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Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders |
Last Updated: 13 December 2010
REFERENCE: 0524-2010
ORDER OF AN ADJUDICATOR
MADE UNDER PART 9 OF CHAPTER 6
BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997
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Number of Scheme:
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29516
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Name of Scheme:
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Vardon Point Apartments
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Address of Scheme:
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1 Millennium Circuit PELICAN WATERS QLD 4551
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TAKE NOTICE that pursuant to an application made under the abovementioned Act by Robert and Ann Webb, Owners of Lot 29; Richard Hancock and Marilyn Fitzpatrick, Owners of Lot 38; Melvin Clark, Co-owner of Lot 35; Sandra Clark, Owner of Lot 35 and 20; Stephen and Lorraine McCulloch, Owners of Lot 66; Gary Moore and Karin Romberg, Owners of Lot 51; James O’Sullivan, Owner of Lot 58; Brian and Sue Bassett, Owner and Occupiers of Lot 46; Arthur and Nerelle Powtor, Owners of Lot 23; and Roger and Diane Dagger, Owners of Lot 6
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0524-2010
“Vardon Point Apartments” CTS 29516
Vardon Point Apartments community titles scheme 29516 (Vardon Point Apartments) consists of 70 lots and common property. The community management statement (CMS) for Vardon Point Apartments indicates that the Body Corporate and Community Management (Accommodation Module) Regulation 2008 (Accommodation Module) applies to the scheme. Department of Environment and Resource Management records show the scheme is registered as Survey Plans 138675, 140379, and 143131.
APPLICATION
Pursuant to the Body Corporate and Community Management Act 1997 (Act), this application was made by Robert and Ann Webb, Owners of Lot 29; Richard Hancock and Marilyn Fitzpatrick, Owners of Lot 38; Melvin Clark, Co-owner of Lot 35; Sandra Clark, Owner of Lot 35 and 20; Stephen and Lorraine McCulloch, Owners of Lot 66; Gary Moore and Karin Romberg, Owners of Lot 51; James O’Sullivan, Owner of Lot 58; Brian and Sue Bassett, Owner and Occupiers of Lot 46; Arthur and Nerelle Powtor, Owners of Lot 23; and Roger and Diane Dagger, Owners of Lot 6 (applicants) on 3 June 2010. The applicants seek orders against the Body Corporate for Vardon Point Apartments (respondent) in the following terms:
1. Committee decision to disallow the parking of bicycles in Exclusive Use areas to be overturned.
2. If the Body Corporate Committee place a motion to an EGM or AGM to change Schedule E of by-law 13, regarding the definition of 'approved vehicles' to be parked in exclusive use parking areas, that this motion include bicycles.
PROCEDURAL MATTERS
Originally the applicants lodged an application for conciliation[1] on 20 May 2010. In the circumstances, the Commissioner determined that the application was not suitable for conciliation and accordingly the applicants lodged this application instead.
Under section 243 of the Act, a copy of the application was provided to the Body Corporate, with an invitation to the Committee and all owners to respond to the matters raised by the application. Submissions were made by the Body Corporate and the owners of six other lots. The applicants did not avail themselves of the opportunity to inspect and respond to the submissions received.[2]
A dispute resolution recommendation was made referring the dispute to departmental adjudication. I then investigated the dispute, pursuant to section 271 of the Act, including reviewing the application and submissions.
The Body Corporate’s submission noted that the matter would be addressed by motions submitted to the Annual General Meeting (AGM) on 17 September 2010. Accordingly the applicants were asked whether the motions to be considered at that meeting, if passed, would resolve the dispute. The applicants responded that they would not, giving reasons for their position. This response was provided to the Body Corporate for comment, which in turn was provided to the applicants for response.
I then sought further information from the Body Corporate, and the applicants were provided with an opportunity to comment on that information which they did in due course.
MATTERS IN DISPUTE
The application relates to the alleged decision of the Body Corporate Committee to prohibit bicycles from being parked in exclusive use car parking areas, pursuant to By-law 13.
By-law 13 in the CMS for Vardon Point Apartments, as recorded on 1 June 2010, provides that:
13.1 The Original Owner may procure for lot owners in the subsidiary scheme (apartments) the grant of exclusive use of car parking spaces on the subsidiary scheme common property in such locations as the original owner deems fit. The Body Corporate shall consent to any new community management statement that makes provision in Schedule E for the granting of such exclusive use areas.
13.2 The owners for the time being and from time to time of each lot identified in Schedule E shall be entitled to the exclusive use and enjoyment of such areas of common property as allocated and for the purposes specified in Schedule E and identified in the attached sketch plans on the following conditions:
- (a) the owner is responsible for the costs of maintaining the respective exclusive use areas in accordance with Section 122(2) of the Accommodation Module;
- (b) the owner must not construct any structure on the exclusive use area without first obtaining the written consent of the Body Corporate; and
- (c) the owner must allow the Body Corporate access at all times to the exclusive use area to enable inspection and maintenance, if necessary.
Schedule E goes on to list the exclusive use areas allocated to each lot, with each the “purpose” of each area being for either “carparking” or “storage”.
