St. Andrews Heights Estate [2010] QBCCMCmr 11 (7 January 2010)

Last Updated: 18 March 2010

REFERENCE: 0635-2009

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	20482
Name of Scheme:	St. Andrews Heights Estate
Address of Scheme:	12 Handel Avenue WORONGARY QLD 4213

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

The Body Corporate against the Owner of lot 31, John Brand

I hereby order that the application for an order for removal or relocation of the solar hot water system from the roof of lot 31 is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0635-2009

“St. Andrews Heights Estate” CTS 20482

APPLICATION

This is an application by the Body Corporate for St. Andrews Heights Estate (the Applicant), against the owner of lot 31 and committee member, John Brand (the Respondent), seeking an order for the removal or relocation of the solar hot water system from the roof of lot 31.

The grounds to the application are to the effect that:

• Mr Brand installed a solar hot water system to the roof of his lot, without seeking body corporate approval to do so, in contravention of by-law 29.
• At a committee meeting on 10 December 2008, Mr Brand was given an opportunity to find an alternative location for the system.
• At the committee meeting of 11 February 2009, it was noted that Mr Brand had failed to respond to the Committee’s request to find an alternative location for the system and it was resolved to issue a “Notice of Continuing Contravention of a Body Corporate By-law”.
• At the committee meeting of 1 April 2009, it was resolved to make an application for Conciliation to this Office. No agreement was reached at conciliation, hence this Adjudication application.
  

JURISDICTION

“St Andrews Heights Estate” was registered as a group title (now known as standard format) plan of subdivision on 28 September 1990 comprising 30 lots and common property. The scheme has since been re-subdivided and now comprises some 46 lots and common property. The scheme is regulated by the Body Corporate and Community Management Act 1997 (the Act) and the Body Corporate and Community Management (Standard Module) Regulation 2008 (the Standard Module).

This is a dispute between the body corporate and the owner of lot 31 and comes within the dispute resolution provisions of the Act (see sections 226, 227 & 228).

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 community management statement; or

(b) the exercise of rights or powers, or the performance of duties, under the Act or the community management statement; or

(c) a claimed or anticipated contractual matter about-

(i) the engagement of a person as a body corporate manager or service contractor for a community titles scheme; or

(ii) the authorisation of a person as a letting agent for a community titles scheme.

An order may require a person to act, or prohibit a person from acting, in a way stated in the order (section 276(2)). An adjudicator's order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate (section 284(1)).


SUBMISSIONS

In accordance with section 243 of the Act, a copy of the application was provided to the body corporate manager, Ernst Body Corporate Management Pty Ltd for distribution to the owners of all lots, and specifically to the owner of lot 31, as the Respondent, with an invitation to respond to the matters raised in the application.

Submissions from owners of 18 lots were received. The majority of these submissions were a pre-printed letter to this Office on which the owner/s merely indicated whether or not they believed the solar hot water unit located at 31 Handel Avenue, Worongary should remain where it is or be removed. Six of the submissions were supportive of the actions of the body corporate in seeking to have the unit either removed from the roof of lot 31 or relocated. Twelve of the submissions indicated that the solar hot water system should remain where it is.

The few submissions which were supportive of the unit being removed and contained additional comment were to the following effect:

• The only objection is that the Respondent did not seek body corporate permission first. The unit can’t be seen from common property and is good for the environment.
• If one person ignores the rules, what’s to stop everyone else from doing their own thing?
  

The submissions which were supportive of the unit remaining where it is and contained additional comment were to the following effect:

• Body corporate rules in relation to this issue are outdated and out of step with current community thinking and expectation, state and federal government policy and broad-based social responsibility.
• The system does nothing to interrupt the quiet enjoyment of any neighbour’s properties. It has no noise impact and is optimally located in its current position.
• The system has been placed in its current location so as to optimise its operation and efficiency.
• Firm precedence exists for the body corporate to allow an installation to remain in spite of written permission not being received prior to installation. The installation of a system at 44 Handel Drive was approved post installation.
  

The submission of the Respondent was to the following effect:

• When purchasing his solar hot water unit he was informed by all solar hot water companies that the best position for the unit was on his roof, in its current position.
• He did not know he needed approval, as the pool house has been approved by both body corporate architects (W. N. Webb & Associates) and Gold Coast City Council.
• The colour of the solar hot water unit matches perfectly with the roof.
• By-laws for the estate were drafted 15 to 20 years ago and are now out of step with community expectations, government policies, both State and Federal, which are encouraging communities to “go green”.
  

The body corporate did inspect the submissions made in response to the application but did not exercise its right to reply to them.

DETERMINATION

Applicable Law

As part of its general functions under the legislation, the body corporate must enforce the community management statement, including any by-laws, for the scheme (Section 94(1)(b), Act). The body corporate must act reasonably in anything it does in this regard, including making, or not making a decision (Section 94(2), Act).

If a by-law is inconsistent with this Act, a regulation module, or another Act, the by-law is invalid to the extent of the inconsistency (Section 180(1), Act).

By-law 29 External Appearance of Lot, as recorded in Schedule C of the current CMS (registered on 24 December 2008) provides as follows:

A proprietor or occupier shall not paint or affix any signs advertisements notices or posters to or on any part of his Lot nor do anything to vary the external appearance of his Lot without the prior consent of the Body Corporate PROVIDED ALWAYS that whilst the Body Corporate remains the proprietor of any Lot it or its servants and/or agents may without the consent of the Body Corporate paint or affix any signs, advertisements, notice or notices or posters to or on any Lot or any part of the common property for the purpose of offering any Lot for sale.

