Oceana on Broadbeach Community Titles Scheme 24163 v Searle
[2003] QDC 11
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- Unreported Judgment
- Appeal Determined (QCA)
- Oceana on Broadbeach Community Titles Scheme 24163 v Searle[2003] QDC 11
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Oceana on Broadbeach Community Titles Scheme 24163 v Searle[2003] QDC 11
Oceana on Broadbeach Community Titles Scheme 24163 v Searle[2003] QDC 11
DISTRICT COURT OF QUEENSLAND
CITATION: | Oceana on Broadbeach Community Titles Scheme 24163 v Searle & Ors [2003] QDC 011 |
PARTIES: | OCEANA ON BROADBEACH COMMUNITY TITLES SCHEME 24163 Appellant v STEPHEN CHARLES SEARLE First Respondent And THE COMMISSIONER FOR BODY CORPORATE AND COMMUNITY MANAGEMENT Second Respondent And RA MEEK Third Respondent |
FILE NO: | Appeal 931/02 |
DIVISION: | District Court |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Southport |
DELIVERED ON: | 28 February 2003 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 7 February 2003 |
JUDGE: | Robin QC DCJ |
ORDER: | Appeal dismissed with costs.Adjudicator’s order confirmed. |
CATCHWORDS: | Body Corporate and Community Management Act 1997 s 62, s 125, s 220, s 237. Appeal to District Court from adjudicator’s decision – body corporate’s claim to an easement across and access rights to a lot for purposes of cleaning windows on exterior of building rejected – window cleaning held neither a “utility service” within definition in Act nor “work” within s 125 – whether additional evidence should be received in an appeal on a question of law. |
COUNSEL: | Mr Carrigan for appellant Ms Heyworth-Smith for first respondent |
SOLICITORS: | Short Punch & Greatorix for the appellant Biggs & Biggs for the first respondent |
- [1]The appellant Body Corporate is dissatisfied with the decision made by the third respondent, Mr Meek upon its application to the second respondent to resolve a dispute under s 192 of the Body Corporate and Community Management Act 1997. The Body Corporate sought, but failed to obtain any of the following orders in its application dated 4 June 2002:
“1. A declaration pursuant to s 62(1) of the Body Corporate and Community Management Act 1997, that an easement exists in favour of the common property against Lot 98 for the supply of utility infrastructure to the common property.
- In the alternative, a declaration pursuant to s 125(1) (a), of the Body Corporate and Community Management Act 1997, that a person authorised by the Body Corporate be entitled to enter Lot 98 for the purposes of carrying out maintenance (window cleaning) to the common property.
- That the Body Corporate be permitted to have access to the rooftop of Lot 98 of the scheme and that such access be limited to window cleaning purposes to the exterior of the building.”
- [2]It is open to question whether the second and third respondents need have been made parties. Mr Carrigan, counsel for the appellant body corporate tendered a letter from Crown Law indicating neither would appear, each being willing to “abide the order of the Court, provided that the order is not adverse to (their) interests”, which would cover any costs order that might be sought against them. Mr Carrigan wished to protect the Body Corporate’s ability, whatever that might be, to seek such a costs order, and conceded he could pursue that only on further notice to Crown Law.
- [3]The first respondent, Mr Searle, is the owner of Lot 98. The orders sought against him, as two of the three make express, were to facilitate the cleaning of exterior windows (which I take it are fixed windows) in a 14-storey residential tower on the beachfront at Broadbeach. In the past, with the concurrence of Mr Searle or a previous owner of Lot 98, that has occurred pursuant to agreed arrangements whereby the window cleaner, supported in some kind of harness, was lowered from the top of the building. The top (or roof) is in part common property, in part within Lot 98. Lot 98 has two levels, connected by an internal staircase. The principal living area is the lower level. The upper level, for the most part, is open, and constitutes a private pool area incorporating gardens and other facilities such as what appears to be an outdoor dining area. Some of the windows to be cleaned may be accessed from the rooftop common property; others, if they are to be accessed from roof level, in practical terms require access from the pool area of Lot 98. Differences have arisen between Mr Searle and the Body Corporate, it seems, over its insurer’s attitude to water damage caused to his lot. Further, it seems there are court proceedings extant in which the Body Corporate has sued him for unpaid levies. The rights and wrongs of those matters are presently irrelevant. But it might be noted that there is an explanation for the present impasse, in which Mr Searle has withheld further cooperation, so that the Body Corporate is unable to provide external window cleaning services which it formerly has provided, at least in the accustomed manner. As will be seen, given the strategic location of Lot 98, it is most unfortunate for the Body Corporate and/or other lot owners that amicable relations could not be maintained.
