Kabi [2000] QBCCMCmr 417 (18 August 2000)

CG YoungREFERENCE: 0348-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	11644
Name of Scheme:	Kabi
Address of Scheme:	13 Landsborough Parade Golden Beach CALOUNDRA QLD 4551

TAKE NOTICE that pursuant to an application made under the abovementioned Act by

Jean Lesley WESTMORE, the owner of Lot 5,


CG YoungI hereby order that the application by Jean Lesley WESTMORE, the owner of Lot 5, for an order 1nthat the body corporate reinstall the tap previously located on the common property adjacent to the garage for Lot 6 on Level A of the scheme’s registered plan, is dismissed.

I further order that, within one (1) month of the date of this order, the body corporate must ensure that all lot owners and occupiers have means of ready access to the common property room located adjacent to part of Lot 12 on Level A, which contains a shower, hand basin and toilet.
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0348-2000

“Kabi” CTS 11644

The applicant, Jean Westmore of Lot 5, has sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”) that the body corporate reinstall a common property tap and allow all occupiers access to the downstairs toilet located near the common property swimming pool.

Section 223(1) of the Act provides that an adjudicator may make an order that is just and equitable in the circumstances (including a declaratory order) to resolve a dispute, in the context of a community titles scheme, about –

a) a claimed or anticipated contravention of the Act or the community management statement; or

b) the exercise of rights or powers, or the performance of duties, under this Act or the community management statement; or

c) a claimed or anticipated contravention of the terms, or the termination of, or the exercise of rights or powers under the terms of, or the performance of duties under the terms of an engagement contract or an authorisation contract.

An order may require a person to act, or prohibit a person from acting, in a way stated in the order (section 223(2)). An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 230(1)).

In the supporting grounds, the applicant states that the body corporate committee has removed a tap which serviced the garages of Lots 1, 5, 6 and 9. Mrs Westmore contends that the occupiers of these lots cannot comply with By-Law 12 (owners to keep their garages clean) if the tap is not restored. In respect of the toilet, the applicant states that it is necessary that persons using the swimming pool have access to the common property toilet for hygiene purposes. She believes that the body corporate is not administering the common property for the benefit of all owners because the committee members continue to have access to the toilet and to taps near their garages.

A copy of the application was forwarded to the body corporate secretary for distribution to all owners and the committee.

As the applicant has sought an order in relation to two specific issues, I will deal with each of the issues separately.

Removal of the tap

Mrs Westmore has provided a plan showing the location of three common property taps, one near the garage of Lot 3, the second near a part of Lot 12, and third outside the garage of Lot 6. She states that it is the last tap which has been removed.


In its response to the application, the committee states that a significant plumbing problem exists which has been advised to owners via the minutes of at least four committee meetings and by references in the financial statements to plumbing allowances and expenditure. The committee submits that over the last two years a number of remedial works have been undertaken in an attempt to rectify this problem. The problem is a leak under the concrete driveway which can not be located with certainty, requiring that the line to the tap be disconnected to prevent water leaking under the building and causing long-term damage. The committee has suggested that coupled hoses, secured to the fence line, be used to access one of the other taps in the scheme. Committee members have spent considerable time in investigating the problem and arranging repairs – it had to deal with 6 pipe leaks within 12 months.

The tap in question was located on the common property and therefore the responsibility of the body corporate. The committee, as the administrative arm of the body corporate, has power under the legislation to make decisions on behalf of the body corporate, however section 26 of the Body Corporate and Community Management (Standard Module) Regulation 1997 ("the Standard Module") prevents the committee from making a decision on certain “restricted issue” none of which, in my opinion, are applicable here.

A lot owner does not have the right to use common property, including a tap, for the maintenance of their lot unless authorised by the body corporate. Further, the body corporate does not have an obligation to provide facilities and amenities to owners and occupiers to meet their maintenance responsibilities. The garages on level A of the registered plan form part of each lot included in the scheme. The obligation lies with the lot owner to maintain their lot in good condition in accordance with the requirements of section 120(2) of the Standard Module; the occupier of a lot must “keep parts of the lot readily observable from another lot or common property in a clean and tidy condition” (section 120(1) of the Standard Module). Mrs Westmore has provided an incorrect set of by-laws. While referring to the by-laws relating to the “Body corporate for Kabi Court community titles scheme 11644”, she has supplied copies of the by-laws applicable to the “Body corporate for Kabi community titles scheme 11241”. By-law 12 she has referred is not relevant in considering this matter.

