Surfers Waters [2011] QBCCMCmr 41 (8 February 2011)

Last Updated: 18 March 2011

REFERENCE: 0947-2010

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	20377
Name of Scheme:	Surfers Waters
Address of Scheme:	40 Cotlew Street East SOUTHPORT QLD 4215

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Lawrence and Sonia Paton, the owner of Lot 123

I hereby order that the application for an order by Lawrence and Sonia Paton, the owner of Lot 123, seeking approval to renovate their house is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0947-2010

“Surfers Waters” CTS 20377

The application
This application was made to the commissioner on 13 October 2010 (amended 22 October) by Lawrence and Sonia Paton, the owner of Lot 123 (applicants), against the body corporate for the scheme. The applicants seek approval to renovate their house.

On 3 November 2010, the commissioner invited submissions from all lot owners (excluding the applicants) and the committee regarding the application under section 243 of the Body Corporate and Community Management Act 1997 (Act). Nineteen owners and the committee made submissions. The applicants replied to submissions.

On 16 December 2010, the commissioner made a dispute resolution recommendation under section 248 of the Act referring the application to departmental adjudication.

Adjudication

Jurisdiction
An adjudicator may make an order that is just and equitable in the circumstances to resolve a dispute about a claimed or anticipated contravention of the Act or the community management statement; or the exercise of rights or powers, or the performance of duties, under the Act or the community management statement (s 276(1), Act).

The proposal to renovate Lot 123
It is uncontested the applicants sought committee approval to make the following renovations:

1. A pergola and a laundry extension on the southern side of the building on the lot.
2. An ensuite and a walk-in-robe on the northern side of the building.
3. An al-fresco area on the western side of the building covered with a flat roof attached to the building.
4. A pool with decking surrounds.
   

The proposed work is contained in plans of alterations and extensions dated November 2009 drawn by Dignum Design, a copy of which has been provided by the applicants and the committee.

The committee submits the part of the proposed pergola which extends beyond the southern side of the building and the part of the proposed al-fresco area which extends beyond the western side of the building cannot be approved. It is not claimed the committee has not approved other renovations proposed by the applicants. In a letter to the committee dated 12 February 2010, the applicants stated they are not making the renovations on the southern side of the building. In their reply to submissions, the applicants stated the construction of the pool and decks has been abandoned at this stage and is not proceeding.

On the basis of submissions, it is the decision of the committee not to approve the part of the proposed al-fresco area which extends beyond western side of the building that is in dispute.

Background
On 18 January 2010, the committee informed the applicants that it did not approve the extension beyond the western side of the building as it was a dwelling alteration and it did not observe the minimum set back of 9 metres from the lake revetment wall. By-law 13(8)(b) stated in the community management statement for the scheme provides: “From the lake alignment, no dwelling shall be constructed closer than 9 metres from the lot side of the revetment wall”.

On 1 May 2010, the applicants wrote to the committee stating their application is not for a dwelling, and the committee objected to a small part of a flat roof over the alfresco, patio, barbecue area which, because of By-law 13(8)(d), could be built within 2 metres from the lot side of the revetment wall and does not require a relaxation of the setback requirements. By-law 13(8)(d) provides: “Gazebos, horticultural buildings and barbecue areas should observe minimum side boundary clearances and no structure should be placed closer than 2 metres from the lot side of the revetment wall”.

On 24 May 2010, the committee informed the applicants that no relaxation of the setback can be given, the application is for an extension to their existing dwelling and any structure attached to a dwelling is considered to be part of the dwelling.

On 30 May 2010, the applicants wrote to the committee stating By-law 13(8)(d) does not say gazebos, horticultural buildings and barbecue areas cannot be attached to the dwelling.

Submissions
The applicants submit the proposed barbecue area is 7.5 metres from the revetment wall, the by-laws do not prohibit structures being attached to the house, and there are other properties that have structures attached to houses which are less than nine metres from the revetment wall.

The owners who made submissions oppose the application. They variously stated: the proposal is a dwelling extension that will encroach into the 9 metres lakefront setback; it is not for a gazebo, horticultural building or barbecue area; the lake boundary setback for a dwelling is an asset of the estate, provides an open space feel to the lakefront and allows for views from most properties; allowing the proposal will create a precedent; those wanting to have exemptions to the 9 metres setback should consider submitting a motion to change the by-law; and some owners had to alter plans and renovations to comply with the by-laws.

