Peninsula [2006] QBCCMCmr 15 (6 January 2006)

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Therese Meyer, the owner of Lot 171

I hereby order that the Body Corporate for Peninsula Community Titles Scheme 9865 must not use or permit the use of the cleaning product "Tutti Frutti" on the common property for the scheme.

I further order that the application for an order by Therese Meyer, the owner of Lot 171 seeking the following outcomes:

(a) A declaration that the Peninsula Body Corporate (the Respondent Body Corporate) acted unlawfully in allowing Car Space U31 to be enclosed by a brick construction without a development permit required under s 4.3.1.(1) and 4.3.2A of the Integrated Planning Act 1997.

(b) An order that the Respondent Body Corporate shall, within 28 days of the date of the order and at their cost, demolish the brick enclosure of Car Space U31.

(c) An order that the key to the lock safe mechanism to the secure Car Space, U30 of Peninsula, surrendered by the applicant to the Respondent Body Corporate, will be returned so she may one again have access to her allocated Car Space, U30.

(d) An order that, pending the demolition of the brick enclosure of U31, the Respondent Body Corporate will grant exclusive use to the applicant of another Car Space within the upper level secure car park of Peninsula, as close as possible to the lift.

(e) An order that the Respondent Body Corporate reimburses the Applicant in respect of all expenses incurred as a result of the Applicant not having use of Car Space U30.

STATEMENT OF ADJUDICATOR'S REASONS FOR DECISION - REF 0640-2005

This application is by Therese Meyer, the owner of Lot 171 (applicant) against the body corporate and William and Mary Clark, the owner of Lot 198. The applicant seeks the following outcomes, quote:

(a) A declaration that the Peninsula Body Corporate (the Respondent Body Corporate) acted unlawfully in allowing Car Space U31 to be enclosed by a brick construction without a development permit required under s 4.3.1.(1) and 4.3.2A of the Integrated Planning Act 1997.

(b) An order that the Respondent Body Corporate shall, within 28 days of the date of the order and at their cost, demolish the brick enclosure of Car Space U31.

(c) An order that the key to the lock safe mechanism to the secure Car Space, U30 of Peninsula, surrendered by the applicant to the Respondent Body Corporate, will be returned so she may one again have access to her allocated Car Space, U30.

(d) An order that, pending the demolition of the brick enclosure of U31, the Respondent Body Corporate will grant exclusive use to the applicant of another Car Space within the upper level secure car park of Peninsula, as close as possible to the lift.

(e) An order that the Respondent Body Corporate reimburses the Applicant in respect of all expenses incurred as a result of the Applicant not having use of Car Space U30.

(f) An injunction restraining the Respondent Body Corporate and their agents from using the cleaning product "Tutti Frutti" or any other perfumed deodoriser.

"Peninsula" Community Titles Scheme 9865 is a scheme under the Body Corporate and Community Management Act 1997 (Act) and the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module).

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.

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)).

The applicant has also sought the following interim orders, quote:

(A) An interim order that, until the final determination of this application, the Respondent Body Corporate and their agents will be restrained from using or causing to be used the deodoriser product "Tutti Frutti".

(B) An interim order that, until the final determination of this application, the respondent Body Corporate will grant exclusive use to the Applicant of another Car Space within the upper level car space of Peninsula, as close as possible to the lift.

On 23 September 2005, I made the following interim order, quote:

I hereby order that pending a final determination of this application, the Body Corporate for Peninsula Community Titles Scheme 9865 shall take reasonable steps to prevent the use of a "Tutti Frutti" scented deodoriser on the common property for the scheme.

This interim order has effect until 12 months have elapsed from the date of this order, a further interim order or a final order for the application is issued, or until the application is withdrawn, rejected or otherwise ended (whichever is the earlier).

I further order that the application for an interim order by Therese Meyer, the owner of Lot 171 against the Body Corporate for Peninsula Community Titles Scheme 9865 that:

An interim order that, until the final determination of this application, the respondent Body Corporate will grant exclusive use to the Applicant of another Car Space within the upper level car space of Peninsula, as close as possible to the lift.

