Oasis [2001] QBCCMCmr 338 (20 June 2001)

R A MeekREFERENCE: 0281-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	20870
Name of Scheme:	Oasis
Address of Scheme:	100 Morala Avenue RUNAWAY BAY QLD 4216

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

the Body Corporate


R A MeekI hereby order that the occupier of Lot 28, Mr Paul Considine, must immediately remove any vehicle parked on the common property (including the visitor car spaces) and is thereafter prohibited from parking in the visitor car spaces, or upon any other area of common property, unless he obtains the prior written approval of the body corporate committee to do so.2n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0281-2001

“Oasis” CTS 20870

The applicant, the Body Corporate for Oasis, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

“That the resident, Paul Considine of Villa 28, be ordered to cease parking within Visitors Parking bays on Common Property in accordance with Body Corporate by-law 14.”

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 body corporate states that Mr Considine, the occupier of villa 28, has been asked on a number of occasions both verbally and in writing to cease parking within the visitors parking bays. A Notice of Continuing Contravention of a Body Corporate By-Law (hereinafter referred to as a Contravention Notice) was issued to Mr Considine on 5 January 2001. After a committee meeting on 7 March 2001 where the committee resolved to make application to this office concerning the continued contravention of parking by-laws by residents of Lots 27, 28 and 24, Mr Considine was also informed, by letter of 20 March 2001 from the Body Corporate Manager, that the Committee would be required to make application to this office.

The body corporate further states that Mr Considine is continuing to park his vehicle in the visitors parking bays and the committee are finding enforcement of the no parking on common property by-law difficult where other residents, seeing Mr Considine’s continued use of such bays, feel that they have a similar right of usage.

Mr Considine was invited to make a submission in response to the application but none has been forthcoming. I have therefore based my decision on the information supplied by the body corporate.

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.

A new community management statement (CMS) was recorded for “Oasis” on 15 May 2000. The relevant by-law recorded in Schedule C of that CMS is by-law 14 and it provides as follows:

14.	NO PARKING

An owner or occupier of a lot shall not park or stand any motor vehicle or other vehicle upon areas set aside for visitor car parking or upon any other part of the common property except with the consent in writing of the Body Corporate committee.

Accordingly, the by-law provides that owners and tenants of lots have no authority to park vehicles in visitors parking bays or upon any other part of the common property without the written approval of the body corporate committee. Designated visitor car parking 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. There is therefore no question of Mr Considine, 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.

The body corporate has alleged that Mr Considine has breached, and is continuing to breach, this by-law, despite verbal and written requests, including the issue of a Contravention Notice, urging him to cease this practice. That allegation has not been refuted by Mr Considine. I therefore order that Mr Considine immediately remove any vehicle parked on the common property (including the visitor car spaces) and is thereafter prohibited from parking in the visitor car spaces, or upon any other area of common property, unless he obtains the prior written approval of the body corporate committee to do so.


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