Kayura [2008] QBCCMCmr 336 (19 September 2008)

Last Updated: 14 October 2008

REFERENCE: 0374-2008

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	13786
Name of Scheme:	Kayura
Address of Scheme:	41 Queens Road CLAYFIELD QLD 4011

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

Lorelle Pepper, the Owner of lot 4

I hereby order that the application for the following orders: Permission to park our motor home partly on common property at the front southern boundary when in residence, as the street is narrow and the precedent has been set by other owners making changes/ additions to their units as they desire without first seeking body corporate approval as required under the by-laws. The committee is now proposing to erect wooden posts around the common land perimeter at the front of the building and remove the driveway at the southern front of the building and replace it with kerb and channelling. The motions have been presented for an EGM on 21 May 2008 but no costs have been supplied to owners for their consideration and before they vote. Stop the installation of wooden posts on front lawn as proposed at $990; Stop the change to the roadside kerb as it has been in place for 34 years and now the committee propose to spend money replacing it. I see it as unnecessary expenditure of body corporate funds at $1,530. Is dismissed

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STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0374-2008

“Kayura” CTS 13786

Application

Kayura Community Titles Scheme is a 6 lot scheme regulated by the Body Corporate and Community Management Act (Act) and the Standard Schemes Regulation Module.

This is an application by the owner of lot 4, Ms Pepper, seeking the following order:

1. Permission to park our motor home partly on common property at the front southern boundary when in residence, as the street is narrow and the precedent has been set by other owners making changes/ additions to their units as they desire without first seeking body corporate approval as required under the by-laws. The committee is now proposing to erect wooden posts around the common land perimeter at the front of the building and remove the driveway at the southern front of the building and replace it with kerb and channelling. The motions have been presented for an EGM on 21 May 2008 but no costs have been supplied to owners for their consideration and before they vote.
   
2. Stop the installation of wooden posts on front lawn as proposed at $990;
   
3. Stop the change to the roadside kerb as it has been in place for 34 years and now the committee propose to spend money replacing it. I see it as unnecessary expenditure of body corporate funds at $1,530.
   

Background

The applicant and her partner are the owners of a “Mercedes Sprinter” motor home and are seeking an order whereby they are granted permission to park on a common property lawn area when the applicant and her partner are not travelling. Permission to park the motor home on the front southern lawn was previously sought on the following grounds:

• Queens Road is very narrow and by parking the vehicle on the road outside, it would restrict visibility for cars entering and leaving the scheme;
• The vehicle needs to be attached to an electricity supply in order to recharge the battery and if it is parked on the front southern lawn, the applicant is able to run an electrical cable from their second floor unit;
• The vehicle needs to be parked in a level position so that “strain is not placed on cabinetry, tanks etc”.
  

This request was considered at an AGM held in October 2007 but the request was rejected on the following grounds:

• It would detract from the amenity of the building as viewed from the street;
• Would adversely affect the lawn; and
• Interfere with drainage pipes located close to the surface.
  

The applicant believes that the decision of the body corporate is discriminatory because

• another owner was recently given permission to place a mini skip on the lawn, and was also given permission to place furniture in the common room while renovations were carried out;
• changes and alterations have been made to various units over the last 34 years including the addition of awnings and enclosure of balconies with bars/ mesh and glass panels. However when she sought permission to install a block “stub wall” between her unit and unit 5, permission was refused on the grounds that it would reduce visual amenity, there were doubts as to the effectiveness of the proposal and unknown possible effects on the building due to the additional weight.
  

The applicant also believes that the proposed construction of the fence posts should not proceed because it is not in keeping with the style of the building and that the proposed kerbing should not proceed because it would only benefit 3 owners.

Submissions

Pursuant to section 243 of the Act, the body corporate and all lot owners were invited to make submissions.

One lot owner suggested that the applicant is not being discriminated against as he was also asked to remove his vehicle from the common property (after he had washed it) and complied with the request by the body corporate.

The owner of lots 1 & 2 made the following submissions:

• the motor home was previously parked below the unit 2 bedroom window which caused security concerns as it would be possible to climb onto the roof of the vehicle which was at window level;
• the motor home also obstructed the view from the unit and created noise and fumes;
• the applicant has continued to park on the common property lawn area despite having received contravention notices;
• a large tree was cut down without approval from either the body corporate or the Brisbane City Council and the absence of the tree makes it easier for the motor home to move closer to the building, and this has reduced privacy and shade available to unit 1;
• the presence of the motor home has caused stress to tenants and owners;
• the applicant has shown disregard for other complex dwellers ;
• in order to prevent a reoccurrence of this problem, the easiest solution is to install timber posts around the perimeter of the common property as agreed upon at the last AGM;
• removal of the southern opening in the kerb would create an additional parking space on the street, eliminate the risk of being fined for parking across a disused driveway and prevent vehicles from entering the common property;
• the owner of unit 3 was permitted to place a skip on common property for a period of less than 2 weeks to enable tradesmen to dispose of demolition materials and the lot owner was permitted to store new kitchen appliances for a similar period until the items were installed;
• ownership of the units has changed many times over the years and the committee is in the process of recording all alterations to ensure any future requests will be standardised to minimise differences in the building appearance;
• the applicant was previously given permission to store furniture and a piano in the common room for a set period but the items were stored by the applicant for longer than the permission period;
• as far as he is aware, only tenants, removalists and tradesmen have parked vehicles on common property for short periods when delivering heavy or large items;
• some owners have grown flowers and vegetables in dedicated garden beds at the back of the complex;
• the applicant’s request for permission to construct a “privacy wall” was rejected because it would have little impact on noise reduction. As windows have opaque glass, privacy is not an issue. The additional weight could contribute to cracking of walls/ foundations;
  

Other lot owners advised as follows:

• the unit building was constructed in 1974 and was required to be set back approximately 6.1 metres to accommodate possible future road widening and the applicant parks at the front of the building, partly on common property and partly on council land;
• the secretary has occupied that position for 23 years and cannot recall any of the modifications being made to units during that period of time and in any event does not regard the modifications such as awnings as unsightly ;
• they do not recall any other vehicle being permitted to stand on common property for an extended period of time;
• at the last general meeting it was decided not to fill the kerb crossing owing to possible BCC road works ;
• the motor home was parked on common property on at least 10 occasions although it was parked on the street after a contravention notice was issued;
• the most reasonable and unobtrusive means of preventing people from driving onto the lawn was considered to be wooden posts along the northern driveway;
• the by-laws do not restrict gardening but do prohibit harm to a plant or tree on common property.
  

In response, the applicant made submissions including the following:

• the applicant does not believe that the motor home presents a security risk to unit 2 as that unit has security bars fitted to the windows;
• the applicant has received a number of telephone calls from other lot owners and feels as though she is being harassed;
• she believes that the land upon which the van has been parked is not common property but Council footpath;
• the applicant does not believe that the outlook from the units would be obstructed;
• The tree that was cut down was located on Council land;
• “a precedent has been set” by cars having previously been parked on driveways, alterations to lots without permission, placing pot plants on common property and a compost bin was placed on common property;
• the applicant refutes many of the other claims made in submissions.
  

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

(c) a claimed or anticipated contractual matter about-

(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)).

Decision

The applicant is seeking the following orders of an adjudicator pursuant to the dispute resolution provisions of the Act:

• to allow the applicant and her partner to park their motor home partly on common property;
• to stop the installation of wooden posts on front lawn as proposed at a cost of $990;
• to stop the body corporate from changing the roadside kerb to remove the second driveway opening.
  

This is relatively old scheme and the by-laws have been altered a number of times. The current community management statement is dated 13 December 2007, and includes the following by-laws:

2. Vehicles

(1) The occupier of a lot must not –

• (a) park a vehicle or allow a vehicle to stand in a regulated parking area; or
• (b) park a vehicle or allow a vehicle to stand on any part of the common property; or
• (c) permit an invitee to allow a vehicle to stand on the common property other than a regulated parking area.
  

3. Obstructions

The occupier of a lot must not obstruct the lawful use of common property by someone else.

The Body Corporate and Community Management Act establishes rights and imposes obligations on participants in community titles schemes to promote the provision of flexible and contemporary communally based arrangements. One of the specified objects of the Act is "to balance the rights of individuals with the responsibility for self management as an inherent aspect of community titles schemes".

Accordingly, the Act gives the owners of units in a scheme the power to vote on what by- laws will apply to their scheme and all owners and occupiers are obliged to comply with registered by-laws, unless or until the owners vote to modify or remove a particular by-law.
However, it should also be noted that the body corporate is required to act reasonably in enforcing the by-laws[1]. Section 94 of the Act provides as follows:

Body corporate’s general functions
(1) The body corporate for a community titles scheme must—
(a) administer the common property and body corporate assets for the benefit of the owners of the lots included in the scheme; and
(b) enforce the community management statement (including any by-laws for the scheme); and
(c) carry out the other functions given to the body corporate under this Act and the community management statement.
(2) The body corporate must act reasonably in anything it does under subsection (1) including making, or not making, a decision for the subsection.

