Goldsborough Place [2006] QBCCMCmr 67 (14 February 2006)

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

I hereby order that the body corporate of Goldsborough Place is required to maintain (including cleaning of) the common property toilets to a reasonable standard, consistent with the level of cleaning undertaken for other areas of the common property, and further, is required to supply on a regular basis a level of toilet accessories (soap, paper and towel) consistent with a reasonable but not excessive level of use of such toilets.

I further order that where owners of the commercial lots or their tenants require a greater level of cleaning in connection with the carrying on their respective businesses, the cost of such additional cleaning is the responsibility of the commercial lots or their tenants and, with the agreement of the body corporate, should be attended to in conjunction with or in addition to the maintenance undertaken by the body corporate.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0710-2005

"Goldsborough Place" CTS 15183

THE SCHEME

Goldsborough Place Community Titles Scheme is a 86 lot scheme which is predominantly residential but also contains five lots (53, 54, 66, 67 & 70) used for commercial purposes. The scheme is registered on a Building Unit Plan, now referred to as a Building Format Plan under the Body Corporate and Community Management Act 1997 (Act). The Accommodation Regulation Module (Accommodation Module) applies to the scheme.

APPLICATION

This application is by Mr Zilla Investments Pty. Ltd., the owner of lots 69 and 70 and seeks an order invalidating the vote outside committee meeting dated 21 July 2005 and resolution to make business lots responsible for shared cleaning costs and engagement of a cleaning contractor for common property toilets, as this is a responsibility of the body corporate. The applicant also seeks an order that the body corporate engage a cleaning contractor or include in the caretaking agreement a clause requiring the caretaking service contractor to clean and maintain the toilets and supply toilet paper, soap and all consumable items associated with the use of the toilets.

BACKGROUND

Goldsborough Place Community Titles Scheme is a 86 lot scheme which is predominantly residential but also contains five lots used for commercial purposes. The applicant submits that the toilets in the vicinity of the "business lot toilets" are located on common property and are used by owners, tenants, patrons and other customers of the business lots.

The applicant is the owner of restaurant premises located in lot 70. Over the last 8 years the tenants of lot 70 have borne the cleaning and maintenance costs associated with the subject toilets. During this time correspondence has passed between the applicant and the body corporate regarding responsibility for cleaning and maintenance of the common property toilets.
The tenants recently advised the applicant that they did not intend to continue to do so and as a result the body corporate has engaged a contractor to clean the toilets on a daily basis.

At a result of a vote outside committee meeting, the committee resolved made the following resolution in July 2005:

That business lots 54, 66, 67 and 70 are to share the costs of cleaning services for the business lots’ common toilets in the following ratios (I would presume that these ratios were calculated on the basis that the cleaning cost was $130 per week):

That business lots 54, 66, 67 and 70 engage their own contractor to provide all cleaning services and associated materials and provide details of this contractor to the body corporate.

It was noted that lot 53, housing a gymnasium, was not included as it has internal toilet facilities.

The applicant also referred to the following order made by this office in the case of
Brewster Corporation v Allenby (2004) QBCCM Cmr 81, which involved circumstances similar to those under consideration in which the adjudicator ordered:

"that the body corporate of Allenby is required to maintain (including cleaning of) the common property toilets to a reasonable standard, consistent with the level of cleaning undertaken for other areas of the common property, and further, is required to supply on a regular basis a level of toilet accessories (soap, paper and towel) consistent with a reasonable but not excessive level of use of such toilets."

This office sought submissions from all owners and the committee regarding the application. The committee and five individual owners have responded to the application,. One application was received from the owner of lots 53,54, 66 & 67 who, not surprising, supported the application. Submissions from owners of residential units opposed the application as they believed the occupiers of the commercial lots and their clients are the only people who use the toilets on a regular basis.

The body corporate point out that the proprietors and occupiers of the commercial lots obtain the benefit of the toilets and therefore the commercial lots should be responsible for the expense of having the toilets cleaned on a daily basis. Further, the body corporate argues that while the body corporate has a general obligation to maintain common property areas, the committee may require the business lot owners to bear responsibility for maintenance of the toilets to the extent that a higher standard and more frequent cleaning is required than if the customers of the business lots did not have access to the toilets and to ensure that the occupiers of the business lots comply with relevant health or liquor licensing requirements.

