Burnitt Investments Pty Ltd v Body Corporate for the Tower Mill Motor Inn CTS 1918 & Ors [2009] QSC 427

SUPREME COURT OF QUEENSLAND CITATION: Burnitt Investments Pty Ltd v Body Corporate for the Tower Mill Motor Inn CTS 1918 & Ors [2009] QSC 427 PARTIES: BURNITT INVESTMENTS PTY LTD ACN 075 728 120 (applicant) v BODY CORPORATE FOR THE TOWER MILL MOTOR INN CTS 1918 (first respondent) SKAFOLA PTY LTD ACN 001 622 297 (second respondent) RONALD DEAN DAVY (third respondent) FILE NO: BS4088 of 2008 DIVISION: Trial Division PROCEEDING: Determination of separate questions DELIVERED ON: 23 December 2009 DELIVERED AT: Brisbane HEARING DATE: 21 September 2009 JUDGE: Mullins J ORDER: 1. No answer is given to question 1 2. The answer to question 2 is yes CATCHWORDS: REAL PROPERTY – STRATA TITLE – MANAGEMENT AND CONTROL – RIGHTS AND OBLIGATIONS OF PROPRIETORS – where proprietor of lots used as bar and restaurant on ground floor of a motel undertook renovations of ground floor and basement that affected the use of the common property – whether applicant can rely on rights granted by by-laws to justify the improvements constructed on the common property – whether applicant can rely on implied rights to use the common property pursuant to s 167 Body Corporate and Community Management Act 1997 (Q) Body Corporate and Community Management Act 1997, s 167 Re Ciriello & Ciriello (unreported, Sup Ct (Qld), 316 of 1994, 28 February 2006), considered Lin v The Owners–Strata Plan No 50276 [2004] NSWSC 88, considered Platt v Ciriello [1998] 2 Qd R 417, followed -- 1 of 13 -- 2 COUNSEL: B A Laurie for the applicant S W Sheaffe for the second and third respondents SOLICITORS: Simmonds Crowley & Galvin for the applicant Georgeson & Company for the second and third respondents [1] This proceeding was commenced by originating application in which the applicant seeks a declaration as to its right to use the common property of the Tower Mill Motor Inn CTS 1918 in connection with the hotel restaurant business conducted by it at the Tower Mill Motor Inn (the motor inn). Directions were given in relation to pleadings. A statement of claim was filed on behalf of the applicant on 20 August 2008. Surveyor Conics Brisbane Pty Ltd (Conics) was appointed as an expert for the purpose of determining the area and extent of the common property encroached upon by improvements that the applicant had caused to be constructed and Conics prepared the survey report dated 27 February 2009 (the survey report). The survey report identifies 27 regions of possible encroachment and deals in a separate category with pipes located in the basement. [2] The first respondent advised the court that it would abide by the order of the court and was excused from further participation in the proceeding. The defences of the second and third respondents (referred to collectively as the respondents) were filed on 26 August 2009. [3] The parties formulated the following questions which were ordered on 26 August 2009 to be determined by the court as separate issues: “1. Does By-law 14.2 of the by-laws of the Tower Mill Motor Inn Community Titles Scheme 1918 confer on the Applicant the right to use the regions listed in column 1 of Annexure A for the use or uses specified in column 2 of schedule A (which are references to the plans of the agreed joint surveyor reference 23646-1 dated 16 January 2009, 23646-2 dated 16 January 2009 and 23646-3A dated 16 January 2009). 2. Does By-law 14.3 & 14.5 of the by-laws of the Tower Mill Motor Inn Community Titles Scheme 1918 confer on the Applicant the right to use regions 7, 9, 10, 14, 15, 20, 21, 25 and 26 set out in column 1 of Annexure A for the use or uses specified in column 2 of schedule A (which are references to the plans of the agreed joint surveyor reference 23646-1 dated 16 January 2009, 23646-2 dated 16 January 2009 and 23646-3A dated 16 January 2009).” [4] For the purpose of the determination of the questions, an agreed bundle of documents was filed (document 33). It incorporated the questions for determination, the originating application, the pleadings, the further and better particulars of the pleadings, Building Units Plan 13764 (the BUP), the caretaking agreement, the letting agreement, the Community Management Statement 1918 (the CMS) registered on 15 February 2000, a standard residential lease for the building, a standard carpark lease for the building, and the survey report. The agreed bundle included copies of the three survey plans prepared by Conics for the purpose of the -- 2 of 13 -- 3 survey report. They were of reduced size. The actual survey plans numbered 23646-1 (for the basement level), 23646-2 (for pipe and cable location on the basement level) and 23646-3A (for the ground floor) were tendered as exhibit 6. No affidavit or oral evidence was relied on by either party in relation to the determination of the questions. The by-laws [5] By-laws 14.2, 14.3 and 14.5 which are found in the CMS provide: “14.2 Common Property With the written consent of Greenbridge as sole proprietor which is hereby acknowledged, the Body Corporate confers on the proprietor or occupier for the time being of Lot 4 special privileges in respect of the whole of the Common Property to use same in connection with the business carried on pursuant to the letting agreement or other agreements relating to the letting of Lots and the Body Corporate shall continue to be responsible to carry out its duties pursuant to the Act in respect of the Common Property at its own expense. 