Bayview Shores [2008] QBCCMCmr 309 (2 September 2008)

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Charles and Patricia Fennell, the owner of Lot 71

I hereby order that the opposition to Motion 20 at the Annual General Meeting of the body corporate for Bayview Shores community titles scheme 4078 dated 13 April 2008 was in the circumstances unreasonable.

I further order that Motion 20 as proposed by Charles and Patricia Fennell, the owner of Lot 71 “That the Body Corporate approve the proposed conversion of the rear section of tandem car space 71 into a lockable storage cage” is deemed to be passed.

I further order that the Body Corporate is deemed to have consented to a new community management statement to record the difference in the exclusive use by-laws as a consequence of the passing of Motion 20 and that the Body Corporate must prepare and lodge a new statement consistent with this consent in accordance with the Body Corporate and Community Management Act 1997.

I further order that the Body Corporate is deemed to have authorised the owner of Lot 71 to construct a storage cage on the common property to be allocated by By-Law 19 to Lot 71 provided the cage is constructed in the way stated in the explanatory note to Motion 20 submitted by the owner and in the Attachment 7 referred to in Motion 20 and included in the notice of the 2008 AGM.

The scheme
“Bayview Shores” community titles scheme 4078 is subject to the Body Corporate and Community Management Act 1997 (Act) and the Body Corporate and Community Management (Standard Module) Regulation 2008 (Standard Module).

Application
This application is by Charles and Patricia Fennell, the owner of Lot 71 (Applicants) against the Body Corporate seeking an outcome to overturn Motion 20 of the Annual General Meeting dated 13 April 2008 (2008 AGM) on the grounds that it is both unreasonable and inconsistent with the number of car spaces existing now as lock-up garages.

The Applicants are seeking a lock-up cage on the rear of their tandem car spaces. They say the cage would not interfere with pedestrian or vehicular traffic as the car space is in the back corner of the car park and would be bounded by two brick walls. The Applicants propose a cage the same as Cage 52 constructed on Car Space 75 which they say was approved in 2002 after an order made on Application 0201-2002. The Applicants state the proposed construction of the cage will allow a future owner to revert to a two car space simply by opening the cage doors.

The Applicants provided a plan of exclusive use areas on the Level A common property showing 7 enclosed car spaces, the location of the storage cage on Car Space 75 and the location of the proposed cage on Car Space 71. The Applicants also included 4 photographs, two of which appear to show cage 52. The other two photographs would seem to show Car Space 71.

Submissions to the Commissioner
On 30 May 2008, the Commissioner provided a copy of the application to Gold Coast Body Corporate Specialists (the Body Corporate Manager) for distribution to the owner of each lot (excluding the Applicants) and the committee, with an invitation to respond to the matters raised in the application (s 243, Act).

Submissions were made by the committee and by 8 lot owners (one submission was received late).

The committee submitted that its interpretation of what the Applicants sought at the 2008 AGM was the enclosure of part of Car Space 71 and the redesignation of that area as a storage area. The committee state Motion 20 was deficient as it didn’t clearly authorise the submission of a new CMS to change the exclusive use areas. The committee are of the view a chain wire fence will affect the owner of Car Space 72 as the proper opening of a car door will go over the boundary line. The committee states if this application is successful, it would be difficult for the committee to refuse similar applications from other tandem car park owners therefore potentially affecting the owners of Car Spaces 73, 74, 78 and 79. The committee also state that the storage area “ST52” is not as shown on the schedule E plan, but has been changed to have the chain wire fence on the boundary line between Car Spaces 74 and 75.

The owner of Lot 37 opposed the application stating the storage cage would restrict the opening of car doors in Car Space 72, the reduction in the length of Car Space 71 would lead to ‘overhanging’ and would set a precedent for proposals to fence off various sections of other car spaces. It is also submitted that it is proposed the cage is to be identical to Cage 52, that the exclusive use plan shows this cage is set back some 400mm from the boundary of Car Space 74 and that the cage is on the boundary.

