Juanita Court [2009] QBCCMCmr 334 (3 September 2009)

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

I hereby declare and order as follows –

that the grant of an exclusive use area of 85 m² to the owner of Lot 4 in the scheme at an extraordinary general meeting on 21st August 2003 was invalid for the reasons set out herein;
that the body corporate shall within six weeks of the date of this order record a new community management statement deleting, at Schedule E and on the Sketch Plan currently lodged in the Land Titles Registry, the exclusive use area of Lot 4;
that the Drying Area of 40m² shown on Plan 2730 WD01 Revision A drawn on behalf of The Thomson Adsett Group and dated October 1991, approved by the local authority on 20th February 1992 be reinstated.

This is an application dated 23rd January 2009 and amended on 13th February 2009 by Darryl Elliott (the Applicant) owner of Lot 8, against the body corporate for Juanita Court CTS 3339 (the body corporate) for orders as follows –

“Juanita Court” CTS 3339 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 2008 (Standard Module). There are 12 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)).

Reference is made in the material to a conciliation by this Office. I have no knowledge of any matters occurring at a conciliation which remain confidential, and cannot be used in evidence in this application. This is an application “de novo” in which the Applicant must prove his case, and which will be assessed on the merits.

The Applicant says that on 10th September 2001, the body corporate lodged a request to record a new community management statement (the CMS). Section 7 of the printed land registry form, states “Local Government community management statement notation” and the lodger has filled in “Not applicable pursuant to section 54(4) of the Body Corporate and Community Management Act 1997.”

The Applicant says that section 54(4) Act states that a new community management statement may be recorded without local government endorsement if there is no difference between the existing statement for any issue “that the local government could have regard to for identifying an inconsistency mentioned in subsection (3.)” Subsection (3) allows the local government to refuse to endorse the community management statement only if there is an inconsistency between the provisions of the community management statement “and a lawful requirement of, or an approval by the local government under the Planning Act.” (Section 54(3)(a)Act)

He says that the scheme was constructed in accordance with town planing consent no. 498/92, with section E of the permit saying that a clothes drying area is to be provided in accordance with section 7.6.2(b) of the City Plan for Brisbane in 1987. That section requires inter alia that the clothes drying area is not obtrusive from the road; open to the sky; has a total of area of not more than 40sq.m; and a minimum width of 3.0m.

He attaches (at attachment “C”) a letter from Brisbane City Council dated 23rd October 1992 to the Thomson Adsett Group Pty Ltd showing a development approval for a modification of a consent approval including condition (ae) that “ a clothes drying area in accordance with Clause b) section 7.6.2 of the Town Plan for the City of Brisbane is to be provided in accordance with approved plan/s of layout.”

The development approval states that the timing condition for (ae) is “ prior to the commencement of use and thereafter to be maintained at all times that the development remains in existence.”

The Applicant says that the application to lodge a new CMS on 10th September 2001 failed to meet the requirements of the Act, so that the new CMS is “fundamentally flawed” in the changes made to it. By-law 14 which concerns exclusive uses, the description of lots allocated exclusive use areas at Schedule E , and the accompanying sketch plan marked “A” are wrong. He says that “under these circumstances, notice should be given to Lots 1 and 4 that their claims to exclusive uses areas is invalid and unlawful.” [1]

He says that he has lived at the scheme since 2002, as a tenant and as an owner. He used the communal drying area as pointed out to him by the letting agent, which is in accord with the town planning permit, until December 2006. Then the owner of Lot 4, Jennifer Bell (Ms Bell), denied access to residents of the communal area claiming that Lot 4 had an exclusive use of the area. She erected a fence with a locked gate, unapproved by the body corporate.

The committee looked at various other options for a clothes drying area, but none were large enough or satisfactory. On 28th May 2008 at a committee meeting, it was proposed to erect a clothes line “on the common grassed area between the front and back buildings,.” but a notice of opposition was sent to the committee about this motion on 4th June 2008 pursuant to section 37(3) Standard Module then in force. Ms Bell also proposed to relinquish the car park beside her garage and remove the garden between the car park and the fence as an alternative.

The Council inspected the area and on 13th November 2008 issued a Show Cause notice to the body corporate and to Ms Bell since the access to the designated drying area was restricted by the locked gate and fence in contravention of the condition of the development approval.

