Calais [2007] QBCCMCmr 345 (6 June 2007)

Last Updated: 5 July 2007

REFERENCE: 0147-2007

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	4596
Name of Scheme:	Calais
Address of Scheme:	17 - 23 Peak Avenue MAIN BEACH QLD 4217

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Jody Green, the owner of Lot 4

I hereby order that the application for an order by Jody Green, the owner of Lot 4 against the body corporate for Calais community titles scheme 4596 seeking an outcome to allow the construction of a vergola on part of the outdoor deck of Lot 4, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0147-2007

"Calais" CTS 4596

Application
This application is by Jody Green, the owner of Lot 4 (applicant) against the body corporate seeking an outcome to allow the construction of a vergola on part of the outdoor deck of Lot 4.

The applicant’s main submissions were to the effect that:

• She would like to use and enjoy the large outdoor area of the Lot by covering a section of it.
• Presently, the area is unusable due to: exposure to the sun, wind and rain; lack of privacy from the above units and the adjoining buildings; the constant dripping of water from the overflow pipes of the above units; and it is a catchment for items such as paper, plastic containers and cigarette butts from the above balconies.
• Outdoor umbrellas are unstable and unsafe due to the wind factor.
• A vergola which can be opened and closed would alleviate problems associated with the use of the area.
• The owner of the unit on the ground floor has received permission to erect permanent awnings.
• An engineering firm has given guidelines as to the correct construction method without compromising the waterproofing of the area.
• An architect has provided an opinion as to the effect the vergola would have on the sight lines from the unit above. The balcony above where the vergola would be placed is a small balcony off a bedroom. The balconies off the main living areas are unaffected.

The applicant provided:

• A photograph of the building showing the uncovered balcony.
• A plan showing that the vergola is proposed to be installed on the northern section of the balcony on the north-western side of the Lot.
• A copy of the minutes of the Annual General Meeting dated 31 August 2006 (2006 AGM) where 12 lots were represented and where a motion (numbered 12) proposing "The construction of a vergola as part of the deck area to be coloured to match the building" and requiring an ordinary resolution was lost on a tied vote of 6 votes for and 6 votes against. It was resolved by 9 votes to 3 to allow the extension of a window on Lot 4 to create a doorway from the dining room (Motion 13).
• A copy of a letter dated 14 February 2007 from Murray Cox of Murray Cox International (Master Planners, Architects and Interior Designers) attaching drawings which it is stated complies with the engineer’s fixing details and which provides an indication of the view lines from the balcony of the above unit. The architect states that the view lines would be minimally affected when the vergola blades are closed. Mr Cox suggests that the vergola can be powder coated to match either the balustrades or the aluminium joinery and is of the opinion that the vergola "will be consistent with the design of Calais and will not detract from the architecture of the building".
• A copy of a letter dated 19 April 2007 from Alex Milanovic of Alex Milanovic & Associates (Consulting Civil and Structural Engineers) detailing the methodology for the installation of the vergola which would involve anchoring the vergola "into the slab edge of level 3" and "into the reinforced concrete parapet and balustrade hob".

Jurisdiction
"Calais" is a community titles scheme under the Body Corporate and Community Management Act 1997 (Act) and the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module).

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 claimed or anticipated contravention of the Act or the community management statement; or the exercise of rights or powers, or the performance of duties, under the Act or the community management statement^[1].

Submissions
In accordance with the Act, submissions were called and a copy of the application was provided to the body corporate manager for distribution to the owner of each lot (excluding the applicant) and the committee. Submissions were received from the committee and a number of lot owners. The applicant made a written reply to submissions under section 244 of the Act.

Clare Cauchi of Gold Coast Body Corporate Specialists made the following submissions on behalf of the committee opposing the construction of the vergola for the following reasons: it will generate noise by rain falling on the hollow aluminium blades which will cause distress to other occupiers; the body corporate has waterproofed the concrete roof slabs in recent years and there is a risk that the installation of the vergola will damage the membrane of the slab that forms a roof over the living area of the unit below Lot 4; and the occupier of the unit above Lot 4 is concerned that their view of the pool area will be affected, and no occupier should have their views restricted for the benefit of another occupier.

