Principal Body Corporate for Hope Island Resort v De Berry
[2013] QCAT 104
•6 March 2013
| CITATION: | Principal Body Corporate for Hope Island Resort v De Berry [2013] QCAT 104 |
| PARTIES: | Principal Body Corporate for Hope Island Resort (Applicant) |
| v | |
| Duncan De Berry and Jeanette De Barry Riverleigh Gardens GTP 104105 |
| APPLICATION NUMBER: | OCL134-11 |
| MATTER TYPE: | Other civil dispute matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Graham Quinlivan, Member |
| DELIVERED ON: | 6 March 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: |
a. Deduct those costs from the Development Bond for the Property held by the Applicant; and b. Recover the balance (if any) of those costs from the respondents as a liquidated debt.
|
| CATCHWORDS: | Contravention of development control by-law, “waiver”, delegation of decision making Integrated Resort Development Act 1987 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
On 18 November 2011, Hope Island Principal Body Corporate (‘the applicant’) commenced proceedings under the Integrated Resort Development Act 1987 (‘IRDA’) regarding a contravention of a development control by-law.
The respondents to the application are Mr Duncan De Berry and Mrs Jeanette De Berry (‘the first respondents’) who are residents of Hope Island Resort.
The applicant seeks the following orders:
1)Within 60 days, the Respondents must relocate the front masonry fencing located at Lot 98, on GTP 107088, situated at 3142, Riverleigh Drive, Riverleigh Gardens, Hope Island Resort (the Property) so that it is positioned in accordance with plan number WD-02 approved by the Applicant.
2)Failing compliance with Order 1, the Applicant may, pursuant to by-law 5.01 of its Development Control By-laws, enter the Property and cause the above works to be completed and:
(a) Deduct those costs from the Development Bond for the Property held by the Applicant; and
(b) Recover the balance (if any) of those costs from the Respondents as a liquidated debt.
3)The Respondents pay the Applicant’s costs of and incidental to this application.
The first respondents oppose the application and seek that the application be dismissed with no order as to costs.
On 6 March 2012, the Tribunal directed that the applicant file an agreed list of issues by 15 May 2012. On 17 May 2012 the solicitors for the applicant forwarded to the Tribunal a list of issues agreed between the parties.
On 18 May 2012, the Tribunal directed that the applicant give notice of the application, response, reply and list of issues to the Body Corporate for Riverleigh Gardens to provide it with an opportunity to join the proceedings as an interested party. Further, the issue of whether the applicant had thrown away costs by the granting of this leave was reserved.
In their submissions dated 25 May 2012, the first respondents state that they “adopt and rely upon the agreed issues as contained within the List of Issues as a suitable background to this matter. The first respondents made submissions regarding some preliminary matters and in relation to the 5 issues that had been identified by the parties.
On 8 June 2012, the applicant filed its submissions in response to each of the issues addressed by the first respondents.
On 10 August 2012, Riverleigh Gardens GTP 104105 was joined to the proceedings as a second respondent. The application was then to be determined “on the papers”.
There were further written submissions filed by the applicant dated 7 September 2012, the first respondents dated 30 August 2012 and the second respondents dated 14 August 2012.
Consideration
The List of Issues agreed by the parties is as follows:
(1)Whether the Principle Body Corporate (PBC) has permitted the non-compliance by virtue of the letter dated 7 June 2011 from Cambridge Management Services on behalf of the PBC.
(2)Whether the non-compliance should be permitted under clause 4.10 of the Development Control By-Laws (DCBL) as it:
(a)Is of a minor nature; and
(b)Enhances the design objectives of the Hope Island Resort.
(3)Whether the order made by the referee in Riverleigh Gardens [2011] QBCCMCmr 481 was incorrect.
(4)Whether the Resolution (of the Riverleigh Gardens Body Corporate on 15 August 2011) is relevant to a determination of this dispute and granting of the relief sought by the Applicant.
(5)Whether it is appropriate for the Tribunal to:
(a)Order the relocation of the front masonry wall at the Property so that it complies with the development approval, particularly plan number WD-02;
(b)Otherwise grant the relief sought by the applicant.
The following facts are set out in the “Agreed Issues” document submitted by the applicant and endorsed by the first respondents.
The respondents are the proprietors of Lot 98 on GTP104105, situated at 3142 Riverleigh Drive Hope Island Resort.
