Rampage [2007] QBCCMCmr 293 (18 May 2007)

Number of Scheme:	30273
Name of Scheme:	Rampage
Address of Scheme:	Raggamuffin Drive Coomera Waters Qld 4209

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

I hereby order that, within forty five (45) days of the date of this Order, the Owners of Lot 159 must install a finish on their driveway that is compliant with the Architectural and Landscape Code for Rampage community titles scheme, or is otherwise approved by the Body Corporate or its Architectural Review Committee.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0143-2007

"Rampage" CTS 30273

The Rampage community titles scheme (Rampage) consists of 81 lots and common property. The community management statement (CMS) for Rampage indicates that the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module) applies to the scheme. Department of Natural Resources and Water records show the scheme is registered as Survey Plan 144798, 144801 and 144803.

APPLICATION

Pursuant to the Body Corporate and Community Management Act 1997 (Act), this application was made by the Body Corporate for Rampage on 19 February 2007, pursuant to a committee resolution on 29 November 2006. The applicant sought orders against Amado and Beneficta Magno, co-owners of Lot 159 (respondents) in the following terms:

A drive way of the approved finish be installed completed as per architectural code

PROCEDURAL MATTERS

In February 2007 the Commissioner’s Office attempted to organise a conciliation session to assist in the resolution of this dispute. Unfortunately conciliation did not proceed.

Under section 243 of the Act, a copy of the application was provided to the respondents and all owners with an invitation to respond to the matters raised in the application. No submissions were received. This Office attempted to contact the respondents on 30 March, 19 and 20 April and 4 May 2007, and spoke to them on 20 March and 4 May, however the respondents have declined to make a submission.

A dispute resolution recommendation was made referring the dispute to departmental adjudication.

MATTERS IN DISPUTE

The application relates to the respondents’ compliance with the architectural code for the scheme in regard to the finish of their driveway. The Architectural and Landscape Code (the Code) for this scheme requires as follows:

(a) Generally only one driveway is permitted for each lot with the exception of duplex dwelling lots.

(b) Driveway width shall be maximum 4.5 metres at front boundary and junction with the street kerb.

(c) At least 0.75 metres of screen planting or turf along the property frontage between driveways and side boundaries is encouraged in order to avoid driveways being immediately adjacent to one another.

(d) Driveways must be paved for their full width ("car tracks" are not permitted).

Item 4.2(b) states that driveways must be completed in accordance with the Code prior to occupation of the dwelling.
The respondents have a plain concrete driveway which the Body Corporate says is not finished in compliance with the Code. The Body Corporate wrote to the respondents on 28 March, 31 July and 10 December 2006 saying the Architectural Review Committee (ARC)^[1] previously wrote on the issue and asking the respondents to comply with the ARC requests. The Body Corporate is unable to provide the ARC correspondence and the details of the ARC requests are not specified, but it is assumed that they required installation of a finish complying with the Code. On 25 January 2007 a Notice of Continuing Contravention of a Body Corporate By-law^[2] was sent indicating that the respondents had breached item 8.6(e) and (f) of the Code by having a plain concrete driveway.

The respondents have not made a submission. On 30 March 2007 Benedicta Magno advised a member of this Office that she wanted to address the issue with the Body Corporate directly, and intended to ask for a two month extension to complete the driveway. The file note of the call indicates she said the driveway is ‘fine’ and ‘just needs topping/finishing’. She also queried why the Body Corporate had not contacted her directly as she had no problem resolving the issue. The file note of a second call on 4 May 2007 indicates that Mrs Magno acknowledged that there was a little work to do on the driveway but seemed unclear as to why she needed to do anything further. The Body Corporate confirms it has had no correspondence from the respondents on the issue.

JURISDICTION

I am satisfied that this is a matter which falls within the legislative dispute resolution provisions.^[3]

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

(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

Applicable law

A CMS must state certain matters, including by-laws, and may include anything that the applicable regulation module says it may include.^[4] Section 6(b) of the Standard Module provides that a CMS may include "provisions adopting and regulating the operation of an architectural and landscape code, including the establishment and operation of an architectural review committee".

By-law 44 in Schedule B of the CMS for Rampage provides that "The owner and occupier of a lot must observe and comply with the Code in relation to the lot." The Code is defined in the by-laws as "the Architectural and Landscaping Code adopted from time to time pursuant to Schedule D of this Community Management Statement."

