115 Dollis Street [2001] QBCCMCmr 339 (20 June 2001)

R A MeekREFERENCE: 0300-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	5312
Name of Scheme:	115 Dollis Street
Address of Scheme:	115 Dollis Street ROCKLEA QLD 4106

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

The Body Corporate


R A MeekI hereby order that the owners of lot 15, Raymond David Mitchell and Marie Francis Mitchell, shall remove all material, including glass and splinter glass, from the common area between lots 14 and 15 within 14 days of the date of this order, at their own expense and thereafter leave that area in a clean and tidy condition.2n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0300-2001

“115 Dollis Street ” CTS 5312

The body corporate for 115 Dollis Street has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

“The Body Corporate request that Raymond David and Marie Francis Mitchell be ordered to remove glass, currently on Common Property and clean the area of any splinter glass and or other rubbish. The Body Corporate further request that if the above order is granted and not carried out within a specified period (ie 14 days) that under Section 123 of the Body Corporate and Community Management Act 1997 that the Body Corporate be granted permission to clear and clean the area of glass at the Owners expense.”

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 body corporate states that the owners of lot 15 have been storing a large amount of glass between Lot 14 and Lot 15 on numerous occasions since 1998, without body corporate permission. The body corporate further states that the owners of lot 15 have been requested to remove the glass verbally by members of the committee and have also been issued with similar requests in writing as well as at least three Notices of Continuing Contravention of a Body Corporate By-Law (hereinafter referred to as Contravention Notices). A copy of one such Contravention Notice, dated 3 April 2000, accompanied the application, along with written advice from Mr George Konstantine Kentrotis, Licensed Commercial Agent, that he had effected personal service of a Contravention Notice upon the owners of lot 15 on 20 September 2000. The body corporate also provided photographs showing the material deposited on the common area between lots 14 and 15.

Submissions were sought from the owners of lot 15 but no submission was received. As the Notice Inviting Submissions was sent by this office to the address stated in the application form, as well as the address where personal service of a Contravention Notice was effected, I am satisfied that the owners of lot 15 did in fact receive the notice inviting submissions, have chosen not to respond and do not refute any of the material presented in the application. I have therefore based my decision on the information supplied by the body corporate.

Community Titles Scheme 5312 is registered as a Building Format Plan of subdivision and the area between lots 14 and 15 is clearly designated as common property on that plan. A search of the body corporate by-laws revealed that part of the common area between lots 14 and 15 is the subject of an exclusive use car space, which at the time the community management statement was registered, was for the benefit of the owner of lot 14. This by-law 25 relevantly provides as follows:

“Each proprietor or occupier to whom exclusive use of a car park space or spaces is given pursuant to the By-Law shall use such car space or spaces for the purpose of car parking only and shall not litter or otherwise soil the car park space or spaces or so use the car park space or spaces as to create a nuisance ...”

Any use of this particular part of the common area between lots 14 and 15 other than as a car parking space is therefore prohibited.

In the Contravention Notice dated 3 April 2000, the body corporate alleges that the following by-laws were being breached:

By-Law 10 – Depositing Rubbish Etc., on Common Property

10. A proprietor or occupier of a lot shall not deposit or throw upon the common property any rubbish, dirt, dust or other material likely to interfere with the peaceful enjoyment of the proprietor or occupier of another lot or of any person lawfully using the common property.

By-Law 22 – Duties of a Proprietor

22.1 A proprietor shall:

(d) Use and enjoy the common property in such a manner as not unreasonably to interfere with the use and enjoyment thereof by other proprietors or occupiers or their clients, customers, invitees, licensees, employees, servants or agents.

(e) Not use his lot or permit the same to be used in such manner or for such purpose as may cause a nuisance or hazard to any other proprietors or occupiers of a lot.

In the grounds to the application, the body corporate also alleges a breach of by-laws 4, 21 and 26. By-law 26 grants exclusive use of an area of common property to the owner of Lot 5 and I do not consider that by-law to be relevant to this dispute. By-laws 4 and 21 provide relevantly as follows:

By-Law 4 - Obstruction

4. A proprietor or occupier of a lot shall not obstruct lawful use of common property by any person.

By-Law 21 – The Pathways and Drives on the Parcel

21. The pathways and driveways on the common property shall not be obstructed by any of the proprietors or occupiers of lots or used by them for any purpose other than the reasonable ingress and egress to and from their respective lots.

I am satisfied that the owners of lot 15 have breached each of these above-mentioned by-laws by depositing and leaving upon the common area between lots 14 and 15, glass and other material. I am also satisfied that the body corporate has been more than reasonable in attempting to persuade the owners of lot 15 to remove the offending material. The application indicates that verbal and written requests have been made, as well as the formal service of Contravention Notices, which included the engagement of a solicitor and licensed commercial agent.

I have therefore ordered that the owners of lot 15 remove all material, including glass and splinter glass, from the common area between lots 14 and 15 within 14 days of the date of this order, at their own expense and thereafter leave that area in a clean and tidy condition.

The Body Corporate has also sought an order “that if the above order is granted and not carried out within a specified period, that under Section 123 of the Body Corporate and Community Management Act 1997 that the body corporate be granted permission to clear and clean the area of glass at the owners expense.”

Section 121 of the Body Corporate and Community Management (Standard Module) Regulation 1997 (the Standard Module) provides as follows:

Body corporate may carry out work required of owners and

occupiers—Act, s 123

121.(1) This section applies if the owner or occupier of a lot included in

the scheme does not carry out work that the owner or occupier has an

obligation to carry out under—

(a) a provision of the Act or this regulation, including a provision

requiring an owner or occupier to maintain a lot included in the

scheme; or

(b) a notice given under another Act or a Commonwealth Act; or

(c) the community management statement, including the by-laws; or

(d) an adjudicator’s order; or

(e) the order of a court.

(2) The body corporate may carry out the work, and may recover the

reasonable cost of carrying out work from the owner of the lot as a debt.

Section 121 authorises the body corporate to carry out work that an adjudicator has ordered an owner or occupier to undertake and then recover the reasonable cost of carrying out that work from the relevant owner or occupier of the lot as a debt. It is therefore unnecessary for me to make an order in the terms sought by the body corporate. The body corporate, in the event that the order is not complied with, would also be able to take enforcement action through the Magistrates court in accordance with section 234 of the Act.

While not raised by the body corporate, I note from the photographs supplied that there are several rubbish bins that appear to be being stored in the common area between lots 14 and 15. By-Law 16 relevantly provides as follows:

By-Law 16 Garbage Disposal

16. A proprietor of a lot shall:

(a) save where the Body Corporate provide some other means of disposal of garbage, maintain within his lot. Or on such part of the common property as may be authorised by the Body Corporate in a clean a dry condition and adequately covered, a receptacle for garbage.

(b) comply with all local authority by-laws regulations and ordinances relating to the storage and disposal of garbage.

(c) ensure that the health, hygiene and comfort of the proprietor or occupier of any lot is not adversely effected by his storage and disposal.

If the body corporate has not authorised the storage of the bins in this area, or if they are currently located within the exclusive use car space originally allocated for lot 14, they should be removed immediately and kept within the boundaries of the respective owners’ lots, in accordance with By-Law 16.
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