The Ridge [2016] QBCCMCmr 294 (23 June 2016)

The Body Corporate for The Ridge CTS 39799 (applicant)

The Body Corporate for Ridges Peregian Springs CTS 39713 (respondent)

Sections 227(1)(b) and 229(3)(a) of the Body Corporate and Community Management Act 1997 (Act), and the Body Corporate and Community Management (Standard Module) Regulation 2008 (Standard Module).

PRINCIPAL BODY CORPORATE proposing works on common property - whether subsidiary schemes should be consulted - proposed works beyond the limit of PBC committee spending - whether proposed works in breach of PBC by-laws -whether duty on PBC and subsidiary schemes to provide safe place for visitors and strangers using private roads.

Section 94(2) Act; section 151 Standard Module.

I hereby order that the single motion in the alternative purportedly carried by vote outside a committee meeting on 5th February 2016 by the principal body corporate Ridges Peregian Springs CTS 39713 was invalid and of no effect.

In all other respects this application is dismissed.

[1] This is an application dated 22nd February 2016 by a subsidiary body corporate (The Ridge) against the principal body corporate, Ridges Peregian Springs CTS 39713 (the PBC) for orders as follows -

1. that by-law 5 of the PBC community management statement is enforced at all times to ensure safety;

2. that efficient, cost effective measures be implemented immediately by the PBC to achieve the safety of all residents and visitors on the private roads of the subsidiary body corporate;

3. that the PBC completes its responsibilities by implementing efficient cost effective measures to alleviate unsafe traffic problems within the subsidiary body corporate.

[2] The Applicant also sought an interim order that the installation of bollards, a "motion passed erroneously" by the PBC committee by a vote taken outside a committee meeting on 5th February 2016 be stopped until this application is finalised. On 26th February 2016, the PBC confirmed that the "works in question" had been placed on hold.

[3] On 10th March 2016, I made an interim order in this application that the PBC shall not act to put into effect the single motion in the alternative carried by vote outside a committee meeting on 5th February 2016 until this dispute is determined, or until further order.

[4] "The Ridge" CTS 39799 is a 90-lot subsidiary community titles scheme in Peregian Springs, governed by the Act and the Standard Module. The scheme is created under four standard format plans of subdivision. The principal body corporate is Ridges Peregian Springs CTS 39713.

[5] I am satisfied that this matter falls within the legislative dispute resolution provisions.[1] This is a dispute between a subsidiary body corporate and a principal body corporate. Section 276(1) of the Act provides that an adjudicator may make an order that is just and equitable in the circumstances to resolve a dispute in the context of a community titles scheme about a claimed or anticipated contravention of the Act.

[6] On 5th February 2016 the PBC committee voted outside a committee meeting on a motion to install timber bollards and line markings at Honeyeater Crescent, which is a common property road of the PBC situated within The Ridge subsidiary body corporate scheme land. The PBC committee decided that the work should be done by Eureka Landscape Pty Ltd at a cost of $15,535.11 exclusive of GST.

[7] The Applicant says that the limit of PBC committee spending is only $10,000 as set by vote at a general meeting on 14th July 2010 and that the motion was therefore unlawful. The Applicant advises that despite this, the vote outside the committee meeting has since been ratified at a PBC committee meeting held on 2nd March 2016.

[8] The Applicant does not want bollards installed as it says that bollards will interfere with rightful access by owners in The Ridge and be contrary to scheme by-laws. PBC by-law 15 provides that "no gates or access preventing structures are to be erected" across common property internal roadways.

[9] The Applicant says that the PBC does not enforce its by-laws with respect to parking and driving on PBC common property roads in the subsidiary scheme. The Applicant believes that parking and traffic problems, caused largely by parents accessing a nearby school, can be controlled by "no parking" signs and yellow lines and policed as for a public road.

[10] The Applicant says one of the issues is that it has "no representation" on the PBC and is largely ignored by the PBC. The PBC does not respond to correspondence. The PBC committee consists of the developers and their employees with the exception of one bona fide resident, Richard Anderson. There are six subsidiary bodies corporate and the other five also do not have any representation on the PBC committee.

[11] The PBC body corporate made a submission on 9th March 2016. It agrees that the committee spending limit is $10,000. It says that to paint yellow lines and put up signs are good ideas but will be toothless without the bollards as well.

[12] It has now received a new quotation dated 22nd February 2016 from Eureka Landscapes Pty Ltd for the installation of the bollards at $8,802 ex GST, which inclusive of GST is $9,682.75 and within the committee spending limit. The PBC would like to resume the work of putting in the bollards.

[13] In accordance with section 243(2)(b) Act, submissions were invited from all lot owners.

[14] There were twelve submissions made mainly by the residents of Quoll Court. All of the submitters strongly support the application. There were no submissions against the application, and the respondent PBC did not make a submission at the final order stage.

