Fourteen Indy Court [2005] QBCCMCmr 209 (18 April 2005)

Last Updated: 5 July 2005

REFERENCE: 0016-2005

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	32873
Name of Scheme:	Fourteen Indy Court
Address of Scheme:	14 Indy Court, NERANG Q 4211

TAKE NOTICE that pursuant to an application made under the abovementioned Act by David Newton, the Owner of Lot 2

I hereby order that within one (1) month of the date of this order, Anthony Beasley and Kathleen Beasley, the owner of Lot 3 must remove from common property: 1. The fence constructed by the owner of Lot 3 between Lots 1 and 3 and reinstate or repair any parts of the common property damaged by the removal of the fence to its former state and condition of repair. 2. The equipment, materials or other goods belonging to the owner of Lot 3 and/or associated with the business being conducted from Lot 3 and reinstate or repair any parts of the common property damaged by the removal of the equipment, materials or other goods to its former state and condition of repair.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0016-2005

"Fourteen Indy Court" CTS 32873

APPLICATION

This application is by David Newton, the owner of Lot 2 (applicant) against Anthony Beasley of Lot 3 (respondent). The applicant is seeking an outcome that the respondent removes a fence.

The applicant’s main submissions were to the effect that:

• He noticed a fence being constructed on common property on 30 October 2004 and asked the body corporate manager 2 days later to ask the lot owner to stop construction. He was informed by the manager that a letter had been sent to the owner of Lot 3 to inform him that the fence was illegal.
• The owner of Lot 3 sought body corporate permission to construct the fence at the general meeting held on 17 December 2004. The motion was passed by 2 votes to 1.
• The fence is locked and building materials are stored on the fenced off part of common property.
• The fence is an obstruction to the operation of the applicant’s lot and also to any maintenance and emergency services. Before the fence was erected, there was wide open parking and turning spaces. Now the common property looks untidy with the stored materials being clearly visible. Visitors to Lot 3 now park in front of Lot 2.

JURISDICTION

"Fourteen Indy Court" Community Titles Scheme 32873 is a 3 lot scheme under the Body Corporate and Community Management Act 1997 (Act) and the Body Corporate and Community Management (Commercial Module) Regulation 1997 (Commercial Module).

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)).

SUBMISSIONS

In accordance with the Act, submissions were called and a copy of the application was provided to the body corporate manager for distribution to the owner of each lot and the committee. The respondent was also invited to make a written submission on the matters raised in the application. A submission was received from the respondent.

The respondent’s main submissions were to the effect that:

• The fence is not permanent and can be quickly removed. It was installed for the security of the respondent’s property.
• It is constructed with materials which are in keeping with the estate.
• The gate is only closed outside trading hours.
• He has offered keys to the gate to the occupiers of the other lots in the scheme.
• The fence would not impede access by the fire department.

DETERMINATION

The fence has been constructed on the common property for the scheme between Building A and Building B as shown on the plan of subdivision, SP 171744. The photographs supplied by the applicant show the mesh fence, and equipment and building materials placed on the area which has been fenced off. It is not disputed that the equipment and materials belong to the owner of Lot 3 and/or relate to the business being conducted from the Lot.

The area of common property which has been fenced in includes:

• An exclusive use area allocated by By-law 12 of the body corporate by-laws to the owner of Lot 3. This area adjoins Lot 1 and covers 6 car spaces indicated on a Site and Contour Plan provided by the applicant. By-Law 12 states in part that the owner must "use it (the exclusive use area) for the purpose of Car Parking only".
• An area of the common property which has not been allocated for the exclusive use of an owner of a lot in the scheme.

Section 35 of the Act provides that owners own the common property as tenants in common which gives each owner a general proprietary right to use the common property. Sections 94 and 152 of the Act provide that the body corporate administers, manages and controls the common property. Section 167 of the Act provides the basic rule governing an owner’s use of common property and provides, quote:

Nuisances

The occupier of a lot included in a community titles scheme must not use, or permit the use of, the lot or the common property in a way that--

(a) causes a nuisance or hazard; or

(b) interferes unreasonably with the use or enjoyment of another lot included in the scheme; or

(c) interferes unreasonably with the use or enjoyment of the common property by a person who is lawfully on the common property.

