Oceana on Broadbeach [2002] QBCCMCmr 581 (19 September 2002)

RA MeekREFERENCE: 0334-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	24163
Name of Scheme:	Oceana on Broadbeach
Address of Scheme:	100 Old Burleigh Road BROADBEACH QLD 4218

TAKE NOTICE that pursuant to an application made under the abovementioned Act by the Body Corporate for Oceana on Broadbeach

RA MeekI hereby order that the application by the body corporate for the following orders:-

1. A declaration pursuant to s.62(1) of the Body Corporate and Community Management Act 1997, that an easement exists in favour of the common property against lot 98 for the supply of utility infrastructure to the common property;

2. In the alternative, a declaration pursuant to section 125(1)(a) of the Body Corporate and Community Management Act 1997 that a person authorised by the body corporate be entitled to enter Lot 98 for the purposes of carrying out maintenance (window cleaning) to the common property;

3. That the body corporate be permitted to have access to the rooftop of lot 98 of the scheme and that such access be limited to window cleaning purposes to the exterior of the building;

4. All necessary orders and directions to give effect to the above declaration;

5. Such further or other orders as the commissioner or adjudicator thinks fit;

is dismissed.


The above order was appealed to the District Court at Southport on 29 October 2002. On 28 February 2003 Justice Robin QC delivered the following order:

“Appeal dismissed with costs. Adjudicator’s order confirmed.”

The District Court decision was appealed to the Court of Appeal on 28 March 2003. On 29 July 2003 Davies and Williams JJA and Fryberg J delivered the following order:

"THE ORDER OF THE COURT IS THAT:

1. Extend the time for filing the application for leave to appeal to 13 June 2003

2. Leave to appeal granted

3. Appeal allowed

4. Set aside the order of the District Court made on 13 March 2003

5. In lieu order as follows

a) Appeal allowed

b) Set aside order of the adjudicator made on 19 September 2002

c) In lieu, declare that under s 163 of the Body Corporate and Community Management Act 1997 a person authorised by the body corporate is entitled three (3) times a year or more frequently if the circumstances so required to enter and remain on Lot 98 while it is reasonably necessary to do so for the purpose of maintaining the windows within the common property by cleaning them

d) Order that the first respondent pay the appellant's cost of an incidental to the appeal to be assessed

6. Order that the first respondent pay the appellant's costs of an incidental to the appeal to be assessed."

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STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0334-2002

“Oceana on Broadbeach” CTS 24163

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

The body corporate seeks the following orders:-

6. A declaration pursuant to s.62(1) of the Body Corporate and Community Management Act 1997, that an easement exists in favour of the common property against lot 98 for the supply of utility infrastructure to the common property;

7. In the alternative, a declaration pursuant to section 125(1)(a) of the Body Corporate and Community Management Act 1997 that a person authorised by the body corporate be entitled to enter Lot 98 for the purposes of carrying out maintenance (window cleaning) to the common property;

8. That the body corporate be permitted to have access to the rooftop of lot 98 of the scheme and that such access be limited to window cleaning purposes to the exterior of the building;

9. All necessary orders and directions to give effect to the above declaration;

10. Such further or other orders as the commissioner or adjudicator thinks fit.

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, nor the response of the owner of lot 98, Stephen Charles Searle, in any detail. I consider that these aspects are known to the other parties in consequence of both the submission process, and the right of reply to submissions afforded to an applicant.

In essence, the applicant body corporate seeks access to Searle’s lot so that the body corporate can undertake “cleaning of the external windows of the building”. The body corporate submits that under section 62 of the Act, it is entitled to the benefit of an easement for access purposes over lot 98 so as to permit the supply of “utility services to the common property”. As part of this contention, the body corporate submits that “window cleaning readily meets the definition of the utility service as it is a service designed to improve the amenity or enhance the enjoyment of the lots or common property in the scheme”.

In the alternative, the body corporate submits that it has a power of entry pursuant to the terms of section 125 of the Act.

I intend to dismiss this application. The identical issue raised by this application has previously been considered by this office. I quote from the reasons for that decision (application 0610 of 2000):-

The applicant seeks an order for an easement based on section 62 of the Act. I will set out sections 61-63 and 66-67 as they are relevant to this application.

Easements in favour of lots for utility services and utility infrastructure

61.(1) An easement exists in favour of a lot and against other lots and

common property for supplying utility services to the lot and establishing

and maintaining utility infrastructure reasonably necessary for supplying the

utility services.

(2) However, the exercise of rights under the easement must not interfere

unreasonably with the use or enjoyment of the lot or part of common

property against which the easement lies.

Easements for utility services and utility infrastructure

62.(1) An easement exists in favour of common property and against the

lots for supplying utility services to the common property and establishing

and maintaining utility infrastructure reasonably necessary for supplying

utility services to the common property.

(2) However, the exercise of rights under the easement must not interfere

unreasonably with the use or enjoyment of the lots against which the

easement lies.

Easements for shelter

63.(1) An easement entitling the owner of a lot to have the lot sheltered

by parts of a building within scheme land necessary to supply shelter exists

against the lots or parts of common property where the relevant parts of the

building are situated.

(2) The easement for shelter under subsection (1) entitles the owner of

the lot to enter a lot or common property supplying shelter under the

easement to maintain or replace the shelter.

