Shannon Lodge [2007] QBCCMCmr 72 (12 February 2007)

Last Updated: 27 February 2007

REFERENCE: 1000-2006

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	8296
Name of Scheme:	Shannon Lodge
Address of Scheme:	197 Tor Street TOOWOOMBA QLD 4350

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

The Body Corporate for Shannon Lodge CTS 8296

I hereby order that the application by the body corporate for removal of the gate and fence in front of lot 2 is dismissed. I further order that, to the extent the gate and fence are on common property, they are deemed to have been authorised by special resolution as improvements to the common property for the benefit of the respondent’s lot. The owner of Lot 2 is to be responsible for maintenance of the gate and fence and the body corporate must make a notation to this effect in the register of authorisations affecting the common property. I further declare that this deemed authorisation, based on acquiescence over several years, may be altered or revoked by subsequent special resolution of the body corporate at any time provided that the body corporate acts reasonably in making any such resolution.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 1000-2006

"Shannon Lodge" CTS 8296

The Application

The Body Corporate for Shannon Lodge (the applicant) has sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 ("the Act") for –

The owner of Lot 2, to remove the gates and fence structure in front of Lot 2.

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)).

The Scheme

"Shannon Lodge" was registered as a building unit plan (now termed a "building format plan") on 9 October 1985 and comprises two (duplex) residential lots. The by-laws of the body corporate are those set out in the third schedule of the previous legislation regulating community title schemes, the Building Units and Group Titles Act 1980.

The applicant refers to by-law 5 in his application:

(1) A proprietor or occupier of a lot 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, but this by-law does not prevent a proprietor or person authorised by the proprietor from installing--

(a) any locking or other safety device for protection of his or her lot against intruders; or

(b) any screen or other device to prevent entry of animals or insects upon his or her lot.

(2) Provided that the locking or other safety device or, as the case may be, screen or other device is constructed in a competent manner, is maintained in a state of good and serviceable repair by the proprietor and does not detract from the amenity of the building.

Grounds

The applicant attaches a voting paper (for the 2006 annual general meeting) which details a motion (accompanied by lengthy explanatory note) that the owner of lot 2 remove gates and fencing on the common property outside lot 2. The explanatory note leads me to believe that the gate and fence had been in place since at least May 2003 and likely well before (given the fact that its need for painting was under consideration).

It appears that the issue became contentious at the May 2003 annual general meeting, when the owner of lot 2 denied being part of a Body Corporate and therefore would not participate in jointly organising maintenance for the scheme or maintenance of the fence and gate on her own behalf.

From this time on, the owner of lot 1, as secretary to the Body Corporate appears to have taken affront at the presence of the gate in relation to its appearance, state of repair, noise from the gate swinging, breaches of Section 114 Standard Module in relation to improvements to common property, breaches of by-law 5, perceived difficulties in relation to public liability and assertions that the way the gate is attached to the building in undermining brickwork. In support of the last proposition, the applicant attaches a letter from a carpenter & renovation builder (Mr D Willacy) who states that "if enough weight was applied to the top of the gate hinge there is the possibility of cracking or dislodging this section of brickwork".

The applicant states that based on this the gable to which the gate is attached is "prone to collapsing". He states that "as recently as 8 November 2006, Hanlon has not made her newly incoming occupiers/tenants aware of either the gates/fencing inherent danger nor insurance issues".

The applicant also advises that after attending the annual general meeting ordered by an adjudicator in 2003, the respondent has not voted or attended any annual general meeting or extraordinary general meeting in 2004, 2005 or 2006.

Submissions

Three attempts were made to contact the respondent for submissions (between 20 December 2006 and 2 February 2007), however no response has been forthcoming.

Procedural Matters

This office will not necessarily void matters for minor procedural irregularities. The courts have recognised that the very detailed provisions of the regulations make it almost inevitable that from time to time there will be non-compliance with the legislation. Non-compliance of an insubstantial nature should not be allowed to imperil the actions of bodies corporate or their committees, particularly in the instance of committees where actions are taken in good faith.^[1]

It is the usual requirement of this office, that where the Body Corporate has lodged an application, it should produce:

•	a copy of the notice of continuing contravention that was served on the respondent, and
•	a copy of the committee meeting minute authorising the dispute resolution application to be made.

I suspect that no contravention notice has ever been served, though it is clear from the memorandums enclosed by the applicant dated 19 June 2003 and 3 April 2004, that the respondent is aware that the gate is a contentious issue. Nonetheless it remains that these letters or memorandums do not satisfy the requirements of Section 182 of the Act.

In this matter, only one person in the Body Corporate has been active, effectively making them the only committee member. The owner of lot 1 has therefore provided this office with an undated document which appears to be the minutes of a committee meeting and includes the following:

Resolved that the owner of Lot 2 remove the illegal structure comprising gates and fencing across and over approved common property on Lot 2, immediately in front of the said Lot 2, deemed to be in contravention of the Body Corporate legislation and obviously a huge injurious public risk legal liability; and that the owner Lot 2 be required to remove the offending structure within 28 days from the date of the 2006 annual general meeting to be convened on 31 October 2006.

The secretary stated that any refusal by the owner of Lot 2, to remove the offending structure within the time-frame, would result in the secretary making application for an appropriate order of an Adjudicator, in the first instance.

