One Macquarie [2009] QBCCMCmr 76 (2 March 2009)

Last Updated: 29 April 2009

REFERENCE: 1075-2008

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	38333
Name of Scheme:	One Macquarie
Address of Scheme:	1 Maquarie Street NEW FARM QLD 4005

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

the Body Corporate for One Macquarie

I hereby order that the Owner of Lot 1, Relesah Pastoral Holdings Pty Ltd, not install a vergola or similar structure on its lot until the determination of this application, unless the installation has received prior approval from the Body Corporate for One Macquarie. This interim order has effect until six (6) months have elapsed from the date of this order, a further interim or final order for the application is issued, or until the application is withdrawn or otherwise ended (whichever is earlier).

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 1075-2008

“One Macquarie” CTS 38333

One Macquarie community titles scheme 38333 (One Macquarie) consists of 34 lots and common property. The Community Management Statement (CMS) for One Macquarie indicates that the Body Corporate and Community Management (Standard Module) Regulation 2008[1] (Standard Module) applies to the scheme. Department of Natural Resources Mines and Water records show the scheme is registered as Survey Plans 179840 and 213432 and is a building format plan (BFP) of subdivision.

INTERIM APPLICATION

This is an application for interim orders under the Body Corporate and Community Management Act 1997 (Act) lodged by the Body Corporate for One Macquarie (applicant) on 12 December 2008, pursuant to a Committee resolution on 17 November 2008. The applicants sought the following interim order against Relesah Pastoral Holdings Pty Ltd, Owner of Lot 1 (respondent):

That the owner of Lot 1 be directed not to install a vergola upon his lot until such time as a conciliation or adjudication order has been reached to approve or deny the installation of the vergola or refer the matter to a general meeting.

The application also seeks the following final orders:

That the owner of Lot 1 be required to comply with the Committee decision to have the request to install a vergola upon Lot 1 considered at a General Meeting.

That the owner be required to comply with the General Meeting decision to allow, or otherwise, the installation of the vergola upon Lot 1.

PROCEDURAL MATTERS

In accordance with section 247 of the Act, the Commissioner for Body Corporate and Community Management has referred the application to me to decide whether the nature or urgency of the circumstances of the application warrant an interim order. The Commissioner has referred the application notwithstanding that affected persons have not been given notice of the application or afforded an opportunity to make submissions about the application[2].

On the basis of verbal advice that the respondent did not intend to start work on the vergola until 2009, and that it would not start work before an interim order was made, I provided the respondent and Tony and Maree Joseph (the Josephs), who the Owners of Lot 2 and an affected party, with an initially brief opportunity to make submissions on the interim order application. A submission was received from the Josephs within this timeframe. The respondents then sought lengthy extensions of time to make a submission, based on an undertaking that no work would be taken until after the submission was made. The applicant made no objection to these requests and the extensions were granted on the basis of the undertakings.

I note that the respondent has now made a very comprehensive submission. However, as they were verbally reminded on 20 January 2009, the matter being considered at this time remains the request for an interim order. Unsolicited submissions were also received from three owners, through the Body Corporate Manager (BCM).

MATTERS IN DISPUTE

This application relates to the respondent’s proposal to construct a vergola on Lot 1. The circumstances of the dispute can be summarised as follows.

On 23 June 2008 the respondent submitted a request with plans for permission to build an ‘external pergola’ at Lot 1. It appears the vergola is proposed to be constructed on part of the paved courtyard area of the lot. On 4 July 2008, the BCM wrote advising that as the request would be deemed an improvement to common property of a value of more than $250, it must be considered at a general meeting. On 17 September 2008 the respondent provided the Committee with advice from the original architect for the scheme, Arckhefield, stating that the proposed vergola design used ‘slender modernist structures to minimise impact to neighbours’, ‘a continuation of the architectural design of the complex’’ that would be a ‘positive addition to the building’, use of lightweight, low maintenance and non reflective materials, and ‘overall minimal contextual scale’. The letter noted that the structure would be located within the tile area and exclusive use area of Lot 1. The Committee considered the request on 17 September 2008, and discussed the aesthetic impact of the vergola and the impact on neighbouring lots. The Committee resolved to engage an independent architect to assess the impacts and the ‘type of construction with respect to materials and reflections’. The Committee also resolved that a motion be submitted to an Extraordinary General Meeting (EGM) to allow all owners to vote on the matter.

