Civil Court 14 [2009] QBCCMCmr 335 (3 September 2009)

Number of Scheme:	35946
Name of Scheme:	Civil Court 14
Address of Scheme:	14 Civil Court, Toowoomba Queensland

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Synergy Resources Pty Ltd , the owner of Lots 3 and 4

I hereby order that the application for an order by Synergy Resources Pty Ltd , the owner of Lots 3 and 4 against the body corporate for Civil Court 14 community titles scheme 35946 seeking a declaration that there was not a valid Body Corporate resolution to approve the material change of use application specifically with respect to the development planned to alter common property, is dismissed.

The scheme
“Civil Court” community titles scheme 35946 is subject to the Body Corporate and Community Management Act 1997 (Act) and the Body Corporate and Community Management (Commercial Module) Regulation 2008 (Commercial Module).

Application
This application made on 9 March 2009 is by Synergy Resources Pty Ltd, the owner of Lots 3 and 4 (Applicant) against the Body Corporate seeking a declaration that there was not a valid Body Corporate resolution to approve the material change of use application specifically with respect to the development planned to alter common property.

The Applicant claims it was approached on 6 February by solicitors acting for Caligulus Pty Ltd, the owner of Lot 1 seeking permission to change the Body Corporate by-laws for exclusive use car parking.

The Applicant provided a copy of a ‘Development Application’ (DA) received by the Toowoomba Regional Council on 24 December 2008 relating to Lot 1 (Attachment 1). It says the DA included a ‘Company Owner’s consent to the making of an IDAS development application’ form (Consent). This form (Attachment B) was signed by Jeremy Rolton (chairman) and Michael Stennett (secretary) of the Body Corporate on 17 December 2008 consenting to the making of a development application by the owner of Lot 1 on common property “for the purposes of use of the common property shown on the attached plan for carparking by the owner of Lot 1 in CTS 35946 in common with the owners of the other lots in CTS 35946.” Included in the application as Attachment B is another ‘Company Owner’s consent to the making of an IDAS development application’ form signed on 3 December 2008 by Messrs Rolton and Stennett, director of Miper Pty Ltd, the owner of Lot 1 consenting to the making of a development application by Jim Welch on Lot 1 “for the purposes of material change of use for 5 room brothel.” The Applicant says the form was signed without a committee meeting being called.

Attachment D to the application is a copy of a letter dated 23 February 2009 from Danielle Fitzpatrick (Manager, Development Assessment Urban) to the owner of Lot 1 referring to the Consent seeking clarification about the Body Corporate seal or that the consent given by the chairman and secretary complies with the Act and the Commercial Module.

Attachment E to the application is a copy of a ‘Flying Minute’ sent to all committee members by Teys (Cleveland) Pty Ltd (Body Corporate Manager) proposing the motion: “It is resolved that the Body Corporate Committee grant approval that the form of consent attached hereto be executed by the chairperson and the secretary or another member of the Committee and that the seal of the Body Corporate be affixed to the form.” The Applicant states the only response to the notice to date has been from it.

The Applicant is concerned the owner of Lot 1 has bypassed due process for Body Corporate approval with regard to the DA. Attachment F to the application is a copy of a page headed: ‘3.0 Proposed Development’. The Applicant states the proposals to construct a courtyard to be utilised as a smoking area and to use common property parking to meet Council requirements would be exclusive use and need Body Corporate approval. The Applicant also says that sourcing existing facilities to provide external lighting would need to be approved by the Body Corporate. An attached ‘Floor Plan’ of Lot 1 includes an external courtyard noted as consisting of a concrete slab and a 1800 high fence.

The Applicant submits it is inappropriate for the owner of Lot 1 to make misleading representations to the Council to gain approval relating to use of common property.

Submissions to the Commissioner
On 24 March 2009, the Commissioner provided a copy of the application to the Body Corporate Manager for distribution to the owner of each lot (excluding the Applicant) and the committee, with an invitation to respond to the matters raised in the application (s 243, Act).

The committee response is stated as representing the owners of Lots 2 to 5. The committee submits its intention is to reflect the wishes of the owners—the owners of Lots 2 to 4 oppose the development planned for Lot 1, the owner of Lot 5 has no objection.

