Runaway Heights One [2007] QBCCMCmr 55 (2 February 2007)

Last Updated: 12 February 2007

REFERENCE: 0507-2006

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	20967
Name of Scheme:	Runaway Heights One
Address of Scheme:	601 Pine Ridge Road BIGGERA WATERS QLD 4216

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Warrego Petroleum Pty Ltd, the owner of Lot 29

I hereby order that the application for an order by Warrego Petroleum Pty Ltd, the owner of Lot 29 seeking outcomes against the body corporate for Runaway Heights One community titles scheme 20967 that it assure construction of a double carport spanning the car spaces between the existing enclosed garages on Lot 29 and 30; that such construction be completed at the most economical cost in compliance with local council regulations; and that it assure lodgement and approval of small patio on Lot 29 already approved at the same time, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0507-2006

"Runaway Heights One" CTS 20967

APPLICATION

This application is by Warrego Petroleum Pty Ltd, the owner of Lot 29 (applicant) against the body corporate for Runaway Heights One. The applicant has named Kerrie Egan, the owner of Lot 30 as a person who would be affected by the outcome sought.

The outcomes being sought are:

1.	To assure construction of a double carport spanning the carspaces between the existing enclosed garages on Lot 29 and 30.
2.	Such construction to be completed at the most economical cost in compliance with local council regulations.
3.	To assure lodgement and approval of small patio on Lot 29 already approved at the same time.

JURISDICTION

"Runaway Heights One" Community Titles Scheme 20967 is a 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 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 (section 276(1), Act).

INTERIM ORDER

The applicant also sought the following interim order:

1.	To set aside body corporate committee approval granting construction of a single carport on Lot 30.
2.	In the alternative, to stop the owner of Lot 30 from commencing construction of a single carport on Lot 30, until final orders are made.

On 30 October 2006, I made an interim order that pending a final determination of this application, Kerrie Egan, the owner of Lot 30 must not permit or commence the construction of a carport on Lot 30.

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 and the committee, and to Stacks Gray Lawyers (the solicitor for Kerrie Egan). After advice from Stacks Gray that they no longer act for Kerrie Egan, a member of the commissioner’s office contacted Graham Egan (the occupier of Lot 30) and was informed that there was no point making a submission further to the submission made before the interim order was made.

A submission was received from the committee and a number of lot owners. The applicant made a written reply to submissions under section 244 of the Act.

DETERMINATION

Outcome sought 1 – That the body corporate assure construction of a double carport spanning the car spaces between the existing enclosed garages on Lot 29 and 30.

It is apparent from Group Titles Plan of Resubdivision 1786 and from the material submitted by the parties to the application that the car spaces between the existing enclosed garages on Lot 29 and 30 are on land which is within each of these Lots; and that the carport mentioned by the applicant is proposed to be constructed within the Lots.

The general functions of a body corporate are stated in section 94 of the Act and include the administration of common property for the benefit of the lot owners, and the enforcement of the community management statement (including any by-laws). Section 95 of the Act provides that a body corporate has all the powers necessary to carry out its functions. Section 152 of the Act makes provision for a body corporate’s duties about common property. In the circumstance where the carport is not being built on common property for the scheme, the body corporate does not have a specific power under the Act to manage and control its construction (if the carport was proposed to be built on common property not subject to an exclusive use by-law, body corporate authorisation would be necessary under section 114 of the Standard Module).

In this instance, the body corporate’s power is derived from the scheme by-laws which may provide for the regulation of, including conditions applying to the use and enjoyment of lots (section 167, Act). These by-laws are binding on the body corporate, each member of the body corporate and on each person who is otherwise an occupier of a lot in the scheme (section 59, Act). The by-laws which apply to the "Runaway Heights One" scheme are those which applied prior to the commencement of the Act (13 July 1997) given that a Standard Community Management Statement has been recorded by the registrar of titles (sections 337(2)(g) and 339, Act). The Schedule 4 By-laws of the Act will only apply to this scheme if the owners, in general meeting resolve to adopt the by-laws and a consequent new CMS is recorded by the registrar of titles.