In accordance with the Act, submissions were called and a copy of the application was provided to William and Mary Clark, the owner of Lot 198; and to the body corporate manager for distribution to the owner of each lot (excluding the applicant) and the committee. A submission was received from William and Mary Clark, the committee and a number of lot owners. The applicant made a written reply to submissions under section 244 of the Act.

The "Peninsula" body corporate was created by the registration of Building Units Plan 5331 by the registrar of titles on 5 November 1982. On 3 August 1984, the registrar recorded By-Law 56 which allocated parts of common property for the exclusive use of lot owners as car spaces. The owner of Lot 171 was allocated exclusive use of a part of common property tagged as Car Space U30 and the owner of Lot 198 was allocated Car Space U31. These spaces are located on Level B of BUP 5331. The community management statement for the scheme includes this exclusive use allocation of common property.

The applicant has occupied Lot 171 since June 1985. She submits that the then owner of Lot 198 enclosed Car Space U31 some time in 1985, and that the garage was built without the authority of the body corporate or the local authority. The body corporate has not provided any material providing a definite date of construction, but has submitted that the enclosure was carried out in the 1980's. The owner of Lot 198 submitted that the garage was erected when they purchased the Lot in 1993. The body corporate has also submitted that there is no evidence that the body corporate allowed the enclosure. The applicant submits that after Car Space U31 was enclosed, she experienced difficulties using Car Space U30 resulting in personal injury and also damage to her vehicle. While not substantiated by minuted evidence, it would seem that in 1988 the body corporate permitted the applicant to use a visitor's car park and that the applicant has continued to use this park. Mark Frawley of Breakfree Limited (by letter dated 20 July 2005) states that in return for allowing the applicant to use a visitor's car park in 1988, the applicant provided Mr Frawley (as building manager) "with the keys to a lock safe car parking mechanism for her original car park in the secured area. It was agreed this could be used by tenants and owners". The body corporate submitted that the applicant has always retained means of access to Car Space U30 and has allowed the space to be used by friends and visitors.

The first outcome sought by the applicant seeks a declaration that the body corporate acted unlawfully in allowing Car Space U31 to be enclosed by a brick construction without a development permit required under the Integrated Planning Act 1997 (IPA). This outcome requires a decision to be made regarding the body corporate's obligations under IPA or equivalent regulations given the timing of the construction of the enclosure. It is evident that the Implementation and Assessment Branch of the Gold Coast City Council (GCCC) has inspected the parking spaces, that certain notices have been issued by the GCCC, and that the issue has not yet been resolved. However, the applicant has sought an outcome with respect to the application of the IPA. The resolution of this matter applying provisions of the IPA is not within the jurisdiction of an adjudicator. An adjudicator's powers to make an order are derived from section 276 of the Act. Section 276(1) states, quote:

(1) An adjudicator to whom the application is referred 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 this Act or the community management statement; or

(b) the exercise of rights or powers, or the performance of duties, under this 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.

In my view, am adjudicator does not have the jurisdiction to make an order of the nature sought in this outcome. Consequently, this outcome sought is dismissed.

The second outcome is that the body corporate demolishes the brick enclosure of Car Space U31. The applicant states that the car space was enclosed by the then owner of Lot 198. There is no evidence when this owner constructed the enclosure, or if that owner sought or obtained any approval from the body corporate at the relevant time. However, the applicant has not provided any basis for supporting a claim against the body corporate and I am not persuaded that the body corporate has any obligation under the Act to remove the enclosure. Therefore, I have dismissed this outcome sought.

