The Beachhouse Apartments [2007] QBCCMCmr 26 (17 January 2007)

Last Updated: 9 February 2007

REFERENCE: 0795-2006

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	33076
Name of Scheme:	The Beachhouse Apartments
Address of Scheme:	QUEENSLAND

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

Daniel & Janet Williams, the Owner(s) of lot 2

I hereby order that the application for an order that: If satisfied, a motion considered by a general meeting of the Body Corporate and requiring a resolution without dissent. "That the Body Corporate consents to the surrendering of the existing access easement and consents to the accepting of a new access easement, which will be carried out once the proposed 4 town houses are built on the vacant land fronting Porters promenade and in accordance with Planit Plan No. 01-006DD3-0.01. Ecco Developments Pty Ltd agrees to meet the cost of survey, realignment and replacing of the driveway and lights." was not passed because of opposition that in the circumstances is unreasonable - an order giving effect to the motion as proposed. is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0795-2006

"The Beachhouse Apartments" CTS 33076

Application

Daniel and Janet Williams, the owners of Lot 2 (the applicants) have sought the following of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) (quote):

If satisfied, a motion considered by a general meeting of the Body Corporate and requiring a resolution without dissent.

"That the Body Corporate consents to the surrendering of the existing access easement and consents to the accepting of a new access easement, which will be carried out once the proposed 4 town houses are built on the vacant land fronting Porters promenade and in accordance with Planit Plan No. 01-006DD3-0.01. Ecco Developments Pty Ltd agrees to meet the cost of survey, realignment and replacing of the driveway and lights."

was not passed because of opposition that in the circumstances is unreasonable - an order giving effect to the motion as proposed.

Jurisdiction

The Beachhouse Apartments is a community titles scheme comprising 8 lots and common property, which is regulated by 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)).

Grounds

The applicants’ grounds are quoted as follows:

1. The development, The Beach House Apartments, was developed by myself for interests associated with me and by Walter Sommer for interests associated with him.
2. Following the development and registration of the Scheme, I retained Unit No 1 and Walter Sommer retained Unit No 2. The remaining 8 units in the development were then sold to third parties.
3. The Scheme was built on a lot which fronted the beach. Walter Sommer and I retained ownership of the lot immediately behind the Scheme lot and the other lot has a frontage to Porters Promenade.
4. The Porters Promenade lot, Lot 3 on RP722029 gave an access easement to the Scheme lot for vehicle access across Lot 3 to Porters Promenade. The Scheme lot gave a pedestrian access from Lot 3 to the beach for the benefit of Lot 3.
5. The vehicle access to the Scheme lot from Porters Promenade is thoughtfully designed and winds through trees and other landscaped features on Lot 3 and makes for a most attractive entrance to the Scheme lot. The alignment of the internal road is shown on Plan SK01 attached.
6. Lot 3 originally received an approval for 2 town houses and for a café/restaurant with offices on top.
7. I felt that a café/restaurant and office complex would put considerable pressure on parking and amenities that would not be in the best interests of The Beach House Apartments.
8. I thought that changing the café/restaurant and offices to a further set of 2 town houses would be much less intensive and sought Council approval for that proposal.
9. Council consented, subject to the realignment of the driveway providing the access to The Beach House Apartments.
10. That condition gave me the opportunity to realign the access driveway, at my cost, which had the additional benefit of moving further away from the backpacker entrance close to where the current entrance exists. The proposed realignment of the internal road is shown on Plan 01-006 DD3-0.01A attached.
11. This would allow the creation of a more private amenity to The Beach Rouse Apartments since Lot 3 would be fully fenced as would the frontage to Porters Promenade.
12. Walter Sommer and I decided to end our commercial partnership and as part of the arrangements, I or interests associated with me, Ecco Developments Pty Ltd, is now the sole owner of Lot 3.
13. Over a year ago, I wrote to all of the owners in the Body Corporate with my proposal for the realignment of the access and none objected, so I proceeded with plans to make the application to Council for the less intensive development.
14. Having received Council’s approval, subject to the condition of realignment of the access way, I then put the proposal to a Body Corporate members’ meeting.
15. All of the owners, except for Walter Sommer, agreed to the motion. Part of the motion required that my company agree to meet the cost of survey, the realignment and the replacing of the driveway and lights.
16. Recently, Walter Sommer has written to me and to the other owners proposing a variation of the realignment and requesting that the proposed parking spaces and proposed pools be relocated.
17. I have responded to him that the proposed relocations would afford greater manoeuvrability for vehicles including boats on trailers, than his suggestion and that the pool had been located in the proposed location to minimise the leaf problem for both The Beach House Apartments’ pool and this proposed pool. The location of the two pools in closer proximity would also provide a better supervisory aspect as well as a containment of noise and, therefore, better amenity for both The Beach House Apartments’ lot and Lot 3.
18. I believe that Walter Sommer may be influenced by factors which have more to do with the previous business partnership with me rather than with the objective requirements of the motion and I believe that his sole objection to the motion is an unreasonable position to take in that it does not have regard for the amenity of The Beach House Apartments and the clear benefits to The Beach House Apartments of the revised development proposal of Lot 3 and the realignment of the access to enable that to occur.

Submissions

Two submissions were received, one of which was late and from a non-resident owner.

The dissenting voter, Walter Sommers Pty Ltd, has provided a detailed submission. They submit that their objection is not unreasonable because the net effect of the motion was to surrender easement rights which enhanced both the amenity and the value of each of the apartments in the scheme. They argue this is exactly why the Act requires a resolution without dissent.