While the applicant has not referred to a specific by-law, By-Law 3 of the scheme by-laws states that no structural alteration shall be made to any unit without the prior permission of the body corporate council (committee). Additionally, By-Law 4 states that proprietors shall...not do anything to vary the external appearance of their units without the prior consent of the body corporate council (committee). It is evident that the committee has made a number of decisions about a carport/s on Lots 29 and 30 culminating in the decision (subsequent to the application being made) at its meeting dated 19 October 2006. At this meeting, the committee established guidelines for the erection of a carport or carports on Lots 29 and 30; approved the construction of a double carport under specified conditions; and approved the construction of a single carport on Lots 29 and 30 under similar specified conditions.

The applicant opposes any body corporate decision to permit the construction of a single carport, and has in making a reply to submissions sought additional outcomes, including an outcome to rescind the decision made at the 19 October 2006 committee meeting and all previous approvals for a single carport.

The applicant says that a single carport is not in keeping with what is already approved and built. It is evident that a double carport has been constructed over the car spaces on Lots 19 and 20. The committee at the 19 October 2006 meeting decided that a double or single carport be of equal or better quality as the double carport on Lots 19 and 20. This decision gives appropriate recognition to the existing double carport and is within the power conferred by the By-Laws which provide discretion about alterations to lots. I do not agree that given the terms of the scheme By-Laws, an owner can be reasonably prevented from constructing a single carport on that person’s lot for the sole reason that a double carport has been constructed on two other lots in the scheme. There would need to be an issue with specific construction factors such as the type or style of the carport. At this time, there have not been any details provided about the construction of a single carport on Lot 30. In my view, the conditions framed by the committee in the decision at the 19 October 2006 meeting are general and do not indicate that specifications for a particular carport have been sighted and approved. The committee decision is preliminary to the submission of a plan/s for either a double carport or for a single carport/s based on the criteria set in the committee resolution. Given that there have not been a plan/s submitted, it cannot be stated that the proposed type or style of a single carport is not in keeping with what is already approved and built.

The applicant also submitted arguments indicating that a single carport on Lot 30 will cause a nuisance and interfere unreasonably with the use or enjoyment of Lot 29 and common property. Section 167 of the Act makes provision for nuisances and states that the occupier of a lot must not use, or permit the use of, the lot or the common property in a way that causes a nuisance or hazard; or interferes unreasonably with the use or enjoyment of another lot included in the scheme; or interferes unreasonably with the use or enjoyment of the common property by a person who is lawfully on the common property.

One concern is that a front post of a single carport on Lot 30 in the middle of the double car space will severely restrict the egress of vehicles. In my view, this is not a persuasive reason to prevent the construction of the carport. While the actual position of this post is not currently known, a post installed on Lot 30 by the occupier of the Lot adjacent to Lot 29 does not necessarily constitute a breach of section 167. For example, it is conceivable that the post will be installed on a part of the Lot that is on or near a position where a vehicle is now capable of being parked on the Lot. In this circumstance, the effect on the use of the space on Lot 29 would not be any different. The applicant certainly could not object to the position that a vehicle is parked within Lot 30. The installation of a carport may require the person using Lot 29’s car space to permanently modify the way the car space is used rather than only when a vehicle is parked on Lot 30’s space. However, this does not constitute unreasonable interference with the use of Lot 29 or any adjacent common property.

The applicant also states that a single carport on Lot 30 would reduce carport options for Lot 29 as a further carport will further restrict the available turning space within Lot 29. I do not agree that this is a reason to prevent the committee approving a single carport on Lot 30. Both owners have an opportunity to construct a carport within the boundaries of their respective lots.

Further while it is not accepted that this is a compelling ground, no material has been submitted to support any view that the value of Lot 29 will be reduced by the construction of a carport on Lot 30. Additionally, I am not satisfied from the material provided that a single carport on Lot 30 will cause vehicles to be reversed on common property in a way which would pose an unacceptable danger to the occupiers of other lots included in the scheme.

For these reasons, I have dismissed this outcome sought.

Outcome sought 2 - Such construction to be completed at the most economical cost in compliance with local council regulations.
Clearly, the construction of a carport must be in accordance with relevant laws and regulations including any relevant local authority regulations. The committee decision at the 19 October 2006 meeting includes the condition that a carport on Lots 29 and/or 30 must satisfy any applicable local council requirements. In this circumstance, it cannot be stated that the body corporate has not identified compliance with local council regulations as an issue.

