Parkview II [2001] QBCCMCmr 359 (3 July 2001)

R A MeekREFERENCE: 0262-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	23249
Name of Scheme:	Parkview II
Address of Scheme:	71 Queen Street CLEVELAND QLD 4163

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

Richard and Louise Hoan, the owners of lot 1

R A MeekI hereby order that the body corporate, in general meeting, must make arrangements for the storage of bins on the common property within two months of the date of this order.

I further order that the owners of lot 1, Richard and Louise Hoan, shall within twenty-one (21) days of the date of this order and at their own expense, replace three palings in the common property fence along the driveway – the one they spray-painted red and the paling on either side of it.2y
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0262-2001

“Parkview II” CTS 23249

The applicants, Richard and Louise Hoan, the owners of lot 1, have sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

A continuous and unobstructed freedom of traffic circulation along the common driveway of the Body Corporate for Parkview II, 71 Queen Street Cleveland, which includes ready access to our garage.

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 applicants state that access to their garage is restricted by the current location of the owner of Unit 4’s garbage bin, which is up against the fence on the common property driveway outside Unit 2. They further state that since October 1996 (when the applicants arrived in the complex) there has been an “unwritten common consent for the placement of garbage bins”. This verbal arrangement, according to the applicants, allows the occupiers of units 2 and 3 to place their garbage bins in the most rearward position along the driveway. Two recycling bins are apparently also able to be stored in this location, but the applicants do not state whose bins these are to be. Presumably, one is to be the applicant’s. The owner of unit 4 is required, under this verbal arrangement, to store their bin on a small concrete slab next to the fence-side of Unit 4’s garage door. The owner of Unit 4 (who moved in to the complex some seven months ago) has placed her bin with the others on the common property driveway and is using the concrete slab referred to above to house a flowering pot plant. The applicants, under the verbal arrangement, are to place their standard garbage bin next to their front yard.

The applicants concede that they spray-painted red from top to bottom a paling in the common property fence to serve as what they refer to as a “demarcation line” beyond which no bins are to be placed.

Submissions in response to the application were sought from all owners. The owners of units 2 and 4 have made submissions. The applicants advise that the owner of unit 3 is permanently employed in Papua New Guinea and his property is let.

The submissions of the owners of units 2 and 4 both oppose the application, stating that they have no knowledge of any verbal agreement relating to the storage of garbage bins. Neither of these owners has concerns with the current location of the bins and do not experience problems manoeuvring their vehicles in and out of their garages. Both, however, take issue with the applicant’s “demarcation line”, commenting that it constitutes an “eyesore”.

“Parkview II” was registered as a Group Title Plan on 8 May 1995 under the Building Units and Group Titles Act 1980 (BUGTA). The driveway in question and gardens on it are clearly designated as common property. Section 37 of the Act states that the common property is owned by the owners in the scheme as tenants in common. Section 114 then provides that the body corporate administers, manages and controls the common property, but must do so reasonably and for the benefit of owners. The legislation empowers a body corporate to make by-laws for this purpose.

Under the BUGTA, the by-laws set out in the Third Schedule of that Act became the by-laws of the body corporate immediately upon registration. These by-laws remain the applicable by-laws for the Parkview II body corporate, by virtue of section 285(5)(a) of the current Act.

I consider by-law 10, relating to garbage disposal and alluded to very generally by the applicants, to be relevant to this application. By-law 10 provides as follows:

Garbage Disposal

10. A proprietor or occupier of a lot shall –

a.	Save where the body corporate provides some other means of disposal of garbage, maintain within his or her lot, or on such part of the common property as may be authorised by the body corporate, in a clean and tidy condition and adequately covered, a receptacle for garbage;
b.	Comply with all local government local laws and ordinances relating to the disposal of garbage;
c.	Ensure that the health, hygiene and comfort of the proprietor or occupier of any other lot is not adversely affected by his or her disposal of garbage.

I consider that this by-law states the body corporate’s current position in terms of how and where occupiers are to store their garbage bins, namely within their lots, unless the body corporate authorises storage of the bins on the common property. I am not satisfied that the body corporate has authorised the storage of the bins on the common property driveway, where they are currently located. The applicants refer to a verbal agreement purporting to give such authorisation but have supplied no evidence of it. Two of the remaining three owners deny the existence of any verbal agreement. Even if the verbal agreement does exist, I do not consider it to be binding on any of the parties. The legislation makes no provision for decisions of a body corporate to be made verbally. Such a decision would need to be made by the owners at a properly constituted general meeting and be recorded in the minutes of that meeting.

