1 Holman Street [2007] QBCCMCmr 416 (11 July 2007)

Last Updated: 13 November 2007

REFERENCE: 0755-2006

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	31236
Name of Scheme:	1 Holman Street
Address of Scheme:	1 Holman Street KANGAROO POINT QLD 4169

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

Margo Bartley, the Owner of lot 109

I hereby order that the application for the following orders 1. That the decision of the body corporate committee on 3/7/06 and at the Annual General Meeting, refusing approval to alterations is overturned 2. In lieu of the previous decision of the body corporate whether by the body corporate committee or the General Meeting referred to above, the following decision is substituted: (a) that the applicant be permitted to install a shade awning as specified in this application on the conditions that the applicant supply an engineer’s certificate confirming that the construction is sound and meets appropriate standards. (b) That the applicant is permitted to install a vergola as specified in this application on the condition that the applicant supply to the body corporate (i) local government approval; (ii) an engineer’s certificate confirming that the proposed construction is sound and meets appropriate standards. Is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0755-2006

"1 Holman Street" CTS 31236

The Scheme

1 Holman Street consists of 50 lots registered as a building format plan and operates under the Body Corporate and Community Management (Accommodation Module) Regulation 1997 (the Accommodation module)

Application

Margo Bartley, the owner of Lot 109 (the applicant) has sought the following final orders:

1. That the decision of the body corporate committee on 3/7/06 and at the Annual General Meeting, refusing approval to alterations is overturned

3. In lieu of the previous decision of the body corporate whether by the body corporate committee or the General Meeting referred to above, the following decision is substituted:

(a)	that the applicant be permitted to install a shade awning as specified in this application on the conditions that the applicant supply an engineer’s certificate confirming that the construction is sound and meets appropriate standards.
(b)	That the applicant is permitted to install a vergola as specified in this application on the condition that the applicant supply to the body corporate
(i)	local government approval;
(ii)	an engineer’s certificate confirming that the proposed construction is sound and meets appropriate standards.

Background

The applicant is the owner of lot 109 which extends over two levels – level A and level B. Lot 109 comprises 123 square metres (including 43 square metres of balcony) on level A and an area of 70 square metres on level B. The owner of lot 109 wishes to install a "vergola" roof projecting out from the roof line on level B and dynabolted into the surrounding walls.

The applicant states that before purchasing her unit in November 2005 the real estate agent informed her "that there would be no problem getting a covered area over the atrium above my living area, but I had to get approval from the body corporate to do so" and suggested a "vergola" roof as a solution.

In April 2006 the applicant addressed a committee meeting with all particulars of the proposal to erect a vergola, was asked to provide an architect’s report, and was told that it would be voted on at the AGM in July 2006.

On May 17 2006, before the AGM, the applicant circulated a letter to all residents including details of the proposal, sketches superimposed on photographs and a letter from the original architect.

The matter was considered at the AGM on 3 July 2006 but rejected as 13 lot owners voted against the proposal, 4 lot owners voted in favor and 5 lot owners abstained from voting.
Lot owners opposed the improvement as they wanted no change to the external appearance of the complex and expressed the view that the applicant should not have purchased lot 109 if it was not suited to her needs. The applicant believes she has done everything possible to address objections raised by the body corporate.



In support of the application the applicant provided a letter from Mr. Stephen Cross, an architect who was responsible for the design of the subject building when he was employed by Greenway International, who states that with the proposed awning would:

•	marry in with other powder coated steelwork pergolas in the development;
•	provide shading to upstairs windows; and
•	not be detrimental to the overall design as it would lie in the horizontal plane and not impact on the three dimensional qualities of the staggered walls.

Attached to the application were letters from two medical practitioners outlining the applicant’s medical history and stating that the applicant has an acute sensitivity to direct sunlight, bright light, glare and noise, which would be ameliorated by installation of the proposed roof.

