Emerald Lagoon [2000] QBCCMCmr 454 (11 September 2000)

RA MeekREFERENCE: 0281-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	5260
Name of Scheme:	Emerald Lagoon
Address of Scheme:	24 Ron Penhaligan Way, Robina QLD 4217

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

Jeanette Elma Brown, the owner of lot 33


RA MeekI hereby order that the application by Jeanette Elma Brown, the owner of lot 33, for an order to have a visitor’s car park redesignated to a private car park for her unit No. 33 of Emerald Lagoon complex, is dismissed.

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STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0281-2000

“Emerald Lagoon” CTS 5260

The applicant, Jeanette Elma Brown, the owner of lot 33, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

The order sought is to have a visitor’s car park redesignated to a private car park for my unit No. 33 of Emerald Lagoon complex for reasons stated in previous correspondence.

Section 223(1) 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 access to her lot is dangerous. The applicant refers to the fact that recently she “had cause to require an ambulance to my house” and that “the ambulance was impeded by cars parked in the visitor’s area”. The applicant states that every other dwelling has a gate and entrance separate to their entrance. The applicant concludes –

I am not getting a “fair go” also it is dangerous in case of an emergency.

The applicant then invites the adjudicator to visit the site.

Ordinarily I might have included an inspection of the parcel as part of the investigation of this application. However I consider that this application as currently presented must be dismissed, and that nothing gained at the inspection would alter this view. Therefore I have elected not to inspect the parcel at this time.

The body corporate, via the manager, has indicated that the applicant was advised to submit a motion to a general meeting of the body corporate regarding a grant of exclusive use for the area in question. The body corporate has advised that to date, the applicant has not submitted such a motion.

The application seeks that the applicant be granted a “private car park” of an area which is currently a visitor car parking space, and moreover, is common property. The grant of a “private car park” amounts to an allocation of exclusive use of common property. The grant of exclusive use is required to be in the form of a by-law, and requires a resolution without dissent on the part of the body corporate. The applicant has failed to propose a motion seeking such a grant of exclusive use. It would be entirely inappropriate, and contrary to accepted practice, for an adjudicator to authorise a grant of exclusive use in circumstances presented by the applicant.

The applicant must propose a motion seeking an allocation of common property for exclusive use to a meeting of the body corporate. If such motion is not carried due to a dissenting vote or votes, then the applicant would be entitled to make application to this office to overturn the dissenting vote or votes on the basis that they were unreasonable in the circumstances. An adjudicator has power to make such an order under section 223(3)(u) of the Act. In making such application, the applicant would need to explain in her grounds the basis why she considered the dissenting votes to be unreasonable. In particular, I consider that the applicant would need to provide an explanation of why a circumstance which was open to her to check at the time of her purchase (ie. the provision of reasonable access to her lot) is now no longer so.

The applicant might also have approached this office in 1997 or thereabouts after the committee reversed a previous decision to provide some relief to the applicant regarding this matter. However, an application to invalidate this resolution now would be subject to the time limitation in section 193 of the Act.

This application is dismissed as the applicant has not taken appropriate steps to place this matter before the body corporate, before approaching this office. I have ordered accordingly.



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