92 Abbott Street [2007] QBCCMCmr 388 (27 June 2007)

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

I hereby order that Michael Musso as owner of Lots 1 and 2 and Flavio Morreti as occupier of Lots 1 and 2 being known as a café/restaurant called " Chapter One", must insure that clear access of at least one metre in width is given between the foot of the common property staircase and the public footpath at all times; and that any menu board and stand are not positioned within 60 cm of the newel post at the bottom of the stairs at any time during the opening times of the restaurant. All reasonable steps must be taken to ensure that customers at the restaurant do not impede the clearway with personal items or by moving tables or chairs.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0048-2007

"92 Abbott Street" CTS 29083

APPLICATION

This is an application dated 12^th January 2007 and amended on 27^th February 2007 by Nadine Bent (the Applicant), owner of Lot 3 in the scheme, against Michael Musso and Flavio Moretti, (the Respondents) owner and tenant respectively of both Lots 1 and 2 in the scheme operating as a restaurant/café called "Chapter One", for an order that they refrain from placing tables, chairs, signs, placards, plants or any other material on the common area which provides access to Lots 1,2 and 3, and in a manner which restricts or blocks access to the entrance of the Applicant’s lot. The Applicant also seeks an order to restrain the Respondents from placing stacked tables, chairs, or any other materials in a manner that does not allow clear access as required by fire regulations.

JURISDICTION

"92 Abbott Street" Community Titles Scheme 29083 is a community titles scheme governed by the Body Corporate and Community Management Act 1997 (the Act) and the Body corporate and Community Management (Commercial Regulation) Module 1997 (Commercial Module). There are five lots in the scheme created under Building Format Plan of subdivision.

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)).

SUBMISSIONS

The Applicant owns Lot 3, the offices of the Australian Bookkeeping Company, which is on the first floor situated above Lots 1 and 2. Lots 1 and 2 operate as a restaurant called "Chapter One." Access to Lot 3 is via an exterior staircase adjacent to the restaurant entrance. The stairs, the area at the foot of the stairs and the entrances to Lots 1 and 2 are common property.

The Applicant’s business is open to the public on weekdays between 8am and 6pm and occasionally in the evenings and weekends, and staff may work of an ad hoc basis at any time. The restaurant is open 6 days a week in the evenings only. The tenant of the restaurant places tables and chairs on a public pavement at the front of the restaurant to provide extra seating, and the owner has obtained local authority approval for pavement dining. There is however no local authority approval or body corporate approval for the tenant to place tables and chairs on common property between Lots 1 and 2 and where the pavement starts. This is an area for gaining access to Lots 1, 2 and 3,

When the restaurant is closed, the tenant stacks tables and chairs on common property at the base of the stairs and in front of Lot 1. There is a security gate which is then pulled across the common property boundary and locked. The owner of Lot 1 and the Applicant have keys to the security gate.

The Applicant says that "on a number of occasions" her staff and her clients have had to move signs, tables and chairs out of the way in order to get access to the staircase to her office. When leaving late at night, her staff have had to pick their way through diners at tables. A member of staff tripped over the leg of the menu blackboard at the bottom of the stairs and nearly injured a dining customer. The customer was seated on common property.

The Applicant is also concerned about fire regulations which require clear access and egress to a building. The Applicant provides seven photographs showing the front of Lots 1 and 2, and the pavement, as well as diners and tables, chairs and a menu board at the base of the staircase.

On 7^th August 2004, the Applicant wrote to the lot owner complaining about noise from the restaurant. On 26^th January 2006 the Applicant wrote to the tenant Mr Moretti explaining that her access to the stairs was restricted by tables and a display board. She asked him to place these articles in a manner which did not impede her access.

In the application, the Applicant also provides a copy of the minutes of an annual general meeting (AGM) held on 1^st September 2006. The Applicant had submitted motion 12 that "the body corporate review the use of common areas at the front of the building" and it was resolved that a committee meeting be held to authorise an application to the Commissioner’s office. The motion was passed by one vote since the Applicant, who chaired the meeting, was the only voter at the adjourned AGM. The Applicant also provides a copy of the agenda of an extraordinary general meeting (EGM) to be convened on 22^nd January 2007 (although misdated 22^nd January 2006), whereat the Respondent Michael Musso (Mr Musso) , Del Russo Investments, owner of Lot 4, and Dransville Pty Ltd, owner of Lot 5 had proposed a motion to invalidate motion 12 of the AGM. The motion gives as the reason for invalidation that as a member of the committee, the Applicant could not vote on a motion to make an application to this Office since she would have a conflict of interest. The motion is complex in its wording but appears to seek financial restitution from the Applicant and/or the body corporate manager if any body corporate funds have been expended in reliance on the passing of Motion 12.