Following this meeting the Body Corporate received correspondence from the respondent’s solicitors advising that the works were to be carried out within Lot 1 and that the only relevant By-laws were 5.14 and 5.15. They said the works did not require alterations to the structure of the building or utility infrastructure and so there was no need for consent under By-law 15.14(a), but that they would comply with the requirements in By-law 5.14(b) and 5.15. They also referred to confirmation from the architects who designed One Macquarie confirming that the proposed works complied with the architectural design and integrity of the building. On that basis the respondent asserted that there was no requirement to obtain consent and that the works would proceed.

On 3 November the Body Corporate received advice from architectural firm Nettleton Tribe that the proposed vergola would have a ‘significant impact’ on the apartment above Lot 1, with a detrimental impact on their outlook and a significant increase in reflection and glare unless the colour of the upper surface was dark. They suggested that it would not be reasonable for the Body Corporate to approve the vergola without the approval of the owner of the lot above. They also suggested research on the available coatings for the vergola to ensure its suitability in an exposed location adjacent to the river to avoid ‘future unsightly corrosion problems’. On 17 November the Committee considered the architectural advice and the respondent’s correspondence. They resolved to seek legal advice and lodge a dispute resolution application.

The Body Corporate also received correspondence from the Owners of Lot 2 on 28 November 2008. They assert that the vergola, which would be adjacent to their balcony, will contravene section 167 of the Act by unreasonably interfering with their use and enjoyment of their lot including by affecting their line of sight, restricting their views, increasing noise during inclement weather, increasing glare and reflection, and detracting from the appearance of the building. They note that if the vergola is not depicted in the Development Approval (DA) for the scheme it would be an unauthorised structure and so any approval of the vergola would be inconsistent with the DA and in breach of By-laws 2.7 and 5.8. Finally they assert that the vergola is to be attached to the underside of Lot 2 which they assert is part of common property, and that the supporting columns would be installed on common property being the exclusive use area allocated to Lot 1. As such they say general meeting approval is required for the installation.

Submissions

The respondent’s lengthy submissions oppose the application and provide the following argument:

­ The respondent seeks to install an unobtrusive pergola-style structure in its courtyard.
­ On the basis of its legal advice, it submits that it does not require approve to do so.
­ The respondent has undertaken not to construct the vergola pending the adjudication.
­ The need for the vergola arises from an oversight in the building design. The respondent’s lot has a north-easterly aspect and is exposed to bright sunlight for long periods of the day. The courtyard area is unusable during daylight hours because of the lack of shade. The respondent seeks to remedy this design oversight.
­ In commissioning the design of the vergola, the respondent was concerned to ensure that it would integrate with the existing design and style of the complex.
­ Nettleton Tribe is not and has never been the architects for the scheme. Arkhefield Architects remain the architects for the scheme and they designed the proposed vergola.
­ The comments in the Nettleton Tribe letter are highly qualified. It does not assert that the vergola will have a detrimental impact on the outlook of Lot 2, but rather that it would not be unreasonable for the owners of Lot 2 to apprehend that outcome.
­ Nettleton Tribe have no expert qualifications to entitle it to comment on any glare from the vergola roof. They indicate that there would be no significant increase in glare if the upper surface of the roof was a dark colour.
­ For the purposes of By-law 2.7, the relevant sections of the DA are those parts which impose conditions or requirements on lot owners with respect to the use to which lots or exclusive use areas may be lawfully put without contravening the DA. The relevant use provided for in the DA is a multi-unit dwelling. The vergola is not inconsistent with that use.
­ As contemplated by By-law 5.14(b), if the respondent needs to obtain any further approvals (such as Brisbane City Council (BCC) approval) it will provide copies to the Body Corporate.
­ By-law 5.8 was inserted as a consequence of condition 17 of the DA. The DA condition requires that all balconies and terraces shown on the approved drawings and documents are to remain unenclosed with no shutters, glazing, louvers or similar permanent structures, other than those consistent with the relevant Brisbane City Plan 2000 – Residential Code and clearly depicted on the approved drawing. The condition then requires a by-law in those terms. By-law 5.8 is in those terms. By-laws of this nature of have been required by the BCC in all new developments since 2000 and a history of the requirement is provided, in that the purpose was to avoid post-approval increases in gross floor area.
­ The respondent asserts that Bylaw 5.8 is not relevant here because it is not proposing to install louvers, shutters or blinds, the vergola is not being installed on a balcony or terrace, and the vergola will not enclose the courtyard. Argument is provided on the meaning of the terms ‘balcony’, ‘terrace’ and ‘enclosed’.
­ The respondent provides expert advice from Land Partners Build Environment Partners asserting that the proposed vergola does not contravene the DA conditions or By-law 5.8.
­ By-law 5.14 requires Body Corporate consent for work on a lot that requires alterations to the structure of the building or utility infrastructure. The by-law draws a distinction between works which will affect the structural integrity of the building and those which will not alter or have an impact on the structure or the structural integrity of the building. The question of whether the proposed installation is itself a structural alteration is not relevant. No approval is required if there is no impact on the structural integrity of the building.
­ Argument is provided on the meaning of ‘structural alteration’. The relevant test is asserted to be whether the attachment (as opposed from the vergola itself) will become part of the fabric of the building, will be substantially affixed to the underlying structure to the point where they become indistinguishable from each other, will be long-term if not permanent in nature, and are not readily or easily removable. The revised plans for the vergola (dated 22 December 2008) show that the vergola will only be attached to the building by intermediate fixing points. As such it is not a structure alteration and will not alter the building.
­ By-law 5.18 provides various requirements for works installed on common property. The respondent says it has commissioned revised drawings with the express purpose of ensuring that the vergola will be wholly confined within the boundaries of the lot.
­ In regard to whether the proposal to affix the vergola to the underside of the balcony of Lot 2 is an alteration to common property, the respondent refers to the Registrar of Titles Directions for the Preparation of Plans and to an expert advice from Land Partners as to the vertical boundary of the Lot 1 courtyard. On that basis they assert that the upper boundary of Lot 1 is the centre of the balcony slab and that the vergola would be wholly constructed within the boundary of Lot 1. As such the vergola will not be attached to common property.
­ For the same reasons, By-law 5.16 is not relevant.
­ In regard to section 167 of the Act, the applicant does not provide specifics of the alleged interference, but refer only to issues raised by the Josephs. They assert that the applicant has provided no expert evidence that the vergola will result in increased glare or noise.
­ The respondent submits that section 167 cannot act prospectively to matters which, if allowed, might possibly cause a nuisance in future, rather than retrospectively to matters which are quantifiably interfering unreasonably with another’s use and enjoyment of their lot. The suspicion or apprehension of possible nuisance is not sufficient to invoke section 167. The proper cause of action is to wait until the vergola is installed and if a problem arised to seek redress at that time.
­ The only exception would be something which by its nature can only be done or used in a way that constitutes a nuisance and the vergola does not fall into this category.
­ Although there is a possibility that the vergola could increase glare, this could only occur on bright sunny days when the vergola is closed and any problem could be remedied, according to Nettleton Tribe, by applying a dark or neutral colour. As such the vergola could be used without causing a nuisance.
­ Argument is provided on the test for ‘unreasonable interference’, and on whether the interruption or interference with a view can constitute a nuisance. It is submitted that section 167 is a statutory adoption of the common law tort of nuisance where the amenity of a view has never been accepted, that town planning legislation provides to preserve views where relevant, and that as a consequence there is no action of breach of section 167 for an interference (whether reasonable or unreasonable) with the views of another.
­ Even if section 167 was broad enough to cover interruption of views, it is asserted that there would be no unreasonable interference with the view. They assert that from the current drawings, the impact on the Lot 2 view would be to prevent them viewing a portion of the Lot 1 exclusive use courtyard and, at worst, to prevent them viewing approximately 14 square metres of boardwalk. However the full extent of the interruption only arises when a person is standing at the extreme rear back corner of the Lot 1[3] and that in other locations or from a seated position there will be much less obscuring of the view. It is submitted that it could never be unreasonable to block the view to another owners’ lot or exclusive use area. In regard to the obscuring of the boardwalk it is submitted that this has no great attractiveness, any impact is minor and is so inconsequential as to reduce the enjoyment of Lot 2. If anything there will be a modicum of additional privacy for Lot 2. There will be no impact on the view of the river.
­ The respondents engaged MWA Environmental to conduct noise testing on a roof which is materially identical to the proposed vergola to assess the impact of rain on the vergola. The conclusion was that the vergola would generate significantly less noise from rain than a traditional steel roofing system. The noise from rain striking the concrete paving where the vergola is to be sited would create an existing source of rain noise. The vergola would only cover part of the paved area and would not, in MWA’s opinion, “...result in noise which is of a character or level that would be perceived as adverse in nature as compared from rainfall events experienced presently.” The report also notes that the solid glass balustrades on the units above act as noise barriers. As such the respondents submit that even if there was some increase in rain noise it would not affect Lot 2 in any substantial or unreasonable way.
­ In regard to glare there is no undisputed formula to measure glare and so it is not possible to ascertain whether there it is likely or even remotely possible that Lot 2 will suffer increase in glare or reflection. Section 167 cannot be relied upon merely for the remote possibility that there might be some increase in glare. The applicant and Josephs have provided no evidence to support the supposition that increased glare will result. There are simple remedies for example the vergola can be coated with a non reflective surface.
­ It is disputed the vergola will detract from the overall appearance of the building and Arkhefield asserts it will have a positive impact. Reference is made to case law to the effect that the unsightly condition of a building or structure alone will not constitute a nuisance.
­ The respondent will maintain the vergola and is prepared to give any further reasonable undertaking about the maintenance and upkeep of the vergola to ensure that it remains in an appropriate condition and state of repair.
­ On the basis of its submission, there is no obligation on the respondent to obtain approval from the Body Corporate for the vergola and the respondent is at liberty to install it without further reference to the Body Corporaet.