At a committee meeting on 12th November 2008 Ms Bell proposed as an interim measure that she would provide a code to the locked gate and then invite a town planner to inspect the site and put forward alternative proposals. The committee rejected this since an interim measure was not an appropriate response to the Show Cause notice, and the body corporate had already worked out that there were no alternative sites which met the Council approval. The committee resolved to request the owner of Lot 4 to remove the lock from her gate to provide unrestricted access to the clothes drying area. Minutes of the meeting were sent to all lot owners, and Ms Bell was asked to comply with the direction “as a matter of urgency.” Ms Bell advised the secretary on 28th November 2008 that the lock had been removed. However, when the Applicant went to hang washing on 29th November 2009 he was told by Ms Bell that he was trespassing on her property.

The Applicant says that he is most affected since other lot owners have installed clotheslines on rear balconies albeit against the by-laws Since he has a very small balcony owing to the design of the building, he cannot use it to hang washing. There are dryers provided in units but since there is a communal drying area, he wishes to use that. He finds driers inefficient, potentially dangerous, and reduce the life of clothes. Also, the units were not designed or approved to accommodate clothes dryers. Laundries are centrally located and have no ducting. The use of a dryer raises the humidity and causes condensation and mould problems in the laundry and hall.

On 26th November 2008, a town planing firm ,The Planning Place, engaged by Ms Bell wrote to the body corporate proposing that the body corporate should lodge a development application to delete the planning approval condition about the community drying area. This would cost $3,867.50. The Applicant says that the document from The Planning Place, distributed to all owners by the body corporate manager, is misleading and inappropriate. It refers to “former” clothes drying area and says that the condition is no longer applicable.

In accordance with section 243(2)(b)Act, submissions were invited from all lot owners.

Susan-Lee Furness, owner of Lot 10, and a committee member, strongly supports the application. She has been at the scheme since 2002 and used the drying area regularly until late 2007 when the owner of Lot 4, Jenny Bell refused all residents any further use of the clothes lines, claiming ownership. The committee has tried to resolve this issue, and the exclusive use area claimed cannot be valid since it is in breach of the Council planning permit. She had no dryer in her unit when she purchased and disputes that the original developer fitted a dryer in each unit as an alternative. Not having a communal drying area is an inconvenience to all owners and tenants.

Ian Turner, owner of Lot 7, has been an owner since 1999, and was an occupier until 2003, and has served on the committee. He says that the body corporate granted exclusive use of the area, and all owners had the opportunity to vote on that motion. The area is small, has a “domestic style clothes line” and is unsuitable as a drying area for 12 lots. It is under gum trees and adjacent to a fence. He understands that all units have electric dryers now because of the inefficiency of the drying area. The exclusive uses were granted partly so that the maintenance of the fence line could be placed on specific owners. He attaches a copy of the minutes of an extraordinary general meeting held on 1st August 2001 whereby exclusive use areas were granted to Lots 1, 2, 3 and 4 by 6 votes without dissent. At the AGM on 21st May 2003, permission was granted for Lot 4 to construct a patio roof, to erect a dividing fence on the boundary line between lot 3 and 4, and to do landscaping work along the fence all approved 7-0. A motion by Ms Bell to erect a fence adjoining common property with a gate on the boundary line between Lot 4 and the common area at the joint cost of the body corporate and Ms Bell was defeated, but then an amendment was approved that “the fence may go up but at owners cost.”

Ned Saric, owner of Lot 6, says that he does not understand the reason for the dispute, and that disharmony has affected the scheme in a negative way. He thinks the solution would be to return to the way the scheme was built by the developers with no exclusive uses but with community spaces designed as inherent in the scheme.

Claire Bourke, owner of Lot 1, purchased in July 2001 and her lot was sold with exclusive use of a rear courtyard. The area had been fenced and gated. She does not think that the Applicant’s arguments are correct. If her exclusive use area is not lawful anyone could walk right up to the sliding glass door of her bathroom, and she pays to maintain her exclusive use area. She believes that the letting agent of Lot 8 incorrectly advised the Applicant about the drying area when he was a tenant. Ms Bell did kindly allow access to the drying area for some time, although she did not have to do this. She deserves thanks and not the attitude taken. She says there are condenser dryers available which do not require ducting and are not harsh on clothes. She says that it is unfortunate that the body corporate did not get the planning matter changed following the grants of exclusive use in 2001. She advises that Ms Furness in Lot 10 is the Applicant’s partner, and that they “run the committee.”