Submissions

Pursuant to section 243 of the Act, submissions were sought from members of the body corporate, the body corporate manager and the body corporate committee. In response, 17 submissions were received. The following submissions were made on behalf of the body corporate:

• while the body corporate sympathises with the applicant regarding her medical condition, it wishes to point out that the applicant has, according to the medical information, suffered from the condition for many years and purchased the unit without making the contract conditional upon approval of the proposed renovations. It is noted that prior to purchase of the unit the applicant sought permission to keep a dog and should have sought similar prior approval for the proposed renovations in question;

• approval of the proposed vergola roof would affect the value and appeal of other lots in the scheme;

• the committee’s primary objection is that it would change the visual appearance of the building in that while most buildings are "box like in shape", this building has variations in shape, and to put up the proposed awning would mean "destroying the look of the unique cavity created in the design;

• the committee has also established that the views of various lots will be significantly diminished if the awning is erected and this will have a financially detrimental effect on those residents;

• the committee notes that the applicant has already erected one awning without permission which it believes is out of place compared to other awnings in the complex and does not match the architectural design of the complex;

• work began on the awning without body corporate permission and without consulting other owners;

• other owners are expected to comply with the by-laws and wishes of their neighbours;

• the applicant has not taken responsibility in this matter but has sought to blame the real estate agent, the former chairman, the builder and the AGM;

• the letter from the architect does not take into account the loss of views from behind the awning or the unique random design of the building;

• the intrusive nature of the awning will downgrade the building;

• The architect’s commentary is limited to design aspects and not on the effect of the change on the residents;

• The architect has admitted that "views out will be affected";

• Committee members have offered a compromise to the problem of light coming through the lot owner’s glass atrium ceiling by offering to consider an application based on putting a cover over the glass, following the lines of the atrium but not extending out from the lines by more than 150mm;

• Another possible compromise was an offer by the committee but rejected by the applicant, was to consider a proposal where the awning is reduced in size so that it lines up with the Northern edge of her living room wall, but this was rejected by the applicant;

• It is important for owners to abide by the by-laws and the wishes of the majority.

The Real Estate Agent who sold the lot to the applicant states that:

• He is a member of the committee for this body corporate, has been a committee member and Chairman of various other bodies corporate and has owned a number of Management Rights over the last 25 years;

• He is therefore aware of the legal obligations of lot owners regarding renovations and alterations;

• the applicant was told that any alterations to the exterior of the lot required the approval of the body corporate;

• the applicant previously put the vergola roof proposal to a meeting of the committee on 16 March 2006 but was advised that this needed to be considered by a general meeting;

• the matter was considered at a general meeting on 3 July 2006 where the results of the vote were 4 "Yes" votes, 13 "No" votes and 5 Abstentions

The former Chairperson states that:

• he did not support or give permission to the applicant to install the vergola roof;

• the minutes of the relevant committee meeting have not been disputed and do not support the applicant’s claims.

An individual lot owner made the following submissions:

• He agrees with the submissions by the committee;

• It is not appropriate for a person to expect to be able to change the external appearance of the building against the wishes of the majority – to do so would create a dangerous precedent as unit owners continually want enclosed balconies, awnings etc.

• Lot owners should be able to purchase a lot on the understanding that the scheme by-laws will be adhered to

Various owners lodged submissions to which they attached photographs of their current views and sketches of how the proposed awning would impact on these views. Their submissions included the following:

• They own a lot behind the applicant’s lot;

• They purchased their lot for its magnificent view over the river and surroundings;

• The purpose of the layered design was to ensure that all units get unobstructed views for which lot owners paid a premium, any obstruction would devalue their property and would result in reduced rental income;

• Attached to the submission were illustrations on how the installation of the awning would affect their view;

Various lot owners made the following submissions:

• the proposal would affect the unique design of the building and therefore the appeal and value of their home;

• installation of the vergola roof would obstruct their views of the riverbank, walkways and jetty;

• as the applicant should have made enquiries prior to purchase;

• the applicant is not willing to accept the wishes of the majority;

• persons with units to the rear of lot 109 would lose part of their views over the river;

• installation of the vergola roof would negate the random design of the building;

• the applicant has not been willing to compromise;

• the awning would retain dirt and leaves causing a grubby appearance which is why such awning were not included in the original design

The owners of lot 110 supported the applicant by making the following submissions:

• they believe the applicant correctly made application to carry out the alterations in accordance with by-law 42;

• the committee has not complied with by-law 42 which requires (1) that the plans and specifications should be referred to an architect nominated by the committee; (2) the decision of the architect is subject to appropriate variations/ conditions imposed by the architect; (3) the matter will then be considered by the committee. If this process had been followed the alteration would probably have been approved;

• a complaint about the vergola roof was considered by the committee without giving the applicant an opportunity to be heard;

• it is reasonable to provide shade to open areas as an extension of the living area of the dwelling.

