Rivers on the Park [2006] QBCCMCmr 1 (3 January 2006)

Last Updated: 19 July 2006

REFERENCE: 0738-2005

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	32112
Name of Scheme:	Rivers on the Park
Address of Scheme:	8 Land Street, Toowong Qld 4066

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

The Body Corporate for Rivers on the Park.

I hereby order that the period in which the Body Corporate for Rivers on the Park can lodge a request to record a new community management statement showing all authorised allocations made in accordance with by-law 40 of the scheme, as specified in section 175(3) of the Body Corporate and Community Management Act 1997, is extended to 3 months from the date of this order.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0738-2005

"Rivers on the Park" CTS 32112

Application

Rivers on the Park Community Titles Scheme is a 121 lot scheme under the Body Corporate and Community Management Act (Act) and the Act’s Accommodation Module Regulation (Accommodation Module).

This application is made by the body corporate, seeking an order for the lodgement of a new community management statement for the scheme. The reason provided for this is that the body corporate wishes to lodge a new community management statement which will include detailed plans of the exclusive use allocations for the complex. While an adjudicator’s order is not normally necessary, the body corporate advises that due to an oversight, the time has now passed within which the body corporate is able to lodge this statement and therefore an adjudicator’s order is required.

Background

The scheme was established on 9 January 2004, and therefore the base allocation period under section 174(2) of the Act expired on 9 January 2005. During the base allocation period the original owner notified the body corporate of the authorised exclusive use allocations in accordance with By-law 40 of the scheme By-laws.

The applicant states that a new Community Management Statement (the first subsequent statement referred to in section 175(1)) has been prepared but owing to an oversight, was not lodged with the department of Natural Resources within 3 months after the end of the base allocation period. The three month period referred to above expired on 9 April 2005.

Jurisdiction

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)).


Decision

The Act makes provision for exclusive use by-laws (Act, 170). Exclusive use by-laws typically specifically identify the area of common property that relates to each lot. However, in the first community management statement, exclusive use by-laws often simply provide a manner for allocating or agreeing on exclusive use areas. Subsequent community management statements can then specifically identify the exclusive use area that has been allocated or agreed for the benefit of each lot.

Under the terms of by-law 40 these areas were to be allocated within a period of twelve months from the recording of the first community management statement for the scheme. There is no suggestion that this was not done. However, the Act requires that after allocations are made they must be notified to the body corporate and recorded under a new community management statement. In this instance, the time limit for lodging this new community management statement has expired (Act, 175(3)). In the circumstances, I consider it appropriate to grant the order sought.