Kooringal Court [2008] QBCCMCmr 57 (20 February 2008)

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

I hereby order that the application for an order

“that the body corporate lodge a request to record a new community management statement to exhibit as Plan “A” the survey plan drawn by Bennett and Bennett dated 8th October 2007 setting out the allocation and size of car spaces pursuant to by-Law 42 in substitution for the existing Plan “A”.

is dismissed.

In lieu I order and declare as follows –

that By-Law 42 granting exclusive uses to lot-owners is a valid by-law of the scheme;
that allocations for car parking spaces were made by the body corporate in 1977 pursuant to By-law 42;
that the Bennett and Bennett Plan dated 8th October 2007 represents the allocations made by the body corporate in 1977 pursuant to By-law 42;
that conditions imposed on the exclusive use areas reserving reasonable access by the body corporate to body corporate utility infrastructure, and by lot-owners to walk across any car spaces in order to gain access to the residential part of the building or other parts of the common property, were implicit in the original grant in 1977.

This is an application dated 8th November 2007 by Racedirk Pty Ltd, owner of Lot 23 in the scheme (the Applicant) against the body corporate for Kooringal Court CTS 12535 (the body corporate) for an order as follows –

“Kooringal Court” Community Titles Scheme 12535 is a community titles scheme governed by the Body Corporate and Community Management Act 1997 (the Act) and the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module). There are 23 lots in the scheme created under a Building Unit 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)).

The Applicant through its solicitors Hynes Lawyers says that on 22nd September 1977, the body corporate passed a resolution at a general meeting to amend the scheme by-laws in accordance with the “first schedule attached hereto.” The first schedule proposed 20 amendments to the by-laws then current and item 20 proposed a new By-law 42 to read as follows-

“ 42. The proprietor for the time being of each unit in the building shall be entitled to the exclusive use for himself and his licensees of the car space and identifying number or letter of which is set out herein and said car space being outlined in green in the sketch plan contained in the Schedule hereto.” (sic)

The notification of the change of by-laws was drawn up and signed by the body corporate and the original developer Greenmount Developments Pty Ltd (Greenmount) on 26th September 1977. The new by-law 42 was recorded in the Land Title Registry on 10th November 1977 as follows -

“42. The proprietor for the time being of each unit in the building shall be entitled to the exclusive use for himself and his licensees of the car space allocated to the proprietor by the Body Corporate.”

The minutes of the general meeting on 22nd September 1977 also record that the exclusive uses “be granted to the respective unit holders as designated by the painted numbers at the entrance of each car park.” The numbering would be as follows –

“No 1 car park shall be located in the north-western corner of the basement, thence the numbers shall proceed along the northern boundary to the north-eastern corner of the car park, that number being Car Park No. 14. Thence the numbering system shall commence from the south-western corner of the car park and that car park number shall be 15 and each consecutive car parking space thereafter shall be numbered in the following order: 16, 21, 22, 23, 17, 18, 19 , 20 terminating in the south-eastern corner of the car park adjacent to the entrance driveway.”

Building Units Plan 2605 had been registered in the Land Titles Registry by Greenmount on 7th September 1977, and Sheet No.6 of Level A showed the floor area with some marked areas for “garage and storage purposes only.” The floor areas are shown “as approximate only.” There is no numbering on the plan of Level A.

The Applicant says that “it is reasonable to assume that Greenmount...painted the lines and numbers on the floor prior to sale to indicate the car space area and allocation for a particular unit.”
It says that the “size of the car spaces are marked on the [Level A] plan” and that the size of the spaces has not changed since 1977. Spaces 20, 21, 22 and 23 are longer allowing two vehicles to park in them, whereas spaces 17,18 and 19 are also larger than spaces 1 – 16 inclusive.

The Applicant has obtained statements from residents in Lots 22, 4 and 6 who have been owners for 30 years or so. It is assumed by these lot owners that Greenmount painted the lines and markings which accord with the Level A plan and then allocated the numbers.

The Applicant purchased lot 23 in 1980 and saw that the space which it now has was used by the previous owner. The Applicant continues to use space number 23, and can keep two cars there, by tandem parking.