The owner of Lot 70 supported the application saying the request is reasonable under the existing circumstances of the building.

The owner of Lot 100 opposed the application stating there were 18 owners against the Motion which was not the whim of a couple of owners and the Motion should not be overturned with so many owners voting against it. He says that there was a different set of circumstances in the adjudication on 52/2002 as Car Space 75 belonged to Apartment 21C which had been joined to Apartment 21F and the combined apartment had 4 car spaces before Car Space 72 was altered to give the combined apartment 3 car spaces. He says the decision made should not be regarded as a precedent. Mr Kerr adds it would not be acceptable to the owners of Car Space 72 if as a consequence of a cage, they had difficulty in opening the left hand side door of a vehicle. Mr Kerr states that if storage is required, the common area needs to be given exclusive use as a storage cage, and if the area is to be used as a car space, it cannot be used for storage purposes. Mr Kerr is also concerned that if the Applicants are successful, other owners will want to enclose their car space causing a cleaning problem and an aesthetic problem in the car park.

Referral to adjudication
A dispute resolution recommendation has been made under section 248 of the Act referring the dispute to departmental adjudication.

In accordance with the investigative powers stated in section 271 of the Act, on 4 August 2008 I requested the Body Corporate Manager provide a copy of the minutes of the Annual General Meeting dated 17 March 2002 (2002 AGM) and a copy of the notice, voting register or tally sheet and minutes of the 2008 AGM. The Manager provided this information on 21 August 2008.

Background
The Body Corporate was created in 1991 when the Registrar of Titles registered Building Units Plan 11509 under the Building Units and Group Titles Act 1980.

On 19 March 1992, the Registrar recorded a change of by-laws on the plan. By-Law 40(a) made provision for entitling the proprietor of a lot to the exclusive use of a car space on the basis that the space shall be used “for the purpose of car parking only”. By-Law 40(b) provided for the allocation of common property as exclusive use storage space. On 8 December 1992, the Registrar recorded a change of by-laws noting the allocation of Car Space 71 to Lot 71. On 17 September 1993, the Registrar noted the allocation of storage spaces numbered 1 to 49 on the plan. On 29 August 1996, the Registrar recorded a change of by-laws. By-Law 38(a) related to the exclusive use of a car space with each allocated space to be used “for the purpose of parking of registered cars, caravans, boat trailers, motor bikes or similar registered vehicles only”. By-Law 38(b) related to exclusive use storage spaces stating each space is to be used “for the purpose of storage only”.

By-laws in these terms were included in the new community management statement (CMS) first lodged by the Body Corporate under the Act after its commencement in 1997 (702686085 recorded 3 June 1998). At this time, the owner of Lot 71 had exclusive use of Car Space 71 and there were still 49 allocated storage spaces.

These By-Laws continued to apply when the 2002 AGM was held (CMS 703653858). It was at this meeting that the owner of:

As a consequence of these decisions, two applications were made under the dispute resolution provisions of the Act.

Application 0174-2002 was determined on 21 June 2002 by an order of an adjudicator that the application by Donald William Sharp and Lois Sharp, the owners of lot 30, to overturn 2 “against” votes for motion 19 at the AGM held 17th March 2002 so that the motion is resolved in the affirmative, is approved. The adjudicator also overturned the dissenting votes from Lots 37, 53 and 61 and ordered that the body corporate is hereby authorised to implement or give effect to the terms of motion 19, as if it had been carried by resolution without dissent, in particular by lodging a new Community Management Statement with the Registrar of Titles.