The applicants assert that since the apartment complexes have been occupied (over 7 or 8 years) Committees have interpreted By-law 13 and Schedule E in a flexible manner and allowed a variety of vehicles in the carparking areas. This has included cars, boats, caravans, jet ski trailers and bicycles. Carparking areas have not been permitted to be used for general storage. The application also notes there are no designated spaces in the five buildings for bicycle parking.
At a meeting on 4 February 2010 the Committee noted that owners were using car spaces for ‘loose items’[3] and agreed to send letters requiring such items to be removed within 28 days. This apparently arose following an inspection of the basements on 15 January 2010, as agreed by the Committee on 3 December 2009. The February meeting also agreed to submit a motion to the AGM that carparking areas were only to be used for registered vehicles, including cars, trailers, motor cycles, caravans, jet skis, boats and motorised golf carts. They agreed that the Committee would investigate alternatives for the storage of bicycles.
There was further discussion at the Committee meeting of 4 March. The meeting noted that the Committee was continuing to monitor the car space situation, with flammable items a particular concern because of insurance impacts. Regarding bicycles, the Committee considered but failed to pass a motion to install bicycle racks in three towers which would provide storage for 15 bicycles. The minutes notes “Residents are required therefore to store bicycles in their storage areas.” The minutes also note that an Extraordinary General Meeting (EGM) would be called as soon as possible to consider (amongst other things) a motion to amend By-law 13.
The Committee meeting of 8 April noted that most items had been removed from
car parking spaces but there were still items in four
spaces. The body
corporate manager (BCM), Keiren McMahon of North Coast Body Corporate
Management Services, was to write to those owners.
The minutes also noted
that owners “...should be aware of their responsibility if any injury
arises caused by the bicycles being left in car parking spaces or
on the common
property.” Letters were issued to owners by the BCM on 1 March
seeking the removal of items stored in car parking spaces. A letter to one
owner sought the removal of three bicycles and a trailer and another referred to
two bicycles. These owners received further letters
in similar terms on 14
April.
In March and April some owners wrote to the Committee expressing concern about the requirement that bicycles be stored in storage areas. One owner notes that under Queensland Transport Regulations bicycles are considered vehicles with the same rights and responsibilities as other vehicles, and that a bicycle in a small corner of an owners’ car space does not interfere with emergency exist or egress. Another owner says they have had bicycles in their car space for over 5 years without comment or complaints of them being a hazard or eyesore. They consider that they now have implicit approval to park their bikes in their car space. They agree with the removal of inappropriate items from car spaces but dispute that this includes bicycles. The applicants claim the Committee has not responded to most of the letters from owners querying the decision and have refused requests by owners to install bike racks in their car parking spaces.
The applicants report suggestions that a workplace health and safety report in 2008 indicated that the storage of bicycles in underground car parks may impact on the integrity of fire evacuation procedures. The applicants dispute this and say there is no such indication in the report. An email from the caretaker to the BCM on 13 May notes that during the audit in April 2008 a comment was made that an upturned bicycle in the middle of a car space ‘might pose a hazard’ to anyone not expecting to encounter an item stored in that manner in an unlit car park, but it was not mentioned in the report and there was no indication that it would affect fire evacuation procedures.
In support of its application, the applicants assert that:
Bicycles are legitimate road vehicles that do not require registration.
The Committee’s decision discriminates against cyclists and the users of other non-registered vehicles such as scooters and carts used by people with disabilities.
Bicycles are an important mode of transport and lifestyle item.
The requirement that bicycles be kept in the exclusive use storage areas is unreasonable as long term residents need those small areas to store other items, and it would also make bicycles less accessible for use.
It is highly unlikely that the bicycles parked in carparking spaces could cause an injury to other residents and there have been no issues of claims in over eight years.
Submissions
The submission from the BCM, apparently made for the Committee, notes:
The use of exclusive use car parking spaces has been an unresolved issue since 2002.
The Committee is considering changing the by-laws to legalise a variety of vehicles.
It was never the intention of the Committee to arbitrarily decide what should be stored in car spaces without the approval of the entire Body Corporate.
There has been full disclosure of the Committee’s action on this matter in the minutes and chairperson’s reports, including 25 references since October 2009.
There is no evidence that bicycles have ever been approved for use in car parking spaces.
As bicycles have not been approved for car spaces, they would not be covered by insurance.
A Fire Safety Officer who inspected the basements in 2003 expressed concerns about materials, particularly flammable items, being stored in car spaces and that stand-alone bicycles could be a hazard in the event of a fire.
The Committee’s action was not just about bicycles. An inspection of the car bays revealed over 100 items other than vehicles, including petrol cans and gas cylinders. These make it impossible for the caretakers to clean the garage, and can harbour rodents and snakes.
All owners have lockup storage areas ranging form 3sqm to 21sqm and owners were asked to use these areas to store bicycles. All but three owners have complied.
Owners knew when they purchased that they would need to assess whether their storage area was large enough for their requirements.
Comments are made with respect to each of the applicants.
The Committee sought legal advice to ensure owners were protected by by-law changes.
The Committee has acted in good faith and spent considerable time on this matter.
Interim approval has been given for the storage of previously unapproved vehicles, including a boat and two bicycles.
One request to install bicycle hooks was refused by the Committee because the area was common property and not the car parking space. However the Committee gave interim approval to store the bicycle on common property.
