Rampage [2007] QBCCMCmr 623 (6 November 2007)

Last Updated: 14 November 2007

REFERENCE: 0142-2007

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	30273
Name of Scheme:	Rampage
Address of Scheme:	Raggamuffin Drive Coomera Waters Qld 4209

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

Body Corporate for Rampage

I hereby order that, within fourteen (14) days of the date of this order, the Owner of Lot 155 must ensure that any building material left in the front yard of Lot 155, including bricks and black plastic, is removed or is no longer visible from other lots or common property. I further order that the application is otherwise dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0142-2007

"Rampage" CTS 30273

The Rampage community titles scheme (Rampage) consists of 81 lots and common property. The community management statement (CMS) for Rampage indicates that the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module) applies to the scheme. Department of Natural Resources and Water records show the scheme is registered as Survey Plan 144798, 144801 and 144803.

APPLICATION

Pursuant to the Body Corporate and Community Management Act 1997 (Act), this application was made by the Body Corporate for Rampage on 19 February 2007, pursuant to a committee resolution on 29 November 2006. The applicant sought orders against Jacqueline Forest, owner of Lot 155 (respondent) in the following terms:

1. A drive way of the approved finish be installed completed as per architectural code

2. Approved landscaping be completed as per architectural code

3. Approved window coverings be installed as per by-laws

PROCEDURAL MATTERS

In February 2007 the Commissioner’s Office attempted to organise a conciliation session to assist in the resolution of this dispute. Unfortunately conciliation did not proceed.

Under section 243 of the Act, a copy of the application was provided to the respondents and all owners with an invitation to respond to the matters raised in the application. A submission was made by the respondent. The applicant did not avail themselves of the opportunity to inspect the submission received and make a written reply.^[1]

A dispute resolution recommendation was made referring the dispute to departmental adjudication.

MATTERS IN DISPUTE

The application relates to the respondents’ compliance with the by-laws and the Architectural and Landscape Code (the Code) for the scheme. The application said the respondent had a plain concrete driveway which is not a finish permitted under the Code (item 8.6(e) and (f)), that the landscaping was incomplete (item 4.2 of the Code) and that the current window coverings (blankets and sheets) are not compliant with the Code (By-laws 9.2 and 9.3).

The Body Corporate wrote to the respondent on 10 December 2006 regarding these issues and requesting attention to the matters within 14 days. On 25 January 2007 the Body Corporate issued a Notice of Continuing Contravention of a Body Corporate By-law^[2] in respect of each issue. These notices requested action within seven days. The application was then lodged.

The respondent made a submission requesting an extension of time to complete the required works. They said (at April 2007) that the garden beds and retaining walls were nearly complete. They said that the driveway was delayed due to the quality of a delivery of stone, bad weather and the Easter holidays. They estimated the work would be completed by 19 May 2007. The Body Corporate agreed to grant an extension and indicated they would review the matter on 30 May.

On 31 May the respondent wrote indicating that every attempt was being made to complete the work but further issues with stone quality and weather had delayed it. The Body Corporate then requested the application be held in abeyance on the basis that the work was nearly complete.

On 18 September 2007 the Body Corporate advised that the driveway was completed, but the landscaping and window finishes were not complete. They also noted that there was a lot of building material on site, including a cement mixer. Accordingly they withdrew the first order regarding the driveway and asked to proceed with the remaining two orders.

I sought clarification of the outstanding issues and the Body Corporate response included that:

	Lot 155 had been occupied for at least 18 months;
	The landscaping should have been completed within 3 months of occupation or completion;
	The lawn was not completed to the footpath and the building equipment was unsightly;
	All windows facing the road had sheets, but they are unsure as to the rear windows; and
	No application had been made directly to the Body Corporate for window coverings, but the Body Corporate does not have access to any applications to the original Architectural Review Committee as that architectural firm no longer acts for the Body Corporate or the developer.

I then invited the respondent to this information. The respondent advised that:

	All lawns have now been completed;
	All windows facing the road have now been fitted with blinds;
	A west facing door will be fitted with coverings as soon as possible, subject to their budget;
	They choose not to have coverings on the windows and doors at the rear of the property as they extend the view and there are no adjoining properties at the rear of the house; and
	They will be applying for relaxation not to erect a back fence because this would require removal of trees which would detract from the landscaping and devalue the property. They were advised that Amy Degenhart that she did not consider this to be a problem.

In response the Body Corporate advised that:

	They wanted the window coverings on the west facing door completed within 14 days or the sheets removed;
	The Body Corporate accepts that it cannot insist on window coverings in the other windows;
	While the cement mixer has been moved, black plastic and bricks remain and the Body Corporate want these removed within 14 days; and
	The respondent must apply to the Architectural Review Committee, care of Think Tank Architects (07 3348 3727) within 14 days to pursue any relaxation regarding the rear fence. They note that Amy Degenhart of Design Forum Architects is no longer engaged on behalf of the Coomera Waters bodies corporate.

