Gracemere Waters North [2011] QBCCMCmr 389 (8 September 2011)

Last Updated: 27 September 2011

REFEREE’S ORDER
Office of the Commissioner
for Body Corporate and Community Management

CITATION:	Gracemere Waters North [2011] QBCCMCmr 389
PARTIES:	The Body Corporate (applicant) Alexander Kowalczuk and Kylie Kowalczuk (respondents)
PLAN:	GTP 107069
JURISDICTION:	Section 77 of the Building Units and Group Titles Act 1980 (Qld) (Act).
APPLICATION NO:	0504-2011
DECISION DATE:	8th September 2011
DECISION OF:	J.D.M. Underdown, Referee
CATCHWORDS:	PROHIBITORY BY-LAWS – if reasonable – if falling within the scope of what is intended by the empowering legislation – if reasonably proportionate to what is necessary to achieve the statutory object or purpose. Section 30(2) BUGTA; section 90 BUGTA.

ORDERS MADE:

I hereby order that the application that the owner of Lot 21 (GTP 107068) removes the basket ball hoop from the driveway area of Lot 21 in accordance with by-law 7.01 (iv) is dismissed. I further order that by-law 7.01(iv) is invalid so that the body corporate must within two months of the date of this order remove by-law 7.01(iv) from scheme by-laws.

REASONS FOR DECISION
APPLICATION

[1] This is an application dated 31st May 2011 by the body corporate for Gracemere Waters North GTP 107068 (the body corporate) against Alexander Kowalczuk and Kylie Kowalczuk (Mr and Mrs Kowalczuk) co-owners of Lot 21 in GRP 107069 a subdivision of GTP 107068.
[2] The body corporate seeks an order that Mr and Mrs Kowalczuk remove a basket ball hoop from the driveway area of Lot 21 because it says that the basket ball hoop contravenes scheme by-law 7.01(iv).

OVERVIEW

[3] The body corporate has a by-law which prohibits the keeping or storing of recreational equipment which is visible from the roadway, in the front of a lot, and includes specifically basketball hoops, trampolines and soccer nets.
[4] The by-law is absolute in its prohibition.
[5] Mr and Mrs Kowalczuk, and some of the submitters against the application say, in effect, that the prohibition of a basketball hoop is unreasonable since it disturbs no other owners, and is not visually ugly.
[6] The question I will be considering, since the facts are not in dispute, is whether the by-law is reasonable and can be enforced; or if the by-law is unreasonable, and if so, if a referee has the power under the governing legislation to invalidate an unreasonable by-law.

JURISDICTION

[7] “Gracemere Waters North GTP 107068 is a group title plan “subsidiary scheme” in Hope Island Resort, which is the principal body corporate, and is governed by the Integrated Resort Development Act 1987 (IRDA). IRDA provides at section 179A that the Building Units and Group Title Act 1980 (BUGTA), part 5 applies for the resolution of disputes about the operation of IRDA or the rights and obligations of persons under IRDA.
[8] Section 77 BUGTA gives the Referee a general power to make orders for the settlement of a dispute or the rectification of a complaint with respect to the exercise or performance of, or the failure to exercise or perform, a power, authority, duty, or function conferred or imposed by BUGTA, which power has been understood in many previous decisions to include the powers, authorities, duties or functions conferred or imposed also by IRDA.
[9] The body corporate seeks to enforce its by-laws on a resident of the group title plan, and I am satisfied that BUGTA provides the mechanism to deal with a dispute about an alleged breach of group title plan by-laws.
[10] There are 43 lots in the scheme. The by-laws for Gracemere Waters North GTP 107069 include the following –

• 7.01 A proprietor or occupier of a lot will not

(iv) keep or store any recreational equipment in the front of the lot or on any part of the lot where it is visible from the roadway which include but is not limited to basketball hoops, trampolines, soccer nets.