In the statement of reasons for making this decision and in referring to the argument made by the applicant, the Adjudicator stated (in part) Car space 30 is virtually unusable by a family size vehicle and has been a recurring problem area during the life of the building. The underlying cause is that cage 40 has been constructed right at the boundary entry point and insufficient turning space exists to straighten up the car before entry. Once parked between a pillar and the adjacent cage 40, squeeze – through space only remains either side of the vehicle. Mrs Sharp cannot park the vehicle and Mr Sharp requires an observer to provide guidance...Motion 19 corrects access problems for car space 30, provides adequate space for transiting pedestrians and creates two additional storage cages with cage ST1 then released for sale...In the circumstances, I intend to overrule the three dissenting votes to motion 19, in order to validate the motion.

Application 0201-2002 was also determined on 21 June 2002 by order of an adjudicator that motion 13 on the agenda of annual general meeting of the Body Corporate held on 17 March 2002, be given effect as having been validly passed and that the dissenting vote of the co-owner of lot 61 is overturned. I further order that the Body Corporate Committee may, on the authority of this order, endorse the consent of the Body Corporate on a new Community Management Statement and lodge a request with the Registrar of Titles, for a new Community Management Statement to be recorded.

In the statement of reasons for making this decision, the Adjudicator stated (in part) that given By-law 38(a)...it is not possible for the applicants to use car space number 75 for storage purposes. Because the matter involves an exclusive use by-law, a resolution without dissent is required to record a new community management statement to identify the change to the by-laws...The issue I am being asked to consider is whether the opposition to motion 13 is unreasonable in the circumstances and that it is just and equitable that the applicant succeeds. Because of the significant support for the proposal and specifically that it is supported by the owner most affected, in my view, there is no valid reason why the motion should not be passed. In the circumstances, I propose to make the order sought by the applicant.

New CMS (705710411 recorded on 8 July 2002) included By-Law 19 titled “Storage Cages” and By-Law 23 titled “Vehicle Parking”. By-Law 19.1 specifically identified the common property allocated as exclusive use storage spaces. By-Law 19.2 stated (in part) the “cages shall be used for the purpose of storage only of personal belongings of the owner having exclusive use of a particular cage”. By-Law 23.1 specifically identified the common property allocated as car spaces. By-Law 23.2 stated (in part) “Each Occupier to whom exclusive use of a car space or spaces is given shall use such space/s for the purpose of parking registered cars, caravans, boat trailers, motor bikes or similar vehicles only...Car spaces shall not be used for the storage of goods and chattels”.

New CMS (706076334 recorded on 11 November 2002) included additional storage areas marked on the ‘Plan of Exclusive Use Areas 1-101, ST1-ST52’ (Exclusive Use Plan) as ‘ST50’, ‘ST51’ and ‘ST52’. ‘ST50’ and ‘ST51’ were made as a consequence of the order made on Application 0174-2002. ‘ST52’ is situated on part of common property previously wholly allocated as Car Space 75 and was made as a consequence of the order made on Application 0201-2002.

The Applicants became the owner of Lot 71 in June 2007. The CMS which applied at this time (710146718 recorded on 2 December 2006) and the CMS which applied when the 2008 AGM was held (711177005 recorded on 15 November 2007) included the abovementioned By-Laws 19 and 23 and the Exclusive Use Plan.

The Exclusive Use Plan shows Car Space 71 as being on the eastern side of Level A of the building, being partly bounded by a wall/s, the northern boundary of the Space adjoins Car Space 72 and that there are 3 other larger Car Spaces in the vicinity numbered 73 to 75. The schedule to the Plan shows that Car Space 72 is allocated to Lot 69, Car Space 73 to Lot 98, Car Space 74 to Lot 92 and Car Space 75 to Lot 75.

Motion 20 on the agenda of the 2008 AGM was proposed by the Applicants and read “That the Body Corporate approve the proposed conversion of the rear section of tandem car space 71 into a lockable storage cage. (Refer Attachment 7)”.

