In what circumstances would an Adjudicator order an occupier to “not permit “ something. More importantly, how do you “not permit” something if you wish to comply with the order?
The QLD BCCM Act provides that occupiers must “not permit” either interference with support, shelter, utility infrastructure or utility services, or the use of a lot or common property that causes a nuisance or hazard to others. (section 165 – section 167)
The Act’s default By-Laws in Schedule 4 provide that an occupier must “not permit” invitees either to park vehicles on common property or to bring animals onto the lot or common property.
And it is very common to see this admonishment in By-Laws prepared by strata lawyers for bodies corporate.
However, the Schedule 5 Adjudicators’ Orders do not mention “not permit”.
In what circumstances would an Adjudicator order an occupier to “not permit “ something. More importantly, how do you “not permit” something if you wish to comply with the order?
The words "not permit" is to extend the reach of the applicability of the by-law.
The words "not permit" is to extend the reach of the applicability of the by-law. For example, if a visitor was attending the scheme, it is the occupier's responsibility to ensure that their visitors do not cause a nuisance. If the occupier permitted their visitor to cause a nuisance, the occupier would breach that by-law.
This is because a by-law cannot be enforced against a visitor.
Another example is that if an occupier is playing loud stereo music and causing a nuisance – it stops the occupier arguing that they are not personally causing the nuisance, their music player was.
It is also important to remember that the orders in schedule 5 of the Act are not exhaustive. They are examples only.
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Todd is an experienced property lawyer who heads up Mahoneys body corporate team.
Todd specialises in body corporate law and predominantly acts for bodies corporate, body corporate managers and lot owners on all matters affecting bodies corporate.
Todd is an active member of the Strata Community Association (Qld). In 2019 he was appointed to the Strata Community Association (Qld) legislation committee and assists in making submissions on behalf of the Strata Community Association (Qld) on issues such as legislative reform in body corporate law.
As Todd is also a body corporate committee member, he understands the day to day requirements of administering a body corporate.
Todd has a focus on achieving practical and commercial results for his clients and understands the market in which bodies corporate operate within.
Todd also provides body corporate managers, and other industry stakeholders, with presentations and training on matters affecting the body corporate industry.
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