the need ever arise.

Further, the issue of visitors’ car parking spaces was considered by an Adjudicator in Order 0693-1999, wherein the Adjudicator ruled as follows:

"While it may be true that the visitor car spaces may be vacant much, or most, of the time, these are designated visitor car spaces required by the local government to be used for visitors’ parking. These spaces are a universal local government requirement for the registration of a community titles scheme, and remain a continuing requirement of the scheme. Even if the body corporate wanted to use these spaces for resident parking, or some other purpose, it is not able to do so.

In these circumstances, I decline to order in the terms sought by the applicant and have accordingly dismissed this application.

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^[1] See sections 226 & 227.