Response to Submissions

In response to the above submissions the applicant claims that:

• the proposed vergola roof would be located wholly within lot 109 because the patio on Level A is a "battle axe" shape with the handle being the space between the edge of the glass atrium wall and the adjacent wall of lot 108. Section 9.6.4 of the "Registrar of Titles Directions for Preparation of Plans" identifies the boundaries of part lots outside a building or structure. The vertical boundaries are established by the walls on each side and the upper edges of those structures form the height of the patio part lot, and identify the vergola roof within lot 109, and hence, not within common property i.e. the upper edge of the vergola roof would be below the upper edge of these structures;

• the proposal was put to a committee meeting on 16 March 2006 but the body corporate manager advised the committee it was not empowered to make this decision;

• the real estate agent created a reasonable expectation on her part that the vergola roof would be permitted;

• the existence of a by-law stating that certain things may be done establishes a reasonable expectation that a proposal will be considered on its merits and body corporate has not given due and reasonable consideration to her proposal;

• Brisbane City Council approval is not required for this kind of work although it must be certified; and

• Submissions regarding impact on the appearance of the building and interruption of views are exaggerated.

Jurisdiction

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)).







DETERMINATION

The applicant is the owner of lot 109 which extends over two levels – level A and level B. Lot 109 comprises 123 square metres (including 43 square metres of balcony) on level A and a total area of 70 square metres on level B. The applicant wishes to install a vergola roof projecting out from the top of level B and dynabolted into the top of the walls bounding lots 204 & 205, so that it completely covers the balcony area below on level A.

The applicant argues that the walls into which the vergola roof would be dynabolted on level B are part of lot 109 having regard to the Registrar of Titles Directions for the Preparation of Plans 9.6.4, but I am unable to accept this interpretation of the Directions for the Preparation of Plans. In my view the correct interpretation is that ownership of the area above the balcony on level A extends only as high as the ceiling of the adjoining part of the lot ^[1] and therefore the proposed vergola roof would be installed on common property. To come to this conclusion it is necessary to have regard to both the Land Titles Act 1994 and the Registrar of Titles Directions for the Preparation of Plans.

In this regard, of the Land Titles Act 1994 provides as follows:

Section 48C Building format plan
(1) A "building format" plan of survey defines land using the structural elements of a building, including, for example, floors, walls and ceilings.
(2) For subsection (1) "structural elements", of a building, includes projections of, and references to, structural elements of the building.
Example for subsection (2)-- Projections might be used to define a lot that includes a balcony, courtyard, roof garden or other area not bounded, or completely bounded, by a floor, walls and a ceiling.

49C Building format plan of subdivision
(1) This section applies to a building format plan of subdivision.
(2) Common property for a community titles scheme must be created under the plan unless the plan divides a lot, or amalgamates 2 or more lots, on an existing registered building format plan of subdivision.
(3) Two or more lots must be created under the plan unless--
(a) the plan amalgamates 2 or more lots on an existing registered building format plan of subdivision; or
(b) common property for a community titles scheme is created under the plan, and the common property created is additional to common property already existing under the community titles
scheme.
(4) Except to the extent permitted under directions of the registrar about the required format for a building format plan of subdivision, the boundary of a lot created under the plan, and separated from another lot or common property by a floor, wall or ceiling, must be located at the centre of the floor, wall or ceiling.

50 Requirements for registration of plan of subdivision
A plan of subdivision must-- ...
(i) comply with directions of the registrar about the required format for a plan of subdivision; ...

Further, relevant provisions of the Registrar of Titles Directions for the Preparation of Plans are:

9.6 Boundary definition:

9.6.1 Structural elements:
The following are acceptable structural elements for the purposes of this Direction:

•	Floors or ceilings, centre;
•	Walls, full height, centre;
•	Walls, not full height, centre;
•	Doors or windows, centre, other than where incorporated into a wall, when the boundary would be collinear with the centre of the wall;
•	Balustrades or railings, outer face;
•	Edge of a floor or a concrete base not abutting a wall, outer edge;
•	Corners within a building or structure defined by the centres of posts which are structurally required for the building or a wall.

