In the recent case Waves Redcliffe[1], owners of an exclusive use storage area in the basement of the building sought the body corporate’s assistance to have certain utility infrastructure located within their exclusive use basement space removed as the owners felt the location of the utility infrastructure impacted on their use and enjoyment of that area. They were understandably annoyed that the Council’s building plans did not match what had been built on their portion of the common property.
The utility infrastructure complained of included the body corporate’s water supply pump, pipes, related electrical equipment and tanks. Access to the area was required by the body corporate from time to time to service that equipment and trace leaks as required.
After unsuccessfully lobbying the Committee to have the infrastructure moved, the lot owners applied to the Commissioner’s office for assistance. Eventually the owners and the body corporate agreed that the body corporate would obtain quotes for the utility infrastructure to be moved from its current location to another place on the common property and agreed that the lot would propose motions for the upcoming general meeting for an alternative area allocation.
At the general meeting, the motion to have the body corporate pay circa $35,000.00 plus a 10% contingency was voted down – 11 Yes votes and 26 No votes.
The alternative option to allocate the owners a different portion of the common property (and have them surrender the current portion impacted by utility infrastructure) required a resolution without dissent by the owners and the motion failed with 28 Yes votes and 10 No votes.
At this stage the matter went to adjudication with the lot owners seeking for the failed votes to be overturned by the Adjudicator.
The adjudicator found:
- That the utility infrastructure had always existed in their area of exclusive use; and
- That the utility infrastructure was in place prior to the building’s certification and prior to the settlement of the sale of the first lots in July 2011 and prior to the lodgement of the first Community Management Statement allocating car parking and storage spaces’ and
- That the grant of exclusive use was subject to existing utility infrastructure.
Accordingly – the body corporate was not ordered to remove the utility infrastructure and the application was dismissed.
You can read the complete case here: http://classic.austlii.edu.au/au/cases/qld/QBCCMCmr/2023/364.html
[1] Waves Redcliffe [2023] QBCCMCmr 364 (15 September 2023)