Craig Holley, owner of Lot 2, says that he purchased from the developer in December 1992. “A short time after” he was informed by the developer that due to the inconvenient position of the outside drying area, that all units would be fitted with clothes dryers, and he provides a statutory declaration to that effect that “the developer... supplied all 12 units with clothes dryers due to the difficulty residents were having with the location of the outside drying area.” Most owners were not living on site then. On 1st August 2001, the exclusive use areas for Lots 1 – 4 were granted. Previous to that, the areas behind Lots 1 – 4 were not used by anyone and were not well maintained. The granting of exclusive uses was a “win-win” for all owners. They also provide additional security for those lots. He wonders why the Applicant did not know of the exclusive use areas before buying his unit. He opposes the application.

Ian Adams, of The Planning Place made an uninvited submission in respect of Lot 4. He says that his firm has made representations in response to the Show Cause notice on behalf of Jenny Bell. However, they cannot do so whilst the site is gazetted in the “balance area” of the Bowen Hills Urban Development Land Authority (UDLA), as the application would not be received favourably. The Council has advised that it will not prosecute, and new legislation is to be passed to allow an application to be made to UDLA as the new assessment manager. If it is not approved, they submit that they could use “surplus car parking space area” or another part of the common property. He says that exclusive use areas should not be extinguished until other remedies are exhausted.

Jennifer Bell, owner of Lot 4, says that she purchased Lot 4 in December 2000, and that the exclusive use of Lot 4 was granted to her at a general meeting on 1st August 2001. On 21st May 2003 she got permission from the body corporate to erect a gate but did not go ahead with it at the time. She says that during the calendar year 2005, the Applicant asked her if he could use the clothesline located on the exclusive use area at the back of her unit and she agreed. Ms Furness then moved in with the Applicant and assumed a right to use the clothesline granted to the Applicant personally, and it became increasingly difficult for her to dry her clothes as the line was monopolised. She once asked Ms Furness to leave a small area for her and was refused rudely. Between 2002 and 2005 the Applicant and Ms Furness “must have had an alternative way of drying their washing.” Throughout 2007 they also made such frequent use of the line that she felt “like a fish in a fishbowl.” She felt awkward in her own home.

In November 2007, she felt that she should exercise the permission given to her on 21st May 2003 and withdrew her offer to the Applicant to use the clothesline in the exclusive use area. The Applicant investigated the minutes and found that she had requested a 50% cost of the gate, but that the meeting agreed that it should be paid 100% by her, so she had to seek approval for the gate again. At the annual general meeting held on 28th January 2008 (sic) the “gate motion” was passed. On 12th May 2008, she was asked by the body corporate manager at the instigation of the Applicant to hand over the clothesline to the body corporate. On 28th May 2009 the Applicant again proposed a clothesline on common property in front of Lot 4, and she engaged lawyers regarding a motion passed at committee level to stop the committee acting on it.

She says the existing clothesline does not have an area of 40m² and does not have a width of 3 metres. The bins are also not in the correct area in accordance with “ the plan.” She says that a lock on a gate is “implied.” She admits telling the Applicant that he was trespassing when he came to use the line.

The body corporate, which is the respondent in this application, made no submission.

The Applicant exercised his right of Reply. He says that tenants dry larger items by laying them out of windows and onto the roof tiles now, and provides a photo. This is a breach of by-laws caused by there being no communal drying area. He agrees that the current area is not adequate for 12 units, but it is what Council has decided is adequate, and any lot owner can make a submission to increase the size as and when the need arises. He finds Mr Holley’s statutory declaration unsupported by evidence. Even if correct, the Brisbane City Council has never been asked to amend the approved plans for the scheme, so the scheme still requires a communal clothesline.

