Rosemont Villas [2004] QBCCMCmr 569 (19 November 2004)

Number of Scheme:	22840
Name of Scheme:	Rosemont Villas
Address of Scheme:	62 Queen Street Cleveland, Queensland

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

I hereby order that the application for interim and final orders concerning a resolution of the Body Corporate to purchase and install a video camera security and surveillance system is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0716-2004

"Rosemont Villas" CTS 22840

The Owners of Lot 4, Charles Cripps and Melinda Cripps (the Applicants) have made a dispute resolution application to the Commissioner for Body Corporate and Community Management under the Body Corporate and Community Management Act 1997 (the Act).

The Applicants are seeking a review of the validity of a purported resolution of the Body Corporate (made at an extraordinary general meeting held on 11 November 2004) to purchase and install a video camera security and surveillance system.

The Applicant has also sought an interim order to restrain the Body Corporate from purchasing and arranging the installation of the security camera system, pending a final determination of the application.

Department of Natural Resources, Mines and Energy records show that the "Rosemont Villas" community titles scheme was originally created under a group titles plan of subdivision (now known as a standard format plan) registered on 3 April 1996. The scheme land consists of four lots and common property.

A standard community management statement was recorded for "Rosemont Villas" on 15 July 2000 and shows that the Act’s Body Corporate and Community Management (Standard Module) Regulation 1997 (the Standard Module) applies to the scheme.

This application was submitted to the Commissioner on 12 November 2004. However, it was unclear from the presentation of the application whether or not the Applicants were seeking an interim order as well as final outcomes for the application. To this end, on 18 November 2004 a staff member of this Office contacted the Applicants and their representative David Cripps for the purposes of clarifying this issue. Following this contact, David Cripps sought to amend the application on behalf of the Applicants to specifically seek an interim order, in the terms stated above.

Also on 18 November 2004, the Commissioner allowed the amendment to the application and referred the matter to me under section 247(2) of the Act to decide whether the nature or urgency of the circumstances of the application warranted an interim order being issued. The Commissioner referred the application to me even though affected parties had not been issued with proper notice of the application, or given an opportunity to make written submissions in response to the application (section 247(3) of the Act).

On the same day, a staff member of this Office contacted the Body Corporate Chairperson on my behalf to ascertain whether or not the Body Corporate had purchased and arranged for the installation of the security camera system to date. The Body Corporate Chairperson indicated that a contractor had already purchased the security camera system for the Body Corporate, and was scheduled to install it on Monday 22 November 2004.

As a result, on 19 November 2004 I conducted an urgent teleconference with David Cripps and the Body Corporate Chairperson for the purposes of discussing the application.

The Applicants have provided a copy of the notice of meeting for the extraordinary general meeting of the Body Corporate held on 11 November 2004. The meeting material shows that there were a number of motions (motions 9, 10 and 11) presented for consideration by the Body Corporate at the meeting which related to the purchase of, and payment for, a security camera system. Motion 9 is described in the notice of meeting in the following terms:

The quotation from Electrofied Security numbered 23922 in the amount of $3,120.00 for the supply and installation of a DVR 2 Channel recording storage tower and a colour external camera be accepted.

The Applicants state that the motion was purportedly carried at the meeting with three votes in favour of the motion and 1 vote (the Applicants’ vote) against the motion.

From the supporting grounds to the application, I understand that it is proposed to install a security camera on the outside wall of one of the lots (Lot 3) with associated infrastructure (including monitor and recording devices) being located within the garage of Lot 3. I understand that the Body Corporate intends to enter into an agreement with the owner of that lot for the arrangement. I understand that the field of view of the camera is intended to be from the southern end of Lot 3 out to the driveway and front entry to the scheme as well as covering limited parts of the common property located toward the eastern side of the scheme land, between Lots 2 and 4.

The Applicants object to the purchase and installation of the security camera system. From the material, I understand that the Applicants’ key objections are that:

Section 227 of the Act limits the disputes that may be resolved under the Act’s dispute resolution provisions to those between particular combinations of parties involved in community titles schemes. This application, which describes a dispute between the owners of a lot included in a community titles scheme and the body corporate for that scheme, falls into the category of dispute contemplated by section 227(1)(b) of the Act.

Section 276(1) of the Act authorises adjudicators to make just and equitable orders to resolve disputes in community titles schemes about a range of matters, including claimed or anticipated contraventions of the Act or a scheme’s community management statement.

