Can the owner of a community title lot – in the absence of a formal exclusive use resolution – justify improvements constructed on adjacent common property by demonstrating they were sufficiently authorised as part of the original scheme?
“Malibu” is an iconic community titles scheme in Aquila Court, Mermaid Waters on the Gold Coast established by way of a group titles plan in 1978.
It is comprised by eight adjoining two-storey townhouses that each back onto a spectacular canal outlook.
Over the years various lot owners made improvements in the form of decks and extensions that encroach onto common property.
In mid-2018 Nicholas Hronis – who acquired his lot one year earlier – installed a security gate and an enclosed sundeck that were later ordered to be removed because of such an encroachment.
After removing his additions as per the order, he retaliated by complaining about those made by most other owners and in particular those of his immediate neighbours Stuart Tume and Talia Marques, the owners of lot 8.
He argued that their rear deck backed onto the common property and their upper deck encroached into common property airspace.
Moreover, the railings and balustrades associated with those structures essentially cut of all of the common property at the rear such that it was ‘exclusively occupied’ by lot 8.
On Hronis’s application, the couple were ordered in June 2021 – at the height of Covid restrictions when they were stuck in New Zealand – by a Body Corporate and Community Management adjudicator to remove the patio and upper deck and to reinstate the affected rear common area lawn.
They appealed the adjudicator’s decision pursuant to s 289 of the BCCM Act to the QCAT appeals tribunal.
They argued that they had been denied the opportunity to provide additional material to the adjudicator for his consideration by reason of the delay they had encountered in receiving it due to the COVID lockdown.
The lot 8 owners argued before Senior Member Graham Traves that the patio and upper deck were built by the original owner in about 1980 as “original components of the scheme” in accordance with the original group titles plan, architects’ drawings and a 1999 general meeting approval for the construction of the sundeck.
Ms Marques also appeared in QCATA on behalf of the Body Corporate in her capacity as chairperson and presented minutes of its March 2023 AGM as submissions.
Member Traves concluded that in the absence of evidence to the contrary, the adjudicator was entitled to find that the encroachments must have been made after the original construction and were not protected by any approval granted on inception of the scheme.
He declined to allow the introduction of the plans etc as “fresh evidence” but agreed Tume and Marques had been denied procedural fairness by reason of the adjudicator’s “failure to circulate evidence to the parties that he had gathered and submissions he had received.
Observing that QCATA is strictly required to determine the appeal on the material that was before the adjudicator, he observed it could – pursuant to s 294 of the BCCM Act – also “exercise all the jurisdiction and powers of an adjudicator under the BCCM Act” and has power under QCAT Act s 146 to set aside an adjudicator’s decision and require it to be reconsidered.
With that in mind he resolved that the denial of procedural fairness constituted an error of law warranting the June 2021 decision to be set aside and the remitting of the dispute for re-consideration.
Given the critical records were not accessible to the lot 8 owners at the time of the BCCM adjudication despite their reasonable effort to obtain them, he directed a re-hearing of the dispute.
Member Traves also rules the adjudicator was required to consider the additional and “apparently credible” evidence that Mr Tume and Ms Marques had produced that they believe will save their patio and deck from destruction.