The third outcome is that the key to the lock safe mechanism to the secure Car Space U30 surrendered by the applicant to the body corporate be returned. I have already referred to the letter from Mark Frawley of Breakfree Limited dated 20 July 2005. The body corporate has submitted that it does not have the key. Given this information, I am not satisfied that the body corporate has possession of the key and has unreasonably refused to give the key to the applicant. Consequently, I have dismissed the outcome sought. Given the statement made by Mark Frawley, I would suggest that the applicant approach Mr Frawley regarding this matter.

The applicant also seeks an outcome that the body corporate grant exclusive use to the applicant of another car space as close as possible to the lift. The common property car spaces on Level B of BUP 5331 have been allocated to the owners of lots in the scheme, including the applicant as the owner of Lot 171. The allocations existed at the time that the applicant purchased Lot 171. The allocation of parts of the common property for the exclusive use of the occupier of a lot is a significant issue which initially requires the approval of the benefiting lot owner and other lot owners by resolution without dissent in general meeting. An allocation of exclusive use cannot be removed without similar approvals. In my view, an outcome of the nature being sought by the applicant could only be made where it is plain that the allocation is unreasonable or oppressive.

The current exclusive use allocation to Lot 171 was made in 1984. The applicant appears to be disputing the allocation due to the adjoining enclosure which existed when she purchased the Lot. It would seem that the applicant used the allocated space for some time before an arrangement was made to make use of an unallocated car space. Despite this arrangement, it would seem that Car Space U30 has been used by various persons since 1988 and has been to a certain extent under the control of the building manager. There has been limited material provided to indicate that since this time there have been problems experienced with the use of Car Space U30 which are directly associated with the existence of the enclosure of Car Space U31. While the applicant claims that she did not dispute the enclosure of Car Space U31 earlier for certain reasons, it is apparent that the applicant choose to park her vehicle in Car Space U30 for a period of time and then elsewhere rather than challenge the enclosure. There are questions of equity that arise in resolving some disputes and one of those equitable principles arises here, namely that of acquiescence. It is apparent that Car Space U31 has been enclosed for at least 20 years, seemingly without dispute by the applicant. The principle of acquiescence is essentially to deny a person the right to later object to something that has in fact been in place for some time without any action or complaint having been taken by them, giving rise to an inference of assent. Here the delay by the applicant is such that it could be argued that it is unreasonable to now allow an action for the removal of the enclosure to be contemplated. Acquiescence may not be applied where for example a serious impediment or hazard was involved. However, while it is relatively settled that the enclosure was constructed by an owner of Lot 198, the applicant has sought outcomes only against the body corporate. While the applicant also named the owner of Lot 198 as a person against whom the application is made, the applicant has not sought specific outcomes against the owner of Lot 198. Therefore, I have not given any consideration to making any orders against the owner of Lot 198. The applicant makes reference to the nuisance provisions of section 167 of the Act which apply to the actions or behaviour of an occupier of a lot. Given the specific outcomes sought, I am not persuaded that this provision applies to this dispute.

In conclusion, I do not consider that the applicant has provided any basis to support a view that the body corporate has an obligation to provide another car space on common property for her exclusive use. While the body corporate has an obligation to act reasonably (section 94, Act), I am not satisfied that the body corporate has refused any reasonable proposition from the applicant in relation to this issue. The applicant has a right of exclusive use of common property for parking a vehicle and has not, in my opinion, demonstrated that the actions of the body corporate have been unreasonable or oppressive in the circumstances.

An order is also sought that the body corporate reimburses the applicant in respect of all expenses incurred as a result of the applicant not having use of Car Space U30. The applicant has not shown that the body corporate has unreasonably or in any other manner denied use of the exclusive use car space. Further, the applicant has not quantified these expenses, nor has she provided any grounds to support a view that the body corporate is obligated pursuant to a contravention of the Act or the community management statement to reimburse the applicant. Therefore, this outcome sought is dismissed.

Use of the cleaning product "Tutti Frutti" or any other perfumed deodoriser

The Applicant's main submissions were to the effect that:

• She suffers from an illness causing hypersensitivity to chemicals, particularly those found in cigarettes and perfumes.

