Mission Development [2010] QBCCMCmr 209 (17 May 2010)

Last Updated: 9 June 2010

REFERENCE: 0048-2010

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	18526
Name of Scheme:	Mission Development
Address of Scheme:	59 Mountain View Close MISSION BEACH QLD 4852

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

Michael Poole, the Owner of lots 1 & 2.

I hereby order that the applicant is entitled to locate a pre-fabricated dwelling on each of lots 1 and two. I further order that the body corporate is deemed to have given permission to the applicant to locate a pre-fabricated dwelling on each of lots 1 and two.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0048-2010

“Mission Development” CTS 18526

THE SCHEME

“Mission Development” was registered as a group title plan (now known as standard format plan) of subdivision on 10 September 1992 comprising 5 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). It currently consists of vacant land adjoining tropical rainforest in the Mission Beach area.

APPLICATION

This is an application by the owner of lots 1& 2, Michael Poole, (the Applicant), against the Body Corporate for “Mission Development” (the Respondent), seeking the following final outcomes:

1. That motions 12 & 13 considered at the last AGM be deemed to have been carried.

2. approval of plans to build two disabled accessible houses and then to be able to live in one lot and rent the other lot.

At the last AGM for the scheme held on 16 December 2009, the applicant submitted the following motions for consideration:

12. Ordinary resolution – Approve construction of cabin on lot 1 & lot 2 submitted by M Poole

To approve construction of a cabin on lot 1 and lot 2 (enclosed 2 plans).

The minutes of the meeting disclose that the motion was declared defeated as the following votes were received: Yes: 2 votes, No: 2 votes.

The applicant has provided photographs and plans of the proposed dwellings as well as a compliance certificate from the Cassowary Coast Regional Council regarding the applicant’s on-site treatment plant.

SUBMISSIONS

Pursuant to section 271 of the Act I sought submissions from all owners other than the applicant, regarding the requested interim order. As at 12 February no submissions had been received.
By letter dated 16 February, lot owners were again invited to make submissions regarding the final orders sought by the applicant.

The owners of lot 3 made submissions including the following:

• They agree to the hire of a lawnmower at a cost of $55 per month so as to reduce the presence of vermin in the area;
• They object to the building of cabins on lot 1 and lot 2 as proposed because they do not agree with the style proposed and feel that the presence of cabins will devalue other lots in the scheme and set a precedent for approval of other building styles;
• There are more suitable building styles available to accommodate people with disabilities;
• They suggest that the applicant avail himself of building styles that suit the local environment;
  

The owner of lot 4 made submissions which included the following:

• The plans submitted by the applicant are “transportable dongas”. The applicant proposes to site 2 “dongas” and build verandahs at the front and back.
• He believes that these types of buildings are normally found in mining or road work camps and he believes that they would constitute an eyesore and devalue other properties in the scheme;
• The applicant has tendered alternate plans with 2 one bedroom units . These are small and basic and he does not believe they are suitable for this location;
• Location of the 2 units would involve dual occupancy which he believes would involve a material change of usewhich would probably not be approved by the local authority;
• In addition, town sewerage is not connected and therefore there would need to be 2 sewerage systems on one lot.
• He suggests that the applicant first discuss his proposals with the local council so as to find out what buildings are appropriate within the current zoning of the land;
  

In response the applicant made the following submissions:

• Properties have already been devalued by the failure to install electricity and their failure to maintain the common property as well as their lots;
• The improvements which he proposes to make to lots 1 & 2 will be valued at approximately $100,000 per lot and would actually add value to the vacant and unimproved lots.
• There are only 5 lots in the scheme so the argument that a precedent would be created is of little weight;
• A ramp for disabled access must meet a 1:14 ratio which he believes can be done;
• A smaller house does not have as much impact on the environment as a large house;
• 2/3 of lot 2 has not been cleared and the 1/3 cleared is equal to land cleared on lot 3;
• Lot 1 was cleared for building by the previous owner;
• He has helped the Conservation Corps to clean paths on the property for cassowaries and set up feed stations which he has maintained;
• He plans to build on both lots 1 & 2, not just lot 1 as stated and it is not proposed to have dual occupancy;
• The septic system installed is for single occupancy use as approved by the Council;
• The drawings & diagrams submitted to BCCM do not show dual occupancy;
• The Council has reviewed the Ausco plans for building and will approve these if the dwelling contains a laundry, shower, toilet, kitchen sink and bathroom basin.
  

JURISDICTION

This is a dispute between the owner of a lot and the body corporate 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)).


DETERMINATION

At the interim stage I made an order that the body corporate is deemed to have made a valid resolution to hire a mower from Laura Leigh’s Munchies International Pty. Ltd. at a cost at $55 per month to enable the applicant to mow the grass growing on common property

Therefore, at this point in time I am considering the applicant’s request for an order that the body corporate approve of his plans to build two disabled accessible houses and then to be able to live in one lot and rent the other lot.

Mission Development” was registered as a group title plan (now known as standard format plan) of subdivision on 10 September 1992 and comprises 5 lots and common property. At present all lots comprise vacant land and I note from submissions that only the applicant has plans to build in the foreseeable future.

I note that the applicant is the owner of two lots in the scheme and at present both lots comprise vacant land. He wishes to construct buildings on both blocks in the near future and has prepared plans for this purpose. I have sighted photographs and flor plan for the pre-fabricated homes which the applicant wishes to locate on his land and note that the dwellings each contain 2 bedrooms, 1 bathroom and laundry.

The applicant has also advised as follows:

• He plans to build on both lots 1 & 2, not just lot 1 as stated and it is not proposed to have dual occupancy;
• The septic system installed is for single occupancy use as approved by the Council;
• The drawings & diagrams submitted to BCCM do not show dual occupancy;
• The Council has reviewed the Ausco plans for building and will approve these if the dwelling contains a laundry, shower, toilet, kitchen sink and bathroom basin.
  

While the applicant has sought permission from the body corporate to place two dwellings on his lots, I do not believe that in this case the permission of the body corporate is necessary. I have perused the records for this scheme held by the Department of Natural Resources and Water and am unable to find any be-law which obliges a lot owner to firstly obtain the permission of the body corporate.

Usually such a requirement is contained in the by-laws for the scheme. In this case the last community management statement is dated 15 July 200 and states that pursuant to section 285(5)(a) of the BCCM Act, the by-laws for this scheme are those by-laws in effect as at 13 July 2000. I can find no record of any by-laws having been registered prior to this date and therefore, I believe that the standard by-laws contained in Schedule 3 to the Building Units and Group Titles Act applied to the scheme from the time of establishment, and continue to apply. The Schedule 3 by-laws contain no requirement to obtain the consent of the body corporate before constructing a dwelling or making modifications to an existing dwelling.

In any event, even if there was a requirement to firstly obtain the consent of the body corporate, the body corporate is required by subsection 94(2) of the Act to act reasonably in anything that it does. In the present circumstances all lots are currently vacant land, the applicant has proposed to build a pre-fabricated home on each of his two lots. These structures will meet the requirements of the Building Code of Australia as well as the requirements of the Cassowary Coast Regional Council.

I also note that since 1 January 2010 covenants and by-laws can no longer contain the following requirements:

• Minimum floor areas;
• Minimum number of bedrooms and bathrooms,
• More than one garage; and
• Minimum roof pitches.
  

I therefore propose to order that the applicant is entitled to locate a pre-fabricated modular dwelling on each of lots 1 and 2.