Further, there is no reason to make an order that the body corporate or the affected person agree to a proposal which was the "most economical cost". The owner of Lot 30 and Mr Egan have their views with respect to the carport and the representative of the applicant has his views. The fact that these persons cannot reach agreement is not a basis for body corporate or adjudicator intervention on the terms being sought. At present, the type and style etc of construction is a matter to be considered by the owners (or their representatives) of Lots 29 and 30 in accordance with the guidelines which have been framed by the committee at the meeting dated 19 October 2006, with final proposals to be submitted to the committee for approval.

Outcome sought 3 – That the body corporate assure lodgement and approval of small patio on Lot 29 already approved at the same time.
The applicant has not provided any grounds to support this outcome sought. While the committee at its meeting dated 27 January 2005 gave in principle approval for a covered patio (with final design to be presented to the committee), this does not, in the absence of subsequent committee considerations constitute a basis for making an order in the terms sought.

Additional outcomes
In making a written reply to submissions, the applicant sought to add the following 3 outcomes to the application:

1.	That the resolutions made by the committee at its meeting dated 19 October 2006 be rescinded and all previous approvals for a single carport between Lots 29 and 30.
2.	That the committee not re-visit the approval of a single carport between Lots 29 and 30.
3.	That the parties resolve the matters between themselves without interference from the committee.

Section 244(3) of the Act provides that the written reply to submissions may only relate to issues raised by the submissions. In the circumstances, I do not consider it appropriate that the application should be amended to include these matters as to do so would warrant the determination of the application being unnecessarily delayed whilst the parties to the application are given an opportunity to make written submissions. However, given that the October 2006 meeting was held after the application was made and a decision made at this meeting about a carport/s on Lots 29 and 30 relates to the initial outcomes sought, I have given consideration to the additional outcomes despite not amending the application or providing the parties with an opportunity to make submissions.

With respect to the committee decision at its meeting dated 19 October 2006, for the reasons stated above (under Outcome sought 1), I consider that the committee decision was basically reasonable and within the powers conferred by the applicable By-Laws. These By-Laws provide discretion about making structural alterations to lots in the scheme. As a consequence, it is not appropriate that the committee be prevented from considering a request to construct a single carport on a lot. However, the condition that the carport/s on Lot 29 and 30 be free standing may be seen as unreasonable and favouring the views of the owner and/or occupier of Lot 30. Given that the carport on Lots 19 and 20 is not free standing, the committee should have good reasons to prevent an owner from being able to attach a structure such as a carport to another structure on that person’s lot.

The applicant also says that Mr Egan (a committee member) has influenced committee decisions on this issue. Firstly, it is stated that he voted at committee meetings on the issue of the construction of a carport/s. It is correct that Mr Egan could not vote on motions before the committee about constructing a carport on Lot 30 (section 34, Standard Module). However, it is not evident that even though he may have voted, the committee decisions he participated in were implemented or still have effect given the decision made at the 19 October 2006 meeting. With respect to the decision about a carport/s at the 19 October 2006 meeting, the body corporate manager has stated that Mr Egan abstained from voting. Further, the mere fact that Mr Egan is a committee member does not preclude committee consideration of this issue provided it is reasonable and does not for example, show preference to Mr Egan as the member over another owner or occupier. In respect of the resolution made at the meeting dated 19 October 2006, it is apparent that its terms apply equally to both Lots and not only to Lot 30. There is ample material submitted suggesting that the applicant has been given reasonable opportunity to be involved in the consideration of the construction of a carport. The applicant’s opposition to a single carport does not restrict the committee’s capacity to deal with the issue, or the owner of Lot 30’s right to erect such a carport.

In conclusion, I consider that the committee could make the decision about a carport/s at its 19 October 2006 meeting. Other than the issue of the carport/s being free standing, I am not satisfied that Mr Egan’s presence as a committee member has caused the committee to make a decision contrary to the By-Laws or which is otherwise unreasonable. While I do not consider that the resolution at this meeting is void or should be rescinded, it does not represent authorisation for a particular carport to be constructed. There will need to be a further submission for committee approval once a final plan for the work on both Lots or on either Lot has been finalised.