Banks Plaza [2007] QBCCMCmr 62 (7 February 2007)

Last Updated: 20 February 2007

REFERENCE: 0818-2006

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	34062
Name of Scheme:	Banks Plaza
Address of Scheme:	3 William Banks Drive BURLEIGH HEADS QLD 4220

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Greyden and Jillian Tapp, the owner of Lot 11

I hereby order that the application for an order by Greyden and Jillian Tapp, the owner of Lot 11 against the body corporate for Banks Plaza community titles scheme 34062 seeking an outcome that Michael Salay trading as Chef Internationale, the occupier of Lot 11 be allowed to keep an industrial garbage bin on the common property exclusive use area allocated to Lot 11 under By-Law 26, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0818-2006

"Banks Plaza" CTS 34062

APPLICATION

This application is by Greyden and Jillian Tapp, the owner of Lot 11 (applicants) against the body corporate. The applicants named Michael Salay trading as Chef Internationale, the occupier of Lot 11 as a person who would be affected by the outcome sought. The outcome sought is that the occupier of Lot 11 be allowed to retain the industrial bin on the exclusive use car park for the Lot.

The applicants’ state that the industrial bin has been stored on the exclusive use car park for Lot 11 as the local authority requires that it cannot be legally stored inside the building. The applicants’ provided a copy of a letter from Warren Fenton of Body Corporate Brokers dated 21 September 2006 to the body corporate manager and regarding Banks Plaza relevantly stating that "We would also request that the industrial bin should have a metal lid and be securely locked by padlock at the end of each working day and also stored away from the building. Would you please implement the aforementioned...to ensure compliance with the insurance policy requirements". The applicants’ submit that they have contacted Warren Fenton on 25 September and 13 October 2006 and were informed that the bin could remain in the covered park but he would like to see a lockable metal lid (although this is not a mandatory requirement).

The applicants submitted that the occupier applied for and received body corporate permission to have the bin outside. In this regard, the applicants refer to a memorandum to all committee members dated 10 March 2006 from C.Ann R. BCM Pty Ltd (body corporate manager) stating that "with regard to the flying agenda that was recently issued to allow Unit 11 to keep an Industrial Bin on common property...Please be advised that I have had two objections...Please advise the undersigned if you wish to reconsider the motion after hearing the objections". The applicants also provided a copy of another memorandum to all committee members from the body corporate manager and dated 10 May 2006 enclosing a letter sent to the committee on 10 March 2006 and stating that the committee members have not replied to the objection. A subsequent notice of motion to be voted on outside a committee meeting required the committee to vote on the motion that the committee consider the application from Lot 11 to keep an industrial bin in the exclusive use car park beneath his lot. The note to this motion stated that the motion had previously been sent to members but no reply was forthcoming. The copy of the record of votes provided by the applicant and dated 28 September 2006 indicates that 3 committee members opposed the motion.

JURISDICTION

"Banks Plaza" Community Titles Scheme 34062 is a scheme under the Body Corporate and Community Management Act 1997 (Act) and the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module).

An adjudicator may make an order that is just and equitable in the circumstances to resolve a dispute, in the context of a community titles scheme, about a claimed or anticipated contravention of the Act or the community management statement; or the exercise of rights or powers, or the performance of duties, under the Act or the community management statement^[1].

SUBMISSIONS

In accordance with the Act, submissions were called and a copy of the application was provided to the body corporate manager for distribution to the owner of each lot (excluding the applicants) and the committee. A submission was received from the committee and two lot owners. The applicants made a written reply to submissions under section 244 of the Act.

The submissions made on behalf of the body corporate were to the effect that given that By-Law 26 clearly stipulates that the exclusive use areas are for "carparking purposes", the applicants are prevented from using this area for any other purpose and the committee could not grant approval to store the bin on this area. The body corporate claims that keeping the receptacle on the exclusive use area places the body corporate at an insurable risk, and in this regard it refers to the abovementioned letter dated 21 September 2006 from Warren Fenton of Body Corporate Brokers. The body corporate questions the applicants’ statement that the local authority will not allow the bin to be stored inside the premises given that it is not supported by any written evidence, and state that other bins are being stored in those premises.