14.3 Licensed Bar and Restaurant With the written consent of Greenbridge as sole proprietor which is hereby acknowledged, the proprietor or occupier for the time being of Lot 29 shall be entitled to use such Lot for the purposes of a licensed restaurant and function room and shall be entitled to supply upon the parcel and by way of room service and mini bar service to Lots alcohol to such persons as permitted from time to time pursuant to any licence granted to such owner or granted to such owner or occupier under the Liquor Act. For the purposes aforesaid, the proprietor or occupier for the time being of Lot 29 and their patrons, guests and invitees shall have an unimpeded right of passage over the Common Property with the written consent of Greenbridge as sole proprietor, which is hereby acknowledged, the Body Corporate confers on the proprietor or occupier of the time being of Lot 29 exclusive use in respect of the Common Property indicated on the attached plan, by hatching and Schedule E to use same as a licensed bar and restaurant and in connection with the hotel management business carried on, pursuant to the caretaking agreement, letting agreement and other agreements relating to the letting of Lots. … 14.5 Other Exclusive Use Areas With the written consent of Greenbridge as sole proprietor, which is hereby acknowledged, the Body Corporate confers: (1) on the proprietors of Lots on Level J, the right to the exclusive use in respect of the whole of balconies, which pursuant to this by-law may at the expense of the Body Corporate be constructed out from Level J as set out in Schedule E and the attached plans; and (2) on the proprietors or occupier for the time being of Lot 4, the right to the exclusive use of the car parks shown in the attached plan and Schedule E.” -- 3 of 13 -- 4 [6] Schedule E identifies the exclusive use area allocated to Lot 4 for carparking in the basement (areas “A” to “J”) and on the ground floor (area”K”). Schedule E also identifies the area of the ground floor (area “L”) that is the subject of the exclusive use allocation to Lot 29 for use as a licensed bar and restaurant. Admitted facts [7] It is common ground that the applicant is the owner of Lots 4, 7 to 9, 17, 22 to 25, 28 to 30, 34, 38, 71, 86, 96, 99 and 103 in BUP13764 which are various units in the motor inn. It is also common ground that Transmetro Corporation Limited (Transmetro) is the owner of Lots 5, 6, 33, 36, 57, 62, 73, 77 to 79, 95, 102, 106 and 107 in BUP13764 and that Transmetro is the lessee of all the lots in the building, except for Lots 59, 76, 89 and 104 (exhibit 1) and one of the lots owned by the applicant, namely Lot 103 (exhibit 2). It follows that means Transmetro is the lessee of Lots 29 and 30. It is admitted on the pleadings, however, that the applicant commenced to operate the licensed restaurant known as the “Mill Hotel” and has commenced to use certain areas of common property on the ground floor for that purpose. That seems to be reflected by the assertion in paragraph 20 of the submissions of Mr Laurie of counsel on behalf of the applicant that the applicant is the proprietor and occupier of Lots 29 and 30. The nature of its occupation rights and how it obtains them from Transmetro is not made clear on the material. (This was confirmed by the applicant’s reliance on the admission in the pleadings that the applicant operates the restaurant business from Lot 29 and the submissions at Transcript 1-39). [8] The second respondent owns Lots 12, 13, 15, 31 and 97 and the third respondent owns Lot 20. (The lots owned by the respondents are leased to Transmetro.) [9] The caretaking and letting agreements that were entered into by the body corporate with Transmetro in 1994 relate to the caretaking of the common property and the appointment of Transmetro as the letting agent for providing letting services to owners of units in the motor inn. The caretaking agreement requires Transmetro to perform the tasks and duties consistent with the position of caretaker of a hotel using the employees of the body corporate employed for the purpose of assisting Transmetro in carrying out its caretaking duties. The caretaker effectively assumes the responsibility on a daily basis for controlling and maintaining the common property and the observance of the by-laws. [10] There are two leases included in the agreed documents (at 110-136) which are typical examples of a residential lease in favour of Transmetro of a unit in the motor inn and a carparking lease in favour of Transmetro of a carpark. [11] Clause 11.1 of each of the residential leases provides: “The Owner shall have no right to occupy the Suite or any other suite within Tower Mill Motor Inn during the term or any renewed term of this Agreement.” [12] Clause 11.1 of each of the