Cascades [2007] QBCCMCmr 479 (9 August 2007)

Last Updated: 16 August 2007

REFERENCE: 0419-2007

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	7519
Name of Scheme:	Cascades
Address of Scheme:	22 Douglas Street SUNSHINE BEACH QLD 4567

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

Patricia Balderstone, the Owner of lot 7

I hereby order that the application for the following Final Order: To move the portal to the left involving the moving of a besser block wall; or Not having the "large tin roof" blocking the outlook from her balcony. Is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0419-2007

"Cascades" CTS 7519

THE SCHEME

Cascades is a 13 lot scheme registered as a building units plan (now known as a building format plan) and operating under the Body Corporate and Community Management (Standard Module) Regulation 1997 (the Standard Module).

APPLICATION

The final outcomes sought by the applicant are:
To move the portal to the left involving the moving of a besser block wall; or
Not having the "large tin roof" blocking the outlook from her balcony. Suggested alternatives are
a curved glass roof, Metal or wooden strips, or no roof at all.

The applicant previously sought an interim order to Stop work on the portal (doorway) and the area of two metres adjacent to the portal on the driveway side which is being built in front of the balcony of unit 7. However, for reasons contained in my decision dated 1 June 2006, I previously declined to make such an order.

BACKGROUND

Cascades is a scheme consisting of 13 lots on a building format plan. It is now some 20 years old and in recent years it has been proposed that the external appearance of the building be modernised so that it has a more contemporary appearance.

In particular it has been proposed that

• the front of the building be made over;
• outdated balustrades are to be replaced;
• a new colour scheme is to be adopted;
• pedestrian access is to be upgraded;
• identical portico entrances consisting of a small roof supported by columns are to be built on either side of the building;
• a stark letter box wall is to be removed;
• overgrown vegetation is to be cleared;
• trip hazards caused by root growth are to be removed; and
• new landscaping work is to be undertaken as required.

The applicant is opposed to the erection of the portico on the front left hand side of the building as she believes it will be higher than her balcony and will impact on her outlook.

The applicant also claims that she had limited opportunities to view the plans and further claims that the location of the portal on the left hand side has been altered and that an undertaking to plant trees between lot 7 and the portico was now impossible as a wall is to built there.
Pursuant to section 243 of the Act, submissions were sought from members of the body corporate and the body committee prior to the making of the Interim Order. Submissions made at the interim stage continue to have relevance to the application for final orders and are set out below:

The Body Corporate’s submission can be summarised as follows:

•	the applicant was given the opportunity to view the plans;
•	the applicant has been given the opportunity to attend meetings;
•	the applicant has been given several months to raise issues prior to the work commencing but rather, she has chosen to cause maximum disruption by waiting until work has begun;
•	the applicant is not a resident and recently had her unit on the market;
•	the applicant willingly signed a document agreeing to the renovations and this can be verified by witnesses;
•	the balance of convenience does not favour granting of the requested order as 12 of the 13 owners are in favour of the renovations and work has now begun; any delay to the building schedule will freeze the investment of 12 other owners whose units are collectively worth $9 Million and will prevent them from dealing with their units; owners are also prevented from renting out their units owing to; any delay will subject the body corporate to liquated damages under the terms of the building contract

On 1 June 2007 I declined to make the requested Interim Order. However the applicant also sought the following final orders:
To move the portal to the left involving the moving of a besser block wall; or
Not having the "large tin roof" blocking the outlook from her balcony. Suggested alternatives are
A curved glass roof; Metal or wooden strips or No roof at all.

On 4 June 2007 the applicant sent further material to this Office reiterating her contention that she was given insufficient opportunity to view the plans for the renovations including the portico structure. She disputes the advice that the structure will be 2.4 to 2.5 metres and has provided photographs of the partially completed structure to illustrate her point that the actual height is in the vicinity of 3.13 to 3.2 metres and level with the railings on her balcony. By facsimile dated 4 August the applicant again advised that she did not have an opportunity to view the plans. The applicant also states that she did not wish to attend body corporate meetings because of the animosity toward her and she did not receive notice of the last AGM.

Pursuant to section 243 of the Act, submissions were also sought prior to the making of Final Orders.

