The Citysider [2007] QBCCMCmr 37 (22 January 2007)

Last Updated: 9 February 2007

REFERENCE: 0876-2006

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	177
Name of Scheme:	The Citysider
Address of Scheme:	QUEENSLAND

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

The Body Corporate for The Citysider

I hereby order that the application for an order that Walter and Therese Hartmann, Unit 1 Body Corporate for The Citysider CTS 177 comply with the Body Corporate Committee decision to relocate conduit to ground level and exposed conduit painted the colour of the building and further that repairs to the pre-existing work be carried out in a tradesman like manner and made good to this area of work is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0876-2006

"The Citysider" CTS 177

APPLICATION

The Body Corporate for The Citysider CTS 177 has sought the following order against Walter and Therese Hartmann, the owners of lot 1:

That Walter and Therese Hartmann, Unit 1 Body Corporate for The Citysider CTS 177 comply with the Body Corporate Committee decision to relocate conduit to ground level and exposed conduit painted the colour of the building and further that repairs to the pre-existing work be carried out in a tradesman like manner and made good to this area of work.

JURISDICTION

The Citysider Community Titles Scheme (the Scheme) is a 41 lot scheme under the Body Corporate and Community Management Act (Act) and the Act’s Accommodation Module Regulation (Accommodation 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 applicant’s grounds are quoted as follows:

Walter and Therese Hartmann, Owners of Unit 1, Body Corporate for the Citysider CTS 177, 17A Upward Street Cairns, installed a conduit on the Common Property exterior of unit 1, in a prominent position at the entrance to the complex, without permission of the Body Corporate. An application was made to the Body Corporate committee after the installation. At the committee meeting 15.12.2005 approval was given "subject to the conduit being relocated to ground level and exposed conduit painted the colour of the building and further that repairs to the pre-existing work be carried out in a workmanlike manner and made good" to this area of work. The committee meeting 24.04.06 noted the fact that this work had not been done after considerable time had elapsed. On 11.07.06 notice of continuing contravention of a Body Corporate by-law was issued by the committee. The committee meeting 22.09.06 stated that an application be made to the Office of the Commissioner for BCCM for a ruling on the removal of the conduit, due to the fact it has not been remedied in accordance with the committee’s direction.

Three photos of the conduit are supplied along with the minutes of committee meetings of 15 December 2005, 24 April 2006 and 22 September 2006. The minutes of 24 April 2006 reveal an increasing level of tension between the resident unit manager and the committee. The notice of continuing contravention is also attached.

LEGISLATION

Act

94 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).

180 Limitations for by-laws

(1)	If a by-law for a community titles scheme is inconsistent with this Act (including a regulation module applying to the scheme) or another Act, the by-law is invalid to the extent of the inconsistency.

182 Continuing contravention notice

(1) This section applies if the body corporate for a community titles scheme reasonably believes that--

(a) a person (the person) who is the owner or occupier of a lot included in the scheme is contravening a provision of the by-laws for the scheme; and

(b) the circumstances of the contravention make it likely that the contravention will continue.

(2) The body corporate may, by notice (a continuing contravention notice) given to the person, require the person to remedy the contravention.

(3) If the continuing contravention notice is given following a request under section 185(2), the body corporate must, within 14 days after receiving the request, advise the person who made the request that the continuing contravention notice has been given.

(4) The continuing contravention notice must state--

(a) that the body corporate believes the person is contravening a provision of the by-laws; and

(b) the provision the body corporate believes is being contravened; and

(c) details sufficient to identify the contravention; and

(d) the period (which must be reasonable in the circumstances) within which the person must remedy the contravention; and

(e) that if the person does not comply with the notice the body corporate may, without further notice--

(i) start proceedings in the Magistrates Court for the failure to comply with the notice; or
(ii) make an application under chapter 6 for resolution of the dispute

Accommodation Module

113 Improvements to common property by lot owner

(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 41--

(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.

123 Improvements

(1)	An exclusive use by-law may authorise the lot owner who has the benefit of the by-law to make stated improvements to the part of the common property to which the by-law applies.

