Ferry Court [2001] QBCCMCmr 551 (2 November 2001)

RA MeekREFERENCE: 0361-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	6316
Name of Scheme:	Ferry Court
Address of Scheme:	82 Ferry Road SOUTHPORT QLD 4215

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

Neville Edwin Davey, the co-owner of lot 1



RA MeekI hereby order that the body corporate of “82 Ferry Street” is entitled to proceed to implement its resolution regarding signage of the front or west facing common property wall of the scheme, subject to the current signage for the benefit of the owners of lot 1 not being affected by such additional signage.

I further order that, within two (2) months of the date of this order, the body corporate of “82 Ferry Street” shall re-site the existing letter boxes to an area of common property near the front of lot 1 (in the vicinity of the current signboard) or alternatively, the front entrance to lot 1 (in the vicinity of the current exposed concrete pad) and create an additional car parking space for the benefit of lot 1, either parallel to the existing common property car parking spaces of at right angles to those existing spaces.

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STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0361-2001

“Ferry Court” CTS 6316

The applicant Neville Edwin Davey, the co-owner of lot 1, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

1. That the body corporate be prevented from sign writing the western wall of factory 1 with advertising for any other business other than the existing directory sign.

2. That the body corporate grant “exclusive use” of the common area used as the car park to each lot in the scheme and have the spaces for each lot numbered.

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)).

I do not intend to restate the applicant’s grounds in any detail. The grounds are substantial, and are known to the other parties in consequence of the submission process. I will however refer to aspects of the applicant’s grounds where I consider them to be of significance or relevance.

I attended an inspection of the parcel and meeting of the parties on Wednesday 31 October 2001. The inspection and meeting was attended by the applicant, and the owners of some 9 (of 12) other lots, together with a few occupiers of lots. I was informed that the owners present also included all members of the committee of the body corporate.

The applicant has sought two orders, the first in respect of signage and the second, in respect of car parking. The applicant seeks to invalidate a resolution carried by the body corporate at a meeting held on May 31 2001 to the effect that the body corporate wall facing west to Ferry Road be used for advertising signage of all factories.

At the inspection, it was indicated that what was proposed by the body corporate was that the current west facing wall (or at least so much of that wall which the local authority will allow to be covered with signage) be divided into 14 equal parts, with each lot in the scheme being allocated one equal part, with one part remaining for the street number and name of the body corporate “82 Ferry Court”.

The applicant opposes this and believes that, for various reasons, the body corporate should not be allowed to sign-write the west wall of the building. Currently, the west wall only contains signage advertising the applicant’s business “Master Cane” prominently displayed across the top of the wall.

There are competing considerations here. The applicant alleges that notwithstanding that the wall is common property, that it is “totally unreasonable that other owners now decide that they want the advertise on the front wall of our factory”. Further, the applicant alleges that he paid a considerably higher purchase price for his factory, in part to “gain the road exposure for our business”.

The body corporate has responded in its submission that “the body corporate committee feels that lot 1 is being unreasonable to request sole use of the body corporate common wall as he is already exposed to the main road and we feel that all factories should be entitled to the same public exposure no matter if they are at the front or the rear of the factories”. By “same public exposure” I assume that the body corporate is stating that the applicant’s business will be afforded equal signage space as all other businesses in the scheme.

I note that the applicant states in his grounds that “we have had a council registered sign on the wall since we purchased the factory and it is still situated in the same position”. It seems that the applicant has owned lot 1 for in excess of 10 years, having purchased “in the late 1980’s”.

What I propose to order is that the body corporate is entitled to proceed to implement its resolution regarding signage of the front or west facing common property wall of the scheme, subject to the current signage for the benefit of the owners of lot 1 not being affected. Practically, the effect of this order will be that the body corporate is entitled to proceed with sign-writing of the front or west facing common property wall but must not remove or interfere with the current signage in favour of the owners of lot 1.

I consider that this order is fair and reasonable to all parties. It is a common property wall, with good exposure to passing traffic, and given this, it is reasonable that the wall be available for advertising for the benefit of all businesses in the scheme. However, notwithstanding that the wall is common property, there is something in the fact that the wall also forms the wall of the applicant’s lot. Given this, then I consider that the applicant has an entitlement that the signage somehow reflect this aspect. Moreover, the applicant’s signage has been in place on this wall for a period in excess of ten years, assuming the information provided to me is correct. However, neither of these factors lead me to conclude that the applicant’s is the only business entitled to the benefit of signage on the wall; this suggestion on the part of the applicant is unreasonable.

The body corporate, in sign-writing the wall, will also have to comply with local authority requirements including those governing the amount of wall area which can be covered by signage. I understand the percentage area is 75%. From this 75%, the area of the applicant’s current sign will need to be deducted, to determine the remaining area which can be sign-written. In determining this, only the businesses in lots 2 to 13 need be included. The applicant is not entitled to further signage, in addition to his current signage, which this order allows him to retain.

I now turn to the issue of car parking. I will indicate that the outset that the applicant will not succeed in obtaining the relief which he is seeking, namely the granting of exclusive use of an allocated number of car parking spaces. The allocation of exclusive use requires a resolution without dissent; that is, no vote against the proposal. I understand that the motion to allocate exclusive use was defeated by majority vote, with only two votes in favour. An adjudicator has power to overturn a dissenting vote in the case of a resolution without dissent where the “opposition ... in the circumstances is unreasonable”. With such a clear majority voting against the proposal, it is impossible to suggest that the opposition is unreasonable. This was even more clearly reinforced to me at the inspection where a clear and absolute majority of owners and occupiers stated that they were more than satisfied with the current parking arrangements. As well, the applicant’s own actions regarding parking allocations as former chairman of the body corporate are such the applicant is in my view estopped from now obtaining the benefit of his current proposal regarding parking.

However I consider that he meeting did canvass a compromise possibility. In essence, that at least one additional car parking space for the benefit of the applicant be created at the front of the parcel adjacent to the currently positioned letter boxes. It was agreed by a clear majority of those present, including the applicant, that if the letter boxes were re-sited to an area of common property near the front of lot 1 (in the vicinity of the current signboard) or alternatively, the front entrance to lot 1(in the vicinity of the current exposed concrete pad) that an additional car parking space could be created for the benefit of lot 1, either parallel to the existing spaces of at right angles to the existing spaces.

I acknowledge that technically this would only increase to two the number of spaces available to the applicant. However, there are other factors affecting the aspect of parking which became apparent at the inspection. In particular, the applicant avails himself of street parking for a work related vehicle along the street immediately adjacent to his lot. The applicant acknowledged that he did park his vehicle in this location at all times. The applicant sought to state that there was technically a council parking limit of 2 hours for such parking. However, it was clear from the applicant’s comments that this limit was not enforced by the council. In addition, the applicant had applied to council, and had approved a “loading zone” sufficient for two vehicles immediately adjacent to his lot.

I consider that provided the body corporate proceeds with the re-siting of the letter boxes, and the creation of a further car parking space for the applicant on common property opposite his lot, then that there will be sufficient parking for the applicant. In reality, with the additional street parking (one space) and two parking spaces in the loading zone (which I acknowledge have a more limited benefit for the applicant and his business), the applicant will technically have the benefit of 5 car parking spaces. I consider that this is a reasonable outcome in the circumstances.

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