Advance Business Centre [2004] QBCCMCmr 488 (18 October 2004)

Last Updated: 30 September 2005

REFERENCE: 0110-2004

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	5470
Name of Scheme:	Advance Business Centre
Address of Scheme:	39 Lawrence Drive NERANG QLD 4211

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

the body corporate for Advance Business Centre

I hereby order that the application for an order that the owner of lot 4 stop their tenant from using the common property car park for motorcycle rider training, storage of motorcycles, or the erection of a tent is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0110-2004

"Advance Business Centre" CTS 5470

Application

Advance Business Centre Community Titles Scheme (ABC) is a 20 lot scheme under the Body Corporate and Community Management Act 1997 (Act) and the Act’s Commercial Module Regulation (Commercial Module). The scheme is designed for commercial purposes.

This application is by the body corporate (applicant) seeking orders against the owner of lot 4, Foxzano Pty Ltd, and occupier of lot 4, Top Rider Motorcycle Rider Training (respondents). The body corporate is seeking to prevent Top Rider using the common property for motorcycle rider training and the storage of motorcycles.

Background

ABC is a commercial scheme that consists of two buildings separated by a driveway. Situated behind the buildings is a very large car park area.

The body corporate claims that Top Rider is using this car park area for driver training and that it stores motorcycles in this area, contrary to the by-laws for the scheme.

Submissions

The body corporate’s main submissions were to the effect that:

•	Top Rider is contravening the by-laws by storing motorbikes on the common property and further obstructing common property by conducting driver training in the car park;
•	Top Rider’s activities jeopardise the body corporate’s insurance; and
•	The body corporate made an agreement in 2001 allowing Top Rider to use the common property car park for training on payment of $100 for each occasion of use. However, Top Rider is continually using the common property and only two payments were ever received.

The respondents’ submissions were to the effect that:

• The owner of the lot has no basis on which it could terminate Top Rider’s tenancy;
• Top Rider has been operating for over eight years. When Top Rider first rented in the building, it was made quite clear that its core business was rider training. This core business has not changed;
• The body corporate has rented the car park to other people in the past, being motor aviation groups with over 100 cars being auctioned at any given time;
• There was a problem with speeding motorbikes associated with another shop, Top Gun Honda. However, Top Gun Honda has relocated and there have been no problems since;
• The owner of the Nachuatek shop has abused Top Rider’s staff but this anger appears to be based on the belief that Top Rider is associated with Top Gun Honda, the business that caused all the trouble. It is suggested that all users of the area and owners meet monthly for a barbeque to help understand each other’s business needs and rectify any minor problems before they escalate to this level again; and
• A substantial amount of money, time and effort has been put into establishing Top Rider’s business and relocation would cost approximately $100,000. The present facilities include coffee facilities, classrooms, a workshop, a sales area, office administration and rider training facilities.

Decision

By-laws
The relevant by-laws of Advance Business Centre are:
2. Vehicles

1.	The occupier of a lot must not, without the body corporate’s written approval –
a.	park a vehicle, or allow a vehicle to stand, on the common property; or
b.	permit an invitee to park a vehicle, or allow a vehicle to stand, on the common property.
2.	An approval under subsection (1) must state the period for which it is given.
3.	However, the body corporate may cancel the approval by given 7 days written notice to the occupier.

3. Obstruction

The occupier of a lot must not obstruct the lawful use of the common property by someone else.

Before bringing an application for contravention of by-laws, the body corporate must normally issue a by-law contravention notice (Act, 185). The body corporate issued a by-law contravention notice on 17 February 2004 concerning parking of motorcycles on common property and the conduct of motorcycle rider training. The body corporate alleges that Top Rider continued with these activities, although it did take down a tent that it had erected on the common property.

Issues

The legislation includes a provision to the effect that the body corporate must act reasonably in enforcing the by-laws (Act, 94). The submissions of Top Rider put in doubt the reasonableness of the body corporate taking action at this stage if Top Rider’s proposed use was cleared at the time it entered the scheme and Top Rider has been operating at the scheme for several years without complaint. Further, it seems especially unreasonable for the body corporate to claim that Top Rider is not entitled to park motorcycles in an area behind its shop when other shops are using similar areas for parking cars and trucks and for temporary storage.

An adjudicator is required to make an order that is just and equitable in the circumstances to resolve a dispute (Act, 276). In this instance, it may be appropriate to refuse the order sought by the body corporate if the body corporate is not acting reasonably in its enforcement of the by-laws. Other orders that an adjudicator may make include orders requiring the body corporate to agree to grant a licence over part of the common property, requiring proposed changes to the common property, or requiring removal of unreasonable by-laws (Act, Schedule 5 - 17, 20, 22).

In reviewing whether a decision of the body corporate is reasonable it is necessary to consider the decision objectively, taking into account all relevant circumstances. This does not mean that I will lightly overturn a decision of the body corporate. For example, it would not be enough to show that a different decision could have been reached or even that a different decision may have been more appropriate.

However, if the demand the body corporate has made is unfairly discriminatory or a decision that no body corporate acting reasonably could make then it would be just and equitable to dismiss the application.

Storage on common property

There is an area of the car park directly behind the shops that appears to be designed as a loading zone rather than for customer car parking. This includes a thoroughfare as well as areas behind painted lines that are designated "No Parking". On conducting an inspection of the scheme, it was apparent that the majority of shops in the scheme use these "No Parking" areas for temporary storage or temporary vehicle parking. Some shops also use parts of the thoroughfare abutting the back wall of the building for rubbish bins and other items.

