Kingston [2000] QBCCMCmr 129 (13 March 2000)

C G YOUNGREFERENCE: 0693-1999

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	11173
Name of Scheme:	Kingston
Address of Scheme:	1931 Gold Coast Highway BURLEIGH HEADS QLD 4218

TAKE NOTICE that pursuant to an application made under the abovementioned Act by the Body Corporate,

C G YOUNGI hereby order that the owner of Lot 10, Clint Gudenswager, and the other occupiers of the lot, Ken Gudenswager and his wife, must not park any vehicle upon the common property, including the designated visitor car spaces, unless first authorised in writing by the body corporate in accordance with the requirements of the relevant body corporate by-law regulating vehicle parking. 2n

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0693-1999

“Kingston” CTS 11173

The applicant body corporate has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”), quote -

That the occupants of Unit 10 be ordered to comply with By-law 2 of the Second Schedule.


Section 223(1) of the Act provides that an adjudicator may make an order that is just and equitable in the circumstances (including a declaratory order) to resolve a dispute, in the context of a community titles scheme, about –

(a) a claimed or anticipated contravention of the Act or the community management statement; or

(b) the exercise of rights or powers, or the performance of duties, under this Act or the community management statement; or

(c) a claimed or anticipated contravention of the terms, or the termination of, or the exercise of rights or powers under the terms of, or the performance of duties under the terms of an engagement contract or an authorisation contract.

An order may require a person to act, or prohibit a person from acting, in a way stated in the order (section 223(2)). An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 230(1)).

In the supporting grounds, the applicant has attached copies of the relevant pages of the minutes of the annual general meetings held on 28 November 1996, 29 November 1998 and, the most recent, 28 November 1999, all concerning parking in contravention of the by-laws. The latter minute authorises the current application. It also refers to several letters having been written to the occupants of Lot 10 concerning the parking breaches. The grounds to the application also state that 3 or 4 letters were written to the respondent, Mr Ken Gudenswager of Lot 10, instructing him and other occupants not to park on the common property. The respondent, it is alleged, continues the practice on a daily basis.

The chairperson of the body corporate, Graham Hardy, has confirmed that the respondent has been advised both verbally and in writing not to park on common property. He states that in recent months the respondent has parked his vehicle adjacent to Lot 10, for several hours, in such a position as to block access to two other garages and also interfere with access to three others. It is also alleged that he blocked the exit of a vehicle parked in the “Visitor Car Park”. At the recent annual general meeting in November 1999, all 7 owners, other than the owner of Lot 10, who attended were in favour of this application against the respondent.

Section 37 of the Act states that the common property is owned by the owners in the scheme as tenants in common. Section 114 then provides that the body corporate administers, manages and controls the common property, but must do so reasonably and for the benefit of owners. The legislation empowers a body corporate to make by-laws for this purpose, including by-laws to control the parking of motor vehicles on common property.

“Kingston” was registered as a building units plan on 17 February 1981 and under the then legislation, the Building Units and Group Titles Act 1980, the by-laws set out in the Third Schedule of that Act became the by-laws of the body corporate immediately upon registration. Under the 1988 transitional provisions of section 5(10) of that Act, and section 283 of the current Act, the by-law relating to the parking of motor vehicles for this body corporate is as follows –

2. Vehicles. Save where a by-law made pursuant to section 30(7) authorizes him so to do, a proprietor or occupier of a lot shall not park or stand any motor or other vehicle upon common property except with the consent in writing of the body corporate.

The exemption provision in the by-law is not relevant here as there is no by-law made under section 30(7) of the previous Act giving the owner of Lot 10 exclusive use of a particular part of the common property (though there is in respect of Lot 4).

Accordingly, the by-law provides that owners and tenants of lots have no authority to park vehicles on the common property without the prior approval of the body corporate. The committee, as the administrative arm of the body corporate, can give that consent in the name of the body corporate, though of course the body corporate in general meeting can, as the paramount body, overturn a committee’s decision.

The respondent occupier of Lot 10 has responded to an invitation by this office to address the application. He states that he works as a sales manager and often has to carry expensive items of catering equipment in the work vehicle with which he is supplied. For this reason he is loath to park the vehicle in the street. His wife’s vehicle occupies the unit garage – she also carrying expensive equipment in her vehicle. The owner, his son, parks his vehicle in the adjacent street. In the last year his wife’s car was stolen from outside the scheme, his own vehicle was broken into, and items had been stolen from his son’s parked vehicle.

He states that he has only parked his vehicle in the visitor’s car spaces during the off-season when, with no holiday tenants, the spaces are nearly always completely empty. He says he has not parked on the “premises”, presumably referring to the common property generally including the visitor car spaces, since the annual general meeting last December.

The respondent says he was able to rent another owner’s car space until the owner sold around a year ago. He has since contacted another three owners seeking to rent their vacant car spaces but without success.

I see the major issues as follows: the respondent and his family have three vehicles whereas the lot does not have sufficient car spaces available to accommodate them all; there are visitor car spaces that are largely unoccupied (particularly in the off-season) which the respondent would like to use to keep his vehicle and its contents safe from theft and damage; the body corporate, on the vote of a majority of owners, do not want the respondent (or his family members) to park anywhere on common property, including the visitor car spaces, and want the relevant by-law enforced against him.

My order is that the respondent, and his family, must stop parking on the common property for the following reasons.

While it may be true that the visitor car spaces may be vacant much, or most, of the time, these are designated visitor spaces required by the local government, the Gold Coast City Council, to be used for visitor’s parking. These spaces are a universal local government requirement for the registration of a community titles scheme, and remain a continuing requirement of the scheme. Even if the body corporate wanted to use these spaces for resident parking, or some other purpose, it is not able to do so.

The purpose of the requirement is to prevent traffic congestion and nuisance caused by visitors parking in the adjacent street. The respondent may argue that, by refusing consent for him to park in the visitor car spaces, the consequence is exactly what local government seeks to avoid, vehicles being parked in the adjacent street. However, the fallacy of this argument is that the respondent has himself created the problem by bringing onto the scheme vehicles in excess of the number that is catered for in the lot. Further, having placed himself in this position, the respondent cannot then expect the body corporate to bend its by-laws to accommodate or make allowances for a parking problem of his own making.

There is no question of the respondent, or any person other than a genuine visitor, being allowed to park in the designated visitor car spaces. As to parking on other areas of the common property, this is clearly regulated by the above by-law as a necessary control to prevent hazards and inconvenience to other users of the common property. It does not preclude a momentary use of the common property to, for example, drop off a passenger or unload groceries, as these are a reasonable use of the common property which will not either interfere with its use by others at all, or will only interfere for the moment. Parking beyond such momentary use raises the likelihood of inconvenience to others such as raised by the chairperson concerning the blocking of garages and vehicles in visitor spaces, or, in some situations, a hazard for others.

My order is therefore against the respondent and the co-occupiers of Lot 10, in regard to the parking on any part of common property including the visitor car spaces.