Other structural elements similar in nature to the above may be used with the approval of the Registrar.

9.6.3 Where the vertical boundaries of lots or part lots in a building or structure are:

•	defined by structural elements as defined in Direction 9.6.1, no additional definition is required;
•	not defined by structural elements as noted in Direction 9.6.1, and on a roof, the vertical dimension shall be:
o	where there is an adjoining lot, or part lot, defined vertically by structural elements, on the same level as the lot or part lot, the upper boundary of the lot or part lot shall be the horizontal extension of the upper boundary of the adjoining lot;
o	where there is no adjoining lot, the upper boundary shall be defined by a vertical distance above the roof. This vertical distance shall be determined by the mean of the vertical distances between the upper and lower limits of lots within the building and shall be noted on the diagram for that level.

9.6.4 Where a part lot outside a building or structure is:

•	a private yard, each corner shall be marked and each boundary shall be fully dimensioned other than those that immediately adjoin another part of the same lot that is fully defined by structural elements. "Marked" shall include normal references to occupation at corners. A private yard shall be shown on the level diagram for the lowest level;.
•	other than a private yard (eg a balcony or a courtyard, etc), it shall be shown on the level diagram (see Direction 9.12) for the level on which it lies and:
o	for horizontal definition, see Direction 9.6.2;
o	for vertical definition:
	where the part lot is fully or partially defined by structural elements as defined in Direction 9.6.1, no additional definition is required;
	where there is no upper structural element, this shall be defined by the extention of the ceiling of the adjoining part lot within the structure.

Lot 109 extends over two levels – level A and level B. Lot 109 comprises 123 square metres (including 43 square metres of balcony) on level A and a total area of 70 square metres on level B. On level A, lot 109 is bounded by lots 108 and 110. On level B, lot 109 is bounded by lots 204 and 205. Having regard to the above, one must conclude that on level A, the upper boundary of the lot (including the balcony area) is the horizontal extension of the upper boundary of the adjoining lot i.e. the centre of the ceiling on Level A. As the proposed vergola roof would project out from the top of level B, and would be dynabolted into the top of the walls bounding lots 204 & 205, the vergola would be located on common property. Therefore, I believe that by-law 42 has limited application to the circumstances.

Rather, the matter would be governed by the provisions of the Act and Regulation Module dealing with improvements to common property by an owner, and in particular, section 159 of the Act and section 114 of the Standard Module, which provides as follows:




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 noted above, the matter was considered at a general meeting on 3 July 2006 where the results of the vote were 4 "Yes" votes, 13 "No" votes and 5 Abstentions. This would seem to be a clear indication that members of the body corporate do not favor installation of the vergola roof and there is little scope for me as an adjudicator to intervene to overturn a legitimate decision of the body corporate in general meeting.

While section 94(2) of the Act provides that the body corporate must act reasonably in anything it does under subsection 94(1), it is difficult to see how the decision could be regarded as unreasonable. The proposed vergola roof would be erected in a prominent area at the front of the building, and not being part of the original structure, would have a certain visual impact. In addition to the impact on the random design of the building, there are also concerns regarding the appearance of the vergola roof when viewed from above. Further, the proposal would impact on the outlook from certain lots behind the applicant’s lot. In this regard I note submissions that the layered design of the building is to enhance the outlook from all units for which lot owners paid a premium and the proposed vergola roof would impact on this outlook as well as the value of their units. While the extent of this impact may vary depending on the height and angle from which one looks out toward the river, I believe it to be a very real concern.

I note that the applicant has furnished letters from two medical practitioners outlining the applicant’s medical history and stating that the applicant has an acute sensitivity to direct sunlight, bright light, glare and noise, which would be ameliorated by installation of the proposed roof.
On the other hand I note the committee submission that the applicant has, according to the medical information, suffered from the condition for many years and purchased the unit without making the contract conditional upon approval of the proposed renovations. Further, I do not accept that the proposed vergola roof is the only means of reducing the levels of light entering the applicant’s unit. For example a number of compromise options have been suggested by the body corporate but rejected by the applicant.

Having regard to the above I believe the application should be dismissed.

