Ferry Court [2005] QBCCMCmr 273 (25 May 2005)

Last Updated: 5 July 2005

REFERENCE: 0492-2004

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	6316
Name of Scheme:	Ferry Court
Address of Scheme:	82 Ferry Road SOUTHPORT QLD 4215

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

Mr Neville Davey, a co-owner of lot 1.

I hereby order that subject to any requirements of statutory authorities including the Gold Coast City Council, the body corporate is to grant to the applicant exclusive use of the common property at the rear of lot 1 for the purposes of car parking. I further order that the body corporate is to permit the owner of lot 1 to construct security gates and to surface the area so as to make it suitable for car parking. I further order that the applicant is to have ongoing responsibility for maintenance of the area and is to bear responsibility for any additional costs incurred in removing and reinstating the surface in order to access utility infrastructure below the surface. I further order that within 3 months of the date of this order, the body corporate is to submit a new Community Management Statement and any other documentation required by the Registrar of Titles in order to give effect to this order, and the cost of doing so is to be met by the applicant.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0492-2004

"Ferry Court" CTS 6316

The Application

The applicant Neville Edwin Davey, a co-owner of lot 1, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

"An equal allocation of common property for the purpose of car parking."

Jurisdiction

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

As this is a dispute between lot owners and the body corporate, it 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 (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

Ferry Court consists of 13 lots used for commercial purposes, created in 1989 by a Building Unit Plan (now building format plan) of subdivision. The scheme consists of 13 single storey concrete block industrial units with 2 common property areas.

The first common property area includes 50 lined vehicle spaces. The applicant submits that only 2 of the 50 spaces are available for his use (i.e. in the immediate vicinity of his unit), while each of the other lots has 4 parking spaces available.

The second common property area is a narrow strip extending behind the entire length of the building. I am advised that each unit has exclusive use of part of this area i.e. that part at the rear of each unit.

Background

The applicant is firstly seeking an equal allocation of the common property car park on the following grounds:

• All lots pay the same amount of levies;
• No parking allocation (s) were ever recorded;
• Lot 1 has only 2 allocated car parking spaces on the Common Property while all other lots have 4 allocated spaces;
• While other owners/ tenants can also utilise the common property between the allocated parking spaces and the front of their factories for parking, he is unable to do so as his lot is larger than most of the others and he must allow room for entry to the complex;
• being at the front of the complex, he has the added problem of people parking in his 2 spaces while visiting other businesses within the complex and also car yards on neighbouring properties; and
• With only 2 spaces it is difficult for the applicant, his wife and customers to find parking space.

The applicant has sought to address this matter at a number of AGM’s over the years.

At the 2002 AGM, the applicant submitted the following motions which were defeated 6- 1:

• The body corporate consent to the installation of a driveway and installation of security gates at the expense of the body corporate.
• Inclusion of additional exclusive use by-laws regarding use of the car park area.

At the 2003 AGM, the applicant submitted the following motion which was defeated 4- 1:

• That the body corporate authorise the owner of lot 1 at his cost, to make the following improvements on common property within the area at the rear of lot 1:
(1) The installation of a pad and concrete driveway for the purpose of parking the owners vehicles.
(2) The installation of security gates at the entrance of the parking area.

At the 2004 AGM, the applicant submitted the following motion which was defeated 9- 1:

• That the body corporate approve a survey adjacent of the common property adjacent to the rear of each building for the purpose of allocating exclusive use of that area to the owner of the specific lot.

The following motion was also submitted to the 2004 AGM but was ruled out of order as it was regarded as a number of motions in one to which it was impossible to give a "yes" or "no" answer:

• That the body corporate agree to allocate exclusive use at the rear of lot 1 to the owner of lot 1 and the body corporate is to approve the installation of a concrete pad and security gates at no cost to the body corporate except where the body corporate elects to undertake new works or maintenance which will affect those improvements.

The body corporate submit:

• It is incorrect to refer to "allocations" as there is an overall area of common property on which car parks are constructed for the use of all owners and their customers in common;
• Each owner is entitled to use the common property equally contrary to the applicant’s statement;
• The previous order made by an adjudicator did not relate to the granting of exclusive use of car parking space;
• Exclusive use can only be granted pursuant to a resolution without dissent and the other owners in this scheme do not agree with such a removal of their communal rights of use which they wish to continue; and
• The applicant was aware at the time of purchase that only two car spaces were available for practical use in the vicinity of the lot .

