Ardoch [2009] QBCCMCmr 43 (9 February 2009)

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

I hereby order that Kay Miller, the Owner of Lot 5, is hereby authorised to replace the current gas hot water system supplying Lot 5 with a system to be installed on common property in the location described in the explanatory note for Motion 2 considered at the extraordinary general meeting of 5 September 2008.

I hereby order that the Body Corporate for Ardoch convene and hold a general meeting for the scheme (‘the required meeting’) for the purpose of considering a motion with alternatives requiring an ordinary resolution for the repair or replacement of the stairs and balustrades in the scheme (‘the required motion’), along with any other motions validly submitted.

I further order that the required meeting shall be conducted within three (3) months from the date of this order, but that the notice of meeting shall not be issued until at least 30 days after the date of this order.

I further order that all owners shall be entitled to submit a proposal for the repair or replacement of the stairs and balustrades for inclusion in the required motion, providing that each alternative is accompanied by one or more quotations for carrying out the proposal and providing that the proposal and quotation is provided to Secretary within 30 days after the date of this order.

I further order that Kay Miller, the Owner of Lot 5, is hereby authorised to install two awnings, matching the colour and style of existing dark green canvas awnings in the scheme, on the common property over two windows in Lot 5.

I further order that the application is otherwise dismissed.

I further order that the Body Corporate for Ardoch shall provide a copy of this order and the statement of reasons shall be provided to all lot owners in the scheme within seven (7) days of the date of this order.

Ardoch community titles scheme 5719 (Ardoch) consists of seven lots and common property. The community management statement (CMS) for Mercantile-Dalgety Place indicates that the Body Corporate and Community Management (Standard Module) Regulation 2008[1] (Standard Module) applies to the scheme. Department of Natural Resources and Water records show the scheme is registered as Building Units Plan 9608.

Pursuant to the Body Corporate and Community Management Act 1997 (Act), this application was made by Kay Miller, Owner of Lot 5 (applicant) on 7 October 2008. The applicant sought orders against the Body Corporate for Ardoch (respondent) in the following terms:

Under section 243 of the Act, a copy of the application was provided to the Body Corporate, with an invitation to the Committee and all owners to respond to the matters raised by the application. Submissions were made by or on behalf of the Owners of Lots 1, 2, 4, 6 and 7. The applicant inspected the submissions received and made a written reply.[2]

A dispute resolution recommendation was made referring the dispute to departmental adjudication. I then investigated the dispute, pursuant to section 271 of the Act, which included reviewing the application and submissions, reviewing the CMS and scheme plans, and seeking further information as detailed below.

The application relates to four motions considered at the Extraordinary General Meeting (EGM) on 5 September 2008. The facts of the dispute, as outlined in the material from the parties, can be summarised as follows.

In February 2008 the Body Corporate for Ardoch received an Initial Safety Report from Solutions IE. The applicant says this was the first safety report done on the scheme since 2001. The 2008 report included 28 items on a ‘to-do list’, some of which were the subject of motions submitted to the September EGM. The applicant, who is the Chairperson and Secretary, objects to the defeating of four motions at the EGM. She says that there are sufficient monies in the sinking fund for these works and they would improve the health and comfort of lot owners.

Motion 2 at the EGM sought approval for the Owners of Lot 5 to replace her hot water system. This related to Item 28 in the safety report which stated that “Please remove gas water heater from under passage to an out door location, as soon as possible as this represents a potential moderate fire hazard.” The votes cast on Motion 2 were four votes in favour and three against. The motion was ‘upgraded’ to a special resolution at the meeting because the new system was not going to be installed in the same location as the old system. On that basis the motion was defeated.

Motion 3 sought to replace stairs and balustrades in the complex. No vote was recorded in respect of the substantive motion. The motion provided two alternative quotes for the work. Corrected minutes show the first alterative received four votes in favour and three against. The second alternative received no votes in favour and seven against. The motion was a special resolution and was recorded as being defeated.

Motion 6 sought approval, as a special resolution, for the Owner of Lot 5 to install two awnings over two windows in “...the approved colour and style to match the existing awnings”. This motion was defeated with four votes in favour and three against.

Motion 9 sought approval, as a special resolution, for a new by-law regarding awnings, to the effect that any awnings installed on common property are to be installed at the expense of the owner installing them, be of sought quality and materials, be installed in a proper workmanlike manner, and be of similar style and colour to the dark green canvass awnings with scalloped edges installed in Lot 3 and 5, unless otherwise agreed to in writing by the Committee. This motion was defeated with four votes in favour and three against.

