Halcyon Waters [2004] QBCCMCmr 475 (11 October 2004)

Last Updated: 30 September 2005

REFERENCE: 0230-2004

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	5631
Name of Scheme:	Halcyon Waters
Address of Scheme:	14 Wilpark Crescent CURRUMBIN WATERS QLD 4223

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

Jennifer Ann Randle, the Owner of Lot 20

I hereby order that the application for an order that the Body Corporate provide an area of common property in front of Lot 20 alongside the solid wall of Lot 21 and not encroaching upon the driveway, for the Owner of Lot 20’s exclusive use is dismissed. I further order that the Owner of Lot 20 shall, within seven days of the date of this order, remove from the common property her Winnebago Motor Home (registration 336 IAW) and thereafter keep it removed unless and until she obtains the written consent of the body corporate committee to park it on common property.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0230-2004

"Halcyon Waters" CTS 5631

The Scheme

"Halcyon Waters" is registered as a building units plan (now known as a building format plan) of subdivision comprising 23 lots and is operating under the Body Corporate and Community Management (Standard Module) Regulation 1997 (the Standard Module).

The Application

This application is brought by the Owner of Lot 20, Jennifer Ann Randle (the Applicant), seeking the right to exclusively use an area of common property in front of her lot and adjacent to the garage of Lot 21, for the purpose of parking a motor home, which she purchased in May 2003.

The Applicant states that approved council plans show that there was provision for a carport in front of her garage, but it was never built.

Submissions

Submissions in response to the application were sought from all owners and the committee. The committee’s submission opposed the application. A total of ten owners responded to the application, four in favour and six against rights of exclusive use being granted to the Applicant.

Determination

Common property for a community titles scheme is owned by the owners of lots included in the scheme, as tenants in common (s.35(1) Act). The body corporate must administer, manage and control the common property reasonably and for the benefit of lot owners (s.152 Act). The legislation provides for the granting of rights of exclusive use over common property only by way of registration of "exclusive use by-laws". An exclusive use by-law is defined in s.170(1) of the Act as follows:

170 Meaning of "exclusive use by-law"
(1) An "exclusive use by-law", for a community titles scheme, is a
by-law that attaches to a lot included in the scheme, and gives the occupier
of the lot for the time being exclusive use to the rights and enjoyment of, or
other special rights about--

(a) common property; or
(b) a body corporate asset.

An exclusive use by-law may attach to a lot only if the lot owner agrees in writing (s.171(2)(a) Act) and a resolution without dissent is passed consenting to the recording of a new community management statement (s.62(2) Act).

A motion considered at a general meeting of the body corporate is passed by resolution without dissent only if no vote is counted against the motion (s.105(3) Act). At its Annual General Meeting held on 25 February 2004, the body corporate for Halcyon Waters considered the following motion (quoted as recorded in the minutes of the meeting):

"MOTION 11: RESOLUTION WITHOUT DISSENT

Prior to voting on this motion, the Chairman allowed general discussion regarding the matter.

J. Randle addressed the meeting regarding the motion and the letter she forwarded to all owners which provided an explanation of the situation. J. Randle advised she held building plans, which in her opinion show the area adjacent to her unit was to have a car port erected and has always in good faith accepted the area as hers.

General discussion was held regarding exclusive use areas, and it was noted the only area of exclusive use registered with the Department of Natural Resources is that allocated to lot 17.

The Chairman called for a vote to be taken on the motion.

DEFEATED that the Owners Halcyon Waters CTS 5631 grant exclusive use to the lot owner of lot 20 to the area as shown on the attached plan for a proposed car park space."

The voting in respect of Motion 11, as recorded in the minutes, was 11 votes in favour, 8 votes against and 1 abstention. I consider 8 votes out of a total of 23 lots to be a signficant degree of dissent amongst owners. It equates to almost 35% of owners voting against the motion. This means that not even a special resolution (which is the type of resolution required to pass an ordinary by-law) would have been successfully passed. S.276(1) of the Act provides that an adjudicator may make an order that is just and equitable in the circumstances to resolve a dispute, including, if satisfied a motion considered by a general meeting of the body corporate and requiring a resolution without dissent was not passed because of opposition that in the circumstances is unreasonable – an order giving effect to the motion as proposed, or a variation of the motion as proposed. It is the practice of adjudicators to apply the power under s.276(1) in respect of giving effect to a failed motion required to be passed by resolution without dissent carefully. In particular, it will only be applied to overturn a vote where there are compelling reasons. There are no such compelling reasons here; to the contrary, the dissenting voters who responded via submission to the application cited various grounds for exercising a "no" vote in respect of motion 11. These grounds include the following:

• That the sight of the motor home in such close proximity to the units detracts from the overall aesthetic appearance of the scheme, which is maintained to high standards.
• The total traffic area of the scheme is laid with pavers. The driving and parking of a heavy vehicle such as a motor home on the pavers may result in additional maintenance expenses for the body corporate.
• The granting of rights of exclusive use to the owner of Lot 20 may set a precedent in relation to other owners expecting to acquire areas of common property for their exclusive use.

These appear to me to be reasonable grounds for refusing to vote for a motion to grant rights of exclusive use over common property to a particular lot owner for the purpose of parking a motor home.

The Applicant has put forward various arguments in support of her application. She places particular emphasis on the fact that she has approved council plans showing provision for the erection of a car port in front of her current garage space. While approved council plans may be useful in determining what a builder has council approval to construct, they do nothing to establish title to land or lots, or rights to exclusively use common property. The plans registered with the Department of Natural Resources, Mines and Energy, which are generally searched as part of standard conveyancing practice prior to purchase by a potential purchaser or their agent, reveal that at all times since the establishment of the scheme, Lot 20 had only one garage space. There was no car port. I consider the weight the Applicant places on the approved council plans to be further diminished by the fact that the plans show the provision for the car port in a different location to the area where the motor home is currently parked and that had a car port been constructed where council approval was given, the motor home is unlikely to have been able to be accommodated within it due to its size.
I also note that, has the car port been built as approved by council and the motor home was able to be accommodated within it, vehicular access to and egress from the Applicant’s garage would possibly be adversely impacted.

The Applicant also places reliance on her contribution schedule lot entitlement as supporting her claim for exclusive use of an area of common property for parking, stating that despite her lot being smaller in area, she pays equal to larger units with double garaging. At the time Halcyon Waters was registered in 1989, developers set the lot entitlements for all lots in community titles schemes with little or no legislative guidance and furthermore, were not required to explain them. It is therefore difficult to speculate whether the council approval for a car port played a part in the setting of the contribution schedule lot entitlement for Lot 20 by the developer.

It is also relevant to note that s.171(1)(a) of the Act requires that the common property to which an exclusive use by-law applies must be specifically identified in the by-law. Although Motion 11 makes reference to "the area as shown on the attached plan for a proposed car park space" no copy of a plan was attached with the application. In any event, the submissions reveal that there appears to be a degree of confusion amongst owners as to exactly what area of common property the Applicant is seeking exclusive use of. It is therefore possible that the area to which the exclusive use by-law was to apply was not sufficiently specifically identified in accordance with s.171(1)(a).

For these reasons, I have dismissed this application. Because it is apparent that the Applicant is continuing to park her motor home in the area she was seeking for her exclusive use, I have also ordered that she remove it within seven days of the date of this order and keep it removed from common property until such time (if any) as she obtains the written consent of the body corporate committee to park it on the common property in accordance with by-law 2, as registered in the current community management statement for Halcyon Waters.