Interestingly enough, the Body Corporate and Community. Management Act 1997 (BCCM Act) does not define who a visitor is, so we are left with dictionary definitions and adjudications (and perhaps even a dose of common sense, as scary as that may seem to be).

Let’s start with the basics.

The by-laws

You need to have a lawful visitor parking by-law.  A simple example is set out in Schedule 4 of the BCCM Act.

Dictionary definition

A visitor is someone who (obviously enough) visits which includes:

1. to pay a call on as an act of friendship or courtesy;
2. to reside with temporarily as a guest;
3. to go to see or stay at a place for a particular purpose;
4. to go or come officially to inspect or oversee.

Adjudications

As you would expect, there have been quite a few adjudications over the years.  Some of the passages we have found illuminating (and our takeaway from each) include:

Picture Point [2004] QBCCMCmr 384

This was a dispute about short and long-stay occupants using the visitor car parks.

‘There does seem to be some uncertainty about who constitutes a genuine visitor to the scheme and will be entitled to use the visitor car parks.

There seems to be a general understanding that occupiers of the scheme are not entitled to use the visitor car parks.

However, the distinction between an occupier and a visitor may not always be completely clear. As a general rule:-

• persons letting a unit for a week (including family or friends accompanying those persons for the majority of the period let) would be classed as occupiers.
• persons just visiting for one or two nights of that period would normally be classed as visitors.
• similarly, if the relative of an owner/occupier regularly visits for one or two nights every month then that relative would normally be classed as a visitor.

The more difficult questions arise when a person stays with someone for a number of nights or on a very regular basis. In those cases, it will be necessary to look at all the circumstances to determine if they are an occupier or a visitor.’

Our takeaway: This was an early decision indicating the difficulties in actually deciding who a visitor was and confirmed that it was not as simple as whose name is on the lease.

Summer Waters [2004] QBCCMCmr 244

This was one where an occupier’s son stayed overnight at his parent’s unit for seven nights over a 26-day period.

‘It is not disputed that the … son periodically visits the scheme land, and on occasion, stays overnight. It is also not disputed that during these periods, the …  son parks his vehicle in an area of common property allocated for visitor car parking. 

While it is arguable that this shows that the … son is a regular visitor to the scheme, in my view, regularly visiting the scheme does not make a person an ‘occupier’ of a lot in the scheme, even if on occasion those visits are on an overnight basis. As a result, I am not satisfied that the Respondent’s son is an ‘occupier’ for the purposes of the parking by-law.’

Our takeaway: Regular visitors who occasionally stay overnight are just that – visitors not occupiers.

Gresham Gardens [2006] QBCCMCmr 355

This was one where an occupier’s son stayed overnight in his parent’s unit two to three nights a week, every week.

‘The question is whether [the son] falls within the category of “someone else who lives on the lot” or is in the nature of a visitor or invitee.

Terms such as ‘visitor’ or ‘invitee’ are not defined in the body corporate legislation or the by-laws. However, it seems to me that a visitor or invitee in this context refers to a person associated with an owner or occupier who is temporarily present on a lot or common property, with or without invitation…

I am of the view that the factors to be considered in this issue are:-

• how long the person in question is present at the scheme;
• how regularly; and
• for what purpose.

I do not consider it is necessary that a person stay overnight every night of the week to be an occupant.

A person who stays overnight in a residential lot 2 or 3 nights on a regular basis could still be considered an occupier. 

I do not consider that the lot must be the person’s principal place of residence for them to be an occupier of the lot. It is conceivable that a person may occupy more than one residential abode.
If someone were to visit regularly but not usually stay overnight, or were to stay overnight for a few nights occasionally, I would not normally consider they were occupying the lot. The key here, I believe, is the combination of two factors. Firstly, the respondent stays overnight for 2 or 3 nights (rather than just visiting during the day or evening) and in addition, the respondent is present on a very regular basis (every week, or at least most weeks). Moreover, with the respondent’s place of work is nearby, it does not appear to be a temporary arrangement.”

Our takeaway: If the person’s presence is not temporary or occasional in nature, they may well be an occupier (even when their principal place of residence is elsewhere).

127 Charlotte Street [2015] QBCCMCmr 19

This was one where employees of the resident manager were using the visitor car parks.

“I consider a ‘visitor’ would include anyone who is not an occupier of a lot, but who is genuinely visiting a lot or the scheme. I do not consider this is limited to residential or non-commercial visits. While a visitor may be a friend or family member visiting a tenant, they may also be a contractor such as an electrician visiting the scheme to do work.

