Bayview Shores [2007] QBCCMCmr 77 (13 February 2007)

Last Updated: 12 March 2007

REFERENCE: 0836-2006

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	4078
Name of Scheme:	Bayview Shores
Address of Scheme:	5 Bayview Street RUNAWAY BAY QLD 4216

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

Ron Pattenden, the Owner of lots 78 and 79

I hereby order that the applicant is authorised to undertake the modifications to lots 78 and 79 in terms of the letter and drawings by Kavanaugh Consulting Engineers dated 15 June 2006. I further order that the work is to be undertaken in accordance with accepted engineering practice and all relevant statutory provisions and the applicant is to indemnify any other lot owner or the Body Corporate for loss or damage arising out of the work.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0836-2006

"Bayview Shores" CTS 4078

The Scheme

"Bayview Shores" CTS 4078 is a subdivision of 101 lots recorded under a building format plan of subdivision (previously known as a Building Unit plan). The regulation module applying to the scheme is the Body Corporate and Community Management (Standard Module) Regulation 1997.

The Application

This application has been brought by the owner of Lots 22C and 22F, seeking the following orders:

2.1.1 That the body corporate has acted unreasonably in refusing consent to the modification proposed by the applicant;

2.1.2 The resolution of the body corporate committee refusing the applicant’s request to make modifications to the lots in terms of the letter and drawings by Kavanaugh Consulting Engineers dated 15 June 2006, be declared null and void.

2.1.3 That the applicant be authorised to undertake the modifications to the lots in terms of the letter and drawings by Kavanaugh Consulting Engineers dated 15 June 2006.

Background

The applicant is the owner of Lots 78 & 79 (units 22C and 22F) and is seeking to remove part of a wall between the 2 units for the purpose of joining the units together. Pursuant to by-law 2.13, the body corporate is entitled to satisfy itself that the modification being proposed by the applicant does not affect the structural integrity of the building.

Although a civil engineering firm has provided the committee with details of the proposed renovations, including a letter dated 12 July 2006 stating that the modifications will not affect the structural integrity of the building, the body corporate has refused to grant its approval to the work.

The body corporate committee has raised three grounds upon which approval was refused i.e.

1. The committee is not prepared to accept responsibility to maintain an on-going file covering all structural alterations for reference from time to time when other changes are sought.
2. the committee is not prepared to approve changes where such approval has the potential to adversely limit the scope of otherwise acceptable structural alterations by other owners in the building.
3. As advised by the engineer, Mr Kavanaugh, changes/ alterations in the past may not be approved elsewhere in the building based on former approvals given.

The applicant contends that the body corporate has breached its obligation to act reasonably in carrying out its functions as required by section 94 of the Act. It is submitted that the body corporate’s aversion to record-keeping is an unreasonable basis upon which to refuse to grant approval. It is submitted that the body corporate has recently granted approval to various other renovations and the maintenance of records relating to these renovations is no less onerous than that required in respect of the applicant’s proposal. To refuse approval would involve discrimination against the applicant.

It is further submitted that concerns regarding setting of precedents are irrelevant and not a reasonable basis for decision–making. The body corporate should assess the request on its individual merits, having regard to the by-laws and where the structural integrity is not compromised, approval should be given.

Kavanaugh Engineers have certified that the structural integrity of the building slabs and vertical elements in the vicinity of the opening and the building as a whole, will not be reduced or impaired.

Submissions

Submissions in response to the application were sought from all owners (excluding the Applicants) and the body corporate committee. Fifteen submissions were received.

The body corporate committee raised a number of concerns in its submission, the most important of which I have summarised below.