The Owners of Lots 2 and 4 support the application. One says that that the motions are being blocked for no logical reason. The other says the matter is urgent because of workplace health and safety contraventions. He claims the Owner of Lot 6 has been abusive and intimidating.

The Owners of Lots 1, 6 and 7 oppose the application. The Owner of Lot 6 (Murray Swan) says:

In response to the submissions from the Owners of Lots 1, 6 and 7, the applicant says:

At my request a member of the Commissioner’s Office contacted the applicant to clarify the installed value of the hot water system and the awnings, and confirm that the installations would be at her expense. The BCM was also requested to provide copies of documentation related to the EGM and clarify the timing of the next general meeting.

I am satisfied that this is a matter which falls within the legislative dispute resolution provisions.[3]

Section 276(1) of the Act provides that an adjudicator may make an order that is just and equitable in the circumstances (including a declaratory order) to resolve a dispute about:

(b) the exercise of rights or powers, or the performance of duties, under the Act or the CMS; or

(c) a claimed or anticipated contractual matter about the engagement of a person as a body corporate manager or service contractor; or the authorisation of a person as a letting agent.

An order may require a person to act, or prohibit a person from acting, in a way stated in the order.[4] An adjudicator's order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate.[5]

The issue for consideration in this matter are whether any of the four disputed motions considered at the September EGM should be deemed passed or whether the works proposed in Motions 2, 3 or 6 should otherwise be required or permitted to proceed.

The applicant sought approval to replace the current gas hot water system for Lot 5 with a new system. She will be responsible for the cost of the work and advises that quotes for the installed system range from $1,200 to $2,000. Motion 2 was originally listed as an ordinary resolution but the meeting changed the motion to a special resolution.

Because the work is on common property, and is in a new location, it is arguably an improvement[6] to common property by an owner. Section 164 of the Standard Module, which has applied since 30 August 2008, provides as follows for such improvements.

(1) The body corporate may, if asked by an owner of a lot, authorise the owner to make an improvement to the common property for the benefit of the owner’s lot.

(2) The improvement must be authorised by ordinary resolution of the body corporate unless—

(b) the improvement does not detract from the appearance of any lot included in, or common property for, the community titles scheme; and

(c) the body corporate is satisfied that use and enjoyment of the improvement is not likely to promote a breach of the owner’s duties as an occupier.

(3) An authorisation may be given under this section on conditions the body corporate considers appropriate.

(b) must maintain the improvement made under the authority in good condition, unless excused by the body corporate.

The definition of ‘minor improvement’ in this provision means an improvement with an installed value of $3,000 or less, and the hot water system is within this limit. I see no reason why the installation would lead the applicant to breach her duties as an occupier. It is possible that the system could detract from the appearance of the scheme, although this has not been raised by the opposing submissions and other systems are in similar locations. Even if that were the case, an ordinary resolution would be sufficient and so Motion 2 would have passed under section 164.

However, under the transitional provisions for the new Standard Module[7], if a meeting was called before the new provisions came into force then the provisions of the repealed Standard Module apply to the procedural steps to call the meeting and to the conduct of the meeting as if the new provisions had not been enacted. As the EGM was called on 14 August 2008, two weeks before the new Standard Module came into force, the repealed provisions continued to apply to the EGM.

Section 114 of the repealed Standard Module provided for improvements to common property by a lot owner. The section was similar to the new provision except that the limit for minor improvements was $250, and a special resolution was required if the three conditions did not apply. Accordingly, a special resolution was necessary to approve this motion at the time of the EGM but, if the matter was now resubmitted, an ordinary resolution would be sufficient.

However, another more fundamental issue arises in this matter, being whether the applicant has a statutory easement allowing her to install the hot water system on common property. Section 115O of the Land Title Act 1994 provides as follows:

115O Easements in favour of lots for utility services and utility infrastructure

(1) An easement exists in favour of a lot and against other lots and common property for supplying utility services to the lot and establishing and maintaining utility infrastructure reasonably necessary for supplying the utility services.

(2) However, the exercise of rights under the easement must not interfere unreasonably with the use or enjoyment of the lot or part of common property against which the easement lies.

