Main Place [2000] QBCCMCmr 635 (6 December 2000)

P G DanielsREFERENCE: 0513-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	25819
Name of Scheme:	Main Place – Hervey Bay
Address of Scheme:	c/- McKinnon Body Corporate Administration PO Box 2224 BUNDABERG QLD 4670

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

Lee Werder Insurance Services Pty Ltd the owner of lot 2



P G DanielsI hereby order that the Body Corporate for Main Place – Hervey Bay community titles scheme 25819 must within fourteen days after 8 January 2001 give to Lee Werder, on behalf of the owner of lot 2, Lee Werder Insurance Services Pty Ltd, a key to any lock on a security gate leading to the toilets.1n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0513-2000

“Main Place” CTS 25819

The applicant, Lee Werder Insurance Services Pty Ltd, the owner of lot 2, has sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) to have motions 10-13 considered by the Body Corporate at an annual general meeting on 9 August 2000 (the meeting) passed.

The applicant has been represented by Lee Werder.

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)).

The Body Corporate for Main Place – Hervey Bay community titles scheme 25819 held an annual general meeting on 9 August 2000. The minutes indicate that Mr Werder submitted motions 10-13. An order is sought that the motions be passed.

Submissions have been received from Bev McKinnon of McKinnon Body Corporate Administration, the body corporate manager and George Ellison, a co-owner of lot 3. Mr Werder has replied to the submissions.

I will consider each motion separately.

Motion 10

The minutes of the meeting record the following about motion 10:

“Motion 10

Proposed by L Werder

Owner of Lot 2 in BFP 25819

Ordinary Resolution

Moved that security lighting – sensor type – be installed for the rear court yard area.

This motion was lost. 2 against

It is recommended that owners use their own exterior lighting.”

Mr Werder provides the following grounds in respect of this motion:

“The rear of the building is unprotected – no fencing – and adjoins the old railway line area which is not used after dark. A sensor light would be a deterrent to undesirables who haunt to inner city after dark. With no lighting it is easy for “undesirables” to break & enter & steal, do damage or light fires in the dark – a perfect atmosphere for these people. In this area, there are 3 sheds – roller door type and access to the 3 shops and toilets and whilst the shops and toilets all have grill type bars on the windows and doors, this would not stop an undesirable doing damage whilst working undetected in the dark.

My business is the only one to pay for a security firm to do regular calls. This service was rejected by others but I have no doubt that they benefit from same.

I do not intend to pay for security lighting on my own for the others to benefit also.”

Ms McKinnon states in her submission, “The other two owners have suggested that as there is currently no common electrical fitting for a sensor light, that owners use their own lighting to light the rear of the building.”

Mr Ellison states in his submission, “My shop at 3/45 Main Street, Pialba is under Electronic Security with Detek Security Services (Tel) 07 41251242. This is a back to base service, I feel that we do not require a Patron Service or Security Light.”

The provision of security lighting would be an improvement to the common property. The Body Corporate has power to make such improvements pursuant to section 93 of the Body Corporate and Community Management (Commercial Module) Regulation 1997 (the Regulation) which provides as follows:

Improvements to common property by body corporate—Act, s 121

[SM, s 113]

93. The body corporate may make improvements to the common

property if—

(a) the improvements are authorised by ordinary resolution; or

(b) an adjudicator, under an order made under the dispute resolution

provisions, decides the improvements are reasonably necessary

for the health, safety or security of persons who use the common

property and authorises the improvements.

It will be observed that an ordinary resolution is required unless paragraph (b) applies.

The issue to be addressed is whether the Body Corporate should have approved security lighting pursuant to section 93 of the Regulation. That requires a consideration of whether the Body Corporate has acted unreasonably and so contravened sections 87 and 114 of the Act. Those sections provide:

Body corporate’s general functions

87.(1) The body corporate for a community titles scheme must—

(a) administer the common property and body corporate assets for

the benefit of the owners of the lots included in the scheme; and

(b) enforce the community management statement (including the

by-laws affecting the common property); and

(c) carry out the other functions given to the body corporate under

this Act and the community management statement.

(2) The body corporate must act reasonably in anything it does under

subsection (1).

Body corporate’s duties about common property etc.

114.(1) The body corporate for a community titles scheme must—

(a) administer, manage and control the common property and body

corporate assets reasonably and for the benefit of lot owners; and

(b) comply with the obligations with regard to common property and

body corporate assets imposed under the regulation module

applying to the scheme.

(2) Nothing in this part, or in a regulation made under this part, stops—

(a) an item of personal property that is a body corporate asset from

becoming part of the common property because of its physical

incorporation with common property; or

(b) a part of common property from becoming a body corporate asset

because of its physical separation from common property.

Mr Werder has expressed concern about security. He has attached a letter to Ms McKinnon dated 19 October 1999 in which he states that there have been two attempted break-ins at the Sports Store. He states in his reply that graffiti was sprayed on the wall of Vicki Ramsay. However, Mr Werder and Mr Ellison already employ security services. Additionally, I take into account Ms McKinnon’s submission that there is no common electrical fitting for a sensor light. In these circumstances, I am unable to find a contravention of sections 87 and 114. Additionally, there are insufficient grounds to make an order pursuant to section 93(b) of the Regulation. In my view, Mr Werder would need to have presented stronger evidence to establish the necessity for a sensor light.


Motion 11

The minutes of the meeting record the following about motion 11:

“Motion 11

Proposed by Mr L Werder

Owner of Lot 2 in BFP 25819

Ordinary Resolution

Moved that all rubbish bins be locked away at night to avoid a fire being started in same, which would result in damage to the building.