(2)	Without limiting subsection (1), improvements stated in the by-law may include the installation of fixtures on the common property and the making of changes to the common property.

Workplace Health and Saefty Act 1995

9 What is a workplace

A workplace is any place where work is, or is to be, performed by--

(a) a worker; or

(b) a person conducting a business or undertaking.

Examples--

1 a vessel used for teaching members of the public to scuba dive
2 a vehicle supplied by an employer for use by a worker in the performance of work

30 Obligations of persons in control of workplaces

(1) A person in control of a workplace has the following obligations--

(a) to ensure the risk of injury or illness from a workplace is minimised for persons coming onto the workplace to work;

(b) to ensure the risk of injury or illness from any plant or substance provided by the person for the performance of work by someone other than the person’s workers is minimised when used properly;

(c) to ensure there is appropriate, safe access to and from the workplace for persons other than the person’s workers.

(2) For this section--

person in control of a workplace does not include the occupier of domestic premises.

BY-LAWS

8. DAMAGE TO COMMON PROPERTY

(a)	An Occupier must not mark, paint, or drive nails or screws or the like into, or otherwise damage or deface a structure that forms part of the Common Property, except with the consent in writing of the Body Corporate Committee.

(b)	This bylaw does not prevent an Owner from installing:

(i.)	any lock or other safety device for the protection of a Lot against intruders; or
(ii.)	any screen or other device to prevent entry of animals or insects to the Lot.

(c)	The locking, safety device, screen or other device must be constructed in a workman like manner and maintained in a state of good and serviceable repair by the Owner. It must not detract from the amenity of the Scheme Land.

9 ALTERATIONS TO LOT

(a)	An Occupier must not make a change to the external appearance of a Lot or make any structural alternations to a Lot, except with the consent in writing of the Body Corporate Committee.

(b)	A change to the external appearance or a structural alteration to a Lot means but is not limited to the erection of external aerials, blinds or awnings, changes to the utility infrastructure, the installation of an air-conditioning unit, or the enclosure of a patio or balcony.

21 EXCLUSIVE USE - COMMON PROPERTY ADJACENT TO LOT 1

The Owner or Occupier for the time being of Lot 1 shall be entitled to the exclusive use for himself of the common property adjacent to Lot 1 being the patio, storeroom and yard area identified in Schedule F as areas 1A, 1 B and icon Sketch Plan "B" and the Owner or Occupier of Lot 1 shall be responsible for its maintenance.

The Owner of Occupier shall be entitled to erect improvements on the area identified as area IC on Sketch Plan "B" provided that the written approval of the Committee has first been had and obtained. Such approval shall not be unreasonably withheld.

SUBMISSIONS

Two submissions were received. One simply says that they support the application.

The other is from the respondents and is submitted through a solicitor. It is approximately 10 pages in length and provides further background in relation to the motivation for installing the conduit. Specifically, they advise that the conduit houses cabling for broadband, to enable guests at the complex to access the internet in a front office, at the same time as the resident unit manager is accessing the internet. They express the view that provision of internet facilities is becoming more and more expected in the current accommodation market.

They advise the broadband conduit was installed late May 2005. They advise that the resident unit manager did not know the by-laws applying to the scheme at that time and they did not know about the requirements of Section 113 of the Body Corporate and Community Management (Accommodation Module) Regulation 1997. They advise the resident unit manager only became aware of these issues in September 2005 when approached by the body corporate manager.

They advise the respondents wrote to the Body Corporate seeking approval on 9 October 2005. On 15 December the committee resolved to give retrospective approval in the terms detailed in the orders sought. They state that after the refusal was received, the respondents spoke with the body corporate manager again. They say they explained their belief that the conduit had to be attached higher, so the cable would not present a safety hazard to guests stepping over it to enter the premises.

The respondents advise they heard nothing more until in or around July 2006, when they received a notice of continuing contravention in relation to the conduit.

The solicitor attempts to argue that, as Section 113 of the Accommodation Module makes provision for the authorisation of improvements, it follows that by-laws 8 and 9 must be read down to relate only to damage or alterations that do not result from improvements. On that basis, they then argue that the notice of continuing contravention (which was based on by-laws 8 and 9) cannot be valid. They further argue that the 7 days given to rectify is inadequate.

