Federation Park [2006] QBCCMCmr 265 (26 May 2006)

Last Updated: 19 December 2006

REFERENCE: 0026-2006

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	30544
Name of Scheme:	Federation Park
Address of Scheme:	9 Harpulia Creek MORAYFIELD QLD 4506

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

Peter Allan Hamilton & Eileen Belinda Meyer as trustees, the Owners of lot 21

I hereby order that the application for an order that: 1) The body corporate forthwith cause the steel bollards which it has had erected across the access to the garage ... to be removed. 2) The body corporate be retrained from interfering, whether by itself its servants or agents or by any means whatsoever with the access across the common property to the garage 3) The body corporate pay the applicants’ costs of and incidental to this application. is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0026-2006

"Federation Park" CTS 30544

ORDERS SOUGHT

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

1) The body corporate forthwith cause the steel bollards which it has had erected across the access to the garage ... to be removed.
2) The body corporate be retrained from interfering, whether by itself its servants or agents or by any means whatsoever with the access across the common property to the garage
3) The body corporate pay the applicants’ costs of and incidental to this application.

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

Federation Park is a community titles scheme comprising 42 lots and common property. The scheme was established upon registration of the standard format plan and is regulated by the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module).

BACKGROUND

The applicants stated that the scheme was developed by them, trading as KPE Developments, as trustees. They explained that the scheme consists of free-standing dwelling houses together with common property on which various communal facilities are constructed. They stated that in the planning stage, it was intended that a full time caretaker be appointed to manage the common property and to that end a garage was constructed at the rear of the dwelling to provide storage space for caretaking equipment as well as for a vehicle, allowing easier access to the common property. The applicants further stated that to facilitate access to the garage, a concrete driveway was constructed over the common property. Access was then available through a visitor’s car park and on to one of the roads within the scheme.

The body corporate resolved on 28 September 2005 to erect steel bollards at the end of the concrete driveway to prevent access to the garage. The applicants’ then tenants subsequently vacated the property.

A teleconference with the parties’ solicitors was held on 11 January 2006, after which the applicants advised that the property had been re-let, at a reduced rental, to friends. The applicants reiterated that the slope of the front driveway makes it almost impossible for a normal vehicle to ascend. The applicants enclosed several photographs depicting the alleged problem.

The body corporate committee was invited to respond to the application. A submission was received from the committee in which the following points were made:

• The development approval for the scheme land did not contemplate that the applicants’ lot would have vehicular access to the rear of the lot
• There is a garage in the dwelling on the lot which is able to be accessed from the front of the lot
• The building at the rear of the lot was intended to be a storage shed and not a garage
• The driveway was not built as part of the original development
• The use of the shed as a garage creates safety problems with the two visitor car parks as well as with the adjacent rubbish bin area
• The body corporate has a duty to make and keep the common property safe
• The Caboolture Shire Council town plan does not allow for the shed to be used to store vehicles
• The use of the shed is not to compromise the use of the visitor car parks

The applicants obtained a copy of the committee’s submission, and exercised their right of reply. They summarised their position as follows:

• The body corporate’s action in erecting the steel bollards has unreasonably restricted the applicants’ use of the common property in the manner in which it has been used for some significant time, without any identified detriment to the scheme.
• The applicants also contended that the reasonableness or otherwise of the body corporate’s conduct had to be viewed in the context of the relevant circumstances including:

o The previous use of the access to lot 21
o The applicants’ intention as developers that such access should exist
o The detriment to lot 21 of the access being stopped
o The lack of any problems in the past from using the access and the absence of any health and safety problems
o The construction of the driveway giving effect to the access
o The lack of any valid reason for restricting access

DETERMINATION

The body corporate has a general obligation to administer manage and control the common property and body corporate assets reasonably and for the benefit of lot owners (section 152(1)(a) of the Act).

The applicants complain that the body corporate has breached this obligation by erecting the steel bollards, thereby denying access over the common property to the garage at the rear of their lot.

However, the concrete driveway was installed on common property by the applicants without obtaining requisite body corporate approval (section 114 of the Standard Module). It is immaterial, in my view, that the applicants, as developers, intended that there be access to the rear of the lot. Once the scheme was established, upon registration of the plan in the Titles Office, the applicants, as all other owners, became subject to the provisions of the Act and the Standard Module.

Furthermore, the Caboolture Shire Council stated in its letter dated 2 February 2006 to the body corporate (attachment 3 to the committee’s submission):

• Access to the garage on Unit 21 across the common recreation area requires the consent of the body corporate for the estate. Body corporate consent has not been granted.
• The concrete access across the common recreation area has been constructed by a single entity without the consent of the body corporate.
• The access compromises the provision of two visitor parking spaces situated between Units 38 and 39. This is in contravention of the town planning development for the estate.
• The garage/shed on Unit 21 has not been completed, as it failed a final inspection.

I have also perused the photographs provided by the applicants. These depict a Holden utility purportedly attempting to drive up the driveway with the front of the vehicle scraping on the driveway. In my view if the vehicle approached the driveway from the left hand side instead of from the right hand side these difficulties should be avoided. I appreciate that the entrance gates leading to the scheme from Harpulia Court are on the right hand side of the driveway (if viewed from the common property at the bottom of lot 21) and that it is not an ideal situation for a vehicle to have to drive through the gates onto the common property and then effectively turn around to get a better angle of approach, but if that is what is needed to ensure that a vehicle can in fact access the garage at the front of the property I would have thought it was a small inconvenience. It also seems to me that as the applicants were the developers of the scheme, these problems should have been addressed at the time that the driveway was being installed.

In any event, it does not persuade me that the applicants should be permitted to access the rear of the lot unless appropriate arrangements can be made with the Caboolture Council in relation to a relocation of the visitor car parks, and unless the body corporate formally consents to the concrete driveway under section 114 of the Standard Module.

I also note that the lot is not being used as a caretaker’s residence so the need for caretaking equipment to be accessible would not appear to be an issue.

In my view the body corporate has acted reasonably in installing the steel bollards, and I have therefore dismissed the application. This order disposes of the application in its entirety.