White Dolphin [2006] QBCCMCmr 441 (10 August 2006)

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

I hereby order that the application for orders that:

That the Body Corporate for the White Dolphin CTS 146287 give a notice of continuing contravention of a Body Corporate By-Law (form BCCM10) to the owners and occupiers of lot 4 in respect of the contraventions listed in the notice to the Body Corporate of Contravention of a Body Corporate By Law dated 30 March 2006 enclosed under cover of the applicants letter to the Body Corporate Manager dated 30 March 2006 or as otherwise ordered as a consequence of this dispute resolution application.

Further or in the alternative, that an order be made against the owners or occupiers of lot 4 enforcing the By Laws of the Body Corporate for the White Dolphin CTS 146287.

is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0282-2006

"White Dolphin" CTS 14628

The White Dolphin community titles scheme (White Dolphin) consists of 8 lots and common property. The community management statement for White Dolphin indicates that the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module) applies to the scheme. Department of Natural Resources Mines and Water records show the scheme is registered as Building Units Plan 438.

APPLICATION

This application was made by Neil Campbell owner of Lot 1 (applicant) on 19 April 2006 under the Body Corporate and Community Management Act 1997 (Act). The applicant sought orders against the Body Corporate for White Dolphin (respondent) in the following terms:

Further or in the alternative, that an order be made against the owners or occupiers of lot 4 enforcing the By Laws of the Body Corporate for the White Dolphin CTS 146287.

PROCEDURAL MATTERS

Under section 243 of the Act, a copy of the application was provided to the Body Corporate, to all owners, and particularly to the owners and occupiers of Lot 4, with an invitation to respond to the matters raised in the application. A submission was made by the owners of Lot 4 and one other owner. The Committee has not lodged a submissions however the two owners making submissions are committee members. The applicant inspected the submissions received and made a written reply (see sections 246 and 244 of the Act respectively).

A dispute resolution recommendation was made referring the dispute to departmental adjudication.

JURISDICTION

I am satisfied that this is a matter which falls within the dispute resolution provisions of the legislation (see sections 227, 228, 276 and Schedule 5 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:

(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)).

MATTERS IN DISPUTE

The application relates to various alleged by-laws breaches by the occupiers of Lot 4. The facts of the dispute, as outlined in the application, submissions and reply to submissions, can be summarised as follows.

The applicant indicates that the occupiers have been present in Lot 4 for at least 12 months. He alleges that the occupiers have breached the by-law in the following manner:

The applicant wrote to the Body Corporate Manager (BCM) on at least five occasions between 22 February and 12 April 2006 regarding these issues, including sending a BCCM Form 1 – Notice to Body Corporate of Contravention of a Body Corporate By-law on 30 March 2006. The applicant says he also verbally advised the Secretary of the issues on three occasions in March 2006.

The only written response the applicant received was a letter from the BCM it the correspondence would be referred to the Chairman for the committee’s information and instruction. It appears the BCM advised the applicant that the Secretary instructed the BCM not to issue a by-law contravention notice, on the basis that the Secretary would sort matters out himself.

The applicant also indicates that he advised the occupiers of Lot 4 of the issues at some point in 2005 and then on 2 April 2006 (which included showing an occupier the BCCM Form 1 provided to the Body Corporate). This contact apparently elicited little response. However, following a discussion with a co-owner of Lot 4, the applicant received a letter from that co-owner on 13 April 2006 responding to the issues.

However the applicant asserts that the breaches are continuing. As the Body Corporate did not respond to the by-laws, the applicant lodged this application.

The submission from the owners of Lot 4 provides the minutes of a Committee meeting dated 24 April 2006 (shortly after the application was lodged) at which the applicant was present. This discussed most of the applicant’s concerns. The submission said that as a result of the meeting and the issues being raised with the occupiers, they did not anticipate any further by-law breaches.

The submission by the owner of Lot 7, who is the Secretary, simply states that they do not support the application and that each of the complaints has been addressed by the Body Corporate.

In his reply to submissions the applicant argues that the submissions lodged do not refute the grounds included in the application or that the by-laws have been breached. The applicant appears to dispute that the matters have been addressed. He challenges, on several grounds, the validity and relevance of the purported Committee meeting on 24 April 2006, and suggests that the meeting be "ignored". He also argues that the "relevant date for determination" of the application is date that his BCCM Form 1 was served or 14 days afterwards.