Hope Island is an approved scheme as that term is used in s 179B(1)(b) and Schedule 7 of the Integrated Resort Development Act 1987 (‘IRDA’).
Riverleigh Gardens is a member of the PBC by virtue of s 139(3) of the IRDA. Section 176 of the IRDA gives the applicant power to make DCBL regulating the quality of design and developments in Riverleigh Gardens and other residential precincts.
The DCBL binds the PBC, the members of the PBC including all subsidiary schemes and each proprietor. Section 179B(1)(b) of the IRDA gives QCAT jurisdiction to hear and decide a matter relating to the application or a contravention of a DCBL for an approved scheme.
The property is subject to a development approval that was approved by the PBC on 27 February 2007. The stamped approved plan shows the front masonry wall was approved for positioning at approximately a 6.0 metre setback from the front boundary in line with the front elevation of the house. The construction was completed around November 2008.
Condition 24.1 of the development approval required that a rainwater tank with a minimum storage capacity of 5,000 litres be installed at the property.
The respondents did not submit an amended development application for the different position of the front masonry wall or the installation of 2 rainwater tanks with a capacity of 25,000 litres each.
Prior to the completion of construction, the respondents were aware that the location of the front masonry wall would not comply with the development approval and would contravene the DCBL.
The front masonry fence was constructed at a position past the front elevation of the dwelling and at a 2.1 metre setback from the front boundary. As a result it does not comply with the DCBL.
The respondents do not have standing to make a request under s 177 of the IRDA but Riverleigh Gardens Body Corporate does have standing under that provision.
As permitted by clause 4.10 of the DCBL the first respondents have requested that the PBC permit the noncompliance. The PBC can only allow a noncompliance if it is of a minor nature and enhances the design objectives of Hope Island Resort.
On 7 June 2011, Cambridge Management Services who describe themselves as “Strata and Facilities Managers” wrote to the respondents on behalf of the PBC. They stated:
We have been instructed by the PBC to write to you for the purpose of advising that the relaxation sought to allow for the Masonry fences in question to remain has not been approved by the PBC. Prior to the matter being taken to the Queensland Civil and Administrative Tribunal (QCAT), it is to be referred back to Riverleigh Gardens Body Corporate, as its Residents are the most affected, requesting that if Riverleigh Gardens Body Corporate Committee wishes for a relaxation to leave the non-compliant fencing in its current position then a motion must be approved by ordinary Resolution at a General Meeting of the Riverleigh Gardens Body Corporate.
The following paragraph was also included in the letter:
The PBC believes in the circumstances that a reasonable period in which to hold a Committee Meeting to review the matter and if felt appropriate the calling and holding of a general meeting can easily be achieved within 90 days. The PBC therefore provides you with a 90 day period from the date of this letter to achieve the above noting that if confirmation of approval is not received by Riverleigh Gardens Body Corporate within the specified timeframe the matter will be referred to QCAT for its determination.
On 15 August 2011, Riverleigh Gardens made the following resolutions 19 and 20 at its annual general meeting:
MOVED that the residents of Riverleigh Gardens Body Corporate endorse a minor relaxation of the Development Control By-laws to allow the existing portion of masonry fence beyond the standard setback to remain.
Riverleigh Gardens Body Corporate has no reason to not support the Principle Body Corporate to use its powers under section 177 of the IRDA to allow a minor relation of the DCBL.
On 7 October 2011 Referee, D. Toohey, made an order under part 5 of the Building Units and Group Titles Act 1980, as amended, that the resolutions of the Riverleigh Gardens Body Corporate were void and of no effect: Riverleigh Gardens [2011] QBCCMmr 481.
Submissions
The first respondents raised a number of preliminary matters as part of their submissions.
They claim that they constructed the masonry wall to provide security to and uphold the safety of the water contained in the 2 large underground water tanks that they “opted” to install to comply with the intent of the Queensland Development Code, and to be as self sufficient as possible. The applicants dispute these submissions on the basis that the only requirement was for a 5,000 litre tank and that security of a water tank is not an issue in the gated community.
The respondents also take issue with the definition of what constitutes a “fence” and also the insufficiency of the Riverleigh gardens by-laws to the extent that they do not recognise the need for utility-efficient homes. The applicants dispute each of the preliminary matters raised.
I now turn to the specific issues identified by the parties.
Issue 1: Whether the PBC has permitted the Noncompliance by virtue of the letter dated 7 June 2011 from Cambridge Management Services on behalf of the PBC.