Other motions proposed to the EGM by owners of Lots 2, 3, 4 and 5 were to revoke or invalidate the motions of the AGM.

In accordance with section 243(2) (b) Act, submissions were invited from all lot owners. Mr Moretti the second Respondent and tenant of Chapter One, were also invited to make a submission, but did not do so.

Mr Musso says that he is not sure what the application is about. He is aware that his tenant has in the past made noise, and that this issue has now been resolved since the restaurant has installed a decibel counter. He says "Some tables, chairs and a menu board make access to Lot 3 difficult and will be removed." He reiterates that he will remove "what is known as table 27 and the menu board "and that they will not be placed there in the future. He is not sure what the Applicant wants, and says since the two businesses have to operate side by side, he "cannot just disappear. " He says there has been a restaurant on the site for 30 years, and that the Applicant is just out to "punish" the restaurant about the old noise issue, and that the Applicant has called in health inspectors and immigration authorities. These are "old stories."

The Applicant exercised her right of Reply, She says that the music issue has now been fixed. She admits to complaining to the Liquor Licensing authorities but denies calling in heath inspectors or immigration agents both of which actions she says are "laughable." She says that she established her business in 2001 in a lot which used to be the restaurant referred to by Mr Musso. At the time there was an empty shop and a café downstairs, and the café closed at 5pm. She agrees that there has not been a "pleasant history" between the Respondents’ business and her business, but she simply wants the common area to be kept clear. She says that "moving one table and a menu board will not solve the problem."

I sought further information from the tenant Mr Moretti asking him to respond by 19^th June 2007. There was no response to that letter although I pointed out to Mr Moretti than any order I might make could affect the operation of his business.

DETERMINATION

In this matter, the Applicant, the owner of an upstairs lot, says that the operation of her business as a bookkeeping service is hindered by the use made by the Respondents of common property. Her clients and her staff on occasions detailed, have had to negotiate tables and chairs and a menu board all placed on common property, and this has caused an incident where the menu board was overturned and caused a confrontation with diners. The Applicant is also concerned about access by emergency services.

It is not denied by the Respondent Mr Musso that use is made of the common property but he says that since the Applicant’s business hours are 9am to 5pm and the restaurant hours are 6pm to 10pm they should not get in each others’ way. He also says that the fire brigade has agreed that the stacking of tables and chairs outside the door of Lot 1 "is not a fire hazard."

He has offered to move table 27 and the menu board, but the Applicant says that will not solve the problem which is, as far as I understand it, that the restaurant uses the common property to the detriment of the Applicant’s enjoyment of her property. Mr Musso has also offered to remove tables and chairs which " make access to Lot 3 difficult" but these were not specified in the way that ‘table 27’ was.

The Applicant provides a copy of the scheme by-laws but this is not an application made relying on breaches of by-laws. The body corporate has not caused a Continuing Contravention of By-law Notice to be sent to the Respondents.

There are two legal points in this matter. The first is that section 167 Act prohibits a lot owner in using his own property or the common property, from causing a nuisance or hazard, or from interfering unreasonably with the use by another lot owner of their property or the common property. The second is that use of common property to the exclusion of other lot owners who have an equal right to use and enjoy the common property, has been held to be contrary to the Act.^[1] Certain uses might only be lawful if the user was acting in accordance with an "exclusive use" by-law, which can only be created by a resolution of the body corporate without dissent. (Section 62(3) (a) Act).

Section 167 Act states as follows -
167 Nuisances

(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.
In Platt v Ciriello^[2] , the Supreme Court had to decide whether the placing of articles including tables and chairs, on common property, was in breach of the body corporate legislation as then existing. The three judges of the Court of Appeal expressed differing views. Two of them found that the test depended not on whether the placement amounted to an exclusive use of the area occupied, but on whether the use made of the common property "interfered unreasonably" with the use or enjoyment of the common property by other occupiers of lots or those entitled to use the common property, the wording now used in section 167 Act set out above.

In his minority judgment, Pincus J. took the view that the law did not allow one lot owner to use the common property in such a way that fellow lot owners were absolutely excluded from using that part of the common property. However, he did distinguish between temporary and permanent use saying that a temporary placement of items (such as tables and chairs) on the common property did not amount to an ‘exclusive use’ of common property.