Exercise of rights under easement

66.(1) Rights under an easement under this part must not be exercised in

a way that unreasonably prevents or interferes with the use and enjoyment

of a lot or common property.

(2) If an easement under this part entitles a lot owner to enter another lot

or common property to carry out work, the owner—

(a) must give reasonable written notice—

(i) to the other lot’s owner, and additionally, if the owner is not

the occupier, the other lot’s occupier, before entering the lot

to carry out work; or

(ii) to the body corporate, before entering the common property

to carry out work; and

(b) must comply with the security or other arrangements or

requirements ordinarily applying for persons entering the lot or

the common property.

(3) If an easement under this part entitles the body corporate to enter a lot

to carry out work, the body corporate must give reasonable written notice to

the lot owner before entering the lot to carry out work.

(4) Subsections (2) and (3) do not apply if the need for the work to be

carried out is, or is in the nature of, an emergency.

Ancillary rights and obligations

67.(1) Ancillary rights and obligations necessary to make easements

effective apply to easements under this part.

(2) The community management statement may also establish rights and

obligations ancillary to easements under this part.

(3) Rights and obligations established under subsection (2) supersede

rights and obligations that would otherwise apply under subsection (1), to

the extent that there is inconsistency between the rights and obligations

under subsection (1) and the rights and obligations under subsection (2).

It will be observed the sections 61 and 62 are reciprocal provisions. Section 61 grants an easement in favour of a lot and section 62 grants an easement in favour of common property. The subject matter of both easements is “supplying utility services” and “establishing and maintaining utility infrastructure”.

The terms “utility infrastructure” and “utility service” are defined in Schedule 4 Dictionary of the Act as follows:

“utility infrastructure” means cables, wires, pipes, sewers, drains, ducts,

plant and equipment by which lots or common property are supplied

with utility services.

“utility service” means—

(a) water reticulation or supply; or

(b) gas reticulation or supply; or

(c) electricity supply; or

(d) air conditioning; or

(e) a telephone service; or

(f) a computer data or television service; or

(g) a sewer system; or

(h) drainage; or

(i) a system for the removal or disposal of garbage or waste; or

(j) another system or service designed to improve the amenity, or

enhance the enjoyment, of lots or common property.

It is clear that the common property contains utility infrastructure providing a utility service.

The question to be determined is whether section 62 gives the Body Corporate the right to access the roof through the respondent’s lot.

In my view the Body Corporate does not have such a right. Section 62 creates an easement for establishing and maintaining utility infrastructure within a lot. It does not allow a lot be used as a means of access to common property where utility infrastructure is located. The statutory easements created by sections 63-65 of the Act expressly allow entry onto a lot or common property to carry out maintenance or replacement. By way of example I have cited section 63 above. Access is regulated by section 66(2)-(4). Sections 61 and 62 do not provide such a power. I don’t think access is an ancillary right or obligation given that it is not mentioned in sections 61 and 62 and is mentioned in the other sections: section 67(1). Even if a similar access power existed in sections 61 and 62, it would be an incidental right to the easement created. The power could not be exercised to use a lot as a means of access to common property. It should also be noted that the general power to enter a lot as provided by section 125 of the Act does not allow a lot to be used as a means of access to the common property.

In my view, the application must be dismissed on its merits. ...

In the present application, the body corporate seeks the right to access the roof (part of which itself forms part of the respondent’s lot) in order to clean windows which are common property. On the facts, I consider there is no relevant point of distinction with the previous application, and accordingly I adopt the reasoning and conclusions of the previous adjudicator. I do so in the knowledge that this decision has recently been the subject of favourable judicial comment in the appeal of another order of an adjudicator by Judge Robin QC of the District Court (McGrath v. The Body Corporate for “The Surfers Manhattan” CTS 7230 (Appeal D78 of 2002)).

Section 62 creates an easement over a lot in favour of common property for “supplying utility services to the common property and establishing and maintaining utility infrastructure reasonably necessary for supplying utility services to the common property”. By implication, the section requires the utility infrastructure which is necessary to supply the utility service to the common property to be located within or on the lot. It does not allow a lot to be used merely as a means of access to common property where utility infrastructure is located.

A further reason for dismissing the application for an easement is that I am not satisfied that the cleaning of windows could be described as “another system or services designed to improve the amenity, or enhance the enjoyment, of lots or common property”. The applicant body corporate glosses over this point, stating that “window cleaning readily meets the definition of the utility service” on the basis of the above definition. Searle however disputes this aspect, and I conclude that window cleaning services of not in the nature of those services set out in paragraphs (a) to (i) of the definition of “utility service”.

Further, if the utility service is cleaning services, then the utility infrastructure must be the windows. Windows are in fact common property, rather than “plant and equipment by which lots or common property are supplied with utility services”.

I further conclude that the power to enter a lot provided in section 125 of the Act does not assist the applicant. As my fellow Adjudicator noted, “... the general power to enter a lot as provided by section 125 of the Act does not allow a lot to be used as a means of access to the common property”. The basis for entry to a lot under section 125 must be “to inspect the lot or common property” (the subject of an exclusive use by-law) in order to “find out whether work the body corporate is authorised or required to carry out is necessary” or alternatively, to carry out such work.

For the above reasons, I intend to dismiss this application.