The Decks [2005] QBCCMCmr 83 (15 February 2005)

Last Updated: 5 July 2005

REFERENCE: 0809-2004

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	6742
Name of Scheme:	The Decks
Address of Scheme:	6 Breaker Street MAIN BEACH QLD 4217

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

David Arthur LISSENDEN, as an occupier of Lot 7,

I hereby order that Mia Markey, the owner of Lot 6, must not place "washing, bedding, or another cloth article if the article is visible from another lot or the common property, or from outside the scheme land" on her lot, or allow others to dos so, in breach of By-law 8(3) of the body corporate by-laws.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0809-2004

"The Decks" CTS 6742

The applicant, David Lissenden of Lot 7, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 ("the Act") -

"An order requiring the owner and occupiers of Unit No. 6 to conform to By-law 8(3) as outlined in File 569-2004 and BCCM1 (Version 3) dated 14.11.04".

JURISDICTION:
This is a dispute between an occupier of a lot (the applicant Lissenden) and an owner (the respondent owner of Lot 6 Mia MARKEY) concerning the alleged breach of a body corporate by-law by the drying of clothing and other items on the lot balcony in view of the applicant and others using his lot. This is a matter that falls within the dispute resolution provisions of the legislation (see sections 227, 228 and 276 of the Act) and may be determined by a departmental adjudicator.

For an application by an owner or applicant concerning a breach of the by-laws to proceed, section 185(2)(a) of the Act provides –

185 Preliminary procedure for application by owner and occupier for
resolution of dispute
(1) This section applies if--

(a) a dispute exists between the owner or occupier of a lot included in a community titles scheme (the "complainant") and the owner or occupier of another lot included in the scheme (the "accused person"); and
(b) the dispute arises because the complainant reasonably believes that--

(i) the accused person has contravened a provision of the by-laws for the scheme; and
(ii) the circumstances of the contravention make it likely the contravention will continue or be repeated.

(2) The complainant may make an application under chapter 6 for resolution of the dispute only if--

(a) the complainant has, in the approved form, asked the body corporate to give the accused person a contravention notice for the contravention the subject of the dispute; and
(b) the body corporate does not advise the complainant, as required under section 182(3) or 183(3), that the contravention notice has been given to the accused person.

There are certain exceptions to the requirement set out in section 186 however the are not relevant here.

The applicant has met the above requirements (see under heading "Application and Submissions").

General powers of an Adjudicator in making an order:
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 this 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) of the Act). An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 284(1) of the Act).


APPLICATION AND SUBMISSIONS:
In accordance with section 243 of the Act, a copy of the application was provided to the respondent Markey, the body corporate (committee) and the owners of other lots, with an invitation to each to respond to the matters of dispute raised in the application. No submission was received from the respondent, the committee or any other owner. The applicants had requested they view any submissions in order to consider a reply (see sections 244 and 246 of the Act).

This is the second application by Lissenden for the same dispute, the former, Application 569-2004, having been rejected by the Commissioner because no Form 1 had been served on the body corporate seeking enforcement of the by-law against Markey. The applicant has since served a Form 1 dated 14 November 2004 on the body corporate for enforcement of By-law 8(3) against Markey which provides –

"By-law 8(3) Appearance of/Alteration to Lot.
The occupier of a lot must not, without the body corporate’s written approval, hang washing, bedding, or another cloth article if the article is visible from another lot or the common property, or from outside the scheme land."

The applicant states in the notice that he has lodged previous complaints with the Committee on the matter and Markey continued to leave towels and sheets visibly on his lot. In his grounds to the application, Lissenden gives particulars of occasions when items have been left on the backs of chairs on the balcony to dry, sometimes the same item is left out for a number of days. He has enclosed photographs taken from his lot balcony, from the common property and from outside the scheme, showing that the drying items are visible from these locations in breach of the by-law.


DETERMINATION:
"The Decks" was registered as a building units plan (now termed a building format plan) on 2 August 1988 and comprises 12 lots. It is regulated by the Body Corporate and Community Management (Standard Module) Regulation 1997 ("the Standard Module").

Section 59(2) of the Act provides that each member of the body corporate, registered proprietor and occupier of a lot (and others) is bound by the community management statement ("CMS") of the body corporate. Subsection 59(3) states that the binding nature of the CMS is as effective as if those bound had signed the statement under seal. Section 66(1)(e) of the Act requires that the body corporate’s by-laws must be contained in its CMS (unless they are the statutory by-laws contained in schedule 4 to the Act). The current community management statement for "The Decks" was recorded on 16 November 1999 and includes in its by-laws By-law 8(3) relied on by the applicant.

Section 169(1)(b)(i) of the Act provides that a body corporate may make by-laws for the "regulation of, including conditions applying to, the use and enjoyment of lots included in the scheme" This is a wide by-law making power available to the body corporate and would include a by-law regulating the placement of "washing, bedding, or another cloth article if the article is visible from another lot or the common property, or from outside the scheme land."

Accordingly, assuming the body corporate has not given Markey its written approval under the by-law, she is in breach of the by-law in placing towels and sheets, both of which come within the meaning of the genre of articles specified, on the lot, namely the balcony, so as to be visible from another lot, the common property and outside the scheme, as the photographs confirm.

Neither the committee nor the respondent Markey, who I understand is a committee member, has made a submission to the application rejecting the breach because of an existing approval. As they have not rebutted the assumption then I must take it that no approval exists.

Therefore the respondent is in breach and I have made my order accordingly. If the respondent does not comply then the applicant may take an action in the Magistrate’s Court against her (see section 288 of the Act).

Having determined the matter, I would remark that this is a trivial matter that should have been resolved between the parties either alone or through mediation with a trained mediator, rather than by adjudication. The Commissioner determined that this dispute should be resolved in this way and referred the parties to the Dispute Resolution centre of the department of Justice and Attorney-General, however it did not proceed as the applicant rejected mediation. Had the articles been less visible I may well have dismissed the application as having no substance to require adjudication. I might add that impending amendments to the legislation will require that such matters as this must be mediated and only adjudicated where appropriate. Perhaps the respondent could find an area of balcony where articles will not be visible.