No. 9 Port Douglas Road [2010] QBCCMCmr 389 (25 August 2010)

Last Updated: 23 September 2010

REFERENCE: 0780-2010

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	24368
Name of Scheme:	No. 9 Port Douglas Road
Address of Scheme:	9 Port Douglas Road PORT DOUGLAS QLD 4877

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

Michael & Christina McEvoy, the Owner(s) of lot 16

I hereby order that the application is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0780-2010

“No. 9 Port Douglas Road” CTS 24368

Application

No. 9 Port Douglas Road Community Titles Scheme (Port Douglas Road) is an 18 lot scheme under the Body Corporate and Community Management Act 1997 (Act) and the Act’s Accommodation Module Regulation (Accommodation Module). The scheme is designed for residential purposes. Lot boundaries are designated under a building units plan (now known as a building format plan).

This is an application by Michael and Christina McEvoy, owners of lot 16 (applicants) seeking orders against the body corporate for Port Douglas Road (respondent).

The applicants have attached a draft plan for internal renovations to unit 16. Attached documentation also includes a compliance certificate for modifications to an atrium that would be performed as part of these renovations. The applicants say that the body corporate committee is unreasonably refusing to approve the proposed internal renovations. An order is sought to require the body corporate to authorise the proposed renovations.

Submissions

The applicants refer to body corporate permission in 2007 to allow them to make certain alterations to lot 16. This allowed for relocation of the kitchen and dining area to create an additional bedroom with ensuite. Further approvals are now sought to move the second bedroom forward around the atrium and add a bathroom, move the bathroom for the third bedroom and slightly enlarge the room, and move the fourth bedroom to where the current kitchen is. It is submitted that existing plumbing will be used and the proposed works will not interfere with other owners.

Submissions on behalf of the committee oppose the orders sought. Firstly, the committee is concerned about plans to build over the atrium area. It is submitted that body corporate may need to pipe light from above the atrium area to the main foyer. In particular, that the atrium area and the area above it is common property and a resolution without dissent would be required to authorise the applicant to use this area. Secondly, concern is expressed about the proposed plumbing and the ability to link draining pipes to existing plumbing while retaining adequate fall. Thirdly, concern is expressed about the potential creation of a separate self-contained living area. In this regard the committee raises concerns about the proposed door through a fire wall, the lack of car parking for an additional unit, and the lack of council approval.

Decision

Applicable law

By-law 3 includes the limitation "No structural alterations shall be made to any Unit (including any alteration to gas, water or electrical installations or work for the purpose of enclosing in any manner whatsoever the balcony, if any, of any Unit and including the installation of any air-conditioning system)". It can be reasonably implied that by-law 3 would allow alterations of this nature if body corporate approval is granted. As a matter of law, an approval pursuant to by-law 3 will ordinarily be able to be given by the committee and an owner has a right to expect that the committee act reasonably in deciding whether or not to grant the approval (Act, 100).

Approval to use areas of common property in performing renovations is an entirely different matter. Improvements to common property for the benefit of an owner’s lot can sometimes be authorised by the committee or by owners in general meeting (Accommodation Module, 162). However, any proposal that would effectively result in a disposition of the common property would require a special resolution or resolution without dissent (Accommodation Module, 159).[1]

Determination

The registered plan indicates that the atrium area and the area above it is common property. The applicants proposed plans that involve building over the atrium area would appear to amount to the applicants taking exclusive use of this area above the atrium. Approval of this aspect of the plans would therefore require a resolution without dissent to sell the relevant area to the applicants or grant them exclusive use of the area.[2] In short, the applicants could gain committee approval to simply erect full length walls around the atrium area at the boundary between their lot and the common property. However, by closing off the top of the atrium and seeking to use part of the area from above the atrium up to the ceiling, the applicants would be purporting to take exclusive use of a common property area for their own benefit.

If the applicants altered their plans to refrain from using common property areas then committee approval for the plan would be sufficient. However, I note that the committee has expressed concerns about whether there would be adequate fall for the proposed drainage. The committee has also raised issues relating to the potential creation of an additional self-contained living area. Unless the applicants could adequately address these concerns then it would not seem reasonable to require the committee to approve the plans even if no use of common property areas was proposed.

Conclusion

The fundamental problem with the application is that it misconceives the legal requirements regarding use of common property or fails to understand that the atrium and area above it is a common property area. The application also appears premature and lacking in grounds in that the applicants have not provided evidence that they have attempted to adequately address the other areas of committee concern. In the circumstances, the application for interim and final orders should be dismissed (Act, 270(c)). I would encourage the applicants to reconsider their proposed renovations and liaise with the committee to consider the possibility of reaching agreed solutions upon the committee’s matters of concern.

Order

For these reasons, the application is dismissed.

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[1] See also Katsikalis v Body Corporate for The Centre [2009] QCA 77.
[2] Katsikalis v Body Corporate for The Centre [2009] QCA 77 at paragraphs 25 - 30.