On 24th March 2007, the committee resolved to put a motion to a general meeting for a new set of by-laws and a new community management statement to be registered. The committee’s stated intention was to formalise current car parking arrangements, but it sent an explanatory note with the notice of meeting dated 12th June 2007, saying that the new design for the car park was that each lot was to have a single car park space, with the remaining space to be unallocated common property. Owners of lots 18, 19, 20, 21, 22 and 23 were to be granted permission by the committee to use the area in front of the allocated car park spaces for parking as well as their single space, but this permission could be revoked if the use of the area was required. The effect of a proposed new By-law 25 headed “Exclusive uses” was that 7 lot owners were to have their car park spaces reduced in size by as much as 26 sq. m. Lots17 – 23 were affected with Lot 17 having the car space reduced to 12 sq. m losing 4 sq. m of previously enjoyed space.

At the general meeting on 14th July 2007, neither Motion 4 nor Motion 5, both concerning the new by-laws and the subsequent new community statement, were passed by the body corporate. Motion 4 was set as a resolution without dissent and included the allocation of exclusive use areas, and the change of by-laws. Motion 5 was set as a special resolution adopting new by-laws with the exclusion of the new by-law 25 so that no exclusive uses were designated. The effect of Motion 5 would have been to delete By-Law 42 created in 1977.

The Applicant says that it seeks a declaration about the status of the car parking spaces so that the events of July 2007 will not be repeated and there is certainty for lot owners particularly those in lots 17 – 23. It provides statutory declarations from the owners of lots 18, 13 (known as 24), 20, 14 and 15 as well as company nominee Garth Delbridge (Mr Delbridge) on behalf of the Applicant company and Lot 23, that the car parking arrangements have been the same since they purchased their respective lots; that they have never been aware of any dispute about parking in those spaces; and that each of the parking spaces was used by respective previous owners to their knowledge. These lot-owners have lived on site between 17 and 28 years in each case.

The car spaces were surveyed by Bennett and Bennett Surveyors (the Bennett Plan) on 8th October 2007 so that a plan with the measurements of each space could be created. The Applicant does not say who engaged Bennett and Bennett, but the Bennett Plan shows the client to be the body corporate. The Applicant wants to register the Bennett Plan in the Land Title Registry to show clearly that the allocation of car parking spaces to numbered lots has been the long-term practice of the scheme.

The Applicant says in summary that to change the car parking spaces after 30 years is not just and equitable; it upsets the status quo; it is a whim of the body corporate; there is no support for the change; the committee has given no reasons for the desire to change; and that reducing car parking spaces for 7 lots will reduce the value of those lots.

In accordance with section 243(2)(b) Act, all owners were invited to make submissions on the application. There were letters of support for the application and the lodging of the Bennett Plan from the owners of Lots 4, 5, 6, 13, 15,18, 20, 22 and 24 provided that others can walk across the exclusive use car park areas; that they are used only for parking cars; and that there is access for tradesmen to utility infrastructure.

John Schipp (Mr Schipp), co-owner of lot 17 was chairperson of the committee until 11th July 2007. He says that the committee was advised by the body corporate manager in March 2007 that the by-laws for the scheme “whilst allocating exclusive use of car spaces ... did not specifically detail those allocations.” The body corporate manager was asked to search the records for plans or references to allocations. If none could be found it was decided to submit a motion to a general meeting “ to formally grant exclusive use of the currently allocated car spaces.”

The body corporate manager found a set of plans dated “August 1976” by Burling Brown and Partners, architects for the Greenmount (the Burling Brown Plan). The plan now provided shows the scheme as having 22 units, although the scheme was “redrawn as 23 units” with an increase of one lot on Level 7. The plan is headed “Basement Drainage and Car Parking Layout” and shows each car space to be of apparently equal size and area and sequentially numbered. The numbers were changed at the body corporate meeting held on 22nd September 1977 but Mr Schipp had not seen a copy of those minutes until the Applicant provided them in his application. The Burling Brown plan shows a car wash space and 2 visitor car parks. Mr Schipp also provides a copy of the plan, on which he has superimposed the numbering and parking availability in current use, with the car wash area becoming a second visitor car park space, and Lot 17 having the space marked “visitor” on the Burling Brown Plan.