He denies monopolising the clothesline at any time. The committee did consider options by Ms Bell, and these included the resumption of a car park and garden with prohibitive cost; the southern side of Lot 8 which is unsuitable as it is only 1 metre wide and slopes. It would also require the removal of establishes lilly-pilly trees; an area in front of Lot 8 – this was rejected because it is the front yard and visible from the street which contravenes Council’s permit and denigrates from the appearance of the scheme; and the balconies of units – this also contravenes by-laws and denigrates appearance. All decisions are made by the committee acting as a whole and two committee members cannot “run the committee.”

He denies asking Ms Bell to hand over the clothesline . He asked for the clothesline to be relocated for use by all until a permanent solution was reached. The committee has inspected several sites and found them unsuitable. It does not take an expert to determine the location, size, shape and land fall available. Ms Bell’s consultant is making the same unacceptable proposal. He denies ever threatening Ms Bell that her exclusive use area would be reclaimed by the body corporate.

He also denies asking the inspector form the Council to investigate the gate. Council did this to see if development approval was being breached. He agrees that the existing clothes line does not have an area of 40m square and a width of 3m.

To resume a carparking space would be very costly as it would also would require permission from the Council, and the application alone would cost “thousands of dollars.” He also says that The Planning Place should not be involved in this if they are experts, since they are clearly partisan as engaged by Ms Bell.

On 6th May 2009 the Applicant provided this Office with a copy of the minutes of an annual general meeting held on 23rd April 2009. The body corporate rejected the motion to make a development application to the Council to remove the clothesline condition of the development approval. On 27th May 2009, the Applicant advised that the Council has confirmed by email dated 21st May 2009 to the Applicant that the Council will wait for a determination by this Office before taking further steps, but would issue an enforcement notice if the exclusive use is not reinstated, and no development application is made to amend the current conditions.

On 13th May 2009 the Applicant forwarded the minutes of the annual general meeting of 23rd April 2009. Motion 10a proposed by The Planning Place, on behalf of Lot 4, that a development approval be made to delete condition (ae) was lost 4 - 5.

On 1st July 2009 I sought further information from the Applicant. He provided a pieced together copy of an A2 sized plan which he says is the approved plan mentioned in the development approval. The “Drying Area” is shown as an area of 40sq m. and forms a roughly rectangular shape with one long side tapering towards the opposite shorter side. The plan provided, numbered 2730-WD01 Revision A and created by the Thomson Adsett Group’s architect in October 1991, is stamped “Approved”, (apparently by the Brisbane City Council although the notation under the signature is feint) on 20th February 1992. The plan also shows spaces for 12 tenants’ cars and 9 visitors’ cars. The Applicant says that he purchased these plans from the Council on 6th January 2009 that these “are the current ones.”

He also provided a copy of the minutes of the annual general meeting of 28th February 2008 at which the body corporate authorised Ms Bell to erect a gate at 1800mm high constructed of pool fencing between the dividing fence and the side of Lot 4 at her expense; and at which motions to find an alternative position for the clothes line were defeated.

I again sought further information from the Applicant concerning certain ambiguities on the provided plans. He responded on 6th August 2009 with an A2 sized copy of the approved site plan, the town planning consent 421/91 dated 13th November 1991[2], an email dated 5th August 2009 from Brisbane City Council, and a partial site plan and photographs concerning the visitor car parks. He says that the Council requirement is for 10 visitor car parks, and whilst 12 are shown on the site plan, spaces “3” and “4” do not exist, and space “9” has been removed by the erection of two permanent steel poles to stop parking as parking in that space would be dangerous and obstructive to residents.

He asks if I have received any submissions, representations or proposals of which he is not aware, and the answer to that is that there have been no submissions made save as have been noted above.

In this matter, I have some concerns that I have had no submission from the body corporate, the respondent to this application, but I am aware that the Applicant at the time of his application was the chairperson, and that submitters Ms Bell was the secretary of the scheme, Ms Furness was treasurer and that Mr Saric was an ordinary member. As from 23rd April 2009, all executive positions are held by Ms Bell, with Mr Saric, Ms Furness and the Applicant now ordinary members. It would appear therefore that I have received the views of individual committee members. It seems to me that the facts in this matter are agreed and that the dispute revolves only around a question of law.