I would consider the employees of the resident manager to be occupiers to the extent that they predominantly or regularly work at the building (as distinct from, for example, an employee who is based elsewhere but visits for an ad hoc meeting). However, a cleaning contractor attending to clean one or more lots would arguably fall within the designation of a visitor.”

Our takeaway: a visitor could be a family member, friend or the electrician appearing as a one-off, but permanent or regular attendees may well not be visitors.

What does all this mean?

It depends on the circumstances.

Occupiers are definitely not visitors.  We think a person is an occupier if they have a right to use a lot exclusively.  In a permanent letting sense, this would come from the lease, and in a short-term letting sense, this would come from the licence they have to use the lot from the owner.

And before anyone asks, we don’t think that an occupier needs to be named on the lease or licence to be that.  It is a matter of fact.

Regular attendees to the scheme who use the visitor car parks:

• who definitely reside and work elsewhere are probably still visitors;
• who visit so regularly that they ought to be considered an occupier would not be visitors;
• who have a link with the scheme through work (as employees of someone on site or even locally to the scheme) may not be visitors.

This article was written by Hynes Legal

The post Visitor parking in strata – Who is a visitor? appeared first on Sunstate Strata.

If you want to read an appeal decision about whether a body corporate acted reasonably in accessing a lot, then read on – and before you think this is just a body corporate issue there is a bit in this one for management rights operators about working with heights and the related work health and safety issues….

This dispute was all about accessing a garden area on the top of a wall that was common property adjacent to the owner’s exclusive-use area.

Let’s start with section 163 of the Body Corporate and Community Management Act 1997:

‘(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, with or without notice of intended entry given to any person; and

(b) in other cases, subject to subsection (4) —

(i) for entry to the lot mentioned in subsection (1) — at a reasonable time after at least 7 days written 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 written 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.’

So a body corporate’s right to access a lot is only to inspect the lot or common property to see whether there is work the body corporate needs to do, and then to do that work, and in both cases only after at least 7 days’ notice has been given to the owner/occupier.

We will leave what an emergency is aside for the moment, but the big thing is that a body corporate cannot just use the master key to enter as and when it pleases.

Can a by-law create a right of access?

This is one of the five most common invalid by-laws we see.  There is literally no point having a by-law that says anything about access because access rights are set out in the Act.

The dispute over access

The owner had previously allowed access through his lot to the area but seemingly got sick of that.

He suggested to the body corporate that access could be obtained via a ladder to the wall of the building, which meant that the person doing the gardening was exposed to a fall height of somewhere between 1.6m at its lowest and 6.5 metres at its highest. The gardening was performed by the resident manager, presumably as a duty under their caretaking agreement.

The intervention of the Work Health and Safety Regulator

We copped lots of stick for having the temerity to suggest that a body corporate was a PCBU (a Person Conducting a Business or Undertaking) in this article, but we like being proved right.

The owner wrote to the body corporate suggesting that the resident manager was being exposed to WHS risks in performing that gardening functions in that manner.  Nine months later the WHS regulator rolled in and advised the body corporate:

‘The person conducting the business or undertaking (PCBU) has failed to manage, under Part 3.1 the risks to health and safety associated with a fall by a person from one level to another that is reasonably likely to cause injury to a person. During a site visit to this location, I observed that this specific garden has a garden bed that is 1240 to 1450mm wide. The outside wall of the garden bed has an approximate drop off of 3.5 to 6.5 m.

During discussions with the building manager, he advised that he is required to conduct maintenance activities on this garden. He also advised that this sometimes necessitates him to work in the garden where he is exposed to the edge. There is no control to prevent a fall.’

This would not have happened unless the body corporate was a PCBU.

What the body corporate did next

The body corporate constructed a safety fence on the garden edge and then decided to continue to access the area through the lot, which must have caused the owner to make the original application.

The adjudicator held that:

‘The primary objection by the [owner] is inconvenience experienced when gardening staff wish to access the gardens and this is a relevant consideration. However, the question is whether this is simply a matter of what specific arrangements are made for how and when the works are undertaken, to minimise any inconvenience. Provided adequate notice is given, the body corporate has a statutory right of entry and I am inclined to the view that the [owner] is overstating the inconvenience to him.’

So the owner lost in the Commissioner’s Office.

The owner then appealed to the QCAT on the basis that the adjudicator was wrong with respect to that conclusion because it was not reasonable for the body corporate to act in that way.

