Stanley [2007] QBCCMCmr 439 (24 July 2007)

Last Updated: 1 August 2007

REFERENCE: 0270-2007

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	15962
Name of Scheme:	Stanley
Address of Scheme:	24 Styer Circuit BURLEIGH WATES QLD 4220

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

Ms Doreen Cole, the Owner of lot 2

I hereby order that the application for an order To enforce a by-law which has been contravened and to remove illegal alterations to building frontage. is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0270-2007

"Stanley" CTS 15962

The Scheme

Stanley" CTS 15962 is a duplex scheme registered under the Body Corporate and Community Management Act 1997 and is operating under the Body Corporate and Community Management (Standard Module) Regulation 1997.

Application

By means of an amended application dated 28 March 2007 the applicant seeks the following Order:

To enforce a by-law which has been contravened and to remove illegal alterations to building frontage.

Background

This application consists of a duplex scheme in which two lots are divided by a common wall and originally, each lot had a single garage door opening up to Styer Circuit. Recently, lot 1 was sold and the new purchasers of lot 1 decided to replace the metal garage door with a glass sliding door.
The applicant states that the front of the building is common property and that under the scheme by-laws, alterations to the common property cannot be undertaken without both parties agreeing.
However, she has not provided any details as to which by-law has allegedly been breached.

The applicant states that as there is no longer a garage for lot 1, cars will need to be parked on the street causing a traffic hazard. She also states that according to her insurance agent, any unauthorised alterations to the building could affect the outcome of future claims. The applicant also requests that the garage door be reinstalled and the front of the building "returned to the original design".

Pursuant to section 243 of the Act submissions were sough from the owners of lot 1 was advised as follows:

• The purchased the duplex, which is their first home, on the understanding that there was no body corporate^[1];
• They therefore believed that there was no restriction on what they did with their own property;
• The only alteration which they have undertaken is to replace the garage door with a sliding glass door which is exactly the same as other sliding glass doors located elsewhere in the building. No other alterations were undertaken;
• As the garage was too small to accommodate their vehicle, it was decided that the area could be put to used as a rumpus room for their two small children;
• They have spoken to their insurance agent who has advised that such a minor alteration would not affect their insurance coverage;
• They spent a considerable amount of money on replacement of the door as it was professionally installed to ensure that it was "in theme with the building" ;
• They take full responsibility for this alteration and will maintain it in the future.

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

As the applicant has not referred to any by-law in particular or provided a copy of the scheme by-laws, I have searched records held by the Department of Natural Resources and Water to ascertain what by-law may be applicable to the circumstances.

From my inquiries, I believe the following scheme by-law may have some application to the present circumstances:

5.(1) A proprietor or occupier shall not mark, paint, drive nails or screws or the like into, or otherwise damage or deface any structure that forms part of the common property except with the consent in writing of the body corporate ......

However, it would appear to me that the applicant has not taken steps in accordance with sections 182, 183 and 184 of the Act which, when read together, provide that a contravention notice
must be issued before any formal enforcement action is taken in respect of an alleged by-law contravention.

As the administrative arm of the body corporate, the body corporate committee is usually responsible for ensuring all owners and occupiers comply with the by-laws, although owners can also commence enforcement action which commences with the issue of mandatory notices except in very limited circumstances.

The types of contravention notice include a Continuing contravention notice and a Future contravention notice. It is only after the owner fails to comply with a contravention notice that the body corporate can decide to commence enforcement proceedings in the Commissioner’s Office or in the Magistrates Court.

For the benefit of both parties I will outline what preliminary steps are required. In general, the applicant would need to have taken the preliminary step of requesting the body corporate to issue a contravention notice to the person allegedly contravening the by laws by way of the applicable "approved form" (Form BCCM 1). Where the body corporate does not, within 14 days after receiving the request, advise the complainant that the contravention notice has been issued, the complainant may commence enforcement action in this Office.

While there are certain situations in which a lot owner may lodge an application without giving a preliminary notice, these circumstances are limited to "special circumstances " set out in Section 186 of the Act i.e. contraventions which:
- are likely to cause injury to persons or serious damage to property; or

-	are a risk to the health or safety of persons; or
-	are causing a serious nuisance to persons; or
-	for another reason, gives rise to an emergency. Subsection 184(2) provides as follows: (2) The body corporate may make an application under chapter 6 for resolution of the dispute only if the body corporate has given the owner or occupier a contravention notice for the contravention the subject of the dispute. In the absence of any evidence that the applicant has complied with the preliminary procedures set out in section 184 regarding alleged by-law breaches, I am not empowered to make an order enforcing the scheme by-laws. In any event, for the reasons set out below, I would not necessarily enforce the scheme by-laws even if the applicant or body corporate had complied with the preliminary procedures set out in section 184 regarding the alleged by-law breach.

It should be noted that the question also arises as to whether the owners of lot 1 have contravened any provisions of the legislation. In this regard, I note that 114 of the Standard Module provides as follows:
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
(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.

However, it should be noted that bodies corporate are required by section 94 of the Act to act reasonably in carrying out their functions. Section 94 of the Act provides as follows:
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).

The terms "reasonable" and "unreasonable" have 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 has indicated that an 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’.

I have perused the photographs provided by the owners of lot 1 and note that the new sliding glass door has been professionally installed and is almost identical to doors installed elsewhere in the building.

I have also noted the following submissions from the owners of lot 1:

• The only alteration which they have undertaken is to replace the garage door with a sliding glass door which is exactly the same as other sliding glass doors located elsewhere in the building;
• No structural alterations were made;
• the garage area has been put to used as a rumpus room;
• their insurance agent has advised that such a minor alteration would not affect their insurance coverage;
• They take full responsibility for the sliding glass door and will maintain it in the future.

It should be noted that not only is a lot owner entitled to reasonable use of the common property, but the body corporate is also required to act reasonably in performing functions such as enforcing by-laws or giving consents under the Act.

On an objective view of all the circumstances, I do not believe it would be reasonable for the
the body corporate to refuse the owners of lot 1 permission to install the glass sliding door and I therefore dismiss the application.

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^[1] A copy of the real estate agent’s advertisement was attached.