What has to be taken into consideration to allow improvement to common property
Somerset By-laws till 2020
By-law 5 “an owner shall not obstruct common property by any person”
By-Law 15 “An owner of a lot shall not paint or re paint or carry out any work to or altern the exterior of any lot”
- 27.1(i) the prosed work shall only commence upon the written approval of the committee and on execution of such written documentation required by the committee (including but not limited to a deed of undertaking binding the applicant and its successors in title to the conduct and condition required by the committee’s approval
- 27.1(e)(ix) the installation of the prosed works be subject to any approval required and /or condition imposed by the Gold Coast City Council and/or such relevant government body having responsibly for the matter.
- 27.1(e)(xii) the applicant makes the proposed works at completion available for inspection by a qualified. Inspector approved by the body corporate and the applicant completes such additional works as may be necessary by the qualified inspector
- 27.1(e)(xii) “reference to the applicant, includes the applicant assigns, attorney, agents and successor in title (including but not limited to future owners of the lot)
- 27(k) it shall remain the obligation of the applicant and it’s successors in title to ensure any potential purchasers and/or successors are informed and understand to condition of any approval given.
- 27(o) if the applicant fails to refuses to attend to a conditions of an approved application, the then the body corporate may supply or engage another person to remedy any incomplete work
By-Law 27(q) any monetary liability imposed as consequence above including but not limited to maintenance or other condition associated with the proposed works, constitute a debt recoverable against the applicant (and successors in title) in accordance with section 173 of the accommodation module.
Note section 173 was repealed by section 184 in amendments in 2020 and apply to exclusive use by-laws and not common property.
Allocations made from 2018 till the 2020 are listed: It is asserted that many if not all of the allocations been made in accordance with 177(c) in as by-law in CMS as of 2017
18th April 2018
Not discussed
20th June 2018
No VOCM were held between meetings
Note no discussin of unit 17 application
15th August 2018
16th November 2018
Lot 45 had previously lodged a dispute with the commissioner
11th March 2019
No approvals
16th May 2019
15th August 2019
No approvals
20th January 2020
20th May 2020
19th August 2020
3rd December 2020
Not approve lot 35 but lot 77 gate obstructs common property. By-law 3
New By-Law 11th December 2020 by laws.
The Present by-law 20, has removed the conditions from by-law 27 that were stated and provided protection to the body corporate
Protection to the body corporate lost in the 11th December 2020 By-Laws
- 27.1(i) the prosed work shall only commence upon the written approval of the committee and on execution of such written documentation required by the committee (including but not limited to a deed of undertaking binding the applicant and its successors in title to the conduct and condition required by the committee’s approval
- 27.1(e)(xii) “reference to the applicant, includes the applicant assigns, attorney, agents and successor in title (including but not limited to future owners of the lot)
- 27(k) it shall remain the obligation of the applicant and it’s successors in title to ensure any potential purchasers and/or successors are informed and understand to condition of any approval given.
- 27.1(e)(ix) the installation of the prosed works be subject to any approval required and /or condition imposed by the Gold Coast City Council and/or such relevant government body having responsibly for the matter.
- 27.1(e)(xii) the applicant makes the proposed works at completion available for inspection by a qualified. Inspector approved by the body corporate and the applicant completes such additional works as may be necessary by the qualified inspector
- 27(o) if the applicant fails to refuses to attend to a conditions of an approved application, the then the body corporate may supply or engage another person to remedy any incomplete work
This section of the by-law is lost but would have not been enforceable.
- 27(q) any monetary liability imposed as consequence above including but not limited to maintenance or other condition associated with the proposed works, constitute a debt recoverable against the applicant (and successors in title) in accordance with section 173 of the accommodation module.
Changes to the by-laws after 11th December 2020 mean that
- that work on an alteration can start before approval with not recourse against an owner
- there is not a stated requirement that
- any works is required to be subject to any approval required and /or condition imposed by the Gold Coast City Council and/or such relevant government body having responsibly for the matter .
- , at completion the work will be available for inspection by a qualified. Inspector approved by the body corporate and the applicant completes such additional works as may be necessary by the qualified inspector
- if the applicant fails to refuses to attend to a conditions of an approved application, the then the body corporate may supply or engage another person to remedy any incomplete work
- before written approve a lot oner had to give a deed of undertaking binding the applicant and its successors in title to the conduct and condition required by the committee’s approval.
- the obligation of an approval do not pass to a lot owner’s it’s successors in title to ensure any potential purchasers and/or successors are informed and understand to condition of any approval given. That means any requirement for maintenance , that imposed by section 177 on the owner making the application.
- As there is no stated requirement the making of such condition would be a requirement of the committee and if they do not make them, the condition do not exist.
- The application of any such conditions, that were in by-law 27 to protect the body corporate may not be enforceable as they would not be “appropriate and reasonable in the circumstances to ensure that the renovations” to the conditions listed in by-law 20.4(a) to (f). That is because the conditions that were stated in the old by-law 27 would not “ensure” that (a) the visual amenity of the scheme land, (b) adversely affect any structural elements , does not compromise safety of person or property, (d) affect the body corporate insurance (e) promote breach of the Act or By-laws or (f) damage or reduce the effectiveness of the termite barrier.
The issue is the application of section 177
Approvals after new by-laws
There were no motions approving Lot 8’s alterations
12th May 2021
The minuting of the word “approved” is not a resolution, section 163 requires resolution to be recorded int eh minutes.
15th August 2021
Correspondence
How can letters be sent on the 4th August 2021 for approvals that were not granted till 15th August 2021?
8th December 2021
The approval is for the body corporate manager to write to owners? So who wrote the letter in corresponcence?
How can a letters be sent on the 4th September 2021 for an approval that was not granted till 8th December 2021?
How can a letter be sent on the 27th September 2021 for an approvals that was not granted till 8th December 2021?
How can letters be sent on the 6th October 2021 for approvals that were not granted till 8th December 2021?
How can a letter be sent on the 26th October 2021 be sent for approval of “fence and gate” when approval granted till 8th December 2021 was for “reinstate security screen over crime screen”?
How can a letter be sent on the 3th November 2021 for an approval that was not granted till 8th December 2021?
24th January 2022
The approval is for the body corporate manager to write to owners? So who wrote the letter in correspondence?
How can letters be sent on the 12th January 2022 for approvals that were not granted till 24th January 2022 for?
11th May 2022
7 people were in attendance at the meeting
How can there be vote a vote tally that is less than 7?
24th August 2022
No correspondence noted (clai was tabled but nil table attached) Valley Terraces Echohamlets [2012] QBCCMCmr 314 521that:.
“The requirement is simply that if an item of correspondence is tabled then it should be listed in the minutes.”
28th November 2022
This is the first time any such wording have been applied to a consent with regard indemnity
No correspondence noted (clai was tabled but nil table attached) Valley Terraces Echohamlets [2012] QBCCMCmr 314 521that:.
“The requirement is simply that if an item of correspondence is tabled then it should be listed in the minutes.”
20th February 2020
Why were the wording regard indemnity given to these approvals?