Livingstonia [2008] QBCCMCmr 379 (15 October 2008)

Number of Scheme:	GTP 1712
Name of Scheme:	Livingstonia
Address of Scheme:	Sanctuary Cove Queensland

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

I hereby order that the application for “approval to allow a balcony roof to be installed to allow fitting of a Safety Screen around the balcony of Lot 30 Livingstonia, at the applicant’s cost...” is dismissed.

This is an application dated 6th June 2008 and amended on 24th June 2008 by Ainsley Hewitt, (the Applicant) co-owner of lot 30 (unit 5103) in a residential parcel called “Livingstonia”, against the body corporate for “Livingstonia” Group Title Plan 1712, (the Respondent) a member of the Sanctuary Cove Principal Body Corporate, for an order that the Applicant is allowed to install a balcony roof and safety screen at Lot 30 at the cost of the Applicant.

The application is signed by Susan Minnekeer (Ms Minnekeer) in her role as secretary and treasurer of Livingstonia Body Corporate, and on the authorisation of the Applicant by letter dated 16th June 2008.

“Livingstonia” is a group title plan established as part of Sanctuary Cove Resort which is governed by the Sanctuary Cove Resort Act 1985, (a “specified Act” under the Body Corporate and Community Management Act 1997) and the Building Units and Group Titles Act 1980 (BUGTA) as amended. By section 23(3)(b) Sanctuary Cove Resort Act 1985, “Livingstonia” body corporate is a member of the Sanctuary Cove Principal Body Corporate.

“Livingstonia” GTP 1712 is divided into nine re-subdivisions which are each created as Building Units Plans. Lot 30 is part of Building Units Plan of re-subdivision 8143.

Section 104A of the Sanctuary Cove Resort Act relates to disputes and provides that “[u]nless otherwise provided in this Act, a dispute about the operation of this Act or the rights and obligations of persons under this Act may be dealt with under the Building Units and Group Titles Act 1980, part 5”. Part 5 of BUGTA deals with disputes. However, Part 5 of BUGTA does not define “dispute” by reference to the parties to a dispute or by reference to the sorts of dispute that may be referred to this Office. The “persons” having rights and obligations, referred to at section 104A of the Sanctuary Cove Resort Act are not defined.

“Where, pursuant to an application by a proprietor for an order under this section, the referee considers that the body corporate for the parcel to which the application relates has
unreasonably refused to consent to a proposal by that proprietor—

(b) to have carried out repairs to any damage to the common property or any other property of the body corporate;
the referee may make an order that the body corporate consent to the proposal.”

It appears to me that if an owner of a lot in a residential body corporate such as Livingstonia, is unreasonably refused permission to effect improvements to common property, by the body corporate, then the dispute may be dealt with by this Office.

The Applicant says that in January 2008, his wife, on the balcony of their home at Lot 30, was very narrowly missed being struck on the head by a golf ball driven at high velocity from the first tee of the adjacent Palms Golf Course. This was dangerous and very distressing for his wife. The ball knocked over a chair and bounced around the balcony making a lot of noise. He would like to erect a safety screen which requires a balcony roof, and which he will build at his own expense. He says that this is a safety issue as it may happen again.

On 29th January 2008 he wrote to Ms Minnekeer and said –
“ this has got to be the last incident of this type that can be allowed to occur.”
The Applicant’s wife reported the incident to Security, and neighbours were concerned for her health and safety after the event.

Previously, on 28th February 2006, at an extraordinary general meeting of the Respondent body corporate, a motion was put by the Livingstonia committee to give authorisation to the Principal Body Corporate through the Architectural Review Committee to approve any application from Livingstonia owners to erect patio/balcony roofs, provided they complied with a particular specification attached to the motion. The motion was put as requiring a resolution without dissent, and the vote was 7 – 3 in favour but, because there were dissenting votes, was recorded as lost.

The motion was again put by the committee to an extraordinary general meeting of Livingstonia body corporate on 11th July 2006, this time with a different specification, and again a resolution without dissent was required. The voting this time was 7 – 2 in favour, but was also not carried.

Following a committee meeting on 31st January 2008, the Respondent committee wrote to the Applicant on 1st February 2008, and said that it had considered the Applicant’s request for a “Florida Room” but that the committee had decided to “uphold the decision” of the EGM of 28th February 2006.

At an extraordinary general meeting held on 29th April 2008, a motion put by the Applicant “to consider section 37A BUGTA” and to apply to the referee to allow a safety screen to be installed was supported by 45-2 votes.

In accordance with section 73(1)(c) BUGTA, submissions were invited from all lot owners.

Paul Todd, owner of Lot 81 says that he does not know the Applicant, but has played the first tee on the golf course many times and that the Applicant’s balcony is “definitely in the firing line from golf balls been hit astray...” He advises precautions are taken as it could happen again. He also says that there have been many other requests for screened enclosures which have been passed by the Respondent body corporate. He indicates that this is a decision given by the Respondent committee.