The committee submits the portion of the roof over the existing barbecue area could be approved but the part of the roof extending beyond the line of the building could not be approved as it would have a 7.5 metres setback which would be contrary to By-law 13(8)(b). The committee states freestanding gazebo structures are treated separately from barbecue patio areas which form part of the dwelling which is why different by-laws exist to administer two separate matters and the plan is not for a freestanding gazebo type structure. It believes it has been fair and constructive in seeking to help the applicants reach an agreement to their renovation plans, it has responded to their questions and suggestions, and it has clearly explained the aspects of the plan that cannot be approved. The committee submits it has measured 12 lots with suggested contraventions and found two instances where dwellings encroached into the 9 metres setback (Lots 76 and 80), and that both instances occurred when the developer was approving plans.

In response, the applicants submit the part of the roof that is less than 9 metres from the revetment wall should be approved as they are not setting a precedent as other homes and barbecue areas attached to homes have been built less than 9 metres from the revetment wall, they are not asking for approval for a dwelling but for a covered barbecue area which can be built 2 metres from the revetment wall, and the by-laws do not say a barbecue area cannot be attached to the house. The applicants say the proposed barbecue area would not be intrusive visually. They believe there are 4 other lots which are in contravention of the 9 metres setback and the submitted measurements of the committee are misleading. The applicants state the committee did not respond to issues they raised in their 30 May 2010 letter about whether the plans would be approved if the roof was detached from the house. They say the committee has not been fair or constructive as it should have responded to the questions raised in the letter, it should not have declined to enter into further correspondence, and it should have been open about the structures that are attached to houses and less than 9 metres from the revetment walls. The applicants submit it appears the committee has actively campaigned residents against their plans with a one sided argument to support their view.

By-law 13
By-law 13 makes provision for building controls and maintenance.

By-law 13(1)(a) provides no construction, alteration, addition or modification of any improvements on a lot shall be commenced until the plans and specifications have been approved by the committee. The committee may approve plans and impose conditions as it deems appropriate, including but not limited to conditions requiring compliance with the by-laws, to ensure unified and consistent development and administration of the lots and to maintain the amenity and standards of the lots: By-law 13(1)(c). Plans and specifications may not be approved if they do not comply with the by-law’s building standards: By-law 13(1)(e). The committee may vary conditions if lots are less than 800 square metres in area, are of irregular or narrow shape, or have a more substantial lake frontage: By-law 13(1)(e)(i) to (iii).

Provisions of the by-law relevant to the determination of this application would appear to provide for the regulation of, including conditions applying to, the use and enjoyment of lots included in the scheme (s 169(1), Act). The applicants do not question the relevance of these provisions in the circumstances, the validity of the relevant provisions, or the committee’s power to approve the proposed work. The community management statement is binding on the body corporate and lot owners (s 59(2)(a) and (b), Act). The body corporate must enforce the statement (including the by-laws) (s 94(1)(b), Act).

Does the proposed work relate to a dwelling or is it a barbecue area?
The issue in dispute is whether the proposed work on the western side of the building is regulated by provisions of By-law 13 relating to a dwelling or whether it is regulated by provisions about other structures including, but not limited to, a barbecue area. If the work is of a nature of being an alteration or addition to the existing dwelling, it would seem in the circumstances that the committee could not approve the proposal because part of the renovation would be within 9 metres of the revetment wall. If the renovation is another structure (and not part of the dwelling), the committee has discretion to approve it as it would not be placed within 2 metres of the wall.

The community management statement does not define ‘dwelling’, ‘barbecue area’, or any other type of structure for the purposes of By-law 13. However, it contains a number of relevant provisions (in addition to the abovementioned subsection (8)):

1. Subsection (2) refers to fees for all new dwellings, renovations to existing dwellings, pools, landscaping, retaining walls, driveways and fencing.
2. Subsection (3) prescribes bonds for new dwellings, renovations to existing dwellings, pool and landscaping, and for small extensions, gazebos, out-buildings and repainting.
3. Subsection (6) regulates building materials for dwelling houses, carports or other outside structures.
4. Subsection (7) makes provision for dwelling size. Patios, pergolas and the like are not to be included in the calculation of the floor area of a dwelling: (7)(b). Each dwelling must include car accommodation which is to be in addition to the minimum floor area: (7)(c).
5. Subsection (9) regulates structures other than main dwellings. It refers to gazebos, horticultural buildings, barbecue areas, decks, terraces and patios.
   

