Lena Lodge [2008] QBCCMCmr 439 (25 November 2008)

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Aberclare Pty Ltd, the owner of Lot 1

I hereby order that the application for an order by Aberclare Pty Ltd, the owner of Lot 1 against the body corporate for Lena Lodge community titles scheme 6312 seeking an order that the garage door remain in place for the safety and protection of owners and occupiers, is dismissed.

I further order that within three months of the date of this order, the owner of Lot 1 must remove the garage door and any associated fixtures and fittings installed on common property on or about 2 May 2006 without Body Corporate authorisation and must repair any part of common property damaged by the installation or the removal of the door and any associated fixtures and fittings as far as is reasonably practicable to the condition it was prior to the installation unless:

Within one month of the date of this order, the owner of Lot 1 submits a motion for consideration of the Body Corporate relating to the installation of the door; and
The Body Corporate authorises the installation in a way prescribed by the Body Corporate and Community Management Act 1997 and the Body Corporate and Community Management (Standard Module) Regulation 2008.

I further order that the Body Corporate must call and hold a general meeting within six weeks of receiving a written motion relating to the installation of the door from the owner of Lot 1 to consider the motion. The Body Corporate may consider any other motion properly submitted.

The scheme
“Lena Lodge” community titles scheme 6312 is subject to the Body Corporate and Community Management Act 1997 (Act) and the Body Corporate and Community Management (Standard Module) Regulation 2008 (Standard Module).

Application
This application dated 14 August 2008 is by Aberclare Pty Ltd, the owner of Lot 1 (Applicant) against the Body Corporate seeking an order that the garage door remain in place for the safety and protection of owners and occupiers.

The Applicant states 4 of the 5 lots in the scheme have hot water systems in their garages with lockable garage doors and that Lot 1’s hot water system is installed in the rear of an open garage on common property. It submits that all plumbing piping runs the length of the garage to the front of the garage. The Applicant says the open garage was used by the public, including homeless or drug users in cold or inclement weather, and that on 2 occasions the hot water system was vandalised resulting in replacement on 1 occasion. It is stated that Peter Murdoch, Director of the Applicant, discovered used syringes in the garage and having undertaken a Workplace Health and Safety certificate, felt immediate action should be taken to protect the Body Corporate and the public by having a door similar to other doors installed. It is stated that he felt action was needed before a general meeting in the interest of safety—there are 3 children residing in the unit above the garage. The Applicant states the garage door was installed by the owner of Lot 1 on 2 May 2006.

The Applicant provided a copy of a letter dated 8 May 2008 from Body Corporate Services (the Body Corporate Manager) stating that it has come to the Body Corporate’s attention that the Applicant has installed a door to the second visitor car space without approval in breach of By-Laws 3, 5 and 8 and that the visitor car space is now being used as a private garage in breach of By-Law 2. The letter requested the door be removed within 30 days, otherwise the Body Corporate will organise the removal at the Applicant’s expense. After a response from the Applicant, a subsequent letter dated 10 July 2008 from the Body Corporate Manager to the Applicant offered a compromise regarding securing the hot water system but maintaining its position with respect to the removal of the garage door.

The Applicant states the Body Corporate does not realise the plumbing system to Lot 1 runs the full length of the garage and that the door provides safety and has no visual impact to the building. The Applicant says there are 4 other open visitor parking spaces with room to provide further outdoor visitor parking.

The Applicant also provided photographs of the scheme land showing 7 garages on the ground floor of the building with 6 of the garage spaces enclosed by garage doors. The Applicant has highlighted the disputed garage door as that enclosing what appears to be a car space and has provided a photograph of the hot water system for Lot 1 in a corner at the rear of this space.

Interim order
On 7 August 2008, committee members—Dominic Vircillo, Graham Upton and Susan Upton—resolved by voting outside a committee meeting to authorise a contractor to remove the garage door installed without authorisation to the common property car space as repeated requests have been made to the owner of Lot 1 to organise the removal which have not been complied with.

When making the application, the Applicant sought an interim order that the contractor engaged to remove the garage door be cancelled.

On 15 August 2008, I made an interim order that pending a final determination of this application, the body corporate for Lena Lodge community titles scheme 6312 shall not proceed with, implement or otherwise act upon the resolution of the committee passed outside a committee meeting and dated 7 August 2008 to remove the garage door installed on the common property car space.

Level A of the plan of subdivision for the scheme (BUP 8992) indicates two areas of common property on the northern side of the building adjacent to a part of Lot 1. The part of Lot 1 on Level B of the plan is above these two areas of common property.

