29 Expansion Street [2004] QBCCMCmr 70 (6 February 2004)

Number of Scheme:	29658
Name of Scheme:	29 Expansion Street
Address of Scheme:	29 Expansion Street, NERANG QLD 4211

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

I hereby order that, pursuant to an application by the body corporate for 29 Expansion Street against Rhonda Mann, the occupier of lot 1 (respondent):

1. The respondent is to immediately cease parking without permission on the exclusive use areas of other lots, and take all reasonable steps to ensure her staff also cease parking without permission on those areas; and
2. Within two weeks, the respondent is to make an application to the committee for permission to display her signage. The respondent should make this application in writing and include the reasons why she considers her signage should be approved.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0506-2003

"29 Expansion Street" CTS 29658

29 Expansion Street Community Titles Scheme (Expansion Street) is a 3 lot scheme under the Body Corporate and Community Management Act (Act) and the Act’s Small Schemes Module Regulation (Small Schemes Module). The scheme is designed for commercial purposes.

This application is by the body corporate (applicant) seeking orders against Ms Rhonda Mann of Marilyn’s Gentleman’s Retreat, the occupier of lot 1 (respondent). The body corporate is seeking orders to stop the respondent contravening the by-laws for the scheme.

The body corporate’s main submissions are to the effect that the respondent has contravened, and is continuing to contravene, a number of by-laws. The body corporate submits that contraventions continue despite the issue of contravention notices and a number of requests that she comply with the by-laws.

The respondent opposes the body corporate’s submissions. She has also made a complaint to the effect that other occupiers have contravened by-laws and the body corporate has not taken action against them.

The Act establishes rights and imposes obligations on participants in community titles schemes to promote the provision of flexible and contemporary communally based arrangements. One of the specified objects of the Act is "to balance the rights of individuals with the responsibility for self management as an inherent aspect of community titles schemes".

The Act gives the owners of units in a scheme the power to vote on what by-laws will apply to their scheme. All owners and occupiers are obliged to comply with registered by-laws, unless or until the owners vote to modify or remove a particular by-law.

The body corporate has a duty to enforce the by-laws (Act 94(1)). Rights of individuals are protected to the extent that the body corporate is required to act reasonably in enforcing the by-laws (Act 94(2)).

By-law 25 allocates exclusive use areas for each lot for car parking. This by-law provides that the body corporate will maintain the car parking, although any costs to clean oil stains or the like are at the cost of the lot owner who has the car space.

The body corporate says that the respondent is using the exclusive use areas of other lots for car parking. The respondent admits that her staff are using these areas but only between 8 pm and 6 am when the occupiers of the other lots are closed for business.

The respondent obviously considers that she is not causing any inconvenience to other occupiers by using their car spaces when they are closed for business. However, she is still technically contravening the by-law. Exclusive use by-laws give the occupier of the lot for the time being exclusive enjoyment of the area in question (Act, 170). Before using the exclusive use area of another occupier, the respondent would need to obtain that occupier’s permission. This is the case even if the occupier does not intend to use their exclusive use area at the time in question.

By-law 6 prohibits an occupier from throwing rubbish on the common property. By-law 5 requires an occupier to take all reasonable steps to ensure that invitees comply with any by-laws that the occupier is required to comply with.

The respondent claims that she, and her managers, inspect the car park and gardens and pick up any drink containers they find. The body corporate claims that the respondent is not doing enough and claims that, at the date of making the submission, drink containers and rubbish had been lying outside the front of her building for two days.

The body corporate has suggested that the respondent should provide an external rubbish bin that might persuade her clients to place their rubbish in the bin. The body corporate has also suggested that the respondent reiterate any instructions she claims to have given to her managers to clean up any rubbish. These both appear to be reasonable steps to provide compliance with the by-laws.