In response, the applicant submits:

• He is in agreement that technically, there are no exclusive use car park spaces allotted to individual units but the majority of owners assume that they are entitled to 4 car park spaces adjacent to their lots;
• A previous application made to the Commissioner for Body Corporate and Community Management regarding car parking spaces was partly resolved by creation of an additional parking space adjacent to lot 1. That dispute was resolved on the understanding that there was one street parking space and two loading zone spaces available to the applicant. However there is only one space available in the loading zone and the on-street parking space is often occupied by customers of neighbouring businesses;
• As his lot is at the front of the complex the lined spaces adjacent to lot 1 are frequently used by customers of other lots and neighbouring businesses;
• At the last three AGM’s the applicant has proposed motions that exclusive use be granted to the owner of lot 1 to common property at the rear of lot 1 for the purposes of car parking;
• The applicant has had a survey plan prepared comprising the current common property parking area and also the common property area behind the lots to support his application for exclusive use of the area behind lot 1. The applicant states that although he personally met the survey costs and offered to meet the cost of providing a concrete driveway and gates, his application for exclusive use was rejected;
• The applicant believes that the body corporate has acted unreasonably and unfairly in refusing his request, particularly when it is considered that other lot owners have built extensions and other structures on the rear common property;
• Either of the following 2 options would resolve the problem and ensure all owners are equally entitled to the use of all common property:

Option 1.
(a) The current line marked parking spaces be divided equally between the 13 lots giving each lot 3 spaces (a total of 39), and the balance of 11 car parks be spaced evenly and marked for customer parking.

(b) Permission be granted be granted to each lot owner to use the common property at the rear of each lot for whatever purpose they require but subject to the condition that they comply with any statutory requirements.

Option 2.
Lots 2-13 would be entitled to use the 4 car spaces in the lined car park in front of their lot as they do currently. Lot 1 would utilise the 2 car parks at the front of their lot and would be granted exclusive use of the area immediately at the rear of lot 1 for the purpose of 2 additional car parks to take their entitlement to 4 also. The applicant proposes that he would contribute toward the cost of upgrading the area into a secure car park, after which time the body corporate would become responsible for maintenance.

Determination

The applicant is seeking "an equal allocation of common property for the purpose of car parking". His preferred option is to allocate various parts of the common property car park for the exclusive use of the various owners.

As stated above, the allocation of exclusive use requires a resolution without dissent, that is, there is no vote against a motion proposing exclusive use. A motion to allocate exclusive use was previously put to an annual general meeting but was defeated by majority vote.

I conducted a teleconference with the applicant and the chairman of the body corporate as well as a face to face meeting and site inspection. The position of the body corporate is concisely summarised in the last paragraph of its submission dated 8 November 2004 in which it is stated
It is not correct for the owner of lot 1 to impose his wishes on all of the other lot owners who wish the arrangements for use of the car parking area of the common property to continue as presently exists.

In both the teleconference and site meeting, the chairman of the body corporate re-iterated his position that the current arrangements are satisfactory, that the car parking spaces do not belong to anyone in particular and the entire car park is available for customer parking.

To a certain extent this application is similar to application 361-2001 in which the applicant sought the following an order:

That the body corporate grant "exclusive use" of the common area used as the car park to each lot in the scheme and have the spaces for each lot numbered.

In that case the adjudicator made the following comments:

I now turn to the issue of car parking. I will indicate at the outset that the applicant will not succeed in obtaining the relief which he is seeking, namely the granting of exclusive use of an allocated number of car parking spaces. The allocation of exclusive use requires a resolution without dissent; that is, no vote against the proposal. I understand that the motion to allocate exclusive use was defeated by majority vote, with only two votes in favour. An adjudicator has power to overturn a dissenting vote in the case of a resolution without dissent where the " opposition ... in the circumstances is unreasonable".

