Strathgate [2005] QBCCMCmr 46 (31 January 2005)

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

I hereby order that motion 14 (Container Bay) passed by the body corporate at its annual general meeting held on 23 March 2004 shall be deemed to be varied by this order to the extent that the requirement that a fence/screen be erected beside the container bay shall be waived. The motion shall, in all other respects, remain as a valid motion duly passed by the body corporate.

I further order that the owner of lot 1 (for whose benefit the container bay is being created) shall be permitted to receive containers into the container bay between the hours of 6.00am and 5.00pm daily, provided however that only one container shall be allowed in the container bay at a time and further provided that the unloading of such containers shall be carried out as soon as is reasonably practicable and further provided that the empty container shall be removed immediately.

I further order that the owner of lot 1 shall not permit pallets of tiles or any other items to remain on the area immediately adjacent to the container bay for longer than 60 minutes after the container has been unloaded.

I further order that the steel ramp used to allow the forklifts to access and unload the containers shall be stored inside lot 1 whenever it is not in use.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0226-2004

"Strathgate" CTS 29945

ORDERS SOUGHT

The applicant, Damien John O’Flaherty, has sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) as follows:

JURISDICTION

The application evidences a dispute between two owners of lots included in a community titles scheme (section 227(1)(a) 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

(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)).

SCHEME DETAILS

"Strathgate" was registered as a building format plan on 23 January 2003 and comprises 14 lots. The scheme is regulated by the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module) and is used for commercial purposes.

BACKGROUND

In the supporting grounds, the applicant explained that the purpose of his application was to complain about breaches of the by-laws by the owner of lot 1 in respect of which three separate contravention notices had been issued. The applicant was concerned that the common property was being obstructed by the loading and unloading of steel shipping containers and semi-trailers, the stacking of empty pallets, and the use of a steel ramp to facilitate the unloading of the containers by forklifts. In addition the applicant complained of the noise of the forklifts, which he alleged made the use of a telephone in his office impossible. A further obstruction of the common property was caused by the placement of two industrial sized bins in the car parking bays. Finally, the applicant claimed that the garden edges had been damaged by forklifts, heavy lifting equipment, pallets and industrial bins, and that the owner of lot 1 should be responsible for the cost of repairs.

The applicant provided considerable material in support of his application including copies of relevant correspondence, minutes of meetings and a detailed chronology of events. He also provided a series of photographs depicting the activities of which he complained.

All owners in the scheme, the body corporate committee and the owner of lot 1 were invited to respond to the application. Submissions were received from the owners of another lot within the scheme, from the body corporate manager and from the owner of lot 1.

The owners who responded noted that the dispute had been on-going, and strongly recommended that an outside person should review the matter and make a decision on behalf of the two disputants.

The body corporate manager advised that the body corporate committee recommended that the matter be referred to mediation and conciliation, starting with the Dispute Resolution Centre.

The owner of lot 1 (the respondent) lodged a submission through his solicitors and generally denied most of the allegations. In particular he stated:

The respondent admitted that a steel ramp had been placed in car parking bays for the purpose of loading and unloading vehicles. He also admitted that he had placed an industrial sized bin in a car parking bay, as had other owners in the scheme, but noted that he had not been ordered by the body corporate at any time to remove the bin. Finally, the respondent admitted that certain garden edges and car park lines require repair but expressed the view that the need for such repair was as a consequence of fair wear and tear and as such it was the responsibility of the body corporate.

The applicant replied in detail to the respondent’s submission.

The initial dispute resolution recommendation made by the Commissioner was for this matter to be referred to the Dispute Resolution Centre (DRC). An officer from DRC advised the Commissioner on 10 August 2004 that neither party had contacted DRC, so no mediation was conducted. The Commissioner then determined that the matter should be the subject of departmental adjudication.

On 11 October 2004 I conducted a teleconference with the applicant, the respondent and the body corporate chairperson, Mr Springer. During the course of the teleconference the respondent advised me that he had changed suppliers three times within 6 months in an effort to accommodate the applicant’s concerns about the delivery of tiles to the respondent’s business. The present supplier is mostly able to deliver the tiles before 9.00am. The applicant elaborated on his concerns in relation to his business, particularly in respect of traffic (both volume and noise) and also in relation to the obstruction of the common property.

