Tina [2009] QBCCMCmr 20 (23 January 2009)

Last Updated: 19 February 2009

REFERENCE: 0054-2009

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	33290
Name of Scheme:	Tina
Address of Scheme:	23 Goldcrest Drive UPPER COOMERA QLD 4209

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

Karen Warren, the Owner(s) of lot 2

I hereby order that the application for interim orders is dismissed. The application for final orders remains outstanding. There will be an opportunity for persons likely to be affected by any final orders to provide submissions regarding the application for final orders in due course.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0054-2009

“Tina” CTS 33290

Interim Application

Tina Community Titles Scheme (Tina) is a 2 lot scheme under the Body Corporate and Community Management Act (Act) and the Act’s Small Schemes Module Regulation (Small Schemes).

This is an application for interim orders. It arises out of an application by Karen Warren, owner of lot 2 (applicant) against Stephen Wallace and Barbara, owner and occupiers of lot 1 (respondents).

Interim Orders Sought

The applicant seeks an interim order to require the respondents to stop building a deck on their exclusive use area adjacent to her lot. This interim order would operate pending a final determination at which final orders could be considered relating to whether the deck should be reduced in size or repositioned.

Decision

Urgent interim relief

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 (Act, 279). Further, any orders granted must be just and equitable in the circumstances (Act, 276).

In determining whether it is just and equitable to grant interim relief it is relevant to briefly consider whether the application raises any serious questions for final determination.

It is also relevant to consider whether any inconvenience likely to result from the interim order is outweighed by the potential detriment alleged in the application. Any evidence that an interim order is necessary to prevent serious or irreparable harm will be significant.

Serious question to be determined

The applicant says that the respondents are having a deck built on their exclusive use area, against her wishes. Concerns are expressed about the size of the deck, the extent to which it extends towards her unit, the closeness to local council water pipes, the change to the external appearance of their lot, and the likelihood of additional noise.

A submission from Stephen Wallace is to the effect that he decided to put a deck over the grassed area because it was unusable due to biting ants. Further, that he considers the deck will only enhance the area and does not cover the water pipes.

The legislation provides that improvements to exclusive use areas must be authorised by the exclusive use by-law or by the body corporate (Small Schemes, 108). The submissions indicate that the respondents’ deck has not been approved. Further, exclusive use areas are still technically common property and the submissions raise questions about contravention of by-laws relating to damage to lawns, damage to common property, and changes to the appearance of a lot. Questions may also arise regarding whether the erection of the deck in this position will result in a nuisance being caused to the neighbouring lot (Act, 167).

On the other hand, the body corporate is required to act reasonably in making decisions and administering common property for the benefit of owners (Act 95, 152). Questions may arise as to whether it is unreasonable for the applicant to refuse to give the respondents permission to build a deck on their own exclusive use area.

Inconvenience from an interim order

The applicant has established some justification for an interim order prohibiting further work on the deck pending a final determination of the dispute.

However, it is possible that the ultimate determination of the dispute may involve granting the respondents permission to build the deck. The deck is already partially completed, the respondents have provided a copy of a signed contract with Designer Decks Pty Ltd (Designer Decks) to build the deck, and enquiries have indicated that the framing of the deck is substantially complete with the entire deck due to be finished in the next few days. The applicant has not satisfied me that she will suffer serious or irreparable harm if the respondents are allowed to complete the deck. There is nothing to suggest that the deck cannot be subsequently removed if that becomes necessary at a later date.

In these circumstances, I am not satisfied that it is appropriate to grant an interim order preventing completion of the deck. Such an order may have adverse financial consequences for the respondents and a partially complete deck may also result in some safety hazards. I will therefore dismiss the application for an interim order. However, the respondents should be aware that a final order may require them to alter or remove the deck. They may therefore wish to consider whether they voluntarily make some arrangement with Designer Decks that will allow the deck to be left in an unfinished but safe state that will minimise their costs if they are ultimately ordered to alter or remove the deck.

Order

For these reasons, the application is dismissed. It seems likely that it will be in the best interests of both parties to discuss the application and see if they can mutually agree on some arrangements or modifications that satisfy their joint interests. This office offers a conciliation service that may be of assistance in that regard. Otherwise, if no agreement can be reached, a final order will be made in due course.