The first respondents submit that the PBC has expressly permitted the non-compliance in the letter from Cambridge Management Services to the respondents dated 7 June 2011. They contend that by way of the letter the PBC has delegated its power under clause 4.10 of the DCBL to permit non-compliance in certain circumstances to the Riverleigh Gardens Body Corporate.
The first respondents argue that the letter forwarded by Cambridge Management Services on 7 June 2011 amounts to a delegation of the applicant’s power under clause 4.10 of the DCBL to permit non-compliance in certain circumstances to Riverleigh Gardens Body Corporate.
They argue that the wording of the letter clearly provides that the decision regarding a relaxation to leave the non-compliant fencing in its current position was a matter for Riverleigh Gardens Body Corporate. Consequently the resolution by the Body Corporate at its AGM on 15 August 2011 means that the applicant has in fact approved the masonry wall.
In the alternative, the Respondents argue that by operation of the letter the applicant has approved the non-compliance conditional upon such a motion being approved by ordinary resolution of a general meeting of Riverleigh Gardens or again in the alternative the applicant has waived their rights to refer the matter to QCAT.
The applicant strongly contests the submissions of the respondent that there is no reasonable basis for their submissions. It submits that Cambridge Management Services were acting under direction from PBS.
They claim that the correct interpretation of the letter in question is that if the first respondents did not advise within 90 days that Riverleigh Gardens supported a relaxation then PBC would take enforcement action and conversely if Riverleigh Gardens did support the relaxation then PBC would refrain from taking any enforcement action until it considered those views.
In relation to the submission by the first respondents regarding conditional approval, the applicant contends that the letter specifically states that the non-compliance had not been approved.
With respect to the argument that the applicant had waived its rights to refer this matter to QCAT the applicant argues that this contention is misconceived and baseless. They rely, in part, on the summary of the legal principle regarding “waiver” given by His Honour Justice Austin in the matter of Lewis v Cook [2000] NSWSC 191 to the effect that a “waiver is an intentional act with knowledge”. They point out that there is no evidence that the PBC took any action whatsoever that would demonstrate an intention to waive their rights which would require a resolution at a general meeting of the PBC as required by s 162 of IRDA.
I have carefully considered the wording of the letter dated 7 June 2011 and I have formed the view that the preferable interpretation of that document is as outlined in the submissions of the applicant as follows:
i) The PBC advised that it had not approved the non-compliance.
ii) The PBC intended to refer the matter to the Tribunal
iii) Before making that referral, the PBC would provide the opportunity for Riverleigh Gardens to give its views on the non-compliance.
iv) If there was no action (ie if Riverleigh Gardens did not put forward its views), the matter would be referred to the Tribunal.
v) If Riverleigh Gardens put forward its views, the non-compliance would be reconsidered.
Issue 2: Whether the non-compliance should be permitted under clause 4.10 of the DCBL as it:
a.is of a minor nature;
b. enhances the design objectives of the Hope Island Resort.
The first respondents submit that the non-compliance is of a minor nature because the total encroachment can be quantified as being only a 4.375% encroachment into the No Fences Zone. Further they argue that it is customary for both land and units that “minor” variations are deemed to be less than 5% of the total area originally contracted.
They, further, identify 18 examples of where they allege that the applicant has previously approved minor non-compliances. They argue that their fence is clearly a more minor contravention than many if not all of the examples identified. Therefore their fence could only be considered a minor contravention of the DCBL.
When addressing the issue of whether the non-compliance enhances the design objectives of the Hope Island Resort the first respondents submit that reference can be made to all of the examples referred to above which they contend have previously been approved by the applicants. They argue that it would be absurd to suggest that the non-obtrusive masonry wall built for the respondents could be considered not to enhance the design objectives of the Hope Island Resort where masonry fences are commonplace and have been approved in the No Fences zone. Further they claim it would be absurd to suggest that this would not allow the development to proceed in a consistent, orderly manner consistent with the design objectives.
On this basis they submit that since their fence is far less of a contravention than the examples provided and that their new neighbours have no objection to the masonry wall, therefore the non-compliance should be permitted by the applicants so that it can remain as it is.
The second respondents have made submissions in relation to this issue in that they do not consider that “the placing of a masonry wall at 2.1 metres set back as against the required 6 metre set back does not, prima facie, constitute a “minor” non-compliance”. Further they consider that such an approval would lead to the possibility of an “open slather” approach and would defeat the design objectives of Hope Island Resort on which members as a class have relied, when deciding to invest in and in the majority of cases, to live in the Resort.
