York Sands [2011] QBCCMCmr 49 (14 February 2011)

Last Updated: 18 March 2011

REFERENCE: 1065-2010

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	7406
Name of Scheme:	York Sands
Address of Scheme:	22 - 28 Hunter Avenue, LABRADOR QLD 4215

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

Greville Day, a co-owner of lot 12

I hereby order that motion 2, regarding exclusive use of car parking spaces, considered by an extraordinary general meeting on 28 September 2010, is deemed to have been passed by a resolution without dissent.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 1065-2010

“York Sands” CTS 7406

The scheme

York Sands community titles scheme is regulated by the Body Corporate and Community Management Act 1997 (Act) and the Body Corporate and Community Management (Standard Module) Regulation 2008 (Standard Module). It consists of 18 lots on a building format plan.

Application

This application was made on 16 November 2010 by Mr. G. Day a co-owner of lot 12, seeking the following final outcome:

To have the outcome of the recent EGM overturned, as the allocation on the new by-law is the same as the status quo and does not negatively affect the person who voted against the motion.
The owners wish to have a exclusive use to formalise current parking arrangements. This would also reduce confusion experienced by prospective purchasers

Background

The application concerns motion 2 considered at the last extraordinary General Meeting on 28 September 2010 which read as follows:

That by resolution without dissent in accordance with section 62(2) of the Body Corporate and Community Management Act 1997 the body corporate consent to the recording of a new Community Management Statement for the purpose of making the following by-law conferring exclusive use and enjoyment of part of the common property:

12. Exclusive Use of Car Space

12.1 The owner or occupier of each lot, as identified in the first column of Schedule E of this Community Management Statement, shall have the exclusive right of for car parking purposes of the area allocated to that lot in Schedule E of this Community Management Statement and as identified on the sketch plan attached and marked “Plan A”.

12.2 The owner or occupier of a lot entitled to an exclusive use area must keep such area in a clean and tidy condition and must not litter or use it so as to create a nuisance.

12.3 The owner or occupier of a lot entitled to an exclusive use area shall be responsible for carrying out and costs of the repair and maintenance of the area, however the body corporate may carry out repair and maintenance of the area at the cost of the owner if the area is not maintained in a satisfactory state in the reasonable opinion of the body corporate, should the owner, after written request to repair or maintain the area, fail to do so.

As nine owners voted in favour of the motion and 1 owned voted against the motion, it was resolved that the motion be lost. The applicant states that the allocation of car parking spaces under the proposed exclusive use by-law reflects the status quo and does not negatively affect the person who voted against the motion. The applicant further states that owners wish to have an exclusive use by-law to formalise current parking arrangements and this would also reduce confusion experienced by prospective purchasers

Pursuant to section 243 of the Act, all lot owners and the body corporate were invited to make submissions concerning the application.

Submissions made on behalf of the body corporate included the following:

• The BUP shows that the entire car parking area is “unallocated” common property although individual units were acquired in the belief that the purchaser was entitled to exclusive use of car parking spaces previously used by the vendor;
• The committee has not been able to locate any documentation evidencing the allocation of car parking spaces by the original developer;
• Similarly, by-laws recorded with the Queensland Titles Office do not contain any reference to the allocation of car-parking spaces;
• The committee originally investigated the conversion of all car parking spaces to garages but is not proceeding with the proposal at this point in time owing to a number of practical difficulties outlined in their Circular to Owners dated 6 September 2010;
• The committee merely wishes to formalise current car parking space arrangements to allow any future car parking issues to be resolved with certainty;
• This would mean that the one objector would continue to use the car space that they have used since their purchase and all other owners would continue to use the spaces they have occupied since purchaser;
• The one dissenting owner indicated that she would be happy to proceed with the proposal if she was allocated a double car space;
• Failure to adopt the exclusive use by-law would mean that any occupier could use a car parking space anywhere in the complex.
  