Finally, the body corporate rejects the applicant’s submission that health regulations require toilets to be in close proximity to a residential swimming pool.

JURISDICTION

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)).

DETERMINATION

There is no doubt that the toilets in question form part of the common property of the scheme and the obligation of the body corporate to maintain common property is set out in section 108 of the Accommodation Module Regulation as follows:

108 Duties of body corporate about common property Act

(1) The body corporate must maintain common property in good condition, including, to the extent that common property is structural in nature, in a structurally sound condition.

Further, under section 152(1) of the Act, the body corporate has a duty to "administer, manage and control the common property and body corporate assets reasonably and for the benefit of lot owners". It is my view that the committee resolution purporting to make the commercial lot owners responsible for the total cost of cleaning the "business lot toilets" is contrary to section 108 of the Accommodation Regulation Module and section 152(1) of the Act.

I am also of the view that the facts of this case are very similar to those considered in the case Brewster Corporation v Allenby (2004) QBCCM Cmr 81 which is relevant to the consideration of what standard of maintenance should reasonably be expected of the body corporate.

As in the case Brewster Corporation v Allenby (2004) QBCCM Cmr 81, the evidence suggests the expectation of a level of cleaning / maintenance commensurate with a high level of regular use, and high standard of cleaning to meet the expectations of restaurant and coffee shop clients. In my experience, the availability of toilet facilities is usually necessary for licensing of premises under the Food Hygiene Regulation (administered by the Brisbane City Council) and the Liquor Act. I do not consider that the obligation of the body corporate extends to such a high level of maintenance. This is a difficult practical issue, and the only real guidance in the legislation is section 152(1) which provides that the body corporate has a duty to "administer, manage and control the common property and body corporate assets reasonably and for the benefit of lot owners"(section 152(1)).

I believe that the body corporate is obliged to maintain the toilets to the extent that it is required to keep the toilets in a reasonably clean and tidy condition. However, I consider that the toilets are no different to any other part of the common property which must be maintained for the benefit of lot owners. For example I do not consider that it is likely that pool or garden maintenance is attended to daily, or that stairs and other common areas are swept daily. I do not consider that the common property toilets should be any different.

I consider that the body corporate is required to maintain (including clean) the toilets on as regular a basis as it maintains other areas of common property, however I do not consider that this need be daily. A reasonable period might be weekly although this is difficult for me to assess.

As was considered by the adjudicator in the case Brewster Corporation v Allenby, I consider that if the owners or occupiers of the commercial lots, in connection with the carrying on of their respective businesses, require or expect a greater level of cleaning (e.g. to meet clients’ expectations or to ensure compliance with legislative hygiene requirements) then this is a responsibility that they will need to attend to in conjunction with or in addition to the maintenance undertaken by the body corporate.

I consider that a similar approach should be applied to the provision of necessary toilet items including soap, paper etc. The body corporate should be expected to supply a reasonable amount of such items, consistent with ordinary and reasonable use, on a reasonably regular basis. However, in my view, this expectation should not extend to an unlimited provision of such items. If the reasonable quantity supplied is insufficient due to waste or excessive demand, then I conclude that it is reasonable that the commercial owners or tenants will themselves contribute to the supply of such items.

As for the determination of what regularity of cleaning and what provision of toilet items is reasonable in any given period, I consider that it is necessary for the parties to determine this based on practicalities. I am not in a position to make any assessment of this. In the circumstances, I conclude that the parties, in particular, the committee and the commercial owners or tenants will need to discuss these aspects and reach some consensus.

Number of Scheme:	15183
Name of Scheme:	Goldsborough Place
Address of Scheme:	39 Vernon Terrace NEWSTEAD QLD 4006

•	Lot 54 coffee shop - 20/130
•	Lot 66 real estate office - 10/130
•	Lot 67 accountant 10/130
•	Lot 70 restaurant- 90/130.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Goldsborough Place [2006] QBCCMCmr 67 (14 February 2006)