However, the current position in relation to the storage of bins as stated in by-law 10, is completely unworkable in this particular body corporate. On Thursday 28 June 2001 an Inspector from this office inspected the scheme and discovered that because the front boundary of each lot was the front wall of the townhouse, the only way for the occupiers to keep their bins within the boundaries of their lots was to keep them within their garages, or within their private yards at the rear of the lots. The owners of lots 1, 2 and 4 all stated that this was impractical. None of the owners present at the inspection were in favour of keeping the bins in their garages.
The owner of lot 2 has converted her garage into another room that houses a computer and sofa. Keeping the bins in each occupier’s private yard is also impractical. The only lot with access from the common property driveway directly into the private yard is lot 4. All other lot occupiers would be forced to wheel the bin through their unit to get it to and from the private yard. The garages they stated were narrow and it would be impossible to wheel a bin through the garage with a car inside it. For these reasons, it is imperative that this body corporate authorises, in general meeting, arrangements for the storage of bins on common property as a matter of priority.

I therefore propose to order that the body corporate, in general meeting, must make alternative arrangements for the storage of bins on the common property within two months of the date of this order.

In the meantime, no bins are to be placed South of the “demarcation line” on the common property driveway. I accept the applicant’s assertion that access to his garage is restricted when the bins are placed beyond the “demarcation line”. The driveway is very narrow, only 4.83 metres (including garden beds) at its narrowest point, and I expect that manoeuvrability of vehicles would be difficult even without any obstructions on the driveway.

The applicants contend that the owner of lot 4 should keep her bin on the concrete slab in front of her lot, instead of the flowering pot plant. I do not agree. No other lot owner is required to keep their bin next to the front of their lot and nor should the owner of lot 4.

When deciding upon alternative arrangements for the storage of bins on common property, in addition to my comments above, I draw all owners’ attention to By-Law 3 which provides that “A Proprietor or occupier of a lot shall not obstruct lawful use of common property by any person”. In other words, any alternative arrangements would need to ensure that all lot owners are able to use the common property driveway to enter and exit their garages in their vehicles without having to move any bins. It may be that part of the common property garden to the North of where four bins are currently stored, will need to be paved over to make room for an extra bin.

The owners of units 2 and 4 have also raised the issue of the applicants’ creation of a “demarcation line” by spray-painting red a paling in the common property fence bordering the driveway.

I consider By-Law 5 to be relevant to this issue. It provides as follows:

Damage to Common Property

5.(1) A proprietor or occupier of a lot shall not mark, paint, drive nails or screws or the like into, or otherwise damage or deface, any structure that forms part of the common property except with the consent in writing of the body corporate, but this by-law does not prevent a proprietor or person authorised by the proprietor from installing –

(a) any locking or other safety device for protection of his or her lot against intruders; or

(b) any screen or other device to prevent entry of animals or insects upon his or her lot.

(2) Provided that the locking or other safety device or, as the case may be, screen or other device is constructed in a competent manner, is maintained in a state of good and serviceable repair by the proprietor and does not detract from the amenity of the building. (bolding my emphasis)

I am satisfied that the applicants, by creating the “demarcation line” without written consent, have clearly contravened this by-law. The legislation provides two methods of enforcing by-laws. The first is to issue the person who breached the by-law with a by-law contravention notice and the second is to make an application to this office. Although the owner of unit 2 states that they have contacted the body corporate manager regarding the matter and were advised that “at no time is one tenant allowed to graffiti joint property”, they have provided no evidence that either of the methods provided in the legislation for enforcing by-law contraventions has been followed. Nevertheless, given the level of animosity that clearly exists between the owners of unit 1 and the owners of units 2 and 4, I consider this matter should be resolved forthwith and therefore propose to further order that the owners of lot 1 replace, at their own expense, three fence palings, being the fence paling they painted red and the one on each side of it, within twenty-one days of the date of this order. I have ordered the replacement of three palings because the photograph supplied by the applicants shows that the red paint appears on the paling either side of the one they intended to paint as well. The body corporate, in general meeting, will need to come up with an alternative and more subtle way of marking the point beyond which the bins are not to be placed. 2y