Noosa Place II [2008] QBCCMCmr 139 (23 April 2008)

Last Updated: 1 May 2008

REFERENCE: 0243-2008

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	21026
Name of Scheme:	Noosa Place II
Address of Scheme:	278 Weyba Road NOOSAVILLE QLD 4566

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

Janet and Peter Duffy, the Owners of lot 2

I hereby order that the application for an interim order that A stay is put on the resolution passed on 25 February 2008 outside a committee meeting. is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0243-2008

“Noosa Place II” CTS 21026

THE SCHEME

Noosa Place II is a Community Titles scheme regulated by the Body Corporate and Community Management Act 1997 (the Act) and the Body Corporate and Community Management (Accommodation Module) Regulation 1997 (the Accommodation Module). It consists of 19 lots registered on a Standard Format (Group Title) Plan of subdivision.

APPLICATION

At this point in time I am considering the applicants’ request for the following interim orders:
A stay is put on the resolution passed on 25 February 2008 outside a committee meeting.
The applicants are also seeking the following outcomes:

• To resolve the ongoing dispute between the owners of lot 1 and the owners of lot 2 regarding the erection of a screen as was resolved outside a committee meeting on 25 February 2008 by committee members; and
• To invalidate the resolution of the body corporate committee passed outside a committee meeting on 25 February 2008 with notice received by us by letter dated 11 March 2008.
  

More particularly, the applicants are seeking the following final orders:

• That no fence or screen is erected on common property inside the boundary line of the common property of lot 2 or on top of any retaining wall outside of lot 2; and
• Any screen proposed by the owners of lot 1 is erected on their side of the common property and from the ground level outside of lot 1 and not from the level of any wall.

BACKGROUND

Noosa Place II consists of 19 resort style units and a substantial area of common property on a Group Title Plan which was registered in 1987. A small courtyard area has been created on the ground level outside each of the units. Canvas awnings have been erected over the glass sliding doors which lead to the courtyard areas. Originally the awnings were supported by CCA treated pine logs and to provide privacy, CCA treated timber latticework was erected between the various courtyard areas. From perusal of photographs provided, it would appear that neither the logs nor latticework had been painted.

In late 2005, lot owners were advised that the scheme was to be repainted and prior to painting, the logs and timber latticework had to be removed. It was suggested that as the CCA (copper chromium arsenate) preservative posed a health risk, owners should take the opportunity to replace the CCA latticework with a hardwood slat screen supported by galvanised steel posts and to replace the CCA logs with aluminium supports. Given that the timber had by then been exposed to the elements for close to 18 years it is probable that its appearance had deteriorated to a certain extent, notwithstanding the CCA treatment. Owners were initially advised that the replacement screens were to be 1.8 metres high, but were subsequently advised that the standard screen height was to be 1.6 metres above the surface of the paved courtyards.

The applicants state that the owners of lot 1 erected a screen outside lot 2 on top of a block wall some 37 cm high, and therefore the top of the screen was 1.97 metres above the paving in the lot 2 courtyard and projected out some 310cm from the wall of the building. This screen was constructed without the committee’s approval and was significantly higher and wider than screens approved by the body corporate. According to the applicants, this screen was also constructed some “9 inches inside the boundary line of the common property” and was subsequently removed by the applicants.

The owners of lot 1 then sought permission from the committee to erect another screen of the same height but shorter than the previously erected screen. The screen was to be placed on top of a block wall erected by the owners of lot 1 some 20 cms “inside of the common property adjoining lot 2”. On 25 February 2008, the following resolution was passed outside of a committee meeting by 4 votes to 0 :

1. Erection of Screen – lot 1

That the body corporate approves the application by the owners of lot 1 to erect a steel-framed timber screen on common property between 22 and 23 on and subject to the following terms and conditions:

(a) that the screen is constructed-

• (1) to a maximum height of 1.6 m measured from the surface of the top of the existing retaining wall outside lot 1 using horizontal hardwood timber slats stained to match existing screens, and a galvanised steel frame, in accordance with the adopted standard specifications and in accordance with the attached photograph and sketches provided by the owners of lot 1; and
• (2) on top of and on the lot 1 side of the existing retaining wall in accordance with the attached photograph and sketches provided by the owners of lot 1; and
• (3) from the outside wall structure of lot 1 to a distance level with the outside edge of the existing retaining wall outside lot 1 in accordance with the attached photograph and sketches provided by the owners of lot 1; and
• (4) at the expense of the owners of lot 1; and
• (5) in a professional workmanlike manner by a contractor selected by the owners of lot 1; and
• (6) the screen is the property of the body corporate and the body corporate is responsible for the ongoing repair and maintenance of the screen.
  

The applicants claim that the erection of the new screen has:

- diminished their water views compared to the views available at the time of purchasing their unit;
- reduced the amount of light entering lot 2;
- prevented them from completely paving the area outside their lot as approved by the body corporate.

SUBMISSIONS

Pursuant to section 243 of the Act, submissions were sought from the body corporate committee and the owners of lot 1. The body corporate declined to make a submission as it believed the ongoing dispute regarding the replacement screen is a matter that needs to be resolved between those lot owners.

The owners of lot 1 made the following submissions:

• the application contains a number of untruths;
• the applicants have never contacted them directly regarding this matter;
• they have always had approval to erect the screen as per the letter from the body corporate manager dated 14 June 2007 and a further letter from the Body Corporate Manager dated 21 September 2007 which included the following:
  

The committee meeting held on 14 July 2007 resolved that I write to you and advise that the screen would be permitted to stay provided that the height was limited to 1.6 metres from the patio level on your property frontage and further that the length from the wall be reduced to 1.6 metres. ...At no stage was there a direction from the body corporate committee that it be removed.

