Freemans Lodge [2005] QBCCMCmr 519 (20 September 2005)

Last Updated: 19 July 2006

REFERENCE: 0354-2005

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	9965
Name of Scheme:	Freemans Lodge
Address of Scheme:	57 Cleary Street TOOWOOMBA QLD 4350

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Christine Hicks, the occupier of Lot 3

I hereby order that Allan Parker, the owner of Lot 4 must immediately remove the garbage bin or garbage bins belonging to Lot 4 from the common property area adjacent to Lot 3 and keep the bin or bins belonging to Lot 4 in accordance with the terms of this order and otherwise in accordance with the "Garbage disposal" By-Law for the scheme. I further order that the Allan Parker, the owner of Lot 4 is deemed to have body corporate authority for a period of two months from the date of this order to keep a garbage bin or garbage bins on the common property for the scheme provided the placement of the bin or bins is not adjacent to Lot 3, and does not otherwise adversely affect the health, hygiene and comfort of the owner or occupier of any lot in the scheme or in anyway contravenes section 167 of the Body Corporate and Community Management Act 1997.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0354-2005

"Freemans Lodge" CTS 9965

APPLICATION

This application is by Christine Hicks, the occupier of Lot 3 (Applicant) against Allan Parker, the owner of Lot 4 (Respondent). The Applicant is seeking the following outcomes, quote:

The outcome I seek is for formal instruction to be provided to Mr Parker to remove his wheelie bin away from my front door to an area that does pose a risk to health and safety and does not intrude on my peace and comfort

I also seek that the Toowoomba Strata Title Management be informed of their responsibilities to ensure that my needs are being met and that as an occupier, my needs are of equal importance to those of Mr Parker as an owner/occupier.

JURISDICTION

"Freemans Lodge" Community Titles Scheme 9965 is a six lot scheme under the Body Corporate and Community Management Act 1997 (Act) and the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard 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

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

• The Respondent keeps the garbage bin for his Lot on the footpath near the entrance to Lot 3. The Applicant provided a photograph showing the proximity of the bin to the front door of Lot 3.
• The smells from the bin waft into Lot 3 causing the Applicant to keep the door to the Lot closed which affects her use of the Lot as it restricts the airflow through the Lot.
• The Respondent had moved the bin on request of the Applicant, but the bin is now being kept near Lot 3.

In accordance with the Act, submissions were called and a copy of the application was provided to the Respondent, and the body corporate secretary for distribution to the owner of each lot. A submission was received from the Respondent and the body corporate manager

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

• The garbage bin for Lot 4 has been kept in front of the Lot on the grassed area against the northern wall of the carport for 5 years without complaint.
• After receiving a hand written note (presumably from the Applicant) requesting that the bin be moved, the bin was placed in the carport of Unit 2.
• The Respondent’s father moved the bin back to the original position.
• After an incident with the Applicant, the bin was placed in front of Lot 4 which is consistent with the placement of the bins for Lots 2 and 3.

DETERMINATION

"Freemans Lodge" was established by the registration of Building Units Plan 5230 on 26 January 1983. With the commencement of the Act on 13 July 1997, a building units plan is now classified as a building format plan of subdivision under the Land Title Act 1994. A building format plan "defines land using the structural elements of a building, including, for example, floors, walls and ceilings". Structural elements "of a building, includes projections of, and references to, structural elements of the building" (section 48C, Land Title Act 1994). Section 49C of the Land Titles Act 1994 provides that "except to the extent permitted under directions of the registrar about the required format for a building format plan of subdivision, the boundary of a lot created under the plan, and separated from another lot or common property by a floor, wall or ceiling, must be located at the centre of the floor, wall or ceiling". The plan of subdivision shows Lots 1 to 6. Generally, the boundary on each Lot is the centre of the floor, wall or ceiling. The parts of scheme land which are not part of the Lots included in the scheme are common property (for example, the roof, the outside walls of each building, and the land surrounding the building).

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 or occupier does not have a right to use common property for that person’s own benefit without body corporate authorisation in accordance with the Act, or in accordance with a by-law for the scheme.

