1 Holman Street [2008] QBCCMCmr 93 (13 March 2008)

Number of Scheme:	31236
Name of Scheme:	1 Holman Street
Address of Scheme:	1 Holman Street KANGAROO POINT QLD 4169

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

I hereby order that, within one month, Frank Shipman owner of lot 108 (respondent) must remove the blinds that are the subject of this application and were installed on the awning in front of his unit in contravention of the by-laws for the scheme.

1 Holman Street Community Titles Scheme (1 Holman Street) is a 50 lot scheme under the Body Corporate and Community Management Act 1997 (Act) and the Act’s Accommodation Module Regulation (Accommodation Module). Lot boundaries are designated under a building format plan.

This application is by the body corporate for 1 Holman Street (applicant) seeking orders against Frank Shipman, owner of lot 108 (respondent). The body corporate is seeking the removal of external blinds alleged to have been installed for lot 108 contrary to the by-laws and without approval.

The main grounds in support of the application, provided on behalf of the body corporate, were to the effect that the respondent has installed external blinds at lot 108 without seeking approval from the committee and that these blinds contravene the by-laws.

The respondent was given an opportunity to provide a written submission but has not made any submission.

All owners were also given an opportunity to provide written submissions. Some owners supported the application for reasons including the architectural integrity of the building being a reason for purchasing a unit at 1 Holman Street and that external blinds erected by individual unit owners degrade the appearance of the building. It is submitted that no owner should be able to change the external appearance of their unit unless approved by the body corporate through the proper legal process. However, submissions from other owners raise concerns about a lack of privacy and need for protection from the sun for villa owners. It is submitted that a number of other villa owners wish to install blinds of an identical colour and style to the blinds installed by the respondent.

The body corporate committee has responded to the submissions by stating that the 1 Holman Street complex is made up of eight villas and forty-two apartments, all facing generally a north easterly direction. It is submitted that submissions in support of the blinds installed by the respondent are unfounded. In particular, it is submitted that the villas have more protection from the morning sun than the apartments, including an extra awning in front of the balcony area and individual hedges at the front of their courtyards for privacy. It is also submitted that owners are entitled to install appropriate curtains and blinds inside their villas to reduce the effects of the morning sun.

I reviewed a copy of registered plan for 1 Holman Street to clarify the position of the disputed blinds in light of the photographs provided in the submissions. I also reviewed the by-laws in the most recent community management statements for the scheme. Otherwise, the above submissions dealt satisfactorily with the issues raised.

The Act gives the owners of units in a scheme the power to vote on what by-laws will apply to their scheme. All owners and occupiers are obliged to comply with registered by-laws, unless or until the owners vote to modify or remove a particular by-law (Act, 59). Modifications to the by-laws can be made by special resolution (Act, 62(3)) and take effect on the recording of the modified by-laws by the registrar of titles (Act, 179).

The body corporate has a duty to enforce the by-laws (Act 94(1)). Rights of individuals are protected to the extent that the body corporate is required to act reasonably in enforcing the by-laws (Act 94(2)). The legislation generally provides for self-resolution of by-law disputes by requiring that the body corporate attempt to resolve a contravention by issuing a by-law notice before making an application to this office (Act, 184). If a person is contravening a by-law and it is likely the contravention will continue the body corporate may issue a continuing contravention notice requiring the person to remedy the contravention. This notice must allow a reasonable period in which the person must remedy the contravention (Act, 182). Alternatively, if a person has contravened a by-law and it is likely the contravention will be repeated the body corporate may issue a future contravention notice requiring the person not to repeat the contravention. A future contravention notice is effective for three months or a shorter period mentioned in the notice (Act, 183).

1 Holman Street has a number of by-laws, of which the body corporate is presently seeking to enforce by-laws 3, 10 and 12. The relevant parts of these by-laws, as shown in a community management statement recorded from 2 July 2003 until 15 January 2008, were as follows:

No structural alterations will be made to any Lot (including any alteration to gas, water or electrical installations or work for the purpose of enclosing in any manner whatsoever the balcony, if any, of any Lot and including the installation of any air-conditioning system). An Owner or Occupier of a Lot must not in any way alter the exterior appearance of the Lot, nor cause to be constructed or placed upon any part of the Lot which can be viewed from outside the Lot any materials or items without the prior written consent of the Committee.

No window will be covered with aluminium foil or similar reflective material or tinted and no shutters, awnings or other window cover shall be affixed externally to any building or visible from the exterior of the building. With respect to security screens ...only security screens which look like an insect screen are permitted ...

Subject to by-law 35 (construction/Sale of Lots), an Owner or Occupier of a Lot must not do anything to vary the external appearance of the Lot or vary the Common Property without the prior written consent of the Committee.

From 15 January, a new community management statement was recorded. By-laws 3, 10 and 12 are the same under this new community management statement except that the words "cause to be constructed or placed upon any part of the Lot which can be viewed from outside the Lot any materials or" have been omitted from by-law 3. It seems that this omission may have been inadvertent but it is not a matter of importance in terms of the present application.

I am satisfied from the submissions, photographs and plans that the respondent has had blinds installed that can effectively enclose part of the patio area on the eastern side of his unit. From the photographs, these blinds appear to be similar to metal roller doors that can be rolled up and down to either partially shelter or fully enclose that part of the respondent’s patio. The blinds are attached to an existing awning structure on the respondent’s lot.