I noted that the body corporate had resolved on 23 March 2004 to permit the respondent to establish a container bay for the loading and unloading of his products on the condition that only one container was to be on the common property at any time and that a fence or screen was to be erected so as to shield the container from the view of persons present in the applicant’s lot. A discussion then took place in relation to the screen, and whether it was a reasonable requirement of the applicant. The respondent pointed out that a removable screen would be quite impractical and a permanent screen would prevent the use of the area for car parking at any time that the area was not being used for loading and unloading (after hours). The applicant stated that he did not like his clients to have to look out from his premises onto rusty shipping containers. I advised the applicant that he does not have a legal right to a view, and pointed out that in any event the respondent’s business was already established when the applicant purchased his lot, so that he ought to have known what the outlook from his premises would be. I stated that I did not consider the applicant’s requirement for a screen to be reasonable, however, if it was a condition of Council’s approval for the container bay, then that would be an entirely different matter.

I enquired whether the screen was in fact a requirement of the Pine Rivers Shire Council. The applicant could not state definitively that it was, but advised me that the town planner from the Council had visited the site and the matter had been fully discussed. The applicant also referred to the letter dated 2 September 2003 from the Council to the body corporate manager, in which it was stated, in part, as follows:

"Council understands that an agreement has been reached for a loading bay for one only container with an appropriate fence/screen alongside to be used by Uptiles. The fence/screen would have to be approved by Council and agreed to by Damien O’Flaherty of Brisbane Taekwondo & Hapkido Academy. It is Council’s understanding that the body corporate committee would then support this agreement.

The container bay should be restricted to a maximum area of 5.5m x 2.5m (13.75m2)."

I advised the parties that I would contact the Council to ascertain its position in relation to the screen and whether Council was merely acknowledging the applicant’s requirement for the screen rather than requiring it as a condition of Council’s approval for the container bay.

On 11 October 2004 I spoke by telephone with Gary Choveaux, Senior Development Officer in the Division of Assets and Development, Pine Rivers Shire Council. I asked Mr Choveaux if the screen beside the container bay was a condition of Council’s approval, or whether it was just recognition of a requirement of the applicant. Mr Choveaux initially was unable to state exactly what Council’s requirements were, but advised me that if the respondent wanted to establish the container bay he would have to lodge a Material Change of Use Application seeking to vary the conditions of the planning permit for the scheme. Mr Choveaux also made reference to a plan for the container bay which was lodged with Council on 29 October 2003 and faxed to the body corporate manager. Mr Choveaux suggested that I speak with Mr Tony Rea, another Council officer.

On 11 October 2004 I spoke by telephone with Mr Rea, who advised me that he did not have a detailed knowledge of the matter and recommended that I speak again with Mr Choveaux.

On 12 October 2004 I spoke again by telephone with Mr Choveaux who advised me that the only reason that he had become involved in the matter was because it appeared that the dispute between the parties was fairly longstanding, and he had been trying to help resolve it. Mr Choveaux stated that he had had a further look at the files and there was in fact no need for the respondent to lodge any further application with Council as Council was "happy with the way that the matter had ended up" based on the material already lodged by the respondent through the body corporate manager. Mr Choveaux confirmed that it was not a Council condition that a screen be erected beside the container bay and stated that the container bay could have the dimensions of 6.00m x 5.5m (33m2) as set out in Council’s letter dated 7 November 2003. As I did not have a copy of that letter I requested a copy. Mr Choveaux said that he would have someone download it from their system and forward it to me. The Council did not forward the letter as promised.

I then attempted to arrange a further teleconference with the parties to advise them of the outcome of my discussions with Mr Choveaux but the applicant declined to participate.

Considerable delay then ensued as various parties tried to locate Council’s letter dated 7 November 2003 and provide it to me. It finally came to light when the respondent’s solicitors forwarded a copy of it to the Commissioner on 11 January 2005.

On 21 January 2005 I conducted an inspection of the scheme. I also had a further discussion with the applicant and the respondent, both of whom accompanied me on the inspection. The parties explained that there is a high volume of traffic through the scheme on a daily basis, and that car parking space has been a critical issue since its inception. The respondent stated that when he purchased his lot the developer had promised him that a container bay would be provided, but eventually the Council’s requirements in relation to the provision of car parking had made it impossible to do so, because there was not enough space to do both. Similarly, the developer had made no provision for the storage of industrial bins, and these were scattered throughout the scheme on common property.

I observed that the respondent’s lot is divided into a front showroom area and a large warehouse-style storage area at the rear. The warehouse has several very large doors along the side wall which is directly opposite the applicant’s lot. The proposed container bay will be provided in the area adjacent to the last door nearest the back fence. The designated space, of the dimensions approved by Council, will enable containers to be loaded and unloaded by a forklift which will then use only this last door to access the warehouse, thereby resulting in less forklift traffic around the remaining car parks. Importantly, such activity will be kept to a minimum outside the area adjacent to the applicant’s office. In addition to the space to be marked out as a dedicated container bay, two adjacent carparks will also be utilised as the brief set-down area for the pallets of tiles whilst the fork-lift is taking the pallets into the warehouse and stacking them on the shelves. The respondent acknowledged that pallets were not permitted to be and would not be stored on the common property.

