Stellmach Street Villa Units [2005] QBCCMCmr 539 (30 September 2005)

Last Updated: 19 July 2006

REFERENCE: 0388-2005

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	17581
Name of Scheme:	Stellmach Street Villa Units
Address of Scheme:	7 Stellmach Street EVERTON PARK QLD 4053

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Victor Wilson, a co-owner of Lot 9

I hereby order that the application for an order by Victor Wilson, a co-owner of Lot 9 seeking an outcome that the body corporate reinstate a safety garden rail on common property, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0388-2005

"Stellmach Street Villa Units" CTS 17581

APPLICATION

This application is by Victor Wilson, a co-owner of Lot 9 (applicant) against the body corporate (respondent). The applicant is seeking an outcome that a safety garden rail be reinstated.

JURISDICTION

"Stellmach Street Villa Units" Community Titles Scheme 17581 is a 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 body corporate was required by a workplace, health and safety report to repair a broken safety rail attached to Lot 9.
• Rather than repair the fence, the rail was dismantled completely without a vote from the body corporate. The fence can only be removed by resolution without dissent.
• There is now a safety hazard to all pedestrians walking on the common property landscaped area.
• The fence should be restored, but not attached to Lot 9 as the occupiers of Lot 9 need this peace of mind.

In accordance with the Act, submissions were called and a copy of the application was provided to the body corporate manager for distribution to the owner of each lot (excluding the applicant) and the committee. A submission was received from the committee and a number of lot owners. The applicant made a written reply to submissions under section 244 of the Act.

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

• The garden railing was discussed with other owners after the workplace health and safety report was issued and it was agreed to remove the railing which served no purpose and caused a hazard.
• The railing was removed approximately 3 years ago, and there have not been any reports of incidents or accidents.

The chairperson’s submission was supported by the owners of Lots 2, 3, 4 and 8 who also submitted that the railing had caused damage to at least 3 vehicles using the common property, and was an eyesore.

DETERMINATION

"Stellmach Street Villa Units" was registered as a building units plan on 11 January 1995. 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. Generally, the boundary on each Lot in a building format plan of subdivision 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). The plan of subdivision (BUP 101636) and the copy of a plan of the proposed town houses provided by the applicant indicate that the railing was located on common property for the scheme on the southern side of Lot 9. While I note that the body corporate has allocated parts of common property for the exclusive use and enjoyment of the owner of each lot in the scheme, the area on which the railing was positioned is a part of common property which has not been allocated by exclusive use by-law.

Section 35 of the Act provides that the lot owners own the common property as tenants in common. Section 94 and section 152 of the Act provide that the body corporate administers, manages and controls the common property. In fulfilling its functions and carrying out its duties under section 94 and section 152, body corporate must act reasonably and for the benefit of lot owners. The body corporate is responsible for maintaining common property in good condition (section 109(1), Standard Module).

In carrying out its legislative obligations, a body corporate is not prevented by the legislation from determining to remove a structure or fixture, such as the wooden railing from the common property. It would be incongruous to suggest that a body corporate with general management powers over common property was specifically constrained from doing anything other than maintaining the common property or the structures and fixtures on the common property which existed when the scheme was established. I do not agree with the applicant that a structure or fixture such as a wooden railing on common property could only be removed with the approval of the body corporate by resolution without dissent.

I do not consider that the removal of the railing is contrary to the Workplace Health and Safety Report by Strata Facility Services. The Report only recommended fixing the fence, and does not prevent the body corporate from deciding to remove the railing. However, the body corporate must ensure that any body corporate decision is made in accordance with the Act and the Standard Module. Therefore, even though a majority of lot owners may be known to agree on a particular issue, if the issue relates to a body corporate management issue, then there must be a record kept of the body corporate decision in accordance with the requirements of the Act and the Standard Module. While it could be argued that the body corporate did not make a proper decision with respect to the removal of the railing, I am satisfied, based on the submissions made to the application that a majority of lot owners are not agreeable to the railing being reinstated.

In my view, the opinion of the majority should have effect in an issue of this nature provided the opinion is reasonable and is for the benefit of lot owners. In my opinion, "for the benefit of lot owners" does not require that the body corporate must act for the benefit of all owners, nor does it mean that the body corporate act for the benefit of the majority of lot owners. It is conceivable that it may require the body corporate to act in a way that benefits a minority of lot owners, or even a single lot owner where on balance, the demonstrated inconvenience or disadvantage to the minority outweighs the inconvenience or disadvantage to the majority. For example, if the railing was shown to provide a particular benefit to a lot owner and neither its existence nor removal affects other lot owners, then the body corporate could be held to act in accordance with the wishes of the minority lot owner. The applicant states that the railing should be rebuilt as a safety hazard exists to all pedestrians walking on this part of the common property, and the owners of Lot 9 need peace of mind. The applicant has not provided any arguments to support a view that the railing provides safety to persons using common property. Rather, it has been submitted that no pedestrian incidents have been reported to the body corporate since the removal of the railing. It has also been submitted that the railing caused damage to vehicles using the common property and was an eyesore. I am not sure what peace of mind would be enjoyed by the owner of Lot 9 should the railing be reinstated. In my view, the applicant has not provided any credible argument to indicate that the railing provides a particular benefit to the owner of Lot 9, or to any other lot owner.

Given that the railing is on part of the common property which the body corporate is responsible to control, manage and administer, the body corporate is entitled to make decisions with respect to the maintenance, replacement and ultimately, the removal of the railing, provided the decision is reasonable and for the benefit of lot owners. In my view, the action of removing the railing was reasonable and for the benefit of lot owners.

For these reasons, I have dismissed the application.