Quarterdeck Noosa Waters [2005] QBCCMCmr 602 (2 November 2005)

Last Updated: 16 January 2006

REFERENCE: 0497-2005

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	24518
Name of Scheme:	Quarterdeck Noosa Waters
Address of Scheme:	Noosa

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

Nigel Royston Yorke and Frances Edith May Yorke, the co-owners of lot 5

I hereby order that the application for an order that the applicants have permission to place a table, seating and an umbrella in the common area adjacent to lot 5, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0497-2005

"Quarterdeck Noosa Waters" CTS 24518

ORDER SOUGHT

The applicants have sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) as follows:

Permission to have a table, seating and an umbrella in the common area adjacent to lot 5

JURISDICTION

The application evidences a dispute between the owner of a lot included in a community titles scheme and the body corporate for the scheme (section 227(1)(b) 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)).

SCHEME DETAILS

Quarterdeck Noosa Waters registered in a building unit plan of subdivision (now described as a building format plan) on 23 December 1997. The scheme comprises 8 lots and common property and is regulated by the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module).

BACKGROUND

The applicants explained that the body corporate committee had considered their request to place a table, chairs and an umbrella on the common property, but the request had been refused. The applicants claimed that the area in question is not used by any other owner, and stated that the area is not a throughway. The applicants also noted that doors from their lot open onto the area.

The applicants provided photographs of the area, as well as copies of relevant correspondence.

The body corporate committee and all owners were invited to respond to the application. Submissions were received from five of the remaining seven owners. Of those only one owner was supportive of the application. A submission was also received from the chairperson, on behalf of the body corporate committee. The committee also opposed the application. The majority view was that the common property should be available for use by everyone, and that it should not be cluttered or obstructed in any way.


DETERMINATION

Common property for a community titles scheme is owned by the owners of the lots included in the scheme, as tenants in common, in shares proportionate to the interest schedule lot entitlements of their respective lots, in this case, in equal shares (section 35(1) of the Act).

The body corporate is required to administer, manage and control the common property reasonably and for the benefit of all owners (section 152(1)(a) of the Act). The body corporate committee, as the administrative arm of the body corporate, carries out this function on a day to day basis.

All owners have an equal right to use and enjoy common property, but are also required to ensure that in doing so they do not obstruct common property (by-law 3) or cause a nuisance or hazard, or interfere unreasonably with the use or enjoyment of another lot included in the scheme or interfere unreasonably with the use or enjoyment of the common property by a person who is lawfully on the common property (section 167 of the Act).

It is my view that a reasonable use of common property would include occasions when owners might temporarily place appropriate items such as chairs on common property to enhance their enjoyment of it, for example to sit and read, or have lunch, or a drink, or whatever. However, in order to ensure that the common property was not obstructed the items could not be allowed to remain if they were not actually being used. Furthermore, even whilst in use the items could not obstruct other owners’ use and enjoyment of the common property, or damage the common property. Owners would also need to ensure that if chairs were placed on the common property lawn they did not cause damage to the lawn (by-law 4).

In the event that any owner wished to have an area of common property allocated to their exclusive use, the appropriate motion, including the consent of the body corporate to the recording of the new community management statement, would need to be passed as a resolution without dissent at a general meeting, and then the new community management statement would need to be recorded in the Titles Office.

The applicants stated in their supporting grounds "if there is a precedent with this type of request (to have the table, seating and an umbrella on common property) may we also request exclusive use of this courtyard/common area." In earlier correspondence on 7 April 2005 to the body corporate manager, however, the applicants stated that "at this stage we can’t afford to proceed with ‘exclusive use’".

Should the applicants choose to do so, they can propose a motion seeking a grant of exclusive use, and such a motion may be submitted to the secretary at any time. The motion must then be placed on the agenda of the next general meeting, although in order for the motion to be placed on the agenda of the next annual general meeting it must have been submitted to the secretary prior to the end of the scheme’s financial year (section 41 of the Standard Module).

If the motion were then to be passed by resolution without dissent, the applicants would be responsible for the cost of preparation of the survey plan depicting the area of exclusive use, the cost of preparation of the new community management statement incorporating the relevant by-law granting the exclusive use, and the cost of recording the community management statement in the Titles Office.

I do not intend to make an order in the terms requested by the applicants, because as I understand their material, they wish to have the table, chairs and umbrella remain on the common property area even when not in use. I consider that this would more appropriately reflect an exclusive use of the area.

I have dismissed the application.