The committee’s explanatory material included in the meeting notice included a note with respect to Motion 20 providing a background to the construction of ‘ST52’ and stating “If this application is approved it is highly likely that any of the car spaces 71 to 74 could gain approval for a similar storage area as it would in all probability be considered discriminatory and unreasonable to refuse other owners. In deciding to support or reject this application the owners of car spaces 72 to 74 need to consider the impact on their parking spaces that storage cages built to the boundary on both sides would have”. The Applicants explanatory note to the Motion says their intention is to construct a cage identical to existing ‘ST52’; that the cage will have two half-size gates opening inwards allowing future storage of a second vehicle; and the reasons for supporting the motion are the method of construction preserves the tandem car space for future use, there is no cost to the Body Corporate and the cage will not affect the flow of any pedestrian or vehicular traffic. Attachment 7 included in the meeting notice is a plan of the proposed construction showing a proposed cage measuring 2730 X 4400mm (up to that boundary of the car space that adjoins Car Space 72), and stating the cage is to be surveyed by Bennett and Bennett and a revised Exclusive Use Plan is to be included in a new CMS.

The minutes of the 2008 AGM indicate that Motion 20 was lost with 18 no votes. The voting register for the 2008 AGM indicates that Lots 4, 6, 8, 10, 23, 33, 36, 37, 39, 43, 45, 54, 70, 82, 85, 90, 95 and 97 voted against the Motion. Relevantly, the register also indicates that Lots 92, 98 and 100 voted for the Motion and that Lots 69 and 75 did not vote on the Motion.

Motion 21 on the agenda of the 2008 AGM was submitted by the owner of Lot 98 proposing “That the Body Corporate approve the proposed part conversion of the rear section of car space 73 into lockable storage. (Refer Attachment 8)”. This Motion was lost with 27 no votes. The owner had made a dispute resolution application (0461-2008). This Application has been withdrawn.

The current CMS 711764549 (recorded on 22 August 2008) contains the same By-Laws, allocations and the Exclusive Use Plan as mentioned above, and maintains the same allocations of Car Spaces 71 to 75.

Jurisdiction
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 CMS; or the exercise of rights or powers under the Act or the CMS (s 276(1), Act). An order may require a person to act, or prohibit a person from acting, in a way stated in the order (s 276(2), Act). An adjudicator's order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate (s 284(1), Act).

Without limiting section 276(1) and (2), an adjudicator may make an order mentioned in schedule 5 (s 276(3), Act). For example, an adjudicator may require a body corporate to lodge a request to record a new CMS, regardless of whether the body corporate consents to the recording (clause 2), and if satisfied a motion considered by a general meeting and requiring a resolution without dissent was not passed because of opposition that in the circumstances is unreasonable — make an order giving effect to the motion as proposed, or a variation of the motion as proposed (clause 10).

The proposed exclusive use allocation
An exclusive use by-law attaches to a lot and gives the occupier of the lot exclusive use to the rights and enjoyment about common property (s 170(1), Act). The common property to which an exclusive use by-law applies that is specifically identified in the by-law may attach to a lot only if the lot owner agrees in writing before the passing of the resolution without dissent consenting to the recording of the new CMS that incorporates the exclusive use by-law or the lot owner votes personally in the resolution (s 171, Act). Similarly, a resolution without dissent is required before an exclusive use by-law can stop applying to a lot. Body corporate consent for a difference between the existing CMS and the new CMS where the difference is in exclusive use by-laws must be by resolution without dissent (s 62(1) and (2), Act).

It is clear from the above ‘Background’ that the Body Corporate has — almost since its creation — specifically allocated exclusive use of common property on Level A of the building for the purposes of parking and storage and has stipulated the ways the allocated areas may be used and enjoyed. It is also evident that owners who have sought to partially change the use of an allocated area have rightly sought the authorisation of the Body Corporate in general meeting by resolution without dissent.