JURISDICTION

I am satisfied that this is a matter which falls within the legislative dispute resolution provisions.^[3]

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 claimed or anticipated contravention of the Act or CMS; or the exercise of rights or powers, or the performance of duties, under the Act or the CMS; or a claimed or anticipated contractual matter about the engagement of a person as a body corporate manager or service contractor; or the authorisation of a person as a letting agent.

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 remaining issues in this dispute are whether the landscaping of Lot 155 has been completed in accordance with the Code and whether the window coverings in the lot comply with the by-laws.

The Code and the by-laws

The CMS for a scheme must state certain matters, including by-laws, and may include anything that the regulation module says it may include.^[4] Section 6(b) of the Standard Module provides that a CMS may include "provisions adopting and regulating the operation of an architectural and landscape code, including the establishment and operation of an architectural review committee".

By-law 44 in Schedule B of the CMS for Rampage provides that "The owner and occupier of a lot must observe and comply with the Code in relation to the lot." The Code is defined in section 1.2 of the by-laws to mean "the Architectural and Landscaping Code adopted from time to time pursuant to Schedule D of this Community Management Statement." Schedule D identifies the Code dated 28 September 2001, and I have viewed a copy of this document.

Schedule D of the Rampage CMS further provides that the CMS and each party bound by the CMS adopts the Code as if each provision of the Code was set out in the CMS in full. Schedule D refers to section 53 of the Act (now renumbered as section 59) which has effect that a CMS is binding on each member of the body corporate and each owner, as if each person bound by the CMS had entered into mutual covenants to observe its provisions and had each signed the CMS.

In regard to landscaping, Item 4.2 of the Code provides that all front yard landscaping must be completed within three months of the occupation of the dwelling or the completion of the dwelling, whichever is earlier. Item 10 of the Code provides specifically for landscaping. I will not restate the entire section, which is more than two pages long, but note that Item 10.3 provides specifically:

10.3	Front yard

(a) You are required to establish and maintain landscaping of the front yard of Your Lot by way of the planting of trees, hedges, shrubs, gardens or other forms of landscape embellishment, whether or not there is also provided pathways, driveways or privacy fences.

(b) All gardens within view from public areas shall be established to a reasonable standard within three months of the earlier of commencement of occupation of, or completion of the building work relating to , the dwelling. You are required to maintain the landscaping and irrigation between the front boundary line and the kerb.

I also note that Item 4.1(c)(ii) provides that prior to, during and after commencing building work, owners must not store excavation material, rubbish and builder’s waste, and not deposit any part of the same on adjoining properties or in public areas.

In regard to window coverings, By-law 9 of the CMS provides as following:

9. Window Covers

9.1 Owner and Occupier of a Lot must not:-

(a) cover any windows with aluminium foil or similar reflective material or tinted; and

(b) affix any shutters, awnings or other window cover externally to any building or visible from the exterior of the building.

This By-law will not prevent security screens being installed over windows but only after the written consent of the Committee of the Principal Scheme as to the type, quality, colour and style of security screen has been obtained. Such consent may be withheld in the absolute discretion of the Committee of the Principal Scheme.

9.2	An Owner and Occupier must not hand curtains visible from outside the Lot unless those curtains have a white backing, or unless such colour and design have been approved by the Committee of the Principal Scheme.
9.3	An Owner and Occupier must not install, renovate and/or replace a curtain backing or window treatment without having colour and design of same approved by the Committee of the Principal Scheme.
9.4	In giving such approvals, the Committee of the Principal Scheme must ensure, so far as practical, that curtain backing and window treatments used in all Lots have colours that are sympathetic to the tones of the improvements on the Scheme Land and present and aesthetic appearance when viewed from common property or any other Lot.

When a body corporate is pursuing a by-law issue, the first formal step is generally to issue a contravention notice. The notice, which must state certain things including the nature of the breach, must be given to the person who the body corporate believes is breaching the by-law. If the notice does not rectify the matter, the body corporate can either commence proceedings in the Magistrate’s Court or may lodge a dispute resolution application in the Commissioner’s Office. I am satisfied that the Body Corporate has complied with these processes.

Landscaping

In the absence of any arguments or evidence from the respondents to the contrary, I am satisfied that the respondents are bound by the provisions of the Code as part of the CMS and also because the by-laws for the scheme bind owners to the Code.