The by-laws form part of the community management statement (CMS) for the scheme, and under section 59 of the Act, the CMS is binding on the body corporate, each member of the body corporate and on each person who is otherwise an occupier of a lot in the scheme. The By-Laws for the scheme include the by-laws in the Third Schedule of the Building Units and Group Titles Act 1980 and the by-laws which have been recorded by the Registrar of Titles, Department of Natural Resources and Mines. The By-law which is relevant to this dispute is, quote:

10 Garbage disposal
A proprietor or occupier of a lot shall--
(a) save where the body corporate provides some other means of disposal of garbage, maintain within his or her lot, or on such part of the common property as may be authorised by the body corporate, in clean and dry condition and adequately covered, a receptacle for garbage;
(b) comply with all local government local laws and ordinances relating to the disposal of garbage;
(c) ensure that the health, hygiene and comfort of the proprietor or occupier of any other lot is not adversely affected by his or her disposal of garbage.

The common property for the scheme includes the area outside Lots 3 and 4 on which it is claimed that the Respondent is placing the garbage bin. The Respondent has not shown that the body corporate has authorised the use of this area in accordance with By-Law 10. Further, the Applicant claims that her use and enjoyment of Lot 3 is being interfered with by the position of the bin.

It is a function of a body corporate under section 94(1) of the Act to enforce the CMS, including any by-laws for the scheme. Under section 94(2), the body corporate must act reasonably in enforcing its by-laws. Sections 182 to 188 of the Act make provision for the enforcement of body corporate by-laws by the body corporate and by individual lot owners and occupiers. Section 185 of the Act requires a complainant (in this case, the occupier of Lot 3) to give the body corporate notification in the approved form of a dispute which has arisen with another lot owner or occupier. The complainant can only proceed to dispute resolution if the body corporate does not give notice pursuant to either section 182 or section 183 of the Act. It is apparent that the Applicant did not give the required notice to the body corporate claiming a contravention of By-law 10, and it would seem that the body corporate has not given a by-law contravention notice to the Respondent. Given the circumstances of this dispute, the body corporate (either in general meeting or through its committee) could have initiated processes to seek resolution of this matter by requiring compliance with the By-Law.

Despite the lack of technical compliance with the by-law enforcement provisions of the Act, I have made an order against the Respondent as I am satisfied that a garbage bin belonging to Lot 4 is being kept on the common property without authorisation from the body corporate in accordance with the By-Law. Further, even though the Respondent claims that he does keep the garbage bin clean, I am satisfied that the location of the bin on the common property could reasonably cause a breach of section 167(b) of the Act. For these reasons, I have ordered that the Respondent must remove the garbage bin from its present location. The Applicant telephoned this office on 20 June 2005 and advised a staff member that there are now two bins belonging to Lot 4 being kept near the door to Lot 3. Consequently, my order relates to any garbage bin being kept by the Respondent.

However, I am mindful that the Respondent may not be able to reasonably keep the bin/s on his lot. Therefore, I have also ordered that the Respondent is deemed to have body corporate authority for a period of two months to keep a bin/s on the common property provided the placement of the bin/s is not near Lot 3, and does not otherwise adversely affect the health, hygiene and comfort of the owner or occupier of any other lot in the scheme; or in anyway contravenes section 167 of the Act. I consider that it is just and equitable to allow the Respondent the two month period as:

1. The Respondent has submitted that the occupiers of other lots in the scheme are similarly keeping garbage bins on the common property. If this is the case, then I would expect that the body corporate enforces the By-Law against the relevant owners or occupiers so that the By-Law is applied equally.
2. The body corporate may consider making a decision in accordance with the By-Law with respect to allocating an area of common property for the placement of bins. If the body corporate is considering a specific location for the placement of bins, it must consider the possible effects that location may have on the occupation and use of a lot in the scheme or of the common property. For example, the body corporate must ensure that the location of the bins will not have an adverse impact on the use of the lot or common property (for instance, smells emanating from the bins or noise associated with occupiers using or moving the bins).