Question: An owner would like to block the ventilation system in our basement car park to protect their car from salt spray. How should the committee respond?
I am the chair/secretary of our body corporate committee. In our basement car park, we have six ventilation louvres. An owner’s car space is directly under one of the vents. They own a Tesla car and have asked if they can block off the vents.
The building is beachside, and salt air is a factor. Alternatively, the owner suggested placing a protective roof over the vehicle. We are concerned that both suggestions interfere with the design of the ventilation system. Is this correct?
Answer: Obstructing the ventilation system louvres will prevent the system from operating as per the design specifications.
Ventilation systems, whether mechanical or non-mechanical, are designed for safety in car parks, particularly to remove toxic fumes such as carbon monoxide. Obstructing the louvres will prevent the system from operating as per the design specifications. It is also in breach of Building and Fire Safety Regulations.
An alternative solution should be investigated, and approval sought from the body corporate. Simple solutions may include over-the-counter products applied to the vehicle surface and components.
This post appears in the July 2025 edition of The QLD Strata Magazine.
Dean Potgieter
Seymour Consultants
E: dean@seymourconsultants.com.au
P: 07 5573 4011
We understand from the information that there are three key entities involved:
-Strata Scheme (Body Corporate)
-Strata Management Firm (Body Corporate Manager)
-Building Manager or Caretaker Service Provider
A strata scheme may, at times, be exempt from being a PCBU (Person Conducting a Business or Undertaking). Additionally, a strata management firm does not always organize and direct contractors, as some responsibilities may be delegated to the caretaker under their caretaker agreement with the Body Corporate.
In this scenario, the strata scheme has engaged the caretaker manager as an independent service provider, not as an employee. If the caretaker’s contract includes a duty to clean the lot front area and they delegate this task to a third-party cleaner, but a lot owner persistently abuses the cleaner and prevents them from working safely, we have the following questions:
-Is abusive behavior from the lot owner considered a workplace hazard?
-Who is responsible for ensuring a safe and hazard-free work environment for the cleaner and taking action to prevent abusive behavior from the lot owner?
—The caretaker service provider, who engaged the cleaner?
—The strata scheme (Body Corporate), which engaged the caretaker as an independent contractor?
-If the workplace is not hazard-free, can each party (the cleaner, caretaker, or strata scheme) refuse to work until the issue is resolved?
-Can the caretaker suspend their duties until the strata scheme resolves the issue and ensures a hazard-free environment?
-Or is it solely the caretaker’s responsibility to ensure a hazard-free workplace in this case?
Your insights on these matters would be greatly appreciated.
Re the forced removal of pot plants at the front door. LookUp#639 Mar28 2023.
There is an interesting Adjudication from 2021 confirming the right of an owner to have a door mat on common property at their front door. The owners had 2 independent WH&S Reports that the mats presented “No Hazard”…. see The Cosmopolitan Cotton Tree [2021] QBCCMCmr 480.
It is always useful to remember that it is the owners – not the body corporate, not the Committee – who own common property and as owners have a right to use it in a reasonable manner unless it unreasonably interferes with others’ use.
I understand that caretakers (or resident managers) are deemed to provide a Contract for Service and therefore under the WHS Act the Body Corporate is not considered to be a PCBU. However, if the strata property is a holiday resort and the resident managers are conducting a business of holiday letting, does the Body Corporate then become a PCBU? In our specific situation, we want the body corporate to cut down palm seed pods because when the seeds drop onto the grass, as we mow the lawns, the seeds spit out everywhere like little missiles and we get hurt and guests get hurt too. So far the body corporate has refused to do anything but we are concerned that this is an entirely preventable risk and would like to know if the BC has any WHS obligations.
Is palm tree pruning included in the duties outlined in your caretaker agreement, or is it a general clause such as “Maintain the Garden”? As the palm tree is a part of the garden, it may be the caretaker’s responsibility to prune its seed pods. If this is not the case, the caretaker should raise the issue with the Body Corporate and consider using BC funds to engage a third-party gardening service to maintain the palm tree regularly.
Hi Helinot,
Palm tree pruning is not included in the duties and we have raised the issue with the body corporate. They refuse to spend funds to engage a gardening service.
We have now engaged a solicitor to look into the situation.
Hi Jason,
How it goes. what is the outcome.
