Hermitage Gardens -The Grange [2004] QBCCMCmr 28 (15 January 2004)

Number of Scheme:	26995
Name of Scheme:	Hermitage Gardens -The Grange
Address of Scheme:	120 Uxbridge Street GRANGE QLD 4051

TAKE NOTICE that pursuant to an application made under the abovementioned Act by the Body Corporate for Hermitage Gardens,The Grange

I hereby order that the objection of the owners of lot 91, Evellyn Elizabeth Robinson and Kylie Renee Kortus, to the current location of the bin storage area on common property opposite lot 91, is not substantiated, and in the circumstances, is unreasonable.

I further order that the body corporate is authorised to continue to locate and store the 8 general waste bins and 4 recycle bins in the present location opposite lot 91, and is not required to relocate these bins based on the objection of the owners of lot 91, Evellyn Elizabeth Robinson and Kylie Renee Kortus.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0483-2003

"Hermitage Gardens -The Grange" CTS 26995

The applicant, the body corporate for Hermitage Gardens, The Grange has made an application for an order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) quote –

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

(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)).

The scheme

The scheme is a subdivision of 120 lots registered under a building format plan of subdivision.

Application, submissions, reply and inspection

The application is by the body corporate seeking certain orders to resolve a dispute with the owners of lot 91, Evellyn Elizabeth Robinson and Kylie Renee Kortus (the respondents) regarding the location of a bin storage area and arrears of body corporate contributions.

Both the application by the body corporate and the respondent’s submission in reply are lengthy, and I do not proposed to restate their contents in any detail. Suffice to say, I conclude there is little dispute as to the facts of the matter. The dispute centres on the location of the bin storage area and a resolution of this dispute will be effected by this order. In consequence of this dispute, the respondents have for a period refused to pay body corporate contributions. As a consequence of this I assume that the respondents have lost voting rights in respect of most matters as the legislation provides. Part of what the body corporate seeks is an order directing the respondents to pay their contributions. The body corporate has commenced legal proceedings for recovery of the arrears. Similarly, in their submission, the respondents seek to incorporate the dispute regarding contributions in the overall resolution, concluding that "I only consent to the jurisdiction of the adjudicator if the whole dispute is resolved ...".

As I indicated at the inspection of the scheme, parties to a dispute do not get to choose the basis on which a dispute will be resolved, or whether or not to consent to jurisdiction. As an adjudicator, I have jurisdiction to make orders for the resolution of the dispute which I consider to be just and equitable. Disputes concerning arrears of contributions are not within the jurisdiction of an adjudicator. They are simple a debt action in a court of competent jurisdiction. However, I agree generally with the principle that an owner of a lot who is in dispute with their body corporate is not able to refuse to pay contributions until such dispute is resolved. The scheme of the legislation is that contributions are payable shortly after relevant notices are levied, and mechanisms to resolve disputes contained in the legislation do not authorise owners to withhold contributions pending the resolution of a dispute. If an owner withholds or refuses to pay contributions when owing, a body corporate must reasonably consider debt recovery measures in the interest of all owners. These measures may ultimately include the commencement of court proceedings for recovery of the arrears, and such proceedings may include the award of legal and other costs. I conclude by saying that the matter of the arrears of contributions is a matter for the parties to determine, by whatever means. However, it does not affect my jurisdiction to determine the bin location issue.

In addition to the respondents, this office also sought submissions from the owners of lots 102 to 109. this office received two submissions in addition to that of the respondents. Both are critical of or oppose the position of the respondents. In there submission, the respondents state that "the response of Judith Johnson of townhouse 90 backs me up in every respect". No submission has been provided by a Ms Johnson concerning this application.

In consequence of the application and submission process, I determined as part of my investigation to inspect the scheme, in the presence of interested parties. I did so on Wednesday 14 January 2003 and met with representatives of the body corporate manager, the resident managers, several owners (perhaps 10), and the solicitor for the respondents. The respondents did not personally attend the inspection.

The applicant body corporate seeks confirmation of the current location of the bin storage area. The respondents object to the current location of the bin storage area, and seek that the bins be stored in some other location or locations. Currently, and since virtually the inception of the scheme, excepting a trial period when the bins were stored elsewhere, the bins (at least 8 plus a further 4 recycle bins) have been stored or located on a strip of common property immediately alongside lots 102 and 103. This location is opposite the respondents’ lot 91. The location of the bins is separated from lot 91 by a common property roadway of approximately 15 metres (from the plan lodged with the Registrar of Titles) width. I note that the front of lot 91 (its north east aspect) does face the bin storage area, however I also note that lot 91 also has a south east aspect facing another common property roadway, and beyond this, other lots.

The respondents central contention is that the "placement of the twelve bins outside my front door with the subsequent smell and noise, is offensive to me, unhealthy, a nuisance, and a continuing source of irritation". The respondents refer to section 87 of the Act and allege that the body corporate is "not acting reasonably with respect to the question of the placement of the rubbish bins and ... have not acted reasonably in their dealings with me concerning the dispute".