DETERMINATION

The key questions in this application centre on what the current by-laws for the scheme are, whether they have been breached by the occupiers of Lot 4, and whether the Body Corporate should have taken action in respect of these breaches.

Current By-laws

The applicant is not entirely correct in his research regarding the current by-laws for this scheme. However, given the apparent failure of the BCM to supply a copy of the by-laws on request and as ascertaining the by-laws for the scheme is not straightforward, this is understandable.

White Dolphin was originally registered on 27 January 1970 under the Building Units Titles Act 1965 (BUTA), which has since been repealed. Following the commencement of the current Act, a community management statement (CMS) for the scheme was registered on 15 July 2000. This CMS states that the by-laws for the scheme are taken to be those in effect as at 13 July 2000^[1].

Many owners (and, surprisingly, body corporate managers) are under the misapprehension that if no other by-laws have been recorded then the statutory by-laws in Schedule 4 of the Act apply to the scheme from that time. This is not the case. While the recording of a CMS for pre-1997 schemes was ‘automatic’ this process did not automatically change the by-laws for the scheme.

The applicant believes that the scheme’s by-laws are the default by-laws under Schedule 3 of the now superseded Building Units and Group Titles Act 1980 (BUGTA)^[2]. However that is not the full story. As White Dolphin was established prior to 1980, section 5(10) of BUGTA’s transitional provisions provide that the former by-laws of a body corporate continued together with any of the by-laws in BUGTA’s Schedule 3 that are not inconsistent with the former by-laws.

Pursuant to section 13 of BUTA, the former by-laws applying to this scheme are contained in the First and Second Schedule of BUTA. Under section 180(1) of the current Act, a by-law is invalid to the extent that it is inconsistent with the provisions of the Act or the relevant regulation module. In essence, the contents of the BUTA First Schedule are superseded by the provisions of the current Act and regulation modules. However, the Second Schedule also provides the following by-laws:

In addition, in March 1970 the Body Corporate recorded a further by-law, being By-law 42 which established designated car parking spaces for the lots.

In summary, to the extent that they are not inconsistent with the current Act, Standard Module or any other legislation, the By-laws currently applying to White Dolphin are:

This situation is far from ideal. So that all owners and occupiers have an unambiguous set of by-laws recorded in a single place it would be desirable for the owners to record a new CMS including new by-laws – even if it simply adopted the by-laws contained in Schedule 4 of the current Act.

By-law contraventions

Section 94(1)(b) of the Act imposes a duty on the body corporate to enforce the community management statement, including the by-laws. Sections 182 to 188 of the Act provide the process for pursuing an alleged by-law breach.

For a body corporate to pursue a by-law issue, the first step is to issue a contravention notice to the person who the body corporate believes is breaching the by-law. Sections 182 and 183 set out the requirements for a continuing contravention notice and a future contravention notice respectively.^[3] If the alleged breach is not addressed, the Body Corporate can either lodge a dispute resolution application or proceed to the Magistrates Court.

If an owner or occupier wishes to pursue a by-law breach, their first step is to request (using BCCM Form 1) the body corporate to issue a by-law contravention notice. If the body corporate issues a contravention notice, the complainant can lodge an application in this Office against the person who is allegedly breaching the by-laws. If the body corporate does not advise the complainant within 14 days that a contravention notice has been issued, as is the case here, the complainant’s only option is to lodge an application against the body corporate.

The applicant has sent a BCCM Form 1 to the Body Corporate and, having not received advice that the Body Corporate had issued a contravention notice, proceeded to lodge this application. However, BCCM Form 1 requires the complainant to insert the number and text of the by-law that they believe is being contravened. Aside from a reference to By-law 42, the applicant appears to have quoted from Schedule 4 of the current Act – but as outlined above the by-laws in that Schedule do not apply to this scheme (although some are similar to the BUGTA by-laws). Moreover, he has not correctly quoted the Schedule 4 by-laws but has selectively quoted from the various by-laws in a manner that is arguably misleading as to the intent of the by-law. Although I appreciate that the BCM could not apparently provide the correct by-laws for the scheme, it could be argued that the Body Corporate has no obligation to respond to the applicant’s BCCM Form 1 because it alleges breaches of by-laws which do not apply to the scheme.

Notwithstanding the concerns with that preliminary step in the process, I will now consider each of the alleged by-law breaches in turn.

