The Metropolis [2006] QBCCMCmr 62 (13 February 2006)

Last Updated: 19 December 2006

REFERENCE: 0727-2005

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	30418
Name of Scheme:	The Metropolis
Address of Scheme:	446 Ann Street BRISBANE QLD 4000

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

Body Corporate of The Metropolis CTS 30418

I hereby order that the application for an order that the owner of lot 15 remove the storage unit in his car park and replace it with a Titan Tidy Storage Locker as is the approved standard recommended by the body corporate committee, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0727-2005

"The Metropolis" CTS 30418

ORDER SOUGHT

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

That the owner of lot 15 remove (sic) the storage unit in his car park and replace it with a Titan Tidy Storage Locker as is the approved standard recommended by the body corporate committee.

JURISDICTION

The application evidences a dispute between an 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

The Metropolis is a community titles scheme comprising 41 lots and common property, which registered in a building format plan on 18 July 2002. The scheme is regulated by the Body Corporate and Community Management (Accommodation Module) Regulation 1997 (Accommodation Module).

BACKGROUND

In its supporting grounds, the applicant contends that the storage unit constructed in lot 15’s exclusive use car space does not conform to the standard resolved by the body corporate on 24 February 2003. That standard was detailed in the grounds.

The applicant further states:

"The storage unit installed in lot 15 does not conform to the standard above and was not formally approved by the body corporate. Approval was only made verbally with the original owner (developer) prior to any standard being agreed upon."

The owner of lot 15 and all other owners in the scheme were invited to respond to the application.

Submissions were received from two owners and from the owner of lot 15.

One of the owners had no objection to the storage unit, pointing out that "if he was given approval (even it if was only verbal) by the developer before this body corporate rule has been made then he has every right to keep his cage storage shed." However, this same owner proposed "that if the owner of lot 15 sells the unit then it must be written into the contract that the new owners will be subject to this body corporate rule and that they (the purchasers) make allowance for this when buying the unit."

The other owner stated that the actual design of the storage unit did not concern him other than that it should be professionally built. This owner did, however, express concern over such things as security risks, the accumulation of dust and dirt on the stored goods; the need for goods to be neatly stored; and the difficulty of cleaning around the cage with the stored goods sitting directly on the concrete floor of the garage.

The owner of lot 15 reiterated that he had been given verbal approval by the developer, well before the body corporate authorised the storage locker for lot 41. He also pointed out that the conditions attaching to that authorisation related specifically to lot 41 and were not stated to be universally applicable in any event.

DETERMINATION

The applicant does not deny that the owner of lot 15 received approval for his storage unit from the original developer, but points out that the approval was not in writing.

At the time that the approval was given in July 2002 the original developer was the sole owner of all lots included in the scheme, and therefore had unfettered authority to approve the request by the (then prospective) owner of lot 15 for the installation of the storage unit. It is immaterial if the actual installation was not carried out until after settlement, at a time when the original developer was no longer the owner of all lots in the scheme.

The applicant has claimed that the storage unit does not comply with the standard required. Conditions (i) and (ii) imposed by the body corporate committee on 24 February 2003 in relation to the type and colour of storage locker to be installed in lot 41’s exclusive use car parking area were not stated to be universally applicable throughout the scheme, and in the absence of such a statement, should only be regarded as conditions attaching to lot 41. If it had been the intention of the committee to create standard conditions applicable to all future installations, then the resolution should have been clearly stated in those terms.

In any event, as far as the storage unit in lot 15 was concerned, this resolution was months after the storage unit was installed, with approval, in lot 15’s exclusive use car parking area, and could not be held to apply to that storage unit.

No complaint has been made by the applicant about the workmanship of the installation, nor has it been claimed that the storage unit interferes in any way with any other lot owner’s ability to freely open their car doors or use their car parking area in any way.

The owner of lot 15 stated that he paid approximately $1,450.00 to have the storage unit installed by Coast Wire Fencing. He pointed out that the storage unit is installed wholly within his exclusive use car parking area; that it is kept in a tidy condition; that it is not used so as to create a nuisance and that the storage unit and the surrounding area are kept in a good state of repair and maintenance in compliance with by-law 38(f).

I am satisfied that the owner of lot 15 received verbal approval for the installation of his storage unit from the original developer, and that the failure of the developer to record such approval in the records of the body corporate should not disadvantage the owner of lot 15. Accordingly the storage unit does not have to be removed as demanded by the body corporate.

As the matter currently stands, any owner who now wishes to install a storage unit in their car parking area must apply to the body corporate for authorisation to do so under section 113 of the Accommodation Module. Each application must be decided on its merits. If the body corporate wishes to impose conditions on any such installation it will be at liberty to do so, provided the conditions are reasonable. If the body corporate intends that the conditions should apply to all future installations of storage units, then it would be prudent for the body corporate to take the necessary steps to advise all owners of that fact.

In the circumstances, I have dismissed the application.