The applicant stated that the proposed container bay would certainly alleviate many of the problems of which he had complained in his application. However, the applicant was still concerned that containers not be brought into the scheme after 9 or 10 o’clock in the morning so that the noise from the trucks and the winching gear used to swing the containers out to the side did not disrupt his classes.

The respondent reiterated that he had already changed contractors so as to have his containers delivered as early as possible in the morning, but stated that other factors beyond their control could occasionally necessitate a delivery mid morning or even up to lunchtime. The respondent pointed out that he was paying $50.00 more per container for this arrangement. The respondent also noted that there had been a large number of deliveries in the first few weeks after Christmas, as the containers had been sitting on the wharves during the break, and the backlog had to be cleared. At most times of the year, however, the respondent stated that he would only receive an average of 4-5 containers per week. The respondent also explained that there are a large number of his customers who collect orders, and those people usually back their trailers up to the doors of the respondent’s warehouse so that the forklifts can load the tiles onto them but this process did not generate undue noise.

I pointed out to the respondent that the scheme’s by-laws clearly provide that the common property must not be obstructed and that vehicles must not, without the body corporate’s consent, park or stand on any part of the common property which is designated for customer parking. The respondent stated that once the container bay was available it would be a matter of "educating" the drivers to always use that area, and he was confident that it would work well.

DETERMINATION

The scheme’s by-laws regulate the use of the site in relation to a variety of matters, including noise, obstruction, vehicles, damage to gardens, damage to common property and rubbish disposal. These are the issues about which the applicant has raised concerns in his application.

It seems from the photographic evidence provided by the applicant that the respondent has from time to time in the past breached the by-laws by allowing pallets of tiles to stand on the common property; by allowing trucks to unload shipping containers onto the common property and by permitting those shipping containers to then remain on the common property for lengthy periods before being removed. However, as a result of significant negotiation, the situation appears to have improved already, and I am confident, as are the parties, that it will improve further upon establishment of the container bay.

Notwithstanding the progress made in that respect, I am of the view that in determining this application it will not be possible to make orders that will provide the ideal situation for both the applicant and the respondent as I am required to make orders that are just and equitable in the circumstances to all parties, including the body corporate as a whole, to resolve the dispute (section 276(1) of the Act).

From the applicant’s perspective, an ideal order perhaps would entail having the respondent’s shipping containers delivered, unloaded and removed before 8 or 9 o’clock in the morning so that noise and visual pollution were kept to an absolute minimum and his classes were not disturbed. From the respondent’s perspective, perhaps an ideal order would be that he could have his shipping containers unloaded at any of his three warehouse doors and instead of being removed immediately they were unloaded, that the container could be collected the next time a delivery was made.

From my discussions, I formed the view that both parties accepted that a degree of compromise would be necessary to ensure that each of their businesses could continue to operate successfully and so that the previous disputation could be put behind them.

As I pointed out to the parties during my site inspection, the scheme is a commercial scheme (although it is not regulated by the Body Corporate and Community Management (Commercial Module) Regulation 1997 (Commercial Module)). Therefore, the volume and nature of traffic (delivery trucks, forklifts etc) through the scheme will inevitably lead to some levels of noise as well as some congestion. Furthermore, it would be unrealistic to expect that such traffic could be controlled or minimised (except to the extent that the respondent’s delivery trucks will now proceed to the container bay to unload) without impacting on the viability of the various businesses conducted throughout the scheme. The respondent reiterated that, except after a significant holiday closure (such as over the Christmas period), he averages about 4-5 containers per week. He also pointed out that the applicant receives deliveries of ice-creams and chips by truck approximately once per fortnight and both parties confirmed that the volume of traffic (of all types of cars) for the fitness centre (Allsports) is enormous. This traffic combined with the applicant’s own clients (especially in the evening) has resulted in a significant strain on the parking facilities, hence the applicant’s complaints when parking bays were obstructed by empty pallets or shipping containers.

I am satisfied that the body corporate has approved the container bay required by the respondent, and that the Pine Rivers Shire Council has also approved it provided that it has no greater dimensions than 6.00m x 5.5m. On the basis of my discussion with Mr Choveaux I am further satisfied that the Pine Rivers Shire Council does not require that the container bay be fenced or screened off. I therefore find that it would be unreasonable for the respondent to have to do so simply because the applicant required it. In any event, I consider that the fencing or screening would actually impact on the applicant’s clients, because valuable parking bays would be unable to be used in the evenings, after the respondent’s business had closed, if they were fenced off.
I intend therefore to order that the motion passed at the annual general meeting held on 23 March 2004 shall be deemed to have been varied by this order to the extent that the requirement for the container bay to be screened shall be waived. The motion shall in all other respects remain on foot.