- [4]Mr Meek took the view that neither s 62 of the Act nor s 125 authorised a lot to be used as a means of access to common property (which the windows, as part of the skin of the building, constitute). These sections are:
“Easements for utility services and utility infrastructure
62.(1)An easement exists in favour of common property and against the lots for supplying utility services to the common property and establishing and maintaining utility infrastructure reasonably necessary for supplying utility services to the common property.
- (2)However, the exercise of rights under the easement must not interfere unreasonably with the use or enjoyment of the lots against which the easement lies.”
“Power to enter a lot
125.(1)A person (an “authorised person”) authorised by the body corporate for a community titles scheme may enter a lot included in the scheme, or common property the subject of an exclusive use by-law, and remain on the lot or common property while it is reasonably necessary-
- (a)to inspect the lot or common property and find out whether work the body corporate is authorised or required to carry out is necessary; or
(b)to carry out work the body corporate is authorised or required to carry out.
(2) The power of entry may be exercised –
- (a)in an emergency – at any time; and
- (b)in other cases –
(i)for entry to the lot mentioned in subsection (1) – at a reasonable time after at least 7 days notice of the intended entry has been given to –
(A)the owner of the lot; or
(B)if the owner is not in occupation of the lot – the occupier of the lot; and
(ii)for entry to the common property mentioned in subsection (1) – at a reasonable time after at least 7 days notice of the intended entry has been given to –
(A)the owner of the lot to which the exclusive use by-law attaches; or
(B)if the owner of the lot mentioned in sub-subparagraph (A) is not in occupation of the common property – the occupier of the common property; and
(iii)in compliance with the security or other arrangements or requirements ordinarily applying for persons entering the lot or the common property.
...
(5)A person must not obstruct an authorised person who is exercising or attempting to exercise powers under this section.
Maximum penalty for sub section (5) – 20 penalty units.”
- [5]Mr Meek, who placed considerable reliance on an earlier determination of another adjudicator (a course I would consider commendable, in the interests of promoting consistency and certainty in adjudicators’ decisions), reasoned as follows:
“Section 62 creates an easement over a lot in favour of common property for “supplying utility services to the common property and establishing and maintaining utility infrastructure reasonably necessary for supplying utility services to the common property”. By implication, the section requires the utility infrastructure which is necessary to supply the utility service to the common property to be located within or on the lot. It does not allow a lot to be used merely as a means of access to common property where utility infrastructure is located.
I further conclude that the power to enter a lot provided in section 125 of the Act does not assist the applicant. As my fellow Adjudicator noted, “… the general power to enter a lot as provided by section 125 of the Act does not allow a lot to be used as a means of access to the common property”. The basis for entry to a lot under section 125 must be “to inspect the lot or common property” (the subject of an exclusive use by-law) in order to “find out whether work the body corporate is authorised or required to carry out is necessary” or alternatively, to carry out such work.
For the above reasons, I intend to dismiss this application.”
- [6]The appellant strongly criticised the view taken that “utility infrastructure” referred to in s 62 must be located within or on the lot. That view may or may not involve an inappropriate gloss in interpreting the section. In my opinion, it is not helpful to resolve the issue here. The definitions of “utility infrastructure” and “utility service” in schedule 4 of the Act are:
“utility infrastructure” means cables, wires, pipes, sewers, drawings, ducts, plant and equipment by which lots or common property are supplied with utility services.
“utility service” means –
- (a)water reticulation or supply; or
- (b)gas reticulation or supply; or
- (c)electricity supply; or
- (d)air conditioning; or
- (e)a telephone service; or
- (f)a computer data or television service; or
- (g)a sewer system; or
- (h)drainage; or
- (i)a system for the removal or disposal of garbage or waste; or
- (j)another system or service designed to improve the amenity, or enhance the enjoyment, of lots or common property.
- [7]What “infrastructure” there might be to do with the window cleaners’ harness, trestles (or whatever means of support be used) and associated cables, wires, anchorages and the like has been left mysterious. This is an aspect of the appellant’s complaint that the adjudicator failed to “investigate” as section 220(1) required. Section 220 is:
“(1)The adjudicator must investigate the application to decide whether it would be appropriate to make an order on the application.
- (2)However, the adjudicator may, without investigation, make an order dismissing the application, or may end an investigation and make an order dismissing the application, if it appears that –
- (a)the adjudicator does not have jurisdiction to deal with the application; or
- (b)the application is frivolous, vexatious, misconceived or without substance.
- (3)When investigating the application, the adjudicator-
- (a)must observe natural justice; and
- (b)must act as quickly, and with as little formality and technicality, as is consistent with a fair and proper consideration of the application: and
- (c)is not bound by the rules of evidence.”
