La Porte D'Or [2005] QBCCMCmr 266 (19 May 2005)

Last Updated: 5 July 2005

REFERENCE: 0467-2004

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	12681
Name of Scheme:	La Porte D’Or (Golden Gate)
Address of Scheme:	3422 Gold Coast Highway SURFERS PARADISE QLD 4217

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

Marcellyn Pty Ltd, the Owner of lot 77

I hereby order that subject to any requirements of the Gold Coast City Council, within 30 days of the date of this order, the proprietors of lot 162 are to either ensure that the wire mesh enclosing car space No 133 is on, or within the boundary of car space 133, or otherwise are to remove the enclosure.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0467-2004

"La Porte D’Or" CTS 12681

APPLICATION

The applicant, Marcellyn Pty. Ltd. the owner of lot 77 has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 ("the Act"), -

That the Affected persons (Lionel & Lydia Young) remove the metal fencing "cage" which is erected either side of their car space within 7 days.

JURISDICTION

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)).

BACKGROUND

The scheme was established in 1977, consists of 181 lots registered on a Building Unit (now Building Format) plan, and is governed by the Body Corporate and Community Management (Standard Module) Regulation 1997.

The applicant is the owner of lot 77 and has exclusive use of common property referred to as car space 134. The respondents are the owners of lot 162 and have exclusive use of common property referred to as car space 133.

The applicants submit that the respondents are in breach of the following by-laws:
By-Law 2(b):
The proprietor ....shall be entitled to the exclusive use and enjoyment of such carparking space or spaces upon and forming part of the common property, the identifying number or numbers of which are set forth upon the sketch plan approved by the body corporate;

By-Law 2(e):
A proprietor shall not erect or cause or allow to be erected on or adjacent to any car parking area or on the common property any cage, wall, barrier, fixtures or fittings unless authorised by the body corporate by resolution without dissent.

and
By-Law 3 provides:
A proprietor or occupier of a lot shall not obstruct lawful use of common property by any person.

It is claimed that the respondents have breached the above by-laws for the reasons outlined below. In 2002 the respondents erected a chair wire enclosure around car space 133. It is claimed that the enclosure has obstructed the applicant’s use of common property by preventing the occupiers of lot 77 from being able to properly access and use car space 134. This is because the encroachment of the enclosure has narrowed car space so that it is only suitable for parking small or medium sized cars.

The applicants have a large car, as do some of their invitees, and are therefore unable to use the car parking space unless passengers firstly exit the car before it is parked in the space. Otherwise they are not able to open the car doors owing to the existence of the wire enclosure. It is then necessary for the driver to manoeuvre the car into the space and then exit the car with a considerable amount of difficulty.

In December 2002 the applicant’s solicitor wrote to the Body Corporate Manager who suggested that they write to the Gold Coast City Council. Following representations to the Gold Coast City Council regarding alleged non-compliance with the town planning scheme, the Body Corporate received a "Show Cause" notice from the Gold Coast City Council regarding the erection of wire enclosures in the carpark.

As no action had been taken by either the Body Corporate or the Gold Coast City Council as at November 2003, the applicant submitted a motion at the AGM that the Body Corporate require the respondents to remove the wire enclosure. On 6 December an ordinary resolution to this effect was passed by the AGM.

The applicant states that the body corporate failed to take any action to give effect to the resolution and as a result, the applicant issued a Notice of Contravention of a Body Corporate By-Law to the respondents. However neither the respondents nor the Body Corporate has taken any further action since that date.

SUBMISSIONS

Under section 243 of the Act, a copy of the application was provided to the respondent owners and to all other owners, with an invitation to each to respond to the matter of dispute raised in the application.

Five submissions were received from owners of lots within the scheme. Three submissions argued against the application while two submissions supported the application.