Section 87 (now section 94) provides –

94 Body corporate’s general functions
(1) The body corporate for a community titles scheme must--
(a) administer the common property and body corporate assets for the benefit of the owners of the lots included in the scheme; and
(b) enforce the community management statement (including any by-laws for the scheme); and
(c) carry out the other functions given to the body corporate under this Act and the community management statement.
(2) The body corporate must act reasonably in anything it does under subsection (1).

I conclude that the body corporate has acted reasonably as to the location of the bin storage area. The respondents appear to base their allegation of the body corporate’s failure to comply with section 94 on the fact that the decision made (ie the location of the bin storage area) does not satisfy them or that they do not agree with it. However, this is not the test of reasonableness. If reasonableness meant that all decisions made were satisfactory to all owners in the body corporate, then I doubt that any "reasonable" decision would ever be made. By necessity, bodies corporate must from time to time make decisions which certain owners might not agree with; however these decisions might still be considered reasonably made and for the benefit of owners.

I consider that the respondents claims of the bins being unhealthy and a nuisance are somewhat overstated. I conclude that there is no evidence provided that the bins constitute a health hazard, although information is provided to rebut this. I consider the respondents’ allegations are unsubstantiated in most respects.

I am supported in my conclusion by the lack of any support for the respondents’ position from other owners. No submission in support of the respondents’ position was received. Rather, two submissions adverse to the respondents’ position were. I conclude that this consideration is one measure of the reasonableness or otherwise of the position of the respondents.

The respondents are not alone in having a view of the bin storage areas from their lot. There are in fact two common area bin storage areas in the scheme; one at either end of the row of lots comprising units 102 to 109. I conclude that at one end, lots 90, 91, 96 and 97 would all have a view of the bin storage area from the front aspect of their lot. At the other end, lots 110 to 115 all have a similar outlook. I conclude that the respective bin collection areas can be viewed in a similar way from 10 lots, and not simply the respondents. Moreover, units 102, 103, 108 and 109 are all much more proximate to the respective bin storage areas than the respondents’ lot 91. These lots have the bin storage areas located directly adjacent to their lots. They are merely separated by a timber paling fence. Whilst the respondents complain of noise, offence and irritation, I conclude that there are several other owners or occupiers who might have an equal or greater basis to make such allegations, but do not.

I refer to specific allegations of the respondents arising from the location of the bin storage area. The first is disturbed sleep. I note that the owners / occupiers of units 102, 103, 108 and 109 are much more proximate to the bins, and would have arguably greater basis for complaint regarding this aspect. The second is preventing proper access to unit 91. The location of the bins do not prevent proper access to the respondents lot, except perhaps for a very poor driver. The next allegation is that the bins are an eyesore. The bins I observed were the standard council bins. They presented a uniform, and inoffensive, appearance in my view, even to the point of perhaps being unobtrusive. The allegation that the bins are unhealthy and attract rats and vermin is unsubstantiated. The respondents do not relate this allegation to the actual location. If the bins were otherwise located, would they not similarly be unhealthy and attract rats and vermin. I cannot comment on the respondents alleged emotional and psychological suffering. Finally, I cannot comment on the allegation of diminution in value of the respondents lot except to note that no evidence of this is provided. If this proposition were accepted, the owners of lots 90, 91, 96, 97 and lots 110 to 115 might similarly claim such diminution in value. I found that the entire presentation of the complex to be both pleasant, attractive, and well maintained with the overall surrounds being such that, in my view, prospective purchasers would be left with this as their overriding impression of the scheme, and would view favourably any lot being offered for sale.

I did consider the only alternative location for the bins as submitted by the respondents; namely on a concrete pad between the carport and the units numbered 102 to 109 inclusive. This was the location trialled by the body corporate. It was clear from certain owners at the inspection that this was not an acceptable location. In particular, the proximity to windows of units was indicated, as well as the already confined space between the respective carports and units. I conclude that the location of bins within two metres of unit windows is a matter which might reasonably be grounds for objection. The further allegation that the concrete pads "bin sites", alleged by the respondents are being "outside the units from the time that I purchased" was contradicted at the inspection where it was indicated that the concrete pads were purchased specifically for the trial of the bins in the location of the respective carports. The resident managers offered to provide written evidence of this, which I did not pursue.

In the circumstances, I intend to order in terms as sought by the applicant body corporate, and to dismiss the objections to the location of the bin storage area of the respondents. I doing so, I wish to make one observation which was not raised at the inspection; namely to raise the possibility tha`t the two bin storage areas might be enclosed by fencing such that the bins could not be seen. In raising this suggestion, I do not know if it is possible. I note that the two bin storage areas are long and narrow, and to enclose such areas, and still allow access to the bins, and the passage of the bins in and out of the enclosure for collection purposes, might simply not be possible. However, perhaps it is something that the body corporate could investigate. If this was possible, then it might address the only aspect on which I consider the respondents objection to the bin storage area have some merit; namely the visual amenity.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Hermitage Gardens -The Grange [2004] QBCCMCmr 28 (15 January 2004)