The submission from the Josephs opposes the vergola for the reasons outlined in their letter to the Body Corporate on 28 November 2008. They note that Nettleton Tribe has confirmed that the vergola presents an unreasonable interference. They support the granting of an interim order to preserve the status quo pending the proper resolution of the issues in dispute.

The submissions from three other owners (Lot 5, 7 and 14) also oppose the vergola. Comments include that the vergola:

­ Should not be approved without consideration by owners, particularly those who will view it.
­ Was not on the plans when they purchased their lots.
­ May diminish the value of the apartments.
­ Will diminish the overall look of the apartments and gardens from the front of the building and from higher units, and will look out of place as there is nothing similar in the other towers.
­ Will cause unknown amounts of glare to apartments above.
­ Will catch leaves and dirt, which would look unsightly from above.

JURISDICTION

I am satisfied that this is a matter which falls within the legislative dispute resolution provisions.[4]

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, in the context of a community titles scheme, about:

(a) a claimed or anticipated contravention of the Act or the CMS; or

(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.[5] An adjudicator's order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate.[6]

Section 279(1) of the Act allows an adjudicator to make an interim order if satisfied, on reasonable grounds, that an interim order is necessary because of the nature or urgency of the circumstances.

DETERMINATION

Urgent interim relief

At this time, I am concerned with the application for an interim order and the threshold issue of whether interim orders are warranted. An interim order will not be granted unless is it necessary due to the nature or urgency of the circumstances.[7] Any order granted must be just and equitable in the circumstances.[8] The examples in section 279 of the Act indicate the usual circumstances where an interim order might be made and are in the nature of injunctive relief.

While it is not possible to define the range of matters that might be the subject of an interim order, an applicant needs to establish that the circumstances warrant an interim order. An interim order will not be made if the only urgency relates to an applicant’s desire to resolve or expedite the matters in dispute, or where the nature of the circumstances are such that the matter is not capable of being dealt with in the context of an interim order.

Notwithstanding that the respondent has provided a comprehensive submission addressing all the issues, it is not appropriate to consider the substantive issues in the application in detail at this time. This will occur once all parties have had an opportunity to make submissions and the applicant has had the opportunity to respond to submissions. However, to determine whether it is just and equitable to grant interim relief, it is relevant to briefly consider the issues raised in the application.

As an interim order can be considered on an ex parte basis, an adjudicator must be satisfied that the application raises serious legal questions and that the balance of convenience between the parties justifies injunctive relief. That is, an adjudicator must balance the inconvenience of granting relief now if final orders are ultimately refused against the inconvenience of refusing relief now if final orders are ultimately granted. Of particular relevance is evidence that an interim order is necessary to prevent serious or irreparable harm.

Serious legal question

Approval

The first issue for consideration in this matter is whether the respondent required Body Corporate approval to construct the vergola. If Body Corporate approval is required, the various architectural and other expert opinions as to the impact of the vergola may be relevant considerations for owners or the Committee (as applicable) to consider in making a reasonable decision on the request to install the vergola.

