Brisley Court [2003] QBCCMCmr 119 (15 September 2003)

Last Updated: 17 May 2005

REFERENCE: 0139-2003

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	8294
Name of Scheme:	Brisley Court
Address of Scheme:	3 Cotton Street NERANG QLD 4211

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Novia Marshall, the Owner of Lot 3

I hereby dismiss the application for an order altering a current exclusive use by-law.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0139-2003

"Brisley Court" CTS 8294

1.	Order sought

The Applicant, the Owner of Lot 3, has sought the following adjudicator’s order under the Body Corporate and Community Management Act 1997 ("the Act"), quote-

"I believe that the dispute can only be resolved if the courtyards are restricted to areas immediately behind each unit, or if the owners of the units with the large areas be required to pay all costs related to those exclusive use areas."

Section 276(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 the Act or the community management statement; or

(c) a claimed or anticipated contractual matter about-

(i) the engagement of a person as a body corporate manager or service contractor for a community titles scheme; or

(ii) the authorisation of a person as a letting agent for a community titles scheme.

An order may require a person to act, or prohibit a person from acting, in a way stated in the order (section 276(2)). An adjudicator's order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate (section 284(1)).

2.	Scheme details

According to Department of Natural Resources and Mines ("NRM") records, the "Brisley Court" community titles scheme was originally created under a building units plan of subdivision (now known as a building format plan) registered on 2 October 1985. The scheme consists of 4 lots and common property.

The community management statement for "Brisley Court" indicates that the Body Corporate and Community Management (Standard Module) Regulation 1997 ("the Standard Module") applies to the scheme. NRM records also show that a Notification of Change of By-Laws was recorded for "Brisley Court" on 25 August 1986.

3.	Application details

This dispute resolution application was submitted on 3 March 2003. On 7 March 2003, a staff member of this Office wrote to the Applicant on behalf of the Commissioner for Body Corporate and Community Management ("the Commissioner"), requesting clarification of the application. The Applicant responded to the Commissioner’s request by way of a letter dated 12 March 2003.

On 14 March 2003, the Commissioner invited the Body Corporate Committee, and all owners of a lot included in the scheme to make written submissions about the application. The Owners of Lot 4, and one of the Co-owners of Lots 1 and 2, have made written submissions about the application.

In accordance with the then section 196 of the Act (recently renumbered as section 246), the Applicant requested, and was provided with, copies of the submissions. The Applicant has provided a written reply to the submissions by way of a letter dated 16 April 2003.

On 23 April 2003, the Commissioner made a dispute resolution recommendation that the application should be the subject of departmental adjudication. The Commissioner has referred the application to me for determination.

4.	Matters in dispute

After reading the supporting grounds to the application, and reviewing relevant NRM records, it appears that in making this application the Applicant is effectively seeking an alteration to the exclusive use by-law that currently applies to the "Brisley Court" Body Corporate.

As mentioned previously, a Notification of Change of By-Laws was recorded for "Brisley Court" on 25 August 1986. This document includes the following by-law allocating particular areas of the common property (courtyards) for the exclusive use of the owners of lots included in the scheme. Specifically, the by-law provides the following:

"BY-LAW 21. COURTYARD

21. The proprietor for the time being of each Unit in the building shall be entitled to the exclusive use for himself and his licensees of the Courtyard (if applicable) the identifying number of which shall correspond to the number of the Unit owned by the proprietor which Courtyard shall be identified by reference to the attached plans and delineated in blue."

Attached to the change of by-laws are four annotated copies of the registered plan of Level A of the building. The plans indicate that the Owner of Lot 1 has been granted a right of exclusive use of areas of common property to the north and east of Lot 1. The Owners of Lots 2 and 3 have each been granted rights of exclusive use of the areas of common property to the north of their respective lots. Finally, the Owner of Lot 4 has been granted a right of exclusive use of areas to the north and west to southwest of Lot 4.