SUBMISSIONS

[11] On 5th August 2009 the body corporate added by-law 7.01(iv) to the scheme by-laws. It was recorded on 10th September 2009 in the Land Titles Registry.
[12] The body corporate sent a letter to Mr and Mrs Kowalczuk on 30th November 2010 asking for basketball hoop to be removed. They replied that the hoop was not a danger and they did not remove it. The body corporate wrote again on 23rd Feb 2011, 17th March 2011, 6th April 2011, 12th April 2011, and 13th April 2011. The committee resolved to take photographs of the hoop. It also sent to Mr and Mrs Kowalczuk a notice of contravention of a by-law applicable to the Body Corporate and Community Management Act 1980. The notice asked them to remove the hoop within seven days.
[13] The body corporate observed that the hoop remained and wrote again to Mr and Mrs Kowalczuk on 9th May 2011. The body corporate sent a second contravention notice on 19th May 2011.
[14] The body corporate’s letters noted the narrowness of the road, and the possible danger to children and people using the road. It is also concerned for “aesthetic reasons”. The body corporate has no objection to the hoop being located elsewhere on the property.
[15] Mr and Mrs Kowalczuk say that the hoop is visible from the street but is 22m away from the road. It is a safe and straight no-through road ending in a cul-de-sac with a speed limit of 40 kph and a speed bump control set at 20 kph. There is good visibility for over 150 metres. The hoop is more visible perhaps because there is an empty block of land next door. The hoop is of good quality construction and does not impact on any occupier’s life. They deny that there is any danger to anyone. They also point out that Gracemere Waters North is the only subsidiary scheme in Hope Island with such a by-law.
[16] They would prefer their children to play in the driveway of the house where they can be supervised. They also say that there are only eight houses in the road which could be affected, and that the scheme has no park facilities or green space.
[17] In accordance with section 73(1)(c) BUGTA, submissions were invited from all lot owners.
[18] In brief, the submitters in favour of keeping the basketball hoop made the following points –

• That the attitude of the body corporate was excessive in the circumstances and that an application to this Office was not merited over such a triviality;
• The application was “bureaucracy gone mad”;
• That neighbours opposite who would be most affected have no complaints whatsoever;
• That the body corporate is demonstrating an “unwarranted rigidity” in this matter.

[19] Those in favour of its removal said –

• That there was a danger of children getting hurt and subsequent legal proceedings against the body corporate if children ran into the road;
• That the by-law reflects the principal scheme development control by-laws;
• The by-laws are there to be obeyed;
• The respondents were aware of the by-law when they purchased;
• That at the annual general meeting on 3rd August 2011, the body corporate reaffirmed its desire to keep the by-law in place by rejecting a motion to amend by-law 7.01 which was proposed by the respondents.

[20] The chairperson exercised the body corporate’s right of reply. She says that the respondents’ submission should not be accepted owing to the “obvious conflict of interest”.
[21] She noted that the principal body corporate development control by-laws apply to all subsidiary schemes even though Gracemere Waters North is the only subsidiary scheme to clarify the by-law which prohibits recreational equipment in front of lots by re-stating it in its own words.
[22] The body corporate denies that there are no play areas, and says that there are several parks within 30 minutes stroll, “or quicker by golf buggy”. It says that the speed limit of 40kmp is difficult to enforce, and that the 20kph speed hump is some distance away from the lot and not relevant.
[23] I sought further submissions from the body corporate on the point that by-law 7.01 might be an unreasonable by-law and therefore invalid. The chairperson made a submission that the majority of occupiers support the by-law.
[24] Owners of Lots 31, 24, 29 and 3 (the chairperson) also made a further submission that playing basketball was not a normal domestic activity, as I had suggested, and that it is rarely observed in an “internationally rated” scheme. They referred me to a press article from Melville, Western Australia. The article reported that the local council required local residents to keep all structures such as basketball hoops and swings inside private property on pain of removal.
[25] Further they say that the by-law was implicitly approved by the Registrar who recorded the by-laws.
[26] They say that basketball hoops are unsuited to the aesthetics of the environment of Hope Island Resort, and that the constant thumping of a basketball on the ground can be considered annoying, if you were nearby and trying to study or run a business from home, or just sleep. Hoops encourage gatherings which naturally have the potential to spill out onto the nearby common property nature strip.
[27] The chairperson again wrote on 18th August 2011 and 24th August 2011 on behalf of the committee saying that the by-law is consistent with the principal scheme’s development control by-laws, and that the body corporate has re-affirmed its desire to keep this by-law. She points out that it is not the recreational activity which is banned, but the storage of recreational equipment.