Three submissions from owners oppose the application and three support it.
One submission (Lot 56) opposes the application and argues that:
The boundaries of the exclusive use car spaces do not have walls. They are delineated by drill holes on the floor, pillars or painted white lines on the floor. There is a small area of common property between the allocated car space and nearby walls or nearby exclusive use storage areas. It is on this unallocated common property, that bicycles have been stored and so some owners mistakenly believe this small section is part of their exclusive use car space. Previous committees turned a blind eye to it but that does not mean it should continue.
A bicycle is a vehicle but not a car under the Transport Operations (Road Use Management) Act 1995. Schedule E of the CMS is clear that car spaces are for the purpose of car parking.
Exclusive use storage areas vary in size from 3 to 11 sqm. Owners were aware of the size of their storage area when they purchased. It is up to owners whether they store bicycles in their storage area or not. The majority do. They have stored a bicycle in their storage area, which is one of the smallest in the scheme, since 2003. Although other items are also stored there, their bicycle is readily accessible and they store larger items off-site.
It is not the responsibility of the Committee to make arrangements for owners to store bicycles or any other item.
Another submission (Lot 47) says the application is premature. He includes many similar points to the Committee’s submission, a chronology of events, and also says:
The Committee have acted in an appropriate manner, being mindful of its duty of care to all owners, and have advised owners of this.
Any owner who sought interim approval to keep bicycles on common property received it.
The Committee have identified suitable areas on common property for bike racks.
In the past boats, caravans, trailers etc have been parked without proper approval. The Committee thought it would be in the best interests of owners to change the by-law so that it was legal for these vehicles to be parked.
There is no Committee decision to be overturned because the matter will only be decided by owners at the AGM on 17 September.
A further submission (Lot 11) says the Committee has spent some time trying to find a solution to this issue and informed owners that a new by-law would be put to the forthcoming AGM. If the applicants had been patient the matter would have been resolved without need for this application.
In support of the application:
One owner (Lot 63) that it is unreasonable to require bicycles to be stored in the storage units, and this is a perfectly acceptable use of a car parking space.
Another (Lot 14) says the Committee decision should be rescinded and applications approved, with the by-law amended in due course. On 3 June 2010 the Committee approved an application for an existing bike rack for Lot 30, and says this creates a precedent. They note the high use of bikes in the area and government expenditure to assist bicycle usage. They cannot see why owners should not be able to store bikes in their own car park.
A further owner (Lot 39) says it makes no sense to prevent bicycles being stored in car spaces and he is not aware of any safety or other concerns with it. He argues that changing a rule that operated without controversy for many years is typically autocratic, and that the Committee should only be able to interfere with owner’s enjoyment of their exclusive use area if they are interfering with the rights of others or causing a safety issue.
Investigations
The AGM of 17 September 2010 considered the following motions:
Motion 9: Submitted by committee
That, by special resolution by secret ballot, the Body Corporate agrees to amend By-law 9 – Duties of Owner, to include section (r) and (s) as follows:
(r) not leave a bicycle on the common property unless it is stored in an allocated bicycle rack as approved by the committee or mounted on a wall in the owner’s exclusive use area;
(s) not store any item on common property without the prior written approval of the committee (other than an item specifically authorised by an exclusive use by-law in respect of an area of common property that has been allocated to the owner as an exclusive use area).
And lodge a New Community Management Statement to reflect the change in By-law.
Motion 10: Submitted by committee
That, by special resolution by secret ballot, the Body Corporate agrees to the addition of By-law 16 – Car Parking as follows:
16. CAR PARKING
Insofar as these by-laws allow car parking anywhere on scheme land, for the purposes of these by-laws, the term cars means cars, trailers, motor bikes, caravans, boats, jetskis, ride-on motorised golf carts and motorised buggies for people with a disability.
And lodge a New Community Management Statement to reflect the change in By-law.
There were no explanatory notes for either motion. The Chairperson’s report to the AGM notes that “Some owners were using their car parking bays to store a variety of goods, including gas cylinders and flammable items, both of which could jeopardise Vardon Point’s insurance policy. The majority of owners complied with requests from the BC Committee to move all items other than cars into their lockup storage areas and the basements are not in safer condition.” Motion 9 passed with 27 votes for, 10 against and 2 abstentions. Motion 10 failed to pass as a special resolution with 24 votes for, 13 against and 2 abstentions.
The applicants argue that these AGM motions do not resolve the issue as:
There is no guarantee that the Committee would approve the installation of bike racks in exclusive use car spaces.
Not all exclusive use car parks have walls on which bike racks could be installed.
The Chairperson has previously advised that the Committee could not identify any common property areas suitable to install bike racks.
Motion 9 seeks to prohibit the parking of bicycles in exclusive use car parks.
Motion 10 would exclude bicycles from vehicles able to be parked in exclusive use car parks.
In response the Committee says that:
While there is no floor space on the common property suitable for bike racks, there is wall space available and the new by-law allows for bike racks on common property walls.
Most exclusive use car spaces have a wall on which to install a bike rack and the Committee have identified other walls for those who don’t. Each of the applicants has a wall.