It appears that the Applicants in this matter consider that there have been contraventions of the legislation with respect to a purported resolution of the Body Corporate to purchase and install a video surveillance camera and associated equipment. Therefore, the matter is one that may be resolved by an adjudicator.

Section 279(1) of the Act allows an adjudicator to issue an interim order "if satisfied, on reasonable grounds, that an interim order is necessary because of the nature or urgency of the circumstances to which the application relates".

Two examples of possible interim orders accompany section 279(1) and are suggestive of the usual circumstances where an interim order might be made. While the range of matters that may be the subject of an interim order is not capable of definition, it is worth noting that both examples of interim orders included in the Act are in the nature of injunctive relief.

The nature of the examples of interim orders mentioned in the Act, and the fact that the operation of interim orders is generally limited to one year (section 279(2)(a)), suggests that the purpose of interim orders is not to simply expedite a final outcome of a dispute. Rather, it seems to me that generally speaking, interim orders are to be used to preserve a situation, in other words to maintain the "status quo", pending a final determination of the issues in dispute.

It appears that by the time this request for an interim order was presented to me, the Body Corporate had already engaged a contractor to install the security camera on Monday, and that the contractor had already purchased the security system on behalf of the Body Corporate. Therefore, notwithstanding that interim orders are generally aimed at maintaining the status quo of a situation while a matter is being investigated and finally determined, I am very mindful that at this point, an interim order requiring the Body Corporate to refrain from proceeding with the installation of the security camera system would appear to cause not insignificant financial hardship for the contractor, as well as potentially exposing the Body Corporate to legal action from the contractor.

In addition, and perhaps more importantly, after considering the material before me and information provided by the parties in the teleconference, I have come to the view that the grounds presented by the Applicant lack significant merit and that the application for both interim and final orders should be dismissed at this time. I will make some brief comments about the key grounds presented by the Applicant.

The Applicants have argued that a security camera system is unnecessary for the continuing operation of the community titles scheme. In supporting this argument, the Applicants state that there has not been a history of problems or incidents occurring on the common property (such as unauthorised entry, assault or graffiti) that warrants the installation of a security camera. Further, the Applicants point out that the scheme is surrounded by a substantial fence and is accessed through a security gate.

In our teleconference, the Body Corporate Chairperson stated that there had been a number of complaints by owners of persons loitering outside of lots included in the scheme and looking into the windows of lots. The Chairperson indicated that the majority of owners were concerned about security.

Bodies corporate have an obligation to administer the common property and body corporate assets for the benefit of owners of lots included in the scheme (section 94(1)(a)of the Act). Of course, the Body Corporate must act reasonably in carrying out this function (section 94(2) of the Act). In addition, I note that bodies corporate may acquire property (section 95(1)(b) of the Act).

I do not consider that it is necessary for me to attempt to test the veracity of owners’ complaints and allegations about persons inappropriately loitering on the common property or looking into lots. I do not see that there is anything inherently unreasonable about a body corporate deciding to install a surveillance camera for the purposes of enhancing security of the common property for the scheme, regardless of whether or not there has been a history of incidents or problems in the scheme. It seems to me that a decision to take preventative steps to facilitate safer, more secure areas of common property is consistent with a body corporate’s role in administering the common property for the benefit of owners.

Of course, I hasten to add that a security camera system should not be unduly invasive or detrimental to the ability of lot owners and occupiers to reasonably and lawfully use their lots. However in this case, the Applicants do not appear to object to the surveillance of common property as such, provided that the cost is met by owners who wish to have such a system in place.

Overall I do not agree with the Applicants’ argument that the Body Corporate’s decision to install a security camera system is unreasonable on the basis of a lack of incidents in the scheme to date.

The Applicants are also concerned that the security camera system will be located on and within an individual lot (Lot 3). The Applicants are concerned about legal issues surrounding easements over Lot 3, and in addition, express concern that the Body Corporate has not properly authorised the acceptance of an easement over Lot 3 for the purposes of installing the security camera system. The Applicants particularly point out that section 112 of the Standard Module requires that bodies corporate must authorise the acceptance of easements relating to the common property by resolution without dissent and that no such resolution was made in respect to an easement against Lot 3 for the purposes of the security camera system.

In our teleconference, I spoke to the parties about statutory easements relating to community titles schemes under the Land Title Act 1994 (the LTA). Specifically, I expressed a view that pursuant to section 115P of the LTA, a statutory easement (which did not require body corporate authorisation) existed in favour of the common property and against Lot 3 for the purposes of establishing and maintaining utility infrastructure necessary for supplying utility services to the common property.

