Body Corporate and Community Management (Standard Module) Regulation 2020 (Standard Module)

INTERIM ORDER - where prima facie owner has commenced works on common property without body corporate approval - whether an interim order is warranted

1. Pending final determination of this application, the respondents must not apply any further stone cladding to the walls on common property.
2. This interim order has effect until 12 months have elapsed from the date of this order, a further interim or final order for the application is issued, or until the application is withdrawn or otherwise ended (whichever is earlier).

• [1] Vauclause Villas is a 2-lot scheme. The applicant co-owns Lot 1. The respondents own Lot 2.
• [2] The applicant disputes various works that the respondents have allegedly carried out to common property without body corporate approval including:
  1. Application of stone cladding to common property walls;
  2. Laying of ceramic tiles over common property pathway;
  3. Removal of Cypress Pine trees; and
  4. Other gardening and landscaping works.
• [3] The applicant seeks final orders for the common property to be reinstated.
• [4] In the interim, the applicant seeks an order to restrain the respondents from carrying out any further works to the common property walls. The applicant is concerned that the walls may not be able to withstand the extra weight of the heavy stones that are being applied and that this work may cause serious and irreparable damage to the walls. Further, he says the side wall forms the boundary of the scheme and is owned jointly by the Vauclause Villas body corporate and the body corporate for the neighbouring property at 23 Vespa Crescent. He says the respondents have not consulted the neighbouring body corporate about the proposed works.
• [5] In response, the respondents say when they first moved into the property, they were unaware of the specific body corporate by-laws and the full extent of what constituted common property. They say their actions were taken in good faith, in the interest of safety and functionality, and in keeping with their maintenance responsibilities. They say they now understand that approval may have been required and are committed to working constructively to resolve any concerns.
• [6] In relation to the application of stone cladding on the wall, the respondents say the body corporate is obliged to maintain common property in good condition and that the cladding on the wall was undertaken as necessary maintenance to preserve the structural and visual integrity of the wall. They say the cladding matches the colour of the original rendered wall and does not detract from the amenity or symmetry of the complex. The respondents say this work was initiated following persistent structural cracking on the shared boundary wall and entry gate. Despite multiple repair attempts, the cracks reappeared. On professional advice, the respondents say they selected a stone solution to prevent further propagation, improve durability and visually conceal the defect.
• [7] The respondents also made submissions regarding the other disputed works which will be considered in the course of determining final orders.
• [8] The only issue at this time is whether an interim order is warranted.

• [9] Vauclause Villas is comprised of 2 lots and common property. The scheme is created under Survey Plan 147583 which is a building format plan of subdivision (BFP). The community management statement (CMS) records that the scheme is regulated by the Standard Module.
• [10] The application seeks final orders that the respondents:
  1. Cease applying stone cladding to the walls of the common area, remove the cladding already applied and rectify any damage caused;
  2. Remove the ceramic tiles laid over the paving on common property and reinstate the surface;
  3. Plant 7 new Cypress Pine trees to replace the ones that were removed; and
  4. Replant the perennial ground cover plants (Liriope) that were removed, and remove the Indian Rubber tree and 6 large pot plants from common property.
• [11] I am satisfied that this matter falls within the legislative dispute resolution provisions.[1] An adjudicator may make an order to resolve a dispute in the context of a community title scheme between lot owners about a claimed or anticipated contravention of the Act or CMS.[2] Further, an adjudicator may make an interim order if satisfied, on reasonable grounds, that an interim order is necessary because of the nature or urgency of the circumstances.[3]
• [12] The Commissioner has referred the application to me to decide whether an interim order is warranted. There is no statutory requirement to obtain comment from the other party before an interim order is decided.[4] In the circumstances, I gave the respondents a brief opportunity to respond to the interim order application.

• [13] An interim order will only be granted if it is necessary due to the nature or urgency of the circumstances. An example is provided in section 279 of the Act, stating that an adjudicator may stop the body corporate from carrying out work on common property until a dispute about the irregularity of proceedings has been investigated and resolved. That is similar to the current circumstances whereby the applicant disputes the respondents' unauthorised work to common property. I must consider whether an interim order is necessary to prevent the respondents from continuing with those works (that is, the application of stone cladding to the walls), until the dispute can be resolved.
• [14] In considering whether to grant interim relief, an adjudicator must consider:
  1. Whether the application raises a serious legal issue with a likelihood of success at final determination, that is, whether there is any merit to the application; and
  2. Whether the balance of convenience favours the interim order being granted. This requires balancing the inconvenience of granting relief now if final orders are ultimately refused against the impact of refusing interim relief if final orders are ultimately granted. Of particular significance is whether an interim order is necessary to prevent serious or irreparable harm.

