M32 [2015] QBCCMCmr 161 (31 March 2015)

Sections 227(1) and 229(3)(a) of the Body Corporate and Community Management Act 1997 (Qld) (Act), applying the Act and the Body Corporate and Community Management (Small Scheme Module) Regulation 2008 (Small Scheme Module).

Interim Orders - When appropriate to make - sections 276 and 279 Act.

I hereby order that the application for an interim order to stop the body corporate committee and body corporate manager from engaging town planners, surveyors and lawyers to contest a "Show Cause Notice" issued by the Brisbane City Council

[1] M32 is a four unit scheme in Highgate Hill, Brisbane. The applicant is the owner of lot 2.

[2] The applicant states that she is seeking an interim order to stop the body corporate committee and body corporate manager from engaging town planners, surveyors and lawyers to contest a "Show Cause Notice" issued by the Brisbane City Council.

[3] The relevant "show Cause Notice" is dated 5 February 2015. It states that on 27 April 2004 the Brisbane City Council (BCC) granted development approval for a multi-unit dwelling now known as M32. The Notice further states that in 2010 a request for permission to modify the original development approval was refused by the BCC as the proposed modification was not considered to be generally in accordance with the approved drawings and documents. Subsequently, on 19 September 2014 the BCC received a complaint relating to exclusive use of garages on designated visitor parking bays.

• [4] A subsequent inspection by a BCC Officer revealed the following:

  • Only one car parking space with unrestricted access was available for use by visitors;

  • Access to the visitor car parking space adjoining unit 3 is restricted owing to the presence of a garage door;

  • Access to the visitor car parking space adjoining unit 4 is restricted owing to the presence of a garage door; and

  • A roof has been constructed over the visitor car parking space adjoining unit 4 .

[5] The BCC has advised the body corporate that the above modifications are not in accordance with the development plan. It further advises that if the body corporate fails to respond to the Notice, an Enforcement Notice may be issued.

[6] The applicant objects to the action taken by the committee to contest the Show Cause Notice. She says that certain owners have effectively gained exclusive use of additional car parking spaces and are seeking to have this approved by the BCC at body corporate expense.

[7] The applicant says that car parking is a major issue in the local area and particularly in Middle Street. She says that the situation has been made worse by giving lot owners exclusive use of 2 visitor car parking spaces. As a result there is only one visitor car parking space available. The applicant is of the view that the engagement of professionals by the committee to seek approval of the car park enclosures only benefits certain lot owners. It is therefore argued that this expenditure should not be borne by the body corporate.

[8] Pursuant to section 271 of the Act the body corporate committee was afforded a brief period of time to make submissions.

[9] The committee advises that the scheme consists of an original timber dwelling plus three townhouses that were constructed in 2003. Lot 1 has been rented since 2003 and the owner of that lot is the committee secretary. The current owner of lot 3 acquired that lot in June 2013, is the third owner and the committee treasurer. The owner/ occupier of lot 4 acquired that lot in late 2010, and is the third owner.

• [10] The common property driveway is also burdened by three easements that were granted in the late 1940's/ early 1950's for the benefit of:

  • 34 Middle Street body corporate;

  • 100 Dornoch Terrace (a single dwelling);

  • Dornoch towers body corporate.

[11] Building approval was granted on 21 June 2002 after certain changes to the design documentation including:

• Installation of a roof over the parking space adjacent to lot 4, which was subsequently approved by a building certifier;

• Placement of a semi circular garden at the "right angle driveway corner"; and

• Inclusion of additional parking space adjacent to lot 1.

[12] The committee says that it was always intended that lots 3 & 4 would have exclusive use of adjacent car parking spaces but due to a misunderstanding, a Community Management Statement granting exclusive use was not recorded until 2008. The new CMS gave effect to a new exclusive use by-law which was carried by a resolution without dissent.

[13] In October 2009 one of the persons entitled to use of the easement lodged a complaint with the BCC. A BCC officer inspected the site and issued a "Show Cause Notice" alleging non-compliance with conditions of the development approval. An enforcement Notice was subsequently issued but following further correspondence and discussion between the body corporate and the BCC, no further action was taken. However, following complaints in late 2014, a further "Show Cause Notice" was issued.

