Bears [2000] QBCCMCmr 17 (19 January 2000)

RA MeekREFERENCE: 0610-1999

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	20590
Name of Scheme:	Bears
Address of Scheme:	14 Goldwyn Way STUDIO VILLAGE QLD 4210

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

Irene Violet Rees, the co-owner of lot 1

RA MeekI hereby order that Kenneth John Lavender, the occupier of lot 2, other occupiers of that lot, and any invitees of that lot, shall immediately cease and thereafter refrain from causing a nuisance to the owners of lot 1 in their use and enjoyment of the common property, by not parking any vehicle on the common property of the parcel, in particular on any part of the common property driveway, without first obtaining the authorisation of the body corporate in writing to any such future parking. n

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0610-1999

“Bears” CTS 20590

The applicant Irene Violet Rees, the co-owner of lot 1, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

That the occupant of unit 2 be required to stop visitors and himself from parking vehicles on common property.

Section 223(1) 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 ma contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 230(1)).

I do not intend to restate the applicant’s supporting grounds in any detail since I consider that these are known to the occupier of lot 2, Kenneth John Lavender (the respondent) via the submission process. Essentially the applicant states that after the respondent purchased a second vehicle, he began parking on the common property driveway in such a way as to block access to and from the garage of lot 1 by the applicant. In particular the applicant complains that the respondent’s garage is not use to house a vehicle, but for other purposes. That in an area which is part of the lot, the respondent parks a ute, to which she does not object. However, with the respondent now parking a second vehicle on common property behind the ute, access to her garage is either denied or made more difficult, due to there being a “dogleg” on the applicant’s side of the driveway. Further, the applicant suggests that the respondent is now encouraging or permitting his invitees to also park on the common property. The applicant concludes –

All we want is the right to be able to drive down the driveway without risk of damage to our car, and park it in our garage, then the right to drive out when we want, without having to ask someone next door to more their car.

The respondent has made a submission to the application. In that submission, he states –

I have no parking room but on the driveway behind my ute which is in front of garage. Mrs Rees states (1) there is dogleg on her side, there is one on my side to I have to watch out for the mailbox when reversing out; (2) that they have a remote control on roll-a-door which was put on only on 7-10-99; (3) the one wet day she finished soaking wet I was in front of my garage talking to her in the rain; (4) about the cars visiting there’s no three or five. My son parks his vehicle down the road on the other side of the road. Parking bays be put in space on footpath for visitors to park.

The standard by-laws, to which all owners / occupiers are subject, prohibit parking of vehicles on common property without written consent of the body corporate. Moreover, section 129 of the Act provides as follows –

Nuisances
129. 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.

The respondent has acknowledged parking on the common property in the manner alleged by the applicant; that is, on common property behind his ute. It is not a defence to this for the respondent to allege that there is no room to park except on the driveway behind his ute. Effectively, the respondent, as does the applicant, has two legal parking spots; their respective garages, and the space directly in front of such garages. If either party chooses to use either or both of these spaces for other purposes, this does not then entitle that party to park on common property, without having first obtained the authorisation in writing of the body corporate to this effect.

In the circumstances, I am satisfied that the respondent and other occupiers or invitees, are parking in contravention of the by-laws. Moreover, I am further satisfied that this is causing a nuisance to the applicant in the use and enjoyment of her lot and the common property. Given these findings, I intend to order that the respondent, other occupiers and their invitees, immediately cease and thereafter not park on common property of the scheme, without first obtaining the written authorisation of the body corporate for any future parking on common property.