Schedule D of the Rampage CMS further provides that the CMS and each party bound by the CMS adopts the Architectural and Landscape Code, promulgated by the Principal Body Corporate, as if each provision of the Code was set out in the CMS in full. The Schedule also indicates that the CMS and each party bound by the CMS adopt the rules in the Code for the establishments and operation of the Architectural Review Committee.

Schedule D refers to section 53 of the Act (since renumbered as section 59) which has effect that a CMS is binding on each member of the body corporate and each person who is a registered proprietor of a lot in the scheme, as if each person bound by the CMS had entered into mutual covenants to observe its provisions and had each signed the CMS.

Alleged breach of the Code

In the absence of any arguments or evidence from the respondents to the contrary, I am satisfied that the respondents are bound by the provisions of the Code in its own right (as part of the CMS) and also because the by-laws for the scheme bind owners to the Code.

The Body Corporate has stated (although it has not provided any evidence such as photographs) that the respondents have breached the Code by not installing an approved finish on their driveway. The respondents have not disputed this allegation, and appear to have acknowledged it during telephone calls with this Office. In the absence of any evidence to the contrary I must conclude that the current driveway is plain concrete and as such that it does not comply items 8.6(e) and (f) of the Code. Accordingly the respondents have breached By-law 44 and the Code.

The respondents may believe that the Code requirements regarding driveway finishes are unnecessary and that their concrete driveway is perfectly functional as it is. This may well be the case if the property was freehold. However owners in a body corporate must accept that on purchase they are signing up to a range of obligations that they simply cannot ignore. I have no basis before me to determine that the Code requirements are invalid or unreasonable.

It appears that English is not the respondents’ first language and it may be they have not fully understood the correspondence from the ARC, Body Corporate or this Office. If this is the case it is unfortunate if the Body Corporate did not simply call the respondents to explain the matter. Regardless, the respondents have been put on notice of the matter at least by the telephone calls from this Office but it seems they have not made any further steps to progress the issue.

Conclusion

By not making a submission, the respondents have not taken the opportunity to present any evidence that they have complied with the Code, that compliance was unreasonable, or that any non-compliance was for good reason. In the circumstances, therefore, I have no alternative but to conclude that the respondents have not complied with the Code and have no reasonable excuse for failing to do so. Accordingly I will make an order requiring appropriate compliance.

It has been well over a year since the Body Corporate first wrote to the respondents on this matter, in addition to the previous correspondence from the ARC. As such the respondents have had a significant amount of time to rectify the matter or to contact the Body Corporate if they were uncertain as to their responsibilities. Notwithstanding that the driveway has already been unfinished for a long period of time, I will allow what I consider to be a reasonable time to enable the respondents to source an appropriate contractor (if necessary) to install the necessary finish.

Enforcement of an order

Given that the respondents have apparently ignored previous correspondence from the ARC and Body Corporate, the potential exists that they may ignore this order. I caution them against this. If they have any legal or other advisers I would encourage to them assist the respondents in understanding their obligations and the impact of this order.

If the respondents do not comply with the order, then it can be enforced against them in the Magistrates Court.^[5] Enforcement proceedings in the Magistrates Court do not provide the opportunity to review the order or re-hear the merits of the original application. While the breach of a by-law contravention notice can result in a penalty of up to 20 penalty points (currently $1,500), under section 288 of the Act the breach of an order is an offence potentially attracting a fine of up to 400 penalty points (currently $30,000). I draw the parties attention to a fact sheet published by the Commissioner’s Office entitled ‘Enforcement of adjudicators' orders and penalties’ for more information on this issue^[6].

^[1] The ARC is established under item 3.1 of the Code
^[2] BCCM Form 10
^[3] See sections 227, 228, 276 and Schedule 5 of the Act
^[4] See section 66 of the Act and particularly subsection 2(b)
^[5] Sections 286 and 287 or the Act
^[6] Available at www.bccm.qld.gov.au

(f)	Plain concrete or gravel driveways are not permitted.
(g)	Other driveway finishes may be considered on their merits by the ARC.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Rampage [2007] QBCCMCmr 293 (18 May 2007)