Parking

The applicant contends that the occupiers of Lot 4 regularly park two vehicles on the scheme, contrary to signage that states ‘one car only per unit’. It is also suggested that the occupiers of Lot 2 and Lot 5 park two vehicles most nights, and that friends of Lot 4 from adjoining units use the car parking areas, which compounds the limited parking in the scheme. Cars are also allegedly parked so that they block the driveway.

The applicant suggested to the Body Corporate that it line and number each carpark and engage a professional firm to tow offending vehicles. On 12 April 2006 the applicant wrote to the BCM acknowledging that signs had been erected to identify the allocated car parking spaces, but noting that some of the signs incorrectly allocated spaces.

In her letter of 13 April 2006 one of the co-owners of Lot 4 indicates that she informed the tenants that only one car was permitted per unit. She also said that she had spoken to the owner of Lot 7 who is not present at the scheme for part of the week and arranged that the tenants could park their extra car in his car space when he is absent. At the meeting on 24 April 2006 the committee members agreed that the signage in the car park should stay where it is and that owners can allocate their space, if vacant, to other occupiers.

By-law 42 specifies, in part, that eight car parking spaces identified on the attached schedule are "...reserved for the use as car parking areas for the proprietors for the time being respectively of Lot 1, Lot 2, Lot 3, Lot 4, Lot 5, Lot 6, Lot 7, and Lot 8 and for those proprietors’ invitees and licensees provided that any proprietor shall have the right to use any other proprietor’s parking area for the purpose of pedestrian passage, an vehicular access to his car parking space."

The BUGTA By-law 2 states:

Save where a by-law made pursuant to section 30(7) of this Act [BUGTA] authorises a proprietor or occupier so to do, the proprietor or occupier of a lot shall not park or stand any motor or other vehicle upon common property except with the consent in writing of the body corporate.

The BUGTA By-law 2 applies only to the extent that it is not inconsistent with By-law 42. This means that the occupiers of Lot 4 may not park on common property except in the space allocated to Lot 4 under By-law 42, but there are two exceptions. Providing it does not interfere with a right under By-law 42, the Body Corporate may, in writing, grant an occupier permission to park elsewhere on common property.

In addition, an owner may legitimately invite another person (including another owner or occupier) to use the car park area allocated to them under By-law 42 if it is not otherwise being used. There is nothing specifically in the by-laws that only one vehicle belonging to each unit may be parked in the scheme at any one time. The applicant disputes that Lot 7 can allow Lot 4 to use the Lot 7 car park space, but fails to provide any legitimate argument to support this view.

The applicant also argues that if the occupiers of Lot 4 park in the Lot 7 space, which would otherwise be vacant, he is not able to drive across the space as he is entitled to do under By-law 42 and must reverse around the building to park in his allocated space. With respect I find this argument to be absurd. While of course By-law 42 allows the applicant to drive or walk across other car park spaces, this does not displace the right of the owners of Lot 7 to park in their car park space or to permit their invitees to park in the space. If the owners of Lot 7 are in residence the applicant would be unable to drive across the space so the situation is no different if Lot 7 allows another person (whether another occupier or someone else) to use their space.

The only question here is whether the occupiers of Lot 4 have breached the by-laws by parking in a space other than that allocated to Lot 4 without the permission of the Body Corporate or the owner to whom the space is allocated. The application does not provide any evidence to support the applicant’s assertion that the occupiers of Lot 4 have parked on common property other than in the spaces allocated to Lot 4 or Lot 7. The submission of Lot 4 does not refute that this may have occurred in the past but suggests that this will not continue in the future. The applicant does not comment or provide evidence in his reply to submissions as to whether the inappropriate parking has continued since the April meeting.

Cat

The applicant objects to the cat in Lot 4 and states that cat faeces and urine have been identified near his garage, near the front steps and in the front yard of the complex. The co-owner of Lot 4 reported that she gave permission for the cat on the basis that it is kept inside at all times.

At the 24 April 2006 meeting the co-owner of Lot 4 indicated the cat has been there for two years. She requested Committee permission for the cat and said no further pet will be allowed when the current tenant leaves. The applicant argued the cat was attracting other cats, but others at the meeting indicated it was a cat in the adjacent unit that was roaming and attracting other cats. The meeting did not formally authorise the cat but did not refuse the request. The meeting also did not refuse, but did not formally authorise, the applicant’s request for a dog in his lot.

The BUGTA By-law 11 provides that:

Subject to section 30(12) [of BUGTA], a proprietor or occupier of a lot shall not, without the approval in writing of the body corporate, keep any animal upon his or her lot or the common property.

