Hazlewood Views [2011] QBCCMCmr 459 (19 October 2011)

Last Updated: 24 October 2011

ADJUDICATOR’S ORDER
Office of the Commissioner
for Body Corporate and Community Management

CITATION:	Hazlewood Views [2011] QBCCMCmr 459
PARTIES:	The Body Corporate (applicant) Patricia Tucker (respondent) All owners and occupiers (affected persons)
SCHEME:	Hazlewood Views CTS 17489
JURISDICTION:	Sections 227(1)(b) and 229(3)(a) of the Body Corporate and Community Management Act 1997 (Act), and the Body Corporate and Community Management (Standard Module) Regulation 2008 (Standard Module).
APPLICATION NO:	0279-2011
DECISION DATE:	19th October 2011
DECISION OF:	J.D.M. Underdown, Adjudicator
CATCHWORDS:	IMPROVEMENT TO EXCLUSIVE USE AREA – unauthorised by correct process – body corporate requiring owner to make invalid application for consent – body corporate committee refusing consent relying on irrelevant by-laws - length of time taken for body corporate to require owner to take correct steps to approve improvement – nature of improvement and effect of improvement. Section 174 Standard Module; Section 94(2) Act.

ORDERS MADE:

I hereby order that the application by the body corporate for an order that Patricia Tucker, owner of Lot 5 1. “remove the unauthorised improvement being a spa which has been installed on [her] ..... exclusive use courtyard”; and 2. “that the external appearance of the Respondent’s ......exclusive use courtyard be reinstated to its original condition prior to the installation of the spa” ; and 3. “the outcome sought at 1 and 2 be at the cost of the Respondent” is dismissed.

REASONS FOR DECISION
APPLICATION

[1] This is an application dated 20th March 2011 and amended on 29th March 2011 by the body corporate for “Hazlewood Views” CTS 17489 against Patricia Tucker, owner of Lot 5 in the scheme, for orders as follows –

1. that she removes an unauthorised improvement being a spa which has been installed on her lot; and
2. that the external appearance of her lot be reinstated to its original condition prior to the installation of the spa.

the whole at the expense of the Respondent.

[2] The body corporate also set out the outcome sought at “Annexure A” of its application as follows –

1. that she remove the unauthorised improvement being a spa which has been installed on her Lot and/or exclusive use courtyard; and
2. that the external appearance of her lot and/or exclusive use courtyard be reinstated to its original condition prior to the installation of the spa.

the whole at the expense of the Respondent.

[3] The body corporate also sought interim orders as follows-

1. that should the Respondent meanwhile wish to advertise her lot for sale then the spa shall be removed pending the determination of this application; or in the alternative
2. that the Respondent shall inform any prospective purchaser of her lot of this application.
   

[4] On 5th April 2011, I dismissed the interim application.
[5] The body corporate by letter dated 17th June 2011 to this Office confirmed that the spa is situated wholly on an area of common property over which the owner of Lot 5 has exclusive use, and that references throughout the application to siting the spa “on the lot” should be amended.

OVERVIEW OF THE APPLICATION

[6] The scheme consists of nine three-level townhouses established in 1995. Each lot has an exclusive use area and the owners are respectively responsible for the “maintenance and or (sic) replacement of all landscaping improvements within those areas.”[1]
[7] Exclusive use area “E” is allocated to Lot 5. The body corporate says that the spa is situated in Area E and is an improvement which requires the consent of the body corporate at a general meeting. The respondent did not pursue the correct steps for the improvement to be built, thereby depriving the body corporate of the opportunity to consider her working drawings, and make suitable conditions if the spa was to be allowed.
[8] Dr Tucker says that she told the body corporate of her intention to build a spa on about 10th July 2009, and that the body corporate manager gave her authorisation provided that the slab was not disturbed, the drainage was not affected, and the work did not change the appearance of the lot from the road. She has now provided an affidavit to that effect.
[9] After receiving a letter from the body corporate in October 2009 saying that she needed the body corporate’s permission, she wrote to the committee, but the committee refused her application on 24th November 2009, for reasons that the constructed spa breached scheme by-law 8 “Appearance of buildings” and might breach scheme by-law 1 “Noise”. The committee asked for the decibel rating of the pump to be confirmed.
[10] The body corporate says it has not approved or acquiesced in the keeping of the spa, and wants it to be removed and the area reinstated to its former condition.

