Nautilus Three [2005] QBCCMCmr 119 (2 March 2005)

Last Updated: 5 July 2005

REFERENCE: 0633-2004

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	18043
Name of Scheme:	Nautilus Three
Address of Scheme:	42 Murev Way CARRARA QLD 4211

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

Peter Leslie Lloyd, the owner of lot 8

I hereby order that the resolution purportedly passed by the body corporate of Nautilus 3 at the AGM held on 24 August 2004 numbered 6 and headed Gas Barbecues and providing that gas barbecues be banned from the complex because of the risk of gas explosion due to faulty appliances, is invalid and of no effect.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0633-2004

"Nautilus Three" CTS 18043

The applicant, Peter Leslie Lloyd, the owner of lot 8, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) quote –

To permit the use of gas barbeque as voted upon at the AGM on the 24^th August. Gas barbeques have been banned as from the end of October.

The applicant also sought an interim order to continue using the barbeque pending the final outcome. On 12 November 2004, the following interim order was made:

I hereby order that until a final order to this application is made, or this application is withdrawn, the owner of lot 8, Peter Leslie Lloyd is authorised to continue to use his gas barbeque within the confines of his lot notwithstanding the terms of resolution 6 headed Gas Barbeques carried at the AGM of the body corporate held on 24 August 2004.

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)).

The scheme is a subdivision of 22 lots recorded under a building unit plan (now a building format plan) of subdivision. The regulation module applying to the scheme is the Standard Module.

At the AGM of the body corporate held on 24 August 2004, the body corporate resolved under motion 6 headed Gas Barbeques that gas barbeques be banned from the complex because of the risk of gas explosion due to faulty appliances. The vote was 11 in favour, with 3 against.

In his grounds the applicant states –

I have purchased a new barbeque and have been using this BBQ for over 10 months. I feel I am being discriminated against by the manage(?) of the complex in not being permitted to continue using my Barbeque. I and many others in the complex will be disadvantaged by the banning of the BBQ’s.

In additional correspondence, the applicant states –

Since moving to the Gold Coast from Wollongong last year, I renovated my small back garden. I paved the garden purchased a new garden setting and barbeque to enable me to enjoy the lifestyle that Queensland offers. ... The total cost for this was $2393.00.

In the interim order I noted as follows:

At this time, I am considering the terms of the interim order only. What the applicants seeking is that he be permitted to continue to use his gas barbeque pending a final order being made. I consider that no significant detriment can arise from such order being made. Moreover, I have not been provided with a submission which raises any such concerns. In the circumstances, I intend to make the interim order as sought.

This application will now proceed to further submission, investigation, and final determination. However, before proceeding to seek submissions from all owners regarding the application, I require the applicant to provide a further statement to this office to be incorporated as part of his application, explaining –

1. What is the discrimination he is alleging arises from the body corporate determination; and
2. What is the disadvantage he will suffer from the banning of the BBQ.

Currently, the applicant’s explanation of these aspects is scant, even non-existent. If the applicant fails to provide a basis for his allegations, it is possible his application might be dismissed as being without substance.

In connection with this statement, I will point out to the applicant that the onus is upon him to establish or propose a basis on which it might be determined that the body corporate determination in respect of the BBQ is unreasonable and should be invalidated. I await receipt of such statement, before proceeding further.

In accordance with the requirement in the interim order for the applicant to provide a further statement, the applicant responded as follows:

In October of 2003 I moved to the Gold Coast and renovated the town house with the intention of living here for the rest of my life. After spending the balance of my funds to make the house comfortable, I encountered the problem of the AGM banning the use of gas barbeques. At this stage I put the house on the market with the intention of selling and moving to an area that would allow me to continue using my gas barbeque.

With the market hitting a slow down I was unable to get the price I required to allow me to purchase elsewhere. ... I am not in a financial position to borrow to enable me to sell my present residence and buy another house. It is from this that I feel I am disadvantaged in financial terms. ...

Following the making of the interim order, this office invited submissions in respect of the amended application from all owners and the body corporate committee. No submission in respect of the application has been received. This is so despite this office contacting the committee to ascertain whether it intended to make a submission. I note that the committee have failed to respond to both the notice inviting submissions in respect of both the interim application or final application. I intend to proceed with my determination on the basis of the information available to me.

The first consideration is to determine the actual location where the BBQ is intended to be used. The resolution in question does not refer to any location (eg. balconies), but simple to the complex generally. This means that use of BBQ’s is presumably banned from both lots (eg. on a balcony) and common property. In his original grounds, the applicant refers to having renovated his "back garden", the implication being that the applicant uses the BBQ in this area. I have checked the plan, and find that it is a building rather than standard format plan. I am not certain of the status of the applicant’s garden courtyard. That is, it is uncertain whether it is part of the lot or part of common property. Certainly, no allocations of exclusive use of common property have been made by the body corporate.

The significance of determining whether the area in question is common property or part of the applicant’s lot is that the body corporate has the responsibility to administer, manage and control the common property reasonably and for the benefit of lot owners (see section 152(1) of the Act).

152 Body corporate’s duties about common property etc.
(1) The body corporate for a community titles scheme must--
(a) administer, manage and control the common property and body corporate assets reasonably and for the benefit of lot owners; and
(b) comply with the obligations with regard to common property and body corporate assets imposed under the regulation module applying to the scheme.
(2) Nothing in this part, or in a regulation made under this part, stops--
(a) an item of personal property that is a body corporate asset from becoming part of the common property because of its physical incorporation with common property; or
(b) a part of common property from becoming a body corporate asset because of its physical separation from common property.

On the assumption that the area where the BBQ is used is common property attaching to the applicant’s lot, then the question is whether the ban on BBQ’s is reasonable and for the benefit of lot owners.

The reason for the ban is stated in the motion to be the "risk of gas explosion due to faulty appliances". I have not been provided with any evidence that gas BBQ’s provide such a risk. Specifically I am not aware of any such danger. I have not heard reports of gas bottle explosions, notwithstanding that the use of gas bottle BBQ’s is extremely widespread. As the body corporate manager commented to the applicant; the ban of gas BBQ’s is "unusual". I have never heard of another body corporate imposing such a ban. The usual problem or cause of dispute involving BBQ’s is nuisance rather than explosion. Nuisance is often alleged to arise from noise associated with their use or other aspects including cooking smells or wafting smoke or fumes.

In the circumstances, I consider that the body corporate’s ban of gas BBQ’s to be unreasonable. There is simply no evidence to support the body corporate’s conclusion in this regard. Whilst a body corporate might seek to impose (reasonable) conditions on the use of BBQ’s, particularly in relation to common property, I consider that a total ban on BBQ’s is unreasonable and therefore invalid. In the circumstances, I intend to invalidate the resolution in question. The consequence of this is that the ban will be of no effect, and owners and occupiers will be permitted the use of BBQ’s. In particular, the owner of lot 8, Peter Leslie Lloyd, and other owners, are authorised to continue to use their barbeques notwithstanding the terms of resolution 6 headed Gas Barbeques carried at the AGM of the body corporate held on 24 August 2004.