He was proved right. The QCAT said that

‘Reasonableness should not be assessed in a vacuum, but in the context of the nature and impact of the conduct involved. In the present case, the conduct involved entering a person’s home without their consent. Whether or not that entry is reasonable needs to be assessed in the context of the law’s strong protection of the inviolability of a person’s home.

… the ‘policy of the law is to protect the possession of property and the privacy and security of its occupier’, and … [there is] a long line of authority in support of that proposition, including note of ‘the great regard the law has to every man’s safety and quiet’ and that ‘every man’s house is called his castle.’

This one could have been said to be about the vibe!

The QCAT finished with:

‘In our view, on an objective assessment, entering the unit … for the purpose of attending to the adjoining garden beds is not reasonable, given that the ultimate purpose is merely aesthetic and the garden beds are not accessible to other residents. Also, it is evident that other alternatives are available, not involving external access via a ladder, which the body corporate considers to be risky.’

It then made an order which said there was no access for maintenance purposes, but that did not apply to access for the purposes of changing the nature of the area so that access was no longer needed for maintenance.

So, another dispute is decided by a subjective opinion about whether the body corporate acted reasonably. There are no hard and fast rules that can be stated with these cases, other than each dispute turns on its facts.

An article was written by Hynes Legal

The post Rights of Access to Lots appeared first on Sunstate Strata.

In Queensland it is not illegal for someone to video you or your home unless:

• They trespass on your land to do so
• They are videoing your private body parts or activities
• They are recording a private conversation without your permission
• It amounts to stalking or domestic violence

Recording private body parts and activities

If someone is in a private place, or doing a private act in circumstances where they would reasonably expect privacy, it is a criminal offence to film them without consent.  Private acts might include things like undressing, using the toilet, showering, bathing or being intimate in a place where a person would reasonably expect privacy.  It is also a criminal offence to film body parts without someone’s permission.

Recording Private Conversations

In Queensland a person is not permitted to record private conversations that they are not involved in.  Therefore if CCTV surveillance is likely to capture a private conversation, the audio part of the recording system should be disabled and the surveillance equipment should be positioned to avoid the conversation being lip-readable.

CCTV surveillance must not cause a nuisance

The Body Corporate Community Management Act 1997 states that an occupier of a lot in a Community Titles Scheme must not use or permit the use of the lot or common property in a way that causes a nuisance or interferes unreasonably with the use or enjoyment of another lot or the common property included in the scheme.  Lot owners therefore have a responsibility to ensure that if they are allowed to install CCTV equipment on their property, it does not interfere with another lot owner’s use and enjoyment of their lot or common property.

Record keeping requirements

While Body Corporate legislation does not specifically make mention of video footage, adjudicators have made orders where footage from CCTV that is operated by the Body Corporate is a Body Corporate record.

Bodies Corporate should be aware of both the potential for footage to be a record and of the record keeping requirements under the Act, and consider how they will manage these requirements if they are considering installing CCTV.

Reasonable camera placement

The primary purpose of the surveillance should be considered when positioning CCTV cameras.  Security is the primary purpose of most surveillance so cameras should be installed to cover the main entrance and exits, any special target areas and any opportunity to identify any offenders.

If an owner or occupier in a scheme can demonstrate that a Body Corporate’s decision to install a camera in a place, or facing a particular location, is unreasonable, they may be able to dispute it.

This information was taken from a fact sheet provided by the Office of the Commissioner for Body Corporate and Community Management.

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Where a deck or balcony is one meter or higher above the ground then balustrades are required to be at least one meter high.

The openings in balustrades cannot be greater than 125mm.

If a deck is more than four meters above the ground, balustrades cannot have elements located between 150mm and 76omm from the floor.

Balustrades must be constructed so they can resist forces that can reasonably expected to be placed upon them, including people leaning against them and strong winds.

Retaining walls do not require a balustrade unless they are associated with a path of travel to and from or between buildings, however it is still a good idea to provide a balustrade or barrier where there is a risk of people falling.

Balustrades are required on stairs and are just as important as they are used as support for people ascending and descending the stairs.  For stairs, a barrier of at least 865mm high above the nosing of the stair treads is required.  For stairs more than 4m in height, a railing must also not have any climbable elements such as horizontal rails located between 150mm and 760mm from the floor.

Repair or Replacement of a Balustrade

You are only required to comply with the standard that the dwelling/building was constructed to, in relation to repair or replacement of the balustrade; however if the replacement is part of a substantial renovation exceeding 20% of the system then the certifier may request a replacement construction to current standard.

The above information does not relate to pool fencing requirements.

*Information taken from Queensland Building and Construction Commission

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