Question: Without notice or my approval, the body corporate has moved my storage unit and installed cabling across my titled lot car park. Can I demand the removal of the cabling?
While I was not at the premises, the body corporate moved a freestanding over bonnet storage unit in my title lot car park, drilled into the ceiling and installed cabled electricity across the 2.4 metres width of the car park. The electrical work was required for new lighting in the common property BBQ area. Does the BC have the right to do this without requesting my approval or even notifying me of the work?
Can I demand the removal of the cabling? The conduit prevents me from attaching anything to the ceiling in future.
Answer: A body corporate failing to give notice would be a ‘no no’.
One of the things about living in community title, is that it is a ‘community’ of ‘titles’. Each Kerrigan Family has their own Castle, but when you stick a bunch of castles in close proximity to each other, there has to be a bit of give and take, lest war breaks out; somewhat like the Sengoku Period in Feudal Japan (which I am reading about at present)… but I digress. This question is very specific, and as always, I’d point out that specific questions require legal advice from a properly engaged lawyer.
General questions, on the other hand, can be answered generally… and for fun! So, generally speaking, a body corporate wishing to run utility infrastructure (defined term in the Body Corporate and Community Management Act 1997) through a lot can do so by exercising the body corporate’s rights under a statutory easement for utility services and infrastructure (s115P of the Land Title Act 1994) against the lot/s and in favour of the common property. The catch is that the exercise of the rights under the easement must not unreasonably interfere with the use and enjoyment of the lot/s against which the easement lies.
I’ll come back to the ‘unreasonable’ bit in a minute because under s68 of the BCCM Act, there are also two conditions on how the easement rights may be exercised. The first condition is a repeat of the ‘unreasonable interference test’, but it also extends to include ‘no unreasonable prevention’ of the use and enjoyment of a lot or the common property. The second condition is that before a body corporate exercises the easement rights, it must give reasonable notice to the lot owner except in the case of an emergency.
So, a body corporate failing to give notice would be a ‘no no’ (albeit, as you say that two word phrase, the Palamino is already bolting over the Prairie). Likewise, if newly installed electrical cabling came at the cost of a lot owner not being able to use their lot for an existing lawful purpose, such as for storage, then there might be a case that the easement did not permit the cabling to be installed.
Adjudicators considering such disputes do, however, take a fairly pragmatic approach – a community titles scheme is not a time capsule stuck in amber. Technologies change, infrastructure demands change, and lot owners who cannot make out, with coherence and weight, how the given utility infrastructure will prevent or unreasonably interfere with the use and enjoyment of their lot, will usually have a hard time of it. For example, losing the ability to park your car and have your over bonnet storage at the same time should be enough. Losing the potential future right to hang up some ceiling mobiles on your car park ceiling, well… an Adjudicator might just see that as just a little precious. When balancing that against being able to see the BBQ well enough to avoid burning your ‘snags, or even better, making sure that chicken kebab is actually cooked, though, I’d say that public health is likely to win out.
This post appears in Strata News #658.
Michael Kleinschmidt
Bugden Allen Graham Lawyers
E: michael.kleinschmidt@bagl.com.au
P: 07 5406 1280
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