William and Elizabeth Rodgers, owners of unit 5095, believe that a safety screen is a necessity for the Applicant’s lot, because of golf balls and mosquitoes.

Murray and Anne Warne, owners of unit 5101, say that they live next door, and on a number of occasions over the last few years they have witnessed golf balls landing on the Applicant’s balcony which is positioned approximately 6 metres forward of their own balcony, and closer to the golf course. They say that it is fortunate that to date no-one has been injured. Wind conditions and the proximity of the balcony to the course make it “susceptible to errant golf shots.”

Ray Hille of Wickerleaf Pty Ltd, owner of unit 5081, says he lives near the Applicant and he believes that there is a “significant risk” that the Applicant and his wife could be struck by mis-hit golf balls.

John Lowe, owner of unit 5115, says that he has had two golf balls through his windows since Christmas 2007, so he has changed the glass in the windows fronting the fairway to laminated safety glass. He notes that other structures have been added to various properties in the past. He supports a construction in sympathy with the principal structure and of good quality, and suggests Crimp mesh or similar material, which he says he has installed in his own property, and its benefit is that it cannot be detected from a distance.

Philip Hodgson, owner, says that the matter of balconies requires a proper discussion. He says that Sanctuary Cove Body Corporate Services has a conflict of interest since it is also body corporate manager for the Principal Body Corporate which is responsible for the golf course. He points out that other units have been allowed to build screens, and the Respondent body corporate has procured a report about the most suitable type of screening and enclosures. The Applicant should have a right to build a cover, or the Principal Body Corporate should meet its obligation to protect residents from the activities which it manages.

There was no submission from the Respondent, although it is noted that the Respondent made the application on behalf of, and with the consent of the Applicant.

I sought further information from the Respondent body corporate and from the Applicant, and on 4th September 2008, Ms Minnekeer, who is also a representative of the body corporate manager for the Principal Body Corporate, supplied me with a copy of the original architect’s drawing proposed by the Applicant entitled “proposed patio” and dated May 2007, and a copy of a letter dated 17th November 2007 from the Applicant to the body corporate manager. These documents had not been previously received as part of the application.

Further Ms Minnekeer advised that the Applicant had been “granted permission to have a screen” by a general meeting of the Respondent body corporate on 29th April 2008.

In this matter, the Applicant, through the secretary and treasurer for the Respondent body corporate “Livingstonia”, seeks to be allowed, at his own cost, to build a balcony roof and safety screen so that it encloses the balcony of Lot 30 (5103 St Andrews Terrace). The Applicant’s wife has been narrowly missed by being struck on the head by a golf ball from the adjacent golf course, and this incident, which occurred in January 2008, is not disputed by the body corporate. It must have been an alarming experience and to have given the Applicant and his wife grave concerns about going onto their balcony, thus curtailing the enjoyment of their home.

There are six submissions supporting the application, and I do not doubt that the Applicant’s balcony is within the firing line of the golf course and is vulnerable to damage.

Effecting improvements to common property for the benefit of an owner’s lot
It is not apparently disputed that the roof fascias of the Applicant’s existing open balcony, or the part of the building to which the proposed balcony roof will be fixed, is common property. “Livingstonia” is a Building Unit Plan (BUP) now known as a Building Format Plan, wherein a lot is defined at section 49C(4) Land Title Act 1994 as having the boundary located in the centre of the floor, wall or ceiling between another lot or common property. Section 6 BUGTA requires that BUGTA be read and construed with the Land Title Act 1994.

If the Applicant wished to make an improvement to common property, then section 37A BUGTA is relevant. Section 37A BUGTA sets out the process by which a lot owner might seek to be allowed to make improvements to common property, and this can only be approved by a resolution without dissent at a general meeting of the body corporate. The request must be made by the owner of the lot. The body corporate may impose such terms as it considers appropriate.

Section 37A states as follows -
37A Improvement etc. to common property by proprietor of lot

(1) A body corporate may, upon such terms as it considers appropriate, at the request of a proprietor of a lot, by resolution without dissent, authorise the proprietor of the lot to effect improvements (including erect or install fixtures and fittings) in or upon the common property for the benefit of that proprietor.

(2) The proprietor for the time being of a lot in respect of which any improvement in or upon the common property has been effected pursuant to an authority granted under subsection (1 ) shall, unless excused by the body corporate, be responsible for the performance of the duty of the body corporate under section 37(1)(c) in respect of the improvement.

There is still some doubt in my mind however, having asked the question of the Applicant, as to whether the proposal is an improvement to common property. If the proposal does not touch on common property, any proprietor will still require the consent of the Principal Body Corporate to make structural alterations or improvements, as set out in the Development Control By-laws. I consider these below.