In addition, I consider that the body corporate committee has acted reasonably and for the benefit of owners in making the decision to remove the tap. The tap was removed as the most appropriate measure to prevent likely damage to the complex caused by water leakage. The necessity of that decision outweighs the inconvenience to certain owners caused by the tap’s removal. The committee has suggested an alterative method for supplying water to the northern side of the complex through the use of coupling hoses.

For these reasons I have dismissed this part of the order sought by Mrs Westmore.

The downstairs toilet

Mrs Westmore has provided a plan showing the location of the toilet on Level A of Building Units Plan 3520 and adjacent to part of Lot 12. Mrs Westmore states that the toilet room contains a shower, toilet and washbasin and has submitted a series of photographs of the room.

Jan and Eric Jones have submitted that all lot owners should have access to the toilet and that for approximately eight years since 1989, all owners did have keys to this room. The committee state that this room has been used for many years to store pool chemicals, tools and equipment, cleaning products, and garden fertilizer. The committee refers to plans obtained from the Caloundra City Council which shows against the room the words “Grounds Man”. The committee states that the room is only accessible to two resident committee members and the weekly pool cleaner and lawn mowing contractor because -

•	There were a number of unsavoury incidents when occupiers had access to the room and committee members had to clean the room.
•	There is a lack of other suitable storage areas.
•	There are public safety and insurance issues which must be considered if access to the room is allowed.

The committee contends that the purpose of this room relates to the words “Grounds Man” shown on the plans held by the Caloundra City Council. However a notation on Council plans to this effect is irrelevant in determining the ownership or use of a room on common property.

Section 37(1) of the Act provides that common property is owned by lot owners as tenants in common. Section 37(4) of the Act provides that if the occupier of a lot is not the lot’s owner, any right the owner has to the occupation or use of common property, is likewise enjoyed by the owner. It is clear that the room is on common property and in the absence of any exclusive use by-law, is able to be used equally by owners and other occupiers.

In addition, the room contains a shower, toilet and washbasin and is situated near the swimming pool. It would be reasonable for the owners and occupiers of lots in the scheme to expect that the facilities in this room are available for persons using the swimming pool or even the nearby beach.

In a letter dated 24 April 1999, the secretary advised Mrs Westmore that the committee had decided on restricting access to this room to committee members and maintenance contractors, as it contains pool and cleaning chemicals, other equipment and gardening maintenance items.

I consider that the committee do not have the authority to make such a decision. Although the committee, as the administrative arm of the body corporate, can make decisions on behalf of the body corporate, it cannot make a decision on an issue which the regulation module applying to the scheme prescribes as a “restricted issue”. Section 26(b) of the Standard Module regulations includes as a “restricted issue” any decision which changes the “rights, privileges or obligations of the owners of lots included in the scheme”. The room was obviously constructed predominantly for the convenience of occupiers using the pool and it is a reasonable expectation that the facility should continue as a right attaching to ownership within the scheme. The toilet, shower and toilet facilities comprising the room are a substantial asset of the scheme and its use for other purposes exclusively would deprive occupiers of their right to use the facilities, apart from being a waste of a purpose-built facility.

I can understand the committee’s need for a secure storage area for pool chemicals, tools etc., and the need to police use of the room, but these should be able to be achieved without closing off the facilities to occupiers. Items could be stored in the room adjacent to the shower with any hazardous items (pool chemical) secured in a lockable container. Alternatively, perhaps part of this area could be gated off with a lockable mesh security door. If necessary, a separate area will need to be found to store the items, or a locker erected for that purpose. That will be a matter for the committee to consider, or the body corporate in general meeting if the cost is beyond the committee’s statutory expenditure limit.

For the foregoing reasons, I have ordered that the committee make arrangements to ensure that each lot owner and occupier has access to the room1n.