The Sands [2009] QBCCMCmr 361 (22 September 2009)

Last Updated: 9 October 2009

REFERENCE: 0297-2009

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	14967
Name of Scheme:	The Sands
Address of Scheme:	40 The Esplanade SURFERS PARADISE QLD 4217

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Dragan Mitic, the owner of Lot 24

I hereby order that the body corporate for The Sands community titles scheme 14967 must ensure that Dragan Mitic, the owner of Lot 24 can access Level A of Building Units Plan 82 in the same way as any other owner or occupier of a lot included in the scheme, including an owner or occupier who has exclusive use of a car space on the Level pursuant to By-Law 21.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0297-2009

“The Sands” CTS 14967

The scheme
“The Sands” community titles scheme 14967 is subject to the Body Corporate and Community Management Act 1997 (Act).

Application
This application made on 27 March 2009 is by Dragan Mitic, the owner of Lot 24 (Applicant) against the Body Corporate seeking free and unlimited access to an unloading zone and lifts at the basement of the building.

The Applicant submits he and occupiers of his Lot have to unload on the ‘commercial vehicles zone’ on the street or by paying for parking across the street. The Applicant recommends that the by-laws be changed not to discriminate him as an owner. He says he has always had a problem accessing the unloading zone to move property, and while the building manager has opened the gate a few times there have been problems getting the manager to do this. The Applicant submits there is no visitor or street parking.

The Applicant provided a copy of:

• The minutes of the Annual General Meeting dated 7 April 2006 where Motion 14 submitted by the Applicant was defeated. The Motion proposed forming a sub-committee to investigate the committee decision to restrict access to the common property yard which, the Applicant argued, all owners should have access to for loading and unloading and a committee cannot decide to restrict owner’s access to common property.
• A letter he wrote to the Body Corporate dated 11 June 2006 requesting “...keys of the yard for vehicle access because I intend to renovate my unit next month and to move in after that. Also supply me with keys of the room with lifts in the basement because I want to use unload zone in the courtyard...”
• The minutes of the committee meeting dated 4 September 2008 which at page 1 under ‘Inward and Outward Correspondence’ notes: “...a letter received from...Mr Mitic in regards to a request for keys to access the front yard for vehicle access and lifts. The committee...resolved that this access will not be granted as this lot owner does not have a registered car park space in the basement area as per the Community Management Statement and this is reflected in the lot entitlements for this unit (hence this lot owner pays a lower levy than those that have a car park space by exclusive use) therefore there is no need for this lot owner to have access to this area...”
  

Submissions to the Commissioner
On 9 April 2009, the Commissioner provided a copy of the application to Archers Body Corporate Management 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 owners supporting the application state:

• The Body Corporate should be directed to provide appropriate access to all owners, occupiers and suppliers to a specified area in the basement car park convenient to the lifts to allow goods and materials to be loaded and unloaded provided the vehicle is immediately moved from the area.
• There would be health and safety benefits removing the necessity for some owners and occupiers to load and unload vehicles in public on The Esplanade in the heart of Surfers Paradise.
• The building manager has refused contractors from entering the loading zone under the building resulting in deliveries being brought up from outside the building and across the road. Contractors have to continually inspect and move their vehicles or risk being fined. Building contractors have access to the loading zone at all times, but not occupiers’ contractors.
• Occupiers should have unrestricted use of the facilities and common property.
  

The owners opposing the application state:

• As the two lifts gave been recently replaced and lined, they don’t want the lifts used for furniture and building materials, only passengers and their luggage.
• Committees have had a parking policy; if you don’t have allocated parking you don’t get basement access without prior arrangement with the building manager.
• There are loading bays in front of the building.
• The underground car park is for those with an allocated space.
  

The committee believe the application should be dismissed and/or it be directed that the Applicant does not have access to the basement car park to park a vehicle on common property or in a car space to which the Applicant has not right to use. The committee submits there is not an unloading zone in the basement and the Applicant is not entitled to exclusive use under the relevant By-Law 21. The committee notes there are 11 lots without an exclusive use allocation. It admits that while all owners have the right to access and use the common property, there is no lawful purpose to which the Applicant is seeking to use the basement as there is no loading zone in the basement. The committee submits that giving the Applicant access to the basement car park would invite a breach of the by-laws as the Applicant admits wanting to use the car park to park a vehicle to load and unload goods. With respect to the suggested change of by-laws, the committee submits the Applicant has not demonstrated the by-laws are oppressive, unreasonable or unwarranted.

The Applicant made a written reply to submissions.

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 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). An order may require a person to act, or prohibit a person from acting, in a way stated in the order (s 276(2), Act).

Decision
The Applicant proposes obtaining unlimited access to an unloading zone and lifts in the basement of the building. The committee states the basement is Level A of Building Units Plan 82; the plan of subdivision for the scheme. The Plan indicates that with the exception of an area that is part of Lot 1 (not in dispute in this application), Level A is common property.

Common property is owned by the lot owners as tenants in common in shares proportionate to the interest schedule lot entitlements of their respective lots (s 35(1), Act). The body corporate must administer, manage and control the common property reasonably and for the benefit of lot owners (s 94 and s 152, Act). A body corporate may make an exclusive use by-law “that attaches to a lot...and gives the occupier of the lot for the time being exclusive use to the rights and enjoyment of...common property” (s 170, Act). The common property to which an exclusive use by-law applies may be specifically identified in the by-law (s 171(1), Act).