Given the layout of these minutes, I harbour some concerns that the Body Corporate has failed to send out a notice of the agenda of the upcoming committee meeting as required under Section 28 of the Standard Module or distribute a copy of the minutes of the meeting as required under Section 36 of the Standard Module.

However, the respondent has made it clear that she has no interest in these proceedings and has not availed herself of the opportunity to make submissions on this or another matter in this office. In the circumstances it appears the respondent has demonstrated that adherence to legislated procedures would not have made any difference to her interest in the matter. Her indifference appears plain.

I will therefore accept the application despite my reservations in its compliance.

Determination

Noise from the Gate

The applicant makes assertions on the part of past tenants of Lot 2, however offers no supporting documentation regarding their concerns. And while these allegations relate to occupants of lot 2, the secretary makes no mention as to how it is affecting him as the occupier of Lot 1.

Without direct evidence from those directly affected by the noise, I am unable to take these allegations into consideration.

Undermining Brickwork

The evidence presented by the applicant from the carpenter and extension builder is not compelling. His letter only states that "if enough weight was applied to the top of the gate hinge there is the possibility of cracking ......". I would certainly be concerned in relation to the gate, if someone with suitable qualifications had said that the weight of normal wear was making cracking imminent. However, this opinion gives the impression that the weight required is something beyond the weight of the gate and further, that such a possibility does not present an imminent risk.

Safety Concerns

For the same reasons as above, the applicant has not satisfied me that the gate presently presents a safety concern.

Section 114 Standard Module

The applicant’s explanatory note for the motion to require removal of the gates states that:

In regard to improvements to common property by a lot owner, the improvement must be authorised by special resolution of the Body Corporate, providing the improvement does not detract from the appearance of any lot included in, or common property for, the Scheme.

This section actually reads as follows:

(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.

In lay terms, this actually means that an improvement can be approved by ordinary resolution if it costs less than $250, does not interfere with the appearance of the scheme or it isn’t likely to cause any breach of occupier duty. If it costs more than $250, interferes with appearance or might breach an occupier duty, it can still be approved by the Body Corporate, but a special resolution is required.

Therefore, had the respondent sought approval for the gate’s installation, the Body Corporate could have approved its installation by way of special resolution. Within a duplex, the reality is that both owners would need to approve the gate in order to satisfy the requirements of the Act^[2].

In other words, the gate is not illegal, but not properly authorised. I will discuss authorisation later in my decision.

Appearance

The applicant alleges that the gate detracts from the amenity of the complex. The Secretary describes it as having "unsightly appearance with the extensive fencing panel with wooden palings bowed and curved, combined with metal-fatigued gate fittings". Further the secretary says that the "environmentally uncharacteristic gates and fencing structure most certainly detracts from the open plan of Shannon Lodge Body Corporate Scheme – 8296".

I have not formed the same opinion based on the photographs that were supplied with the application. I have not been supplied with a wide enough angle photo to form an opinion as to the suitability of the gate to the neighbourhood. However this aside, the preference that people may have in relation to materials to be used in fencing, is an opinion which is of equal validity as the opinion of another. For the reasons given below, the secretary’s preference as to materials is not reason enough alone to require the gates removal.

By-law 5

Like Section 114 indicates, the respondent should have sought approval for the gate before its installation. Any consent by the Body Corporate should have been given in writing.

Acquiescence

I have concluded that the respondent did not have any proper authorisation from the body corporate for erection of the gate and fence on common property. I have formed the view that this gate was installed no later than May 2003 and likely, many years before 2003.

However, the present applications were not lodged until late in 2006. An adjudicator is required to make an order that is just and equitable in the circumstances to resolve a dispute. In making an order it is relevant to consider the fact that no formal steps were taken to require alteration or removal of the structures until a number of years after the structures had been built. In fact it appears that the gates did not become a problem until the owners of lots 1 and 2 came into dispute over the issue of maintenance to the scheme in general.

The body corporate could legitimately have acted at the time to require the respondent to alter or remove the fence and gate at that time if they were concerned that the structures encroached on common property or caused some form of nuisance or interference.

The fence and gate in question were in place for a number of years without any formal complaint being made to this office. In the circumstances, I do not consider it just and equitable to suddenly require the respondents to alter or remove the structures. Rather, I consider that other owners have acquiesced to the structures. That is, they have agreed to allow the structures to remain by failing to take appropriate action to have the structures removed.

Just and equitable order

In short, I am of the view that the fence and gate have been deemed to have been authorised by the other owner allowing those structures for a number of years and I will make an order to that effect. In making this order it is appropriate that the deemed authorisation should correspond with the type of authorisation allowable under the legislation. As discussed above, a special resolution is needed for any improvements to common property that may detract from the appearance of the scheme, may be likely to promote a breach of occupier duties, or amount to more than a minor improvement.

I consider it just and equitable to order that the deemed authorisation take effect as though passed by special resolution. This is on the basis that acquiescence by other owner can best be characterised as a consent to the structures in their existing form irrespective of whether or not they were on common property.

The owner of lot 2 is to be responsible for maintenance of the fence and gate and the body corporate must make a notation to this effect in the register of authorisations affecting the common property.

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^[1] Wei-Xin Chen v Body Corporate for Wishart Village CTS 19482, Appeal 4080 of 2000, District Court Brisbane, 29 May 2001.
^[2] Section 106 Body Corporate and Community Management Act 1997