Since BUGTA does not dovetail neatly into the provisions of the Sanctuary Cove Resort Act, and it is only the dispute resolution provisions of BUGTA which have been adopted by the Sanctuary Cove Resort Act, it is not clear from reading section 37A BUGTA whether permission to make improvements must be sought from the body corporate of the residential zone BUP (the Respondent “Livingstonia”) or from the Principal Body Corporate, or both. However, section 37A BUGTA only covers the situation where the request is made by “a proprietor of a lot”, and since a proprietor is given no opportunity to put motions to general meetings of the Principal Body Corporate, not being a member of the Principal Body Corporate, section 37A can only apply to a process between a proprietor and the residential body corporate (Livingstonia.)

On 17th November 2007, the Applicant pointed out to the body corporate manager by letter that his home was vulnerable to being struck by golf balls and that out of six apartments in the vicinity, four had “safety screens in the form of “Florida Rooms.” He also advised that a previous letter had been written about this subject and that agreement in principle had been reached with one Helen Howard, although he understood that his original letter had been mislaid. There is no further evidence about this letter or the agreement in principle.

However, the Applicant’s design was for an “exception to the other safety screens” in view of Lot 30 being further towards the golf course than other units. The drawing submitted to the body corporate manager by the Applicant and his wife was for a “proposed patio” with a roof extending out from under the roof of the unit, supported by aluminium posts fixed to the concrete deck inside the handrail. The balcony enclosure roof will be fixed under the unit roof and there is provision for gutters and water drainage.

After another close shave in January 2008, the Applicant again wrote to the body corporate manager. On 1st February 2008, the committee of the Respondent body corporate turned down the Applicant’s request “for a Florida Room” relying on the failure of a motion put to a general meeting of the Respondent body corporate previously on 28th February 2006.

Power of committee
I have several concerns about this process. Firstly, the committee of the Respondent body corporate does not have the power to make a decision in consideration of an application made pursuant to section 37A BUGTA. That is a decision which can only be made by the body corporate at a general meeting because it requires a resolution without dissent.

The committee might however, give written consent to “alter the external appearance of a lot or part of the Common Property” in accordance with By-Law 18(a)(iii) of Livingstonia by-laws. In my view this by-law is not in itself sufficient, following as it does prohibitions on the hanging of washing, and the displaying of signs, to allow the committee to allow structures to be affixed to common property, even though such structure would also alter the external appearance of a lot. If the structure is not an improvement to common property, but simply to be built within the Applicant’s lot without touching common property, then consideration under this by-law is within the province of the committee.

Secondly, the decision made by the body corporate at a general meeting on 28th February 2006 on which the committee relied appears to me not to have required a resolution without dissent since it is not a motion put pursuant to section 37A BUGTA.

On 28th February 2006, (and again on 11th July 2006) the committee of the Respondent Livingstonia proposed a motion to a Livingstonia body corporate general meeting. It was that the Livingstonia body corporate –

“gives authorisation to the Principal Body Corporate through the Architectural Review Committee to approve any application from owners in the Livingstonia body corporate to erect patio/balcony roofs to their lot (being in part common property)....”
provided that certain specifications were met.

The motion was not “at the request of a proprietor” and was not about improvements to specific parts of the common property for the benefit of particular lots, that is, the Respondent body corporate was not on 28th February 2006 ( or on 11th July 2006) looking at a proposal which each lot owner who was voting could assess on its merits. The motions appeared to be advancing a general policy on the part of the Respondent Body Corporate to guarantee or underwrite its approval whenever an application was made to the Principal Body Corporate by any “Livingstonia owner” in respect of patios and/or balcony roofs, if certain conditions were met. As such, it was merely a resolution that if certain specifications were met, then the body corporate of Livingstonia would support the owner’s application to the Principal Body Corporate. It was up to the Principal Body Corporate to grant another level of approval, in accordance with the Development Control By-laws.

I invited the Respondent body corporate to make submissions on my view that the motions of 28th February 2006 and 11th July 2006 did not require a resolution without dissent since they were merely seeking an approval of body corporate policy. The body corporate manager responded that body corporate lawyers had advised to proceed in this way. However the copy of the accompanying letter from lawyers McCullogh Robertson merely points out that where a lot owner wishes to effect improvements to common property for the benefit of his lot, then a resolution without dissent is required. There is no doubt that this is true, but that is not what the motions concerned.

Finally, the view taken by the committee, even if it had the power, was unreasonable since no reasons were given to the Applicant about the merits of his particular application, or how he could make his design more acceptable. Certainly, in any event, the committee would not be bound by any previous decision, and the matter would again be open to debate.