REFERENCE: 0755-2006A

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	31236
Name of Scheme:	1 Holman Street
Address of Scheme:	1 Holman Street KANGAROO POINT QLD 4169

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

Margo Bartley, the Owner of lot 109

I hereby order that the application for the following orders 1. To overturn the decision of the body corporate committee on 3 July 2006 and at the Annual General Meeting on 3 July 2006, refusing approval to install a shade awning. 4. In lieu of the previous decision of the body corporate whether by the body corporate committee or the General Meeting referred to above, the following decision is substituted: that the applicant be permitted to install a shade awning as specified in this application on the conditions that the applicant supply an engineer’s certificate confirming that the construction is sound and meets appropriate standards. is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0755-2006

"1 Holman Street" CTS 31236

The Scheme

1 Holman Street consists of 50 lots registered on a building format plan and operates under the Body Corporate and Community Management (Accommodation Module) Regulation 1997 (the Accommodation Module)

Background

This application was submitted by Ms. Margo Bartley, the owner of Lot 109, on 18 September 2006, and was subsequently amended on 12 November 2006 so that the applicant was seeking the following outcomes:

1. That the decision of the body corporate committee on 3/7/06 and at the Annual General Meeting, refusing approval to alterations is overturned.

2. In lieu of the previous decision of the body corporate whether by the body corporate committee or the General Meeting referred to above, the following decision is substituted:

(a)	that the applicant be permitted to install a shade awning as specified in this application on the conditions that the applicant supply an engineer’s certificate confirming that the construction is sound and meets appropriate standards.
(b)	That the applicant is permitted to install a vergola as specified in this application on the condition that the applicant supply to the body corporate
(i)	local government approval;
(ii)	an engineer’s certificate confirming that the proposed construction is sound and meets appropriate standards.

The grounds for seeking the above outcomes were set out in Part 8 of the Application in the following terms:

Before making final purchase of lot 109 in November 2005, I was told by the Real Estate Agent (who also lives in the Holman St. Complex) that there would be no problem getting a covered area over the atrium above my living area but I had to get approval from the body corporate to do so . He in fact suggested a "vergola" as a solution.

In April 2006 I addressed a committee meeting with all the particulars of my proposal to erect a vergola and I was asked to get the architect’s view and suggestions. I was told it must be voted on at the AGM in July 2006.

On May 17 2006 I circulated a letter to all residents of the complex including all the relevant information of the proposal with superimposed photos of the construction, plus a letter from the original architect for their consideration before the AGM. I invited residents/ owners to inspect the site. No-one did so.

The AGM was held on 3 July 2006. My submission was voted on and defeated 4-yes/ 13-no/ 5-abstain. Arguments against focussed on 1/ wanting absolutely no change to the fascia of the complex. 2/ I shouldn’t have bought lot 109 if I were dissatisfied with it.

In support of my argument I believe that I have done everything possible to raise objections raised by the body corporate.




The relevant resolution of the body corporate which the applicant seeks to overturn is a resolution of the body corporate in general meeting and is recorded in the minutes of the Annual General Meeting held on 3 July 2006 in the following terms:

The motion THAT (by Special resolution) approval be granted for the erection of a shade cover "Vergola" at the side of unit 109, dimensions 3400mm x 5950mm made of colorbond XRW steel "ironside" to match existing specifications and an extension of the existing awning towards unit 108’s wall, in accordance with the attached plans and diagrams – WAS LOST
(VOTE: 4- YES/ 13- NO/ 5- ABSTAIN)

Following a consideration of the application and submissions, I made the following Orders on 11 July 2007:

That the application for the following orders:

1. That the decision of the body corporate committee on 3/7/06 and at the Annual General Meeting, refusing approval to alterations is overturned

2. In lieu of the previous decision of the body corporate whether by the body corporate committee or the General Meeting referred to above, the following decision is substituted:

(a) that the applicant be permitted to install a shade awning as specified in this application on the conditions that the applicant supply an engineer’s certificate confirming that the construction is sound and meets appropriate standards

(b) That the applicant is permitted to install a vergola as specified in this application on the condition that the applicant supply to the body corporate

(i)	local government approval;

(ii) an engineer’s certificate confirming that the proposed construction is sound and meets appropriate standards.
is dismissed.

The applicant lodged an appeal against the above order and on 16 October 2007, the Commercial and Consumer Tribunal made the following orders:

• The decision of the adjudicator is set aside insofar as it dismissed that part of the application relevant to the "shade awning".