The definition of utility services and utility infrastructure in the Land Title Act points to the definitions in Schedule 6 of the Act. Utility infrastructure is defined in the Act as including cables, wires, pipes, sewers, drains, ducts, plant and equipment by which lots or common property are supplied with utility services. Utility service is defined as including any system or service designed to improve the amenity or enhance the enjoyment of lots or common property.

I am satisfied that a hot water system is utility infrastructure[8]. This means that all equipment, pipes and conduits installed to supply hot water services to a lot are covered by a statutory easement. A statutory easement creates automatic rights subject only to the requirements in section 68 of the Act, that the rights must not be exercised in a way that unreasonably prevents or interferes with the use and enjoyment of a lot or common property.

(1) Rights under a statutory easement must not be exercised in a way that unreasonably prevents or interferes with the use and enjoyment of a lot or common property.

(2) If a statutory easement entitles a lot owner to enter another lot or common property to carry out work, the owner—

(i) to the other lot’s owner, and additionally, if the owner is not the occupier, the other lot’s occupier, before entering the lot to carry out work; or

(ii) to the body corporate, before entering the common property to carry out work; and

(b) must comply with the security or other arrangements or requirements ordinarily applying for persons entering the lot or the common property.

(3) If a statutory easement entitles the body corporate to enter a lot to carry out work, the body corporate must give reasonable written notice to the lot owner before entering the lot to carry out work.

(4) Subsections (2) and (3) do not apply if the need for the work to be carried out is, or is in the nature of, an emergency.

As the hot water service is a utility service, the applicant has a prima facie right to provide this service to her lot. All lots share this right and it does not appear that any owner disputes the applicant’s right to a hot water system. So, the key questions are whether the infrastructure is reasonably necessary to supply the service and whether the installation would unreasonably interfere with the use or enjoyment of the common property on which it is installed.

No party appears to dispute that there is a genuine need for the current hot water system servicing Lot 5 to be relocated, and in fact the Owner of Lot 6 has repeatedly asked for this to occur. It seems entirely reasonable for the applicant to replace the old system with a new system and there is no suggestion that the new system itself is not appropriate.

The opponents of the motion dispute the proposed location but give little justification for their complaint and do not describe any of the apparent alternatives. The claim that the proposed location could waste water has not been demonstrated or quantified. While this would be an undesirable outcome, I have received no evidence that it would to amount to an interference with the use or enjoyment of any lot or common property and as such it is not affect the rights under a statutory easement. Given that the proposed location is adjacent to another hot water system, and given the comments made by the opponents of the motion, I have difficulty seeing how the proposed location presents an unreasonable interference with the use or enjoyment of the common property or their lot.

On that basis I am satisfied that the applicant has the benefit of a statutory easement entitling her to install the hot water system in the proposed location. Moreover, even if no statutory easement existed, I am satisfied that the Body Corporate would approve the improvement to common property as an ordinary resolution if the matter was now submitted to a general meeting. Finally, I do not consider that the opponents of the motion have given sufficiently cogent reasons for objecting to the proposed location, given that other hot water systems are located in that area and the applicant’s claim that tradespeople have told her that is the most appropriate location.

Motion 3 sought to replace the stairs and balustrades. There does not appear to be any dispute that alterations are required to meet safety standards, but there is disagreement over whether the issues can be rectified most appropriately and cost effectively through replacement or repair.

The motion included two alternative quotes for the proposed replacement and so, as required by section 42B of the repealed Standard Module[9], it was presented as a motion with alternatives. The voting paper correctly provided for a vote on the motion itself (being approval to replace the stairs) as well as for the preferred alternative. The explanatory note correctly advised that if owners were voting in favour of the motion they should vote for one of the alternatives but that if they were voting against the motion they should not mark any alternatives. It appears no voting papers were submitted and all votes were cast personally. However the voting tally sheet is somewhat confusing for this motion and does not separately record votes for the motion itself, as opposed to the alternatives. The minutes do not record a vote for the substantive motion, and only lists the votes cast for or against the alternatives. As such the tallying of votes does not appear to have complied with section 42B. Moreover, it may be that if it was the intention of Lots 1, 6 and 7 to vote against the substantive motion, they may have incorrectly cast votes for the alternatives.