Its statement of grounds annexed to the original application asserts:
“The Body Corporate has, by practise, had access to the rooftop to ensure the cleaning of the external windows of the building. The only practical means of cleaning the windows is carried out by cleaning contractors using trestles progressively lowered from the top level of each of the towers. The only means by which this may occur is for the window cleaning contractors to gain access to the exterior of the building from the top level across Lots 98 and 63 respectively.”
(Lot 63 is a penthouse in a second tower at Oceania on Broadbeach.)
- [8]Mr Searle’s response disputed the claim about “the only practical means”, suggesting that external windows which could not be reached from the common property at the top of the building were accessible in other ways–
“e.g.(i) It would be possible to affix to the exterior of the building a winch or pulley system sufficient to raise trestles from the ground level up.”
- [9]Examination of representations of the building in Annexure C to the Body Corporate’s Reply before the adjudicator and in Ex 3, a brochure prepared in connection with the marketing of Mr Searle’s unit containing numerous photographs, suggests less complex alternatives may be available, such as temporary removal of higher windows in ranks of windows and lowering the harnessed window cleaner through there, or even attempting access from adjacent balconies, which very likely would form part of the lot enjoying the benefit of that particular cleaning. Unsurprisingly, the Reply sets out that the “winch” method suggested by Mr Searle or use of a crane would be very expensive.
- [10]The Reply states:
“7. In relation to paragraph 8 of the Searle submissions, subsequent enquiries have revealed that the window contractor had previously used, and will continue to use, a temporary anchoring device and the contractor is progressively lowered down to clean the windows in a harness rather than the use of “trestles”. The anchoring device is temporary and is owned by the Body Corporate as common property. After window cleaning is complete, this device is removable and readily removed and stored in common property storage areas.
The system of common property window cleaning does not require the use of “trestles” as identified in paragraph 5 of the application, or the installation of any permanent fixtures either on the common property or any lot in the scheme.
- In relation to paragraph 8(c) of the Searle submissions, the terms of the statutory easements are as follows:
- Access to Lot 98 would be gained from the common property liftwell and/or stairwell across the common property rooftop area, via downward steps onto the rooftop portion of Lot 98. Access is required to the northern, eastern and southern exterior boundaries of the lot (see Annexure “A”);
- The temporary placement of an anchoring device is required to allow the window cleaner to be progressively lowered over the side of the building.
- [11]It is not clear whether anchoring devices are to be placed within Lot 98 (as one would think likely) or whether they are placed on common property, the use being made of Lot 98 being that cables run across it at or above floor level, as well as it being a thoroughfare for cleaners.
- [12]In the end the particular circumstances of the building do not matter, because the way in which the dispute must be resolved flows inevitably from the provisions of the Act.
- [13]While I accept Mr Carrigan’s submission that there is probably no useful distinction to be made between “infrastructure” which is kept in place and removable infrastructure which is put in place only when it requires to be used, there is no occasion for a decision to be made here as to what might constitute “utility infrastructure”. What is clear is that infrastructure must be related to some “utility service”. Mr Searle’s argument to the adjudicator, repeated in the appeal by Ms Heyworth-Smith who represented him was:
“Alternatively, for the purpose of Section 62(1) of the Act, the Submitter says that the supply of cleaning services to the exterior windows of the building does not fall within the definition of “utility service”, for the reason the state of cleanliness of exterior windows does not improve the amenity or enhance the enjoyment to lots or the common property. To reach any other conclusion would be absurd – the windows could be cleaned one day and become dirty the next (by reason of storm, salt spray, dust etc). It is absurd to think that a resident’s amenity or enjoyment of his or her lot could be affected by the state of cleanliness of a window. Consequently, the supply of cleaning services to exterior windows could not be “utility services”. If the supply of cleaning services is not “utility services”, then any equipment required to clean windows cannot be “utility infrastructure”.
- [14]While the language may be overblown, I have concluded, as did Mr Meek, that the argument is correct. While cleaning of windows or any other part of the common property may readily be regarded as a “service” (not a defined term) so that a person engaged to supply such services would be a “service contractor” within s 16, and while it may be assumed that it is always more pleasant to be faced with clean windows than dirty ones, I am unable to persuade myself that window cleaning services represent “another system or service designed to improve the amenity, or enhance the enjoyment, of lots or common property”, to quote item (j) in the definition of “utility service” in the Act. I would expected the “systems” and “services” contemplated in (j) to have something of the enduring nature of those referred to in the preceding items in the definition. It is easy enough to imagine things that might come within (j), such as intercom systems or means of transmitting radio programs throughout the building(s).
- [15]Mr Carrigan’s submission reminding us of the particular importance of clean windows to Gold Coast residents or visitors, who will focus much attention on the beaches, may be accepted. In legal terms, however, it cannot be that window cleaning services provided by a body corporate are more important where there is a view than anywhere else.