• The part of the order that is so set aside is referred back to the adjudicator through the Office of the Commissioner for Body Corporate and Community Management with a direction to consider and determine that part of the application that is relevant to the issue of the "shade awning".

• The decision of the adjudicator is to be delivered within 21 days of receipt of this order.

Determination

On 17 October I reviewed the application and attachments, as well as submissions regarding this matter. On that date I also conducted a visual inspection of the site and noted that the shade awning is in fact a separate improvement. I can therefore confirm that this discrete issue was inadvertently overlooked in the Statement of Reasons for my decision.

From the documents referred to above, I have determined that the sequence of events relating to this matter is as follows:

• In early October 2005 the applicant advised the body corporate committee that she was interested in purchasing lot 109 asked the committee whether she would be able to keep a dog if she bought a lot in the scheme. Permission to keep a dog was granted at the Committee meeting on 12 October 2005;

• On 26 October 2005, the applicant signed a contract to purchase lot 109, and settlement took place on 25 November 2006;

• On 16 March 2006, the applicant presented to the body corporate committee her proposal to install the vergola and shade awning. The minutes of the committee meeting note that approval was outside the committee’s jurisdiction and that approval would need to be granted by a special resolution of the body corporate in general meeting.

• On 17 May 2006 the applicant requested the Secretary to include the relevant motion on the agenda for the next general meeting.

• On 3 July 2006, the motion was considered but rejected at an Annual General Meeting.

It would appear that the applicant is unsure as to whether it is necessary to obtain approval from the committee or from the body corporate in general meeting. Therefore, as a preliminary step, it would be useful to consider what type of approval is required regarding the following proposals by the applicant:

• erection of a shade cover "Vergola" at the side of unit 109, dimensions 3400mm x 5950mm made of colorbond XRW steel;

• extension of the existing awning towards unit 108’s wall.

For reasons set out in detail in my earlier Statement of Reasons (755-2006), I am of the view that erection of the proposed vergola structure would involve the making of an improvement to common property and must therefore be authorised by a special resolution of the body corporate in accordance with section 113 of the Accommodation Module (please note that in the earlier Statement of Reasons, references to section 114 of the Standard Module should in fact be references to section 113 of the Accommodation Module).

Similarly, I believe that installation of the shade awning referred to by the applicant also involved making an improvement to common property, and must therefore be authorised by a special resolution of the body corporate in accordance with section 113 of the Accommodation Module. In my opinion the requirements of by-law 42 referred to by the applicant, do not apply in circumstances where a lot owner wishes to make improvements to common property.

The next matter for consideration is the validity of the resolution recorded at the Annual General Meeting held on 3 July 2006, whereby permission to install the vergola and shade awning was refused.

From specifications included in the attachments to the application, I note that the shade awning includes two panels each approximately 3 metres long and 1.5 metres wide, in a "saw-tooth" arrangement, supported by 75mm x 75 mm painted steel posts 2.35metres above ground level at the front of each panel and 1.98 metres above ground level at the rear of each panel.

To assist in my consideration of this matter I perused the registered plan for this scheme (SP 154877) and noted that the applicant is the owner of lot 109 on a building format plan of subdivision in which the boundaries of the lot are defined by the structural elements of a building. I also perused the Community Management Statement and noted that the courtyard area adjoining lot 109 is in fact common property over which the applicant has been granted exclusive use for courtyard purposes. The practical effect of the above is that the external walls of the building, and the courtyard area, in which the applicant has now installed the shade awning, are part of the common property.

Making of improvements to common property is regulated by section 113 of the Accommodation Module Regulation which provides as follows:

113 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^[2]; 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.

In my view:

• the shade awning is located on common property; and

• the installed value of the awning structure is in excess of $250.

Therefore, this improvement must be approved by a special resolution of the body corporate in accordance with subsection 113(2) of the Accommodation Module regulation.