Final submissions made by individual owners and the body corporate included the following:

• owners have been discussing the renovations for several years and this has been documented in the body corporate minutes since July 2004;
• all owners have had adequate opportunity to access this information and all owners voted in favour of the renovations;
• there have been sufficient opportunities to canvass these issues over the years;
• this is another vexatious complaint by the applicant;
• the position and design of the portico was approved by the Noosa Shire Council;
• the applicant has been given a drawing clearly showing the intended position and style of the portico canopy and with that knowledge, signed the relevant agreement. It is therefore difficult to see how the applicant can dispute a decision that she ratified as a voting member of the body corporate;
• the portico canopies are designed to form an integral part of the overall theme and reduce the visual bulk of the existing building;
• it is difficult to see how the portico in question could be detrimental to the applicant’s unit which is on the second floor;
• the applicant does not, and never has, resided in the building.

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 final outcomes sought are To move the portal to the left involving the moving of a besser block wall; and / or Not having the "large tin roof" blocking the outlook from her balcony.

Apart from the applicant’s statement that she does not like the type of roof on the portico structure and that it will impact upon the outlook from her unit, the applicant has not specified any basis upon which I am empowered to make the requested orders.

In this regard I note that the body corporate previously obtained the approval of all lot owners although the applicant claims that she was not given adequate time to consider the proposal in detail, and was misled as to the location of the portico.

However it should be noted that a resolution without dissent is not required for approval of a renovation project involving improvements to common property.^[1]

Section 113 of the Standard Module provides:
Improvements to common property by body corporate
(1) The body corporate may make improvements to the common property if--
(a) the cost of the improvements, or, if the improvements together with associated improvements form a single project for improvement of the common property, the cost of the entire project, is not more than an amount (the "improvements limit") worked out by multiplying the number of
lots included in the scheme by $300; or
(b) the improvements are authorised by special resolution; or
(c) an adjudicator, under an order made under the dispute resolution provisions, decides the improvements are reasonably necessary for the health, safety or security of persons who use the common property and authorises the improvements.
(2) For subsection (1)(a), if a series of associated improvements forms a single project, the cost of any 1 of the improvements is taken to be more than the improvements limit if the cost of the project, as a whole, is more than the improvements limit.
(3) This section has effect subject to part 7, division 6.41

Under section 113, there are various levels of authorisation required for proposals categorised as improvements. Specifically, Improvements up to $125 per lot for each lot in the scheme might be approved by the committee referred to the body corporate in general meeting by ordinary
resolution; Improvements with a cost between $125 and $300 per lot for each lot in the scheme must be approved by the body corporate in general meeting by ordinary resolution (see section 113 (1) of the standard module); Improvements with a cost exceeding the "improvements limit" of $300 per lot for each lot in the scheme must be approved by the body corporate in general meeting by special resolution (see section 113(2) of the standard module).





A special resolution is defined in section 106 of the Act as follows:

106 Counting of votes for special resolution
(1) This section applies if a motion is to be decided by special resolution at a general meeting of the body corporate for a community titles scheme.
(2) One vote only may be exercised for each lot included in the scheme, whether personally, by proxy or in writing.
(3) The motion is passed by special resolution only if--
(a) for a meeting notice of which is given--
(i) before the commencement of subparagraph
(ii)--the votes counted for the motion are more than the votes counted against the motion; or
(ii) after the commencement of this subparagraph--at least two-thirds of the votes cast are in favour of the motion; and
(b) the number of votes counted against the motion are not more than 25% of the number of lots included in the scheme; and
(c) the total of the contribution schedule lot entitlements for the lots for which votes are counted against the motion is not more than 25% of the total of the contribution schedule lot entitlements for all lots included in the scheme.

In simple terms, the requirements for a special resolution are that two-thirds of the votes cast are in favour of the motion and votes against the motion comprise not more than 25% of the total of the contribution schedule lot entitlements. Consequently, even if the applicant voted against the renovation proposal, the requisite special resolution would have been achieved.

As mentioned previously, the grounds upon which I am able to intervene in such circumstances are very limited. In the absence of any evidence to suggest that the portico structure is likely to create a nuisance within the meaning of section 167 of the Act, I do not see any grounds upon which I am able to make the orders sought by the applicant. I therefore intend to dismiss the application.

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^[1] See section 159 of the Body Corporate and Community Management Act 1997 and section 113 of the Body Corporate and Community Management (Standard Module) Regulation 1997 and.