McPherson J. qualified the "unreasonable interference" test in stating that what constituted "unreasonable interference" is a question of fact and, by example, said that an advertising sign may well interfere unreasonably with the enjoyment of the common property in a residential scheme, but not necessarily in a commercial one.

In distilling the essence of the judgment, it appears to me that whilst the temporary placing of tables and chairs might not constitute an exclusive use of common property, such use could cause a hazard or nuisance or interfere unreasonably with another lot owner within the meaning of section 167 Act, and whether or not it does so depends on the circumstances of each case.

Is the placing of the tables and chairs a hazard? Certainly there has been ‘one incident’ where the menu board was overturned, Mr Musso saying that the board was deliberately kicked over, and the Applicant saying that her staff member tripped over it. I do not consider that one incident, the date of which has not been disclosed, is enough to say that the tables and chairs are in themselves "hazardous." The Respondents would be most unwise to leave hazardous materials or place equipment in such a way on the common property so that they would be liable for injury to members of the public, or other lot owners or occupiers.

It is of relevance that this is a commercial scheme, where a restaurant or café has been situated for many years, albeit in different lots. I also find it relevant that the Applicant submits as part of her application, only two letters of complaint to the Respondent(s), one dated in August 2004 and the other in January 2006. Whilst I can appreciate that it is annoying in the extreme for the Applicant, her staff and her clients to come downstairs into a restaurant in full swing and have to edge between tables, I do not get the impression that this happens every day, or that the Applicant, or her staff or her clients are inconvenienced on a regular basis. Is the placement of the tables and chairs on common property therefore an "unreasonable" interference, that is a continuing nuisance to the Applicant, or something which in a commercial scheme, she should be expected to accept as part of the busy and disparate life of the scheme?

In the (undated) colour photographs provided by the Applicant, there appears to be only one table and two chairs and the menu board at the foot of the stairs, which could impede access. The tables and chairs as stacked outside the door when the café is closed do not appear to impede access to the stairs.

This application appears to be fuelled by the attempt in January 2007 by the Respondent Mr Musso and other owners, with whom he may or may not be connected, to undo the almost sole efforts made the Applicant as acting chairperson and as the only nominated chairperson for the forthcoming year, to hold the AGM in September 2006, at which statutory motions and other motions were properly passed. I find that Motion 3 of the EGM is a heavy-handed example of the Respondent Mr Musso’s attempt to gag the Applicant from complaining about the use of common property by his restaurant.

However, I am not satisfied that the placing of all the tables and chairs has caused an "unreasonable interference" as understood by section 167 Act. Since the Respondent Mr Musso has agreed to remove table 27 (which I am taking to be the table which is placed at, or very near, the bottom of the stairs) and the menu board, then he should do this and I will make such order which encompasses the removal of these items. There is no evidence at all that the tables and chairs, or any of them, or the way they are stacked at night, has breached any of the fire safety regulations.

My decision might not be the same if the Applicant had relied on the by-laws of the scheme. By-law 3 of the scheme is headed "Obstruction" and states that an occupier must not obstruct the lawful use of common property. In B.C. Phoenician –v- Herme Pty Ltd BD2346/05 a District Court Appeal from an adjudicator’s order, Durward DCJ quoted the case of Haywood –v- Mumford (1908)7CLR 133 about loitering in a street, and found in interpreting a similar by-law that "obstruct" includes "any continuous physical occupation of a portion of a street which appreciably diminishes the space available for passing and repassing or which renders such passing or repassing less commodious...." The fact that the passageway is not being used by anyone else at the time is immaterial. Café tables and chairs at the side of a common property passageway in a Gold Coast resort were found to be an obstruction and thus a contravention of the by-laws. The café owner had to remove all his tables and chairs.

By-law 17 of the scheme, understandably not provided in the application, might also be relevant.

In order to rely on the by-laws, the Respondents must first have been sent a Contravention Notice and have failed to comply with it, or else, the body corporate must have been asked to issue such a Notice but has not done so within 14 days (Section 182(3) Act.) Only after this preliminary procedure has been undertaken, can this Office adjudicate on a dispute alleging breach of by-laws.

Number of Scheme:	29083
Name of Scheme:	92 Abbott Street
Address of Scheme:	92 Abbott Street, CAIRNS QLD 4870

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

92 Abbott Street [2007] QBCCMCmr 388 (27 June 2007)