It is apparent from the photographs provided and from the plan that the Applicant has installed the garage door on common property. The door encloses one of the two abovementioned areas of common property. It would seem that the Applicant does not have any special rights in the form of exclusive use of the enclosed area of common property. Given the submissions, the Applicant installed the door to benefit Lot 1 to the extent that the door provided protection to the hot water system servicing Lot 1. The installation of a garage door on common property in these circumstances may constitute an improvement to common property and a lot owner may only make an improvement to common property for the benefit of the owner’s lot with body corporate authorisation under section 114 of the Standard Module. In addition, the enclosure of common property in this way may constitute an owner gaining exclusive use of a part of common property and denying other persons use of common property. In the event an owner makes an improvement to common property without body corporate authority and contrary to the legislation, given its functions and powers, a body corporate is able to pursue the matter against the owner...

It could be argued this dispute has arisen as a consequence of the actions of the Applicant without the authority of the Body Corporate, and that the door should be removed. There is merit to this argument. The Body Corporate is entitled to be concerned that the owner proceeded to install the door without authority...

...The Applicant has argued the door has been installed for two years and that it is principally installed to protect a hot water system. While I appreciate that it could be validly argued the installation of a garage door to protect a hot water system is excessive, I have concluded in the circumstances that the balance of convenience rests with the Applicant and that on an interim basis, the Body Corporate be withheld from having the door removed...

Submissions to the Commissioner
On 18 August 2008, the Commissioner provided a copy of the application to the Body Corporate Manager for distribution to the owner of each lot (excluding the Applicant) and the committee, with an invitation to respond to the matters raised in the application (s 243, Act).

Submissions were made by the Body Corporate Manager on behalf of the committee requesting that an order be made for Lot 1 to remove the garage door and make any necessary repairs to the common property. The Manager stated the Applicant did not advise the Body Corporate of the intention to install the door. It is stated the committee has considered the reasons for the installation of the door and has offered a compromise that, after formal request Lot 1 would be permitted to enclose an area beneath their stairs in Lot 1 to restrict access to the hot water system. The Manager submitted the common property car space should be accessible by all visitors at all times, only Lot 1 has access to the car space as no other lots have keys to the door, there is no exclusive use of this part of common property to Lot 1, and the committee would object to both exclusive use and any formal request to install a garage door. The Manager said the committee consists of all owners except the owner of Lot 1.

The Manager provided a copy of the letter dated 19 May 2008 from the Applicant responding to an earlier letter (a partial copy of this letter was included in the application). In this letter it is stated: there was a major safety issue when the hot water system was vandalised for the second time; there were fears for the Body Corporate should an injury occur as a result of the vandalism exposing the Body Corporate to litigation; the best possible outcome for owners was to restrict access; and the occupier of Lot 1 has an access key.

The Applicant made a written reply to submissions stating that the door was installed without Body Corporate approval but that the door was installed as an immediate response to a safety issue stating that an open undercover area with direct access to the public attracts a certain element of society. The Applicant states as the plumbing has been vandalised, any request to enclose the area below the stairs in the garage should include enclosing the plumbing as well which would restrict parking of a vehicle and have a visual impact on the building. It is submitted that there are 6 visitor car spaces, when only 3 are required by the Brisbane City Council and Town Planning Laws. The Applicant says the plumbing and safety issues that arose could have resulted in a very serious incident, the area should be restricted or locked off as it is a security risk, and the Body Corporate has a duty of care to implement protection for owners, occupiers and users of Lena Lodge. The Applicant states the door was installed for the protection, safety and prevention of the possibility of threatened future litigation against the Body Corporate. The Applicant seeks an order that the Body Corporate validate the installation of the door.

New Regulation
On 30 August 2008, the Standard Module commenced and the Body Corporate and Community Management (Standard Module) Regulation 1997 (Previous Regulation) was repealed. Anything done under the Previous Regulation is not affected by its repeal and the commencement of the Standard Module (s 209-216, Standard Module). The determination of this dispute is not affected by the new regulation (s 20, Acts Interpretation Act 1954). Where necessary, I have stated equivalent provisions of the Standard Module.

Referral to adjudication
On 26 September 2008, the Commissioner made a dispute resolution recommendation under section 248 of the Act referring the dispute to departmental adjudication.