Findings

Applicability of By-law 29

This application is premised on the requirement in by-law 29 for an owner to not do anything to vary the external appearance of his Lot without the prior consent of the Body Corporate and the alleged failure of the Respondent to obtain prior consent to his installation of a solar hot water unit on the roof of lot 31.

The Respondent appears to concede his failure to request prior approval when he states that he did not know he needed approval, as the pool house had been approved by both body corporate architects and Gold Coast City Council. He goes on to question the relevance of the by-law in its application to owners’ endeavours to reduce their “carbon footprint” and “go green”.

In my view, the application of by-law 29 to the installation of a solar hot water system is arguable. The by-law specifically refers to a prohibition on painting or affixing any signs, advertisements, notices or posters to or on any part of a lot and then contains a general prohibition on doing anything to vary the external appearance of a lot, without the prior consent of the body corporate. The by-law then goes on to make an exception for the need to obtain consent while the body corporate remains the proprietor of any lot, for it to paint or affix any signs, advertisements, notice or notices or posters to or on any lot or any part of the common property for the purpose of offering any lot for sale.

The ejusdem generis rule of statutory interpretation states that where a list of specific terms is followed by a general term, the general term is limited to the general category of items established by the specific terms.

Phrases such as “...do anything to vary the external appearance of the lot” occur in many by-laws and have been interpreted in previous adjudications. In one case[1] the Adjudicator determined that this generic expression did not cover the enclosing of balconies when it followed words preventing the erection of advertisements, notices or posters and was in a by-law with the specific heading of ‘Signs, Notices or Posters’. The Adjudicator also noted that if it were interpreted literally, then other by-laws about the appearance of lots would be redundant. However in a different dispute[2] the same Adjudicator felt that changing patio tiles would require approval under a similarly worded by-law.

Another Adjudicator made the following comments[3]:

“By-Law 4 provides that (in part) “Proprietors shall not paint or affix any signs, advertisements, notices or posters to or on any part of the premises nor do anything to vary the external appearance of their lots without the prior consent of the Committee for the Body Corporate”. ... I consider that By-Law 4 is limited by the particular words used, and applies to varying the external appearance of a lot to the extent contemplated by the specific words used in the By-Law. I do not consider that the By-Law can be used for any alleged varying in the external appearance of a lot. In my opinion, it would be unreasonable to construe such a wide meaning to the By-Law, especially given the particular words used in the By-Law and the fact that the body corporate has made other specific By-Laws to regulate other activities which may affect the external appearance. Therefore, I do not consider that the body corporate currently has a power to regulate the replacement of tiles on a lot in the scheme.”

The by-law considered by the Adjudicator in that matter was identical to the wording of by-law 29 in this case, except that in that case, the consent of the committee was required, whereas here, the consent of the body corporate is required. Given that the committee could give the consent of the body corporate in any event in this case, the difference is irrelevant. Although the by-law in the previous case contained no heading and by-law 29 in this case is headed “External Appearance of Lot”, I am of the view that the insertion of a generic heading does not prevent the application of the ejusdem generis rule to the interpretation of by-law 29.

Schedule C of the CMS for the scheme contains 53 By-Laws. A number of these By-Laws regulate the use and enjoyment of a lot, for example the parking of vehicles (by-law 2), maintenance of lots (by-law 23), erections (by-law 30), windows (by-law 31), outside wireless aerials (by-law 32), alterations to lots (by-law 33), driveways (by-law 47), washing lines (by-law 49) and lot improvements (by-law 54). In this case too, the body corporate has made other specific by-laws to regulate other activities which may affect the external appearance of lots.

The similarities between Sunseeker Lodge and this case are such that I am of the view that I must follow that decision. Therefore, I do not consider that the body corporate currently has a power to regulate the installation of solar hot water systems on the roofs of lots under by-law 29. Accordingly, this application must fail.

If Consent Had Been Required.....

Even if the consent of the body corporate had been required under by-law 29, based on the submissions received in response to this application, I would have been of the view that it would have been unreasonable for the body corporate to have refused such consent. This is on the basis that the only objections made to the installation of the solar hot water system on the roof of lot 31 were that permission was not first sought and that this is not a good example for other others to follow. There has been no submission made that the installation has any detrimental effect on any owner or occupier. On the contrary, one of the submissions made in support of this application was to the effect that the unit can’t be seen from common property and is good for the environment. Based on the submissions made in response to this application, it appears as though body corporate consent would have been achieved in any event if the issue had been decided at a general meeting of the body corporate, with 12 of the 18 submissions made in favour of the Respondent.

Changes to the Building Act 1975

The parties may be interested to note new provisions of the Building Act 1975, in relation to sustainable housing measures, which came into effect on 1 January 2010. In particular, section 246O would operate to render a by-law which in effect, prohibited the installation of a solar hot water system on the roof of a building of no force or effect to the extent that the prohibition applies merely to enhance or preserve the external appearance of the building.

ORDER

For these reasons I have made the order above.

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[1] Bayview Shores  [2006] QBCCMCmr 241 (15 May 2006)
[2] Sandown  [2006] QBCCMCmr 348 (28 June 2006)
[3] Sunseeker Lodge [2005] QBCCMCmr 565 (13 October 2005)