[15] The submitters say, in brief, as follows -

1. Bollards are unsightly and ineffective as cars can still park on the road, and possibly still on the nature strips beside where the bollards are to be placed;

2. Existing bollards are not effective;

3. Bollards will impede residents and their guests;

4. The bollards are expensive and will need continual maintenance;

5. The imposition of bollards on the residents is discriminatory, inconsiderate and unsafe;

6. The traffic problem caused by the adjacent school does not merit bollards but could be ameliorated with yellow "no parking" lines;

7. The present situation is unsafe for the many children being dropped off and picked up on school days, and is an 'accident waiting to happen';

8. Residents have produced a document called "It Will All End In Tears" in consultation with the school, promoting ideas for safe parking;

9. The establishment of garden beds, plants or trees would be so much better and cheaper than bollards;

10. "Residents only" parking signs are another suggestion;

11. The PBC is secretive and unresponsive;

12. The PBC has not entered into a discussion about the parking problem but has imposed the bollards on the owners of the subsidiary scheme without discussion;

13. The PBC does not enforce its own by-laws which do not allow parking on roads within the subsidiary scheme without the consent of the committee.

[16] The submitters were divided about the painting of yellow lines in Honeyeater Crescent, Quoll Court and Finch Terrace. Some submitters think that this would stop owners and their visitors parking in the road and have a detrimental effect. They also say it is "overkill" for the parking problem which occurs only twice a day. The majority welcomed yellow line painting which would enable the police to take action against transgressors. The yellow lines should also be accompanied by "No Parking signs" suited to the style of the estate.

[17] The Applicant advises that it has consulted the Police who are willing to respond if people park on yellow lines.

[18] The Applicant seeks three outcomes, the first being that the PBC enforces its by-law 5, about parking. The concern is that people parking on the roads within the scheme cause a danger to "residents, school children and visitors".

[19] It is not in dispute that the roads in the subsidiary scheme are the common property of the PBC. By-law 5.2 of the PBC community management statement provides that "the owner or occupier of a lot" must not park on common property nor "permit a visitor" to do so, without the approval of the PBC committee. It seems to me however that the complaints of parking are against parents or carers delivering and collecting children to and from a nearby school. It is not lot owners who are parking in the road or if it is, it is not against owners in the scheme that the complaint is made. It does not seem to me that the people parking are bona fide "visitors" of the residents. There is no by-law against someone else parking in the road, annoying as it must be.

[20] Strangers are not bound by the by-laws, and are simply trespassing when parking on the private property of the PBC. That is, the PBC has no particular power over the offenders and it would indeed be difficult to pursue any particular offender in the civil courts.

[21] The Applicant has taken advice from the Police and been told that the Police would take action if there were yellow "no parking" lines painted on the road, and that strangers parking might be given penalties as on a public road.

[22] However, I am not satisfied that there is any evidence that the PBC does not enforce its by-laws in respect of this parking complaint. There is some evidence that an owner was once told by the body corporate manager not to park on the verge but to park on the road instead, and it may be that the body corporate manager does not understand the by-laws. Residents may be granted permission to park on the common property, but this should be backed by a decision of the PBC committee.

[23] The second outcome sought is that "efficient and cost effective measures" be implemented immediately by the PBC to ameliorate the worsening parking situation caused by the nearby school.

[24] Whilst I appreciate the frustration of the Applicant scheme which is most affected by the rogue parking, I am of the view that this is not something which falls strictly under the governing legislation for the administration of a community title scheme. It might be said that what the PBC is attempting to do (put in yellow lines and bollards) is its step towards achieving safety for residents and visitors.

[25] However, the Applicant does not think that the proposal of the PBC will be "efficient" or "cost effective". It would like yellow lines, but not the unsightly and expensive bollards.

[26] My concern is that there is no legislated duty on the PBC (or the Applicant) to keep anyone lawfully on the common property, safe. Even less, is there any duty to keep anyone "unlawfully" on the common property, safe. Whilst the roads are open to the public, it may be argued that the use made of them by the public is not lawful. Certainly, in my view, people would not be "lawfully" within the common property if they were parking on yellow lines.

[27] An occupier of a lot must not create a hazard on the common property (section 167(a) Act) or interfere unreasonably with the use or enjoyment of another lot or anyone lawfully on the common property. However, it is not the occupiers who are creating this hazard.

[28] The body corporate must carry public liability insurance for the common property to cover compensation for death, illness and bodily injury (section 187(3)(a) Standard Module) to the extent of $10 million for a single event. To that end, it might be argued that if the PBC have regularly allowed a dangerous or hazardous situation to occur without taking steps to remove the hazard, then the PBC's insurers may not provide cover in the event of an accident. But the governing legislation and the community management statement requires no more than that the PBC enforces its by-laws, and I have found that there is no evidence that it does not.

[29] It seems to me that the obvious way to try to stop the hazard, or at least to demonstrate to its insurers that the PBC does not condone the parking, is to post or paint "no parking" signs in or on the relevant roads. I do not think anyone can ensure that such steps will be effective, since there are always persons who will decide to break the law, but it demonstrates that the road is not a parking area.

[30] Such "no parking signs" and the continuance of yellow lines have been suggested by the Applicant as a better option than the proposed bollards.

