The Bostonian [2002] QBCCMCmr 519 (23 August 2002)

RA MeekREFERENCE: 0264-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	25652
Name of Scheme:	The Bostonian
Address of Scheme:	57 Edward Street BRISBANE QLD 4000

TAKE NOTICE that pursuant to an application made under the abovementioned Act by the Body Corporate for The Bostonian

RA MeekI hereby order that the application by the Body Corporate for the Bostonian, for an order that the owner and / or occupier of lot 1 at the expense of the occupier remove signage installed by the occupier that is inconsistent with the standards adopted by the body corporate and in contravention of the body corporate by-laws, is dismissed.

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STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0264-2002

“The Bostonian” CTS 25652

The applicant, the Body Corporate for the Bostonian, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

The body corporate is seeking an order for the owner and / or occupier of lot 1 at the expense of the occupier to remove signage installed by the occupier that is inconsistent with the standards adopted by the body corporate and is in contravention of the body corporate by-laws.

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. These are known to the respondent occupier, who has replied by way of submission. In turn, the applicant has replied to that submission.

The body corporate seeks that the owner and / or the occupier of lot 1, Jenine McDonald, and Graham Brian Norman trading as Aqua Shop Brisbane (Aqua) respectively, comply with the “standard” for external signage for all commercial lots. “This standard, adopted in 1999 and minuted, specified the type of design and specifications of any signage to be installed under the street awning of the building”. The body corporate complains that Aqua “has installed signage of a colour not agreed on when the standards were adopted and differs from all the other signs currently in place”.

The body corporate relies on by-laws 8.1 and 8.2, as follows –

8.1 The occupier of a lot must not, without the body corporate’s written approval, make a change to the external appearance of the lot unless the change is minor and does not detract from the amenity of the lot and its surrounds.

8.2 The occupier of a lot must not, without the body corporate’s written approval display a sign, advertisement, placard, banner, pamphlet or similar article if the article is visible from another lot or the common property, or from outside the scheme land.

Specifically, the body corporate’s complaint is that the sign installed by Aqua is blue and not burgundy in colour. The body corporate “is seeking an order to ensure that the tenant of lot 1 be made to comply with the colour adopted by the body corporate for signage”.

Aqua contends that –

• The body corporate has exceeded its mandate or authority in seeking to dictate the “corporate colours” of commercial tenants;

• The decision is neither fair, reasonable or transparent;

• The “change” is minor and does not detract from the amenity of the lot and its surrounds;

• The sign and its colour is professionally done and has no negative effect on the outside appearance of the building.

Aqua have raised a number of specific arguments which I do not intend to canvass.

The “standard” to which the body corporate refers are not part of the by-law. I requested a copy of this “standard” from the body corporate manager and was provided with a three page document which I would describe as architectural drawings. So far as it refers to colour, the drawings state “Burgundy face colour with white lettering”. The body corporate committee adopted the “proposed designs and specifications” and resolved “that the owners of lots 1 to 4 are to receive written consent ... for the installation of under awning signage to be ... in accordance with the specifications as approved by the committee and supplied to the lot owner”.

Whilst the owner was presumably aware of the required specifications, it is not clear whether Aqua were informed by the owner of these requirements by the owner.

I intend to dismiss this application. For a number of reasons, I simply cannot conclude that the alleged breach is of such significance or magnitude that the order sought should be made.

Firstly I consider there are possible commercial implications of an order in the terms as sought. For example, if a tenant of national or international recognition wanted to lease a lot and insisted that, in keeping with its nationally or internationally presented image, its signage be in different colouring to that specified in the standard, could the body corporate reasonably refuse an owner’s request in this regard. I raise by way of example, if the owner were negotiating with the fast food outlet, McDonalds, to take a lease of the lot. The “specifications” would presumably required McDonalds to change the colour of its “golden arches” to white on the burgundy background. Is a body corporate seriously able to insist on such a requirement and argue that it is reasonable? I consider that if the body corporate were to refuse, and such refusal resulted in the loss of a perspective tenant, then such refusal might be regarded as unreasonable, and potentially the subject of civil litigation. A body corporate has a duty to administer, manage and control the common property, reasonably and for the benefit of owners (see section 114 of the Act). I consider it very arguable that the potential detriment to one owner in losing a prospective tenant would outweigh the detriment to the body corporate in not having absolute compliance with its “standard”.

Secondly, the standard is not comprised within the terms of the by-law. Owners and occupiers are required to comply with provisions of the legislation, and the applicable by-laws. The relevant by-law does not incorporate the “standard” by reference to it. The by-laws relied upon are simply generic / non-specific by-laws. The first does not even refer to signage but rather “a change to the external appearance”. The second provides that an occupier must not display a sign without the body corporate’s written approval. I understand that the sign facility was already in place when Aqua took up occupation. What Aqua has done is to install its signage to fit the facility in a colour to which the body corporate objects.
The lot is a commercial lot. The sign facility is there for the advertisement of the occupier of the lot. I conclude that beyond controlling uniformity with the location and presentation of the sign facility (which in itself is not beyond an absolute right – but at least is not in dispute here), the body corporate should not seek to impose its authority further so as to control the actual sign presentation. I consider this an interference with the commercial rights of an occupier which is beyond that reasonably required for the administration, management and control of the common property.

Further, the body corporate has complained that Aqua failed to seek or obtain its consent to the signage. However, in my view, the resolution passed by the committee contains the necessary consent, quote “the owners of lots 1 to 4 are to receive written consent ... for the installation of under awning signage ...”. The signage installed is not exactly in accordance with the specifications approved and it is this aspect which I have already addressed.

Finally, having personally viewed the sign in dispute and the building, I consider that the presentation of the non-complying colour of the sign, and its effect on the overall aesthetics of the building, are minimal. In my view, the alleged non-compliance could not be said to affect the presentation of the scheme. For the above reasons, I have dismissed this application. n