Chaplin Place [2005] QBCCMCmr 57 (2 February 2005)

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

I hereby order that the body corporate is not to install speed bumps within the scheme pending consideration of alternative proposals at the upcoming annual general meeting of 28 February 2005 and pending a final determination in respect of this dispute.

I further order that an owner is deemed not to have owed any amount associated with the special levy to install speed bumps at the time of making any nomination for membership of the committee provided they have fully paid all amounts associated with the special levy on or before 23 February 2005. Otherwise, the nomination is to be declared void at the annual general meeting even if the person received sufficient votes to be elected.

I further order that, within seven days, the body corporate is to send a copy of this order and reasons for decision to all owners.

This is an interim order and will remain in effect for a period of not longer than three months. It is the responsibility of the applicants to apply to extend this order if no final determination has been made within that period. This order will automatically lapse upon a final order being made or this application being withdrawn.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0450-2004

"Chaplin Place" CTS 20781

Chaplin Place Community Titles Scheme (Chaplin Place) is a 21 lot scheme under the Body Corporate and Community Management Act (Act) and the Act’s Standard Module Regulation (Standard Module).

This is an application for interim orders. It arises out of an application by Douglas and Marlene Loveday, owners of lot 34 (applicants) seeking orders against the body corporate for Chaplin Place (respondent).

The applicants say that the installation of speed bumps would adversely impact their business which involves the distribution and transportation of glass. They say that, in the context of the damage it will do to the applicants’ business, it is unreasonable for the body corporate to vote to install speed bumps without proper consideration of alternative methods of controlling traffic.

The applicant’s submissions are that the installation of speed bumps would affect them by:

The applicants say that speeding in the complex by occupiers is not the major concern. Rather, they say that the main concern is hoons coming onto the scheme at nights and on the weekends. The applicants argue that appropriate alternatives to speed bumps would be the installation of gates or the installation of some other traffic calming device.

Other owners and the committee have also provided submissions. The majority of these submissions express concern about vehicles driving too fast on scheme land. In particular, the submission on behalf of the committee says that the owner of one of the businesses is the president of a club called "The Streeters Club" which is associated with fast cars and drag racing. It is submitted that this club convenes approximately monthly meetings on the complex and that members in this club drive excessively fast and perform burnouts on scheme land.

An interim order will not be granted unless is it necessary due to the nature or urgency of the circumstances to which the application relates (Act, 279). Further, any orders granted must be just and equitable in the circumstances (Act, 276).

The applicant is seeking orders of an injunctive nature designed to prevent the body corporate installing speed bumps until a final determination can be made regarding whether speed bumps should be allowed. For it to be just and equitable to grant relief at this stage, before full and final consideration of all the issues raised, I would need to be satisfied that the application raises a serious question to be determined. I would also need to be satisfied that the balance of convenience between the parties justifies the grant of injunctive relief. That is, I would need to balance the inconvenience to the body corporate of stopping installation of speed bumps against the inconvenience to the applicants of allowing installation to continue and waiting until the final determination to grant any necessary orders.

The applicants have provided evidence that their business would suffer substantial detriment if speed bumps were installed. The applicants have said that the speed bumps were initially proposed to stop hoons using scheme land on nights and weekends. They say that there are no real safety concerns about occupiers driving on scheme land in business hours and that the body corporate could address the problem of hoons by installing a remote controlled gate.

If the applicants can establish that they would suffer some special damage as a result of installation of speed bumps and that there is a reasonable alternative that would address the concerns of owners then they may be able to establish that the decision of the body corporate to install speed bumps is unreasonable in the circumstances. There is therefore a serious question to be determined in respect of the application for final orders to stop the installation of speed bumps.

The applicants have established that there is a serious question to be determined regarding whether the body corporate has unreasonably decided to install speed bumps. However, to gain an interim order the applicants will also need to establish that the balance of convenience favours preventing the installation of speed bumps pending the final determination.

Some owners appear to be under the misapprehension that this office has already granted an interim order preventing the installation of speed bumps. In actual fact, the applicants provided a request to the committee that the committee refrain from installing speed bumps and the committee has voluntarily acceded to this request. The applicants have used this time to investigate alternative ways of controlling traffic and to put forward an alternative at the upcoming annual general meeting of the body corporate on 28 February 2005.

Ordinarily, it would seem logical to grant an interim order to prevent the installation of speed bumps pending a final determination of whether that installation can proceed. This would avoid money being wasted on the installation of speed bumps in the face of a possibility that a final order will be made requiring those speed bumps to be removed. However, I have some reluctance in making an order that will postpone the installation of speed bumps given submissions to the effect that speed bumps would be beneficial in improving personal safety in the scheme.