The body corporate, at a general meeting on 1st August 2001, voted to grant an exclusive use by-law to the owner for the time being of Lot 4, over an area of common property previously used as a clothes drying area.

The vote at the extraordinary general meeting of 1st August 2001 was 6 – 0, and Mr Turner says that the granting of the exclusive use areas to four lot owners was advantageous to the body corporate because they now maintain the fence line, and have since erected fences between the lots, and done landscaping works, all with the consent of the body corporate. Mr Holley says that before the grant of exclusive uses, the area of common property was not maintained so it was a “win-win” situation. There is no doubt that the exclusive use areas were properly granted in respect of the voting procedure, and a request to record a new community management statement properly lodged by the body corporate.

However, it is a requirement of the development approval for the scheme that a 40 sq m. clothes drying area (at least) “in accordance with Clause b of Section 7.6.2” of the then Town Plan, and “in accordance with approved plans/ of layout” is provided and maintained at all times.

The approved plans are referred to in development approval 421/91 as 2730 01; 2730 02; and 2730 03 all being received by the Brisbane City Council on 6th August 1991. This was not the development approval finally approved since the developers, Thomson Adsett Group Pty Ltd apparently sought to renegotiate some of the conditions of the approval, resulting in the final permit number 498/92 produced on 23rd October 1992.

The Applicant has provided site plan/floor plan 2730 01 revision A drawn in October 1991, stamped as approved by Council on 20th February 1992. That plan shows an area of 40sq.m called “Drying Area” behind Unit 4 in the south-west corner of the scheme. However, an email dated 17th April 2008 from the Council to the Applicant notes that “the approved plan identifies a dedicated 44m² clothes drying area in the south-west corner of the property.”(my underlining)

The question of need of the clothesline is therefore something of an irrelevant consideration, as is whether or not other owners have alternative means of drying clothes. The Council is clearly of the view that the condition of the development approval remains valid until such time as the Council agrees to vary or delete it. In these days of higher awareness of carbon emissions from the use of appliances, it is becoming common for community drying areas to be included in plans for community living as a condition of the development approval.[3]

In a Show Cause notice issued by the council on 14th November 2008 to the body corporate, the Council referred to permit number 498/92 and the condition (ae) that a clothes drying area be maintained. It did not make a reference by number or date to the “approved plan/s of layout.” I am satisfied that the plan provided by the Applicant is the “current plan” as amended by permit 498/92 which did not change the requirement for a clothes drying area, although the numbering of the conditions changed. A clothes line of “not less than” 40sq m. was required, by Item 7.6.2(b)(iv) of the then Town Plan, which is mentioned in condition (ae). I note that Item 7.6.2(b)(i) enabled the 40sq. m area to be constituted by “one or more parts of the site” which might be of relevance to the body corporate at a future date.

The Council’s Show Cause notice concerned the breach of a condition of development approval 498/92 constituted by access to the clothes drying area being “restricted by a locked gate and fence.” At the AGM on 21st May 2003, by an amendment to Motion 5, permission to erect a dividing fence between the common property and lot 4 was given. Ms Bell had sought permission for a fence and gate and for the costs to be met half by her and half by the body corporate since this was a dividing fence. It appears from the minutes that the body corporate approved only the fence and at Ms Bell’s expense. Permission to erect a patio roof over part of the exclusive use area formerly the clothes drying area was also granted at Ms Bell’s expense. On 28th February 2008, at the annual general meeting, the body corporate allowed Ms Bell to erect a 1800mm gate “between the dividing fence and the side of unit 4” at her expense. There was no approval for the gate to be locked, although Ms Bell says this was implicit in the installation of a gate.

These motions were for improvements to common property for the benefit of an owner, and should have been carried by special resolutions at that time and not by ordinary resolutions. This may be academic since the voting tally to construct a patio, and a fence between Lots 3 and 4 were both 7 – 0, although the vote on the amended Motion 5 (of the AGM of 2003) is not recorded. The motion for a gate was passed 4 – 2 making it also technically compliant with the requirements for a “special resolution” which it should have been.

The Applicant’s argument however is that the community management statement which recorded the new by-laws and was lodged on 10th September 2001 with the Titles Office, should have carried an endorsement notation from the Council, because of the inconsistency with the development approval. Because it did not, he alleges that the CMS, and therefore all the exclusive use by-laws, are invalid.