The new by-law allows the Committee to approve bike racks. Prior Committee approval is necessary to ensure that a proposed installation does not impact on other owners, and to monitor the style, material and workmanship of such installations.
Further comments from the applicants include:
The AGM did not ban bikes from car spaces, and did not pass a motion to define vehicles. The Committee are trying to have that matter addressed at an EGM on 11 November 2010.
By-law 9(r) does not indicate what constitutes an ‘acceptable’ bike rack and the Committee has not given any advice on what conditions it may impose on approval.
There is no process or procedures in place to determine eligibility for a bike rack. Past events have shown Body Corporate decisions as reactionary and unpredictable.
A previous request for approval for a bike rack was refused.
A tenant who installed a bike rack on their wall 12 months ago was originally told to remove it but has now been given retrospective approval.
The Committee have not offered alternative storage facilities.
They were not told by the developers when they purchased that bicycles were prohibited in car spaces.
Tower 4 and 5 residents are disadvantaged as they have a wire cage rather than a wall in front of their car spaces. Owners without a wall should not be discriminated against.
Following a review of the application and the subsequent submissions and further information, I requested additional information from the Body Corporate, including evidence of advice or reports from appropriately qualified persons regarding adverse impact of bicycles in car parks; advice from the Body Corporate insurers regarding bicycles in car parks; any adverse incidents regarding bicycles in the car park; complaints about bicycles in the car park; and any legal advice obtained on the matter. I also sought information on the consideration of the matter at the Extraordinary General Meeting (EGM) for the scheme on 11 November 2010.
In response the Body Corporate advised that:
The current and past Committees have been thorough in investigating all possible avenues for the best outcome for the safety and protection of all owners and residents.
A search of the records has not revealed any written complaints about bicycles in the car park. Owners do not like to put their complaints in writing.
The caretaker told the previous committee that an officer from the Queensland Fire Brigade advised that bicycles and other items stored in the basement could cause a problem for people fleeing a fire. The Committee has no written advice. Reference is made to the Building Fire Safety Regulation 2008.
The Committee believes it has a duty of care to all owners and occupiers.
The Committee believes that bicycles being left on common property are a danger to public safety and a failure to act may compromise the Body Corporate insurance.
Children have left bicycles lying on the ground in the basement, which is dangerous.
The Committee considers that it is a safer option to have bicycles on racks.
The majority of owners have complied with the current by-laws. Only three owners have not complied with the Body Corporate’s request to store bicycles appropriately.
At the last Committee meeting two requests for owners to store a boat and trailer in their exclusive use car parking area were approved.
No information was provided regarding any legal advice obtained on the matter or any advice from the Body Corporate’s insurers. A copy of the minutes of the EGM of 11 November were provided. Motion 2, being a special resolution to add a By-law 16 to the CMS to define ‘cars’ for the purposes of car parking on scheme land (which excludes bicycles) was lost with 17 votes in favour, 10 against and one abstention.
This information was provided to the applicants for comment, and their response included:
In six years they have never heard of an owner making a complaint about bicycles.
They have had support from many owners for whom bicycle parking is not an issue.
The Committee has distorted the facts regarding safety issues.
In April 2008 a workplace health and safety inspection was undertaken by Michael Phillips who provided a report dated 8 April 2008. During the inspection the inspector commented to the caretaker that an upturned bicycle in the middle of a car space might be a hazard. However the report makes no mention of bicycles, and it was considered of no consequence.
Last week one of the applicants spoke to the Building Approval Officer at the Queensland Fire and Rescue Service on the Sunshine Coast. He advised that parking bicycles in car parks is not a contravention of the Building Fire Safety Regulation 2008, and if it were most apartment buildings would be affected. Fire inspections undertaken in recent years have not highlighted a problem with bicycles in car spaces.
Emergency exists for the buildings do not use the underground car park exits and in fact it is impossible to reach the car park from the emergency exits/doorways.
The underground carpark emergency exists are away from storage areas and exclusive use car spaces. They can only be used by people in the car park at the time of an evacuation and there is a 7m wide unobstructed pathway to the exit doors.
Bicycles are generally parked against a wall, behind or to the side of a car. As such it is improbable that they would cause a danger to public safety. Owners would expect others to respect their exclusive use areas and not enter them.
Other obstacles in the car park, such as bollards and pillars are likely to cause more problems n the event of an evacuation than bicycles.
In the past 8 years there have been no known incidents of bicycles causing a safety issue.
The caretaker has advised that they are not aware of any complaints of children leaving their bicycles on the ground.
AGM Motion 9 would not resolve the issue. The applicants do not believe they should be subjected to the cost and inconvenience of installing bike racks.
Motions to exclude bicycles from the type of vehicle permitted to be parked in car parks were defeated at the AGM and EGM.
JURISDICTION
I am satisfied that this is a matter which falls within the legislative dispute resolution provisions.[4]
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 claimed or anticipated contravention of the Act or the CMS; or the exercise of rights or powers, or the performance of duties, under the Act or the CMS; or a claimed or anticipated contractual matter about the engagement of a person as a body corporate manager or service contractor; or the authorisation of a person as a letting agent.