A majority of the committee wanted to put forward the Burling Brown Plan for adoption and wrote a letter to lot owners of lots 18, 19, 20, 21, 22 and 23 “guaranteeing indefinite use of common property” in front of their single car parking spaces “until such time as a future committee may have need to use some or all of the common property for installation of some infrastructure that may be required by some local, state or federal body.”

The committee commissioned a plan dated 4th May 2007 from surveyor Robert Harries, (the Harries Plan). This is the “Plan A” referred to in the new proposed by-law 25. It shows each lot having a single space of 15 sq.m with the exception of three lots (Lot 22,23 and 19) having 17 sq.m and one lot (Lot 17) having 12 sq.m, the remaining space being unallocated common property.

Mr Schipp believes that a time might come when a future committee has to install a back-up diesel motor should the electricity fail in the event of fire. This is the only bit of common property on which such a motor could be put and the proposal would give any future committee the flexibility. He says that spaces 18 and 19 have already been reduced by the installation of fire hydrant booster pumps in a wire cage (Lot 19) and by electrical switchboard and cleaner cupboard (Lot 18). The Burling Brown plan also had a provision for “a walkway access” and there is no walkway access on the Bennett Plan.

Furthermore, he says that the basement has flooded twice in the last 6 – 7 years and the pump failed and a back-up pump had to be installed and manned. If Lot 23 has exclusive use of the area in front of its parking space it could hinder access to the pump.

He emphasises that there was never any intention to reduce or curtail the use of common property in front of car spaces 18, 19, 20, 21, 22 and 23 whilst they are not required for any infrastructure. He opposes granting exclusive uses to a small number of owners, and says that all owners should have a single space as sent out on the Harries Plan, with Lots 18 – 23 having the right to use common property in front until the committee may need the area which would have to be “approved by special resolution.”

Trevor Arnold (Mr Arnold) is the owner of Lot 12 and became the chairperson on 10th November 2007. He was secretary at the time of the EGM on 14th July 2007. Like Mr Schipp he had not seen the minutes of the meeting of 22nd September 1977 before this application. After seeing them, he and Mr Delbridge went to look for the allocations mentioned in By-Law 42 in the body corporate records but could find nothing. He says: “there are two developers’ plans held with the body corporate records neither of which sets out the areas of the car spaces. Each plan differs as to the number allocations.” Mr Arnold even tried to contact Greenmount Developments but was advised that they no longer have any records.

Mr Arnold also has concerns in the event of a flood about a car being parked over the steel plate which allows access to the tank; and access to the electrical switchboard and the hydrant booster pumps in car spaces 18 and 19. He says that Lots 18 – 23 could still enjoy the common property in front of where they park now since no other vehicle could gain access to those parts of the common property; and the body corporate has no plans to use it. The Burling Brown plan showed areas of access beside spaces 21,17,19, and 20 to get through to the concrete holding tank, basement entrance and electrical switch board and cleaners cupboard. Furthermore, there are no records of how the tandem painted lines came about, although it’s clear they have been there a long time. He says that this difficult issue is caused by “the failure of the developers to register exclusive use areas “ and he thinks the committee’s alternative was the best idea.

He submits that the body corporate manager wishes to point out that the application “does not include the exact wording of the exclusive use by-law to be recorded”; nor what new by-laws are to be recorded; and that “the plan” gives exclusive use for Lot 17 to part of the basement currently used to access the building.

The Applicant exercised its right of Reply. It recognises that access to the building and to utility infrastructure should be given over the exclusive use areas, and it has no knowledge of access to infrastructure ever being impeded or walking access denied in 30 years.

The Burling Brown plan cannot be relevant since it only refers to 22 units and was clearly created before the scheme was redesigned to have 23 units. The Applicant says that Mr Schipp’s conjecture about what future committees may want to do is irrelevant; and that there is no evidence that a diesel motor placed under a building would be a likely use for the common property from a fire safety point of view.

Access walkways have never been determined and there is no need for them since lot owners can walk all over the car park spaces as they do now. If there was an emergency, then any car parked in the way would be removed by any means necessary, but the floods referred to by Mr Schipp did not occur, or were not exacerbated, because of the allocation of car parking spaces.