JoAnne Hook from Lot 1 stated that she obtained body corporate approval to construct a "pergola" type structure over part of a courtyard area and to install awnings over windows. She does not object to the applicant’s proposal provided it is sympathetic to the architecture of the building and does not disadvantage other owners.

Robin and Suzzanne Stevenson of Lot 2 supported the proposed vergola if it was attached to the hob/balustrade as they hoped it would not cause any damage to the membrane. They are concerned that the vergola may be placed inside the balustrade on concrete blocks.

Kerry Dennis of Lot 3 opposes the application stating that only 2 owners supported the construction of the vergola at an Extraordinary General Meeting held on 6 November 2006 (EGM). He states that owners are concerned that the vergola is not in keeping aesthetically; there is a noise concern; the vergola will require anchoring which is of concern given previous leaks in the slab; many units have had water penetration problems and drilling holes in the slab "has the potential for disaster"; and there are more appropriate ways to install sun protection.

Robert and Mireille Costa of Lot 5 submit that there will be a loss of views of the garden areas from their Lot if the vergola is built and have provided photographs to indicate this loss. They state "what right does another resident have to take away any part of a view enjoyed by another". They say that the vergola will be directly outside another resident’s main bedroom and will affect sleep on a rainy night for a number of residents. The Costa’s mention the noise the rain makes on the top rail of the aluminium balustrade. The Costa’s also express concern about proposed drilling into the concrete which may expose the reinforcing and affect the waterproofing integrity.

Robyn Byrne of Lot 6 submits that this matter has already been opposed by owners at two general meetings. She states that umbrellas have been used successfully and will afford as much privacy as a vergola. Mrs Byrne says that water dripping onto the metal blades of the vergola will cause noise as will rain. She also says that objects will still fall onto the balcony when the blades are open. Mrs Byrne is also concerned that as Lot 6 is only two floors above Lot 4, the vergola will cause noise, reflected heat and restricted outlook.

Arnold and Margaret Hansen of Lot 7 oppose the application stating that the applicant’s Lot has no greater exposure to the outdoor elements and has no less privacy than other lots; the furniture on the balcony could be positioned away from the overflows; the vergola will not prevent items falling from the upper levels; and the umbrellas used by the applicant are satisfactory. The Hansen’s reiterate the submissions made by the Costa’s about noise and the possibility of compromising the integrity of the waterproofing.

Richard Wallace of Lot 8 opposes the application stating that he has never witnessed any period of water constantly dripping from the overflows except during rain; windblown debris could settle on the roof of the vergola; and the matter has been considered and rejected 3 times by the body corporate.

Margaret and Garry Johnson of Lot 10 believe that umbrellas are suffice and that a vergola would detract from the design of the building and would be noisy from rain and wind.

Margaret Williams of Lot 12 supports the applicant provided the vergola is painted either black or in the colour matching the exterior of the building.

In the written reply to submissions from:

• Robin and Suzzanne Stevenson, the applicant stated that the use of concrete blocks is not contemplated and it is proposed that the vergola is attached to the hob/balustrade.
• Kerry Dennis, the applicant stated that the architect’s report covers aesthetic issues, rain noise and wind vibration; and "Compromising the slab is not an issue if the fasteners are as specified by Vergola".
• Robert and Mireille Costa, the applicant relies on the site lines drawn by the architect stating that the loss of views are not major and that a small loss of view will only occur when the blades are closed and that it is planned this will only be during the hottest part of a summer day. The applicant states that concerns about moisture causing rust is not a valid issue as all fasteners will be galvanised or stainless steel, the vergola is engineered to the highest standards, and will be subject to approval from the Gold Coast City Council.
• Robyn Byrne, the applicant states that umbrellas have been unsuccessfully tried with one being blown down to the pool area and a subsequent "very expensive ‘commercial grade’ umbrella" being unstable in very high winds. She says that the engineer’s report indicates that the vergola can be erected without affecting the existing waterproofing membrane.
• Richard Wallace, the applicant states that she should be able to utilise the balcony.
• Arnold and Margaret Hansen, the applicant states the "blades have an ‘air void’ inside, creating a softer surface"; the vergola will be outside her bedroom and she is satisfied that there will be little difference in the noise level created by rain; and vibration is "not a factor in a fully engineered structure".
• Margaret and Garry Johnson, the applicant states that the architect’s report deals with design issues.
• Clare Cauchi of Gold Coast Body Corporate Specialists, the applicant repeats the above statements about noise, slab penetration and views.

