No. 19 Amaroo Drive [2007] QBCCMCmr 193 (3 April 2007)

Last Updated: 16 April 2007

REFERENCE: 0988-2006

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	11209
Name of Scheme:	No. 19 Amaroo Drive
Address of Scheme:	19 Amaroo Drive BUDERIM QLD 4556

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

Brenda West-Newman, the Owner of lot 6

I hereby order that within 30 days of the date of this order the applicant shall provide the body corporate committee with all details of building work for which the applicant requires the approval of the body corporate. I further order that within 30 days of receiving this material from the applicant, the committee shall give its consent to the submission of a development application with the Maroochy Shire Council for permission to retain the attic, stairway, false ceiling to the laundry and mezzanine floor above the laundry in lot 6.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0988-2006

"No. 19 Amaroo Drive" CTS 11209

Application

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

To overrule a recent body corporate decision preventing me from submitting a development application to Maroochy Shire Council for permission to retain an attic, stairway to the attic and false ceiling to the laundry in unit 3 (lot 6).


Background

No. 19 Amaroo Drive Community Title scheme consists of 4 lots on a Building Format Plan (previously known as a Building Unit plan) and is regulated by the Body Corporate and Community Management (Standard Module) Regulation 1997.

The applicant is the owner of a unit in which an attic and stairway have been installed and seeks the order on the following grounds:

• The attic area was in existence for some 24 years prior to her purchase of the unit and believes that the original building plans submitted with the Maroochy Shire Council in 1979 show that the attic was included in the original plan with lined walls and ceiling and load bearing joists meeting regulatory flooring requirements;
• Previous owners of 22 years duration have assured her that the attic was built at the time of original construction;
• After residing in her unit for 2 years, in July 2006 the applicant applied to the body corporate for permission to build a stairway to the attic in lieu of a step ladder previously used to gain access;
• The body corporate manager advised her that as no building structure would be affected then no formal permission would be required;
• In 2005 she sought and received permission to install skylights in the lounge and attic areas;
• The laundry area originally had a high cathedral ceiling and the applicant decided to utilise this space by having a storage area constructed , basically in the form of a mezzanine floor;
• The committee have requested the applicant to dismantle these improvements as they believe the approval of the local Shire, Maroochy shire Council (MSC) was not obtained;
• The applicant is willing to obtain MSC approval but firstly requires approval from the body corporate;
• She believes that her activities within her own home are no one else’s concern provided that she does not infringe on the rights of other owners;
• She believes that the order to demolish the area is unreasonable;
• The committee has previously made various directions with which she has complied. These directions included removal of a "stair lift" on her internal stairway as it was alleged to be fire risk, notwithstanding that in 2004 the body corporate manager advised her that body corporate approval had been given;
• She was also told to remove of outdoor furniture from the pool area after it had been in the area for an extended period and used by other residents and their guests.

Submissions

Pursuant to section 243 of the Act, submissions were sought from the body corporate and all lot owners.
The owner of lot 5 believes the body corporate decision should stand for the following reasons:

• There are no engineering or fire safety certificates in respect of the work;
• Concerns as to whether this would affect insurance coverage;
• Ramifications from increased floor space ratio;
• Extra stress placed on roof trusses and beams;
• Plans held by MSC do not show the subject additions i.e. lined attic area or strengthened ceiling joists act as floor joists; or supports for the new floor over the laundry area;
• By-law 23 states "No structural alteration shall be made to any unit (including alterations to gas, water or electrical installations) inclusive of air conditioning without the prior permission in writing of the body corporate"
• It is not true that only a cupboard was removed in the laundry. It is claimed that in fact a wall would have been removed;
• Other owners did not know where the skylight was to be installed when they gave permission;
• They are concerned that assessment of the work under current council by-laws could give rise to a requirement for a "visitor car park";

The concerns raised by the owner of lot 5 were similar to the concerns raised by the owner of lot 5.

The owners of lot 7 advised that the applicant installed her lift without providing full details i.e. that it was installed in a fire exit.

