Jack & Newell Apartments [2009] QBCCMCmr 379 (6 October 2009)

Last Updated: 12 November 2009

REFERENCE: 0494-2009

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	31970
Name of Scheme:	Jack & Newell Apartments
Address of Scheme:	27 -29 Wharf Street CAIRNS QLD 4870

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

the body corporate

I hereby order that the application is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0494-2009

“Jack & Newell Apartments” CTS 31970

Application

Jack & Newell Apartments Community Titles Scheme (JNA) is a 45 lot scheme under the Body Corporate and Community Management Act 1997 (Act) and the Act’s Accommodation Module Regulation (Accommodation Module).

This application is by the body corporate for JNA (applicant) seeking orders against Bert Creber and Wendy Bowman, owners of lot 802 (respondents). Submissions for the body corporate on behalf of the committee are to the effect that the respondents have installed Bermuda type shutters for their lot instead of "Aero 90" shutters manufactured by Rollershield or an approved body corporate supplier. A report from GHD Pty Ltd (GHD Report) is to the effect that the Bermuda shutters are tested to AS 2047 and not to AS/NZS 1170.2 and failed at a pressure of 1900 Pa due to frame fixing dislodging. This report indicates that the "Aero 90" shutters are tested to AS/NZS 1170.2 to a minimum pressure of 3220 Pa. The GHD Report indicates that the wind pressure for external cladding elements on the eight floor of the building could be anticipated to be in the order of 2990 Pa. The report concludes that the Bermuda shutters installed by the respondents do not have adequate structural strength to be able to resist the most adverse loading conditions that may be imposed in accordance with AS/NZS 1170 Parts 0 and 2.

Submissions from the respondents are to the effect that the shutters are installed in unit 802, inside the glass balustrade, and are moveable and removable. Correspondence from the local council is attached. This correspondence indicates that the council does not consider these shutters to be prescribed building work that would require a building application. It acknowledges information that the shutters are eligible for use in cyclonic areas and also notes that the shutters are removable in high winds.

Decision

Background

The submissions disclose a complicated background to the present dispute. Most of this information is not directly relevant to the question of whether there is any legal requirement that the respondent’s shutters comply with the GHD Report, the Building Code, or standards referred to in the GHD report. However, some background information is provided below.

Firstly, it is not disputed that the respondents installed their shutters in January 2008. At the time, by-law 51 indicated that "Aero 90" shutters had been approved for the building but that each individual installation must be forwarded to the Committee for final approval prior to any installation. It is not disputed that the respondents installed Bermuda shutters rather than "Aero 90" shutters. It is also not disputed that the committee approved these Bermuda shutters installed by the respondents in February 2008. The present committee claims that the requirements of by-law 51 were not complied with in respect of this approval. The material provided does not disclose whether this February 2008 approval purported to be pursuant to by-law 51 or pursuant to a more general by-law 22 that required owners to obtain written approval of the committee regarding changes to the external appearance of a unit, including by installation of external blinds.

Secondly, it appears that owners have more recently voted to amend by-law 51 by adding an additional sentence stating "Shutters must comply with the Building Code, and in particular, the relevant Australian Standards for cyclonic area, in particular: (a) AF/NZS 1170.2; or (b) any other standard that may become relevant". This change to the by-laws was recorded on 31 August 2009.

Issues for determination

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).

It is convenient in determining the present dispute to consider two issues. Firstly, whether the by-laws impose any requirement upon the respondents to ensure their shutters comply with the Building Code, AS/NZS 1170, or the GHD Report. Secondly, whether there is any other legal basis upon which the respondents can be forced to ensure their shutters comply with those matters.

Respondent’s shutters installed prior to by-law amendment

I note that the respondents’ shutters were installed, and approved by the committee, prior to the amendment to the by-laws that stated that "Shutters must comply with the Building Code, and in particular, the relevant Australian Standards for cyclonic area, in particular: (a) AF/NZS 1170.2; or (b) any other standard that may become relevant". This change to the by-laws does not have any retrospective operation.[1] Therefore, I would conclude that the by-laws do not impose the claimed obligation on the respondents.

The respondents’ shutters were approved in February 2008 under the by-laws applicable at that time. The by-laws determined by owners from time to time are delegated legislation.[2] The interpretation that will best achieve the purpose of the by-law is to be preferred to any other interpretation.[3] However, relevant persons may ordinarily have no access to the circumstances surrounding the making of by-laws in the context of a community management statement resulting in the meaning needing to be understood from their statutory context and language. As a result, community titles scheme by-laws would appear to need to be interpreted objectively by the meaning they would convey to a reasonable person and caution should be exercised in going beyond the language of the by-law and its statutory context.[4] In construing the relevant by-laws as a whole, I consider that by-law 51 indicated that "Aero 90" shutters would be approved subject to certain conditions including a requirement to include a 1 metre high fixed closed panel. I also consider that by-law 51 did not absolutely prohibit the installation of different types of shutters. Rather, it would appear that by-law 22 provided the general prohibition of the installation of blinds or shutters except as approved under the general discretion of the committee. If someone wished to install shutters other than "Aero 90" shutters then by-law 51 did not regulate the installation and the installation would be subject to whatever reasonable conditions the committee chose to apply in its discretion.

The submissions indicate that the respondents’ Bermuda shutters were approved in February 2008, seemingly as installed without any additional conditions. If anyone disputed this approval or claimed stricter conditions should have been applied then a challenge to the committee decision would ordinarily be required to be made within three months (Act, 242).

In short, the respondents’ shutters were approved in February 2008 in the manner installed. As the shutters were not of the "Aero 90" type the by-law 51 did not apply at the time to specify any conditions on this installation. The committee could have used its general discretion to impose conditions when approving the shutters under by-law 22. However, the committee did not impose any conditions requiring compliance with the Building Code or specific Australian Standards. Owners have since decided that all shutters "must comply with the Building Code, and in particular, the relevant Australian Standards for cyclonic area, in particular: (a) AF/NZS 1170.2; or (b) any other standard that may become relevant". However, this new requirement as recorded in by-law 53 does not operate retrospectively to impose additional obligations on the respondents.

No other legal basis for requiring compliance

The application does raise any other legal basis upon which the respondents could be forced to comply with the Building Code, AS/NZS 1170, or the GHD Report in respect of their shutters.

To the contrary, the respondents’ submission satisfies me that the local council has no concerns in relation to the respondents’ shutters.

Conclusion

The body corporate has failed to establish any legal basis to justify the orders sought against the respondents. The application will therefore be dismissed. If a substantial number of owners would prefer that the respondents replaced their shutters with "Aero 90" shutters then owners may wish to consider whether some inducement or compensation might be offered to encourage the respondents to agree to this request. However, I note that a number of individual owners lodged their own submission in relation to the dispute and each of these owners supported the respondents’ retention of their Bermuda type shutters.

Order

For the reasons above, the application is dismissed.

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[1] Refer Statutory Instruments Act 1992 section 32.
[2] Dainford Ltd v Smith [1985] HCA 23. See also Statutory Instruments Act 1992 section 7.
[3] Refer Statutory Instruments Act 1992 section 14 and Schedule 1; Acts Interpretation Act 1954, section 14A.
[4] The Owners of Strata Plan No 3397 v Tate [2007] NSWCA 207, Mason P McColl JA Harrison J, 16 August 2007 at paragraph 71.