Determination
The proposed positioning of the vergola
Lot 4 is located on level D of Building Units Plan 10966 (a building units plan is now referred to as a building format plan). It is not disputed that the applicant proposes to have the vergola constructed over a part of the Lot. The applicant states that the vergola is proposed to be constructed in accordance with the method recommended by the engineer (Milanovic). The applicant has also provided drawings from the architect (Cox).

The material provided by Milanovic and Cox indicates that the vergola is proposed to be anchored to the outer edge of the concrete slab between Lots 4 and 5 and to the reinforced concrete parapet and balustrade on the north-western side of the Lot. The part of Lot 4 on which it is proposed to construct the vergola is above Lot 2.

The boundaries of lots in the scheme are determined by reference to the relevant survey plan, the Land Title Act 1994, and the Registrar of Titles Directions for the Preparation of Plans. A building format plan "defines land using the structural elements of a building, including, for example, floors, walls and ceilings"^[2]. The boundary of a lot can be the centre of a floor, wall or ceiling of the lot; a structural element such as the outer edge of a floor or a concrete base not abutting a wall; or the outer face of balustrades or railings^[3]. Given the provisions of the Land Title Act 1994 and the Registrar of Titles Directions for the Preparation of Plans, the relevant boundaries of Lot 4 are:

• The outer face of the concrete base or the outer face of balustrades or railings on Level E.
• The outer face of the concrete base or the outer face of balustrades or railings on Level D.

Given the proposed construction method, I consider that the vergola would be installed on common property and would not be wholly within Lot 4.

Required body corporate authorisation
The proposed construction is an improvement to common property^[4] and is for the benefit of Lot 4. In this instance, section 114 of the Standard Module applies, quote:

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--

(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.

As the improvement is not a minor improvement^[5], it could only be made with the authorisation of the body corporate by special resolution in general meeting.

It is apparent that the applicant has submitted motions proposing the erection of a vergola to the 2006 AGM and to a later EGM, and that both motions were lost by ordinary resolution. Given that the requirements for counting votes for a motion requiring a special resolution^[6] are stricter than the rules for counting votes for a motion requiring an ordinary resolution^[7], it is clear that these motions were also lost by special resolution.

Decision
Section 276 of the Act makes provision for orders of adjudicators with subsection (3) providing that "Without limiting subsections (1) and (2), the adjudicator may make an order mentioned in schedule 5". Relevantly, section 17 of schedule 5 states that "If satisfied the body corporate’s decision about a proposal by the owner of a lot to make improvements on or changes to common property is an unreasonable decision-an order requiring the body corporate-(a) to reject the proposal; or (b) to agree to the proposal; or (c) to ratify the proposal on stated terms".

In my view, the appropriate test is to determine whether it is just and equitable to reverse the stance being taken by the body corporate on the basis that the opposition is unreasonable. In my view, the onus is on the applicant to demonstrate that the opposition to her proposal is unreasonable. This involves an objective assessment of the facts of the dispute.

The main objections are that the proposed vergola would not be in keeping with the aesthetics of the building; could affect the integrity of the waterproofing; is likely to generate noise which will affect other occupiers enjoyment of their lots and will restrict views to the garden areas from some lots. It is also stated that umbrellas should provide adequate protection. The applicant challenges each of these arguments.