I will not make any orders regarding rubbish on common property at this time as the body corporate has not provided a contravention notice specifying these concerns regarding rubbish or asking the respondent to take the above steps. It seems that the respondent can avoid any further dispute on this issue by applying to the body corporate committee for permission to place a rubbish bin for her clients on common property and instructing her staff to clean up any rubbish on the common property daily. Otherwise, the body corporate can issue a contravention notice and seek to enforce the by-law through this office or the Magistrates Court after following the proper procedures (Act, 184).

By-law 7 prohibits an occupier from displaying any sign on their lot without the written consent of the body corporate.

Photographs provided by the body corporate show that the respondent has signage erected for her business and the respondent does not dispute the claim that she has not received written approval for the sign.

The respondent is therefore in contravention of by-law 7. However, other photographs show signage for another business in the scheme is of a similar size and overall visual impact. Provided the respondent follows the appropriate procedures and applies to the committee for written approval for the signage then she may obtain the necessary approval for the signage. In fact, if the body corporate were to refuse to approve the respondent’s signage then she may have grounds to have that refusal declared unreasonable on the basis that it is unreasonably discriminatory against her given other signage in the scheme has a similar size and visual impact (Act, 94(2)).

I will therefore order that the respondent be required to apply to the committee for written permission for her signage. If that written permission is granted then the respondent will no longer be in contravention of by-law 7. If permission is refused and the respondent considers that refusal is unreasonable then she has three months to apply to this office seeking to overturn that decision (Act, 242).

To assist in avoiding any misunderstandings or disputes about whether the committee properly considers the application, it would be beneficial for written reasons accompany both the application and the decision of the committee.

The body corporate claims that the respondent erected a security camera on another unit without the approval of the owner of that unit. However, the respondent claims that verbal permission was given on the basis that there was a blind spot that the existing cameras did not pick up.

It is not possible for me to determine from the submissions and evidence provided whether this situation resulted because of a misunderstanding between the relevant people or if one or both submissions are deliberately misleading. I remind the parties that stating false or misleading information to an adjudicator is an offence under the Act (Act, 297).

In any event, the body corporate’s claim that the respondent has changed the appearance of her lot without permission, in contravention of by-law 7, cannot technically be established as it is the appearance of a different lot that has been changed. If the installation was unauthorised then the body corporate may have a claim for damage to common property. The lot owner may also have a claim for damage to their lot. However, the body corporate has failed to establish its claim that the respondent has contravened the by-law relating to appearance of lots.

The body corporate claims that the respondent has erected garden lights without following body corporate protocol. The respondent claims that the lights installed are simple garden lights that do not require an electrician for installation. The respondent also claims that lighting provided by the body corporate for the scheme is not adequate for safety purposes considering that most of the respondent’s business is conducted after dark. The respondent expresses concerned that someone could be injured and the body corporate sued if lighting is inadequate.

It is not clear that the installation of garden lights contravenes any by-law. The lights are erected on the common property. If no electrician was required to install the lots, the installation could have been performed without any alterations to the inside or the outside of the unit that would have required the written consent of the body corporate.

However, even if no by-laws have been contravened, the lights would still constitute an improvement to common property that requires the consent of the body corporate. If the garden lights are worth $200 or less then the body corporate committee may approve the lights, otherwise a special resolution of the body corporate would be necessary (Small Schemes Module, 75(2)). If the respondent considers that the present lighting does not meet reasonable safety standards then the respondent may wish to approach the body corporate committee to request maintenance or improvements to the existing lighting.

There is insufficient information for me to determine whether the erection of garden lights contravenes any by-law. However, I hope that the above information assists the parties to resolve any dispute over lighting.

The respondent claims that the body corporate is seeking to enforce the by-laws against her but does not enforce the by-laws against other occupiers. The body corporate is required to act reasonably in enforcing the by-laws (Act, 94(2)). It would not be reasonable for the body corporate to enforce by-laws against one occupier and not another.

However, the respondent states that she has kept complaints about other occupiers to herself in an effort to keep the peace. If the respondent wishes the body corporate to act on these complaints then it would be appropriate for her to provide details of the complaints to the secretary.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

29 Expansion Street [2004] QBCCMCmr 70 (6 February 2004)