Neville Welch for the owner of Lot 1 submitted as he was not aware there was an issue or a dispute in existence, it is inappropriate for the matter to be adjudicated until he has had the opportunity to meet with the Applicant to discuss their concerns. He states he has asked the secretary to organise a meeting of owners so he can answer questions about the application to the Council. Mr Welch submits the Body Corporate did not consent to the owner having exclusive use for car parking purposes; they are saying the common property car park area can be used by all lot owners for the purposes of car parking. He says if the chairperson and secretary are not the appropriate persons to sign the form on behalf of the committee, he does not know who should sign the form. Mr Welch states all that has occurred is that an owner has applied for Council approval relating to the lot. He submits that he asked the Body Corporate to confirm the common property car parking can be used by the owner of Lot 1 and its customers in conjunction with other owners and the Body Corporate said he could. Mr Welch states that if the Council approve his application on the condition that there should be some form of approval from the Body Corporate, he will at that time apply for approval.

Miper Pty Ltd, the owner of Lot 2 support the outcome sought submitting it was the previous owner of Lot 1 and gave permission for the then prospective new owner of Lot 1 to make the material change of use application.

The Applicant made a written reply to submissions stating that Mr Welch made application to Council knowing he did not have appropriate approval for common area development. The Applicant says the Council has approved the application and that owners have not been allowed any objection or say about the development of common property.

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

Jurisdiction
An adjudicator may make an order to resolve a dispute, in the context of a community titles scheme, about a claimed or anticipated contravention of the Act or the community management statement; or the exercise of rights or powers, or the performance of duties, under the Act or the community management statement (s 276(1), Act).

Decision
The Applicant has sought an order against the Body Corporate. The Applicant argues the absence of a valid Body Corporate resolution to approve the DA. Nothing has been presented demonstrating that the Body Corporate made any decision with respect to the DA. The only action that could be viewed as being representative of the Body Corporate is the Consent signed by the chairperson and secretary which appears to have accompanied the DA. The authority for the chairperson and the secretary to sign the Consent, it would appear on behalf of the Body Corporate, has not been explained.

The legislation does not provide a specific power to the chairperson and secretary to sign such a document in the absence of authority from the body corporate. Ordinarily this action would be taken as a consequence of an authorising body corporate decision. A body corporate decision can be made in general meeting (s 104, Act) or by the committee (s 100, Act). There is no evidence that a Body Corporate decision has been made authorising the chairperson and secretary to sign the Consent.
There is nothing to suggest the Body Corporate subsequently ratified the action. The Body Corporate has not argued that it has approved the change of use application. Consequently, it is questionable as to whether there is a dispute with the Body Corporate about this issue. If owners were concerned about the effect of the signing of the Consent, a Body Corporate decision could have been made reflecting what is submitted in this application to be the views of the committee and notifying the Council accordingly. It would seem from Attachment E that there was insufficient response to the ‘Flying Minute’.

It would appear, given Attachment D, that this aspect of the DA was subsequently questioned. The outcome of the 23 February 2009 letter is unknown even though the Applicant now says the DA has been approved by the Council. However, the extent of the Consent signed by the chairperson and secretary appears to be quite limited to the use of common property for car parking along with other owners. The Applicant has not specifically questioned this aspect of the DA. Even if there was a concern about parking on common property, the owner and any occupier of Lot 1 (and every other owner or occupier) is bound by the terms of by-laws stated in the community management statement for the scheme (s 59, Act). The statement for this scheme (No. 709970798) relevantly includes By-Law 2 (Vehicles), 3 (Obstruction) and 6 (Behaviour of Invitees). A function of a body corporate includes enforcing by-laws (s 94, Act). Section 182 to 188 of the Act contains a detailed framework about by-law contraventions.

The Applicant would seem to be concerned about what may occur on common property as a consequence of the DA being approved by the Council. The Applicant appears to be concerned about work which may be carried out on common property by the owner of Lot 1; work which it is argued will have the effect of alienating a part of common property. Work such as the construction of a fence and a concrete slab for a courtyard would normally constitute an improvement; an owner proposing to do this work on common property for the benefit of the owner’s lot requires the body corporate authorisation (s 159, Act; s 120, Commercial Module). There is no evidence that the owner has done work or that the Body Corporate has authorised doing the work. Further, if the courtyard alienates a part of common property, the owner may require Body Corporate authority to use the affected part of common property to the exclusion of other owners and occupiers; for example, by exclusive use by-law or a lease (see section 171(1) and (2), Act, s 117, Commercial Module). Again, nothing has been presented to indicate the Body Corporate has given any such approval. In this circumstance, there is no evidence of a dispute with the Body Corporate about these issues. If the owner had carried out work, the dispute may more appropriately be against the owner, not the Body Corporate. There is no basis for any claimed issues in relation to the owner of Lot 1 to be determined in this application against the Body Corporate.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Civil Court 14 [2009] QBCCMCmr 335 (3 September 2009)