DETERMINATION

[28] This is an application about the enforcement of a scheme by-law. The scheme by-law is prohibitive, that is, it constitutes an “absolute ban”.
[29] Section 30(2) BUGTA says that by-laws may be made for the purpose of the control, management, administration, use or enjoyment of the lots and common property. This amounts to a delegation of legislative power.[1]
[30] On the facts, Mr and Mrs Kowalczuk are keeping a basketball hoop positioned in the front of their house, visible from the roadway, contrary to by-law 7.01.
[31] However, I raised concerns that by-law 7.01 may not be a reasonable by-law. There are a number of grounds upon which by-laws, as delegated legislation, will be invalid. These include if the effect of the by-law is so unreasonable that the by-law cannot be regarded as falling within the scope of what is intended by the empowering legislation, or if the by-law is not reasonably proportionate to what is necessary to achieve the statutory object or purpose.[2] Orders a referee may make include orders invalidating a by-law that a body corporate did not have the power to make (Section 90 BUGTA).
[32] The question is whether a by-law regulates the use and enjoyment of a lot, or prohibits the use and enjoyment of a lot.
[33] In Swan Hill Corporation v Bradbury [1937] HCA 15; (1937) 56 CLR 746, 762, Dixon J said:

“...Prima facie a power to make by-laws regulating a subject matter does not extend to prohibiting it either altogether or subject to a discretionary licence or consent. By-laws made under such a power may prescribe time, place, manner and circumstance and they may impose conditions, but under the prima facie meaning of the word, they must stop short of preventing or suppressing the thing or course of conduct to be regulated.”

[34] In Williamson- v- Princess Palm Body Corporate CTS 9843 [2010] QCATA 55, the Queensland Civil and Administrative Appeals Tribunal (QCAT) looked at a by-law which forbade the keeping of barbeques on balconies without the consent of the body corporate. The prohibition was subject to the approval of the committee but there were no criteria given about the way in which the committee might exercise its discretion. QCAT found that any approval given by the committee would therefore have been “capricious and arbitrary”.
[35] In McKenzie v Body Corporate for Kings Row Centre CTS 11632 [2010] QCATA 57, QCAT again found that the complete ban of a “normal residential activity” (the keeping of a cat or dog) was unreasonable, without sufficient regard to circumstances in which the activity was likely to inconvenience other residents. The by-law prohibiting the keeping of a cat or dog was invalid.
[36] In Villa Casablanca,[3] a scheme in Hope Island Resort, the decisions in Princess Palm and McKenzie were applied to a scheme governed by BUGTA for the first time. The adjudicator in that decision found that although the test of validity of a by-law under BUGTA appeared to be less strict than in the Body Corporate and Community Management Act 1997 given the absence of any specific legislative requirement in BUGTA that a by-law not be oppressive or unreasonable,[4] a by-law in a scheme governed by BUGTA was still required be reasonable. The by-law in this scheme prohibited absolutely the keeping of a dog or a cat.
[37] The by-law must be reasonably proportionate to what is necessary to achieve the statutory object or purpose.[5] By-laws prohibiting normal residential activities are likely to be unreasonable.
[38] The by-law the subject of this dispute is an “absolute ban” and does not allow for the exercise of any discretion by the committee. Such discretion has historically been written into the “standard by-laws” contained in Schedule Three of BUGTA, for example By-law 8