The Applicant does not propose any change to the community management statement, “save to exhibit as Plan ‘A’” the Bennett Plan “in substitution for the existing Plan ‘A’.” . In respect of Lot 17, it says that this Lot already has exclusive use as given in 1977.

In this matter it is not disputed that on 22nd September 1997, the body corporate resolved at a general meeting to create new by-laws from those set out in the Building Units Titles Act 1965 (BUTA), including adding a new By-law 42. Whilst some members of the committee had not seen the minutes of this meeting before the application was made, it is clear that new by-laws including a new By-law numbered 42 were drawn up and the notification to the Land Titles Registry signed on 26th September 1977. The notification was recorded in the Land Titles Registry on 10th November 1977.

The scheme was just newly registered on 7th September 1977, and the meeting on 22nd September 1977 was likely to have been a meeting of the first council which had to consist of the first owner (and second and third owners if any) which held office until the first annual general meeting of the body corporate was held.[1] By Item 15 of the First Schedule to BUTA, a general meeting of the proprietors had to be held within three months after registration of the building units plan. Those present at the meeting are recorded as being D.E.Barclay, T.J.Scott and M.J.Raward and there is no proposal that there was anyone else at the meeting or that these minutes are incorrect.

D.E. Barclay, T.J.Scott and M.J.Raward were all nominees of the developer Greenmount. Donald Edward Barclay and Malcolm John Raward are shown respectively as the Director and Secretary of Greenmount on the registered plans for BUP 2605. They formed the committee (council). They set up the insurance for the scheme, engaged a cleaner and gardener, looked at the lift maintenance and air conditioning maintenance contracts, approved the lot contribution entitlements and set the first budget. These are basics of the establishment of a scheme. They also resolved that exclusive use of car parking spaces be granted “ to the respective unit holders designated by the painted numbers at the entrance of each car park”, and then described the numbering system. The size of the car parks was not recorded.

It appears to me that from the very outset, Greenmount determined to grant exclusive uses of car park spaces for units numbered 1 – 23 inclusive. The numbering was not sequential. Lots 1 – 14 were to take spaces along the northern boundary. But numbering from the south-eastern corner was to run as follows: 15, 16, 21, 22, 23, 17,18, 19, 20. Why was this to be?

Some light is thrown on this by the Burling Brown Plan, discovered by the committee or the body corporate manager, in researching the body corporate records. That plan is dated “August 1976” and shows that the basement area is to be used for car parking and that allocations were proposed as to “Car 1 – 14” along the northern boundary, and ‘”Car 15 – 22” from the south-eastern corner.

However, at some point between August 1976 and 7th September 1977 when the scheme was registered including the Level A plan, Greenmount changed the design of the scheme. It was decided to build an extra unit on Level 7 so that the scheme then contained 23 units, with a requirement that 23 car parking spaces were to be provided. Prior to the meeting on 22nd September 1977, it appears that the finer detail of who was to park where had not been worked out. It is clear however, that the Burling Brown plan cannot be relied upon.
It was not registered although in existence on 7th September 1977, and it no longer suited the scheme. The Burling Brown plan is no more than a concept plan drawn up by an architect at Greenmount’s direction. There may be many such plans but they will not be the final plan decided upon by Greenmount. The final plans are those registered by Greenmount on 7th September 1977.

Greenmount was then free to adopt by-laws, grant exclusive uses and make allocations in respect of those plans which it set out to do. The specific numbering chosen by Greenmount from the southeast corner across, gives Lot 17 the area previously proposed for visitor parking on the Burling Brown plan. At this point the directors of Greenmount, now the committee for the scheme could have decided that the numbering on the “lower” part of the plan could be sequential 15 – 23, but they did not do so.

I have looked at the contribution schedule of lot entitlements for Lots 15 – 23 and note that they are slightly higher than those for lots 1 – 14 which range from 39 - 44 entitlements. Lots 15 – 23 range from 45 – 49 entitlements with Lots 21 and 23 having 49. In the current car parking arrangements it is Lots 21, 22, 23, 18, 19 and 20 which occupy the larger spaces, all the others being 15 sq m with the exception of Lot 17’s which is 16 sq.m according to the Bennett plan which I understand to be representing the de facto position. The table below details parking areas shown on the Bennett Plan in comparison with the contribution schedule lit entitlements.