Jurisdiction
An adjudicator may make an order that is just and equitable in the circumstances to resolve a dispute, in the context of a community titles scheme, about a claimed or anticipated contravention of the Act or the community management statement; or the exercise of rights or powers, or the performance of duties, under the Act or the community management statement (s 276(1), Act). An order may require a person to act, or prohibit a person from acting, in a way stated in the order (s 276(2), Act). An adjudicator's order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate (s 284(1), Act).

Decision
In the reasons for making the interim order, I stated the owner of Lot 1 installed the door on common property without the approval of the Body Corporate and the owner has not been given exclusive use to the rights and enjoyment of the part of common property enclosed by the door. These statements are not disputed in the submissions from the parties.

I also stated the installation of the door may constitute an improvement. In the Body Corporate for The Phoenician community titles scheme 27745 v Herme Pty Limited BD2346/05, Judge Durward SC DCJ stated:

‘Improvement’ is defined to include a non-structural change (schedule 6, Act). ‘Change’ includes change by addition (s 36, Acts Interpretation Act 1954). In my view, the installation of the garage door constitutes an improvement.

The Applicant provided a copy of the contractor’s invoice which indicates that the cost for the installation of the door was $1,350. A body corporate may make an improvement of this nature to common property if the improvement is authorised by ordinary resolution in general meeting (s 113, Previous Regulation). A lot owner may make an improvement to common property for the benefit of the owner’s lot costing $1,350 if the improvement is authorised by special resolution of the body corporate (s 114, Previous Regulation). The owner now requires approval by ordinary resolution in general meeting (s 164, Standard Module).

Submissions from the Applicant raise a question as to whether the garage door is for the benefit of Lot 1. Even though the door encloses an area housing the infrastructure providing hot water to Lot 1 and provides protection to this infrastructure, the Applicant has argued that the door provides safety to persons on scheme land, the Body Corporate has a duty of care to protect these persons, and the door prevents possible litigation against the Body Corporate. The Applicant has argued that certain persons were attracted to the open garage, but has not provided any evidence on this point or that the Body Corporate has a duty related to this issue. Given there would seem to be a similar open space next to the now enclosed space, in the absence of specific evidence to the contrary, I do not necessarily agree that the enclosure has enhanced the safety of persons using scheme land. While the infrastructure is treated as common property (s 21, Act), the owner of Lot 1 is responsible to maintain it in good order and condition (s 109(3)(b), Previous Regulation, s 159(3)(b), Standard Module). The Applicant has stated that the infrastructure was damaged on 2 occasions. The owner is responsible to repair the damage. Whether the owner had a right to make a claim against another party for the damage is not a matter for determination in this dispute. There may be circumstances where the Body Corporate may be liable for any such damage. However, I do not consider this possibility necessarily supports a view that the door benefits the Body Corporate.

In my view, the installation benefits Lot 1. It protects the infrastructure which supplies hot water to the Lot. Consequently, the owner required Body Corporate authorisation under section 114 of the Previous Regulation before having the door installed.

The Applicant did not seek Body Corporate approval before the door was installed and has not subsequently sought approval in general meeting. The Applicant is seeking an order that the door remain and that the Body Corporate validate the installation. As the Applicant has not unsuccessfully sought Body Corporate authorisation in the way prescribed by the legislation, there is a question about the existence of a dispute (K.G. Tully & Anor. v The Proprietors The Nelson Body Corporate [2000] QDC 031 [at 3]).

However, I consider the circumstances demonstrate there is a dispute to be resolved and there is jurisdiction under section 276(1) to make a just and equitable order. It is apparent the Applicant has informed the committee of the reasons for the installation, that the committee has considered these reasons and that it has objected to the installation. The Body Corporate Manager has stated that each owner—other than the Applicant—is a member of the committee. The records of the Registrar of Titles show that Domenic Vircillo is the owner of Lot 2 and Graham Upton is the owner of Lots 3 to 5. The record of the committee resolution dated 7 August 2008 indicates that Domenic Vircillo, Graham Upton and Susan Upton voted to force the removal of the door. The submissions made on behalf of the committee indicate committee members have not changed their view with respect to the installation. If the Applicant submitted a motion to ratify the installation in the circumstances stated in the application, it is apparent the request would be unsuccessful.

In the event the owner was unsuccessful, the owner could make an application under the dispute resolution provisions of the Act claiming the opposition to the proposal was unreasonable. If satisfied the body corporate’s decision about a proposal by a lot owner to make improvements on or changes to common property is an unreasonable decision—an adjudicator may make an order requiring the body corporate to reject the proposal or to agree to the proposal or to ratify the proposal on stated terms (schedule 5, clause 17).