By-laws are contained in the community management statement for the scheme (s 66, Act). By-Law 21 of schedule C of the statement for this scheme recorded by the registrar of titles on 31 October 2000 (No. 704396686) entitles the owners of some lots included in the scheme to exclusive use of the car space identified in the statement’s schedule E. While it would seem there are a total of 99 car park spaces listed in the schedule, it is apparent that not all lot owners have an exclusive use entitlement under By-Law 21 (some owners, such as the owners of Lots 89 and 93, have an entitlement to exclusive use of more than one space). The By-Law refers to the “plan attached”. The four sheet attached sketch plan updated by Michel Group Services Pty Ltd on 11 October 2000 identifies 99 car park spaces, including spaces on Level A of BUP 82.

There are at least 40 exclusive use car park spaces on Level A. It is clear that not all common property on this Level has been allocated as exclusive use under By-Law 21 or any other by-law. Areas marked on BUP 82 as ‘Ramp’, ‘Stairs’, ‘Toilets’, ‘Tankroom’, ‘Lifts etc’ and ‘Substation’ are not subject to a by-law. Neither are parts of the common property adjacent to each of the allocated spaces. There is no suggestion that an owner or owners of lots included in the scheme have any other special right about any of these parts of common property.

The question raised in this dispute is whether a Body Corporate decision to control or limit access to Level A in the way argued is reasonable. The Applicant has provided a copy of minutes of meetings where access has been considered. No other material has been provided evidencing a relevant Body Corporate decision.

A fundamental principle of the legislation is that the common property is managed by the body corporate; a responsibility which includes having the power to make decisions relating to the administration, management and control of the common property. It may be reasonable for a body corporate to make decisions to restrict general access to a part/s of the common property. It may be prudent to restrict access not only for the safety of persons on scheme land but to safeguard plant and equipment or to reduce the likelihood of interference with the provision of services. A body corporate may decide to limit access to areas that contain for example: utility infrastructure servicing the scheme, or hazardous or dangerous goods or materials. While a body corporate’s power to limit access to common property is not restricted to circumstances of the nature I have mentioned, any decision to do so must be reasonable (s 94(2) and s 100(5), Act).

In September 2008, the committee seemed to have the view that lot entitlements are a relevant consideration. Although this view has not been argued by the committee in this application, given this resolution would seem to be the latest Body Corporate decision on this issue, I have briefly examined the schedule A ‘Schedule of Lot Entitlements’. I am unsure of the justifiable basis for a view that there is a relationship between the contribution schedule of lot entitlements and By-Law 21. No information has been provided demonstrating that exclusive use allocations were a consideration when a decision was made about lot entitlements. The lot entitlements range from 635 to 3800. The Applicant’s Lot 24 has 750 contribution schedule of lot entitlements. It is apparent that lots with lesser lot entitlements have been allocated an exclusive use car space. It is also evident that lots with multiple car spaces do not have the highest lot entitlement.

The committee’s view is that as only those persons with a right of exclusive use can park a vehicle in the basement, only these persons should be able to operate a common property vehicular access gate. It is argued an owner who does not have a right to park a vehicle in the basement does not require access to Level A in the same way as the exclusive use owners. The committee state if the Applicant had access to the basement car park, it would invite a by-law contravention giving the Applicant’s admission that he wants to use the basement to load and unload goods.

I do not agree that in the circumstances it is reasonable for the Body Corporate to limit the owners who can operate the gate to those who have an exclusive use car parking space on the Level. No material has been submitted demonstrating the By-Law 21 exclusive use owners are entitled to use and enjoy all Level A common property to the exclusion of other owners (it is noted that Level A includes common property facilities such as the lifts and toilets). Further, nothing has been presented to suggest that the vehicular access gate is not common property or that the exclusive use owners have a special right with respect to the gate. While its primary purpose may be to allow vehicular traffic, there is nothing to suggest that an owner or occupier could not reasonably operate the gate to access Level A in a way other than via a vehicle. I do not agree there is an objective basis for denying access through the gate to the basement car park because it is believed that it would invite a breach of the by-laws.

In my view, a decision to restrict ways to access Level A solely on the basis of By-Law 21 is not in accord with the Body Corporate’s management powers and responsibilities. It does not apply to all lot owners equally and provides a benefit to particular lot owners without reasonable basis. In my view, there is no compelling reason or substantive ground for supporting this proposition in the circumstances.

For these reasons, I consider it is appropriate to make an order the Body Corporate ensure the Applicant can access Level A in the same way as any other owner or occupier of a lot included in the scheme including those who have exclusive use of a car space on the Level under By-Law 21.

The Applicant has also sought an outcome about access to an unloading zone. There is no evidence that there is such a zone on Level A or that there is any other general parking area on the Level. Consequently, there is no basis to make an order in these terms. While the Applicant should be able to access Level A in the same way as others, this order does not provide any right for the Applicant to park a vehicle on Level A for any period of time. By-Law 21 provides a right for particular persons to park a vehicle on identified parts of common property. No other owner has the right to use the allocated spaces except in a way permitted under the By-Law. An owner or occupier can only otherwise park a vehicle on common property pursuant to By-Law 2; the occupier must have the Body Corporate’s written approval. Neither can an owner allow visitors, including tradesperson to do so. By-law 6 relates to the behaviour of invitees; “An owner must ensure that...invitees...using the lot or common property comply with these by-laws...”

With respect to changing by-laws, I agree with the committee’s submissions. This dispute is not about a by-law.