carparking leases is in similar terms: “The Owner shall have no right to occupy the Carpark or any other Carpark within Tower Mill Motor Inn during the term or any renewed term of this Agreement.” -- 4 of 13 -- 5 [13] The motor inn has levels A to K where level A is the basement. Lot 4 is unique in that it is situated on each of levels A to J. The largest portion of Lot 4 is in the basement and it is largely used for storage space. It is clear from by-law 14.2 that Lot 4 was intended to facilitate the conduct of the business carried on pursuant to the letting agreement relating to the motor inn. [14] From July 2005 until sometime in 2006 the applicant performed renovations to parts of the motor inn at its own cost and at the completion of the renovations commenced to operate a licensed restaurant business known as the “Mill Hotel” from Lots 29 and 30. Under the BUP Lots 29 and 30 occupy most of the area of the ground floor. The remainder of the floor comprises part of Lot 4 (with an area of 16 m²) and common property. The renovations were to the entirety of Lots 29 and 30 and the part of Lot 4 and areas of common property on the ground floor of the motor inn and certain areas of the basement, including the demolition of the car ramp which had led from the ground floor to the basement level. The applicant acknowledges in paragraph 3 of the statement of claim that part of the renovations were constructed on common property without the permission or authority of the first respondent. Issues [15] Although the respondents take issue with the applicant’s conduct in undertaking the renovations without the permission of the body corporate, the questions that have been ordered to be determined as separate issues concern the rights conferred on the applicant by by-laws 14.2, 14.3 and 14.5 and are not concerned with the applicant’s actions in carrying out the works that have affected the use made of the common property. [16] The applicant in paragraph 6 of the statement of claim alleges that by virtue of the special privileges conferred on it as owner of Lot 4 to use all the common property in connection with the business carried on pursuant to the letting agreement which includes under clause 1.1.6(d) of the letting agreement “sales of food, household goods and beverages, including liquor”, it is entitled to use the areas of common property on which the renovations were constructed by the applicant. The respondents in their defences deny the allegation that by virtue of any special privileges conferred on the applicant or otherwise, it is entitled to make any use it chooses of the common property and allege that the applicant’s rights in relation to the common property are restricted by s 167 of the Body Corporate and Community Management Act 1997 (the Act). [17] Section 167 of the Act provides: “167 Nuisances The occupier of a lot included in a community titles scheme must not use, or permit the use of, the lot or the common property in a way that— (a) causes a nuisance or hazard; or (b) interferes unreasonably with the use or enjoyment of another lot included in the scheme; or (c) interferes unreasonably with the use or enjoyment of the common property by a person who is lawfully on the common property.” -- 5 of 13 -- 6 Relevant law [18] The forerunner of s 167 of the Act was s 51(1)(c) of the Building Units and Group Titles Act 1980 (BUGTA) which provided that a proprietor, mortgagee in possession, lessee or occupier of a lot should not: “(c) use or enjoy the common property in such a manner or for such a purpose as to interfere unreasonably with the use or enjoyment of the common property by the occupier of any other lot (whether that person is a proprietor or not) or by any other person entitled to the use and enjoyment of the common property.” The effect of that provision was considered by Derrington J in Re Ciriello & Ciriello (unreported, Sup Ct (Qld), 316 of 1994, 28 February 1996) (Ciriello). [19] The issue in Ciriello was whether signs on the building and obstructions on the footpath outside shops contained in the building (where the signs and obstructions were on common property) which amounted to the exercise of exclusive possession by the owners or occupiers of some of the lots in the building were in breach of the BUGTA. There was no grant of exclusive use under a by-law in respect of the relevant building units plan. Derrington J described the criteria to be applied in determining the lawfulness of the use made by the party that had put the signs and obstructions in place as follows: “The measure prescribed by the statute itself is simply whether the use or enjoyment of the common property is had in such a manner or for such a purpose as to interfere unreasonably with the use or enjoyment of it by the occupiers of other lots or any other person entitled to use and enjoy it. Accordingly, absent any by-law on the point, if a unit-holder were exercising exclusive possession of a part of the common property that did not transgress that standard, then no prohibition of it appears in the Act; but if there is a by-law granting exclusive possession, then an aggrieved party could not later