On balance, I have decided to grant an interim order prohibiting the installation of speed bumps for a short period of time in order to give the body corporate an opportunity to consider alternatives at its annual general meeting of 28 February 2005. I note that a significant period of time has already elapsed since the installation of speed bumps was first proposed and I note that the installation of speed bumps is alleged to have potentially very serious consequences for the business of the applicants.

The other issue is whether the requirement to pay the special levy should also be put on hold pending a final determination of the dispute. The chairperson has submitted that the body corporate never agreed to place the special levy on hold and that this was clearly stated in a letter to owners dated 18 October 2004. He also says that 15 of the 17 owners have already paid the levy. The amount of the special levy is not very high at an average of around $150 per lot (plus any late payment penalty) and it appears that funds will be needed regardless of whether the body corporate is to proceed with installing speed bumps or with an alternative proposal.

In these circumstances, I will not make any order placing the payment of the special levy on hold. However, I note that some owners have expressed confusion regarding whether the levy was on hold and concern that they will be unable to vote or nominate for committee membership if they have not paid the levy. The legislation provides that a person cannot nominate for committee membership or exercise a vote for a particular lot if they owe a body corporate debt (Standard Module 10, 49A). Given the confusion, I consider it appropriate to make an order that any committee nominations are not invalid on the basis of the special levy being unpaid provided all amounts associated with that levy are paid within three weeks. I will therefore make an order that an owner is deemed not to have owed any amount associated with the special levy to install speed bumps provided they have fully paid all amounts associated with the special levy within three weeks of the date of this order.

If owners wish to ensure that any nominations were valid and that they have a right to exercise their vote at the upcoming annual general meeting then owners must ensure they pay all amounts due to the body corporate.

For these reasons, I make the interim order above.

The application will be allowed to proceed to submissions and a final determination in the normal course.

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

I hereby order that the body corporate must not install any speed bumps unless it has been provided with a written assurance from a person in the business of supplying or installing speed bumps to the effect that:

1. the particular type of speed bumps to be installed meet Australian Standards; and
2. in respect of vehicles driving at slow speeds over the bumps, that the particular type of speed bumps will not adversely affect loads being carried (including glass) to a greater extent than other speed bumps commonly installed in a similar type of situation.

I further order that if the committee calls, or is required by the owners of at least 25% of lots to call, an extraordinary general meeting to vote on a motion putting forward quotations for alternative type of speed bumps then the body corporate is not to install speed bumps within the scheme pending the outcome of that meeting.

I further order that this interim order replaces and cancels the interim orders made on 2 February 2005 in respect of this application.

This is an interim order and will remain in effect for a period of not longer than six months. It is the responsibility of the applicants to apply to extend this order if no final determination has been made within that period. This order will automatically lapse upon a final order being made or this application being withdrawn.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0450-2004A

"Chaplin Place" CTS 20781

On 22 June 2004 the body corporate passed special resolutions to approve the installation of speed bumps in the scheme and to raise a special levy for this purpose. The applicants subsequently, on 14 July 2004, lodged an application seeking interim orders to stay these resolutions and seeking final orders that these resolutions be invalidated. At that time, the body corporate refrained from pursuing installation of the speed bumps to give all owners the opportunity to consider alternatives at its annual general meeting of 28 February 2005.

On 2 February 2005, shortly prior to the annual general meeting of 28 February 2005, I granted an interim order to deal with issues relating to the levy for installation of the proposed speed bumps and to prevent the installation of speed bumps pending the outcome of the annual general meeting and a final determination of the dispute.

The applicants failed to gain sufficient support to pass their motion proposing to reverse the body corporate’s earlier decision to install speed bumps. After this meeting, further submissions were received by this office to the effect that installation of the speed bumps was necessary for safety reasons and that the installation should now proceed. However, other submissions continued to oppose the installation of speed bumps. In particular, the applicants made submissions to the effect that the particular type of speed bumps that the body corporate proposes will jar loads much more severely than speed bumps or other traffic calming devices commonly found on public roads or in other places.

Due to the outcome of the annual general meeting, I considered it appropriate to reconsider the interim orders previously granted. I requested technical details from the body corporate of the type of speed bump proposed to be installed and held a teleconference with one of the applicants, the chairperson, and some of the other affected persons in order to discuss the issues raised.

At the teleconference the chairperson advised that the body corporate proposed installation of speed bumps having a rounded top 75mm high and a 400mm wide base. He said that a common alternative would be a speed bump of the same height but with a one metre wide flat top. However, he said that the body corporate had not proposed installation of this type of speed bump as it was significantly more expensive.

