Federation Park [2007] QBCCMCmr 429 (20 July 2007)

Number of Scheme:	30544
Name of Scheme:	Federation Park
Address of Scheme:	9 Harpulia Court MORAYFIELD QLD 4506

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

I hereby order that, within three months, the body corporate committee must pass a resolution specifying the committee's preferred location for the garden shed. However, prior to this resolution being passed, the committee must provide notice to owners that the committee will be considering the issue and give the applicant an opportunity to put forward her preferred location for the shed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0133-2007

"Federation Park" CTS 30544

Federation Park Community Titles Scheme (Federation Park) is a 42 lot scheme under the Body Corporate and Community Management Act (Act) and the Act’s Standard Module Regulation (Standard Module). The scheme is designed for residential purposes and lot boundaries are designated under a standard format plan.

This application is by Shirley Suthers, owner of lot 38 (applicant) seeking orders against the body corporate for Federation Park (respondent).

The body corporate must administer, manage and control the common property and body corporate assets reasonably and for the benefit of lot owners (Act, 152). The committee is entitled to make decisions about improvements to common property if the cost of the improvements is not more than $300 for each lot, being $12,600 in the case of Federation Park (Act 100, Standard Module 113).

The dispute is about the placement of a shed on common property. The applicant says this shed was placed by the body corporate management company without notification to owners. It was initially submitted that the shed posed a security risk to the applicant's lot. This was on the basis that a wrongdoer could shelter behind the shed and climb over the fence into the applicant's lot unobserved.

A fence has subsequently been built along the back of this shed. This fence would prevent wrongdoers from walking behind the shed. However, the applicant says that someone could now climb the new fence into lot 21 and then proceed unobserved from lot 21 into the applicant's lot.

The applicant expresses concern that her security has been affected by these changes and that she should have been consulted about the location of this shed, particularly as she is contributing to the costs of the shed.

I have reviewed the submissions and a number of photographs provided with the application.

The applicant has provided a brochure from the Queensland Police that indicates it is preferable for security purposes if the house number is clearly visible from the street and potential offenders are able to be seen in the yard. However, these are just two of a number of guidelines and there is no reasonable guarantee of security if these guidelines are met. Further, there is nothing to indicate that ensuring the general visibility of large front fences assists with security as the security recommendation is not to have large front fences at all. Presumably, even if the fence itself was in open view a wrongdoer could take an opportunity to climb over the fence unobserved and then the fence would protect the wrongdoer from observation by people passing by.

There is no evidence that satisfies me that the placement of the shed is unreasonable merely because it makes some parts of the applicant's fence less visible. In any event, there are other ways in which the applicant can make her home more secure, including by the installation of a security alarm.

In the original reasons published on 20 July 2007 I made reference to a submission by the applicant that the position of the shed was determined by the body corporate manager. In fact, the applicant's submission used the abbreviation "the BCMC" which is a reference to the committee rather than the body corporate management company. The substantive issue is that some person has positioned the shed without a committee resolution determining the position. However, it is appropriate that I re-issue these reasons for decision with my earlier incorrect reference to the body corporate manager corrected pursuant to the slip rule.

In respect of the positioning of the shed, I reiterate concern with the submission by the applicant that the position of the shed was determined without the applicant being given an opportunity to discuss the positioning of the shed.

There are only two ways in which the body corporate can make decisions. Most day to day decisions can be made by the committee. More significant decisions of the body corporate need to be made by the lot owners in the scheme voting at a general meeting.

Committee resolutions must be made either at a committee meeting or by a written resolution signed by a majority of committee members. Each owner who has not instructed the secretary otherwise must be given copies of notices of committee meetings and any proposals in writing to pass a committee resolution without a meeting (Standard Module 28(3), 35(3)).

The committee is elected by owners and committee members are expected to make decisions that are in the best interests of owners. It is important that owners are given an opportunity to provide input into decision making. On the other hand, a decision that is in the best interests of all owners is not always a decision that is beneficial to each and every owner.

I have been provided with a copy of a written committee resolution confirming that an amount not exceeding $800 be allocated for the purchase and installation of a garden shed. However, this resolution does not specify where that shed is to be installed. No individual committee member has the power to individually decide where the garden shed should be located. Therefore, it is necessary that there be another committee resolution to specify the installation location for the shed.

I have concluded that the committee has never properly considered and determined the placement for the shed. This determination should have been made after notice to owners so those owners would have at least had an opportunity to discuss any concerns about the placement with the committee members.

On the other hand, the applicant has not satisfied me that the present placement of the shed provides such a significant impact on the security of her home that the body corporate should not be allowed to palace the shed in its present position. As a question of compliance with legislation, it is simply a matter that the committee should properly consider the positioning of the shed and determine a reasonable location.

I am satisfied that a just and equitable order in the circumstances would be to give the applicant, and any other owner, an opportunity to propose an alternative placement for the shed. The committee can then consider that proposal in making its own formal determination on where the shed should be placed. This determination by the committee may or may not result in the shed being moved depending on the persuasiveness of any proposals placed before the committee.

For these reasons, I make the order above.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Federation Park [2007] QBCCMCmr 429 (20 July 2007)