The respondents submit as follows:

• They are entitled to exclusive use and enjoyment of car space 133;

•	The chain wire fence is on the boundary between spaces 133 and 134 and does not obstruct the use of car space 134 as a car space;

• The dispute is not one to which the BCCM Act applies;
• An adjudicator is not empowered to make the order sought;
• In the alternative, it is submitted that they are not in breach of by-laws 2(e) & 3;

•	Authorisation to construct the enclosure was obtained in accordance with by-law 2(e) as a resolution without dissent was passed at the AGM held on 16 November 1996, and the applicants did not vote against the motion at that time;
•	They wish to maintain their exclusive use of car space 133 whereas the applicant is seeking to use part of the area to enter and exit their vehicle;
•	Town planning issues relating to the lack of town planning approval are not relevant to the application, particularly having regard to the fact that the town planning application/ approval/ appeal process has not been finalised;
•	The ordinary resolution made at the AGM held on 6 December 2003 requiring the body corporate to enforce the scheme by-laws and order the owners of lot 162 to remove the enclosure, is invalid because a resolution without dissent is required;
•	Under the Building Units and Group Titles Act the Referee had previously made orders permitting owners to enclose car parking spaces. Such orders were made on the basis that it would be discriminatory for the Body Corporate to grant permission to some owners but refuse permission to others;
•	The applicants had refused an offer to swap their parking space with another space.

In response the applicant submits as follows:

•	The dispute resolution provisions in Chapter 6 of the Act apply to a dispute between owners of lots involving a contravention of scheme by-laws;
•	While the respondents have obtained approval by way of resolution without dissent, the enclosure has not been constructed in compliance with the resolution as it is not erected on or within the boundary of car space 133. This is because certain parts of the enclosure encroach over the boundary of the car space;
•	It is a common and widely accepted practice that use of the car space involves temporarily crossing over adjoining car spaces;
•	The resolution made on 6 December 2003 sought removal of the enclosure as it presented a nuisance and involved a continuing breach of by-laws;
•	It is not discriminatory for the body corporate to order that the enclosure be removed if it is the only cage causing a continuing breach; and
•	On 23 August 2004 the applicant received a copy of a decision notice from the Gold Coast City Council in which the Gold Coast City Council ordered removal of all car enclosures. The applicant has since been advised that the period for appealing the decision notice has closed without any appeals having been lodged.

Gold Coast City Council Regulations

I have been provided with a copy of a Decision Notice dated 23 August 2004, issued by the Gold Coast City Council regarding the request to change an existing approval relating to enclosures around parking spaces. The request was refused for the following reasons:

•	The development is required to comply with AS 2890.1-1993 regarding car parking space dimensions and side clearances. The enclosures impose non-complying space widths on adjoining spaces and affect manoeuvrability of those spaces;
•	The Gold Coast Planning Scheme requires all car spaces to be constructed in accordance with AS 2890.1-1993. The enclosed spaces do not comply with the Gold Coast Planning Scheme;
•	Enclosed parking spaces which were part of the original approval were 3 metres wide.
•	The original approval does not incorporate the enclosures on the subject spaces and as they were designed at 2.8 metres, were intended to remain open; and
•	Approval of the application would create an undesirable precedent for similar mixed tourist and residential development.

The Decision Notice states that all enclosures are to be removed within 6 months of the date of the Notice.


DETERMINATION

Jurisdiction

This is a dispute between the owners of lot 77 and the owners of lot 162 regarding the erection of chain wire enclosures on either side of common property referred to as car space 133. The applicant is the owner of lot 77 and has exclusive use of common property referred to as car space 134.

To determine whether I am empowered to deal with this matter it is firstly necessary to refer to sections 227 and 276 of the Act.

Section 227(1)(a) of the Act provides that a dispute between an owner of a lot and another owner of a lot, is a dispute which may be resolved under the dispute resolution provisions of the Act.

Section 276(1) of the Act provides that an adjudicator may make an order that is just and equitable in the circumstances 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;

Consequently I am of the view that this is a dispute which may be considered under the dispute resolution provisions of the Act.

