Alexis @ Broadbeach [2006] QBCCMCmr 47 (6 February 2006)

Last Updated: 19 December 2006

REFERENCE: 0607-2005

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	33445
Name of Scheme:	Alexis @ Broadbeach
Address of Scheme:	19 Mermaid Avenue MERMAID BEACH QLD 4218

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

Neville Raymond McKinnon & Jeanette Robyn McKinnon, the co-owners of lot 19

I hereby order that the applicants shall be entitled to retain the railings currently constructed along the side of their exclusive use car parking space.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0607-2005

"Alexis @ Broadbeach" CTS 33445

ORDER SOUGHT

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

1. To extend railings at the entrance of exclusive use car space to prevent pedestrian access beside car space
2. In the alternative to leave the existing railings as is
3. To fully enclose the exclusive use car space

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

Alexis @Broadbeach is a community titles scheme comprising 27 lots and common property, registered under a building format plan. The scheme is regulated by the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module).

BACKGROUND

The applicants stated that they had received verbal approval from the developer of the scheme to construct railings along the side of their exclusive use car parking space so as to provide protection for their vehicles from pedestrian traffic and from trolleys which are available in the car parking area for residents’ use. The trolleys are stored near the storage areas which are in close proximity to the applicants’ car parking space. The applicants noted in their statement of grounds that the floor slopes slightly near their car parking space, and trolleys, if not properly stored, could roll into their vehicles.

Although initially seeking an order to fully enclose their car parking space, the applicants abandoned that claim in their reply.

The body corporate committee and all owners were invited to respond to the application. Submissions were received from several owners and from the body corporate committee. None of the owners opposed the railings if they did not pose a safety problem, with one owner stating that if they did, then the walkway beside the car parking space should be closed off to obviate the problem.

The body corporate committee stated that the developer has informed the committee that the railings as installed were outside the guidelines discussed between the developer and the applicants. The body corporate committee further stated the railing should be shortened to provide a safe environment, as recommended in the report by Miga Homes & Construction Pty Ltd (Miga).

The applicants replied to the submissions.

At the close of the submission process, the applicants were requested to provide photographs of the area under dispute, as well as a copy of the Australian Standard to which they referred in their application. That material was received on 23 January 2006.

I noted that the specific section of AS 1657 forwarded by the applicants related to Section 3 of the Standard entitled "Platforms, Continuous Walkways and Steps with Landings". Section 3.1.5.2 provided in part, and so far as relevant to this matter:

"Walkways

Where guardrailing is provided on both sides of a walkway, the clear width of the walkway measured between the inner edge of the guardrail shall be not less than 550mm.

Where there is affixed structure not more than 100mm distance from one side of the walkway, the clear width of the walkway measured between the structure and the inner edge of the guardrail shall be not less than 600mm.""

On 3 February 2006 I telephoned Mr Keith Thomas, of Thomas Independent Certification, who had provided the copy of the Australian Standard 1657 to the applicants. I asked Mr Thomas whether there was any discretion allowed in relation to the Australian Standards. Mr Thomas stated that the distances stated in the Standard were minimum distances, but also pointed out that AS 1657 applied to Plant Rooms and not specifically to a car parking area. He further stated that there was therefore no legislative requirement in relation to walkways in a car parking area apart from a requirement that there be a 1 metre wide space for egress from the building itself.

DETERMINATION

The applicants have abandoned their request to have their car parking space fully enclosed, and it is therefore not necessary for me to consider this matter any further.

Having viewed the photographs provided by the applicants, I consider that the railings along one side of their exclusive use car parking space provide a useful protective barrier for their cars, particularly as the shopping trolleys used by residents to carry goods to and from the car park are clearly depicted in the immediate vicinity of the car parking space. Although the number of trolleys available for residents’ use in this scheme is small, the damage capable of being caused if one trolley accidentally makes its way down the walkway and into the applicants’ car could still be considerable.

The width of the walkway between the railings and the outer edge of the air conditioner fixed to the opposite wall has been measured by the applicants at 570mm. The applicants’ view is that this exceeds the AS 1657 requirement of 550mm and therefore the railing should not have to be shortened as recommended by Miga. However, I consider that AS 1657 (if it were applicable to this situation) requires a minimum distance of 600mm, because there is a fixed structure (the air conditioner) not more than 100mm from one side of the walkway. When I spoke with Mr Thomas, and described the situation, he agreed that if that situation existed in a plant room, the minimum distance of the walkway would have to be 600mm.

There are, however, other factors which I consider should also be taken into account when determining this matter. The first of these is that the walkway beside the applicants’ car space is not a main thoroughfare. There is no other car space to the rear of this area, and the only facilities in the area are storage spaces. The second factor is that there is a 2.2 metre walkway between the lifts which would appear to provide adequate access to the storage spaces. The third factor is that the walkway beside the applicants’ car space is only 30mm (or slightly over 1 inch under the imperial system of measurement) narrower than the minimum distance prescribed under AS 1657 relating to plant rooms. The final and most important factor, in my view, is that Section 3 of AS 1657 does not apply to a car parking area in any event.

I have also had regard to the fact that there has been no evidence presented by the body corporate that the railings actually have caused, or have a real potential to cause, a safety problem for pedestrian traffic. On the other hand, I have accepted that there is potential for damage to the applicants’ cars from runaway trolleys. In administering and managing the common property the body corporate is required to act reasonably, and for the benefit of owners. The applicants are entitled, in my view, to have their cars protected, and I consider that it would be unreasonable for the railings to have to be shortened.

I have therefore ordered that the railings as currently constructed may remain.