An order may require a person to act, or prohibit a person from acting, in a way stated in the order.[5] An adjudicator's order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate.[6]
DETERMINATION
The main issue for consideration in this matter is whether the Body Corporate Committee has validly sought to prevent the storage of bicycles in exclusive use car parking spaces.
Relevant decision
In the first instance the application seeks an outcome overturning the Committee decision to disallow the parking of bicycles in exclusive use car parking spaces. One of the submissions says there is no Committee decision to overturn, and the Committee has argued that the matter is for the consideration of owners at a general meeting.
While it is not clear that the Committee have voted on and minuted a single formal motion to prohibit the parking of bicycles in the exclusive use car park areas, I am satisfied that this is their position. They have minuted the conclusion that bicycles must be kept in the storage areas; they sent letters to residents with bicycles in car parking areas asking that they be removed; and they have stated that residents who have not moved their bicycles to the storage areas have not complied with the by-laws. These actions were taken before the question of the contents of the by-laws was put to a general meeting. Accordingly I consider that there is scope to determine whether the position of the Committee, and their decisions to take the actions that they have taken, were valid. I note that this situation may have been altered by subsequent by-law changes.
Test of reasonableness
There is a general requirement[7] that a committee and body corporate must act reasonably in making a decision. Where this does not occur, an adjudicator may intervene to make an order that is just and equitable to resolve a dispute, including declaring a resolution purportedly passed to be void or to give effect to a motion that was not passed. Authorities indicate that a legislative obligation to act reasonably is satisfied if the decision is objectively reasonable[8] and that the objective test requires a balancing of factors in all the circumstances according to the ordinary meaning of the term ‘reasonable’[9].
Ultimately, the reasonableness of a decision is a question of fact. There is no particular formula or test for reasonableness and the High Court has supported a view that a paraphrase can place an unwarranted gloss on relatively plain words applying a test of reasonableness.[10] Principles articulated in other authorities include that the expression 'reasonable' should be given a broad, commonsense meaning[11]; the question is not whether the decision was “correct” but whether it is objectively reasonable[12]; and that a "logical and understandable basis for the decision" is a factor in determining the reasonableness of a decision but does not necessarily mean the decision is reasonable as important matters may have been overlooked or discounted[13].
I will have regard to these considerations in assessing the actions of the Committee.
Coverage of the current By-law 13
By-law 13.2 provides for the grant of exclusive use areas as identified in Schedule E. The By-law does not itself specify the permitted uses of the areas but says that they shall be “...for the purposes specified in Schedule E”. Schedule E sets out the allocations in a table with each allocated space being referred to under the heading “Purpose” as either “carparking” or “storage”. No further information is provided in the CMS as to the meaning or coverage of “carparking”.
A ‘car’ can be defined as a ‘four wheeled motorised vehicle for use on road’ and a ‘carpark’ as ‘a space or building for parking cars’.[14] However in practice both public and private ‘carparks’ are commonly used for the parking of vehicles other than cars, including (subject to the size of the vehicle and the space) motorbikes, scooters, vans, trucks, buses, trailers and so on. It is logical to conclude that the purpose of ‘carparking’ excludes the storage of items that are not vehicles. But it is arguable that the reference to ‘carparking’ without any further description or definition is sufficiently broad to cover the parking of any ‘vehicle’, rather than only being limited to ‘cars’.
Alternatively, if the proper interpretation of the purpose of ‘carparking’ in Schedule E is limited to the parking of vehicles within the strict definition of the term ‘car’, it is arguable that such a restriction on the use of the exclusive use area would be unreasonable and oppressive. Section 180(7) of the Act provides that “A by-law must not be oppressive or unreasonable, having regard to the interests of all owners and occupiers of lots included in the scheme and the use of the common property for the scheme.” If it were the case that the interpretation of ‘carparking’ that excluded the parking vehicles other than cars was unreasonable, it is arguable that the term should be read down such that other vehicles are not excluded.
I note the recent decision[15] of the Queensland Civil and Administrative Tribunal regarding an appeal of an adjudicator’s decision regarding a by-law (in that case being a pet by-law). The Tribunal member said:
17. Section 169(1) of the BCCM Act provides relevantly that the by-laws for a community title scheme may only provide for the regulation of, including conditions applying to, the use and enjoyment of lots included in the scheme.
The Tribunal went on to note that if there could be no rational basis to conclude that the keeping of some animals could cause difficulty to other owners, an absolute prohibition on such animals in the by-laws would be unreasonable. It would arguably follow then, that if there is no rational basis that the keeping of a particular type of vehicle in an exclusive use car space could adversely affect any other owner or occupier, an absolute prohibition in the by-laws on such vehicles would be unreasonable.
It is apparent that vehicles other than cars have been parked in the car spaces at Vardon Point for many years, without incident The Committee clearly has no objection to the continued parking of other vehicles which are not ‘cars’, such as trailers, motor bikes, caravans, boats, jet skis, ride-on motorised golf carts and motorised buggies. Therefore, to prevent the use of car spaces for the parking of legitimate vehicles other than cars in the car park area of the scheme, without any rational basis for that limitation, would arguably be oppressive and unreasonable.