It should be noted that while By-Law 19 deals with the allocation of common property for use as a storage space, the By-Law does not authorise the benefiting owner to make improvements to the exclusive use area. The construction of a storage cage of the nature proposed by the Applicants in the material distributed with the notice of the 2008 AGM would constitute an improvement (defined schedule 6, Act) and would, in the circumstances require the authorisation of the Body Corporate by special resolution (s 174, Standard Module).

Even though exclusive use of the part of common property currently allocated to Lot 71 would remain with the Lot, the proposed change in the allocation of the common property to that contemplated by By-Laws 19 and 23 necessitated a resolution without dissent. The proposal to construct a storage cage required a special resolution.

Motion 20 at the 2008 AGM
Motion 20 was included on the agenda of the 2008 AGM as requiring a resolution without dissent. The Motion proposed converting part of the allocated car space into a storage cage allocation.

The resolution without dissent on the Motion was lost. The Applicants have not contested the procedures for calling and holding the 2008 AGM, nor have they questioned the way voting was conducted at the meeting. The only issue raised about the Motion was in the committee’s submission that the Motion was deficient as it did not authorise a new CMS to change the allocated areas. While not specifically raised in the application, there would seem to be a question as to whether the Motion also authorised the construction of the storage cage.

In my view, the material submitted by the Applicants and included with the notice of the meeting clearly indicated that the object of their proposal was the reallocation of part of their exclusive use area from parking to storage and that the proposed storage area would be enclosed in a particular way. The material, including the committee’s explanation for Motion 20, suggested that a change to the scheme’s CMS would be necessary should the Motion be passed. Given the history of reallocating exclusive use areas in a similar way to that proposed by the Applicants, I do not consider there would have been any uncertainty about the intent of the Motion or about consequential processes regarding a new CMS had the Motion passed. In the circumstances, I do not consider the absence of any specific reference in the Motion to the Body Corporate consenting to a new CMS to be significant. Neither do I consider it relevant that Motion 20 did not specifically refer to the proposed improvement. The meeting notice material clearly explained the proposed work and the type of resolution required to pass the Motion had more stringent voting requirements than the required special resolution (s 105 and s 106, Act).

Opposition that in the circumstances is unreasonable
The general functions of a body corporate are stated in section 94(1) of the Act. Section 94(2) provides that a body corporate must act reasonably in anything it does under section 94(1), including making or not making a decision. Where, as in this case, the Body Corporate has opposed a motion requiring a resolution without dissent, an adjudicator may give effect to the motion if satisfied the motion was not passed because of opposition that in the circumstances is unreasonable (schedule 5(10), Act). Outcomes of this nature occurred previously with respect to Applications 0174-2002 and 0201-2002. There have also been a number of other adjudications dealing with schedule 5(10) and the issue of “reasonableness”.

In Points North (paras 42 and 44) and Ocean Plaza Apartments[1] (paras 23 and 26), the specialist adjudicator stated:

In determining whether such opposition was in the circumstances unreasonable, I do not consider that the “subjective intention” of each of the lot owners who voted in opposition is the appropriate test for the above criteria in Schedule 5 Order 10. Whether the opposition is in the circumstances unreasonable has to be considered “objectively” taking into account all relevant circumstances ... the appropriate test ... is whether opposition to a motion is unreasonable/reasonable when considered in an objective and fair manner in all of the circumstances. A test relying on a subjective intention to oppose a motion would make Schedule 5 Order 10 meaningless and inoperative.

In Zenith[2] (where the above test was applied), the adjudicator stated the courts have held that where a statute expressly provides that a decision is to be made ‘reasonably’ or upon ‘reasonable grounds’, the test is an objective one that requires a balancing of factors in all the circumstances according to the ordinary meaning of the term ‘reasonable’.[3] In this decision and in the decisions made to resolve disputes in Q1[4] and Allen Court[5], adjudicators also stated:

In determining whether votes against a motion constitute opposition that in the circumstances is unreasonable it is necessary to consider all the material facts. What is material will vary from case to case but typically the requirement for an adjudicator to make a just and equitable decision involves some balancing of the interests of the majority and minority and raises questions of fairness.