Mr Long of Lot 8 submitted that there are five bins of the same size in the complex and only one is left out. He states that the bin regularly stinks and is an eye sore. Mr Davis of Lot 10 opposes the placement of the bin on common property near Lot 10 given the continual smells from the bin.

In the written reply to submissions, the applicants stated that By-Law 26 refers to gardening and maintenance indicating that the area can be used for purposes other than car parking. They state that if the committee could not override the By-Law, the body corporate manager should not have encouraged themselves or the occupier to seek permission, and that this reinforces that the term ‘exclusive’ refers to use by the occupier not as car park only. The applicants question why the committee is attempting to force occupiers to store the bin inside the unit if the bin must be stored away from the building. The applicants dispute the claim that the bin regularly stinks citing visits from the Environmental Protection Agency and do not believe that the bin is an eyesore.

DETERMINATION

It is apparent from the material submitted by the parties to the application that the occupier of Lot 11 is keeping an industrial bin on part of the common property allocated by By-Law 26 to the owner of the Lot.

By-Law 26 concerns exclusive use and states "The proprietor for the time being of each lot shall be entitled to the exclusive use and enjoyment of that part of the common property as shown and identified on the attached plan with a number prefaced with the letter "C" (refer to Schedule E) for car parking purposes. Such proprietor shall be responsible for all gardening and maintenance work in respect of such area and all costs from time to time necessary or desirable to keep and maintain the standard of such area similar to the common property". Schedule E of the CMS and the plan marked ‘Plan A’ indicate that the owner of Lot 11 has exclusive use of the common property areas marked C11, C12 and C13.

Common property is owned by the owners of lots as tenants in common^[2]. The body corporate is comprised by the lot owners^[3] and it has numerous obligations under the Act to administer and otherwise deal with the common property. For example, a body corporate’s general functions include administering the common property for the benefit of lot owners and enforcing the community management statement (CMS), including scheme by-laws ^[4]. A body corporate’s duties about common property include administering, managing and controlling the common property reasonably and for the benefit of lot owners^[5].

Furthermore, a body corporate may make by-laws that provide for the administration, management and control of common property and which regulate the use and enjoyment of common property^[6], including exclusive use by-laws which attach to a lot and give the occupier of the lot exclusive use to the rights and enjoyment about common property^[7].

Given a body corporate’s powers, duties and functions with respect to common property, a lot owner or occupier does not have a right to use common property for that person’s own benefit without body corporate authorisation in accordance with the Act, or in accordance with a by-law for the scheme. In this instance, By-Law 26 specifically identifies the common property allocated for the exclusive use of the lot owners, including the owner of Lot 11. The By-Law also stipulates that the purpose of the exclusive use is car parking. Given that the terms of the By-Law bind the body corporate, each member of the body corporate (each owner) and on each person who is otherwise an occupier of a lot in the scheme^[8], I agree with the body corporate’s submission that the area cannot be used for a purpose other than car parking and the committee does not have a power or discretion to allow another use of the area (even if it was relevant, I do not consider that the applicants’ have shown that the occupier of Lot 11 obtained body corporate authorisation to keep the bin on common property). I do not agree that the maintenance obligations stated in the By-Law indicate that the area can be used for other purposes. Consequently, I do not consider that the occupier of Lot 11 can keep a garbage bin on the exclusive use area allocated to Lot 11.

The applicants should also note the requirements of By-Law 9 stated in Schedule C of the CMS for the scheme which relates to garbage disposal and states that "A proprietor or occupier of a lot shall--

(a) Save where the Body Corporate provides some other means of disposal of garbage maintain within his lot, or on such part of the common property as may be authorised by the Body Corporate in a clean and dry condition is adequately covered, a receptacle for garbage;
(b) Comply with all local authority by-laws and ordinances relating to the disposal of garbage;
(c) Ensure that the health, hygiene and comfort of the proprietor or occupier of any other lot is not adversely affected by his disposal of garbage.

It would seem that the occupier of Lot 11 has not sought body corporate approval to place the bin on another part of common property. Consequently, I do not consider that the occupier is currently entitled to place the bin on any part of scheme land other than Lot 11.

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^[1] Section 276(1), Act.
^[2] Section 35, Act.
^[3] Section 31, Act
^[4] Section 94, Act.
^[5] Section 152, Act.
^[6] Section 169, Act.
^[7] Sections 170 and 173, Act.
^[8] Section 59, Act.