However, this by-law only applies to White Dolphin to the extent that it is not inconsistent with the BUTA Schedule 2 by-law which states: "A proprietor shall not keep any animals on his unit or the common property after notice in that behalf from the council." (The council in this context is the entity now referred to as the body corporate.) I am of the view that the effect of By-law 2 in the BUTA Second Schedule is that owners are permitted to keep an animal until they received notice from the body corporate that they could not keep an animal.^[4] As the BUGTA By-law 11 is inconsistent with this by-law, the earlier by-law prevails. On that basis it is not currently contrary to the by-laws to keep animals on the common property or a lot.

Furniture, plants and washing on the balconies

In regard to the items on the balconies, the applicant expresses concern that these items are unsightly and he is apparently of the view that balconies should have nothing on them. He seems to refer to the following BUGTA by-laws:

A proprietor or occupier of a lot shall not obstruct lawful use of common property by any person.

A proprietor or occupier of a lot shall not deposit or throw upon the common property any rubbish, dirt, dust or other material likely to interfere with the peaceful enjoyment of the proprietor or occupier of another lot or of any person lawfully using the common property.

In the case of a building units plan, a proprietor or occupier of a lot shall not, except with the consent in writing of the body corporate, hang any washing, towel, bedding, clothing or other article or display any sign, advertisement, placard, banner, pamphlet or like matter on any part of his or her lot in such a way as to be visible from outside the building.

In regard to the pot plants the co-owner of Lot 4 indicated that the tenants had agreed to tidy up the plants and "pull the plants back to the area contained within the line of the cement pot plant". At the 24 April 2006 meeting the committee members "...agreed that each balcony has their own private area and it is the area out as far as the cement planter boxes and that people should be able allowed to use this area to put a table and chairs and plants if they wish."

The applicant has made the suggestion that the items on the balcony place the Body Corporate at a higher risk of a personal injuries insurance claim. However, the applicant has provided no information or evidence to suggest that the items on the balcony are causing an obstruction and so I do not consider By-law 3 is relevant.
While the applicant has provided very little information and no argument on the matter, it appears that in his BCCM Form 1 he has suggested that the pot plants constitute a garden on common property. It appears the lots have cement planter boxes already on the balconies which implies plants are intended on the balcony. I have some questions about whether By-law 4 is relevant to a balcony area of common property, rather than lawns and similar areas as suggested by the title of the by-law. However, given the absence of any real evidence or information to support an argument that this by-law has been breached, I do not intend to consider the issue further.

In regard to By-law 7, I do not consider that pot plants, furniture or washing fall with the meaning of rubbish, dirt or dust. Moreover, in light of the ejusdem generis rule of statutory interpretation^[5], I do not consider these items fall within the scope of the ‘other material’ referred to in this by-law.

Turning to By-law 8, pot plants and furniture clearly do not fall within the lists of items specifically referred to in this by-law and, again, following the ejusdem generis rule, they are not within the cope of the ‘other article’ or ‘like matter’ contemplated by the by-law. Washing, towels and clothing clearly falls within the scope of By-law 8. The occupiers of Lot 4 are not permitted to hang such items on their lot in such a way as to be visible from outside the building, unless they have permission from the Body Corporate. Again the applicant has provided no evidence that the items have been hung on the balcony or that they are visible. I suspect it may well be the case. However the applicant has asserted that the items are on the common property balcony. As By-law 8 refers only to an occupier’s activity on their own lot, and not on common property, this particular by-law does not appear to have been breached.

The applicant’s BCCM Form 1 includes comments to suggest that he believes the items on the balcony constitute a change to the external appearance of the Body Corporate which is not minor and is without approval. However there is no by-law applying to the scheme which prohibits such changes.

Rubbish bins

For some 10 years the applicant put out the rubbish bins for all lots, apparently for a fee. In February 2006 the applicant advised the Body Corporate that given the change of ownership, increase in permanent occupants and the large number of bins, he did not wish to undertake this role any further. He said that from the end of February he would no longer take any other bins out. It appears tenants were advised of the need to put out their own bins.

The complaints in the application include that the tenants did not put out their bins for three weeks earlier in the year, had put smelly rubbish in another owner’s bin, and had left their bin in the street for three weeks. However the co-owner of Lot 4 repeatedly states that the tenants have denied these allegations and claim they have taken their bins out except on one occasion when the bin wasn’t full. The owners of Lot 4 have reminded their occupiers of their obligations regarding bins.