- [16]It is profitless to go into the incidents of a s 62 easement, and the extent to which it protects a location for things like pipes or wires, as opposed to a “right of way” for people. Section 62 has no work to do except in the case of a “utility service” and related infrastructure, which may be supplied and appropriately maintained. In the absence of a “utility service” no question can arise. The adjudicator correctly resolved this issue.
- [17]The Body Corporate’s claim under s 125, in my opinion, is incapable of succeeding in respect of window cleaning in ordinary circumstances. In my opinion, it is self evident that windows may be inspected, for the purpose of determining whether they require cleaning, without access to any lot being required, except perhaps the lot where the window is. I am doubtful whether cleaning windows represents “work” for the purposes of s 125. In my opinion, “work” effects a change more significant than rendering something cleaner. I accept qualifications would have to be made to a broad proposition along those lines. For example, cleaning out air conditioning ducting to enhance efficient functioning or guard against health risks could be seen as work. In other contexts, undoubtedly, cleaning would constitute work. The appellant’s argument was not advanced, in my view, by reference to section 109 of the Body Corporate and Community Management (Standard Module) Regulation 1997 which confirms a body corporate’s obligation to maintain in good condition, inter alia, windows.
- [18]The result reached by the adjudicator in respect to s. 125 was correct. It is unnecessary for this court to make any comment about the reasoning. It might be observed, however, that if lots can be used for access to common property, for a wide range of what might be seen as “everyday” purposes, lot owners’ ability to enjoy their property may be grossly impaired. The appellant body corporate appears to accept that Mr Searle ought not to have to tolerate incursions upon his enjoyment of sole occupation of and privacy in his pool area by having window cleaners (for example) and their equipment about whenever the body corporate “reasonably” wishes to clean an external window lying below, because it is dirty. The body corporate appeared to acknowledge this by offering to limit such window cleaning to a few occasions per annum. There is no warrant in the legislation for restrictions of that kind. It would be difficult to formulate a useful test to identify what would “interfere unreasonably” for purposes of s. 62. The ordinary requirement of 7 days notice in s. 125 bespeaks a recognition that consideration must be paid to the convenience and privacy of lot owners. I invited submissions from counsel as to whether there was anything about the Act tending to make the entitlements of lot owners subservient to what I might call “a general good”. No submissions were made. There seems to be nothing along those lines in Chapter 1 Part 2 of the Act (“Object and Achievement of Object”); if anything, the purpose of the Act seems to me to be to protect the entitlements and interests of individual lot owners.
- [19]It might be said that it is unsatisfactory that the body corporate will be able to maintain its buildings wholly clean and sparkling only at unnecessary expense, in view of the adjudicator’s and the court’s conclusions. This may be seen as a deficiency in the Act, but it is unrealistic to expect legislation to provide an easy solution for every practical situation. The true fault lies with those who devised or approved unsatisfactory, inadequate building and “subdivision” designs, or failed to establish binding arrangements which would overcome deficiencies in secure legal and practical access for the body corporate to parts of buildings it might be useful or important to get to in practice.
- [20]Mr Carrigan sought leave to read and file an affidavit designed to show that Mr Meek had failed to investigate factual matters; what might follow is that, had he done so, he might have appreciated the situation differently, and I suppose, discerned a greater imperative to find some basis on which to determine that the body corporate had the easement or access rights contended for. My view of s. 220 is that it is for the adjudicator to decide what investigation is necessary, and that parties are in no position to complain if an adjudicator fails to discover for himself facts or other matters which the party has not identified. The present dispute is one that can be resolved without investigation of the facts.
- [21]I reserved consideration of whether or not to allow the affidavit to be used, in deference to Ms Heyworth-Smith’s cogent argument that it should not be used. She relied on this appeal being solely on a question of law (as it is under s. 237(2)), on the affidavit’s being irrelevant (in “establishing” only that the adjudicator made no investigation) and on the circumstance that the appellant’s solicitors had expressly disavowed any intention to produce any further material or particulars, and then, on the eve of the appeal, come forward with the affidavit.
- [22]I was reluctant to reject the affidavit out of hand, it appearing to me important to acknowledge the possibility of parties in appeals like this in appropriate cases being able to adduce further evidence. One of the “secondary objects” of the Act set out in s. 5 is:
“(h) To provide an efficient and effective dispute resolution process”.
(See UCPR rules 766(1)(b) and 785(1).)
In the end, it has been unnecessary to make any decision regarding the affidavit, since it is clear that whatever its contents, the adjudicator properly resolved the dispute by determining legal questions. No amount of additional facts or information could properly have affected the determination, or permitted a different outcome.
- [23]It appears that the appeal should be dismissed, and the adjudicator’s order confirmed under s. 242(1)(a), further that the appellant must pay the first respondent’s costs to be assessed. However, the parties will have an opportunity, should they need it, to submit for different orders.