Ashmore Mews [2001] QBCCMCmr 32 (23 January 2001)

P G DanielsREFERENCE: 0591-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	20627
Name of Scheme:	Ashmore Mews
Address of Scheme:	143 Cotlew Street ASHMORE QLD 4214

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

P G DanielsI hereby order that the owner of lot 5, Alexander Cher, must comply with By-law 2 “Vehicles” of the Scheme’s By-laws.

I further order that the owner of lot 5, Alexander Cher, must not permit a visitor to lot 5 to park on the common property other than in a visitor’s car space.1n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0591-2000

“Ashmore Mews” CTS 20627

The applicant, the Body Corporate for Ashmore Mews, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) against the owner of lot 5, Alexander Cher:

The parking of private vehicle off common property and into allocated garage space and keep removed

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

This application relates to allegations that the owner of lot 5, Alexander Cher, is parking on the common property and allowing visitors to park on the common property in front of his garages.

The applicant’s grounds are as follows:

“Since Mr Cher and his family moved into the complex in January of 1999 the parking arrangements of his private vehicles has been a bone of contention. Mr Cher insisted on parking both his private vehicles on common property in front of his allocated double garage space contravening By Law No 2 and also made access for Lot 4 in and out of their garages extremely difficult. This parking problem both from the common property side of things to the difficult access side was the discussion of many a heated argument between the former proprietor of Lot 4 and Mr Cher. Mr Cher maintained that he could not fit his cars in his allocated garages at that point of time without an inconvenience to themselves but maybe able to in the future after some renovations.

At a subsequent Body Corporate meeting Mr Cher was given the option of putting at least one car in an allocated garage space and he was given temporary permission to park the second car in the visitors carpark (common property and in very close proximity to his Lot) until such time as Mr Cher could sought out his second garage space. Mr Cher did conform to this option however Mr Cher has not attempted to solve his second garaging problem and continues to park his second car on common property ie visitors carparking. The Body Corporate has been more than patient with Mr Cher solving his garaging problems ie some 20 months.

At a meeting of the Body Corporate dated 25 June 2000 a motion was put forward and accepted by all in attendance including Mr Cher that all private vehicles be housed in each property’s allocated double garage spaces and off of the common property freeing up the visitor’s car parking spaces for their purpose. Lots 1, 2, 3 and 4 house their vehicles in their allocated garages.

At the next Body Corporate Meeting dated 27 August 2000 Mr Cher still had not conformed to the motion and when asked what he intended to do, Mr Cher just shrugged his shoulders and could not or would not contribute to the conversation. Mr Cher was given 1 month to rectify the problem (Continuing Contravention of By Law Notice – copy enclosed). This time has well and truly expired.

To this date Mr Cher has not conformed to the motion.

Mr Cher has, on a regular basis visitors to the complex and he allows them to park their vehicles on common property outside of his garages when there are visitor carparking spaces available (in very close proximity to his Lot) which once again contravenes the By Laws and also causes access concerns for Lot 4. Enclosed is a photograph of one such recent instance.”

The Notice of Continuing Contravention of a Body Corporate By-law is attached to the application. It states that there has been a contravention of by-law 2.

The photograph referred to above was also attached to the application. It shows two cars parked in front of the garages of lot 5.

In the above grounds the Body Corporate alleges that Mr Cher continues to park one of his vehicles in a visitors car parking space and his visitors park in front of his garages on the common property.

Submissions have been received from Mr Craig and Mr Allen. They support the Body Corporate application. In particular, Mr Craig, the owner of lot 4, states, “Parking in front of allocated garage spaces makes it impossible for me to reverse out of my garages as they are at 90º to those spaces.”

Mr Cher has made the following submission in respect of the dispute:

“I would like to inform you that I never insisted on parking both my vehicles on common property in front of my allocated double garages because it contravened Law No 2.

Cars that you can see on the photo attached as evidence were parked there on the 29^th of September no longer than 5 minutes for reloading heavy staff.”

This scheme was registered under the previous Building Units and Group Titles Act 1980 (BUGTA). The By-laws for the scheme are those provided in schedule 3 of BUGTA: sections 283 and 285 of the Act.

By-law 2 is the relevant by-law in respect of parking on the common property. It provides as follows:

Vehicles

2. Save where a by-law made pursuant to section 30(7) authorises a

proprietor or occupier so to do, the 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.

In addition to By-law 2, 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 Body Corporate has alleged that Mr Cher is parking a car on the common property. The Body Corporate had previously allowed him to park in a visitor’s space but has subsequently revoked that consent. Additionally, it is alleged that Mr Cher allows his visitors to park in front of his garages on the common property.

Mr Cher does not answer these allegations in his submission. He states that, “I would like to inform you that I never insisted on parking both my vehicles on common property in front of my allocated double garages because it contravened Law No 2.” The Body Corporate has not made an allegation to that effect. He then states, “Cars that you can see on the photo attached as evidence were parked there on the 29^th of September no longer than 5 minutes for reloading heavy staff.” However he does not deny that there have been other occasions when he has parked on the common property or allowed a visitor to park on the common property in front of his garages.

I find that Mr Cher has contravened By-law 2. Additionally, I find that he has contravened section 129 of the Act by allowing visitors to park on the common property in front of his garages.

I will make orders that Mr Cher comply with By-law 2 and not permit visitors to his lot to park on the common property other than in a visitor’s car space.