They submit that the approval to install conduit on the condition it was at ground level was unreasonable and therefore this equates to an unreasonable refusal.

They state that the current installation is painted to match the scheme and is barely visible. They provide black and white photos taken at a greater distance than those supplied by the applicant.

They note that the Austar conduit which services the scheme has not been painted. They say the conduit is no more visible than the large number of air conditioning units installed on the outside of the scheme.

They say delays by the Body Corporate in first raising the issue, responding to the respondents’ concern regarding workplace health and safety and issuing the contravention notice gave the impression on each occasion, that the Body Corporate did not object to the conduit.

The respondents summarise their submissions as follows:

• The Breach Notice is invalid as it does not comply with section 182(4) of the Act. Therefore the Respondents were not able to comply with the Notice.
• By-Law 21 enables the Body Corporate Committee to provide consent to the installation of an improvement in an exclusive use area.
• The Body Corporate Committee cannot unreasonably withhold its consent to a request to install an improvement in the exclusive use area.
• By attaching to its consent a condition that is unreasonable and places the respondents in a position where they will contravene other legislation, the Committee is unreasonably withholding its consent to the installation of the conduit in exclusive use area 1C.
• The conduit should be allowed to remain in its current location in exclusive use area 1C, subject to the Respondents being obligated to fully and properly maintain that conduit.
• To the extent that the conduit has been affixed to the common property walls of Lot 1, the conduit amounts to a minor improvement to which the Committee is able to provide its consent under Section 113 of the Accommodation Module.
• The Committee has an obligation to exercise its powers under the Act and Module reasonably by operation of Section 94(2) of the Act.
• It would be unreasonable to attach a condition to the Committee’s consent to the installation of the conduit which places the Respondents in a position where they may contravene other legislation.
• It would also be unreasonable in this instance for the Committee to act in a manner which will adversely impact upon any Respondents’ ability to conduct their business as this will, in turn, impact upon the members of the Body Corporate.
• As such, it is submitted that the conduit that has been affixed to the common property external walls should be allowed remain in place subject to an obligation by the Respondents to ensure its maintenance.

DETERMINATION

I disagree with the solicitor’s argument, that if a by-law covers a similar topic to a provision in the legislation, then the by-law will be invalid as if the legislation has exclusive application. In this case, my understanding is that the solicitor argues that because Section 113 of the Accommodation Module says that improvements can be made to the common property, then any damage or alteration that occurs due to the "improvement" is governed only by Section 113 only.

I do not find the provisions of by-laws 8 and 9 to be inconsistent with the operation of Section 113 in these circumstances i.e. the two regulations both have a legitimate role to play.

In my view, by-laws have an important role to play for owners within a community titles scheme. They present a searchable summary of the "rules" under which potential purchasers are considering living. To that extent, it is not persuasive for the respondents to argue they did not know the by-laws. Mostly by-laws provide a highly relevant outline of things that residents need to know for day to day living and present a less daunting proposition than becoming intimately familiar with the Act and relevant module.

In that regard then, I do not regard the notice of continuing contravention to be invalid.

Section 113 operates to require Body Corporate consent for improvements to common property. The module states that authorisation must be by way of special resolution unless the value of the improvement is less than $250 or it will not detract from the appearance of any lot or common property. While I have not received any submissions in relation to the value of the installed conduit, one anticipates it would have cost less than $250. Whether the conduit detracts from the appearance of the scheme is one of the issues in dispute.

In any event, no matter what form the authorisation should have taken, the respondents concede consent was not sought prior to installing the conduit. However, the respondents did take steps to rectify their omission by seeking retrospective approval. There is no point in requiring removal of the conduit, only for the purpose of undoing that sequence of events.

Despite the application for approval being made in hindsight and the possibility that a special resolution of the Body Corporate as a whole was required, the committee purported to consider the matter and attach conditions. Somewhat ironically, the conditions they chose to impose were based on issues of appearance (therefore prima facie attracting the need for a special resolution).