It is tempting to suggest that the directors of Greenmount intended by their numbering to offer the larger spaces to those lots paying higher contributions eg Lot 21 with the highest contribution has the largest space. But Lot 23 also has 49 entitlements and could easily have been offered the next largest space at 40 sqm. (which is used by Lot 20). It is perhaps relevant that Lot 17, with an entitlement of 45 is offered a smaller space on the “bottom row.” There is also evidence (from Mr Schipp) that spaces occupied by Lots 18 and 19 were once bigger prior to the appearance of the fire boosters, the cleaning cupboard and electricity switchboard, as also demonstrated by the plan provided by the Applicant as Attachment 5 to the application, which differs from the Level A plan recorded in the Land Titles Registry in this respect. There is an “L- shaped” area excised from Lots 18 and 19 on top of an existing “L-shape” on the Applicant’s plan. The plan of Level A which would have been in contemplation of the committee in 1977 does not appear to show parts excised from Lots 18 and 19. Unfortunately, none of this is conclusive.

However, had the body corporate not wanted to differentiate as to size, there would have been no point at all in specifying that the numbering should not be in sequence. If all spaces were for a single car as shown on the Burley Brown plan, all 23 lots could have been accommodated in sequence with one unit (it would be Lot 20) taking up the space previously reserved for visitors and which is now Lot 17’s space.

Owners who have been in residence for 30 years since the scheme commenced and who purchased from Greenmount, that is Michaels Investments Pty Ltd (Lot 22) represented by Martha Pietor, Les and Shirley McWhinnie (Unit 4) and Warwick Cayley deceased, represented by his daughter Alison Gilmore (Unit 6) say that the boundary of each car space is marked out in thick white painted lines and has always been like that in their memory.
Janise Davis of Lot 5 also says that she and her aunt were some of the first people to take up residence and that “numbers have always indicated our car space and were painted at the beginning of the car space.” She cannot say whether the boundary lines have been extended at any time.

That the spaces were allocated does not appear to be in dispute. The allocation was made by the body corporate at the meeting on 22nd September 1977 either or both by a sketch plan showing the spaces outlined in green (a plan which cannot be found); or by marking lines and painting numbers on the floor of Level A. The registered By-law 42, states that the owner shall be entitled to the space “allocated”....in the past tense, that is, not “to be allocated” at some future time, which is common wording for by-laws, eg “that the allocations will be made within 12 months” or “ the allocations will be notified to the committee.” The grant of the exclusive use was to that space
“allocated to the proprietor.” In my view, this demonstrates a fait accompli.

The dispute seems to stem from the view that if the allocation was not registered in the Land Titles Registry, or if Greenmount made an error in not registering the allocation, then the allocation is void or invalid.

Relevant law
In 1977, the BUTA and the Group Titles Act 1973 (GTA) were in force. BUTA applied to building units plans. Item 3(f) of the First Schedule of BUTA empowered the body corporate to grant “the right to exclusive use and enjoyment of common property, or special privileges in respect thereof...”

In 1980 the Buildings and Group Title Act (BUGTA) was enacted bringing together the types of subdivisions created under both BUTA and the GTA. Section 5(11) BUGTA preserved exclusive uses and privileges, where immediately before the enactment of BUGTA a proprietor was entitled “whether pursuant to a resolution of the body corporate or pursuant to a former by-law to a right of exclusive use and enjoyment of, or special privileges in respect of, any of the former common property.” The former by-law was deemed to be a by-law made pursuant to section 30(7) BUGTA.

Section 30(7) BUGTA (as subsequently amended) sets out how a body corporate may make a by-law conferring exclusive use and enjoyment of the whole or any part of common property by a resolution without dissent and the written consent of the proprietor concerned. It could in the same way amend, add to or a repeal a by-law. The by-law “need not identify or define the common property subject of the grant ... provided that the by-law prescribes a method of identifying or defining common property.” (Section 30(7B)(a) BUGTA); and the by-law could authorise a person, including the original owner or his agent, to identify or define common property and to allocate such identified or defined area of common property to the proprietor who is entitled to the grant. (Section 30(7B)(b) BUGTA).