The by-law refers to dwellings and other structures which includes (but does not seem to be limited to) gazebos, horticultural buildings, barbecue areas, decks, terraces and patios. A dwelling of a minimum size must be constructed on a lot. However, there is nothing to suggest any other structure, including a structure specified in the by-law, must be constructed. A dwelling may be altered or added to. The applicants correctly state the by-law does not prohibit other structures from being attached to the main dwelling. However, there is nothing in the by-law indicating a structure (including one specifically mentioned in the by-law) that is proposed to be attached to the main dwelling on a lot would not constitute an alteration or addition to the dwelling.

In my view, the identification or classification of a structure as for example, a patio or a barbecue area is not relevant to any determination about whether the proposal is an alteration or addition to an existing dwelling. Factors such as the nature and scope of the proposed work define whether the work is associated with or part of a dwelling. The ordinary meaning of dwelling is “a place of residence or abode; a house”: The Macquarie Concise Dictionary, Third Edition. There is nothing to suggest either generally or in the by-law that an outdoor living area of the nature proposed in drawings submitted to the committee would not be an alteration or addition to (and a part of) the dwelling.

I do not believe By-law (7)(b) supports the applicants. This subsection is not about defining a meaning of dwelling. It would seem its purpose is to regulate the size of the building or main dwelling on a lot and to, for example, prevent the construction of a smaller building on a lot with a large outdoor area of the nature of a patio or pergola. If anything, the provision reinforces the view these structures are otherwise part of a dwelling. Subsection 7(c) similarly excludes car accommodation from the calculation of dwelling size. The difference between (7)(b) and (7)(c) is that a dwelling must include car accommodation. The by-law does not require that a dwelling must include a structure such as a patio or a pergola.

It is also important that the by-law is drafted in general terms and the committee’s discretion to approve proposed work is based on ensuring a unified and consistent development and administration of lots, and to maintain amenity and standards of lots. This regulation seems to be consistent with owners’ submissions about the intent of the by-law.

In conclusion, I consider the committee is entitled to regard the proposal put to it by the applicants as an alteration or addition to the existing dwelling and subject to the restrictions stated in By-law 13(8)(b).

Work on other lots
The applicants argue other homes have been built within 9 metres of the lot side of the revetment wall. On 26 April 2010 and 25 August 2010, the committee informed the applicants it is understood the developer approved 2 houses having a setback less than the required 9 metres and that committees have not relaxed the requirement since the developer’s rights were relinquished in 1996.

The committee submits it has carried out measurements at a number of lots. The applicants doubt the correctness of the committee’s statements. However, this issue does not place the applicants in a better position with respect to their request. If the applicants consider an owner is or has contravened a by-law, they are able to inform the body corporate and take appropriate action if the body corporate does not proceed against the person being complained about (s 185, Act). If the applicants consider the committee has made a decision contrary to the by-law, they may have a right to dispute the decision.

Committee actions
The applicants are also concerned about the way the committee handled their request and feel the committee campaigned against their plans.

It is apparent from submissions there was correspondence between the applicants and the committee about the proposal. I am not satisfied that the concerns raised by the applicants are reason for making an order in the terms sought, particularly when there is no basis to find that the committee had the power to exercise some discretion and approve that part of the alteration or addition to the existing dwelling which is within 9 metres of the revetment wall. The applicants question why the committee did not indicate whether their plans would be approved if the roof was detached from the house. There is no evidence the committee has been presented with a plan/s and specifications for such a proposal or that approval is sought for this proposal in this application. It is not a matter for consideration in the determination of this application.

With respect to the second issue, the relevance of any campaign by the committee to the outcome sought is uncertain when this matter has not been submitted for the consideration of owners in general meeting. If it had been, it should be noted the committee is not prevented from expressing its point of view (see Body Corporate for Palm Springs Residences CTS 29467 v J Patterson Holdings Pty Ltd [2008] QDC 300 at paragraphs 31, 40 and 61).

Decision
For these reasons, I have dismissed the application.