At the April meeting it was noted that the bins were empty but had been overflowing at Christmas (although this was when the applicant was apparently still putting out the bins). It was agreed that the BCM would write to all owners, agents and tenants reminding them of the requirements with bins, including when bins are required to be taken out and brought back in.

In his reply, the applicant asserts that the occupiers of Lot 4 continue to fail to put out their bins but then state that the bins are put out once or twice a month. He asserts that they are not complying with local government requirements to remove cat litter daily, and that they have not taken out their recycling bin which has been allegedly full since March.

The relevant BUGTA by-law states:

The applicant alleges this by-law has been breached but provides no evidence, beyond his own statement, to substantiate his allegations. The occupiers apparently refute the allegations and no-one else has substantiated either version. In the absence of any further information I am not in a position to determine which of the parties is correct. However I would note that the different versions of the problem reported by the applicant do not assist his case.

Conclusion

The applicant bears the onus of proving that a breach of by-laws has occurred and that the Body Corporate has failed in its obligation to enforce the by-laws. The applicant has provided no evidence to substantiate his claims of by-law breaches - his assertions alone are not proof. While I suspect that some contraventions may have occurred at least prior to April 2006, the applicant has in particular provided no evidence that any breaches have continued since the committee meeting and since the co-owner of Lot 4 spoke to her tenants.

I disagree with the applicant about the relevance of the Committee meeting on 24 April 2006. Whether it was a formal and valid committee meeting or an informal meeting of owners is unimportant. The issue is whether the meeting resulted in any solution to any of the issues. The role of this Office is about resolving disputes, not making punitive orders about past breaches that are no longer adversely affecting owners and occupiers. There is no cut-off date for considering information relevant to an alleged by-law breach. If a breach has occurred in the past but has since been resolved, no purpose is served by an order requiring action to address the breach.

As indicated, the occupiers of Lot 4 are clearly not in breach of any current by-law by having a cat within their unit. In relation to the other issues, I am not satisfied that the applicant has proven any contravention. Accordingly, I have dismissed the application.

While the applicant has some valid concerns, unfortunately he appears to be unwilling to consider any proposed solutions. The by-laws must of course be adhered to, but all owners and occupiers must be cognisant that community living requires a certain amount of flexibility and cooperation.

In turn, the Body Corporate must be aware of its obligations regarding the by-laws. Although it is certainly desirable for the Committee to try to address matters informally and amicably, it must monitor compliance with the by-laws and take formal action if breaches are not addressed.

Community living requires all parties to consider those living around them. Therefore I would also encourage owners and occupiers, including the occupiers in Lot 4, to adhere to the by-laws and to make greater effort be considerate of the impact of their actions on their neighbours. Moreover, they should be aware of section 167 of the Act which prohibits an occupier from using or permitting the use of a lot or common property in a manner which causes a nuisance or hazard, or which unreasonably interferes with another’s use or enjoyment of the common property or another lot. While the applicant has not provided sufficient evidence to substantiate nuisance in this instance, occupiers should be aware that this provision applies even if the by-laws do not cover their actions.

As noted above, I would also encourage the Body Corporate to review the by-laws applying to their scheme.

^[1] See section 339(5)(a) of the Act.
^[2] See section 30, BUGTA
^[3] See BCCM Forms 10 and 11
^[4] See, for example, The Town Houses (0437-2000) 22 November 2000, which draws a similar conclusion.

^[5] This rule provides, in effect, that where a list of specific terms are followed by general terms, the general terms are limited in scope to the general category of items established by the specific terms.

Number of Scheme:	14628
Name of Scheme:	White Dolphin
Address of Scheme:	806 Pacific Parade CURRUMBIN QLD 4223

	Regularly parking more than one vehicle on common property other than the car parking area designated to Lot 4, and permitting guests or invitees to do likewise;
	Having a cat;
	Regularly hanging washing, towels and clothing on the common property balcony or on a makeshift clothesline on common property such that they are visible from other lots and the outside of the building;
	Having furniture (two lounge chairs, a table and a sofa bed), pot plants (approximately 80) and pot plant holders on the common property balconies on levels 1 and 2; and
	Since February 2006, failing to put garbage out for council collection and allowing rubbish to accumulate in the designated rubbish bin for Lot 4.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

White Dolphin [2006] QBCCMCmr 441 (10 August 2006)