This motion was lost. 2 against”

Mr Werder provides the following grounds in respect of this motion:

“The wheelie bins for the Curtain shop (Ramsay) and Sports Shop (Ellison) are left adjacent to the Building in the rear courtyard area. The Curtain Shop bin has no lid and curtain materials are left exposed in the bin with cardboard rolls (from material) and timber remnants left on the ground near the bin. The Sports Shop leave all their cardboard cartons stacked outside the bin near the building. Both bins are adjacent to my office as the Sports Shop has the toilet grill (door) which prevents his bin being left near his premises and the Curtain shop leaves hers anywhere.

My rubbish bin is locked in my shed and I have offered this to the others who declined and they also refuse to put them in the walking area to the toilets which would be behind the toilet grill/door.”

Mr Werder has attached an extract from a local paper dated 5 July 2000 that has brief accounts of a fire lit in a wheelie bin and an industrial bin and damage caused to stock by a fire hose being put through glass and turned on.

Mr Werder has provided evidence that he requested that the bins be locked away back in 1999.

Mr Ellison states in his submission, “Our rubbish bin is kept at the rear of our own shop against the rear wall, as it has done so for the last two and a half years, even before Mr Werder moved into shopNo2. We have never had any interference whatsoever in regards to our bin.”

The recorded community management statement for this scheme states that the by-laws are those provided by schedule 2 of the Act. There are two relevant by-laws in relation to rubbish, by-laws 7 and 10. They provide as follows:

Leaving of rubbish etc. on the common property

7. The occupier of a lot must not leave rubbish or other materials on the

common property in a way or place likely to interfere with the enjoyment of

the common property by someone else.

Garbage disposal

10.(1) Unless the body corporate provides some other way of garbage

disposal, the occupier of a lot must keep a receptacle for garbage in a clean

and dry condition and adequately covered on the lot, or on a part of the

common property designated by the body corporate for the purpose.

(2) The occupier of a lot must—

(a) comply with all local government local laws about disposal of

garbage; and

(b) ensure that the occupier does not, in disposing of garbage,

adversely affect the health, hygiene or comfort of the occupiers of

other lots.

In respect of by-law 7, there is no evidence that there has been an interference with the enjoyment of the common property. In particular, there is no evidence to that effect that would justify making the order sought.

It will be observed that by-law 10 allows a receptacle for garbage to be kept on a lot or on a part of the common property designated by the Body Corporate.

The question to be addressed is whether the Body Corporate should not allow occupiers to use the common property to keep a receptacle for garbage.

That involves consideration of whether the Body Corporate has acted unreasonably in failing to pass motion 11 or whether by-law 10(2)(b) is being contravened.

I am unable to find that the Body Corporate acted unreasonably or a contravention of by-law 10(2)(b). In my view, the applicant would need to establish by stronger evidence the need for bins to be locked away.


Motion 12

The minutes of the meeting record the following about motion 12:

“Motion 12

Proposed by Mr L Werder

Owner of Lot 2 in BFP 25819

Ordinary Resolution

Moved that all tenants be given a key to the toilet area for after hours use.

This motion was lost. 2 against”

Mr Werder indicates that he has to pay a share for cleaning the toilets. He wants to use the toilet at times when it cannot be accessed due to the presence of a locked security gate.

Mr Werder has provided photographs of the relevant area. When the security gate is opened, access can be obtained to the toilets and the back of Mr Ellison’s store.

Mr Ellison questions in his submission whether Mr Werder has a need for a key.

In my view, Mr Werder (on behalf of the owner of lot 2) should be given a key. He should be entitled to access the toilets.

I will make an order to that effect. I will order that the key must be given within 14 days of 8 January 2001. I have decided to allow this period of time so that Mr Ellison can make any arrangements necessary to improve the security to his lot.

I will not make an order that all owners/occupiers be given keys. There is no evidence before me that any other owners or occupiers want to be given keys.

The Body Corporate may want to give consideration to regulating the toilets such as the hours that the security gate is open and the requirement that any owners who use the toilets outside those hours shall ensure that the security gate is closed and locked after use.


Motion 13

The minutes of the meeting record the following about motion 13:

“Motion 13

Proposed by Mr L Werder

Owner of Lot 2 in BFP 25819

Ordinary Resolution

Moved that the fire hose at the rear of the building not be used for car washing when:

1.	All tenants are paying for water; and
2.	The legal liability aspect of the insurance cover, ie an outside party operating a business on Body Corporate Property.

Resolved that the fire hose not be used for any other purpose other than it’s intended use. 2 in favour.”

It will be observed that the Body Corporate resolved to pass motion 13.

Mr Werder states in his application that he objects to water from the normal tap being used by other owners to have their vehicles washed on site by a contractor. He objects on the basis of the cost of the water and electricity, doubt about insurance coverage should a third person be injured and the blockage of a drain. There has been some argument about how often vehicles are washed. The range is from one week to one month.

The grounds provided are not adequate to make an order that owners stop washing their vehicles on site. Mr Werder has provided no evidence to indicate that the amount of money for the water and electricity used would be significant.

In respect of the insurance coverage issue, it should be noted that the concern would extend to any person on scheme land performing services. I would not make an order on this basis. It would be unduly restrictive on owners and the Body Corporate.

There is no evidence to establish that a drain becomes blocked due to cars being washed.

Ms McKinnon states in her submission, “I am advised by the Chairperson, George Ellison, that if the washing of cars is a problem, they will no longer avail themselves of this service.”

The owners in this scheme may want to discuss this matter further.


Order

The only order I will make is that Mr Werder (on behalf of the owner of lot 2) be given a key to any lock on the security gate leading to the toilets within the timeframe indicated in the order. The remainder of the application is dismissed.