The application stated (although no any evidence was originally provided) that the respondents had breached the Code by not completing landscaping. During the course of the lengthy period of abeyance of the application it seems that much of the landscaping was completed. When requested to describe the current deficiencies in the landscaping, the Body Corporate said the lawn was not completed and that building equipment had been left onsite. However the Body Corporate has not disputed the respondent’s recent claim that the lawns have not been completed. Accordingly, in regard to the terms of the Code in regard to landscaping, I have no evidence that the landscaping is now not complete.

The Body Corporate says that some black plastic and bricks have been left onsite. I find no evidence that the leaving of building equipment onsite is contrary to the landscaping provisions of the Code. However these could arguably be covered by the terms of Item 4.1(c)(ii) of the Code. Even if not, I consider it is reasonable in the circumstances that the respondents remove these items from public view. If still required, these items could be stored within the garage or at the rear of the property, provided they are not readily visible from other lots or the common property.

Window coverings

I am of the view that By-law 9 does not prevent owners from choosing not to have any window coverings on some or all windows. The Body Corporate agrees that it cannot require coverings in the windows. Accordingly, no order is warranted in regard to the rear facing windows.

The respondents say that they have fitted coverings on all windows facing the road. The Body Corporate has not disputed this or raised any objection to the colour or type of window covering and so, again, it appears that no order is warranted in this regard.

Accordingly, the only outstanding issue appears to relate to a west facing sliding glass door. The respondents say they intend to replace the sheet on this door as soon as possible and, as the remainder of the front windows have been completed I do not doubt this. The Body Corporate wants this done within 14 days. However on balance I am not convinced by the material provided by the Body Corporate that the sheet is in breach of By-law 9.

By-law 9.2 prevents visible curtains unless they have a white backing or have been approved. But the By-law does not say that all windows must have window coverings, or that any window coverings on windows or glass doors must be specified types of window coverings.

While By-law 9 generally refers to windows, By-law 9.2 does not appear to restrict where curtains can be hung so I do not consider it necessary to determine whether the sliding glass door falls within the meaning of a window in the by-law.

When I asked the Body Corporate to describe how the sheets breached By-law 9 they merely provided a copy of the by-law. A ‘curtain’ is defined in the Oxford Concise Dictionary as a suspended cloth used as a screen, usually movable sideways or upwards. On that basis I see no reason why a sheet suspended from the window could not fall within that definition of a curtain.

The Body Corporate did not respond to my request for clarification of the colour of the sheets. However it appears from the colour photographs provided that the sheets are white. On that basis it would seem that the sheets fall within the scope of a white curtain. Given that the apparent key concern of the by-law is consistency in colours, I am unsure what objection the Body Corporate has to the white window coverings. The photographs provided do not indicate that the sheets, although certainly not idea, are unsightly or discordant.

By-law 9.3 says that curtain backing or window treatments must not be installed, renovated or replaced without approval. This could be seen as in conflict with By-law 9.2 which apparently allows white backed curtains without approval. To my mind the logical interpretation of these two by-laws when read together is that curtains with white backing may be installed without approval but that any window covering other than those within the definition of a curtain, or any window coverings without a white backing, require approval.

On that basis the white sheet appears to be permitted without approval under By-law 9.2. Notwithstanding this, I would assume that the respondents who have spent such time and effort on their property will not want to continue with a sheet on their door indefinitely and will install an appropriate covering in due course.

Rear fence

The respondents have raised the issue of fencing of their lot. However this issue was not raised by the Body Corporate in regard to the landscaping or otherwise. Accordingly I have no basis to make any order in this regard. However, the respondent is advised to review the Code requirements regarding fencing and have regard to the information provided regarding approval processes. I would encourage the parties to be open in their communication on that issue.

Conclusion

It is clear that the respondents have been slow in meeting their obligations under the Code. However, they have now substantially addressed the Body Corporate’s concerns. While the Body Corporate has certainly shown forbearance in this regard, it does seem that more direct communication with the respondents, and more specific information regarding the alleged deficiencies, may have assisted the Body Corporate achieve an earlier resolution of this matter.

The driveway and landscaping have now been completed and so no order is warranted in that regard. To the extent that any building materials have been left in the respondent’s front yard, I do consider that it is just and equitable in the circumstances that these be removed from public view. In light of the nature of the items I cannot see that this could present any great burden for the respondents. In regard to the window coverings, it seems that the only one door is currently at issue. On balance I am not satisfied that the Body Corporate has demonstrated that the sheet in place is contrary to the by-law. Accordingly, I have dismissed the remainder of the application.

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^[1] See sections 246 and 244 of the Act respectively

^[2] BCCM Form 10
^[3] See sections 227, 228, 276 and Schedule 5 of the Act
^[4] See section 66 of the Act and particularly subsection 2(b)