The owner of unit 7 was under the impression that the exclusive use allocation also involved the erection of garages within the car parking spaces. He was concerned that there would be insufficient space to manoeuvre a car in or out of a garage constructed within his car-parking space. He was also of the view that each lot should be allocated one car parking space and all remaining spaces allocated for visitors.

Submissions made by the owners of lot 1 included the following:

• They do not believe the car parking plan should be adopted;
• They wish to retain “side by side” parking;
• They are only agreeable to amendment of the plan so that lot 1 is entitled to exclusive use of the area marked X5 (comprising 29 square metres) as well as the area marked X1 (comprising 29 square metres),
• They believe that the owner of lot 5 should be allocated the area marked “visitor” (approximately 15 square metres).
  

Jurisdiction

The application evidences a dispute between an owner of a lot included in a community titles scheme and another owner of a lot included in the scheme (section 227(1)(a) of the Act).

Section 276(1) of the Act provides that an adjudicator may make an order that is just and equitable in the circumstances (including a declaratory order) to resolve a dispute, in the context of a community titles scheme, about-

(a) a claimed or anticipated contravention of the Act or the community management statement; or

(b) the exercise of rights or powers, or the performance of duties, under the Act or the community management statement; or

(c) a claimed or anticipated contractual matter about-

(i) the engagement of a person as a body corporate manager or service contractor for a community titles scheme; or

(ii) the authorisation of a person as a letting agent for a community titles scheme.

Determination

The committee has an unenviable task of formalising parking arrangements which have been adopted by successive owners of the various lots over the last 23 years. It has taken professional advice, engaged a surveyor to draw up a sketch plan and had a draft exclusive use by-law prepared which is included in a new Community Management Statement. While it was originally proposed that each parking space would be enclosed by a garage, this proposal is not proceeding due to a number of practical difficulties that were outlined in the “Circular to Owners” dated 6 September 2010.

Although a resolution without dissent is required to give effect to an exclusive use by-law, subsection 94(2) of the Act provides that the body corporate must act reasonably in anything it does under subsection 94(1). Further, 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 this regard, an adjudicator is able to exercise a degree of discretion, and an is entitled to make orders which include those orders specified in Schedule 5 to the Act including the following:

If satisfied a motion considered by a general meeting of the body corporate and requiring a resolution without dissent was not passed because of opposition that in the circumstances is unreasonable – an order giving effect to the motion as proposed or a variation of the motion as proposed.

The owners of lot 1 have been allocated a parking area of 29 square metres which would accommodate 2 vehicles, albeit in a nose-to –tail configuration. However they also wish to have exclusive use of the 29 square metre area allocated to lot 5 on the proposed exclusive use plan. Although lot 1 is a relatively small unit consisting of 75 square metres, the owners are seeking exclusive of some 58 square metres, or an area sufficient to accommodate 4 motor vehicles. .

The test to be applied in determining whether something is “reasonable” or “unreasonable” is an objective one, requiring a balancing of factors in all the circumstances according to the ordinary meaning of the term: Secretary, Department of Foreign Affairs and Trade v Styles ([1989] FCA 342; 1989) 88 ALR 621 (see also McKinnon v Treasury [2006] HCA 45 per Hayne J at p61).

On an objective consideration of the circumstances I believe that the opposition to the motion by the owners of lot 1 was unreasonable. In small schemes such as York Sands, with equal lot entitlements, it is common for each lot to be allocated one car parking space, with a number of car spaces for visitor parking. There are 18 lots in the scheme and under the proposed exclusive use by-law, l2 lots have been allocated a single parking space of between 15 and 19 square metres. Six lots, including lot 1, have been allocated a parking space of between 29 and 33 square metres. I believe it is unreasonable for the owners of lot 1 to oppose the motion because they wish to have a further area of 29 square metres so that occupiers of that lot can park two vehicles side by side.

I therefore propose to order that motion 2, regarding exclusive use of car parking spaces, and considered by an extraordinary general meeting on 28 September 2010, is deemed to have been passed by a resolution without dissent.