Section 54 Act was amended in 2003 and the section about community management statement notations is now section 60 Act, and is differently worded. I am not convinced that this section operated in the way in which the Applicant believes it did. Section 54(2) explained that the notation was to be “only that the local government has noted the community management statement.” The local authority had no power to oblige the body corporate to change its community management statement, but “may refuse” to endorse it “only if there is an inconsistency between the provisions of the statement, and (a) a lawful requirement of, or an approval given by, the local government under the [Integrated] Planning Act [1997]; or (b) .... the local government’s planning scheme, or a lawful requirement of, or an approval given by, the local government under the planning scheme....” (Section 54(3) Act))

The Registrar of Titles was not bound to refuse to record a community management statement if it did not have a local government notation, or to enquire into the development approval given by the local government. However, a first community management statement, setting up a new standard format plan or building format plan, that is, establishing the scheme, had to carry a notation from the local authority. (former Section 54(1) Act). Thereafter, despite section 54(1), if a scheme lodged a new community management scheme it could be recorded without endorsement if there was no difference between the existing statement and the new statement “ for any issue that the local government could have regard to for identifying an inconsistency....”

There is nothing in section 54 which said what was to happen if the body corporate and/or the Titles Office recorded a statement without a Council notation, which contained an inconsistency “for any issue that the local government could have regard to......” That is, the effect of lodging a statement without a notation, which is clearly envisaged, is not explored where it is alleged that the statement should have had a notation from the Council. Nor is there any time allowance given in which the statement might be challenged for not carrying a notation.

The somewhat unsatisfactory drafting of section 54 was amended to become section 60. The explanatory notes of the amending legislation in 2003 state as follows -

“Clause 19 - Amendment of s 54 (Local government community management statement notation)

A community management statement is not a tool by which a local government can control directly or indirectly the way a community titles scheme is developed or operates. For example, it is very common for local governments to misuse the local government community management notation provision by requiring the inclusion of development conditions in the community management statement for the scheme or purported changes to the statutory by-laws in Schedule 2 to the Act.

The amendment of section 54, .... to include the word “must” in subsection 3, now compels the local government to note the community management statement, except for the exclusions provided for in subsection 4.

The proposed subsection 4A is included to remove the local government’s opportunity to meddle in the internal management of the body corporate through local government notation provisions. Local Governments have been purporting to use the notation provisions to direct how exclusive use allocations are to be made, or if a planning scheme allows for a restaurant or shops in the building but the body corporate decides not to have those facilities in the scheme, to direct that the body corporate must agree to the restaurant.

The proposed subsection 4B also includes a number of instances where no local government notation is required for what are essentially non-local government or internal body corporate issues. For example if a local government were to compulsorily acquire a lot in a community titles scheme, the local government would have had to note the new community management statement for the changed scheme. This would be have been illogical bureaucratise. Similarly, where lot owners agree to change lot entitlements, the change is an internal administrative matter for the owners and the body corporate and not an issue for the local government. A copy of the recorded community management statement will be provided to the local government for their records at a later time.”[4]

The new subsection 54(3) Act (now section 60(3) Act) states that the local government must endorse the community management statement subject to subsection (4). Subsection (4) deals only with a scheme intended to be developed progressively (as well as containing an inconsistency etc...).

Sections 4A and 4B, which became respectively sections 60(5) and 60(6) Act, provide examples of what is not inconsistent with a planning scheme in a scheme intended to be developed progressively. Since this scheme is not a scheme which was intended to be developed progressively, I am of the view that this section does not apply.

However, I am of the view that the clothes drying area, being a requirement of the development approval, is similar to a visitor parking space, that is, some amenity required by the local laws or by a local authority planning scheme, and which cannot be used in any other way, even if the body corporate wanted it to be. This Office has dealt with many cases of residents parking in visitor parking bays or the body corporate wishing to turn the visitor parking bays into something other than visitor parking bays. The consistent view is that the body corporate does not have the power, without more, to dispense with a local authority requirement.[5]

As Mr Saric noted in his submission, the trouble commenced when an exclusive use area was granted over a community amenity. If that amenity was not used a great deal by owners and occupiers, then the body corporate might have approached the local authority for a relaxation of the development approval. It might also have proposed that another drying area, not necessarily of 40 sq m. but of a type and size approved by the body corporate, say a Hills Hoist, was erected on common property thus continuing to provide the amenity for those that wished to use a line.

