Chaplin Place [2006] QBCCMCmr 33 (24 January 2006)

Last Updated: 19 July 2006

REFERENCE: 0450-2004

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	20781
Name of Scheme:	Chaplin Place
Address of Scheme:	106 Sugar Road MAROOCHYDORE QLD 4558

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

Douglas and Marlene Loveday, the Owner(s) of lot 34

I hereby order that the body corporate may proceed to install speed bumps pursuant to any resolutions to that effect provided that the body corporate receives a written assurance from the supplier of the speed bumps 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.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0450-2004

"Chaplin Place" CTS 20781

Application

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).

Douglas and Marlene Loveday, owners of lot 34 (applicants) are seeking orders against the body corporate for Chaplin Place (respondent) to stop the body corporate installing speed bumps within the scheme. Chaplin Place is a 21 lot scheme containing industrial and commercial sheds of varying sizes. The applicants carry on a business that requires the distribution and handling of glass.

Background

A summary of the background to this dispute is as follows:

1. On 22 June 2004, owners in general meeting voted to have speed bumps installed at the scheme;
2. On 14 July 2004 the applicants lodged an application to prevent the installation of speed bumps on the basis it would be detrimental to their business;
3. The body corporate subsequently agreed not to proceed with the proposal to install speed bumps pending the annual general meeting to be held in February 2005. This meant that the applicants had an opportunity to put forward alternative proposals or put forward a motion proposing revocation of the initial decision to install speed bumps;
4. Shortly before the annual general meeting on 28 February 2005 the applicants sought interim orders, specifically relating to the payment of a special levy for the installation of speed bumps. An interim order issued on 2 February 2005;
5. At the annual general meeting of 28 February 2005 a motion put forward by the applicants proposing to revoke the earlier resolution to install speed bumps was lost. The original motion therefore remained in effect;
6. Subsequent concerns were raised about the type of speed bumps proposed and whether some types of speed bumps would be more detrimental to the applicants’ business than other types of speed bumps; and
7. A further interim order was issued on 1 April 2005. This order provided that the body corporate must not install any speed bumps unless it was provided with a written assurance from an appropriate person that the speed bumps met Australian Standards and would not adversely affect loads being carried (including glass) to a greater extent than any other commonly used speed bump.

A number of issues seem to have delayed any installation of speed bumps. This office has been advised that part of the scheme, including the applicants’ lot, is being resumed for road purposes. However, it was suggested that the applicants will continue to occupy that lot by way of a lease for some months. In November 2005 one of the applicants verbally indicated that they would withdraw the application. However, the application has not been withdrawn and has therefore been referred for a final order.

Decision

As previously stated in the interim order of 1 April 2005, the body corporate must administer common property reasonably and for the benefit of lot owners (Act, 152). 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.

In the present 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 further submissions provided by parties have not altered the conclusions I reached at the interim stage. Provided the proposed 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 do not consider the proposal to be unreasonable. Any slight delays for the applicants in transporting goods are outweighed by safety concerns about people driving too fast within the scheme. These safety concerns also outweigh the concerns of some other owners that the custom street cars that they work on may need to be loaded onto trailers to be transported over the speed bumps.

Order

For these reasons, I make the order above.