RELEVANT LAW

[11] Section 174 Standard Module says as follows –

174 Improvements

(1) An exclusive use by-law may authorise the owner of a lot who has the benefit of the by-law to make stated improvements to the part of the common property to which the by-law applies.

(2) Without limiting subsection (1), improvements stated in the by-law may include the installation of fixtures on the common property and the making of changes to the common property.

(3) If the exclusive use by-law does not authorise the owner of a lot to make an improvement, the owner may make the improvement only if the body corporate authorises it to be made.

(4) However, if the value of the improvement mentioned in subsection (3) is more than $3000, the making of the body corporate’s authorisation must be by ordinary resolution.

[12] Section 94(2) Act says as follows –

94 Body corporate’s general functions
(1) The body corporate for a community titles scheme must—

(a) administer the common property and body corporate assets for the benefit of the owners of the lots included in the scheme; and

(b) enforce the community management statement (including any by-laws for the scheme); and

(c) carry out the other functions given to the body corporate under this Act and the community management statement.

(2) The body corporate must act reasonably in anything it does under subsection (1) including making, or not making, a decision for the subsection.

JURISDICTION

[13] I am satisfied that this matter falls within the legislative dispute resolution provisions.[2] It is a dispute between the body corporate and an owner about the exercise of rights or powers under the Act.[3] An adjudicator’s order may require a person to act, or prohibit a person from acting, in a way stated in the order.[4] Further, an adjudicator's order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate.[5]

SUBMISSIONS

[14] The body corporate says that the spa detracts from the overall amenity of the scheme and the “uniform aesthetic as originally intended to be kept by virtue of the establishment of a community titles scheme.” Since it cost more than $3,000 to install, the spa must be authorised by ordinary resolution at a general meeting pursuant to section 174 Standard Module quoted above.
[15] The body corporate was told by Dr Tucker that she proposes to sell her lot with the spa specifically referred to as a feature in the advertising material. It wishes to avoid a situation where a prospective purchaser is misled into thinking that the body corporate has authorised the spa as an improvement to an exclusive use area.
[16] Dr Tucker says that following the consent from the body corporate manager, which was obtained sometime in July 2010, she received a letter dated 11th October 2009 from the then chairman, asking her to stop work, which she did. The then chairman visited the site of the spa, and said he was happy with the work if it could not be seen from the road. She then removed some horticultural screens which could be seen from the road, and submitted revised plans retrospectively to the body corporate. The plans were for approval of the screens since Dr Tucker understood there was no objection to the spa itself. The spa work was completed in mid-November 2009, and the whole courtyard up-grade cost $43,000. She says that the external appearance of the lot is unchanged, and that the spa is not visible from the street.
[17] She was advised on about 24th November 2009, that the committee had not approved the courtyard upgrade including screens. The committee cited by-law 8 (appearance of building) and by-law 1 (noise) in its concerns, and requested that the design be altered so as to be contained within the lot, and the decibel rating of the pump confirmed.
[18] On 17th March 2010, Dr Tucker was sent a solicitor’s letter by the body corporate requesting removal of the spa in 14 days if the spa was not relocated. The spa cannot be relocated without considerable expense. After some time, the body corporate’s solicitors proposed a “deed of acknowledgment” that the parties had come to an agreement. Dr Tucker did not agree with the contents of the deed about which she had not been consulted.
[19] At the annual general meeting held on 9th September 2010, the spa was not listed for discussion. Dr Tucker on 3rd September 2010 therefore asked for the spa to be discussed, and was advised by the body corporate manager to “bring the matter up in General Business...”
[20] Dr Tucker asked the body corporate manager for an update on the spa situation on 13th October 2010 but received no reply on this topic.