The applicant has provided detailed information on the proposed structure and indicated that the vergola can be powder coated to match the colour of the building or the colour of the window and door frames or the colour of balustrades. The applicant has provided an architect’s opinion that the vergola "will be consistent with the design of Calais and will not detract from the architecture of the building". What constitutes good appearance of a building is, to a large extent subjective. It could be validly argued that uniformity is preferable. Similarly, an opinion that an owner should be able to make improvements to common property of the nature being sought and that the appearance is not detrimentally affected by the improvement is equally valid. While the applicant has provided statements from Cox suggesting that a vergola would not detrimentally affect the appearance of the building, there are a number of owners who are concerned about appearance. Where an improvement is proposed to common property (which is owned by all owners) for the benefit of a particular owner, the owners are entitled to consider the effect the improvement may have on the appearance of the building or on scheme land.

The applicant states that the vergola would be constructed based on the method recommended by Milovanic. The objecting owners are concerned that the construction may affect the waterproofing integrity of the concrete slab and point to waterproofing issues which have been apparent in the building. While the slab which is proposed to be partially covered by the vergola is on Lot 4, it does provide a protective cover over Lot 2 on Level C. A body corporate is responsible to "maintain in good condition roofing membranes that are not common property but that provide protection for lots or common property"^[8] and to "maintain ... elements of scheme land that are not common property in a structurally sound condition ... (including) roofing structures providing protection"^[9]. In this circumstance, the body corporate has a maintenance obligation with regard to this part of Lot 4, at least to the extent that it covers Lot 2. In providing a construction methodology, it is significant that the engineer stated "that we have not had access to structural drawings but base the following on superficial visual assessment. All on site work shall cease should conditions/materials vary from those described below, until further assessment by us ... The issues of concern relate to the structure of the building as well as the waterproofing integrity".

There are concerns about noise, which in the absence of demonstrable material could be viewed as being subjective. It is relevant that the owners of the lots immediately above Lot 4 are concerned that the vergola may affect the enjoyment of their lots. Given the proximity of the vergola to the bedrooms of these lots, a concern about noise could be viewed as being genuine and be a cause of future disputation should the vergola be built. It should be noted that section 167 of the Act provides that the occupier of a lot must not use the lot or common property in a way that interferes unreasonably with the use or enjoyment of another lot.

The applicant’s architect has provided drawings indicating a change in the line of sight from Lot 5 should the vergola be constructed and should its blades be closed. The drawings indicate that a part of common property will not be visible, but that the view of the pool will be largely uninterrupted. The Costa’s provided photographs on which they have shown the effect the vergola will have on their views from their main bedroom and dining/lounge room.

It can be concluded from the drawings and the photographs that a part of the common property will not be able to be viewed from parts of Lot 5 when the blades of the vergola are closed.

Conclusion
It is clear that as recently as the EGM, 9 of the 14 lot owners opposed the applicant’s proposal. The submissions made on behalf of the committee and from six owners have opposed the application. The owners of Lots 1, 2 and 12 gave qualified support to the application. It is significant that owners generally oppose the construction of a vergola and have used their legislative right to vote against the applicant’s proposal. In my view, these owners have expressed genuine concerns on the matters relevant to the construction of a vergola, even though there is only a prospect that issues relating to noise and water proofing may arise.

I have taken into consideration the applicant’s reasons for wanting to construct the vergola. The applicant is entitled to enjoy this area and to be protected from the sun. In my view, the applicant has not shown that the balcony is incapable of reasonable enjoyment unless the vergola is built. The owners do not object to the use of umbrellas and while there may be problems during certain weather conditions, the applicant has not shown that umbrellas will not enable her to enjoy this part of her Lot.

On balance, I consider that the owners generally have raised genuine concerns about the applicant’s proposal to construct a vergola. For these reasons, the application is dismissed.

---

^[1] Section 276(1), Act.
^[2] Section 48C(1), Land Title Act 1994.
^[3] Section 49C, Land Title Act 1994 and Direction 9.6.1, Registrar of Titles Directions for the Preparation of Plans.
^[4] "Improvement" defined, Schedule 6 Dictionary, Act.
^[5] An improvement with an installed value of $250 or less; Dictionary Accommodation Module.
^[6] Section 106, Act.
^[7] Sections 108 and 110, Act.
^[8] Section 109(2)(a)(iii), Standard Module.
^[9] Section 109(2)(b)(ii), Standard Module.