• The proposed doorway would be cut into a wall which is integral to the structural integrity of the building. While the applicant’s engineer certifies that the opening will be cut in such a way that the structural integrity will not be compromised, the committee believes there are limits as to how many openings can be cut into structural walls
• It would not be appropriate to give a benefit to Mr. Pattenden which may not be available to other persons who may subsequently apply for such approval, and this would involve discrimination against subsequent applicants;
• The committee is not prepared to accept responsibility for maintaining an accurate on-going file covering all alterations to the building;
• The final work could differ from that specified in the initial application;
• There may not be any redress available to damage caused by the work;
• Disruption to other residents;
• potential damage to the slab floor similar to that caused previously on level 21.

These concerns also were raised in the individual submissions.

In reply, the applicant made the following comments:

• obviously the structural integrity of the building must not be threatened but the committee does not know at what point this could occur and has not sought advice;
• Each case should be judged on its own merits rather than a possibility of some future limitation;
• The request is uncommon and it is possible that all future requests for such permission (if any) could be accommodated;
• The committee already has an obligation to keep records;
• Records would include details of certification and structural inspection certificate and in any event such material would be available from other sources;
• Work previously undertaken on level 21 was far more extensive than what is proposed i.e. two openings were created, one of which was wider than the opening proposed by the applicant;
• The applicant is prepared to discuss restrictions on work hours in addition to statutory restrictions imposed by the GCCC regulations to ensure the work does not create a nuisance or annoyance;
• The builder has already agreed to wrap any debris taken in the lift.

Jurisdiction

This is a matter which falls within the dispute resolution provisions of the Act (see sections 227, 228, 276 and Schedule 5).

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 applicant is seeking body corporate approval to cut a doorway 1.8 M wide and 2.2 M high between the two units which he owns. However the body corporate is concerned about possible adverse impacts on the structural integrity of the building and noise nuisance .

One of the objectives of the Act, is "to balance the rights of individuals with the responsibility for self-management as an inherent aspect of community titles schemes". In practical terms this means that individuals, as owners of the freehold title to their lots, have the right to enjoyment of their property. However the Act also recognises that in a community title scheme there are occasions where certain freedoms may be curtailed for the benefit of the scheme as a whole. Finding the appropriate balance between competing interests can be a difficult task.

I have perused the Community Management Statement for this scheme and note that by law 2.1.3 provides as follows:
Structural Alterations
No structural alterations shall be made to any apartment (including any alteration to gas, water or electrical installations) without the prior permission in writing of the Body Corporate Committee. Any alteration so authorised must comply with the requirements of the local Building Code and with any specifications or limitations placed upon such alteration by the Body Corporate Committee.

Further, section 94 of the Act provides:
(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 applicant states that the modifications will not affect the structural integrity of the building and contends that the body corporate has breached its obligation to act reasonably in carrying out its functions. A number of issues have been raised by the body corporate and individual owners, but it would appear to me that most, if not all of these concerns have been or are capable of being addressed by the applicant.

The applicant points out that the likelihood of other owners wishing to cut a doorway between two units is limited. Further, the applicant’s engineer has prepared plans and states that the opening will be cut in such a way that the structural integrity of the wall will not be compromised.

While the committee is concerned about accepting responsibility for maintaining an accurate file covering all alterations to the building, the applicant points out that the body corporate already has
an obligation to maintain records and in any event the more important records relating to the proposed work would include details of certification and structural inspection certificates that would be available from other sources such as the GCCC.

While individual owners are concerned about noise and possible damage to their lots, the applicant is prepared to discuss restrictions on work hours in addition to statutory restrictions imposed by the GCCC regulations to ensure the work does not create a nuisance.

Having regard to the engineer’s report and the willingness of the applicant to address the concerns of the body corporate, I propose to order that to the extent body corporate approval is required to create a doorway between units 22F and 22C, the work shall be deemed to have been approved by the body corporate, on the basis that the objections raised to the proposal were, in my view, unreasonable.

I also propose to order that :

• the work is to be undertaken in accordance with accepted engineering practice and all relevant statutory provisions;
• the applicant is to indemnify any other lot owner or the Body Corporate for loss or damage arising out of the work.