Is opposition to Motion 20 unreasonable?
The minutes of the 2008 AGM indicate that 18 lots voted against Motion 20. Of these 18 lots, only the owners of Lots 37 and 70 made submissions in response to the commissioner’s invitation.

In the absence of argument from those opposing owners who did not make submissions, the objective basis for their opposition cannot be tested. The Applicants clearly stated in the grounds for the application that they considered the opposition to be unreasonable. These owners were invited to make submissions on the application. In the absence of submissions, weight cannot be given to this opposition in determining this application. In reaching this conclusion, I have also considered whether these lots had the benefit of an allocated area of exclusive use close to Car Space 71.

Of the two owners who voted against Motion 20 and made submissions, the owner of Lot 70 has indicated support for the application. I have also noted that Lot 100 opposes the application despite seemingly voting for Motion 20 at the 2008 AGM. Despite this change in position, I have considered each ground submitted by Lots 37 and 100. I have also considered the opposition expressed in the committee’s submissions.

The cage will restrict the opening of a car door in Car Space 72
It is claimed the storage cage would restrict the opening of a car door in Car Space 72. However, this view has not been supported by any justifiable material. For example, there has not been any explanation of the parking problems caused by existing structures, nor has there been any analysis to suggest it would be reasonable to expect a problem parking in Car Space 72 if a cage is constructed.

Importantly, the owner of Lot 69 did not vote at the 2008 AGM — despite the committee’s statement in its explanatory schedule included in the meeting’s notice — and did not make a submission in response to the commissioner’s invitation. It is also significant that Alice Newgrosh, the owner of Lot 92 has supported this application (Ms Newgrosh has exclusive use of Car Space 74 which adjoins Car Space 75 and ‘ST52’).

While I have noted the submissions from the owners who supported the application, I am not satisfied this issue is an objective basis for opposing Motion 20.

Storage Area 52
The committee and the owner of Lot 37 also submitted that it is proposed the cage is to be identical to Cage 52, but that this cage is not constructed on the common property area shown on the Exclusive Use Plan.

While the Applicants have based their proposal on the storage cage allocated to Lot 75, the plan provided by the Applicants and included in the notice of the 2008 AGM clearly showed the dimensions of the proposed cage and its proposed position on common property. It is clear the Applicants proposed to construct a cage to the exclusive use boundary between Car Space 71 and Car Space 72.

Any concerns the Body Corporate or an owner may have with the construction of the storage cage on common property by the owner of Lot 75 should be pursued with that owner and is not relevant to the Applicants proposal.

Objectively speaking, this ground is not a reasonable basis for opposing Motion 20.

Precedent
It stated the storage cage would set a precedent for proposals to fence off various sections of other car spaces.

There are 52 storage cages shown on the Exclusive Use Plan, including one in another tandem car space of a similar size as Car Space 71. The existence of this cage does, to a degree, create a precedent particularly when the Applicants are proposing a cage of similar size and construction method. However, each proposal must be considered on its merits and a decision to approve a particular storage cage does not create a precedent to the extent that the Body Corporate would be powerless to prevent any other storage cage from being constructed. This can be seen by the approval given in Application 0174-2002 where specific circumstances were considered which differed to some degree from the reasons for allowing Application 0201-2002.

There was also a claim that additional storage areas will cause a cleaning problem and an aesthetic problem in the car park. This may the opinion of an owner. However, without substantiation there is no justifiable basis for this reasoning to be considered with regard to the Applicants specific request.

In the circumstances, I am not satisfied precedent is an objective basis for opposing Motion 20.

The reduction in the length of Car Space 71
The owner of Lot 37 stated the storage cage would cause a reduction in the length of Car Space 71 which would lead to ‘overhanging’. The owner has not demonstrated there currently is a problem of this nature caused by storage cages, or that this problem affects another person’s use or enjoyment of common property or is in some way dangerous. Neither has the owner shown it could reasonably be expected to be a problem if the proposed storage cage is built on Car Space 71.