By-laws

The next matter for consideration is whether the respondents are in breach of the by-laws for the scheme. For present purposes, the following by-laws are of relevance:

By-Law 2(b):
The proprietor ....shall be entitled to the exclusive use and enjoyment of such carparking space or spaces upon and forming part of the common property, the identifying number or numbers of which are set forth upon the sketch plan approved by the body corporate;

By-Law 2(e):
A proprietor shall not erect or cause or allow to be erected on or adjacent to any car parking area or on the common property any cage, wall, barrier, fixtures or fittings unless authorised by the body corporate by resolution without dissent. and

By-Law 3:
A proprietor or occupier of a lot shall not obstruct lawful use of common property by any person.

There is no doubt that the applicant and respondent are entitled to exclusive use of car spaces 134 and 133 respectively. However the question arises as to whether the owners of lot 162 have been authorised to construct the enclosure by way of resolution without dissent. The respondents submit that such approval has been obtained and in support, have submitted a copy of the minutes of the annual general meeting held on 16 November 1996 in which it was resolved that:

the proprietors of lot 162 be authorised to enclose their car space No 133 with wire meshing (of the same type as that already in place within the building) on or within the boundary of their car space No 133.

The applicants submit that that the enclosure has not been constructed in compliance with the resolution without dissent, as the enclosure was not erected on or within the boundary of car space 133. This is because certain parts of the enclosure encroach over the boundary of the car space.

It is further argued on 6 December an ordinary resolution was passed at the AGM requiring the respondents to remove the enclosure

In my view the respondents are correct in their contention that a resolution without dissent may not be amended or revoked except by a subsequent resolution without dissent. Nevertheless, the respondents are obliged to comply with the terms of the authorisation granted by way of resolution without dissent. I believe that this can be achieved by ensuring that the enclosure is on or within the boundary of car space 133 and does not encroach over the boundary.

The next matter for consideration is whether the existence of the enclosure is obstructing the lawful use of common property by the owners of lot 77. It is my view that an obstruction of common property must involve an appreciable interference with the rights of other owners or occupiers to use the common property. It is probable that in its present position, the enclosure presents an inconvenience to the users of neighbouring car parking spaces. As outlined above, I propose to order that the respondents ensure that the enclosure is on or within the boundary of car space 133 and does not encroach over the boundary. Once this has been attended to, I do not believe that the enclosure could be regarded as an obstruction of common property or nuisance.

The final matter for consideration is the Decision Notice dated 23 August 2004, issued by the Gold Coast City Council stating that the car park enclosures are to be removed within 6 months of the date of the Notice. This Office contacted the Secretary of the Body Corporate on 30 March 2005 to ascertain the progress of negotiations with the Gold Coast City Council. At that stage the date for lodgement of an appeal had passed and there is no evidence to suggest that a relaxation of Council by-laws had been sought.

Section 276(1) of the Act provides that an adjudicator may make an order that is just and equitable in the circumstances to resolve a dispute about-

(1) a claimed or anticipated contravention of the Act or community management statement; or

(2) the exercise of rights or powers, or the performance of duties, under the Act or the community management statement

In my view, compliance or non-compliance with local laws is a matter to be determined by the local authority and it is not the role of an adjudicator appointed pursuant to the Body Corporate and Community Management Act 1997 to enforce compliance with the Gold Coast Town Planning Scheme.

I therefore propose to order that within 30 days of the date of this order, the proprietors of lot 162 are to either ensure that the wire mesh enclosing car space No 133 is on or within the boundary of car space 133, or otherwise remove the enclosure. However, this order is subject to any requirements or orders made by the Gold Coast City Council regarding compliance with the Gold Coast Town Planning Scheme.


Order

Subject to any requirements of the Gold Coast City Council, within 30 days of the date of this order, the proprietors of lot 162 are to either ensure that the wire mesh enclosing car space No 133 is on, or within the boundary of car space 133, or otherwise are to remove the enclosure.