Although the circumstances were not specifically on point with the current case, the Adjudicator in Petrie Mansions[16] considered the parking of a box trailer or caravan in an exclusive use area in a scheme where the exclusive use by-law car parks could be used for ‘carparking’ only. In that matter there was a long history of ‘recreational vehicles’ being parked in the basement garage with no evidence of any inconvenience or complaint. Although she was not required to determine the issue specifically, the Adjudicator commented that:
“...I believe its possible that the condition which restricts the use of the exclusive use car spaces to car parking only may be considered oppressive or unreasonable in the circumstances of this particular scheme.”
The Adjudicator reviewed a range of previous determinations on related matters and noted that in one[17], the adjudicator had noted that:
“...in my opinion there would have to be substantial reasons put forward by a body corporate to support a by-law which prevented occupiers from using their carports for what is the normally accepted practice of parking a boat trailer, campervan etc.”
She also noted that in St
Tropez[18] the
adjudicator found that an exclusive use by-law which restricted the use of an
exclusive use area to carparking only, did not
permit the keeping of boats,
trailers, caravans, plant or equipment in the relevant area.
However in
that dispute the area in question was at the front of the scheme and clearly
visible to passers by, and the case can be
distinguished on that basis. In
addition, St Tropez had a by-law that specifically prohibited the parking of
vehicles, boats, trailers,
caravans, plant or equipment on the common property
without the body corporate approval and, moreover, the respondent in that
dispute
did not make a submission disputing the application.
It may well be preferable for the by-laws to be clarified to avoid confusion for current and new owners and occupiers. Options could include amending Schedule E to change the reference to ‘carparking’ to ‘vehicle parking’ or clarifying in By-law 13 or elsewhere what items can be parked in the car spaces. The Body Corporate has attempted to do so at the AGM and EGM but has not done so in a manner that has been supported by sufficient numbers of owners. In making any changes the Body Corporate must ensure that it acts reasonably[19], and that the resulting by-laws are not unreasonable or oppressive having regard to the interests of all owners and occupiers.
Basis to restrict the parking of bicycles
I am of the view that ‘carparking’ in By-law 13 and Schedule E can be interpreted as allowing the parking of vehicles other than cars in exclusive use car spaces, or should be read as such to the extent that limiting meaning to cars only would be oppressive and unreasonable. The question then is whether there is any basis in which it would be reasonable for the Body Corporate to prevent the parking of bicycles in car spaces, either under the by-laws as they currently exist or pursuant to any clarification of the by-laws.
I would note generally that I am satisfied that a bicycle is a vehicle, both having regard to the dictionary definition of a ‘vehicle’ as a ‘means of conveyance, usually with wheels’[20], and the definition in the Transport Operations (Road Use Management) Act 1995 (Qld) that a ‘vehicle’ “...includes any type of transport that moves on wheels and a hovercraft but does not include a train or a tram.” Noting that the general road rules cover vehicles that are required to be registered as well as those that do not, I fail to see the relevance of any restriction in the context of the use of the carpark between registered and non-registered vehicles.
In the Petrie Mansions matter cited above[21], the adjudicator considered that even if the by-law were to be interpreted literally, so that nothing but a car could be parked in an exclusive use area, the body corporate faced difficulties in the manner that they had enforced it. She commented that:
“The body corporate is required to act reasonably in enforcing the by-laws (Act 94(1)). It could be argued that taking action against the Applicant now, while not taking any action against those occupiers who are using their exclusive use car parking spaces for purposes other than the parking of cars ... is unreasonable and perhaps even discriminatory.”
I am similarly of the view that it could be unreasonable for the Body Corporate to interpret By-law 13 as prohibiting the parking of any vehicle other than a car, but then to only require the removal of bicycles while taking no action against other vehicles. The question of whether a bicycle could be reasonably prohibited where other vehicles might reasonably be permitted would come down to whether there was some legitimate basis for the distinction.
The Body Corporate has presented no evidence that bicycles parked in car spaces any legitimate concerns. It is apparent that bicycles have been present in car spaces on the scheme for some 7-8 years, but no information has been presented that there has ever been any safety or other incident in this regard. No details or evidence has been provided that there have ever been any complaints about bicycles. There has apparently been no previous action to seek their removal.
Claims are made regarding the liability which could arise from bicycles and the impact on the Body Corporate’s insurance coverage. However this appears to be only supposition on the part of the Committee and there is no indication that any attempt has been made to confirm with the Body Corporate’s insurers as to whether there is any basis to this claim.
Claims are also made regarding fire safety. However the undocumented recollections of a passing comment alleged to have been made during a fire safety inspection many years ago is an entirely inadequate basis to assert that it is unsafe to keep bicycles in a basement carpark. The application of building fire regulations is beyond the scope of this Office and the Committee should contact the Queensland Fire Service if they have genuine concerns in this regard. However I have perused the regulations. There are a range of provisions keeping fire evacuation routes free from obstruction. However, in the absence of any information to the contrary from the Committee, I have difficulty with the suggestion that keeping a bicycle in a car space would obstruct an evacuation route. I would assume that the car spaces themselves could not be part of the evacuation route and if they were, surely parking a car in the car space would present a much greater obstruction to a person fleeing a fire than a bicycle.
