Day-to-day issues feature in new legislation review underway

An increasing number of Queenslanders will have to face the decision of new lifestyle living conditions as the new state parliament reviews the legislation affecting bodies corporate and community management issues.

While the original legislation is nearly 50 years-old, the requirement for all Queensland legislation to be reviewed every five years ensures that legislation and the regulations supporting the act remains relevant to the current and future operations. Thus the legislation review of the current Body Corporate and Community Management Act is a dynamic process that has been underway for the last 12 months and has had the benefit of assessing the outcomes of a similar exercise undertaken by the New South Wales government and its findings.

The release of the first of three options papers by the specialist independent consulting team from the Queensland University of Technology provides an interesting insight into the day to day issues of density living as it effects both holiday and tourist accommodation as well as permanent and long term householders in high rise and community complexes. The exposure of the key issues are, in fact, very fundamental and reflect the imposition of harmonious relationships on a daily basis as the major priorities in successful community living. The study paper currently under review focuses clearly on what we would all see as issues that have been already tested in many instances in our work places and in community facilities such as restaurants, hotels and sporting a recreational venues- including our beaches, parks and streets.

These are the issues of the day-to-day problems associated with vehicle parking, pets, smoking and noise and overcrowding.

These are not new neighborhood issues – but they provide real challenges for the legislators – who have to provide the solid and sound regulatory guidelines to ensure safe administration and operations in a fair an understanding manner.

We at ARAMA are pleased that in the Options Paper there was a clear focus by the QUT reform team to have their recommendations to bodies corporate that they must “act reasonably” at all times in anything it does in administrating its body corporate assets and its common property for the benefit of the owners of the lots. However the administration of the “reasonableness test” is the key challenge.

The provision is a well meaning statement and direction but it presents a immense range of problems for the body corporate because any party in dispute brings into play the issue of needing an adjudicator in the Commissioner’s Office to supply a subjective test which would be done in hindsight and the body corporate can have a review process with real certainty so that it can enforce its bylaws

It is apparent that there needs to be a mechanism that allows bodies corporate to act in real time so that it can enforce its bylaws, or even make bylaws, that do not have to pass the subjective tests of reasonableness. While the Options Paper acknowledges that a body corporate is effectively a fourth tier of government in that the government of the community is covered by a management statement that is in the hands of the body corporate. Owners are looking to certainty of government within a body corporate which includes certainty of bylaws.

We at ARAMA as the onsite managers dealing with the immediacy of some issues, believe that new legislation must break through and ensure that a body corporate can enforce its bylaws or even make bylaws, that it does not have to fear the subjective test of reasonableness to resolve what is a critical.

This also impacts on the administration of policing powers for the act – in those circumstances issued at the time, including to tow vehicles, police non-smoking laws and enforce other laws such as those involving pets – which will bring in an element of policing.

There are other important issues which ARAMA believes should now be addressed in the new legislation and that involves the need to review the future of the scheme and options that can be considered by the owners and the decision masking process. We have suggested that a super resolution be considered particularly with issues of scheme termination when a resolution without dissent on the matter may be prevented by just one voter. A super resolution could address other issues, for example the ability of a body corporate to procure common utility services such as electricity at better rates per allotment

As with previous legislation reviews, the submissions will be available for review when the legislation is introduced into the parliament and referred the new relevant parliamentary committee. For review and further hearings.

ARAMA has made it clear in its submission that it is opposed to resident managers having any powers in regards to the issuing of “on the spot” fines.

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