The first respondents claim that this submission should be disregarded because “all construction work that is in non-compliance with the DCBL needs to be approved by the applicant irrespective as to whether it is considered minor or not.”
The applicant’s response to this issue is that the non-compliance is not minor and that it does not enhance the design objectives of Hope Island Resort. It asserts that there are no other developments within Riverleigh Gardens with similar masonry front boundary fencing at a 2.1 metre setback and that the location and extent of the fencing is not in keeping with surrounding developments in Riverleigh Gardens.
Specifically in relation to the submission that the non-compliance represents a less than 5% encroachment it argues that this is based on an incorrect calculation because from the house the encroachment is actually 3.9 metres and as a result the correct figure is 6.5%. It also contends that when considering any contravention, the PBC takes into account other significant matters such as the impact on amenity and consistency in design when coming to a decision regarding a relaxation of the DCBL.
The applicant also distinguishes each of the examples of non-compliance identified by the respondents for various reasons such as the items being landscaping or being otherwise compliant with the DCBL. They claim that all of the examples provided by the first respondents are based on an incorrect interpretation of the relevant DCBL.
Regarding the issue of enhancing the design objectives of the Hope Island Resort, the applicant provides details of those objectives and argues that the respondent’s case is that the non-compliance has a neutral effect on the resort or makes no difference because of the other alleged non-compliances.
I have considered the provisions of DCBL, each of the examples provided by the first respondents and the explanations offered by the applicant. I am satisfied that the non-compliance on the respondent’s property is unique in the development and even on their own test exceeds 5% of the No Fence Zone. Further, I find that the first respondents have not demonstrated in any way, how their non-compliance enhances the design objectives of the Hope Island Resort.
Issue 3: Whether the order made by the referee in Riverleigh Gardens [2011] QBCCMCmr 481 was incorrect ?
The first respondents submit that the order made by the Referee was incorrect. They acknowledge that they are out of time to appeal the order but submit that very little weight, if any, should be given from an evidentiary perspective to that order.
They claim that the Referee stated in the reasons that “no one has been able to refer to any legislation or by-law that gives the Body Corporate the power to express any opinion on the issue. Further they submit that whether the resolution is valid or void is irrelevant as a carried motion at a General Meeting of Riverleigh Gardens was all that was required as a condition of the Applicant’s delegation, approval or waiver as submitted in submission 1.
I have already determined that I am not satisfied that there was a delegation, approval or waiver occurred by way of the matters set out in Issue 1 and as a consequence I find that it is not necessary to consider this issue further. However, I am satisfied that the referee found that the resolutions of Riverleigh Gardens were made void and of no effect.
Issue 4: Whether the Resolution is relevant to a determination of this dispute and granting of the relief sought by the applicant.
The first respondents submit that the resolution is relevant to a determination of this dispute. They say that the lack of weight they argue should be given to the Referee’s order provides that the Resolution passed by Riverleigh Gardens body Corporate on or about 15 August is relevant to these proceedings and must be considered.
Again, I do not accept this submission on the basis of the determinations that I have already made.
Issue 5: Whether it is appropriate for the Tribunal to:
a.Order the relocation of the front masonry wall at the Property so that it complies with the development approval, particularly plan number WD-02
b.Otherwise grant the relief sought by the Applicant.
The first respondents submit that in the circumstances it is inappropriate for the Tribunal to order the relocation of the masonry wall or otherwise grant the relief sought by the applicant because of the reasons set out in these submissions. I agree with the applicant that the first respondents have not made any meaningful submissions regarding this issue.
After considering all of these matters, I have determined that the application should be granted and I make the following orders:
1. Within 60 days of the date of this Order, the first respondents must re-locate the front masonry fence located at Lot 98, on GTP 107088, Riverleigh Drive, Riverleigh Gardens, Hope Island Resort so that it is located in accordance with plan number WD-02 approved by the applicant.
2. Failing compliance with Order 1, the applicant may, pursuant to by-law 5.01 of its Development Control By-laws, enter the Property and cause the above works to be completed and:
a.Deduct those costs from the Development Bond for the Property held by the Applicant; and
b.Recover the balance (if any) of those costs from the respondents as a liquidated debt.
3. The applicant and the first and second respondents are granted leave, pursuant to section 102 of the QCAT Act to make submissions in relation to the issue of costs within 14 days of the date of these orders.
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