I am satisfied the respondent had the blinds installed before July 2007 and that the blinds were still installed at the time the present application was lodged. While it is not necessarily relevant to a determination of the present dispute, I consider that the blinds match quite well with the rest of the building in terms of colour and general appearance. There is some argument that the Villa lots have special needs for protection from the morning sun and special needs of privacy. However, I am not satisfied that there are any special circumstances that would mean that screens or blinds would be a practical necessity. For example, an occupier may simply wish to avoid using the outside area at certain times and install curtains to protect the interior.

I accept submissions, which were not disputed, that the respondent had the blinds installed without consent of the committee and note the minutes of the committee meeting of 27 February 2007 approve the installation of a barbeque but "resolved not to approve the installation of screens on any Lot due to the change of appearance of the Lot".

Before lodging an application alleging a by-law contravention, the body corporate normally has to serve a contravention notice on the respondent and give them an opportunity to rectify any alleged contravention. The body corporate has provided a copy of a Notice of Continuing Contravention dated 16 July 2007. This notice is addressed to the respondent and alleges that he has contravened by-laws 3, 10 and 12 by installing external blinds without prior written consent of the committee. The notice does not specify an exact period in which the respondent was required to cease the contravention but I am satisfied that the general words included on the form, being "7 days or such other shorter or longer period as is reasonable in the circumstances" would apply. In the circumstances I am satisfied that the body corporate issued a proper Notice of Continuing Contravention to the respondent. I note that this notice appears to have been sent to the respondent at his unit rather than his address for service as recorded on the roll. However, correspondence and file notes associated with applications to this office indicate that the respondent is aware of the dispute and has chosen not to respond or comply with the body corporate’s request. I consider the present application based on the notice dated 16 July 2007 was properly brought.

The next question to determine is whether, as a matter of law, the respondent has contravened the by-laws for 1 Holman Street.

A community management statement is binding on all owners and occupiers as if they had entered into mutual covenants to observe its provisions (Act, 59). There is some question regarding whether by-laws are delegated legislation or statutory contracts. However, either way, by-laws should be interpreted objectively by the meaning they would convey to a reasonable person.[1] Further, by-laws should ordinarily be interpreted in a manner consistent with its statutory context and caution should be exercised in going beyond the language of the by-law and its statutory context.[2]

I have some concerns that the by-laws are not drafted as clearly as they could be. By-law 3 has the heading "General Appearance of Lots" but the first sentence of the by-law appears to absolutely prohibit any structural alterations regardless of whether or not it affects the external appearance of the lot. However, there is a specific by-law allowing for structural alterations to the interior of lots with the prior written approval of the committee.[3] Further, there may be some argument whether the blinds are "structural alterations" or "work for the purpose of enclosing in any manner whatsoever the balcony", including whether the area concerned is a "balcony". Further, there are questions whether the second sentence of the by-law is effective to prohibit alterations to the external appearance of the lot without prior written consent of the committee. On balance, I am satisfied that the respondent has altered the exterior appearance of his lot without the prior written consent of the committee and that this is a contravention of by-law 3.

The application of by-law 10 is also not completely clear in the circumstances. The evidence provided by the applicants fails to satisfy me that the blinds installed by the respondent actually cover windows or fall within the ordinary meaning of "shutters, awnings or other window cover". Further, I am not satisfied these blinds are "security screens". Therefore, I conclude that by-law 10 does not apply to the present circumstances.

By-law 12 is, however, clearly of application in the present circumstances. By-law 35 is referenced by by-law 10 but by-law 35 applies for the benefit of the original owner rather than the respondent. The relevant part of by-law 12 therefore reads "an Owner or Occupier of a Lot must not do anything to vary the external appearance of the Lot or vary the Common Property without the prior written consent of the Committee". I am satisfied that the respondent has varied the external appearance of his lot without the prior written consent of the committee by allowing for the installation of the blinds referred to above. Based on this contravention of by-law 12 alone, the body corporate would appear entitled to an order that the respondent remove the external blinds.

An adjudicator is required to make and order that is just and equitable in the circumstances to resolve a dispute (Act, 276). Despite my conclusion that the applicant has contravened the by-laws, there may be special circumstances that justify allowing the respondent to retain the blinds. For example, it may be unreasonable in the circumstances for the committee to refuse permission to keep the blinds, or the respondent may be able to make changes to the blinds that satisfy the committee the blinds should be approved.

In this instance, the submissions indicate that a number of owners of units similar to the respondents like the design of the respondent’s blinds and may wish to install similar blinds. There are submissions to the effect that these units lack privacy and protection from the sun and that the body corporate should approve a uniform design for these owners to install.

After reviewing these submissions, and particularly photographs and submission provided by the body corporate committee in response, I am not satisfied that it is unreasonable for the committee to refuse permission to install blinds similar to the respondent’s blinds. This is particularly due to concerns raised in submissions about the undesirability of altering the external appearance of the scheme and a conclusion that screens or blinds are not a practical necessity for privacy or protection from the morning sun. I also note that by-law 45 provides that, despite anything else in the by-laws, "balconies and terraces of any Lot are to remain unenclosed and there are to be no shutters, blinds or similar structures on balconies and terraces". This by-law would appear to actually prevent the installation of blinds similar to the respondents even if the committee were minded to approve the design.

In conclusion, I am satisfied it is just and equitable to require the respondent to remove the blinds that he has had installed in contravention of the by-laws. If sufficient owners wish to install similar blinds then they may wish to propose an amendment to the by-laws and enter into discussions about the type of blinds or other protection that owners will find acceptable.

[1] The Owners of Strata Plan No 3397 v Tate [2007] NSWCA 207, Mason P McColl JA Harrison J, 16 August 2007 at paragraph 71.
[2] Ibid.
[3] By-law 41.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

1 Holman Street [2008] QBCCMCmr 93 (13 March 2008)