By-law 5.14 provides as follows:

Works relating to Lots

5.14 You must not carry out works within your Lot unless:

• (a) if the work requires alterations to the structure of the building, or utility infrastructure, you obtain the consent of the Body Corporate and comply with any conditions imposed by the Body Corporate when giving consent; and
• (b) you obtain any approvals required by law for the work and give copies of those approvals to the Body Corporate.
  

The applicant claims that the vergola changes the existing structure, adds a new structure and is anchored to the building. If the vergola alters the structure of the building, it requires Body Corporate approval. It is arguable that Committee approval would be sufficient under this by-law, however that would not prevent the Committee referring the matter to a general meeting for consideration if they considered that desirable.

The respondent asserts that the works do not involve a structural alteration and present lengthy argument on this point. However, if the vergola structure is to be attached to the existing building, it is certainly arguable that it is adding to the current structure and that it relies on the building for support. I am of the view that this is a serious legal issue which warrants further consideration.

The Body Corporate also claims that part of the vergola will protrude into common property. If the vergola is attached to common property or would protrude into common property, even if only in a minor way, Body Corporate approval for the installation would be required under By-law 5.16. By-law 12.3 also provides that a lot owner must not make an improvement to an exclusive use by-law area without the consent of the Body Corporate.

Moreover, regardless of the by-law, section 164 of the Standard Module requires Body Corporate authorisation for improvements to the common property for the benefit of a lot owner. Normally such approvals require an ordinary resolution at a general meeting. However if the improvement is minor (with an installed value of less than $3,000); and does not detract from the appearance of any lot or common property; and its use is not likely to promote a breach of the owner’s duties as an occupier, then a committee resolution would be sufficient. In this case it is arguable that an ordinary resolution would be required. If the improvement was to an area of exclusive use, section 174 of the Standard Module applies. Where an exclusive use by-law does not authorise improvements (which is the case here) improvements can only be made to the exclusive use area with Body Corporate consent and where the value of the improvement is more than $3,000 an ordinary resolution will be required.

There is some indication that the original design for the vergola originally protruded at least into the exclusive use area of common property allocated to Lot 1. However the respondent advised that the design has since been adjusted so that the vergola will be solely located within Lot 1. If this is the case, it indicates that the Body Corporate was correct in its initial assertion that general meeting approval was required and was justified in seeking to prevent the construction of the vergola without general meeting consideration. It is unclear whether the respondent has informed the applicant of the change in design which purportedly brings the installation within the boundaries of Lot 1. This information may now alter the applicant’s application in some respects.

By-law requirements

The second issue is whether the vergola is contrary to any other by-law provisions.

By-law 2.7 requires compliance with conditions or requirements imposed by the development approval for the scheme which relate to the use of the lot or the exclusive use area. The Body Corporate suggests that the vergola will breach this by-law because it is not depicted on the DA for the site, but has not expanded on the DA requirements. Arguably the fact that a structure is not on the original approved plans does not necessarily mean that it contravenes the conditions or requirements imposed on the scheme. The respondent provides an expert opinion that the vergola would not offend the DA conditions. However the applicant has not had the opportunity to respond to this opinion and this is an issue that may warrant further investigation.

By-law 5.8 provides that owners must comply with any DA conditions providing that the balconies and terraces for Lots must remain unenclosed with no shutters, glazing, louvres or similar permanent structures other than those that are clearly depicted on the drawings included in the DA. The applicant has not provided details of the DA but they indicate that the proposed vergola is not shown on the DA plans. There is a valid question over whether the vergola ‘encloses’ the courtyard, whether the courtyard falls into the category of a balcony or terrace, and whether the vergola a structure of the nature of ‘shutters, glazing or louvres’. Considerable argument has been provided by the respondent on these matters but the applicant has not yet had the opportunity to respond. Again, further investigation would be warranted to determine whether the vergola is covered by or offends this by-law.

Nuisance

The third aspect of the application is whether the vergola would be likely to cause a nuisance or unreasonably interfere with any other owner’s lawful use of their lot, pursuant to section 167 of the Act. In a previous matter in another scheme an adjudicator accepted that glare could constitute a nuisance and that obstruction of views could interfere with the enjoyment of a lot[9]. The issue of noise and the building appearance have also been raised. The applicant has provided little detail or evidence of any alleged nuisance or interference and as yet the parties have not commented on any scope to modify the proposed vergola to address any concerns.