In a similar way to by-laws 8 and 9 and Section 113 of the Accommodation Module, by-law 21 states that certain actions may be taken, provided the Body Corporate gives its consent. By-law 21 includes a statement that "such approval shall not be unreasonably withheld".

Section 113 of the Module does not itself impose a requirement that "such approval shall not be unreasonably withheld". However, Section 94 encapsulates a requirement that when enforcing the community management statement or administering the common property, the Body Corporate "must act reasonably".

In my mind, the question of reasonableness under either provision can be discussed as one. The respondents argue that the condition of requiring the conduit to be installed at ground level is unreasonable because:

•	it presents an injury risk to those passing through the doorway;
•	it would put the respondents in breach of workplace health and safety legislation;
•	complete removal would be detrimental to the marketability of the scheme, reducing both resident unit manager and owner incomes;
•	competing with holiday makers for internet access would be detrimental to the business of renting units;
•	it is not currently highly visible and has been painted to match the scheme;
•	there are more obvious fixtures on the outside of the building;
•	it took the Body Corporate 4 to 5 months to find it objectionable.

They further suggest it would not be just and equitable to require relocation, as the Body Corporate’s inaction between various events lead the respondents to assume that the installation was acceptable.

The applicant has offered little in terms of its reasons for requiring the conduit to be installed at ground level. The only indication of the basis for their decision, is the word "prominent" and perhaps the inclusion of photographs.

The respondents argue that imposing unreasonable conditions effectively equates to withholding approval unreasonably and is therefore in breach of the requirements of by-law 21. While I am favourably disposed to this argument, I find it unnecessary to fully consider the issue, given the overarching requirement in Section 94 of the Act, for the Body Corporate to act reasonably. The question is "By placing a condition on the approval purportedly given under Section 113 of the Module, was the Body Corporate exercising its power reasonably in accordance with Section 94?"

The photos supplied by both the applicant and the respondents of the conduit affixed to the scheme, show that the conduit has been painted to match the building and runs in a tidy straight line above the level of windows and just touches the upstairs balcony. There appear to be air conditioning condensers both above and below one segment of the conduit, enclosed in a permeable metal screen. Another photo provided by the applicants shows a view of the conduit, partly obscured by canvas garden umbrellas.

I accept that it would have been visually preferable to have the conduit installed at ground level. However, I find the applicant’s description of the conduit as being in a "prominent position" does not mean that the installation detracts from the appearance of the building in any meaningful way. The photos provided by the applicant (at a greater distance from the building) make the impact even less apparent, with the conduit running parallel with the tube framing the enclosures that obscure the air conditioning condensers.

In this day and age, it is likely to be a sound business practice to offer internet capabilities in the scheme, with access now becoming commonly available within guest rooms. The decision to provide at least a central access point appears to be of benefit to guests, the resident unit manager and owners with lots in the letting pool. It therefore appears to me, that a reasonable Body Corporate would have approved the installation of the second point of access.

Given that approval was appropriate to allow the conduit to be installed, on the face of it the condition it be installed at ground level was reasonable. However, I consider the arguments for the installation of the conduit at its current level sound. The Body Corporate elected not to reply to the respondents’ submissions with any alternative for me to consider. In the circumstances, I am compelled to place safety ahead of appearance and dismiss the application.

It is apparent to me that relationship between the Body Corporate and the resident unit manager has steadily deteriorated over time. Certainly, the minutes of the committee meeting held in April 2006 make that clear, though I do note the committee had the objectiveness to approve the resident unit manager’s cat at that meeting.

However, I am concerned that this application may stem from a developing desire to retaliate for frustrations the Body Corporate and resident unit manager are feeling in their relationship. I take this opportunity to urge both the applicant and the respondents to remain focussed on privately achieving solutions for objectives they wish to achieve. Certainly, this office offers a dispute resolution service, but the fact is that members of this scheme will continue to need to deal with each other and reference to adjudication is not necessarily conducive to lasting harmony. I urge the parties to develop a lasting method of dealing with each other for the future benefit of all members of the scheme.