• Since March 2005, she has experienced allergic reactions to the intermittent use of a "Tutti Frutti" scented deodoriser by the caretaker on common property areas such as the rubbish disposal areas and foyers.

• The Applicant has provided a written statement dated 8 September 2005 from Adil Fitter (Resort Manager, Breakfree Peninsula) that on 28 August 2005, the Applicant suffered a respiratory attack from "a strong presence of deodorizer"; and a written statement from Roger Benvenuti dated 8 September 2005 detailing the Applicant's reaction to the "very strong smell of the "Tutti Frutti" deodorizer...in the foyer area".

The body corporate's main submissions were to the effect that:

• Restraining the body corporate and its agents from using the cleaning product "Tutti Frutti" and any other perfumed deodorizer would be an extreme incursion into the affairs of the body corporate.

• Doubts the relevance of the medical statements made in the medical evidence supplied by the applicant to the specific use of "Tutti Frutti" and consider that the doctors could have referred to sensitivity to cleaning products or similar chemicals.

• Doubts the reaction claims of the applicant without medical verification.

• Consider that the dates of a reaction as stated by the applicant are times when the product was not used in the building.

• The body corporate is not committed to using the product and has no intention of using the product in the future.

The submissions from lot owners variously supported and opposed the outcome sought. It is evident from a perusal of the Minutes of the Extraordinary General Meeting dated 5 November 2005 that the applicant was unsuccessful in proposing a restriction in the use of not only the "Tutti Frutti" product, but in the use of any chemicals or sprays in the cleaning of common property after the body corporate was made aware that the chemical causes an adverse or serious medical reaction to any owner or occupier or endangering that person's life or health.

Section 35 of the Act provides that the lot owners own the common property as tenants in common. Section 94 of the Act makes provision for the general functions of a body corporate. Section 152 of the Act provides for the body corporate's duties about common property. The body corporate is responsible for maintaining common property in good condition (section 109(1), Standard Module).

Section 94(1)(a) of the Act provides that the body corporate "must administer the common property and body corporate assets for the benefit of the owners of the lots included in the scheme". Section 92(2) provides that the "body corporate must act reasonably in anything it does under subsection (1)". Section 152(1)(a) of the Act provides that the body corporate "must administer, manage and control the common property and body corporate assets reasonably and for the benefit of lot owners". In my opinion, "for the benefit of lot owners" does not require that the body corporate must act for the benefit of all owners, nor does it mean that the body corporate act for the benefit of the majority of lot owners. It is conceivable that it may require the body corporate to act in a way that benefits a minority of lot owners, or even a single lot owner where on balance, the demonstrated inconvenience or disadvantage to the minority outweighs the inconvenience or disadvantage to the majority.

It is evident that lot owners have not agreed with the applicant's proposition to limit the use of chemicals or sprays. The opinion of the majority should have effect in an issue of this nature provided the opinion is reasonable and is for the benefit of lot owners. In my view, the applicant has demonstrated that the use of the product "Tutti Frutti" has unreasonably affected her use of the common property, and that the continued use of the product would not be reasonable, nor would it be for the benefit of lot owners. Therefore, I consider that any continued use of the product would be contrary to section 94 and section 152 of the Act. Consequently, I have ordered that the body corporate is not to use or permit the use of the product "Tutti Frutti" on the common property for the scheme. I do not accept that the restriction on the use of this product would unreasonably impinge on the scheme management. It is not apparent that this is the only product able to be used to clean parts of the common property, or that the use of the product is essential to satisfy the body corporate's maintenance obligations.

While this order restricts the use of the product "Tutti Frutti" given the grounds provided by the applicant, the order does not extend to preventing the use of any other perfumed deodoriser. The applicant has not demonstrated that the use of any perfumed deodoriser will unreasonably affect her use of her lot or the common property. The body corporate is entitled to use or allow the use of a product in maintaining common property in good condition provided the product does not unreasonably affect a person's use of their property or the common property.