According to the plans, the areas of common property allocated to the Owners of each of the lots included in the scheme vary significantly. The Owners of Lots 2 and 3 have been allocated with areas significantly smaller than those enjoyed by the Owners of Lots 1 and 4.

The Applicant considers that the areas to the east of Lot 1, and to the south and south-west of Lot 4, should not be the subject of an exclusive use by-law, and should revert to forming part of the ordinary common property for the scheme. Alternatively, the Applicant considers that the Owners of Lots 1 and 4 should meet costs relating to the areas that they enjoy pursuant to the exclusive use by-law. The Applicant has sought orders to this effect.

5.	Determination

The legislation allows bodies corporate to adopt by-laws which give occupiers of lots in a community titles scheme exclusive use to the rights and enjoyment of areas of common property, or body corporate assets.

It appears that an adjudicator may make orders requiring the removal of an exclusive use by-law (see Schedule 5 clause 20 and 21 of the Act), if the adjudicator considers the by-law is oppressive, unreasonable or otherwise invalid. However, it also seems that rights granted pursuant to an exclusive use by-law are intended to have a significant degree of security, and permanency. In this respect, I refer to section 171(2)(b) of the Act, which in general terms provides that an exclusive use by-law may only stop applying to a lot with the consent of the relevant lot owner. Therefore, in my view, there would need to be compelling reasons for an adjudicator to disrupt an exclusive use by-law.

If I understand the supporting grounds to the application correctly, the Applicant is concerned about the costs of maintaining the areas that are subject to the exclusive use by-law, and improvements made to these areas. I do not consider that the Applicant has presented convincing reasons for me to disrupt this long-standing exclusive use by-law, particularly as it seems that these concerns are adequately dealt with by existing provisions of the legislation.

In terms of the costs of maintenance of the areas of common property that are the subject of the exclusive use by-law, I refer the owners to section 123(2) of the Standard Module, which provides that:

"(2) An exclusive use by-law is taken, in the absence of other specific
provision in the by-law for maintenance and operating costs, to make the
owner of the lot to whom exclusive use or other rights are given
responsible for the maintenance of and operating costs for the part of the
common property to which the exclusive use by-law applies."

I note that by-law 21 outlined above, is silent on the question of maintenance and operating costs. Therefore, it seems to me that maintenance and operating costs associated with areas of the common property that are the subject of the exclusive use by-law will generally be met by the owners of the lots with the benefit of exclusive use of the relevant area. In terms of responsibility for costs of dividing fences, owners should refer to section 311 of the Act, and the Dividing Fences Act 1953.

Owners should also be aware that while they may have a right of exclusive use of an area of common property, they are required to seek body corporate approval before making any improvements or alterations to the area. In this respect, I refer owners to section 114 of the Standard Module, which provides the following:

"Improvements to common property by lot owner--Act, s 121

114. (1) The body corporate may, if asked by the owner of a lot, authorise the
owner to make an improvement to the common property for the benefit of
the owner’s lot.

(2) The improvement must be authorised by special resolution of the
body corporate unless--

(a) the improvement is a minor improvement; and

(b) the improvement does not detract from the appearance of any lot

included in, or common property for, the scheme; and

(c) the body corporate is satisfied that use and enjoyment of the

authorised improvement is not likely to promote a breach of the

owner’s duties as an occupier.

(3) An authorisation may be given under this section on conditions the
body corporate considers appropriate.

(4) The owner of a lot who is given an authority under this section--

(a) must comply with conditions of the authority; and

(b) must maintain the improvement made under the authority in

good condition, unless excused by the body corporate."

The phrase "minor improvement" is defined in the Schedule of the Standard Module to mean "an improvement with an installed value of $200 or less".

For the reasons outlined above, I have dismissed the application. However, as a final note, I would like to point out to the owners that the Commissioner’s Office offers an Information Service for people involved in Queensland community titles schemes. While the Information Service does not offer or provide legal advice, the Information Officers can provide general information about the legislation. If owners have any general enquiries regarding the legislation, they could consider contacting the Information Service on 1800 060 119.