challenge it on this ground. It should be remembered that simply by standing in common property a person would be, albeit temporarily, exercising exclusive possession of the space that he occupies; so the mere fact of exclusive possession cannot be the test.” [20] The decision of Derrington J was upheld by majority on appeal in Platt v Ciriello [1998] 2 Qd R 417 (Platt). McPherson JA (with whom Ambrose J agreed) noted at 427 that although s 51(1)(c) of the BUGTA did not expressly confer a right on a proprietor (or those claiming through a proprietor) to use the common property in a manner or for a purpose that did not unreasonably interfere with the exercise of similar rights by others, it was implicit in that provision that it had that effect, as the provision assumed the existence of a right to use and enjoy the common property, provided it did not interfere unreasonably with the right of others to do likewise. McPherson JA observed at 428 that the entitlement under s 51(1)(c) was qualified to the extent that the body corporate had validly exercised its power under s 30(7)(a) of making a by-law conferring exclusive use and enjoyment of the common property on a specified proprietor. McPherson JA concluded that the question for determination in the dispute was “whether the respondents or their tenants have, in relation to the matters complained of, used the common property in a manner or for a purpose that unreasonably interferes with use or enjoyment of it by the appellants -- 6 of 13 -- 7 or other persons entitled to use it.” Ambrose J agreed with the reasons given by McPherson JA and also drew an analogy with the exercise in common of grants of right way over the same servient tenement by the owners of a number of dominant tenements. Pincus JA dissented on whether any right was conferred by s 51(1)(c). After noting the number of provisions in the BUGTA dealing with the body corporate’s powers with respect to the common property, Pincus JA stated at 420- 421: “It appears to me, with respect, somewhat improbable that the legislature would have intended (but not troubled to express the intention) that some or all of the powers of the body corporate in respect, of the common property, thus elaborately specified, should be over-ridden by an unstated requirement that nothing done should prevent any use of the common property which does not unreasonably interfere with its use by others. Such a restriction on the body corporate's authority appears too important a matter to have been left to mere implication.” [21] Despite the difference of judicial opinion expressed in Platt about the application of s 51(1)(c) of the BUGTA, the Act which is the successor to the BUGTA did not alter the statutory framework for determining what uses of the common property by the occupier of a lot were in breach of the Act. Section 167 of the Act maintains the touchstone that the occupier of a lot must not use the common property in a way that interferes unreasonably with the use or enjoyment of the common property by a person who is lawfully on the common property. I consider that the approach of the majority in Platt remains authoritative for the interpretation and application of s 167 of the Act. I note that Gzell J expressed a preference for the approach taken by Pincus JA in considering the application of the equivalent New South Wales provisions where the owners corporation had refused to allow the owner of lots to connect improvements in the shops fitted out in the lots to the exhaust ventilation system and the drains and waste lines that were common property: Lin v The Owners–Strata Plan No 50276 [2004] NSWSC 88. The issue in that case, however, was concerned with the exercise by the owners corporation of its power to manage and control the use of the common property. Threshold issue for question 1 [22] On the basis of the pleadings and the material in the agreed documents, it is the applicant’s conduct of the licensed restaurant from Lots 29 and 30 (preceded by the extensive renovations to those premises which affected the common property) that has generated the dispute with the respondents. Just as the applicant relies on the constraints imposed on the rights of the respondents by the agreements held by Transmetro, the same must apply to the applicant. By law 14.2 confers rights on the proprietor or occupier for the time being of Lot 4. Although the applicant is the owner of Lot 4, it has leased Lot 4 to Transmetro which is the occupier of Lot 4 to the exclusion of the applicant, subject to any other arrangement between Transmetro and the applicant. The existence of the lease of Lot 4 to Transmetro is pleaded in paragraph 10 of the statement of claim and confirmed by exhibit 1. [23] The applicant suggests by paragraph 6 of the statement of claim the applicant has the benefit of by-law 14.2, because the applicant provides the services that enable Transmetro to fulfil its obligation under clause 1.1.6(d) of the letting agreement of providing the ancillary service to its letting service of sales of food, household -- 7 of 13 -- 8 goods and beverages, including liquor. The difficulty with that argument is that