Bacala Park [2006] QBCCMCmr 413 (31 July 2006)

Number of Scheme:	23469
Name of Scheme:	Bacala Park
Address of Scheme:	12 Bideford Street TORQUAY QLD 4655

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Beverley Dawn Little, the owner of lot 18

I hereby order that the application by Beverley Dawn Little, the owner of lot 18, for an order that Paul Michael Moore, the owner of 10:

1. all windows and doors be closed when smoking or they smoke on the front patio; and
2. there be no smoking on the common grounds,

is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0373-2006

"Bacala Park" CTS 23469

The applicant, Beverley Dawn Little, the owner of lot 18, has sought the following order of an adjudicator against Leonard James Griffiths and Lindy Ann Griffiths, the owners of 8 in the scheme, under the Body Corporate and Community Management Act 1997 (the Act) that:

The named respondent is Paul Michael Moore, the owner of 10.

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)).

The scheme is a subdivision of 25 lots recorded under a group title plan (now a standard format plan) of subdivision. The regulation module applying to the scheme is the standard module. The applicant is the owner of lot 18. The configuration of the scheme is such that the applicant’s lot 18 is immediately surrounded by some 8 other lots; namely lots 8, 9 and 10 at the rear, lots 17 and 19 on either side, and opposite, but separated by the common property driveway of approximately 3.9 metres, are lots 21, 22 and 23.

This is one of six applications made by this applicant regarding the same issue. The applicant has sought essentially the same order against six lot owners. The other applications are numbered and relate to the following lots respectively

In respect of applications numbered 372 to 275 inclusive, the applications are made against the owners of the lot in circumstances where it would appear that the owners are not in fact the occupiers of those lots. I say "appears" since I base this conclusion on the fact that the respondent’s address stated in the application is other than the scheme. So, to conclude, 4 of the 6 applications are against persons who are not currently occupiers of the lots which they own.

In respect of the orders sought in these four applications, this is the only one that refers to "the tenants". The tenants, or occupiers as they are known in the legislation, are relevant in the present context as presumably these are the persons, and not the owners, who are smoking in the way which the applicant wants to prevent.

There is no point whatsoever in making an order against an owner who is not an occupier since what the applicant seeks to prevent is smoking. An owner who is not an occupier has no responsibility for such matter. In particular, an owner has only a very limited ability to control how an occupier uses and enjoys the lot. Further, it would simply not be appropriate to make an order against an owner for a matter that related to the action of an occupier. The applicant’s dispute is properly with the occupier of the lot, not the owners.

Further, I note that the applicant has not sought an order against the body corporate notwithstanding that the applicant does seek an order to prevent smoking on common property. Presumably, if such an order were made, it would apply to all users of common property in the scheme, and consequently, and in this instance the body corporate perhaps should have been named as a respondent to the several applications.

The grounds relied on by the applicant do not in my view set out or establish a basis for the making of the orders sought. Rather those grounds refer extensively to the applicant’s alleged medical condition. The applicant states that "I am very frightened of the future if this smoking is allowed to continue around me. There is only one lot of air to breathe and surely as a non smoker I have a right to this life giving air".

As I stated, the applicant has not sought to establish a basis for the orders which she seeks under the legislation. By a basis, I mean a reference to an alleged contravention of the by-laws, or the like. It is clear that by-laws are only intended for the control or regulation of reasonable aspects of the use and enjoyment of a lot. That is, by-laws cannot be used to interfere unreasonably with an occupiers use and enjoyment of their lot. In any event, the applicant has not alleged the contravention of any by-law.

Alternatively, the applicant has not alleged the creation of a "nuisance". Section 167 of the Act is headed "nuisance" and provides as follows:

167 Nuisances
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--
(a) causes a nuisance or hazard; or
(b) interferes unreasonably with the use or enjoyment of another lot included in the scheme; or
(c) interferes unreasonably with the use or enjoyment of the common property by a person who is lawfully on the common property.

I conclude that it is beyond the power of an adjudicator to place such a restrictive requirement (such as that sought) on any person in the use and enjoyment of their lot, when they are engaged in a legal activity. Smoking, whilst it has been the subject of legislative control in public venues of late, is not illegal. In connection with such activity, I consider that I have no power to order a person, in the use and enjoyment of their lot, that they must only smoke on certain parts of their lot, and further, before doing so, must close all windows, doors and other openings. I conclude that such an order would unreasonably interfere with the use and enjoyment of a lot by the occupier thereof. I consequently decline to make the first order as sought by the applicant. Further, the fact that the order is sought against the owners of the lot who are not currently the occupiers is significant and relevant.

The second issue is that there be no smoking on common property. I have already referred to my view that this is a matter affecting all owners, and that perhaps the body corporate should have been named as a respondent. I conclude that smoking on common property is a matter for regulation by by-law. If the applicant considers there should be a prohibition against smoking on the common property, then the applicant should propose such a prohibition in the form of a by-law for inclusion in the recorded by-laws for the scheme. Such an addition to the by-laws would require a special resolution of the body corporate in general meeting in order to be carried or resolved. Further it would require the recording of a new community management statement with the Registrar of Titles. In the circumstances, I decline to make the second of the orders sought by the applicant.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Bacala Park [2006] QBCCMCmr 413 (31 July 2006)