On return to my office on 17 September 2007 I was informed that the screen had been removed by others.

At the Annual General Meeting of Noosa Place II held 24 February 2007 the matter of the screen was raised informally at the meeting and my advice to the meeting was no one had the authority to move the screen and anyone who did may be subject to a criminal charge.

• Knowing that the owners of lot 1 reside interstate, the applicants wilfully destroyed and stole the original screen belonging to lot 1 and that matter has been reported to the local police;
• They have indicated their willingness to compromise with the applicants by shortening the new screen which has been approved by the body corporate committee;
• The new screen matches all other recently constructed screens within the complex;
• They are simply replacing a screen that was in place at the time that they purchased their property. The old screen was made of toxic CCA treated pine and was in fact higher than the new screen;
• The applicants did not have water views and as the units face due west, the screen does not throw a shadow.
  

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)).

Sub-sections 279(1) & (2) provide that -
(1) The adjudicator may make an interim order if satisfied, on reasonable grounds, that an interim order is necessary because of the nature or urgency of the circumstances to which the application relates.
Examples
1. The adjudicator may stop the body corporate from carrying out work on common property until a dispute about the irregularity of proceedings has been investigated and resolved.
2. The adjudicator may stop a general meeting deciding or acting on a particular issue until it has been investigated and resolved.
(2) An interim order
(a) has effect for a period (not longer than 1 year) stated in the order; and
(b) may be extended, varied, renewed or cancelled by the adjudicator until a final order is made; (c) may be cancelled by a later order made by the adjudicator; and
(d) if it does not lapse or is not cancelled earlier, lapses when
(i) the application is withdrawn; or
(ii) the commissioner gives the person who made the application a written notice under section 241 rejecting the application; or
(iii) a final order is made by an adjudicator to whom the application is referred. ...

DETERMINATION

At this point in time, I am concerned with the application for interim orders and the threshold issue of whether interim orders are warranted. An interim order will not be granted unless is it necessary due to the nature or urgency of the circumstances to which the application relates.[1] The examples in section 279 of the Act indicate the usual circumstances where an interim order might be made and are in the nature of injunctive relief.

While it is not possible to exhaustively define what matters might be the subject of an interim order, an applicant needs to establish that the circumstances warrant an interim order. An interim order will not be made if the only urgency relates to an applicant’s desire to resolve or expedite the matters in dispute, or where the nature of the circumstances are such that the matter is not capable of being dealt with in the context of an interim order. Of particular relevance is evidence that an interim order is necessary to prevent serious or irreparable harm.

The applicants state that they wish to resolve the matter as soon as possible and suffer the following consequences of the respondents’ actions:

• diminished water views;
• reduced light entering lot 2; and
• inability to completely pave the area outside their lot as approved by the body corporate.
  

In my view, however, it would not be appropriate to make an order at this point in time for the following reasons:

• I am not satisfied that an interim order is necessary to prevent serious or irreparable harm;
• there is insufficient information available to me upon which I can make a final order; and
• further input is required from the applicant, the respondent and the body corporate.
  

From a perusal of Group Titles Plan No.1679, it would appear that the courtyard areas adjacent to each of the lots do not form part of the lots and are in fact part of the common property. Further, there is nothing in the Community Management Statement to indicate that exclusive use of the courtyard areas has been formally allocated to the lot owners.

If I am correct in my interpretation of Group Title Plan 1679, the question arises as to whether the body corporate committee is entitled to approve the construction of the privacy screen on common property. Installation of improvements such as the screens on common property, is governed by section 159 of the Act and section 113 of the Body Corporate and Community Management (Accommodation Module) Regulation 1997.

Section 159 of the Act provides as follows:

Improvements to common property
(1) The regulation module applying to a community titles scheme may provide for making improvements to the common property, including making improvements for the benefit of
the owner of a lot included in the scheme.
(2) Without limiting subsection (1), the regulation module may include provisions about—
(a) who may make improvements; and
(b) the circumstances under which the improvements may be made; and
(c) the way the improvements may be made.

In addition, section 113 of the Body Corporate and Community Management (Accommodation Module) Regulation 1997 provides as follows:

Improvements to common property by lot owner
(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 (i.e. which involves a total cost of $250 or less); 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.
(3) An authorisation may be given under this section on conditions the body corporate considers appropriate.
(4) The owner of a lot who is given an authority under this section
(a) must comply with conditions of the authority; and
(b) must maintain the improvement made under the authority in good condition, unless excused by the body corporate.

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 plain language, 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.

Accordingly, my preliminary view is that approval for construction of the screens must be given by way of a special resolution of the body corporate in general meeting rather than by a resolution of the committee and on this basis there is a strong possibility that the subject resolution of the committee dated 25 February 2008 is invalid.

Apart from determining whether the decision should be made by the committee or body corporate in general meeting, a further issue that would need to be considered is the reasonableness of
allowing the respondents to construct a screen of that size in the current location. In my view, relevant considerations would include the location of the latticework screen that was replaced, dimensions of the latticework screen that was replaced, the types of screens that have been constructed elsewhere in the scheme and the dimensions of other screens,

For the reasons outlined, I do not propose to make an order at this point in time. Accordingly, there is still an opportunity for the parties to attempt further dialogue and / or conciliation. In the event that conciliation is not a viable option and the matter proceeds to adjudication, it would be appreciated if the parties could address the matters that I have raised above in their final submissions.

---

[1] Section 279 of the Act