there is no evidence of the arrangement between Transmetro and the applicant in relation to what occupation rights are conferred by Transmetro on the applicant in respect of Lot 4 in connection with clause 1.1.6(d) of the letting agreement. [24] The applicant claimed that the form of the defences did not allow the respondents to allege that the applicant was not entitled to rely on by-law 14.2. Irrespective of the pleading point, the material before the court does not enable an answer to be given in respect of question 1, because it is unclear what occupation rights have been conferred on the applicant to Lot 4 by Transmetro. The applicant cannot rely on its rights as the proprietor of Lot 4 as those rights are exercisable by Transmetro under its lease of Lot 4. [25] Because the substance of the survey report was dealt with in the submissions made by both parties, I will still address the issues raised in respect of the regions identified in the survey report. In practical terms, there may be few potential occupiers who have any rights in this building to use and enjoy the common property. It is still appropriate to consider whether their rights have been interfered with. Region 1 [26] Regions 1 to 8 are located on level A of the BUP which is the basement. Apart from the large portion of Lot 4 in the south west corner which comprises an area of 141.5m², the basement is used mainly for carparking. [27] Region 1 is the very small area occupied by a fire pump, steel column (C10), steel base plate (BP5), electrical timers and switch (E2) and a electrical box (E3) that is shown in photo 5. According to the survey report, it is likely that the fire pump is situated where it was originally installed in the building. In light of that and the nature of the improvements, Mr Sheaffe of counsel on behalf of the respondents conceded (at Transcript 1-23) that there was no dispute about region 1. Region 2 [28] Region 2 is slightly north of region 1 and covers the area occupied by the block wall that is shown in photo 6. The observations in the survey report highlight the lack of precision that necessarily applied to some aspects of the task undertaken by Conics. It is explained in paragraph 3 of the survey report (at 142) that under BUGTA a building units plan was required to show only an approximate floor area of each lot, which means that some of the areas shown on the BUP were not of high accuracy and some areas had been rounded to the nearest square metre. The part of Lot 4 on level A was shown on the BUP as having an area of 145m² (at 49). When Conics recalculated the area, they measured it at 141.5m². They observed that if the centre line of the new wall is adopted as being in the place of the original wall, the area then calculates to be 143.4m² which is much closer to the original area. The observation is then made (at 153) that “Without any additional evidence as to the true position of the original wall it is inconclusive as to whether the current wall is original or new.” The survey report does not establish that there is any encroachment onto common property in region 2. Region 3 -- 8 of 13 -- 9 [29] Region 3 covers an area of common property that is bounded by a block wall and roller door that were constructed in a way to take a “kink” out of the boundary between Lot 4 and the common property. The block wall and roller door now enclose an area of 3.2m². In view of the relatively minor area involved, and even allowing for the permanent nature of the enclosure, I could not conclude that such encroachment onto the common property interferes unreasonably with the use of enjoyment of the common property by a person who is lawfully on the common property within the meaning of s 167(c) of the Act. Region 4 [30] The survey report focuses on the benefit to Lot 4 obtained by the removal of the down ramp through Lot 4. The area of the roof of Lot 4 affected by the change is 12.9m². The usable area of Lot 4 has been increased by volume, as a result of the removal of the ramp. As the process of answering question 1 is concerned with the region, as it now exists, region 4 does not involve any encroachment onto common property. Region 5 [31] Region 5 is made up of three concrete beams and a concrete column that have been constructed where the original ramp existed. As the area of the common property is otherwise intact, it is difficult to conclude that the existence of beams and a column interfere unreasonably with the use or enjoyment of that part of the common property. Region 6 [32] Region 6 is made up of four new steel beams which are bolted to original columns and support the new structure created by eliminating the ramp. Although the beams are situated in the common property, they do not affect the practical use and enjoyment of the common property. Region 6A [33] Region 6A covers a set of stairs which rise from level A to level B on the western side of the building. They provide access to the new deck on level B. They comprise an area of 4.5m². The observation made in the survey report is that it could not be determined if the stairs were original or new. The submissions of the respondents accept