Broadbeach Towers [2004] QBCCMCmr 469 (6 October 2004)

Last Updated: 30 September 2005

REFERENCE: 0217-2004

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	13573
Name of Scheme:	Broadbeach Towers
Address of Scheme:	2 Elizabeth Avenue BROADBEACH QLD 4218

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

Kenneth Arthur McDonald, the owner of lot 13

I hereby order that the application for an order that the resolution of the committee on 17 January 2004 under the heading "Car Space 13" be rescinded, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0217-2004

"Broadbeach Towers" CTS 13573

ORDER SOUGHT

The applicant, Kenneth Arthur McDonald, has sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) as follows:

That the resolution of the committee on 17 January 2004 under the heading "Car space 13" be rescinded.

JURISDICTION

The applicant is an owner of a lot included in a community titles scheme and the respondent is the body corporate for that community titles scheme. Accordingly, the application evidences a dispute between those parties under section 227(1)(b) of the Act.

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)).

SCHEME DETAILS

Broadbeach Towers is a Community Titles Scheme comprising 20 lots registered in a building format plan of subdivision. The scheme is regulated by the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module).

BACKGROUND

The applicant provided the historical background to the dispute, together with copies of relevant correspondence between himself and the body corporate committee and minutes of various committee meetings and the annual general meeting held on 13 March 2004. The applicant explained that his reason for seeking rescission of the committee decision of 17 January 2004 was that he wishes to place two side-by-side storage cupboards in his car space, and he was concerned that if the decision were to stand, then the committee could remove the cupboards at the applicant’s expense should he do so.

By-law 12(1), by which exclusive use of car park areas was allocated, provides:

The following owners of the lots enumerated hereunder shall have the right to exclusive use and enjoyment of the car spaces allotted hereunder and which spaces are shown on the plan annexed hereto and marked "Plan A" and that this resolution may not be altered or rescinded without a unanimous resolution of all owners of Community Titles Scheme No. 13573.

Schedule E reveals that the applicant’s lot was allocated car space 13A on Plan A.

The body corporate committee and all owners were invited to respond to the application. Submissions were received from five owners, of whom four were on the committee at the time that the decision of which the applicant complains was made. All of the owners supported the committee’s decision that car spaces were for the use of vehicles, boats, trailers or cycles only, and that any goods stored in such spaces would be removed by the groundsman at the individual owner’s expense.

The applicant replied to the submissions and stated that he did not intend storing furniture in his car space, as he had done briefly after renovating his lot, but reiterated his desire to place two storage cupboards in his car space.

DETERMINATION

The committee is the administrative arm of the body corporate and as such is charged with the responsibility of carrying out the body corporate’s general functions. Section 94 of the Act 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).

The granting of exclusive use of common property to an owner does not give that owner unlimited rights in relation to the area so allocated. Furthermore, the area still remains part of the common property, albeit that the owner in question has exclusive use of it. For example, if any owner wishes to make an improvement to their exclusive use area, and the exclusive use by-law does not already make provision for such improvement, the owner must still obtain body corporate authorisation (Standard Module s124(3)).

I accept the concerns expressed by the five owners who lodged submissions. Matters of health and safety are clearly issues with which a body corporate committee should concern itself. The storage of items in car spaces can present a range of problems for bodies corporate, not the least of which relate to fire safety. I therefore consider that the committee’s decision made on 17 January 2004 was validly and reasonably made. The committee has not rescinded or altered the exclusive use by-law by its decision. The applicant is still able to use the space for parking his vehicle, which is primarily the purpose of the by-law.

If the applicant’s prime concern is to place two storage cupboards within his car space, as it appears, then he would need to obtain authorisation from the body corporate in any event, as the cupboards would constitute an "improvement" to the common property. If the installed cost of the cupboards were less than $250.00 and otherwise satisfied the conditions in section 114(2)(b) and (c) of the Standard Module, the (minor) improvement could be authorised by the committee. In any other circumstances, the improvement must be authorised by special resolution of the body corporate.

I have dismissed the application.