They note that the easement in favour of the scheme includes provision for 4 car parks and also incorporates a water tap from the scheme for hosing down cars and boats. They describe this as a significant benefit to the scheme given the proximity to the beach and boat launching facilities.

They disagree with the applicants’ assertion that the café and office would have created interference with the scheme as there is ample street parking. They note there was not originally a pool planned for the lot burdened with the easement.

They suggest that the applicants’ motive for changing the plans is commercial, rather than directed at the benefit of the scheme.

They say the plan attached to the applicants’ application is not the same plan on which the resolution was passed. They say that the location of the car parks on the original plan was inferior (further from the scheme) and that there was also one less car park. They say that the movement of the car parks further west, detracts from the value of lot 1 in particular. They suggest a rotation of the proposed pool.

They state they have no objection to the driveway being moved, provided the existing car park area on the easement is not affected and the change does not otherwise diminish the value of lot 1.

They say that the relocation of the car parks will cause confusion to the residents of the new development on the front lot, who will be inclined to occupy those spaces.

They say that the motion does not provide any detail regarding the precise location of the new easement, nor the rights that are to attach to it. They say that the properties can both be fully fenced, regardless of the position of the easement.

They say that in this particular case compelling reasons do not exist to justify an adjudicator interfering with property rights.

Response to Submissions

The applicants state that nothing was raised in the respondents’ submission that was not openly addressed, discussed and resolved at the extraordinary general meeting.

They advise that the scheme currently has 20 covered car parks for 8 apartments. They advise that there are 4 car parks directly under the respondent’s lot. They advise the new proposal provides 4 car parks which is the same as under the old easement arrangement.

They state that the pool was introduced to the plan in response to resident concerns that owners of the new development may start using the scheme pool. They state the pools were positioned adjacent to each other for the purposes of noise, water and landscaping management.

Determination

Sections 226 and 227 of the Dispute Resolution provisions of the Act are relevant to my consideration of this matter.

Section 227(1) provides for the meaning of dispute:

A dispute is a dispute between--

(a) the owner or occupier of a lot included in a community titles scheme and the owner or occupier of another lot included in the scheme; or

(b) the body corporate for a community titles scheme and the owner or occupier of a lot included in the scheme; or

(c) the body corporate for a community titles scheme and a body corporate manager for the scheme; or

(d) the body corporate for a community titles scheme and a caretaking service contractor for the scheme; or

(e) the body corporate for a community titles scheme and a service contractor for the scheme, if the dispute arises out of a review carried out, or required to be carried out, under chapter 3, part 2, division 7; or

(f) the body corporate for a community titles scheme and a letting agent for the scheme; or

(g) the body corporate for a community titles scheme and a member of the committee for the body corporate; or

(h) the committee for the body corporate for a community titles scheme and a member of the committee; or

(i) the body corporate for a community titles scheme and a former body corporate manager for the scheme about the return, by the former body corporate manager to the body corporate, of body corporate property.

Section 226 provides definition for the terms occupier and owner:

In this chapter--

dispute see section 227.

occupier, of a lot, means a person in the person’s capacity as the occupier of the lot, and not, for example, in the person’s capacity as a service contractor or letting agent for the scheme.

owner, of a lot, means a person in the person’s capacity as the owner of the lot, and not, for example, in the person’s capacity as a service contractor or letting agent for the scheme.

It is noted that "owner" is specifically defined in the section as a person in the person’s capacity as the owner of the lot.

The applicants are the owners of one lot in the scheme but as well, these applicants also own the adjoining freehold property through a series of companies. It is in the capacity as owners in the scheme that they have made the application. However a significant benefit sought by the application accrues to the applicant as the director of the company that owns the adjoining lot.

The applicants have sought to argue that the following benefits accrue in their capacity as an owner within the scheme:

•	The presence of 2 townhouses, rather than a café and restaurant would be less "intensive";
•	The entrance to the easement would be further away from the backpacker accommodation entrance next door;
•	The creation of more private amenity as the adjoining lot could be fully fenced.

The respondent has argued that the café and office posed no risk to the "intensity" of the scheme and says that the position of the easement is irrelevant to the fencing of the properties. I personally find some difficulty recognising the benefit that accrues from moving the entrance by 13 or so meters away from the next door property.

In short, I believe feel that the applicants have stretched the concept of the benefit accruing to them as an "owner" to the limit. I recognise that the applicants have made some concessions, at their own company’s expense, in terms of the pool and perhaps the "finding" of an additional parking space. However, the core motivation behind the motion is quite apparent.

I arranged for this office to obtain a copy of the documents presented to the Body Corporate when this motion was voted upon, from the body corporate manager. It confirms the respondent’s assertion that the plan supplied with this application are different to those presented to the Body Corporate. I am discomforted by this issue, as the application included a copy of a plan revised to accommodate 4 car parks, when the plan provided to the Body Corporate contained only 3 car parks.

I note that the motion voted upon by the Body Corporate includes no provision to address the supply of water to either or both of the new parking spaces and it does not address the issue of reinstating any landscaping.

In my view, without at least some form of compensation, the reduced number of car spaces and the omission of water supply provisions were legitimate reasons (on their own) to withhold consent to the motion voted upon by the Body Corporate on 16 August 2006.

The application is dismissed.