Upon further investigation and consideration, I have realised this provision does not apply in this case. Unfortunately, during the teleconference I had overlooked that section 115M of the LTA limits the community titles schemes to which the statutory easements apply. The community titles schemes that are subject to statutory easements do not include schemes such as "Rosemont Villas" which were created under a group titles plan of subdivision registered prior to 13 July 1997. I regret any inconvenience caused to parties who formed a view on this issue following the teleconference.

I am still not convinced of the Applicants’ argument that the legislation requires that the arrangement concerning the security camera system be authorised by resolution without dissent, however for different reasons. Upon further reflection, I have come to the view that the Body Corporate’s arrangement with the Owner of Lot 3 for the installation and location of the security camera system does not necessarily involve easements at all.

It seems to me that generally, easements establish substantially permanent rights over land and are intended to protect and to some degree entrench the interests of the party with the benefit of the easement. The arrangement that is the subject of this application simply represents an agreement between a body corporate and an owner whereby the owner is giving the body corporate permission to install a body corporate asset on part of that owner’s lot. Furthermore, the agreement is subject to revocation by the Owner of Lot 3 at any time.

I am unaware of anything that prevents a lot owner giving a body corporate permission to install or store a body corporate asset on the owner’s lot in the absence of a formal easement or license. Similarly, I do not see that a body corporate must necessarily grant an easement to give effect to a decision to grant a lot owner permission to make an improvement to the common property for the benefit of the owner’s lot, such as the installation of blinds or awnings that encroach on the common property.

For these reasons, I do not consider that section 112 of the Act applies in this instance.

The Applicants also express concern that they will receive little benefit from the security camera system and should not have to contribute to its cost. I disagree with this argument. In my opinion, a system designed to enhance the security and safety of the common property for a community titles scheme conveys benefits on all lot owners even if particular lots are not directly in camera shot of the security camera. From information provided to me, I understand that the camera will have the front entry to the scheme and the main parts of the common property driveway in view. As a result, it appears that the camera will offer significant protection and security for the scheme as a whole. I would not disrupt the Body Corporate’s resolution on this basis.

The Applicants have raised concern that they will not have direct access to the security camera system because it is located within Lot 3. I do not consider that it is always necessary for owners to have access to body corporate assets or all areas of common property to receive a benefit from those assets or areas. For example, it would be unusual for all lot owners in a community titles scheme to have unrestricted access to plant and equipment relating to air-conditioning or elevators. In some circumstances, it is in the interests of the ongoing administration of the scheme for access to such areas to be restricted.

There is a further complication in this case in that the body corporate asset in question is to be located within a lot. The Body Corporate has agreed with the Owner of Lot 3 that two designated committee members will be the persons who will access the lot for the purposes of viewing camera footage, following reasonable notice. This seems to be an entirely reasonable arrangement. I do not consider that it is necessary for all owners to have access to the equipment to derive a benefit from it. Of course, the Committee must ensure that all owners receive a benefit from the security system by receiving and appropriately responding to concerns raised by owners about intruders or other incidents occurring on common property that may have been caught on the security system.

During the teleconference, David Cripps indicated that he wished to be present at Lot 3 for the installation of the security system for the purposes of seeing how the system worked. This seems to me to be a reasonable request, particularly given that he is a member of the Body Corporate Committee. However, as I explained to the parties during the teleconference, at this time I am not prepared to make an order requiring the Owner of Lot 3 to allow David Cripps to enter Lot 3 on Monday. My reason for this is simply that the Owner of Lot 3 has not had an opportunity to be heard on that matter to date. However, I would encourage all parties to take a conciliatory and reasonable approach to the issue of David Cripps attending the installation of the security camera system.

For the reasons outlined above I have dismissed the application for both interim and final orders.

•	The camera and associated infrastructure is to be located on and within a lot;
•	The camera is unnecessary because the Applicants are unaware of any incidents of burglary, graffiti, unauthorised entry or assault within the complex. In addition, there is a fence (with security gate) around the scheme land;
•	The Body Corporate has not agreed to accept the easement over Lot 3 for the purposes of the security camera by way of resolution without dissent;
•	The camera provides no surveillance of the Applicants lot or any other benefit to the Applicant, therefore the Applicant should not be required to contribute to the cost of the security camera.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Rosemont Villas [2004] QBCCMCmr 569 (19 November 2004)