that the stairs are not new, but rely on the fact that the stairs have effectively been appropriated by the applicant, as they benefit the applicant by leading to region 16. That is not the test to apply for determining whether there has been an improvement made to region 6 that interferes with the use or enjoyment of region 6 which still gives access to the common property on the ground floor, as shown on plan 23646-3A. As the stairs are not new, no issue of encroachment by the applicant arises. Region 7 [34] Region 7 is made up of 10 new steel beams to support the new covered deck area constructed in airspace on the ground floor that is described in the survey report as region 19. Region 7 also includes five new columns in the common property in the basement and four new steel base plates. A substantial part of the area underneath -- 9 of 13 -- 10 the beams is the subject of exclusive use of carparking granted to the occupier of Lot 4. Although parts of the beams encroach on common property, the enjoyment and use of the common property in the basement has not been interfered with unreasonably by these beams and associated columns and base plates. Region 8 [35] Region 8 concerns two carparks, Lots 20 and 21, in respect of which timber stud walls and sheeting have partially enclosed those carparks and continue onto common property. As question 1 raises the issue of encroachment onto common property, region 8 is limited to two small areas that are enclosed as a result of the walls continuing onto the common property. One area to the north of Lot 20 has an area of 0.5m² and the other area to the south of Lot 21 has an area of 1.5m². The total area involved of 2m² is relatively minor in comparison to the area of common property in the basement and I could not conclude that there is unreasonable interference with the use and enjoyment of the common property, as a result of the creation of this storage area. Region 8 also covers an electricity meter located on the south east corner of Lot 22. Its protrusion into the common property could not amount to unreasonable interference with the enjoyment of the common property. Regions 9, 10, 12, 14, 15, 20, 21 and 24 [36] Each of the improvements identified in regions 9, 10, 12, 14, 15, 20, 21 and 24 have been made on either Lot 4, Lot 30 or exclusive use areas. As they concern improvements that are not on the balance of the balance of the common property, on any view they are not appropriately the subject of an inquiry about the application of by-law 14.2 which confers rights in respect of the common property only, that must be subject to the grants of exclusive use otherwise made in by-laws 14.3 and 14.5. Region 11 [37] Region 11 is an area of common property measuring 40.1m² that is occupied by a bar area that includes bar facilities, fridges, counters, shelving, ATM, lounge, sinks and drains and associated pipe work and fittings. It is in a prominent position that abuts the entry to the motor inn on the ground floor. Not only is the area of region 11 of significant size in comparison with the remaining common property on the ground floor that fronts Wickham Terrace, the impediments to its use and enjoyment by a person entitled to use the common property and the likelihood of its use for that purpose from its prominent position means that the use made by the applicant of region 11 amounts to unreasonable interference with the use and enjoyment of the common property by those who are otherwise entitled to make use of it as common property. Region 13 [38] As region 13 is an area of common property on the ground floor that is now used by Transmetro for office and reception purposes, it is not appropriately the subject of question 1 which is directed at the use made of the region the applicant. Region 16 -- 10 of 13 -- 11 [39] Region 16 is a new outdoor deck extension to the function room conducted by the applicant on the western side of the ground floor. The deck comprises common property and parts of Lots 29 and 30. The area of common property involved in the extension is 38.5m². That common property encircled existing parts of Lots 29 and 30 that were on the western side of the ground floor. It is a matter of degree. The use of that common property was always curtailed by the location of parts of Lots 29 and 30. In view of that, it is difficult to conclude that there has been unreasonable interference with the use or enjoyment of the common property in region 16. Region 17 [40] Region 17 is made up of two minor structures: a “Tooheys New” sign affixed to the outside of the northern wall and the satellite dish fixed to the new deck structure that is region 18. Those minor improvements to a commercial building could not interfere unreasonably with the enjoyment of the common property by a person who was lawfully on the common property. They fall squarely within the type of improvement that was used by McPherson JA in Platt at 429 to illustrate what would not amount to unreasonable interference with enjoyment of the common property of a commercial complex. Region 18 [41] Region 18 comprises a new modestly sized steel deck built on the northern side