If a particular bicycle was being kept in a manner that could cause a nuisance or a hazard, the Committee could have addressed the issue by virtue of section 167 of the Act rather than seeking a blanket ban on any bicycles or requiring all bicycles not in storage spaces to be in a bike rack.
One of the submissions suggests that some residents are mistakenly putting bikes on unallocated common property adjacent to the exclusive use area. Again, that is a matter that could have been addressed in respect of each individual incident, by asking the occupiers in question to move their bicycles, rather than using that as a basis to ban all bicycles from car spaces.
Accordingly, I am not satisfied that the Committee have been able to substantiate any justifiable basis as to why bicycles could adversely affect any other owner or occupier if they were kept in exclusive use car spaces.
Amendment to the by-laws regarding the meaning of car parking
At the AGM of 17 September 2010 the Committee submitted a motion to define ‘cars’ in the by-laws. This motion sought a special resolution but failed to achieve that. The same motion again failed to pass as a special resolution at the EGM in November.
Sections 170 to 177 of the Act provide for making exclusive use by-laws. An exclusive use by-law is defined as a by-law that attaches to a lot and gives the occupier of the lot exclusive use to the rights and enjoyment of, or other special rights about, common property or a body corporate asset. Pursuant to section 173 of the Act and section 171 of the Accommodation Module, the exclusive use by-law may include conditions and impose obligations on the owner to whom the exclusive use area attaches. Section 62(2) of the Act provides that a body corporate must normally consent to record a new CMS by passing a resolution without dissent. However section 62(3) provides that the consent may be by special resolution if the difference between the old and new CMS is limited to a change in by-laws other than exclusive use by-laws.
Although it is By-law 13 which actually makes the grant of exclusive use to owners, I am of the view that any other by-law that sought to subsequently qualify that grant by changing the conditions under which the grant of exclusive use applies or which otherwise purports to change the application of the grant of exclusive use, would have effect as a change to the exclusive use by-law and so would require a resolution without dissent[22]. Therefore, I am of the view that any motion to change the CMS in a manner that would change the extent or application of rights given under By-law 13 (including by restricting how or for what purpose the exclusive use area can be used) would require a resolution without dissent.
Moreover, not only must the new CMS amending the exclusive use by-law be consented to by a resolution without dissent, each owner whose lot is subject to the exclusive use by-law must consent to the by-law. Under section 171(1) of the Accommodation Module an exclusive use by-law can include conditions only if the owners of the lots to whom rights are given under an exclusive use by-law agree in writing. Section 171(2)(a) of the Act indicates that the lot owner to whom the exclusive use by-law attaches must consent to the by-law either in writing before the passing of the resolution without dissent to record the new CMS incorporating the exclusive use by-law, or the lot owner must vote personally for the resolution.
Amendments to By-law 9
By-law 9 is headed ‘Duties of owners’. By-law 9.1 sets out a mixed bag of obligations, some of which appear to essentially duplicate obligations in the Act. By-law 9.2 imposes those obligations on tenants, agents, invitees and so on. The AGM of 17 September 2010 approved amendments to By-law 9 however, at the time of making this order, a new CMS has not yet been recorded incorporating these changes.
I do not intent to make any findings on the validity of these by-law amendments as that would be beyond the scope of the outcomes sought by the application and the parties have not had the opportunity to make submissions on that point. However I will make some observations on these the by-laws.
Firstly, the proposed new By-law 9.1(r) prevents a bicycle being kept on common property unless it is stored in an allocated bicycle rack approved by the committee or mounted on a wall in the owners exclusive use area. There are several confusing aspects to this by-law which hinder its interpretation. It is unclear whether the Committee in proposing this motion, and owners who voted in favour of it, considered these matters. I note the following issues:
Although it appears there was an intention that owners would seek approval to install a bike rack in their exclusive use areas, the by-law as passed provides for bikes to be mounted on the wall (for example on hooks) in such area without any requirement for committee approval.
Although it is not entirely clear, it appears that the use of bike racks requires owners or occupiers to be allocated a bike rack (or a slot in a multi-bike rack) which is approved by the committee for installation on common property (which would include exclusive use areas).
Most problematically, although it appears the intention was that the requirement for bike racks or the mounting of bikes relate to only to exclusive use car parking spaces, rather than exclusive use storage spaces, there is no such distinction in the by-law.
The effect then is that once this by-law is recorded, any person keeping a bicycle in their exclusive use storage space would be breaching this by-law if the bicycle was not mounted on the wall or on an approved bike rack. It is difficult to see how the Body Corporate could have a legitimate interest in requiring bicycles to be in racks or mounted within exclusive use storage areas, and as such there is a legitimate question as to whether By-law 9.1(r) is reasonable. There may also be a genuine question as to whether By-law 9.1(r) is reasonable in respect of restricting how bicycles are kept within exclusive use car spaces also, given that the Committee has (as outlined above) failed to demonstrate any legitimate concern with bicycles in exclusive use car spaces.
I similarly have some difficulty with the proposed new By-law 9.1(s). This provides that items cannot be stored on common property without the prior written approval of the Committee except for an item specifically authorised by an exclusive use by-law. In respect of unallocated areas of common property, this is relatively straightforward – nothing can be stored on unallocated common property without committee approval.