I spoke with a representative of Top Rider and some of the committee members. These persons agreed that the use of the "No Parking" areas does not create any problems. Given that a number of occupiers appear to make some use of these areas I conclude that it is unfairly discriminatory and unreasonable for the body corporate to only seek to enforce the relevant by-law against Top Rider. In fact, these "No Parking" areas appear to be designed for the use of occupiers in terms of parking and deliveries and the signage presumably only reflects that no general customer parking should occur in those areas.

One of the committee members said that parking or placing items outside the "No Parking" areas does cause problems. For example, a trailer belonging to Top Rider is sometimes parked at one end of the scheme, which causes problems when large trucks are making deliveries. A committee member also said that washing of vehicles by Top Rider and other occupiers sometimes obstructs this thoroughfare. The body corporate has not issued any by-law contravention notice or requested orders regarding washing of vehicles on common property or the parking of a trailer on common property. Therefore, it is not appropriate to make any orders in that regard (Act, 185(2)). However, it would be prudent for the occupiers concerned to discuss these matters with the committee and attempt to resolve these matters without further disputation.

Training on common property

I accept statements made on behalf of Top Rider that motorcycle rider training is a fundamental part of their business, that this has been occurring for several years, and that training has decreased rather than increased over the last few years because of increased competition. It is not clear whether the body corporate has ever formally consented to Top Rider using the common property for these purposes. However, it would appear that Top Rider would have a strong claim that the body corporate has provided at least a tacit consent by allowing these activities to continue for several years.

I also accept that the body corporate provided a formal consent to allow Top Rider to rope off the car park and conduct operations related to Queensland Transport Licensing on a couple of occasions. However, a representative of Top Rider indicated that changes to Queensland Transport Licensing have meant that this no longer occurs and has not occurred for some time. I therefore do not consider this consent to be relevant to the present dispute.

One committee member expressed concerns about safety and suggested that any training performed by Top Rider should be only in an area of the car park that has been segregated from the other areas of the car park. The committee should perhaps discuss this with Top Rider and it may be possible for them to reach agreement about any reasonable conditions.

Another committee member expressed concerns about insurance, stating that the body corporate’s public liability insurance policy does not cover Top Rider’s activities. The committee member also expressed concerns about individual liability in his capacity as a committee member. The committee could also discuss these issues with Top Rider. The legislation requires that the body corporate maintain public risk insurance of the common property of at least $10,000,000 (Commercial Module, 116). Top Rider has provided a copy of a certificate of currency showing that it has a public and products liability insurance policy in the amount of $20,000,000 that notes Advance Business Centre as an interested party. However, the committee may wish to make further inquiries with their insurer including whether the body corporate should increase its insurance cover and seek any additional premium from Top Rider. Committee members may also wish to make further enquiries about their officeholders’ insurance.

However, the body corporate has not provided any convincing evidence that Top Rider is obstructing the lawful use of the common property by other persons. It appears that staff and clients of Top Rider may sometimes ride around the common property but no evidence has been provided to persuade me that this occurs in sufficient numbers to obstruct use of the car park by other persons. Therefore, the body corporate has not satisfied me that Top Rider is contravening the by-law regarding obstruction of common property or any legislative provisions prohibiting nuisances (Act, 167).

Other matters

One committee member expressed dissatisfaction with the scheme containing motorcycle shops as he felt this adversely affected the image and nature of the scheme. However, the legislation provides that a by-law must not discriminate between types of occupiers (Act, 180(5)) and specifically prevents the body corporate from registering any by-law that would impose a restriction on the type of person a lot could be sold to or let to (Act, 180(4)).

This committee member also expressed concern at the appearance of the scheme, particularly as a number of owners display stock in front of their lots and have signage in front of their lots. Obviously, it can be very important for a business to have signage for the premises and to display stock in front of the premises. However, owners can discuss this matter and vote to adopt a proposal that is favourable to the majority of those owners. Once a proposal is adopted, the body corporate can enforce that proposal but should be careful not to unfairly discriminate against any particular occupier.

In addition to any obligations properly imposed by the body corporate, occupiers should also be aware of any local council regulations that apply to the conduct of their business.

Conclusion

The body corporate has brought this application claiming that Top Rider is using the common property car park for storage of motorcycles in contravention of by-law 2, which prohibits parking of vehicles on common property without body corporate consent. The body corporate also alleges that Top Rider is conducting motorcycle rider training on the common property in contravention of by-law 3, which prohibits an occupier from obstructing use of the common property.

The body corporate is required to act reasonably in administering the common property for the benefit of owners and act reasonably in enforcing the by-laws for the scheme (Act, 94). On inspecting the scheme, it became apparent that the storage of motorcycles by Top Rider did not amount to any greater use of the common property than the use by a number of other occupiers in the scheme. I have therefore concluded that it is unreasonable for the body corporate to proceed only against Top Rider for a contravention of the by-laws and not against the other occupiers. Further, the body corporate has not satisfied me that any use of the common property by Top Rider for motorcycle rider training unreasonably obstructs the lawful use of the common property by other occupiers. For these reasons, the body corporate’s application must fail.

However, it is apparent owners and occupiers would benefit from discussing a number of issues concerning the general administration of the common property. I would therefore encourage owners and occupiers to endeavour to reach agreement on the issues raised in this application. If no agreement can be reached then it would be appropriate to put any disputed proposal to a general meeting at which all owners can vote on the proposal.

Order

It appears unreasonable for the body corporate to take action against only Top Rider for storing motorcycles on the common property when a significant number of other occupiers are parking vehicles or storing items in a similar manner. Further, I am not satisfied that Top rider is obstructing the lawful use of common property by other occupiers. For these reasons, the application is dismissed.

However, I would encourage all owners and occupiers to attempt to resolve the issues that have become known in the course of this application.