The Body Corporate for Northbridge Residences (applicant)

Sections 227(1)(b) and 229(3)(a) of the Body Corporate and Community Management Act 1997 (Qld) (Act), applying the Act and the Body Corporate and Community Management (Standard Module) Regulation 2008 (Standard Module).

Sauna on balcony - whether breaches by-laws. Act, ss 59, 66, 94, 182.

1. I hereby order that the application seeking an order that the sauna be removed from the balcony of lot 13 and placed within the lot so that it cannot be seen from common property, is dismissed.

[1] This application is brought by the Body Corporate against the owner of lot 13, Guiseppe Finocchairo, seeking an order that the sauna currently located on the balcony of lot 13 be removed from the balcony and placed inside the lot so that it cannot be seen from common property.

[2] Northbridge Residences is a residential scheme in Varsity Lakes on the Gold Coast. It comprises 22 lots in four separate two-storey buildings. Lot 13 is located at the North-eastern end of Building C. The sauna in question is located on the upper level balcony, fronting Port Peyra Crescent.

[3] The Body Corporate submits that the placement of the sauna on the balcony is not a suitable structure to be placed on the balcony. Further, it is submitted that the placement of the sauna on the balcony contravenes by-laws 3 and 7 and detracts from the appearance of the scheme.

[4] This is a dispute about an alleged by-law contravention which I have power to resolve.

[5] In the first instance the Body Corporate applied for conciliation. Conciliation was conducted in March 2013 but failed to resolve the issue. This application was subsequently lodged.

[6] The Commissioner invited each owner to make a written submission regarding this application. Submissions were received from owners of seven lots, including the respondent, Mr Finocchario. The Body Corporate did not inspect the submissions made.

[7] I have decided the application based on the written material provided. The most relevant material is referred to below.

[8] The by-laws are part of a scheme's community management statement (CMS), which is binding on the body corporate, each member of the body corporate (each owner) and each person who is otherwise the occupier of a lot in the scheme (s 59 and 66, Act). A function of the body corporate is to enforce the CMS, including the by-laws (s 94(1)(b), Act). The body corporate must act reasonably when doing so (s 94(2), Act).

[9] The Act provides a framework for dealing with by-law contraventions. Section 182 provides that if a body corporate reasonably believes that an owner or an occupier is contravening a by-law and the circumstances make it likely that the contravention will continue, the body corporate may give a continuing contravention notice to the person to remedy the contravention. The notice must state the by-law the body corporate believes is being contravened and details sufficient to identify the contravention. The person must comply with the notice.

[10] The notice must state that if the person does not comply, the body corporate may start proceedings in the Magistrates Court or make a dispute resolution application (s 182(4)(e)). A Magistrates Court may impose a maximum penalty of 20 penalty units for failure to comply with a by-law contravention notice (s 182(5), Act). Unless special circumstances exist, a body corporate may make a dispute resolution application only if it has given the owner or occupier a contravention notice (s 184, Act).

[11] Rather than starting proceedings in the Magistrates Court, the Body Corporate has made this dispute resolution application and has named Mr Finocchario as the person against whom an order is sought.

[12] The Body Corporate has demonstrated that before making this application it issued Mr Finocchario with a Notice of Continuing Contravention of a Body corporate By-law in relation to an alleged breach of by-law 3.1 (Appearance of Lots).

[13] By-Law 3 titled 'Appearance of Lots and Common Property' contains five subsections. By-Law 3.1 regulates the "Appearance of Lots" and provides as follows:

• (a) An Owner or Occupier must not hang washing, towels, bedding, clothing or other articles (except on clothes lines in designated areas provided by the Body Corporate (if any)) without the prior written consent of the Body Corporate.

• (b) An Owner or Occupier must not display any sign, advertisement, placard banner, pamphlet or like matter on the Common Property or on any part of a Lot in such a way as to be visible from outside the Lot without the prior written consent of the Committee (and, where necessary, of the Developer in accordance with By-Law 34).

[14] The by-law contravention notice given to the Respondent (dated 19 December 2012) indicates that the Body Corporate relied on By-Law 3.1 when giving the notice, stating that the above by-law had been breached "By placing a sauna on your front balcony of your lot".

[15] Mr Finocchario argues that the By-law contravention notice is invalid, because there was no formal committee meeting or general meeting which resolved to issue the Notice. Further, he argues that he has not breached the by-laws. He submits as follows:

• The sauna on his balcony is contained within the footprint of his title to the lot.

• No alteration or variation has been carried out on the common property.

• Although the sauna can be seen from the common property it is not visually offensive.

• Clause 3.1 of the Body Corporate by-laws has no application to these circumstances.

• No structural alteration has been carried out to his Lot.

• There has been no material change or variation to the external appearance of his Lot of any substance whatsoever - it is not visually intrusive and does not detract from the overall amenity of the building, common property or the owners/occupiers.

[16] The Respondent has questioned the application of by-law 3.1. By-law 3.1 relates to the hanging of washing, towels, bedding, clothing, or other articles and the display of signs, advertisements, placards, banners, pamphlets or like matter.