However the situation regarding exclusive use areas is confusing. For an
area allocated to an owner under By-law 13 and Schedule
E for the purpose of
‘storage’, the exclusive use by-law does not refer to any items
‘specifically authorised’
to be stored on the exclusive use area. A
strict interpretation of this by-law then would seem to be that owners
couldn’t
store anything in their exclusive use storage spaces unless they
obtained prior written consent of the Committee.
This would appear to be an
absurd and unworkable situation. Moreover it would appear to be unreasonable to
place restrictions on
what can be stored in exclusive use storage areas, except
for items which can be reasonably demonstrated to adversely impact on other
occupants such as flammable or other obviously dangerous items.
With an area allocated to an owner under By-law 13 and Schedule E for the purpose of ‘car parking’, the same issues arise as in regard to the interpretation of By-law 13 as discussed above. Either By-law 13 only allows cars to be parked in car parking spaces, in which case any other type of vehicle could only be stored in a car space with prior written permission of the Committee. The Committee would need to justify that it were acting reasonably if it sought to refuse some non-car vehicles (such as bicycles) but allowed others (such as boats and trailers which it has recently approved). Alternatively, the allowance of ‘car parking’ covers all vehicles in which case bicycles would be permitted to be stored in exclusive use car parking as well as storage spaces.
Depending on the interpretation, there is clearly potential for conflict between the application of By-law 9.1(r) and By-law 9.1(s)
Future consideration of definitions in By-law 13
The applicants seek an order that if a motion is submitted to a general meeting by the Committee to define the vehicles that can be parked in exclusive use parking areas, that this definition includes bicycles. I am not satisfied that there is any basis presented by the applicants to make the specific order sought in this regard. It would be an unreasonable interference with the operations of the Body Corporate to dictate to the Committee what motions it can and can’t submit to owners. However, if the Body Corporate approves a change to the by-laws that seeks to restrict bicycles where other vehicles are permitted, that resolution could be challenged for the reasons outlined above unless there was some substantive new basis justifying that such a prohibition would not be oppressive and unreasonable.
Moreover, any owner is entitled to submit a motion to a general meeting. Therefore, the applicants themselves can pursue a motion to amend the by-law to specify that bicycles are able to be parked in the exclusive use car spaces.
Conclusion
On the material presented in this application, I conclude that it would be unreasonable and discriminatory of the Committee to apply By-law 13 in its current form such that they require the removal of bicycles from exclusive use car parking areas without similarly requiring the removal of other vehicles which are not cars.
This conclusion is based on my findings that:
Accordingly, I find that the Body Corporate Committee is not entitled to require the removal of bicycles parked in exclusive use car parking spaces based on By-law 13 in its current form, and the by-laws generally as currently recorded in the CMS.
If and when a new CMS is recorded that incorporates the amendments to By-law 9 approved at the 2010 AGM, there may be some basis for the Committee to seek the removal of bicycles not stored in accordance with By-law 9(1)(r) and (s). However, the Committee should note the inherent difficulties in the drafting of those provisions as outlined above, noting that the requirements regarding bicycles would apply equally to exclusive use storage and car parking areas, and that the provisions may be open to challenge pursuant to section 180(7) of the Act. I would encourage the Body Corporate to review these amendments and, until that is done, the Committee should act carefully in purporting to apply these provisions.
[1] Application
reference
0479-2010.
[2] See
sections 246 and 244 of the Act respectively
[3] The
Chairman’s report attached to the minutes notes “more than 100
loose items” had been found in parking bays. It referred to firewood,
flammable materials, blankets, cartons, skateboards, shopping trolleys
and
furniture, but not bicycles. The report suggests these items have no place in
car bays; break the by-laws; impact on insurance;
create potential danger
situation; and could impact on potential
buyers.
[4] See
sections 227, 228, 276 and Schedule 5 of the
Act
[5] Section
276(2) of the
Act
[6] Section
284(1) of the Act
[7] Pursuant to sections 94(2) and 100(5) of the Act
[8] Greiner v Independent Commission Against Corruption (1992) 28 NSWLR 125.
[9] Secretary, Department of Foreign Affairs and Trade v Styles [1989] FCA 342; (1989) 88 ALR 621.
[10] McKinnon v Treasury [2006] HCA 45 per Hayne J at para 61; Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349.
[11] Ashworth Frazer Limited v Gloucester City Council [2001] UKHL 59; [2001] 1 WLR 2180 at paragraph 5.
[12] Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission (1997) 150 ALR 1 pp34, 38.
[13] Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission, pp34, 38.
[14] The New
Shorter English Dictionary, Oxford University Press,
1993
[15]
McKenzie v Body Corporate for Kings Row Centre CTS 11632 [2010]
QCATA 57
[16]
[2010] QBCCMCmr 186 (22 April
2010)
[17]
Cedar Crossing Kenmore [2000] QBCCMCmr 138 (14 march
2000)
[18] [2009]
QBCCMCmr 500 (11 December
2009)
[19]
Section 94(2) of the
Act
[20] The New
Shorter English Dictionary, Oxford University Press,
1993
[21] [2010]
QBCCMCmr 186 (22 April 2010)
[22] See for example R Meek in Raffles at Runaway Bay [2005] QBCCMCmr 675 (1 December 2005)
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