I have noted that the requirements of the then town plan would be met by a clothes drying area covering not less than 40 square meters and “constituted by one or more parts of the site.”

However, the exclusive use granted to Lot 4 was not lawfully granted in 2001 and cannot be allowed to stand. The exclusive uses granted to Lots 1, 2 and 3 do not appear to be over a community amenity required by the council, and there is no fault with the procedure used in their establishment. I note that the body corporate has at the annual general meeting on 23rd April 2009 voted 5 – 4 against Ms Bell’s proposal that the body corporate make an application to delete condition (ae) from the development approval.

Therefore, the body corporate must make a request to record a new community management statement removing the exclusive use area granted to Lot 4 within six weeks of the date hereof. I do find that By-law 14 needs to be amended but Schedule E and the Sketch Plan do.

The body corporate may record a further new community management statement if there comes a time when the body corporate is once again able/ wishes to grant an exclusive use to the owner of Lot 4. I am of the view that negotiations with the local authority may yet be undertaken by the body corporate and/or Ms Bell so that one or two drying areas might be provided elsewhere within the scheme, which would give a satisfactory outcome to all parties. However, until that time arrives, the body corporate must allow clothes to be dried in the designated drying area in accordance with the condition of the development approval.

If Ms Bell has expended money believing that she has the enjoyment of an exclusive use area, then this is a matter she might like to take up with the body corporate. I note that she has erected a patio roof, and done landscaping over the area but it is not clear whether the landscaping and patio roof is over the drying area or simply within the 85 sq m currently granted to Lot 4. The body corporate has acquiesced in and encouraged Ms Bell’s use of the area as hers exclusively, which means that she was able to exclude others from that area. The body corporate was wrong in that grant in that it acted beyond its power. It follows that Ms Bell cannot exclude lot owners or their tenants from use of the drying area, but the body corporate might if it wishes grant to the owner of Lot 4 a smaller exclusive use area of common property behind Lot 4 if that is feasible.

These are matters which are not part of this application, but I have some sympathy for Ms Bell in the circumstances of the body corporate’s error.

For completeness, I note that the use of a visitor car park as a community drying area has been mooted. This would also need the approval of Council if a certain number of car parking spaces are a condition of the development approval. I am not advised how space 9 has been made unavailable, but that is also a matter for the body corporate to assess and rectify if necessary.

Finally, I am advised by the Applicant that the financial year is January to December which means that the annual general meeting should be held each year by the end of March. The AGM for 2009 appears to have been held in April, and in 2001 in May. Again, there is evidence in this small scheme that the body corporate is not clear about its limits and responsibilities, and the requirements of the legislation. All owners are encouraged to inform themselves about the running of the body corporate, and there are fact sheets, and on-line training freely available on our website http://www.justice.qld.gov.au/3260.htm and information may be obtained from our Information Service on 1800 060 119.

[2] Invalidated by letter dated 23rd October 1992 from Brisbane City Council to Thomson Adsett Group Pty Ltd. (Attachment C of the application) The new town planning consent was 498/92 according to the Applicant and referred to at attachment D of the application.
[3] Brisbane City Plan 2000 - Residential Design—Low Density, Character and Low–medium Density Code.
“Communal open space for clothes drying and common recreation facilities must be provided where a significant proportion of dwellings do not have access to ground floor private open space: Where more than 25% of dwellings do not have access to ground floor private open space, communal open space for clothes drying and common recreation facilities is provided with at least one continuous area a minimum of 50m2 with a minimum dimension of 4m.”

[4] Body Corporate and Community Management and Other Legislation Amendment Bill 2002
[5] 0794-2003 Mimosa Villas CTS 20224; 0679-2003 The West Quarter CTS 26479

Number of Scheme:	3339
Name of Scheme:	Juanita Court
Address of Scheme:	44 Cintra Road BOWEN HILLS QLD 4006

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Juanita Court [2009] QBCCMCmr 334 (3 September 2009)