The Body Corporate and Community Management Act 1997 (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". Accordingly, the Act provides for democratic decision making processes combined with specific safeguards such as differing types of resolutions and in exceptional circumstances, there is scope for an adjudicator to override decisions of the body corporate i.e. " where opposition is in the circumstances unreasonable".

The term unreasonable has been the subject of much considered judicial comment. The meaning of the term is summarised in a decision of the Land and Environment Court of New South Wales (See Dubler Group Pty Ltd v Ku-Ring-Gai Municipal Council [2004] NSWLC 305 at para 47). The decision dealt with administrative decisions of the relevant Minister. The land developers sought to have the decisions of the Minister judicially reviewed. In considering the reasonableness of the decisions the Land and Environment Court relied upon the following meanings which were given to the term:

•	" whether the opinion held was so unreasonable that no reasonable Minister could have ever formed that opinion: Associated Provincial Picture Houses Pty Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223;
•	"whether the opinion held was so devoid of any plausible justification that no reasonable person could ever have reached" it: Bromley London Borough Council v Greater London Council [1981] UKHL 7; [1983] 1 AC 768;
•	"whether it was a decision which is so outrageous that its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it" : Council of Civil Service Unions v Minister for the Civil Service [1985] 1 AC 374 at 410."

Based on the above I am of the view that in considering whether the body corporate has acted reasonably in the circumstances, I should have regard to the following considerations:

•	whether the decision was so unreasonable that no reasonable person could ever have reached that decision;

• whether the decision has no plausible basis; and
• whether the decision was so outrageous that no sensible person could have logically reached it.

While I can understand the applicant’s concern that only 2 of the 50 spaces are in the immediate vicinity of his unit, I do not believe that the body corporate’s opposition to the equal division of the car parks is so unreasonable as to justify intervention by this Office in the form of an Order compelling the body corporate to adopt exclusive use by-laws for the car park area.

An alternative, but less favoured option raised by the applicant is Option 2 whereby Lots 2-13 would be entitled to use the 4 car spaces in the lined car park in front of their lot as they do currently and Lot 1 would utilise the 2 car parks at the front of their lot and would be granted exclusive use of the area immediately at the rear of lot 1 for the purpose of 2 additional car parks. The applicant proposes that he would contribute toward the cost of upgrading the area into a secure car park, after which time the body corporate would become responsible for maintenance.

This option was canvassed with the chairman of the body corporate at both the teleconference and the site meeting. The chairman of the body corporate advised that he had no objection to this proposal in principle but believed the exclusive use area behind lot 1 should be paved rather than concreted over, as water, sewerage and power i.e. utility infrastructure ran below this area and it is likely that this infrastructure will need to be upgraded in the future. Alternatively, the applicant should be responsible for the additional cost of accessing the utility infrastructure (eg by jack-hammering) if he chooses to install a concrete slab.

I have inspected the site and noted that the area behind each lot is regarded as being for the exclusive use of the adjoining unit, and in some cases lot owners have placed permanent structures on these areas. I believe that it would be unreasonable to refuse the applicant permission to have exclusive use of the area behind lot 1 for car parking purposes, as the area is of little, if any, use to other lot owners. Consistent with section 123(2) of the Body Corporate and Community Management (Standard Module) Regulation 1997, I believe that the applicant should bear responsibility for the cost of making any improvements to the exclusive use as well as any cost involved in maintaining the area. As the applicant is aware of the presence of utility infrastructure. I propose to make this order conditional upon the applicant being responsible for any additional cost to the body corporate in accessing utility infrastructure (e.g. by jack-hammering) if he chooses to surface the area with a concrete surface rather than a removable surface such as paving.

Order

Subject to any requirements of statutory authorities including the Gold Coast City Council, the body corporate is to grant to the applicant exclusive use of the common property at the rear of lot 1 for the purposes of car parking. Further, the body corporate is to permit the applicant to construct security gates and to surface the area so as to make it suitable for car parking. The applicant is to have ongoing responsibility for maintenance of the area and is to bear responsibility for any additional costs incurred in removing and reinstating the surface in order to access utility infrastructure below the surface. The applicant is also to bear responsibility for the costs of giving effect to this order including the cost of preparing and lodging a new Community Management Statement and associated plans.