Hello, I am confused on whether a Body Corporate can be considered a PCBU under the WHS Act if the Body Corporate only engages a service provider who lives in his own lot of the complex to provide onsite caretaking and letting business, and the Body Corporate does not employ anyone else.
I have come across two different answers to this question that seem to contradict each other.
On one hand, I read from above that a Body Corporate will be a PCBU if any of the lots or common property are used for what could be considered non-residential purposes, which includes letting businesses conducted by owners under management rights business agreements.
On the other hand, I found information on the WorkSafe website suggesting that even if an individual owner conducts a business on the premises and is considered a PCBU under the WHS Act, it does not automatically make the Body Corporate a PCBU. Instead, whether or not the Body Corporate is a PCBU depends on the activities of the Body Corporate as a whole, rather than that of any individual owner.
Could you please clarify whether the Body Corporate can be regarded as a PCBU in the aforementioned scenario?
Thanks.
Hi hoboart
Todd Garsden, Mahoneys has responded to your comment in the article above.
We live in ### apartments Broadbeach it has four level car park which you cannot turn into without doing a three point turn and it’s worth coming out . We have all complained about it but it falls on deaf ears
Regards
James Edwards
Hi James
You may wish to consider this option: Submitting Motions to the Committee
We have an owner who has erected a plywood storage area in the parking garage on common property (not marked with his unit number) and no approval from BC. It is blocking the sprinkler system and from the safety report it has been asked to be removed/replaced as plywood is flammable. How do we make him comply and change/remove it and also once he moves off premises does it have to be dismantled? He is our caretaker/developer and is using storage area to store building supplies for other jobs and also flammable liquids.
Hi Carmel
We have a variety of Q&As on the site dealing with similar situations that should assist. You can find Q&As about taking over common property here: QLD: Q&A Renting, Selling or Reallocation – Exclusive Use of Common Property
And Q&As about applying for approval (and renovations without approval) here: QLD: Q&A Renovations, Altering Common Property and Changing the Appearance of the Lot
Building a wall between car spaces (ignoring the ownership and consent considerations) would generally be a breach of the planning approval. Car spaces are commonly 2.5 metres wide and garages are commonly a minimum of 3,0 metres wide. The rationale is that car spaces do require the airspace of the adjoining car space for the practical need to open a door and enter or exit a vehicle. A garage is limited to the actual space between the walls, hence the requirement for greater width. My personal view is that the smaller car space width implies a right of easement over the airspace to open the doors to enter/exit a vehicle. The implied easement right is for temporary use only and without that right, car spaces of 2.5 metres width should not exist and would be a nonsense.
Hi Neville
The following response has been provided by Todd Garsden, Mahoneys:
Planning requirements are one thing and may give the committee the reasonable basis to refuse to consent to an improvement. However, I do not agree (rightly or wrongly) that there is the right to use the airspace of a car park – whether through an “implied” easement or otherwise.
In Rivage Royale [2011] QBCCMCmr 541 the adjudicator relevantly provided:
[27] An exclusive use by-law gives the occupier of the lot to which the by-law attaches exclusive use to the rights and enjoyment of the common property. The rights of the lot owner or occupier are ‘exclusive’. That means the lot owner or occupier is entitled to use the common property to the exclusion of all others. The logical consequence of that right is that the lot owner or occupier is entitled to exclude others from the area…
[30] In my view it is irrelevant whether it is logical or convenient for other car park users to take a ‘short cut’ through the respondent’s car spaces. It is, moreover, irrelevant whether or not there is evidence that any person has caused actual damage, inconvenience or nuisance when traversing the exclusive use area. Those persons are simply not entitled to access the exclusive use area without the respondent’s permission.
What are our rights as renters in regards to storage in our car space? We want to put up a keter plastic shed as we are on short lease to store my husbands animal traps and stuff in but the committee won’t allow it even though the owner said yes.
Hi Tash
The following from Frank Higginson, Hynes Legal:
It depends on the by-law which grants the right to use the area. What does it allow or not allow? It will also depend on whether anyone else has installed something similar. If the by-law does not allow installation and no one else has any, then the committee may well be on solid legal ground to refuse permission.
I looked at the Queensland Fire Safety Management Tool which you have a link to on the article about car park storage.
It is really excellent. Is there something similar available for NSW?
We want to be clear about our responsibilities for fire safety in our building.
Hi Lorraine
We have received the following reply back from Peter Berney, Solutions In Engineering
The closest they have to the Qld one is here: Building Fire Safety