Development Control By-laws
The Sanctuary Cove Resort Act 1985 empowers the Principal Body Corporate to make Development Control By-laws to regulate the quality of design and development within residential zones such as Livingstonia (Section 95(1) Sanctuary Cove Resort Act.) Such by-laws bind the Principal Body Corporate, each member of the Principal Body Corporate, and each registered proprietor within the residential zones. (Section 95(7) Sanctuary Cove Resort Act.).

The Principal Body Corporate may allow minor non-compliance with a Development Control By-law at the request in writing of a member of the Principal Body Corporate (eg. Livingstonia.) (Section 96 Sanctuary Cove Resort Act.)

I understand from the body corporate manager who provided further information about this on 25th August 2008, that a “Florida Room” is interchangeable with a “screened enclosure” such as referred to in the Development Control By-laws at By-law 2.14.1.

However, the “screened enclosures” described at By-law 2.14.1 relate to those in “exterior amenity areas” for example, pools and courtyards. By-law 2.14.1 does not define a “screened enclosure” and it seems to me that it does not deal with the very ordinary situation where a lot owner wishes to enclose his or her balcony. The screened enclosures seem to be separate structures to be accorded the status of a class 10 building in certain circumstances, and the by-law addresses the problem of keeping such enclosures within the building line.

By-Law 2.18 of the Development Control By-Laws sets out general restrictions on the erection of blinds and awnings, the fitting of mirrored or reflective glass, hanging clothes and erecting signs, but this by-law also does not seem to be appropriate to the case of enclosing or screening a balcony.

By-law 3.2.2(b) and 3.2.2(c) of the Development Control By-laws require that no “construction or alteration of any improvements on any land in the residential zones... be commenced until the plans and specifications showing the nature, kind, shape, height, width, colour, materials and location of the proposed construction or alteration of the structures or improvements.... have been submitted to the Principal Body Corporate; and the Principal Body Corporate has approved the plans and specifications....” It is the Architectural Review Committee of the Principal Body Corporate which reports back to the Principal Body Corporate which in turn provides written notice to the applicant. The applicant has a right of appeal if the application is not approved.

It would be this type of application that the Respondent body corporate tried to make uniform by its motions on 28th February 2006 and 11th July 2006.

“Please note that at the EGM of Livingstonia Body Corporate on 29th April 2008 motion 14 was passed granting [the Applicant] a safety screen in accordance with section 37A(2)”

The application also says that the request for a balcony roof and safety screen have been “ratified” at this EGM. I have some difficulty with this interpretation since there was not a resolution by dissent as required by section 37A BUGTA. (The motion was stated to require an ordinary resolution and there is no mention of an improvement to common property;) and the wording of motion 14 seems to be only about making an application to this Office. The wording, as proposed by the Applicant was as follows –

“the owners of Lot 30 request that the Livingstonia Body Corporate consider BUGTA s.37A(2) in view of the extreme health and safety risks involved in the situation of this unit to the Golf Course and thereby apply to the referee to allow a safety screen to be installed round the balcony at our own cost.”

It seems to me that the Applicant is asking the body corporate to make an application to this Office on his behalf, which is eventually what transpired.

The outcome sought by the Applicant is that he is allowed to install a balcony roof so that he can install a safety screen at Lot 30 at his own cost. In order to make such an application under section 79 BUGTA, which concerns an improvement to common property, the Applicant must first demonstrate that he has proposed a motion to a general meeting of the Respondent body corporate, and that the body corporate, and not the committee, has unreasonably refused the application, that is, that the dissenting votes cast were unreasonable.

There is no evidence that the Applicant has put a motion to a general meeting of the Respondent body corporate for him to be allowed to build the roof and enclosure as designed, and thus to make improvements to common property. There is also no evidence about the dissenting voters in 2006, if they have any relevance at all to the Applicant’s proposal.

If the proposal is not an improvement to common property, then I am of the view, for what it’s worth, that the committee’s refusal without more, was unreasonable, and that the design should be submitted to the Principal Body Corporate in accordance with By-law 3.2.2 which also allows an applicant the right of appeal.

I have some sympathy for the Applicant and his wife, and I am of the view that if he puts a motion to a general meeting of the Respondent body corporate for the construction of a balcony roof and safety screen which is an improvement to common property, and the motion fails because of one or two dissenting votes and otherwise overwhelming support, that the circumstances of his family’s safety, and the fact that there are several other screened balconies in the complex, would make it not unreasonable for such a result to be overturned on application to this Office. Of course, such a result cannot be guaranteed, and submissions would be invited from all lot owners and the body corporate. However, on the strength of support accompanying this application, had section 37A BUGTA been complied with already, then I would not hesitate in allowing this application, on such conditions as to design and appearance as was deemed appropriate.

Unfortunately, until section 37A BUGTA has been complied with, I do not have jurisdiction in this matter, since there is no dispute to trigger section 79 BUGTA.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Livingstonia [2008] QBCCMCmr 379 (15 October 2008)