of the ground floor of the building. It incorporates some balustrade and an exhaust duct and houses air conditioners. It has been built where there was previously airspace. It has created a usable part of the building, where there was nothing previously. The very fact that it now exists is not sufficient to enable a conclusion to be reached that it interferes unreasonably with the enjoyment of the common property by a person who is lawfully on the common property. Region 19 [42] Region 19 contains a large new deck occupying 86.3m² on the eastern side of the building abutting Lot 29. Photos 22 to 24 show the extensive nature of this area. It is used as an alfresco area and contains balustrade and canopy over the entire area. It was airspace prior to the construction. It is so extensive and such a significant proportion of the common property that was otherwise available as space on the ground floor that its existence now must amount to unreasonable interference with the enjoyment of the common property. Regions 22 and 23 [43] Regions 22 and 23 are situated in the middle of the ground floor. Because of the design of the floor plan, these regions incorporate irregularly shaped areas of common property. Region 22 comprises an area of hallway of 4.9m² which leads to a surveillance equipment room that contains 1.6m². Region 23 also comprises an area of hallway of 2.1m² and an original toilet block that has been renovated and increased in size and is now an area of 8.7m². The total area of common property occupied in region 22 is 6.5m² and the total area of common property occupied in region 23 is 10.8m². Because of the original use of the space for a toilet, the location of these spaces abutting Lot 29, the irregular shape and the relatively -- 11 of 13 -- 12 modest total area involved in regions 22 and 23, I could not conclude that there is unreasonable interference with the enjoyment of the common property. Region 25 [44] Region 25 involved part of a steel fence that occupied an area of 0.1m² of common property. The respondents’ counsel did not press that encroachment (at Transcript 1-65). Region 26 [45] Region 26 covers the primary sign for the motor inn and the Mill Hotel that is situated on the common property that abuts Wickham Terrace. It is the type of sign for a commercial building that could not amount to unreasonable interference with the common property. Pipes [46] The survey report lists every pipe that is attached to the ceiling or along walls, beams and columns or on the ground and a cable track along the ceiling. Conics could not determine which pipes were original or which were new. Irrespective, the pipes are located in such a way that there is not unreasonable interference with the common property. Conclusion in relation to question 1 [47] Although I have dealt with the submissions made on behalf of the parties that addressed the regions that were the subject of question 1, I am not prepared to answer the question that is posed, because the material does not disclose that the applicant had occupation rights to Lot 4 which is the threshold for determining the application of by-law 14.2. If I were able to answer the question, it would not be in the applicant’s favour in respect of regions 11 and 19. Question 2 [48] Question arises because improvements made in the regions identified in question 2 impact on parts of the common property that are the subject of exclusive use by- laws, namely by-laws 14.3 and 14.5. [49] For the purpose of answering question 2 it is also relevant, where appropriate, to consider whether the applicant has undertaken improvements to that part of the common property which is the subject of the exclusive use by-laws which interfere unreasonably with the use or enjoyment of the common property by a person who is lawfully on the common property, as contemplated by s 167(c) of the Act. This applies to the use made of regions 7 and 26 which I have dealt with above and found in the applicant’s favour. [50] Regions 9, 10, 14 and 15 are not used by the applicant, except in the sense that the applicant has allowed those areas to be used by others. For example, region 10 comprises a disabled access ramp on the exclusive use area “K” that is allocated to Lot 29. No doubt the applicant obtains the benefit of that access, even though it is obviously used by all who access the motor inn. As question 2 is phrased in terms of whether the applicant has the right to use those regions in the manner in which they are actually being used, the by-laws do not preclude the applicant from making -- 12 of 13 -- 13 regions 9, 10, 14 and 15 available for use in the manner which has been identified in the survey report. [51] The improvements to regions 20, 21 and 25 are for the purpose of the bar/restaurant operation and are within the boundaries of exclusive use area “K” and the use by the applicant is enabled by the by-laws. [52] It follows that question 2 should be answered yes. Orders [53] The questions ordered to be determined by the court as separate issues, should be answered as follows: 1. No answer is given to question 1. 2. The answer to question 2 is yes. -- 13 of 13 --