[21] In response to the interim submission made by Dr Tucker, the body corporate made further submissions on 17th June 2011.
[22] It says that it has no record of any approval being given by the body corporate manager, and in any event the body corporate manager has no authority to give such approval. The chairman also denies saying that he was happy with the works after inspecting the site.
[23] The committee considered the plans provided by Dr Tucker for overall development of the exclusive use area, and not just for the screens. At the time it was not apparent that the works exceeded the limit of $3,000 so it was dealt with at committee level. Dr Tucker proposed a motion to the committee which was defeated, and she was advised of this on 24th November 2009. The committee said the structure was not in keeping with the general appearance of the complex and By-law 8 “Appearance of the Buildings” and the pump may breach by-law 1 - ”Noise”. The committee asked for the design to be altered “to be contained within the lot completely with no visible aspects....and the decibel rating of the pump confirmed.” A follow-up letter was sent on 25th January 2010. Dr Tucker did not alter the design or provide confirmation of the decibel rating of the pump.
[24] The spa was not on the agenda for the following annual general meeting because Dr Tucker did not propose a motion about it. The committee “discussed the matter” prior to the meeting and decided to offer her a compromise, that she could keep the spa on certain conditions but she did not respond to the offer.
[25] Dr Tucker in answer to the further submission made by the body corporate says the body corporate manager who gave her permission, Brenda Hardy is no longer employed by the company, and there have been numerous changes of staff. She provided a copy of a letter from Brenda Harvey to the Council giving the body corporate’s permission for her to see the plans for the building which was in response to her request to the body corporate manager for works to be carried out. She thought at the time that the body corporate manager had the authority to give the body corporate’s consent.
[26] She provides a letter dated 28th April 2010 from Active Lawyers which says that if the spa was not visible from road, then the chairman Mr Bauer would have no issue with it, even if he did not say the word “happy”.[6] She says that it was quite obvious that the works had cost more than $3,000. They were completed by the time she had the letter dated 24th November 2009.
[27] The compromise offered to her was the “deed of acknowledgement” which she had not agreed to. She had not participated in any discussion about such a deed, and one of the clauses in it said she would pay the body corporate’s legal costs.
[28] She had wanted to propose a motion to a general meeting but the chairperson said the body corporate was proceeding with this application, and the adjudication was well under way by the time the committee invited her by letter dated 19th May 2011 to submit a motion to an extraordinary general meeting for the improvement to be ratified. The committee said that it was not obliged “or entitled” to prepare a motion on her behalf.
[29] In accordance with section 243(2)(b) Act submissions were sought from all lot owners.
[30] Colin and Carolyn Bristow of Lot 4, the lot adjoining Lot 5, object to the installation of the spa in the common area in front of Lot 5.
[31] The body corporate exercised its right of reply.
[32] It says that Brenda Hardy is unwilling to make a submission in this matter. Mr Bristow, who was secretary at the time, recalls advising Dr Tucker before the spa was installed and when foundations were being built for the decking, that the body corporate manager did not have the authority to approve the improvement. Even then, the alleged permission given was that she was “not to disturb the slab” but the body corporate says that Dr Tucker has removed a section of slab and concrete closest to the road to make way for the decking.
[33] The committee was concerned about the whole thing and not just the horticultural screens. The compromise of the deed of acknowledgment was suggested after a weekend meeting on 15-16th May 2010 when Dr Tucker’s partner represented her as she was at a conference.
[34] Chairman at the time, Robert Bauer provided a statutory declaration that he was told on visiting the site that only some temporary plant trellises would be visible from the road. He told Dr Tucker again that “body corporate approval was required for visible alterations.” The body corporate then took legal advice about the effectiveness of its by-laws.