No explanation has been given as to why the motion was listed as requiring a special resolution rather than an ordinary resolution. It may be that the works were considered to be an improvement to common property. Pursuant to section 113 of the repealed Standard Module, a body corporate required a special resolution to approve an improvement to common property unless the cost of the project was less than the improvements limit, which for this scheme was $2,100[10].

However, I consider that replacing the stairs and balustrades is maintenance rather than an improvement. The test of whether work is maintenance or improvement has been considered in numerous previous adjudications and judicial determinations.[11] Lord Denning[12] has commented in regards to repairs and improvements that if work involves the provision of something new it is an improvement, but if it is “...only the replacement of something already there, which has become dilapidated or worn out, then, albeit that it is a replacement by its modern equivalent, it comes within the category of repairs and not improvements.” Notwithstanding that repairs may be possible, I am satisfied that the nature and scale of the work is such that owners can reasonably elect to replace the stairs and balustrade entirely and that the replacement work would still fall within the scope of maintenance. Moreover, given the apparent age of the current balustrades, particularly in the context of the apparent variety of balustrades in the scheme, I do not consider that maintenance of the balustrades necessarily requires their replacement with the same style of balustrade if that will be considerably more expensive that more contemporary equivalent.

The Body Corporate is required to maintain the common property pursuant to section 159 of the Standard Module[13]. The level of approval required for maintenance relates to the value of the work. At the time of the EGM the cost of the work proposed in Motion 3 was above the Committee spending limit of $875 and above the major spending limit of $1,750[14]. As this was clearly major spending, the work could be approved by ordinary resolution if two quotes were included in the notice of meeting. Under the new Standard Module provisions[15], the Committee spending limit in this scheme is now $1,400 and the major spending limit is now $7,700, unless the Body Corporate passes an ordinary resolution to increase those amounts.

In the circumstances, I am satisfied that Motion 3 could have passed with an ordinary resolution. It appears that the intended voting would probably have achieved this result but there was a defect in the way the voting was recorded. I have considered whether I should give effect to the apparent voting intentions of owners, notwithstanding the defect in recording the votes.

On balance I consider it would be desirable in the circumstances for the matter to be reconsidered at another general meeting. This is because there was a question of whether the quotes presented to the EGM covered all necessary work, and whether there are alternative means of achieving the required result that should have been considered.

If the Owner of Lot 6 genuinely considers that there are viable and cost effective alternatives to the proposals contained in Motion 6, reconsidering the matter will give him the opportunity to submit quotes for repairs and/or a replacement that he considers would be more in keeping with the external appearance of the scheme. However the onus will by on the Owner of Lot 6, and any other owner, to submit quotes for the work. If they do not they must then choose from the proposals submitted by other owners. Owners should bear in mind that the Body Corporate must act to rectify the defects in the stairs and balustrades in accordance with their legislative maintenance responsibilities. Owners cannot reasonably continue to reject the proposals of others when they have not formally submitted their own alternative for consideration at a general meeting.

Each owner submitting proposals should ensure their quotes cover all work that is required, or they should explain (preferably in the explanatory note) why any elements are not included (for example that it would need to be done separately or that the proponent considers that the item is not necessary). I also consider that each alternative should clearly identify the style and/or materials of any replaced parts. This will enable all owners to more easily compare the alternatives.

Motion 6 sought approval for the applicant to install two window awnings. The applicant will be responsible for the cost, which she indicates will have an installed value of around $1,300. As the work is on common property[16], it is again an improvement common property by an owner.

I note that By-law 11 provides for alterations to a lot requiring Committee approval for a change to the external appearance to a lot, including erecting external blinds. By-law 12(c) also provides that window coverings visible from the outside of the lot have a uniform appearance and do not detract from the visual amenity of the scheme. Pursuant to section 180(1) of the Act, these by-laws only apply to the extent that they are not inconsistent with the provisions of the Act and the Standard Module. As such they do not override the requirement in the Standard Module regarding the approval of improvements to common property.

As noted above in respect to the hot water system, section 164 of the Standard Module would now apply to the installation of the awnings on common property. As the awnings would affect the appearance of the scheme, an ordinary resolution would now be required to approve the installation. However, the law that applied to the EGM required a special resolution. The voting at the EGM did not achieve a special resolution but would have been sufficient for an ordinary resolution. There is no indication that any owner has changed there vote and so it seems likely that the proposal could be put to a further meeting and be approved.