Turning to the issue of noise, whilst I accept the applicant’s evidence that the trucks delivering the shipping containers would create a degree of noise, I consider that that is a matter of which the applicant ought to have had notice prior to purchasing his lot, since the respondent’s business had been operating for some time before the applicant’s purchase. Given that the large openings in the applicant’s lot are directly opposite the main traffic area for the respondent’s lot then in my view the possibility of noise from trucks, forklifts and customers’ vehicles should have been obvious. I have not been provided with any objective measurement of the noise levels (such as an acoustic report) but as the scheme comprises of a range of lots conducting commercial businesses, with high traffic volume, I am not persuaded that such noise as has been described is unreasonable. I also note that the completion of the container bay should help in this regard as well.

I observed that some of the garden edging had been damaged in places. I accept the respondent’s submission that this sort of damage should be considered to be the fair wear and tear that one would expect to find in a commercial scheme, where there is a heavy volume of traffic. Whilst I did not inspect the parking areas for the entire scheme, I would be very surprised if other areas were not to have experienced similar damage from vehicles parking or from trucks making deliveries. This finding applies similarly to the complaint in relation to the car park lines. On this basis, therefore, any cost of repairs should be regarded as a body corporate expense, and should be included in the annual budget figures. I do not propose to make the order requested by the applicant.

I also do not propose to make an order requiring the respondent to refrain from driving (or causing to be driven) his forklifts on the common property. The by-law in relation to vehicles relates, in any event, to vehicles parking or standing on common property, not to vehicles being driven on common property. Of course, the respondent must not allow the forklifts to park or stand on the common property when they are not in use but I also do not propose to make an order to this effect, as the by-law already provides for that. I accept that the forklifts will be operated during the course of the day in the normal operation of the respondent’s business. When a container arrives, the forklifts will be required to unload the pallets of tiles and then ferry them to various points of the warehouse to store the tiles. The forklifts will also be required to take heavy orders to customers’ cars. It would be completely unrealistic to expect that forklift traffic could be confined to the interior of the respondent’s warehouse.

I also do not propose to severely restrict the hours during which the container bay can be used for unloading. The applicant requested that the containers be delivered only in the morning, and preferably before 9.00am. The respondent stated that whilst most containers are delivered early in the morning, there might be some occasions when something beyond the control of the respondent or his suppliers causes a delay. The respondent also pointed out that if the hours of use of the container bay were too restrictive, then it might impact on the resale value of his business.

I have given considerable thought to this issue as I regard my decision on the matter as having an impact on both parties. I have therefore decided that I shall restrict the respondent’s deliveries to between the hours of 6.00am and 5.00pm daily. This will allow the respondent to continue with his present supplier, but also provide some leeway if there is a delay at the wharves, or if a truck breaks down, or whatever. However, once a container arrives and the pallets of tiles are unloaded on to the area immediately adjacent to the container bay, I have ordered that all of the pallets must be removed and placed inside the warehouse within 60 minutes (this is based on the respondent’s evidence that unloading only takes 30 minutes, and allowing for some minor delays). The respondent must not obstruct other areas of the common property with pallets of tiles, or any of the other items previously complained of by the applicant. The steel ramp used to provide access for the forklifts into the container should only be moved onto the common property when a container is delivered, and should then be stored back inside the warehouse when the container has been unloaded. If two containers are due in quick succession (say within half an hour of each other), then I do not consider it unreasonable for the steel ramp to be placed up against the wall until the second container has been unloaded.

The respondent must also not permit truck or forklift repairs to take place on the common property, as this too is an obstruction. However, if a truck or a forklift has actually broken down on the common property and cannot be driven until some emergency short term repairs are carried out, then the respondent must take all reasonable steps to minimise any disruption to the applicant or other occupiers, and must ensure that the truck or forklift is removed to another area away from the common property as soon as practicable after the emergency repairs allow for the vehicle to be driven, failing which the vehicle should be towed.

I have not made any order in relation to the industrial bins. I accept that the developer has made no proper provision for the storage of such bins, of which there are several throughout the scheme. I note that the respondent will in future store his bin up near the container bay so that its presence does not impact on the car parking areas.

Number of Scheme:	29945
Name of Scheme:	Strathgate
Address of Scheme:	104 Gympie Road STRATHPINE QLD 4500

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Strathgate [2005] QBCCMCmr 46 (31 January 2005)