When questioned about these different types of speed bumps the applicants conceded that they are able to safely carry glass over speed bumps and similar traffic calming devices but said that the particular type of speed bumps proposed by the body corporate produced a sharp jarring motion that would dissuade other glass companies from bringing glass to the applicants’ premises.

Other owners also made submissions. One of these owners made detailed submissions about persons speeding on the premises and submitted that speed bumps were necessary for safety reasons. These submissions included detailed allegations that he had seen another owner driving at approximately one hundred kilometres per hour on the premises. This other owner conceded that he had driven at about eighty kilometres per hour on the premises, and that other unidentified persons had also driven at similar speeds on the scheme. However, this owner said that he did not drive at those speeds during business hours and that it was not a safety issue. This owner submitted that greater safety concerns were posed by couriers driving excessively fast on the premises, that couriers would probably drive almost as quickly over speed bumps and that a better way to deal with this concern would be to erect large signs telling people to slow down.

There were also submissions to the effect that speed bumps would create inconvenience for a number of owners, including difficulties with a present arrangement of sharing use of a forklift and difficulties with having to load custom vehicles with low clearance onto trailers in order to move them to the other end of the scheme.

The body corporate must administer common property reasonably and for the benefit of lot owners (Act, 152). However, this does not mean that every action must benefit all owners. Rather, it requires a balancing of the extent to which the proposed course of action will be to the benefit or detriment of different owners.

There will be circumstances when actions for the benefit of the majority will have to be followed even though it will mean an inconvenience or even a disadvantage to other owners. However, there are other situations where the duty protects a minority. For example, in a residential complex ninety-nine of one hundred owners may wish to construct a barbecue setting on the common property to be located under the window of the remaining owners. Even though a great majority of owners favour the action it may be that the remaining owner suffers such a particular and special detriment that the proposed actions of the body corporate will be overruled as being unreasonable. For example, noise, smoke and smell from the barbecue located under that owners’ window may amount to unreasonable interference with the enjoyment of that owner’s lot. Each matter should therefore be looked at in its particular circumstances and the most equitable action taken in the interests of all owners.

In this situation, it seems clear that speed bumps will result in inconvenience to some owners. On the other hand, the majority of owners support the installation of speed bumps and the safety concerns appear to outweigh the inconvenience that will be suffered by some owners.

The sum of the evidence provided by the applicants does not provide a legal basis to justify intervention by an adjudicator to prevent the body corporate installing the speed bumps as proposed. It is claimed that the proposed speed bumps will meet Australian Standards and will be safely traversable by trucks carrying glass and these claims are persuasive. In respect of other owners, the inconvenience of having to load custom vehicles onto trailers to transport them to the other end of the scheme appears to be outweighed by safety concerns about people driving too fast within the scheme.

The continuing concern that I do have is whether the particular type of speed bumps proposed will severely disadvantage the applicants’ business when it would be possible for the body corporate to install a different type of speed bump that will merely inconvenience the applicants. If this is the case it may well be unreasonable and contrary to the legislation for the body corporate to proceed with installing the proposed speed bumps simply because they are cheaper than the alternative type of speed bumps. For example, the proposed speed bumps may require trucks carrying glass to virtually stop in order to safely traverse the speed bumps but another common type of speed bump may be able to be safely traversed by a truck travelling slowly.

I will therefore make a further interim order to the effect that the body corporate must not install any speed bumps unless it has been provided with a written assurance that the speed bumps meet Australian Standards and will not adversely affect loads being carried (including glass) to a greater extent than other speed bumps commonly installed in a similar type of situation.

I also note that a number of owners, including the chairperson, indicated that they would like the opportunity to call another general meeting to consider alternative types of speed bumps. I will therefore make an order that if this meeting is called then the current proposal to install speed bumps should not proceed pending the outcome of that meeting.

Finally, if the applicants or other affected persons do obtain information indicating that there is an alternative type of speed bump that would reasonably address the concerns of other owners but would provide significantly less inconvenience in the conduct of their business then they are entitled to provide that information to this office and seek further orders relating to whether it would be unreasonable for the body corporate to install certain types of speed bump.

Number of Scheme:	20781
Name of Scheme:	Chaplin Place
Address of Scheme:	106 Sugar Road MAROOCHYDORE QLD 4558

Number of Scheme:	20781
Name of Scheme:	Chaplin Place
Address of Scheme:	106 Sugar Road MAROOCHYDORE QLD 4558

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Chaplin Place [2005] QBCCMCmr 57 (2 February 2005)