The section went on to say that the allocation of identified or defined common property which occurs after the coming into force of the amending provisions of BUGTA, (my underlining) will not have any effect until it is recorded by the Registrar of Titles, and that the Registrar must not record an allocation which occurred more than 3 months prior to the notification. It was held in Body Corporate for Edgewater Gardens CTS 10507 –v- Trankalis and Ors[2] that the amending legislation would have had no effect on an allocation made prior to 1st April 1992 after the 1990 amendments to BUGTA came into force. Thereafter, registration of an allocation was required, and within 3 months.
On 13 July 1997 the Body Corporate and Community Management Act 1997 (the BCCM Act) commenced. This Act replaced BUGTA which now has limited operation. Community titles schemes were established in place of building units plans (BUPs). Every community title scheme under the BCCM Act had to have a community management statement which was crucial to its identity. One of the things that a community management statement incorporates is by-laws, unless the by-laws in Schedule 4 of the Act are adopted. (Section 66 BCCM Act.)

Section 337(2)(g) BCCM Act provided that on its establishment the new scheme was taken to have a community management statement which in turn was taken to include the by-laws that, immediately before the commencement, were the by-laws in force for the BUP; and taken to show allocations of common property, that, immediately before the commencement, were in force under the by-laws for the BUP. This deemed statement, called the "Interim Statement", would continue until the new community management statement was recorded for the scheme or the expiry of three years after the commencement of the Act. (Section 337(3) BCCM Act)

As Judge McGill found in the similar case of Edgewater Gardens referred to above–

“ The effect of these provisions was that, until the new statement was registered, the existing by-laws including the exclusive use by-law, and the allocations under that by-law, so far as they were already valid, continued in force. “

In the transitional provisions of the BCCM Act, section 339(5) made provision for the Registrar of Titles to record a new community management statement at the end of three years after the enactment of the BCCM Act, if the body corporate had not done so.

“ The legislature has taken the trouble to provide expressly that in this situation the pre-existing by-laws in force when the 1980 Act ceased to apply will be taken to be the by-laws under the new scheme, and "allocations of identified common property for the new scheme are taken to be the allocations that, under [s.337(2)(g)(ii)] and, if applicable, [s 337(4)], are the allocations, including variations and transpositions, in force for the scheme immediately before the end of the three years mentioned in subsection (1)". [3]

“The legislature therefore clearly intended not only that allocations under existing by-laws would be preserved under the new Act, but that they would be preserved even if the body corporate failed to take the step contemplated by the [the new Act] of having recorded a new community management statement within the three year period.”[4]

"A by-law, including an exclusive use by-law maintained in force under this part for a new scheme continues to have effect, and may be included in a subsequent community management statement recorded for the scheme, even though it is not competent for the community management statement for a community titles scheme established after the commencement to include the by-law."

In the present case the former exclusive use by-law, By-law 42, was maintained for the new scheme under this part, initially by section 337(2)(g) BCCM Act. Section 340 makes it clear that By-law 42 was validly continued by that subsection even if it did not comply with the requirements for an exclusive use by-law established by the BCCM Act, eg in respect of registration in the Land Titles Registry within 3 months.

The body corporate did not record a new community management statement in the three year period following the enactment of the BCCM Act, and on 15th July 2000, the Registrar of Titles recorded a “standard” community management statement for Kooringal Court CTS 12535 so that it would comply with the existing legislation. This was done for all schemes which did not record community management statements in the given time. Existing by-laws, contribution schedule and identical interest schedule lot entitlements were maintained, and the body corporate’s status as a community title scheme were therefore preserved. The “standard” community management statement says that the by-laws are “taken to be those in effect as at 13 July 2000.”

The granting of exclusive uses in the way in which By-Law 42 created exclusive uses was commonplace under BUTA and BUGTA, and prior to the 1990 amendments to BUGTA, it was quite usual for details of allocations of carparks (and other common property exclusively used by particular lot owners) not to appear on any register but to be held only in the records of the body corporate.