[31] There is no real evidence that the proposed bollards, if erected, would be in breach of by-law 15. The by-law requires that no "access preventing structures" are erected "across internal roadways..." The sentence follows the prohibition of "gates", and in my view is designed to regulate the blocking off of a route, or placing a barrier across a roadway, and not merely hindering parking on the edges of a roadway.

[32] I do not make the order sought. I am not satisfied that the PBC has breached the legislation in any particular. It has simply proposed a motion for yellow lines and bollards which the Applicant finds unsatisfactory for the reasons of ineffectiveness and expense. I do not find that the proposal of the PBC is in itself unreasonable. I do not find that there is any expert evidence that what the PBC proposes would be ineffective to the extent that it is unreasonable to try it.

[33] There is evidence that the PBC has not consulted with the Applicant about the best way to tackle the problem, but that is unfortunately not in itself a breach of the legislation. The roads are the common property of the PBC and it may take whatever reasonable action it wishes in respect of them, without seeking authorisation from any other party.

[34] The third outcome sought is that the PBC committee members 'complete their responsibilities' by implementing efficient, cost effective measures to alleviate the unsafe and chaotic traffic problem.

[35] This seems to be to be merely a repetition of the second outcome sought and discussed above. I do not make the order sought.

[36] The application therefore fails. However, it seems to me a major complaint of this subsidiary scheme is that it has little or no consultation with the PBC and that the PBC does not respect the subsidiary scheme or the owners within it. The application for an interim order was granted on the basis that the PBC had breached the legislation in respect of committee spending.

[37] On 5th February 2016, the committee of the PBC resolved to spend a sum which was beyond the limit of committee spending[2] on putting in timber bollards and painting yellow lines in Honeyeater Crescent. The PBC agrees that the sum proposed was beyond the limit of committee spending, which was fixed at $10,000 on 14th July 2010 at a general meeting. It still wishes to put in timber bollards and has sought and found a quotation now within the limit of committee spending. Spending above the limit must be put to a general meeting of the PBC.

[38] I therefore make the order that the sole motion purportedly carried outside a committee meeting on 5th February 2016 was invalid.

[39] I make the following observations about the PBC and the members of it.

[40] There are now nine member owners in the PBC according to the new community management statement recorded on 28th April 2016. The PBC is governed by the Standard Module. The owners are the six bodies corporate - The Ridge CTS 39799 (Applicant), The Pavillion Peregian CTS 41488; East Village Ridges CTS 41995; South East Village Ridges CTS 46052; North East Village Ridges CTS 46271 and the Ridge South CTS 47177 - as well as three separate lots being Lot 5 on SP221511; Lot 3200 on SP 250707; and Lot 1401 on SP272326.

[41] East Village Ridges now has four subsidiary schemes, and South East Village Ridges has ten subsidiaries. More direct subsidiaries and further lesser subsidiaries are planned.

[42] Each of the nine members are required to have a representative "on the body corporate" of the PBC. Section 85(2) Standard Module provides that a (subsidiary) body corporate must ensure that there is a person appointed by the subsidiary scheme committee to represent the body corporate on the principal scheme's "body corporate". The representative must be a committee member of the subsidiary scheme and if no-one is appointed then the chairperson of the subsidiary scheme is the representative (section 85(3) Standard Module). These representatives must be invited to attend general meetings, and would as owners, have the power to nominate committee members. The committee is to be chosen at each annual general meeting (section 13(1) Standard Module).

[43] It is not clear to me, nor part of this application, how the current committee is made up of seven owners (or nominees or representatives) of the nine owners. The PBC is aware from previous applications that no "associates" (as defined in the Act at section 309) of the caretaker or body corporate manger may be voting members of the committee.

[44] Section 56 Standard Module allows owners to object to a decision of the committee by giving a notice of opposition to the secretary within seven days after being given a copy of the minutes of the relevant meeting or motion. The notice of opposition must be signed by at least one-half of the lots in the scheme, ie. 5 members of the PBC. The effect of the notice of opposition is that the committee may not put the carried motion into effect without the authorisation of an adjudicator (section 57(1)(b)(ii) Standard Module). It seems to me that this might be a useful tool for the Applicant in order to require the PBC to consult with it and the other subsidiary schemes before putting in bollards, if that continues to be the wish of the PBC.

[45] Finally, I consider whether in all the circumstances it is reasonable for the PBC not to take into consideration the wishes of the residents in the place where the bollards and lines are to be imposed, that is, the residents of Honeyeater Crescent and near neighbours. Section 94(2) Act requires the body corporate to act reasonably in anything it does in the administration of the scheme.

[46] I am satisfied that since there is no legislative duty for the PBC to consult subsidiary schemes when making decisions about its own common property, then it cannot be unreasonable for the PBC to act on its wishes as it sees fit. I am of the view that it would be courteous, and probably advantageous to the PBC in the long run, to invite debate before imposing an ultimatum on owners who are proximate to proposed improvements, but there is no legal reason to do so.

[47] It was regrettable that the PBC did not respond to the invitation to make a written submission in this matter at the final order stage of the application. The evident dilemma about the school parking, which is not the making of either of the parties to this application, might have been explored further had it done so.

[1] Sections 227,228, 276 and Schedule 5 of the Act