• [15] For a scheme like Vauclause Villas which is created under a BFP, the boundaries are defined using the structural elements of the building such as the floors, walls and ceilings.[5] Where a lot is separated from another lot or common property by a floor, wall or ceiling, the boundary is located at the centre of the floor, wall or ceiling.[6] The external walls subject of the dispute are therefore not part of the lot, but are located on common property.
• [16] The applicant claims that the application of stone cladding to the walls contravenes the following by-laws in the scheme's CMS:

An occupier of a lot must not, without the body corporate's written approval, mark, paint, drive nails, screws or other objects into, or otherwise damage or deface a structure that forms part of the common property.

The occupier of a lot must not, without the body corporate's written approval, make a change to the external appearance of the lot unless the change is minor and does not detract from the amenity of the lot and its surrounds.

• [17] Section 187 of the Standard Module provides that the body corporate may, if asked by an owner of a lot, authorise the owner to make an improvement to common property for the benefit of the owner's lot. In a scheme where there are only 2 lots, if one owner disagrees with a proposal, it fails to pass. By their own admission, the respondents have not sought body corporate approval for the proposed works. However, they suggest that the cladding on the walls is not an improvement, but that it constitutes maintenance of common property that the body corporate is responsible for.
• [18] While the Act does not define 'maintenance', adjudicators have commonly used a 'like for like' rule when deciding whether the work is maintenance or an improvement. It should be noted that an improvement includes a non-structural change.[7] A change can include adding, removing or swapping something.[8] On the current submitted material, I consider the application of stone cladding on the walls to be an improvement to common property.
• [19] Even if the works are necessary maintenance as the respondents suggest, they are still not permitted to be carried out without a body corporate decision. Maintenance of common property is a body corporate obligation and thus should be undertaken as decided by the body corporate, and not as instigated by one lot owner. Further, as by-law 5 provides, an occupier must not, without the body corporate's written approval, mark, paint, drive nails, screws or other objects into, or otherwise damage or deface a structure that forms part of the common property.
• [20] Accordingly, regardless of whether the works are an improvement or maintenance, body corporate approval is required. The respondents have not obtained such approval. I am satisfied the application raises a serious legal issue requiring further investigation at final orders.

• [21] The applicant says the wall is made of bricks covered by concrete render, and that it is a thin wall being only one house brick in thickness. He says normally, masonry walls are at least twice this thickness. The applicant says there has been no assessment by a qualified engineer to determine whether the existing wall can support the extra weight from the heavy stones being applied. Further, the applicant says the respondents are personally performing this work without using a licenced contractor. I note from the submitted photographs that a section of wall on one side of the entry gate has already been completed with stone cladding. The applicant says the respondents intend to continue applying stone cladding to both sides of their entry gate and to the entire side boundary wall. The applicant says an interim order is required to prevent the risk of significant damage to the wall.
• [22] In the circumstances, I consider the balance of convenience favours granting interim relief. There is no urgency to have the works completed nor is there any obvious detriment to the respondents if the wall is left as is until the application is determined. Conversely, if interim relief is refused but final orders are ultimately granted to remove the cladding, this risks creating further damage to the wall and will require additional rectification works to reinstate it.

• [23] I am satisfied the circumstances justify the granting of an interim order. The matter is now referred back to the Commissioner to progress the application for final orders in accordance with the processes under the Act.
• [24] I note the respondents say they are prepared to engage a qualified structural engineer to confirm the wall's stability and to certify that the cladding poses no structural risk. They seek permission for the cladding to be completed on this basis. If the applicant agrees to this (or to any other aspects of the works proposed in the respondents' submission), he may wish to amend the application prior to it being referred back to me for determination of final orders.

[5] Section 48C(1) of the Land Title Act 1994

[6] Section 49C(4) of the Land Title Act 1994

[7] See the definition of 'improvement' in Schedule 6 of the Act

[8] See section 36 of the Acts Interpretation Act 1954