The only objection to the awnings in the scheme appears to be the claim by the Owner of Lot 6 that “...the proposed awnings do not fit in with the external appearance of the building”. No explanation of this assertion is provided by the objectors. I have difficulty with this objection.

Clearly there is no consistent approach to awnings in the scheme. Given the nature and general appearance of the building, and the existing inconsistent awnings, it is difficult to sustain an objection on the basis of the inconsistency of the appearance of the awnings. From the photographs provided in the application I am not satisfied that the proposed awnings offend the external appearance of the scheme any more or less than any of the other awnings in the scheme.

The proposed awnings will match awnings that were installed in the scheme in 2000 and 2001. I am not aware of whether those awnings were formally approved by the Body Corporate but there is no indication that the Body Corporate or any owner has objected to those awnings or sought their removal. As such it would appear to be discriminatory of the Body Corporate to allow green canvas awnings to be installed and to remain on some windows in the scheme for a long period of time but then to refuse the applicant’s request to install the same type of awnings. I also have concerns with the conduct of the Owner of Lot 7 who has apparently installed awnings without approval and then sought to oppose awnings in another lot.

Section 94(2) of the Act requires that the Body Corporate must act reasonably in performing its obligations, including in making or not making decisions. Schedule 5 of the Act provides examples of the types of orders that an adjudicator may make pursuant to section 276 of the Act to resolve a dispute, and item 17 specifically contemplates that an adjudicator may make an order requiring a body corporate to agree to or reject a proposal by a lot owner to make improvements on or changes to common property if satisfied that the decision was unreasonable.

In view of my comments above, it was arguably unreasonable of the Body Corporate to refuse to approve awnings that matching existing and uncontested awnings in the scheme. As such I consider that it would unnecessary to require the time and inconvenience of returning this matter to a further general meeting where the proposal would undoubtedly be approved.

The final motion in dispute seeks to approve an additional by-law setting a standard for awning installations. The recording of a new CMS which differs from the current CMS only in that it amends the by-laws requires a special resolution. In this scheme a special resolution requires five votes to be cast in favour of the motion[17]. Clearly this motion did not pass as a special resolution.

Having regard to the general requirement that a body corporate must act reasonably, including in making or not making a decision, and the example orders provided in Schedule 5 of the Act, I am satisfied that it is open to an adjudicator to deem a motion requiring a special resolution to be passed if opposition to the motion was unreasonable in the circumstances and that such an order would be just and equitable in the circumstances[18]. However in this case I do not consider that such an order is warranted.

While I appreciate that some owners would prefer guidance regarding awnings, I do not consider that the applicant has presented sufficient reason why it would be unreasonable in the circumstances for any owner to oppose the proposed by-law or for the Body Corporate to fail to pass the motion. The failure of the motion does not prevent awnings being considered or installed.

Moreover, I am concerned that the wording of the proposed by-law could be confusing. For example, if future owners of Lots 3 and 5 chose to remove awnings installed on their windows[19], the meaning of the by-law could be unclear. In addition, the reference to the Committee being able to approve an alternative style and colour of awning would be inconsistent with the legislative requirement that the Body Corporate must always approve awnings installed on common property.

In regard to Motion 2, considered at the EGM of 5 September 2008, I find that the applicant has the benefit of a statutory easement entitling her to install the hot water system in the proposed location. Moreover, even if no statutory easement existed, I am satisfied that the Body Corporate would in all likelihood approve the improvement to common property as an ordinary resolution if the matter was now submitted to a general meeting, and that no reasonable objections to Motion 3 have been raised in submissions. Accordingly I have made an order authorising the applicant to install the hot water system in accordance with the proposal in Motion 2

The Body Corporate has a statutory obligation to maintain the common property, and I am satisfied from the material before me that maintenance is required to the stairs and balustrades in question. However, I consider that owners are best placed to decide whether the required maintenance can be most appropriate and cost effectively achieved by replacement or repair. Motion 3 could have approved the replacement of the stairs and balustrades with an ordinary resolution but there was a defect in the tallying of the votes. Because of some questions over the scope of the quoted works and whether there are viable alternatives, I consider that the most appropriate outcome would be for the matter to be reconsidered at a future general meeting for the scheme with all owners having the opportunity to submit the same or different proposals and quotes for the required maintenance.