In the circumstances, I am not satisfied this is an objective basis for opposing Motion 20.

Conclusion
At the 2008 AGM, the Applicants proposed changes to exclusive use by-laws necessitating Body Corporate approval by resolution without dissent. The relevant Motion 20 was not passed. The Applicants have sought adjudication under the dispute resolution provisions of the Act. An order may give effect to the Motion as proposed if I am satisfied the Motion was not passed because of opposition that in the circumstances is unreasonable. In my view, the appropriate test of reasonableness involves objectively taking into account all relevant circumstances as at the 2008 AGM and given these circumstances, determining whether a reasonable person would have opposed the Motion.

While the number of owners opposing the application demonstrates a degree of opposition to the Applicants proposal, the important consideration is the reason or reasons for this opposition. Given the absence of submissions from many of the owners who opposed the application and the fact that these owners would not appear to be directly affected by the construction of a storage cage on Car Space 71, the number who voted against Motion 20 is not significant in the determination of this application.

I have considered each of the reasons provided by the committee and two lot owners against the Applicants proposal, and in my view, these reasons are not a justifiable basis for opposing Motion 20.

The Motion itself may not have clearly explained that a new CMS would be required if it was passed, or that Body Corporate authorisation was sought to make an improvement to common property. However, the intent of the Motion is clear and supportable by the explanatory material included in the notice of the meeting. It is also relevant that the Motion was framed in a similar manner to those Motions submitted to the 2002 AGM and given effect to by previous orders made under the dispute resolution provisions of the Act.

The Applicants are not seeking the allocation of an additional part of common property. They are seeking the redesignation of an existing allocation. The Applicants are also proposing a structure similar in design and style to an existing structure. The owner of the lot who has exclusive use of the car space adjoining the existing structure has supported the application. The owner of the lot with exclusive use of Car Space 72 adjoining the Applicants car space did not vote at the 2008 AGM and did not make a submission on this application. The Applicants submit that a storage cage would not interfere with pedestrian or vehicular traffic and nothing has been presented to indicate otherwise. Neither is it apparent that the construction of a storage cage would adversely affect access to or the effectiveness of any infrastructure belonging to the Body Corporate or another lot owner.

For these reasons, I have concluded that the opposition to Motion 20 at the 2008 AGM was unreasonable and I have given effect to the Motion as proposed. It is therefore necessary that a new CMS for the scheme be prepared and lodged and I have given authorisation to the Body Corporate to prepare and lodge a new statement consistent with the outcome of Motion 20. I consider it is also appropriate that I order that the Body Corporate is deemed to have given authorisation to the owner of Lot 71 to make an improvement to the common property in the way stated in the owner’s explanatory note to Motion 20 and consistent with the Attachment 7 referred to in the Motion and included in the notice of the 2008 AGM.

While, in the circumstances, I do not consider the proposed cage will affect the use or enjoyment of Car Space 72, the Applicants should note that section 167 of the Act states:

The occupier of a lot included in a community titles scheme must not use, or permit the use of, the lot or the common property in a way that—

(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.

There may also be a question about the future use of the new storage cage given the statements made by the Applicants in the grounds to this application and in the explanatory note to Motion 20. The effect of this order is that Car Space 71 will be redesignated by a new Exclusive Use Plan, with part of the existing Space being allocated as a storage cage under By-Law 19. The new storage area will only be capable of being used in a way permitted by By-Law 19. It seems relatively clear that while the area is designated as a storage area, it cannot be used to park a vehicle.

Number of Scheme:	4078
Name of Scheme:	Bayview Shores
Address of Scheme:	5 Bayview Street RUNAWAY BAY QLD 4216

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Bayview Shores [2008] QBCCMCmr 309 (2 September 2008)