As the body corporate administers, manages and controls the common property, a lot owner does not have a right to use common property for the owner’s own benefit without body corporate authorisation in accordance with the Act, or in accordance with a by-law for the scheme. For example, By-Law 12 authorises the owner of each lot in the scheme to use part of common property exclusively for car parking.

In this case, the respondent has constructed a fence on the common property which would constitute an improvement to the common property. Section 94 of the Commercial Module provides that a lot owner may make an improvement to the common property for the benefit of the owner’s lot if authorised by the body corporate. The respondent has constructed the fence to store materials associated with the business conducted from the lot and to provide security for the Lot. Even though the respondent has submitted that keys to the gate have been offered to the occupiers of the other lots, it is clear that the fenced off part of common property is being used for the benefit of Lot 3 only. The respondent sought and obtained body corporate authorisation under section 94 at the Annual General Meeting dated 17 December 2004 where it was resolved by ordinary resolution "That the Body Corporate approve the application to construct a fence across common property as per attached diagram".

While the body corporate can authorise an owner to make an improvement on common property for the benefit of the owner’s lot, there are limitations to the use of common property under only that authority. Where for example an owner wishes to install an air-conditioner by positioning it in a window where it overhangs common property, this is a valid use of the "improvement" provision as the encroachment onto common property is incidental, not of significant size, and is unlikely to interfere with another’s use of the common property. In contrast, body corporate authorisation under section 94 may not be sufficient authority where the effect of the improvement to common property is that part of the common property is alienated, is not insignificant and may or may not interfere with another’s use of the common property. In these circumstances, an "exclusive use" test may apply to require the owner to only hold that use under an exclusive use by-law.

In my view, the exclusive use test applies to this dispute as:

1.	The fence encloses a large area of common property adjoining Lot 3 and this area is used to store equipment and materials associated with the business being conducted from the lot. While the fence may not be a permanent structure and the equipment etc stored on the common property may not be intended to be stored there permanently, the effect of these factors could be construed that the use of this part of the common property comes within the sort of use that an owner makes of his or her lot in a commercial complex.
2.	It is conceivable that the fence interferes unreasonably with another’s use of the common property as it restricts a person’s right to use the car spaces allocated for the exclusive use of Lot 3 (section 167, Act). The respondent has stated that the gate is open during business hours. However, it is clear that the materials being stored on the car spaces would discourage parking on this area. In addition, a consequence of a reduced number of parking spaces between Lots 1 and 3 could be that there is vehicle congestion on other parts of scheme land which could cause a nuisance or unreasonably interfere with the use or enjoyment of another lot or the common property.
3.	The respondent is also placing equipment etc on a part of the common property which has not been allocated for the exclusive use of any owner. The respondent does not have the authority to use this part of the common property to the exclusion of other lot owners, and the use of this area could interfere with another person’s use of the common property (section 167, Act).
4.	Even though the respondent has submitted that the fence is in keeping with the estate, the applicant could reasonably argue that the structure adversely affects the appearance or aesthetics of the scheme as it and the stored materials are clearly visible from other parts of the scheme.

In conclusion, I consider that these factors show that the construction of the fence constitutes a use of common property which requires the authority of an exclusive use by-law. The respondent does not have a right of exclusive use over the entire part of the common property which has been fenced. The respondent requires such an authority before being able to continue with the current use of this part of the common property. The body corporate authorisation to make an exclusive use by-law is by resolution without dissent at a general meeting. A motion requiring this resolution is passed if no votes are recorded against the motion. It is clear that the applicant is currently not willing to consent to the structure.

In addition, the storing of materials on the common property by the respondent is contrary to the conditions in By-Law 12 that the area be kept in a clean and tidy condition and used for car parking. The respondent must comply with the terms and conditions of this By-Law.

For these reasons, I have ordered that within one month of the date of this order, the respondent must remove the fence and any associated structures from common property, and remove from common property any equipment, materials or other goods belonging to the respondent and/or associated with the business being conducted from Lot 3. The respondent must also reinstate or repair any parts of the common property damaged by the removal of the fence and the equipment etc to its former state and condition of repair.