Princess Palm [2008] QBCCMCmr 259 (4 August 2008)

Last Updated: 7 January 2009

REFERENCE: 0249-2008

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	9843
Name of Scheme:	Princess Palm
Address of Scheme:	969 Gold Coast Highway PALM BEACH QLD 4221

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

Colin Lawrie, the Owner(s) of lot 16

I hereby order that the application for an order to stop the installation of tennis court lights is dismissed. The above order was appealed to the Commercial and Consumer Tribunal – Appeal No. KA011-08

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0249-2008

“Princess Palm” CTS 9843

Application

Princess Palm Community Titles Scheme (Princess Palm) is an 82 lot scheme under the Body Corporate and Community Management Act (Act) and the Act’s Accommodation Module Regulation (Accommodation Module). This module is commonly adopted by schemes in which most owners rent out their units for holiday or other accommodation.

This is an application for interim orders. It arises out of an application by Colin Lawrie, owner of lot 16 (applicant) against the body corporate for Princess Palm (respondent). At the annual general meeting on 14 March 2008 owners resolved to install lighting for the common property tennis court at a cost of $12,040 and to allow the court to be used until 8.30 pm. The applicant seeks orders to stop the installation of lights for the tennis court.

Decision

Investigation and Submissions

Submissions

The main grounds in support of the application, provided on behalf of the applicant, were to the effect that:

• The committee proposed tennis court lights at the instigation of the holders of the management rights;
• Installing lights for the tennis court will result in increased noise and interference with the ocean views of some owners; and
• It was misleading of the committee to compare the proposal with the tennis court lights of the adjacent scheme because the courts with lighting at the adjacent scheme are at the rear adjacent to the road.
  

The body corporate was given an opportunity to provide written submissions. The main submissions were to the effect that:

• A clear majority of owners voted to install tennis court lights;
• Not all units will be equally affected by the installation of lights. Lower floors will always be affected more by activities using the common property than higher floors which is one reason the lower units are cheaper to purchase. However, an assessment of the size, design and positioning of the lights will indicate that any impact is completely reasonable and of minimal significance.
  

All owners were given an opportunity to provide written submissions. Some owners supported the installation of lights referring to the design and positioning of the lights having a limited impact on views and the limited likelihood of a significant addition to noise levels in the area. Other owners expressed concern about possible increased noise and potential interference with views.

Issues for determination

Applicable law

The legislation includes a provision that allows the body corporate to make improvements to the common property. The proposed tennis court lighting is expected to cost $146.80 per lot. This type of improvement could therefore be authorised simply by the passing of an ordinary resolution (Accommodation Module, 112). However, the body corporate is under a general obligation to act reasonably in carrying out its functions and must administer, manage and control the common property and body corporate assets reasonably and for the benefit of owners (Act 94(2), 152(1)).

No irregularities in body corporate decision

I have viewed a copy of the minutes of the annual general meeting on 14 March 2008. There is no evidence of any irregularity in the voting. Further, it should have been fairly obvious to owners what they were voting upon, including that the Princess Palm court was between the building and the beach. The submissions do not satisfy me that any of the explanatory material misled voters.

Body corporate decision not unreasonable

Submissions and photographs show that Princess Palm is a resort style scheme with a significant number of owners let out their units for holiday purposes. Based on the general style of the scheme and the outcome of the vote at the general meeting, I am satisfied that it would be in the interests of a significant number of owners for tennis court lighting to be installed. Provided no owner or group of owners is detrimentally affected by the proposal to an unreasonable extent I would be satisfied that the decision is not unreasonable.

I am satisfied that the installation of light posts will not greatly affect views from any apartment, based on photographs, a diagram of the proposed light post locations, and an indication of the likely light spillage. Obviously some apartments will be affected more than others and some owners will have greater aesthetic concerns than others. However, the submissions do not satisfy me that any owner or group of owners will be so adversely affected that it would be unreasonable for the body corporate to proceed with the majority decision. In short, some owners will be more adversely affected by the light poles than other and I accept that some owners will find the posts unattractive. However, from the objective viewpoint of a person who is not involved with the scheme, the extent to which light poles will interfere with the view will be minor in the context of the panoramic views available from the units. This minor interference must therefore be balanced against the preference expressed by the majority of persons voting.

Further, the applicant has not satisfied me that any increased noise is likely to significantly interfere with the enjoyment of his lot. I accept submissions to the effect that noise from the pool area of the adjacent scheme is likely to be more significant and the submissions that there is generally significant background noise from the adjacent surf.

Therefore, I am not satisfied that it is just and equitable to interfere with the decision of the body corporate to install tennis court lighting.

Order

For these reasons, the application is dismissed.