The respondent has presented extensive arguments disputing that section 167 can be applied prospectively and this is argument has some attractions but it warrants further consideration. They also present argument and evidence disputing that any unreasonable interference is likely to occur. The applicant must have the opportunity to respond before the matter could be determined.

Inconvenience from an interim order

The respondents have indicated a general willingness not to progress the vergola until the application is determined but have not specifically commented on the request for an interim order. I accept that the respondent would like to commence work on the vergola and increase the shade to their lot. But the respondents have provided no evidence of any particular urgency or inconvenience that would be incurred by a delay in the works. There may be significantly greater inconvenience and cost to the respondent if they were to commence the works and the ultimate determination was that the vergola could not be installed, could only be installed with modifications, or could only be installed with the Body Corporate’s consent.

Conclusion

I am satisfied that this application raises genuine questions about whether Body Corporate approval is required for the vergola, whether the vergola contravenes any by-laws, and whether the vergola is likely to cause a nuisance or unreasonably interfere with another owner’s use of their lot. There appear to be numerous legal issues which will require further consideration.

On the evidence before me I do not consider that any inconvenience from the interim order sought outweighs the justification for halting installation of the vergola until these issues can be properly investigated and determined. Accordingly I am satisfied that it is appropriate to make an order preventing the construction of the vergola until this application is resolved. This restriction will not apply if the Body Corporate decides to approve the vergola (and presumably in such circumstances the application would be withdrawn.)

I am of the view that conciliation conducted by the independent trained conciliators in the Commissioner’s Office would assist in progressing a resolution to this dispute. It may be that the parties (including the Owner of Lot 2) may be able to work through some of the concerns with the vergola and canvass the scope for modifications that could address any concerns. Resolving such concerns could assist the proposal receiving Body Corporate approval, to the extent that approval is required. As the Committee has indicated an intention to submit this issue to a general meeting, it may be that parties agree that it would be appropriate for this process to proceed as there may no longer be a dispute between the Body Corporate and the respondent if the Body Corporate approves the vergola. For these reasons I intend to return this application to the Commissioner with a recommendation that it be referred for conciliation.

It is not clear whether the respondent has, prior to lodging their submission, advised the applicant and any concerned owners of the modifications which they have apparently made to the proposed design. This information may alter the applicant’s position on the matter. Moreover, the design modifications and the evidence submitted by the respondent may address some of the concerns raised by the opponents of the vergola. These matters could be considered in conciliation.

Effect of an Interim Order

The matter will now be investigated in accordance with the usual processes undertaken by this Office. As indicated, in the first instance it will be referred for conciliation. If conciliation is unable to resolve the matter, the matter will proceed to the investigation of the final order including calling of submissions from all affected parties.

All parties should note the provisions of section 279(2) of the Act, which provides that:

(2) An interim order—

(a) has effect for a period (not longer than 1 year) stated in the order; and

(b) may be extended, varied, renewed or cancelled by the adjudicator until a final order is made; and

(c) may be cancelled by a later order made by the adjudicator; and

(d) if it does not lapse or is not cancelled earlier, lapses when—

(i) the application is withdrawn; or

(ii) the commissioner gives the person who made the application a written notice under section 241 rejecting the application; or

(iii) a final order is made by an adjudicator to whom the application is referred.

I have provided that this interim order has effect for a period of not longer than six months. I have allowed this period to give adequate time for the conciliation process to occur and for submissions to be called from all affected parties if conciliation is not wholly successful. However I would hope that the matter would be able to be progressed in a much shorter period of time.

It is the responsibility of the applicants to apply to extend this order if no final determination has been made within that period. This Office will not automatically renew an interim order and the order will automatically lapse upon a final order being made or this application being withdrawn.

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[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] Section 247(3) of the Act
[3] It appears that the respondent may have intended here to refer to the location on the Lot 2 balcony.
[4] See sections 227, 228, 276 and Schedule 5 of the Act
[5] Section 276(2) of the Act
[6] Section 284(1) of the Act
[7] Section 279 of the Act
[8] Section 276 of the Act
[9] D Toohey in Scenic Point [2003] QBCCMCmr 299 (22 December 2003)