Helensvale Villas [2007] QBCCMCmr 284 (16 May 2007)

Last Updated: 27 June 2007

REFERENCE: 1007-2006

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	7889
Name of Scheme:	Helensvale Villas
Address of Scheme:	11-15 Lindfield Road HELENSVALE QLD 4212

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

the Body Corporate for Helensvale Villas CTS 7889

I hereby order that the owner of lot 7, Joseph Arthur Northcott, shall within 1 month of this order, and at his own expense, reinstate the common property adjacent to lot 7 as nearly as is practicable to the condition in which it was prior to the works carried out by the said Joseph Arthur Northcott in November 2006. I further order that the owner of lot 7, Joseph Arthur Northcott, shall within 1 month of this order, and at his own expense, remove the air conditioner installed at the front of lot 7.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 1007-2006

"Helensvale Villas" CTS 7889

ORDER SOUGHT

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

1.	That the owner of lot 7 reinstate the areas of common property that he has damaged with a mechanical excavator to its original condition.
2.	That the owner of lot 7 applies to the committee for approval for work he plans to carry out in the exclusive use area.
3.	That the owner of lot 7 removes the air conditioner installed on the front of the unit without body corporate approval.

JURISDICTION

The application evidences a dispute between the owner of a lot included in a community titles scheme and the body corporate for the scheme (Act s227(1)(b)).

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 (Act s276(2)). An adjudicator's order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate (Act s284(1)).

SCHEME DETAILS

Helensvale Villas is a community titles scheme comprising 32 lots and common property. The scheme was established upon registration of the building units plan (now described as a building format plan) on 20 May 1986. The scheme is regulated by the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module).

BACKGROUND

The applicant stated that in late November 2006 the owner of lot 7 had removed the fence on his exclusive use area, cleared that area and adjacent common property back to bare dirt, and had also destroyed a concrete-edged garden area on common property. Subsequently, the owner of lot 7 had installed two air conditioners on the outside of his lot without having first obtained body corporate approval to do so, as required by the scheme’s by-laws.

The applicant further stated that contravention notices had been issued in respect of all of these matters.

The owner of lot 7 (the respondent) was invited to lodge a submission in response to the application. In that submission, dated 4 February 2007, he stated:

• He had made application to the body corporate for approval for the works intended to be carried out by him, but had not received any response.
• There were two other lots in the scheme which have air conditioners installed at the front
• He looked forward to receiving a response from the body corporate so that he could either proceed with the proposed works or repair the garden to its original condition.

The body corporate manager subsequently provided a copy of a letter dated 9 March 2007 written to the respondent, in which the following information was conveyed:

• The body corporate committee had approved the respondent’s request to widen his driveway by a maximum of one metre, at the respondent’s expense
• The body corporate committee had not approved the respondent’s request to build a retaining wall; another car park and a pergola at the front of the lot, as these were matters which required approval of the body corporate in general meeting, by special resolution.
• The body corporate committee had not approved the respondent’s request to install a swimming pool in the exclusive use area and to construct a colourbond fence around the exclusive use area.
• The body corporate committee would not consider the respondent’s request to construct a pergola and a shed in the exclusive use area until he provided plans and further details to the committee. It was noted that the pergola might also require a Council building permit.
• The body corporate committee had not approved the installation of a screen around the unapproved air conditioner at the front of the lot, and required the air conditioner to be removed.
• The body corporate committee required the respondent to rectify the drainage from the air conditioner installed at the side of his lot because it was being discharged onto the ground, creating moisture against the wall, which was considered to increase the risk of termite activity.

In the same letter, the body corporate manager also provided a copy of the exclusive use plan to the respondent, with the boundaries of his exclusive use areas highlighted for his reference.

DETERMINATION

Reinstatement of common property

The plan of exclusive use allocations included in the community management statement delineates the areas of common property to which the respondent is entitled. It is apparent from a perusal of that plan and of the photographs provided by the applicant that the respondent cleared a significant portion of the common property of which he does not have exclusive use. It would also appear from the material that the respondent wished to make a number of improvements to the common property adjoining his lot.

Section 114 of the Standard Module provides:

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

section 42--

(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.

42 Under the Acts Interpretation Act 1954, section 35A (References to person with

interest in land includes personal representative etc.), a reference to a person having

an interest in land includes a reference to the person’s personal representatives,

successors and assigns.

The respondent has been advised by the body corporate committee of the specific matters for which he would require authorisation under section 114. It does not appear, from the material before me, that he has done so as yet.

Given that the respondent cleared the area of common property adjacent to his lot without authorisation, then it must be reinstated by him, as nearly as is practicable, to the condition in which it was prior to the clearing. I intend to give the respondent one month within which to reinstate the area.

If the body corporate were to give him authorisation for some or all of his proposals under section 114 within that time then the reinstatement would take place subject to whatever had been authorised.

Removal of air conditioner at front of lot

By-law 13 deals with structural alterations/improvements, and states that an owner must have written approval of the body corporate before carrying out such works.

I have considered the respondent’s submission that there are two other air conditioners installed at the front of lots. On 16 May 2007 I arranged for further enquiries in relation to those air conditioners to be made. On 16 May 2007 the body corporate manager advised Ms Ruby Salazar, a member of the Commissioner’s staff, that those air conditioners had been approved by the body corporate committee; had not been installed on common property and could not be seen from outside. The body corporate manager further stated that the respondent’s air conditioner is located on common property.

In these circumstances, I am satisfied that the body corporate’s request that the air conditioner be removed is reasonable. The respondent must remove the air conditioner installed at the front of his property. I have ordered accordingly.

I note from the contravention notice that the body corporate advised that it could be installed at the rear of the lot.

Application to committee for approval of works

As noted above, the respondent applied to the body corporate committee for approval of the proposed works, and the body corporate committee has replied to that application. In the circumstances it is not necessary for me to further consider this issue. I do not propose to make the order sought by the body corporate as events have overtaken the request.