“Presumably the legislature in 1997 recognised this, and recognised that there would be many exclusive use by-laws out there which did not come within the requirements for an exclusive use by-law then proposed by the Bill. Whatever those requirements are on their true construction, they are much more restrictive than the requirements under the 1980 Act. It is in my opinion unlikely that the legislature would have intended that the benefit of such by-laws would be lost by the various lot owners even if the by-laws were, as contemplated by section [340 BCCCM Act], included in a subsequent community management statement.”[5]

Judge McGill found that the right to exclusive use of part of the common property under the exclusive use by-law is a valuable right in respect of property. He said –

“A lot with a secure right to use carparking space would in my opinion be more valuable than a lot without that secure right. That must have been recognised by the legislature, and it is unlikely that the legislature intended to destroy such rights by the enactment of the new scheme embodied in the 1997 Act. “

“ It is a general principle of statutory construction that there is a presumption that the legislature does not intend to deprive people of existing rights.... Indeed, the validity of the allocation was not something which originally depended upon statute. It depends for its effectiveness on the validity of the by-law which provided for the allocation........ As long as a by-law is valid, any allocation pursuant to it will necessarily be valid unless there is some statutory provision to the contrary.” (my underlining)

Since the statutory provisions to the contrary cannot effect an exclusive use allocation made prior to 1st April 1992-

“..........It follows that, so long as the exclusive use by-law remains in its present form, which reproduces the form which applied under the 1980 Act, and therefore retains the protection of [section 340 BCCM Act], allocations under that by-law remain valid. That means that lot owners who are continuing to use the carparking spaces originally allocated by the developer have a valid and enforceable right under the by-law in respect of that carparking space. “[6]

The conclusion is that whatever allocation was made in 1977 remains valid, and has no need of registration. However, the factual difficulty remains that there is nothing other than memory and use to demonstrate what those allocated areas of exclusive use were.

In Dainford Ltd –v- Smith, a majority of the High Court held that the area of common property, the exclusive use of which was conferred on a lot-owner, did not need to be identified by the by-law itself. In that case Gibbs CJ said –

There is no reason in principle why a by-law should not confer rights in respect of property which is not defined in the by-law itself, but which can be identified with certainty by reference to another document or to extrinsic facts.” [7] ( my underlining)

In this matter the ‘other document’ , if it exists, cannot be found. We need then to look at extrinsic facts and see if they can provide certainty as to the identification of the car parking spaces.

The extrinsic facts here are that the proprietors of the body corporate have since 1977 been parking their cars in the spaces painted with the numbers of their respective lots. The spaces are also delineated in paint on the floor. There has been no dispute whatsoever about the use of these spaces in 30 years. Current lot-owners use the spaces used by respective previous owners and indicated to them at the time of the purchase of their respective lots, and some lot owners purchased from Greenmount, understanding that the numbered space on the ground bearing the number of their lot was where they should park their cars.

I find that the lines and numbers as painted on the ground on Level A relate to the parking spaces for that numbered lot, and that those numbered lots have, and have had since 10th November 1997, exclusive use of those spaces. Conditions reserving access to the body corporate to body corporate infrastructure, and to other lot-owners to walk across car spaces in order to gain access to the building, may be implied from continued use.

Section 177(1) Act provides that an exclusive use cannot be given over utility infrastructure, or a body corporate asset. There is therefore a strong argument that any lot owner who has exclusive use of an area in which utility infrastructure is situated would have that exclusive use subject to the body corporate being allowed access to its utility infrastructure. There is extrinsic evidence also that lot owners have always walked across the areas which are exclusive use areas, wherever on the basement plan they are situated.

In addition section 115P Land Title Act 1994 provides that there is a statutory easement in favour of common property and against the lots for establishing and maintaining utility infrastructure reasonably necessary for supplying utility services to the common property. A utility service is defined as water, gas, and electricity supplies, air conditioning, phone service, computer and TV data, sewerage, drainage and waste removal systems. An exclusive use by-law is a by-law that attaches to a lot and gives the occupier of that lot for the time being exclusive use to the rights and enjoyment of, or other special rights about, common property.[8] Combined with section 177 Act which prohibits an exclusive use by-law being given over utility infrastructure, the logical conclusion must be that where the body corporate grants an exclusive use of an area which contains utility infrastructure, a condition that the body corporate may have reasonable access to that utility infrastructure is implicit.