In reply the applicant made the following submissions:

• The stair lift, which was installed in 2004, is 30 cm wide in its normal stored position while the stairs are 110 centimetres wide;
• The plans from MSC show that the attic area was "enclosed" at the time of building by lining of framework and installation of a floor over strengthened joists;
• There is a supporting beam between the laundry and kitchen and this was used with joists, to install a false ceiling in the laundry with a storage area above;
• She made written applications to the body corporate in respect of the motorised stair-lift and the skylights;
• No walls were removed and as there were no "structural" alterations, no body corporate permission was required;
• The electrical work was undertaken by a licensed contractor;
• Under MSC by-laws, the attic area can only be used for storage purposes. The applicant agrees with this and does not use the attic/ mezzanine floor as living areas;
• Parking is not an issue as the applicant has a double garage which is more than adequate for her needs.

Jurisdiction

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)).

Determination

This case involves a number of improvements to the applicant’s lot which, allegedly, were not approved by either the body corporate or the MSC.

An attic area has been created for storage purposes inside the roof cavity i.e. in the area between the ceiling joists and roof rafters. In buildings of this vintage the cavity between the ceiling and roofing material is often relatively unobstructed and therefore useful for storage purposes. The relevant area has been lined with plasterboard and the ceiling joists strengthened to accommodate the additional weight of flooring material.

Secondly, the applicant had a staircase constructed to access the attic area in lieu of a step ladder previously used to gain access.

Thirdly, the laundry area originally had a high cathedral ceiling and the applicant decided to utilise this area by building a mezzanine floor which is used for storage purposes.

The applicant does not dispute that she did not obtain body corporate approval for the stairway and mezzanine floor construction and is aware of body corporate by-law 23 which provides as follows:
"No structural alteration shall be made to any unit (including alterations to gas, water or electrical installations) inclusive of air conditioning without the prior permission in writing of the body corporate" . Whether an improvement can be regarded as "structural" is a matter of degree but I do not think it can be disputed that alterations such as installation of a stairway or installation of a mezzanine floor are structural alterations.

The Body Corporate and Community Management Act establishes rights and imposes obligations on participants in community titles schemes to promote the provision of flexible communally based arrangements. One of the specified objects of the Act is "to balance the rights of individuals with the responsibility for self management as an inherent aspect of community titles schemes".
While there are many instances where the body corporate needs to act decisively to protect the interests of the body corporate as a whole, I believe it is the intention of the legislation that individual unit owners should be able to enjoy the use of their own home without unnecessary intrusion by the body corporate. In this regard section 94 of the Act requires the body corporate to act reasonably and provides as follows:

Body Corporate’s general Functions
(1) The body corporate for a community titles scheme must--

(a) administer the common property and body corporate assets for the benefit of the owners of the lots included in the scheme; and

(b) enforce the community management statement (including any by-laws for the scheme); and

(c) carry out the other functions given to the body corporate under this Act and the community management statement.
(2) The body corporate must act reasonably in anything it does under subsection (1).

While, there is disagreement between the parties as to when the improvements to the attic area were undertaken, I am unable to see any reasonable basis upon which objection can be taken to the work, provided that the work is of a reasonable standard and the structural integrity of the building is not jeopardised. Of course, local authority approval would need to be obtained for such work where such approval is required by law.

Similarly, as regards the construction of the staircase, false ceiling above the laundry and mezzanine floor, I am unable to see any reasonable basis upon which objection can be taken to such improvements provided that the work is of a reasonable standard, the structural integrity of the building is not jeopardised and the work is compliant with any regulatory requirements.

Although the applicant was remiss in not firstly making inquiries regarding necessary approvals and not seeking body corporate approval, I believe that the arguments raised in opposition to this application are somewhat vague. For example there is an inference that approval could give rise to a MSC requirement that the scheme provide additional visitor parking spaces.
Since the building work has already been completed, I propose to order that the applicant shall,
within 30 days of the date of this order provide the committee with all details of the subject work including specifications and measurements. Within 30 days of receiving this material from the applicant, the committee shall give its consent to the submission of a development application with the Maroochy Shire Council for permission to retain the attic, stairway and false ceiling to the laundry in lot 6.