8 Appearance of building

In the case of a building units plan, a proprietor or occupier of a lot shall not, except with the consent in writing of the body corporate, hang any washing, towel, bedding, clothing or other article or display any sign, advertisement, placard, banner, pamphlet or like matter on any part of his or her lot in such a way as to be visible from outside the building

[39] I am not convinced by the body corporate’s (and certain lot owners’) concerns about safety. I am of the view that the main objection to the positioning of the basketball hoop is the visual amenity and that it ‘lowers the tone’ of a scheme considered by its owners to be desirable real estate. There were submissions about the hoop devaluing the neighbouring lots and not being the sort of recreational equipment normally found in “an internationally rated scheme”, neither of which was supported by any evidence.
[40] By-law 7 is headed “Use Limitations” and concerns the uses to which lots may be put. The remainder of By-law 7 concerns the erection of external blinds, the obstruction of roadways, and the hanging of articles on balconies and windows. The whole by-law is concerned with appearance of the exterior of the lot or scheme land. By-law 7.01(iv) also only prohibits a basketball hoop on the front wall, and not on a side wall, which further weakens the safety argument.
[41] The case of Savill -v- City of Melville[6] to which I was referred is not relevant to this dispute. The case concerns a planning dispute between an owner who had erected a basketball hoop on council land and the local council. Rather unsurprisingly, the owner was required by the Court to remove the hoop. It was not on his land and he had not obtained any planning permission to erect it.
[42] Further the suggestion by the body corporate that if the Registrar recorded the by-law then it must be valid, is not supportable. The Registrar is not obliged to examine the content of by-laws for legality or enforceability.[7]
[43] I find that there is no evidence whatsoever that the use of this particular basketball hoop has given any annoyance to anyone by way of carriage of sound or children gathering on the nature strip, or in any other way.
[44] The chairperson raised the point that it is not the activity of playing basketball which is objected to, but the keeping of the recreational equipment in the front of the lot. I can think of no valid reason why in itself, the keeping of this hoop in the front of the building, as opposed to say, a flower pot, can have any affect whatsoever on the other residents of the scheme.

CONCLUSION

[45] I find that the body corporate cannot rely on by-law 7.01(iv). By-laws that impose blanket bans on the keeping of any piece of apparatus on an owner’s lot are not reasonably proportionate to what is necessary to control lots and common property.
[46] I have decided that by-law 7.01 is invalid so that the body corporate’s application to require the removal of the hoop must be dismissed. I therefore must also require the body corporate to amend its by-laws to remove this by-law. It may do so by amending by-law 7.01 (iv) or by making it subject to the discretion of the committee acting on reasonable criteria..
[47] The body corporate may take comfort to know that it can impose reasonable conditions on the positioning of a basketball hoop. In addition, if, for example, the use of the hoop does in fact cause a nuisance or hazard, or interferes unreasonably with the use or enjoyment of the common property or any other lot, then section 51(b) and/or section 51(c) BUGTA applies.

---

[1] Dainford Ltd v Smith [1985] HCA 23; (1985) 155 CLR 342.
[2] Commonwealth v Tasmania [1983] HCA 21; (1983) 46 ALR 625; Minister for Resources v Dover Fisheries Pty Ltd [1993] FCA 366; (1993) 116 ALR 54.
[3] [2011] QBCCMCmr 117 (17 March 2011)
[4] Contrast with section 180(7) of the Body Corporate and Community Management Act 1997
[5] Commonwealth v Tasmania [1983] HCA 21; (1983) 46 ALR 625; Minister for Resources v Dover Fisheries Pty Ltd [1993] FCA 366; (1993) 116 ALR 54.

[6] Savill –v- City of Melville [2010] WASAT 67 (13 May 2010)

[7] Section 115L(2) Land Title Act 1994