The question for me to consider is whether there is anything unreasonable about the decision of the body corporate to refuse the applicant permission to park the motor home on the common property lawn area at the front of the building. The vehicle in question is a Mercedes Sprinter motor home, which I believe to be approximately 6.59 metres in length, approximately 1.9 metres wide and weighs in excess of 3000 kilograms.

The applicant contends that the decision of the body corporate is discriminatory because another owner was recently given permission to place a mini skip on the lawn and owners have previously been given permission to park on the common property driveway. The applicant also argues that the body corporate has not sought to enforce the scheme by laws against owners who have made changes and alterations to various units over the last 34 years including the addition of awnings and enclosure of balconies with bars/ mesh and glass panels.

However other lot owners make the following points:

• the motor home was previously parked below the unit 2 bedroom window which caused security concerns as it would be possible to climb onto the roof of the vehicle and up to the window to either enter the unit or to look inside;
• vehicles have been parked on common property by people such as tenants, removalists and tradesmen for short periods, generally for the purposes of delivering heavy or large items;
• the owner of unit 3 was permitted to place a skip on common property for a period of less than 2 weeks to enable tradesmen to dispose of demolition materials
• in order to prevent a reoccurrence of this problem, the easiest solution is to install timber posts around the perimeter of the common property as agreed upon at the last AGM;
• at the last general meeting it was decided not to fill the kerb crossing owing to possible BCC road works.
  

I am unable to see anything unreasonable about the decision of the body corporate in this instance. The vehicle in question is a relatively large vehicle approximately 6.59 metres in length, 1.9 metres wide and weighs in excess of 3000 kilograms. The area in question is an attractive garden and lawn area at the front at the building and I believe the presence of the motor home would have a significant impact on the visual amenity of the scheme. Further, it is obvious that the presence of the vehicle is likely to impact adversely on the lawn area if it is stationary for any appreciable period of time.

I am also unable to see anything discriminatory about the exclusion of the motor home from the common property. Another lot owner has advised that he was recently required to move his car from the common property even though it was parked for a short period after washing. A lot owner was permitted to place a rubbish skip on the lawn, but only for a period of less than 2 weeks in order to dispose of demolition materials during a kitchen renovation. Correspondence dated 1989 involved a grant of permission to park a conventional sedan on the driveway for a limited period of time.

Further, it is of little relevance to the matters in issue that certain lot owners have installed awnings, placed bars on windows or in one case enclosed a balcony with glass. Obviously a by-law requiring that body corporate permission be obtained before commencing such work should be enforced and a lot owner would be entitled to request the body corporate to enforce such a by-law in an appropriate case. However in this scheme there are a number of difficulties that arise in this regard e.g.

• the alterations were made many years ago and it is not evident whether at that point in time permission of the body corporate was required pursuant to the by-laws then in force;
• it is possible that permission of the body corporate was obtained many years ago but the decision has not been retained with the records of the body corporate; or
• even if body corporate permission had not been obtained, where alterations were made many years ago and no objection has previously been taken by the body corporate, a lot owner may be entitled to assume some implicit approval. In the present circumstances I believe that the principle of acquiescence may be applicable in such cases as body corporate failed to take action in respect of alleged breaches of the scheme by-laws, and it would now be unreasonable and inequitable to require the alterations to be dismantled.
  

The next matter for consideration is the applicant’s request to stop the installation of wooden posts because the applicant believes these are not in keeping with the design of the building and obviously, would restrict vehicular access to the common property lawn area.
However I note that the following motion was carried at the last general meeting of the body corporate: That wooden posts standing about 600mm spaced about 1300mm apart be placed to mark the limits of the body corporate grassed area at the front of the building. The motion is therefore a valid resolution of the body corporate and I can see no valid basis upon which the resolution may be impugned.

While the resolution does not refer to the contractor to be engaged to install the wooden posts, the applicant has advised that the cost of this work is to be $990. In my view the committee is entitled to implement the decision of the body corporate in general meeting. The limit for committee spending under section 151 of the Standard Regulation Module is now $200 x the number of lots in the scheme i.e. $1,200 (previously $125 x number of lots in the scheme) and the relevant limit for major spending, requiring at least 2 quotes, is now $1,100 x number of lots i.e. $6,600.

Finally, I note that the following motion was also carried at the last general meeting of the scheme:
That the vehicle access at the Southern side of the property be replaced by kerbing as the crossing is a relic from the days when a house stood on the site.
Again, I believe that this is a valid resolution of the body corporate although I have been subsequently advised that this resolution is in abeyance as the Brisbane City Council is undertaking road works in the area and it is possible that the Brisbane City Council will be replacing the existing kerbing at no cost to lot owners.

For the above reasons I believe that this application should be dismissed.

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[1] Section 94(2) Body Corporate and Community Management Act 1997 (Act)