Exclusive uses may be granted subject to conditions. Section 123(2) Standard Module says that in the absence of conditions the owner is responsible for “maintenance and operating costs for the part of the common property to which the exclusive use by-law applies” but section 123(3) Act states that in a building units plan of subdivision (now called a building format plan) that the holder of the exclusive use is not responsible for maintaining roofing membranes, or for maintaining in a structurally sound condition, the foundation structures, roofing structures or essential supporting framework including load-bearing walls.

The Applicant seeks an order that the Bennet Plan is lodged in the Land Registry “in substitution of the existing Plan A”. I am not sure if it means by this, in lieu of the Harries Plan which has been called “Plan A” by the committee but is not existing in the Land Registry, or in lieu of the “Level A” plan which is recorded as the basement plan of the BUP.

He also stated in his application that he would like a declaration on the status of the car park allocations made in 1977.

There is now no mechanism by which the body corporate can exchange the Level A plan for the Bennett Plan, or have the two effectively recorded, one as a more detailed version of the other, without the body corporate recording a new community management statement. There is no process by which a body corporate can amend an existing community management statement or add to it without recording an entire new community management statement.

The body corporate does not need a resolution without dissent or special resolution in order to record a new community management statement where the new community management statement “ is different from the existing statement only to the extent necessary ...for recording the details of allocations of common property... made under an exclusive use by-law.” (Section 62(4)(e) Act) and all else remains the same. In such a circumstance, the committee could simply provide the details of the allocation to the Land Title Registry, on a new community management statement.

However, since the format of the new community management statement has a space at Schedule C where the body corporate must record all the scheme’s by-laws; and there is a requirement at Schedule E that details of any exclusive use by-laws referred to in Schedule C are recorded, in writing and by sketch plan(s) if required by the Registrar, the body corporate would have to repeat all the old by-laws if the content of the new community management statement was to remain the same.

As noted by the body corporate manager, many of the by-laws are out-dated and in need of review. It would seem an ideal time for the body corporate to amend its by-laws at the same time as describing and recording an updated plan of the exclusive uses granted by the body corporate in 1977. I find that there is no dispute that the Bennett Plan “will formalise the long standing use of the areas” for car parking, ( per Mr Arnold’s submission) To this end, the Bennett Plan should be the plan which is lodged in the Land Titles Registry when the body corporate lodges a new community management statement if the body corporate wishes to maintain the current uses.

The body corporate has the power to amend by-laws, even exclusive use by-laws, but the allocation made pursuant to by By-law 42 can only be changed or revoked by a resolution without dissent of the body corporate and the permission in writing of the holder of the exclusive use. (Section 171(3)(b) Act).

For the avoidance of doubt, since access conditions are implicit in the existing grant, when registering a new community management statement, conditions concerning reasonable access by the body corporate to common property infrastructure on Level A, and for other lot owners to walk across car spaces in order to gain access to the residential part of the building may be recorded without requiring a resolution without dissent or permission in writing from lot owners.

One final point concerns the use to be made of the exclusive use areas. The grant in 1977 was for a “car space”. The Level A plan recorded says that Level A may be used for “ Garage and Storage purposes only.” There has been no evidence about storage, but some submitters were keen that the exclusive use areas be used only for the parking of cars. This is a matter which also might be clarified by the body corporate prior to recording a new community management statement.

[3] Body Corporate for Edgewater Garden CTS 10507 –v- Trankalis and Ors [2003] QDC 19 (21 March 2003) para [45]

[4] “Edgewater Gardens” ibid para [46]
[5] Ibid para [53]
[6] Edgewater Gardens CTS 10507 ibid para [62]
[7] Per Gibbs CJ in Dainford Ltd –v- Smith and Ors [1985] CLR 342
[8] Section 170 BCCM Act

Number of Scheme:	12535
Name of Scheme:	Kooringal Court
Address of Scheme:	130 Marine Parade COOLANGATTA QLD 4225

Lot No.	Car Park area (Bennett Plan)	Contribution Schedule Lot Entitlement
21	41m2	49
22	37m2	48
23	34m2	49
17	16m2	45
18	27m2	47
19	27m2	45
20	40m2	46

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Kooringal Court [2008] QBCCMCmr 57 (20 February 2008)