The Inlet [2006] QBCCMCmr 299 (13 June 2006)

Number of Scheme:	4655
Name of Scheme:	The Inlet
Address of Scheme:	24-32 Breaker Street MAIN BEACH QLD 4217

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

I hereby order that the tarpaulin between lots 87 and 88 remain removed.

I further order that the mesh casing around both car parks 88 and 89 may remain.

I further order that the garage doors may remain, and the doors may continue to open into the common property.

I further order that the doors may be operated by remote control.

I further order that at his own expense, the respondent will install a bright overhead light within car park 88 that is activated when the doors are operating or open.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0725-2005

"The Inlet" CTS 4655

Application

Thomas and Roma Makin, the owners of Lot 91 (the applicants) have sought the following orders against Egidio Natopi, the owner of Lot 71 (the respondent):

Jurisdiction

The Inlet CTS 4655 is a 92 lot building units plan registered under the Body Corporate and Community Management Act 1997 and is operating under the Body Corporate and Community Management (Accommodation Module) Regulation 1997. Typically, this module is intended for residential arrangements.

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

(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)).

Grounds

The applicant has provided a series of photos showing a corner car park and an adjoining car park. Both car parks are enclosed in wire mesh with solid steel frames and tarpaulins on all but 2 of the panels. A floor plan is provided. They state the tarpaulins obscure vision around the corner. However I note the two panels without tarpaulins allow some vision through the corner car park, subject to the mesh itself and any vehicle parked in there.

The applicants observe that when opening or closing, the door to the corner lot protrudes into the common property on a blind corner and is therefore dangerous. They state that as one turns left it is impossible to see if the door is protruding or about to open. It is operated by remote control.

They state that the door has opened into their car on one occasion causing $1,800 of damage (19 September 2003). It had been opened by remote control. Their concerns have been raised with the Body Corporate on both 6 November 2003 and 3 February 2004.

They state they cannot locate records showing that the enclosures were ever approved. They also state these are the only enclosed car parks in the complex but this is at odds with a letter from the Body Corporate Manager to them dated 16 March 2004 which says:

Submissions

Four submissions were received. One was from the committee, but only after this office made a specific invitation to them for their comment. They responded that they regarded the issue as being between the two parties only (and offered observation regarding correct car park’s allocated to the respondent and the spelling for the respondent’s surname).

Two submissions were from other owners. Both regard the enclosures as dangerous. One says all enclosures should be dismantled. The other says the current arrangements potentially present a legal liability claim.

The fourth submission was from the respondent. He notes that as the door of the corner car park is made of mesh so drivers are able to see "through" the corner. He also says that the adjacent car park is separated by a storage area which can’t be seen through anyway.

He acknowledges the door swings into the common property when opening or closing, but that it is at ceiling height when fully open. He states that the only "blind" part of the corner is the concrete structural column on the corner. He notes that since receiving the Dispute Resolution Application he has removed one panel of tarpaulin which was at the back of the corner car park.

He advised that he did offer to pay for repairs to the applicant’s vehicle based on a quote he received for $300. However they had the car repaired themselves and presented him with an bill for $1,800. He says they refused to arrange for the bill to be itemised.

He encloses a letter dated 8 June 1999 where the Body Corporate authorised him to enclose the area on the condition it was made out of mesh. He says other enclosed car parks have electric doors.

He alleges the applicants drove closer to the door than was warranted, given that the passageway is 7 meters wide. He says his door is mounted 30 centimetres back from the column and only protrudes 90 centimetres into the passageway when fully open. He says he can only activate the door when he is in close proximity and would not do so if he could hear a car coming. He says it opens slowly enough that a pedestrian would have time to step aside once activated.

He notes that the door did not sustain any damage when it and the car collided so the collision could not have been too great. He suggests this office attend the premises.

Adjudicator request for comment

To assist the identification of the most suitable order, the adjudicator asked for submissions from interested parties on the following options:

The respondent offered no response in relation to these suggestions.

The applicant still requests the removal of tarpaulins and removal of the door, noting that their bonnet was clear of the opening door but that the car received damage behind that point. They state they were turning the corner at the time that door had been activated remotely. They say that if the tarpaulins and door are to stay, then the bright light and audible alarm suggestion could be adopted in conjunction with requiring manual operation of the door.