In this regard I note that on 30 March 2006 the applicant requested the body corporate to include the following motion in the agenda for the next Annual General Meeting:

Motion: That approval be granted for the erection of a shade cover "Vergola" at the side, dimensions 3400mm x 5950mm made of colorbond XRW steel "ironside" to match existing specifications and extension of the existing awning towards unit 108’s wall

The minutes of the AGM held on 3 July 2006 record the following resolution of the body corporate:

The motion THAT (by Special resolution) approval be granted for the erection of a shade cover "Vergola" at the side of unit 109, dimensions 3400mm x 5950mm made of colorbond XRW steel "ironside" to match existing specifications and an extension of the existing awning towards unit 108’s wall, in accordance with the attached plans and diagrams – WAS LOST
(VOTE: 4- YES/ 13- NO/ 5- ABSTAIN)

As stated previously, the results of the voting at the Annual General Meeting would seem to be a clear indication that members of the body corporate do not favor installation of the vergola roof and shade awning. Further, there is limited scope available to me as an adjudicator to intervene to overturn a legitimate decision of the body corporate in general meeting.

In the circumstances, it would appear that the only possible basis for me to overturn the decision of the body corporate in general meeting would be to conclude that the body corporate has not acted reasonably as required by subsection 94 of the Act which provides as follows:

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) including making, or not making, a decision for the subsection.



The term "reasonably" has been considered in various cases over the years including the recent decision of the High Court of Australia in McKinnon v Treasury [2006] HCA 45 (see esp. Hayne J at paragraph 61) where the Court indicated that a wide test of "reasonableness" is applicable where a statute expressly provides that a decision is to be made "reasonably" or upon "reasonable grounds". In such circumstances, the test involves an objective consideration and balancing of all the circumstances to determine what is "reasonable".

It is difficult to see how the subject decision could be regarded as unreasonable. While submissions from the body corporate and individual lot owners were primarily concerned with installation of the vergola structure, I have noted that there are a number of references to the shade awning including the following:

• while the body corporate has a degree of empathy with the stated medical condition of the applicant which involves sensitivity to light and noise, the applicant suffered from this condition well before she purchased her unit;

• the applicant could have made her purchase conditional upon body corporate approval of the vergola and awning; and

• the applicant has rejected alternative means of provided additional shade to her unit without impacting upon the visual appeal of the building.

Individual submissions included the following:

• the awning is out of place with the rest of the awnings because other awnings are attached to the building structure directly above the balconies;

• The applicant’s shade awning is freestanding with vacant land behind it and does not match the architectural design of the building;

• the freestanding awning structure provides an means of access to the balconies of lots on upper levels and is therefore a security risk;

• Lot owners are entitled to decide what changes are made to the exterior appearance of their building;

The applicant’s submissions in reply included the following:

•	The shade awning aligns with other awnings horizontally;
•	the original architect believes the structure is compatible with the building design; and
•	she disputes that the presence of the freestanding awning structure is a security risk.

While the shade awning has been made out of a vinyl material like other awnings, it has been erected in a prominent area of common property at the front of the building, and not being part of the original structure, would have a certain impact on the random design of the building. Further, I believe lot owners have expressed genuine concerns that the freestanding shade awning does not match the architectural design of the building and could provide easy access to the balconies of other lots on upper levels.

While I accept that the applicant has a heightened sensitivity to bright light and noise, I note the committee submission that the applicant has suffered from the condition for many years and purchased the unit without making the contract conditional upon approval of the proposed renovations. Further, I note that other means of reducing levels of light entering the applicant’s unit have been suggested by the body corporate but rejected by the applicant.

Having regard to the above, I believe the request for an order
that the applicant be permitted to install a shade awning as specified in this application on the conditions that the applicant supply an engineer’s certificate confirming that the construction is sound and meets appropriate standards
should also be dismissed.
An additional matter of interest is the wording of the relevant motion. As mentioned earlier, on 30 March 2006 the applicant requested the body corporate to include the following motion in the agenda for the next Annual General Meeting:

That approval be granted for the erection of a shade cover "Vergola" at the side, dimensions 3400mm x 5950mm made of colorbond XRW steel "ironside" to match existing specifications and extension of the existing awning towards unit 108’s wall

I believe it would have been in the applicant’s interests to have requested two separate motions to be included on the agenda i.e. one motion relating to installation of the vergola, and a separate motion relating to erection of the shade awning in the exclusive use area. It would seem to me that by requesting one motion to deal with both issues, the motion would have failed even if lot owners did not oppose the shade awning but opposed the vergola structure, and vice versa.

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^[1] See in particular the final paragraph of Direction 9.6.4
^[2] An improvement with an installed value of $250 or less as per the definition contained in the Schedule to the Regulation Module.