The Phoenician [2005] QBCCMCmr 259 (18 May 2005)

Last Updated: 5 July 2005

REFERENCE: 0483-2004

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	27745
Name of Scheme:	The Phoenician
Address of Scheme:	24-32 Queensland Avenue BROADBEACH QLD 4218

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

the body corporate

I hereby order that the application for an order that the occupier of lot 13 be required to remove the tables and chairs from the common property passageway is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0483-2004

"The Phoenician" CTS 27745

Application

The Phoenician Community Titles Scheme (The Phoenician) is a 286 lot scheme under the Body Corporate and Community Management Act (Act) and the Act’s Accommodation Module Regulation (Accommodation Module).

This is an application by the body corporate (applicant) seeking an order to require an occupier, Roger Sheehy (respondent) to remove tables and chairs from the common property passageway adjacent to his lot. The respondent is the proprietor of Three Beans Coffee Shop which trades from the ground floor lot 13 of The Phoenician (East Tower).

Background

The Phoenician’s by-laws 3 and 6 are as follows:

3. Obstruction
An owner or occupier of a lot shall not obstruct lawful use of common property by any person.

6. Behaviour of Invitees
An owner or occupier of a lot shall take all reasonable steps to ensure that his invitees do not behave in a manner likely to interfere with the peaceful enjoyment of the owner or occupier of another lot or of any person lawfully using common property.

There is a further by-law, by-law 35, which deals with the right of the respondent to use common property directly in front of his shop. However, I am not satisfied that this by-law is relevant to this application seeking to require the respondent to remove the tables and chairs from the common property passageway running alongside his lot.

Submissions

The body corporate submits that the Three Beans Coffee Shop is setting up tables on the common property passageway contrary to the by-laws. The body corporate says that it had an ongoing dispute with the previous owner of the business and the body corporate manager had told the respondent that an application had been lodged with this office but a final decision had not been handed down. Following the purchase of the business by the respondent, it is alleged that the respondent himself is contravening the by-laws by leaving tables and chairs in the passageway.

The respondent submits that he was told by the previous occupier that he would be able to leave tables and chairs in the passageway as there was no order stopping him from doing that. He also says that the owner of the lot told him that the developer of The Phoenician had granted that shop permission to use the passageway as otherwise the shop was too small to be commercially viable. The respondent says that he understands that placing tables in the passageway was acceptable to the body corporate for a period of five years prior to the previous occupier obstructing the passageway by placing tables on both sides of the passageway. He says that he has instructed his staff to keep tables and chairs on one side of the passageway and maintain the cleanliness of the area. As a result, he claims that he is not obstructing the passageway as his tables and chairs are only on one side of the passageway. The respondent says that there is an unobstructed passage for pedestrians approximately two metres wide, even after his tables and chairs take up approximately sixty centimetres of the width of the passageway.

Other owners have also provided submissions. All submissions are available for the parties to inspect upon request and it is unnecessary for me to summarise these submissions here.

Decision

Applicable law

The legislation includes provisions to the effect that:

• The occupier of a lot must not use the lot in a way that causes nuisance or interferes unreasonably with use or enjoyment of another lot or the common property (Act, 167);
• The body corporate may, subject to some limitations, make by-laws regulating the use and enjoyment of lots and common property (Act, 169); and
• The body corporate may authorise an owner to make improvements to the common property for the benefit of the owner’s lot. This authorisation must be by special resolution except in limited circumstances (Accommodation Module, 113).

Obstruction

The occupier of lot 13 has provided a detailed submission stating that he has erected signage and changed seating in the corridor ear at a cost of $1,000 in order to reduce the amount of area used and to aesthetically improve the hallway. Attached photographs shoe small tables and cube-shaped stools along one edge of the corridor with signage stating "Sorry guys ... this area is no smoking, no booze, and only 2 chairs per table".

A committee member has claimed that he has photographs showing four people sitting at a table but he conceded that this was not at the narrow section of the corridor but after the corridor opens out. The occupier of lot 13 stated that there is always at least two metres passageway unobstructed by tables or chairs and the body corporate has not provided evidence that satisfies me that the occupier of lot 13 is obstructing the corridor in contravention of the by-laws or otherwise creating a nuisance.

Right to use common property

The occupier of lot 13 claimed that the lot is only 4.3 metres wide rather than 5.9 metres as originally proposed in the plan. He says that this makes the shop too small to be commercially viable and that is why the developer would have originally approved use of the corridor by the shop.

Placing of tables and chairs on common property for the benefit of a shop operating from the lot amounts to improvements to the common property for the benefit of the lot. Formal approval for an owner to make improvements to the common property for the benefit of the lot normally requires a special resolution of the body corporate authorising the improvements (Accommodation Module, 113). Therefore, the owner of lot 13 should have sought formal approval and this approval should have been recorded in the minutes and in the body corporate’s register of authorisations affecting the common property (Accommodation Module, 145(3)).

The representative of the owner of lot 13 claimed that the developer granted the owner of lot 13 a verbal approval at a time when the developer held the majority of lots and would have been able to provide a formal approval. A verbal approval would not ordinarily be enough to give the owner of lot 13 any right to permit its tenants to use that area of common property. The complicating factor in this instance is the evidence that the body corporate has acquiesced to occupiers of lot 13 using that area of the common property since that time.

An adjudicator is required to make an order that is just and equitable to resolve a dispute (Act, 276). Even if the owner has not obtained formal approvals to place tables and chairs on the common property, acquiescence by the body corporate for a number of years can amount to a deemed authorisation of the practice. It was not disputed that the occupiers of lot 13 have had tables and chairs in the corridor for over six years which makes it difficult for the body corporate to argue there is no deemed authorisation even if the developer did not pass and document a formal resolution giving the approval.

The application was argued on the basis of obstruction in breach of the by-laws and the parties indicated that they may meet onsite to endeavour to reach an agreement on the erection of barriers or on some other step to avoid any further disputes. Otherwise, the representatives of the body corporate indicated they may take steps to formally revoke any deemed approval for lot 13 to place chairs and tables in the corridor. In this respect, I note that the legislation allows any resolution to be amended or revoked by a resolution of the same type (Accommodation Module, 56). This power would be subject to any general requirements including that the body corporate act reasonably in carrying out its functions and in administering the common property for the benefit of owners (Act 94, 152).

Order

For these reasons, I make the order above.