[17] The ejusdem generis rule of statutory interpretation states that where a list of specific terms is followed by a general term, the general term is limited to the general category of items established by the specific terms. Applying this rule to the interpretation of by-law 3.1, I do not consider that the by-law can be used to regulate the installation of a sauna on a balcony in so far as it alters the external appearance of a lot or the scheme generally. I cannot regard a sauna as "washing, towels, bedding, clothing or other articles", nor as a "sign placard, banner, pamphlet or like matter . In my opinion, it would be unreasonable to construe such a wide meaning to the by-law, especially given the particular words used in the by-law and the fact that the Body Corporate has made other specific by-laws to regulate other activities which may affect the external appearance.

[18] I agree that by-law 3.1 has no application to the subject of this dispute - the installation of a sauna on the balcony of a lot which is visible from the common property. In my view, the Body Corporate has incorrectly relied on by-law 3.1 in giving the Respondent the notice of continuing contravention of a by-law and then in relying on the Respondent's non-compliance with the notice in seeking the outcome sought. I must therefore dismiss the application.

[19] In its grounds to this application, the Body Corporate refers to contraventions of by-laws 3 and 7 generally, submitting that Mr Finocchario has breached the by-laws by:

• Not seeking permission from the Committee to place the large sauna on the balcony of Unit 13;

• Not seeking permission from the Committee to cut a hole into the external balcony wall to feed a pipe through for the sauna;

• The sauna and hole in the balcony are in the front of Unit 13 and in full view from the road;

• The sauna is completely out of keeping with the colour design of Northbridge;

• There are no other large, blonde wood structures on any balcony at Northbridge;

• No effort or further attempts has been made by the owner of Unit 13 to comply with previous Tribunal suggestion that the sauna at least be painted a more suitable colour to the rest of the complex

• It detracts from the aesthetics of the building and Azzura Island;

• It is no different to an Occupier placing a large fridge on the balcony, which is not acceptable;

• The owner had plenty of land where the sauna could be housed, out of sight from the front of the building.

[20] The Body Corporate does not specify how exactly it believes by-laws 3 and 7 have been contravened. In my view it is arguable whether by-laws 3.2 and 7 have in fact, been contravened.

[21] By-law 3.2 is headed "Structural Alterations to Exterior" and provides as follows:

1. Do anything to vary the external appearance of the Lot or vary the Common Property; or
2. Make any structural alterations to any Lot which includes, without limitation, any alteration to water, electrical installations or work for the purposes of enclosing any balcony of any Lot,

without the prior written consent of the Body Corporate (and, where necessary, the Developer under By-Law 34).

[22] By-law 7 is headed "Temporary Buildings" and provides as follows:

An Owner or Occupier cannot place upon any Lot or Common Property any outbuilding, tent, shack, shed or other temporary building or improvement.

[23] The Body Corporate has not persuaded me, on the material presented, that the installation of the sauna is a "structural alteration" (for the purposes of establishing a breach of by-law 3.2), or that the sauna is an "outbuilding, tent, shack, shed or other temporary building or improvement" (for the purposes of establishing a breach of by-law 7).

[24] In any event, even if a breach of either or both of by-laws 3.2 or 7 were established, because the Body Corporate only alleged a breach of by-law 3.1 in the By-law Contravention Notice, it makes no difference to the outcome of this application. If the Body Corporate wishes to allege a breach of by-law 3.2 or 7, it will need to issue a new by-law contravention notice detailing the provision/s the Body Corporate believes is being contravened and details sufficient to identify the contravention.

[25] Mr Finocchario states that he is 61 years of age and resides in the dwelling with his wife and stepson. He states that they frequently use the sauna and it has therapeutic qualities for both himself and his wife. He further states that they both suffer from intermittent back pain and arthritis and the regular use of the sauna does alleviate the pain and promotes a better range of movement in their muscles and joints.

[26] The Body Corporate suggests that the sauna should be removed from the balcony and placed within lot 13. However, Mr Finocchario wishes to make it clear that there is no suitable space or other area within the lot that could accommodate the sauna.

[27] Mr Finocchario states that he is prepared to paint the exterior of the sauna to achieve consistency with the colour theme of the building and is willing to place a complete cover over the sauna so that it could not be observed from the common property. He includes a letter dated 18 March 2013 from the project architect for Northbridge Residences which states that painting the structure and screening the balcony would adequately maintain the visual and aesthetic appeal of the building façade. Given that the only detriment complained of by the Body Corporate and owners making submission in response to this application is the alleged detraction from the external appearance of the scheme, it may be that the painting and screening option detailed by the project architect would be a reasonable compromise in the circumstances.

[28] As mentioned above, if the Body Corporate wishes to allege a breach of either by-law 3.2 or 7, it will need to issue a new by-law contravention notice detailing the provision/s the Body Corporate believes is/are being contravened and details sufficient to identify the contravention.

[29] The basis for the issue of the By-law Contravention Notice to Mr Finocchario and the basis of this application against him is an alleged breach of by-law 3.1 (Appearance of Lots). By-law 3.1 has no application to the installation of a sauna on the balcony of lot 13. Accordingly, I must dismiss the application.