Chaplin Place [2005] QBCCMCmr 739 (1 April 2005)

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 This order will automatically lapse upon a final order being made or this application being withdrawn.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

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).

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

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Chaplin Place [2005] QBCCMCmr 739 (1 April 2005)