[14] The committee says that current parking arrangements had been in place for a period of 6 years before there was any complaint. The body corporate has previously obtained legal and town planning advice at a cost of more than $5,000 but there has been no new spending on the engagement of town planners and/ or lawyers.

[15] The committee believes that the requested outcome is at odds with the CMS recorded in 2008. It says there is no evidence to suggest that the exclusive use by-law contained in the CMS is invalid and it was always presumed that lots 3 & 4 were entitled to exclusive use of the relevant parking spaces. The BCC is yet to determine whether the current parking arrangements contravene the conditions of the DA.

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

[17] An order may require a person to act, or prohibit a person from acting, in a way stated in the order (section 276(2)). An adjudicator's order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate (section 284(1)).

[18] The making of interim orders is further governed by sub-sections 279(1) & (2) of the Act which provide as follows: -

(1) The adjudicator may make an interim order if satisfied, on reasonable grounds, that an interim order is necessary because of the nature or urgency of the circumstances to which the application relates.

Examples

1. The adjudicator may stop the body corporate from carrying out work on common property until a dispute about the irregularity of proceedings has been investigated and resolved.

2. The adjudicator may stop a general meeting deciding or acting on a particular issue until it has been investigated and resolved.

(2) An interim order

(a) has effect for a period (not longer than 1 year) stated in the order; and

(b) may be extended, varied, renewed or cancelled by the adjudicator until a final order is made; (c) may be cancelled by a later order made by the adjudicator; and

[19] (d) if it does not lapse or is not cancelled earlier, lapses when

(i) the application is withdrawn; or

(ii) the commissioner gives the person who made the application a written notice under section 241 rejecting the application; or

(iii) --final order is made by an adjudicator to whom the application is referred. ...

[20] At this time, I am concerned with the application for interim orders and the threshold issue of whether interim orders are warranted. An interim order will not be granted unless it is necessary due to the nature or urgency of the circumstances to which the application relates[1] and any order granted must be just and equitable in the circumstances.[2] It is not appropriate to consider the substantive issues in the application in detail at this time.

[21] To determine whether it is just and equitable to grant interim relief, however, it is relevant to briefly consider the issues raised in the application. In order to obtain interim relief, the applicant must identify legal or equitable rights which are to be determined and in respect of which final relief is sought: Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199. Next, the applicant must make out a prima facie case: see Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; (1968) 118 CLR 618 at 622 and Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57. An adjudicator must also be satisfied that the balance of convenience between the parties justifies injunctive relief. That is, the adjudicator must balance the inconvenience of granting relief now if final orders are ultimately refused against the inconvenience of refusing relief now if final orders are ultimately granted.

[22] It is my understanding that the original development approval for the scheme required that 3 car parking spaces, located on common property, were to be reserved for the benefit of visitors to the site. However it appears that two of the visitor car spaces were subsequently used by lots 3 and 4. Further, in 2008 it was resolved by resolution without dissent, that lot 3 would be given exclusive use of one car parking space referred to as "Area 3" while lot 4 was given exclusive use of an area referred to as "Area 4".

[23] While it would appear that the body corporate complied with procedural requirements for the making of a resolution without dissent, there is a possibility that the relevant exclusive use by-law may conflict with the development approval granted by the Brisbane City Council. This in turn leads to the question of whether the by-law may be invalid, having regard to section 180 of the Body Corporate and Community Management Act 1997. This would largely depend on the validity of the conditions attached to the development approval.

[24] The applicant seeks an interim order to prevent the body corporate from expending body corporate funds in responding to a Show Cause Notice issued by the Brisbane City Council, on the basis that common property visitor car parking spaces have been appropriated for the exclusive use of lots 3 and 4.

[25] I note that the Show Cause Notice has been issued to the body corporate and it is the body corporate that would potentially be issued with an Enforcement Notice. The body corporate committee may challenge the validity of the conditions attached to the development approval or may argue that it is able to comply with the development approval, for example by having sufficient vacant common property to accommodate BCC visitor parking requirements. In the circumstances I do not believe it would be appropriate for an adjudicator to intervene to prevent the body corporate from obtaining professional advice and/ or representation.

[26] It should be noted that this order and statement of reasons does not dispose of the application in its entirety as the application for final orders remains outstanding. Further submissions will be sought before any final orders are made.

[1] Section 279 of the Act

[2] Section 276 of the Act