DETERMINATION

[35] This dispute seeks two outcomes: that Dr Tucker removes the spa; and that she reinstates the external appearance of the exclusive use area to its former condition. References to Lot 5 have now been amended by the body corporate and scheme by-laws are not relied on in this dispute.
[36] However, the reason given by the committee for refusing permission for the spa on 24th November 2009 was that “the structure that has been installed is not in keeping with the general appearance of the complex as per by-law 8 Appearance of Buildings” (quoted) and that the pump “may breach by-law 1 Noise” (quoted). The committee asked for the design to be altered “to be contained within the lot completely with no visible aspects in order to be approved and the decibel rating of the pump be confirmed.”
[37] The committee clearly objected to the visual aspect of the spa, and was concerned with the potential of the pump to make noise. However, the committee did not advise Dr Tucker at that time that she was making an improvement to common property for which she needed the authority of an ordinary resolution at a general meeting.
[38] The body corporate says that it was not known then that the structure had an installed value of more than $3,000, so the committee thought it could deal with the matter, pursuant to section 174 Standard Module.
[39] I find that the spa itself was completed by 24th November 2009, so that the committee was able to note that “the structure that has been installed is not in keeping with the general appearance etc...”. It seems to me that it would be obvious that a spa measuring approximately 2m x 2m, and pump, and the “extensive works” including foundations for the decking noticed by the secretary, would be likely to have an installed value of more than $3,000 and therefore be an improvement to common property which could only be authorised by the body corporate at a general meeting.
[40] I find that as at 24th November 2009, the body corporate had not turned its mind to the fact that the spa was an improvement to common property, nor to the contents of section 174 Standard Module. As at the date of lodging this application, the body corporate continued to confuse the exclusive use area with Lot 5, and to treat the area as part of Dr Tucker’s lot. The committee was concerned with the exterior appearance of a lot being changed without consent, and looked for a remedy in its by-laws.
[41] I find that Dr Tucker had received consent from the body corporate manager for “a portable spa”, although there is no written confirmation of this. She was told that as long as the spa did not change the appearance of her unit from the road, and that she did not “disturb” the concrete slab, or affect the drainage, then she could construct a spa.
[42] It may be that Dr Tucker was naïve to think that a body corporate manager had the authority to give such consent.[7] However, the body corporate seems to me equally naïve in not knowing, or if knowing, not advising Dr Tucker that the procedure for the approval which she sought was not to seek consideration by the committee but to put a motion to a general meeting for an improvement to common property. That did not occur until 17th March 2010 when the body corporate’s lawyers wrote to Dr Tucker.
[43] The committee might at any time have proposed a motion to a general meeting either for the retrospective authorisation of the spa, with or without conditions, or for its removal. Whilst the body corporate points out that it is not obliged “or entitled” to do so on an owner’s behalf, there is no reason why it cannot do so, if that is the cause of a dispute. This has still not been done, and it seems to me that this is the only way in which the spa can be lawfully approved.
[44] Section 94(2) Act requires the body corporate to act reasonably in everything it does in the administration of the scheme including making or not making a decision.
[45] The spa was first complained of by the body corporate in October 2009. In March 2011, Dr Tucker advised the body corporate that she was preparing to sell her lot with the installed spa as a feature and triggered this application, some 17 months later.
[46] I note that there is no complaint about the noise of the pump. The body corporate’s only objection, apart from the failure of Dr Tucker to apply for consent in the correct way, a failure which I find was aided by the body corporate, is that the spa “detracts from the overall amenity of the scheme and the uniform aesthetic as originally intended...”
[47] There is no evidence about the “uniform aesthetic” or by whom it was intended. I am not of the view that it is the case that all units in body corporate schemes must be identical, nor is that supported by the governing legislation, nor the building units plan.
[48] It seems to me that it would not be reasonable for the body corporate now to refuse retrospective approval for the spa, since there is no complaint about its operation, and in the circumstances of the spa having been constructed following the mistaken approval by an agent of the body corporate. The body corporate would be able to make reasonable conditions for the keeping of the spa whenever the motion is proposed to a general meeting.
[49] Further, the exclusive use areas are stated to be allocated on condition that the owner of the lot is responsible not only for keeping the areas clean and tidy but for the maintenance and/or replacement of all “landscaping improvements” within those areas.[8] I can only think that this means that the respective owners must look after the “landscaping improvements” in the gardens, whether that means trees and shrubs, or a spa and screenings, or some other “landscaping improvement”. The landscaping aesthetic is therefore the responsibility of each owner and “replacement” screening or trees may be insisted upon by the body corporate under its by-laws.

CONCLUSION

[50] This unhappy story has been exacerbated by the failure of both parties to know or understand the legislation. The committee sought to authorise a spa when the owner had erroneously sought (and erroneously received) consent from the body corporate manager. The committee asked the owner to take steps to seek its permission, and then refused its permission based on an error about the meaning of its by-laws and the status of the exclusive use area. The authorisation can only be given by the body corporate at a general meeting.
[51] The committee complains of a deviation from a uniform aesthetic. There is no complaint about the operation of the improvement. The real complaint is that Dr Tucker “just went ahead and did what she liked”. I do not find this to be the case, since the committee in any event could not give her the consent, even if it wanted to, and the only authorisation which Dr Tucker needed was not known to her, or apparently the committee, until long after the spa was constructed.
[52] I therefore dismiss this application.

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[1] Scheme by-law 12
[2] See sections 227, 228, 276 and Schedule 5 of the Act
[3] Section 276(1)(b) Act
[4] Section 276(2) Act
[5] Section 284(1) Act
[6] I note that this letter also says that, however, the personal view of Mr Bauer is not what mattered.
[7] Section 100(3) Act says that a decision of the body corporate manager is void to the extent that it is inconsistent with a decision of the body corporate’s committee. A body corporate manager cannot give an authorisation which requires an ordinary resolution.

[8] By-law 12