The Body Corporate responded again expressing the view that the dispute is between the two parties. They state they understand that the respondent assumed liability and offered to pay reasonable repairs, but that a figure could not be agreed. They suggest there is a vexation element to the application. They regard the accident as extraordinary as it has not happened before or since. They express the view the applicants drove too close to the car park and therefore contributed to the accident. They recommend this office attend the premises to gain "a practical view of the issue and personalities involved".

Determination

I observe in the first instance, that I believe it was appropriate for the Body Corporate to take a more active role in the resolution of this matter. The objective of the Body Corporate and Community Management Act 1997 is to provide for flexible and contemporary communally based arrangements for the use of freehold land which balance the rights of individuals with the responsibility for self management. In this matter, it appears that the Body Corporate has not recognised its responsibility to investigate an allegation of nuisance involving the common property.

Nonetheless, the dispute resolution process also provided under the Act is available to the applicant and respondent to address the Dispute Resolution Application.

I also consider it appropriate for me to address the requests by both the respondent and Body Corporate for the attendance of someone from this office at the premises. In this matter I consider that examination of written submissions and photographs provided by the parties has equipped me sufficiently to make a determination.

As stated earlier, the issue here is whether or not the current structure constitutes a nuisance in terms of Section 167 of the Act:

The occupier of a lot included in a community titles scheme must not use, or permit the use of, the lot or the common property in a way that--

On the face of it, the applicants appear to be arguing that Section 167(a) applies as the enclosure and door represent a hazard.

I am not entirely persuaded by the argument that the applicants are responsible for the accident solely on the basis they were driving too close to the edge of the passageway. For example, while driving "too close" to a push bike rider on the open road (at high speed) might be considered dangerous, driving at the same distance from a parked car in a car park (at low speed) is not necessarily dangerous. I would be more persuaded by such an argument if other factors were presented such as driving too close at speed, or driving too close given the volume of other traffic around.

This does not necessarily mean that I do not consider that the applicants should not look at whether a more generous use of the available space could have assisted avoiding the accident. However I am also mindful that the applicants may have felt it was prudent to "hug" the walls, due to concerns about meeting oncoming traffic coming around the corner.

I am also not entirely persuaded by the applicants’ argument that the corner is "blind". In my view, the corner is only "blind" if there is no visibility through the corner at all. In this case visibility is challenged by any vehicle parked in the space, pillars surrounding the park and the dividing storage spaces. I agree with the applicants that the installation of tarpaulins right around the park would effectively make the corner "blind", however the significance of the mesh is minuscule. In those circumstances it is appropriate that the respondent be required to keep the tarpaulin separating car parks 87 and 88 removed.

The outward swinging door is a separate issue. As advised to the parties when submissions were sought on possible solutions, I regard it as impractical to require the respondent to install a door that swings inward, due to the presence of a vehicle in the space.

The respondent has advised that the door opens slowly enough to enable a pedestrian to move out of the way once activated and, the respondents have not challenged this. Given the slow movement of the door, it appears an approaching vehicle would have enough time to adjust their course and avoid the raising door if they have some notice. I am not inclined to order its removal.

Ensuring that approaching traffic has enough time to adjust its course could be achieved by seeing a human form opening the door. In that regard manual opening of the door would meet one of the applicants’ alternate suggestions.

However, I think one of the most fundamental issues that should be borne in mind here, is that the respondent has no more desire for anyone to run into the door than they do. In that regard, I find it highly credible when the respondent says that he would not activate the door remotely while vehicle or passenger traffic was present. I am not inclined to order that the door be operated manually.

I note that the respondent originally requested to enclose the car port in June 1999 and that the Body Corporate did in fact give their consent. Further enquiries by this office have established that the enclosure was erected in November 1999 and that the tarpaulins were installed at the same time.

The accident in question occurred in September 2003, more than two and a half years ago. None of the parties making submissions have provided any indication of similar accidents or near misses either before or after that time. So in essence over a period in excess of 6 years, one accident appears to have occurred.

In those circumstances, I believe only minimal additional precautions need to be implemented to alert oncoming traffic that there is activity occurring within that car park. In my view the installation of light within the car park is sufficient and will have the added benefit signalling caution when any cars are backing out of the car park.

Summary

I will order that:

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

The Inlet [2006] QBCCMCmr 299 (13 June 2006)