I understand the Body Corporate has a general meeting scheduled at the end of February. There may be insufficient time for new quotes to be obtained for this meeting and the notice of meeting has already been issued. Accordingly, I will require the Body Corporate to convene a further general meeting. I appreciate this will have an additional cost for owners and further delay in addressing this safety issue but I consider that it is necessary to be resolve this matter as soon as is possible, while allowing adequate time for potential alternatives to be explored. I have ordered that a meeting be held within three months and have given owners one month to obtain or update quotes for any alternative proposals that they would like the Body Corporate to consider. Each alternative for the repair or replacement of the stairs and balustrade should then be included in a motion with alternatives, requiring an ordinary resolution. Given the circumstances, and that all owners will have ample opportunity to submit a proposal, I consider that it would be unreasonable for owners to refuse to agree to maintain the common property. Therefore the real question for owners will be to decide how to achieve the maintenance.

In regard to the applicant’s request to install awnings on the windows of Lot 5, I consider it very likely that this proposal would be approved if it was resubmitted to a general meeting. On the basis that there are strong grounds to argue that the original refusal was unreasonable, I do not consider that it would be just and equitable in the circumstances to require the matter to be returned to a general meeting for reconsideration. Accordingly I have made an order authorising the applicant to install the awnings in accordance with the proposal outlined in Motion 6.

I am not satisfied that the applicant has presented sufficient grounds to overturn the decision of the Body Corporate in regard to Motion 9, proposing a new awning by-law. Accordingly I have dismissed that part of the application.

Finally, I have ordered that the Body Corporate provide a copy of this order to all owners so that they are aware of the issues and are on notice of the opportunity to submit proposals regarding the stairs and balconies.

[1] As of 30 August 2008 the new Standard Module came into force, replacing the Body Corporate and Community Management (Standard Module) Regulation 1997 which applied until that date.
[2] See sections 246 and 244 of the Act respectively
[3] See sections 227, 228, 276 and Schedule 5 of the Act
[4] Section 276(2) of the Act
[5] Section 284(1) of the Act

[6] The definition of an ‘improvement’ in Schedule 6 of the Act includes “a non-structural change, including, for example, the installation of air conditioning.” This definition refers section 36 of the Acts Interpretation Act 1954 which defines ‘change’ as “...includes change by addition, exception, omission or substitution.”
[7] Section 218

[8] Hot water systems are specifically mentioned in section 159(3)(b) of the Standard Module (which relates to maintenance) as a type of utility infrastructure.
[9] Now section 72 of the new Standard Module, which is unchanged in content.

[10] Section 163 of the new Standard Module includes substantial differences in financial limits and in the ways in which improvements to the common property by the body corporate can be approved.
[11] See for example D Toohey in No. 9 Port Douglas Road [2006] QBCCMCmr 674 (18 December 2006)

[12] Morcom and Ors v Campbell-Johnson and Ors [1955] 3 All ER 264
[13] Section 120 in the repealed Standard Module
[14] As provided for in section 103 and 104 of the repealed Standard Module
[15] Now sections 151, 152 and 153

[16] As this scheme is a building format plan of subdivision, sections 48C and 49C(4) of the Land Title Act 1994 the lot boundaries are defined on the survey plan by the structural elements of a building, including the floors, walls and ceilings. Where a lot is separated from another lot or common property by a floor, wall or ceiling, the boundary is the centre of the floor, wall or ceiling.

[18] In a recent District Court appeal decision (Body Corporate for Palm Springs Residence CTS 29467 v J Patterson Holdings Pty Ltd [2008] QDC 300 at 88-90) DCJ McGill commented that he agreed with the interpretation in two previous appeal decisions [Davies JA in McColl v Body Corporate for Lake View Park CTS 20751 [2004] QCA 44 at 25 and Wilson DCJ in Dindas v Body Corporate for One Park Road CTS 2114 [2006] QDC 302 at 34-35) that the requirement for reasonableness in section 94 applied to the performance of functions and not general meetings decisions. But DCJ McGill’s comments appear to be obiter only and do not appear to note that section 94(2) was amended by the legislative in 2007, following the two decisions in question, to specifically include reference to making or not making a decision.

[19] Presumably the removal of the awnings would be a change to common property that would similarly require Body Corporate approval.

Number of Scheme:	5719
Name of Scheme:	Ardoch
Address of Scheme:	41 Brighton Road HIGHGATE HILL QLD 4101

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Ardoch [2009] QBCCMCmr 43 (9 February 2009)