In determining whether ... opposition was in the circumstances unreasonable, I do not consider that the “subjective intention” of each of the lot owners who voted in opposition is the appropriate test...Whether the opposition is in the circumstances unreasonable has to be considered “objectively” taking into account all relevant circumstances ... the appropriate test ... is whether opposition to a motion is unreasonable/reasonable when considered in an objective and fair manner in all of the circumstances.

Even though there has not been a vote on this issue in general meeting, it is apparent owners are concerned that the Applicant has effectively annexed part of common property by installing the door. The Body Corporate permitted this part of common property to be used for visitors parking. It cannot be used for this purpose at the moment. The fact there may be ample visitor parking spaces on scheme land is not relevant. The area could also be used or enjoyed by owners or occupiers in a way approved by the Body Corporate.

The door provides opportunity for the owner or occupier of Lot 1 to control the use of the enclosed area. Neither the owner nor the occupier has authority from the Body Corporate to use and enjoy the entire area to the exclusion of other owners. The owner or occupier could do so if for example, the Body Corporate gave exclusive use or a lease to the owner. An exclusive use by-law could be made by resolution without dissent of the Body Corporate (s 172, Act). A lease for more than 3 years also requires a resolution without dissent (s 111, Previous Regulation; s 161, Standard Module). Given persons connected with Lot 1 seem to be the only persons able to access the common property behind the door, an owner could reasonably oppose the installation on the basis that the installation gives the owner or occupier use or enjoyment of a part of common property to the exclusion of other owners, occupiers or their visitors without proper Body Corporate authority.

If the Applicant had proper authority for making the improvement, the Applicant could be responsible for the maintenance of the door (s 114(4), Previous Regulation, s 164(4), Standard Module). If the Applicant had special rights over the common property enclosed by the door, the Applicant could be responsible for the maintenance of this area (s 123, Previous Regulation, s 173, Standard Module). In the absence of specific authority, the Body Corporate remains responsible for the management of the common property affected by the installation of the door.

As it is, it would seem to be difficult for the Body Corporate to control, manage and administer the common property (s 152, Act) and to maintain common property in good condition (s 109, Previous Regulation; s 159, Standard Module) while the door remains in place, especially when it does not have access to the enclosed part of common property.

Further, the Applicant has made statements about the application of workplace, health and safety rules on the basis of a relevant certificate. However, the Applicant has not provided evidence that these rules would necessitate the enclosure of a space such as that enclosed in this case. The Applicant has an opinion about the safety aspects relating to the enclosure. Other owners disagree. There is nothing to suggest that the Applicant’s view should prevail, particularly when the Applicant has restricted access to a part of common property and has not pointed to a legislative provision to support the installation. The onus rested with the Applicant to demonstrate the claims being made.

The Applicant took a risk making an unauthorised improvement to common property. The Applicant is entitled to be concerned about damage to the infrastructure and about the consequences of that damage including for example, the disruption of the supply of hot water to Lot 1. However, I do not consider this concern warrants annexing part of common property in the way which has occurred. The Body Corporate provided the Applicant with one alternative to protect the infrastructure. There may be other alternatives. Nothing has been presented to demonstrate that all reasonable alternatives have been explored.

In these circumstances, I consider there is a reasonable basis for opposing a request from the Applicant to be authorised to make the improvement. For these reasons, I have decided not to validate the improvement. The outcome sought is dismissed.

As the Applicant has not properly submitted a proposal to the Body Corporate, I have not ordered that the door be removed immediately. I have provided an opportunity for the Applicant to submit a proposal to the Body Corporate. The Applicant is aware of the opinion of other Body Corporate members in the current circumstances. The Body Corporate Manager made submissions that the door should be removed and the affected common property repaired. The Applicant has inspected and responded to the submissions. Therefore, I consider there is a just and equitable basis to include provision in the order that the door must be removed within three months of the date of this order if the Applicant does not obtain proper Body Corporate authorisation relating to the door remaining in its present position. I have included provision in the order to enable a general meeting to be held should the owner submit a relevant motion. If the door is removed, the Applicant must reinstate the common property damaged by the installation and the removal as far as is reasonably practicable to the condition it was prior to the installation.

Number of Scheme:	6312
Name of Scheme:	Lena Lodge
Address of Scheme:	52 Buckland Road NUNDAH QLD 4012

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Lena Lodge [2008] QBCCMCmr 439 (25 November 2008)