Roslyn Units [2001] QBCCMCmr 78 (13 February 2001)

P J HanlyREFERENCE: 0660-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	14591
Name of Scheme:	Roslyn Units
Address of Scheme:	46 Goodwin Terraces, BURLEIGH HEADS QLD 4220

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

P J HanlyI hereby order that Mrs K Grant, the occupier of Lot 8 must immediately:

1. Cease parking any vehicle upon any part of the common property unless first authorised in writing by the body corporate in accordance with the requirements of the relevant body corporate by-law regulating vehicle parking.

2. Ensure that her invitees do not behave in a manner likely to interfere with the peaceful enjoyment of the owner or occupier of another lot or of any person lawfully using common property in accordance with the requirements of the relevant body corporate by-law regulating the behaviour of invitees.2n

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0660-2000

“Roslyn Units” CTS 14591

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

That the occupier of unit 8, Mrs K Grant and/or her visitors cease parking in the common area in contravention of by-laws 2(1)(a) and (b)

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 Mrs Grant has ignored all requests regarding compliance with the parking by-law. It is stated that the practice of the unauthorised parking of vehicles on common property interferes unreasonably with the use of common property by the occupiers of other lots in the scheme. The applicant has provided photographs showing vehicles parked between the building and carports. The plan provided by the applicant shows that these areas are part of the common property.

A copy of the application was forwarded to Mrs Grant as the respondent. A response to the application has not been received from Mrs Grant.

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 Act empowers a body corporate to make by-laws for this purpose, and to regulate the use and enjoyment of lots included in the scheme. The by-laws which are applicable to a scheme are binding on lot owners and on lot occupiers.

“Roslyn Units” was registered as a building units plan on 2 September 1970. The body corporate has included with the application a copy of the Schedule 2 By-Laws of the current Act. A Standard Community Management Statement has been recorded for this scheme under section 285 of the Act. The general application of section 285 is that the by-laws in force for the scheme immediately before 13 July 2000 are taken to be the by-laws for the scheme. In the absence of a relevant by-law having been recorded by the Registrar of Titles, and under the transitional provisions of the Building Units and Group Titles Act 1980, the by-laws relating to the parking of motor vehicles and the behaviour of invitees for this scheme are as follows-

“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.

Behaviour of invitees. A proprietor or occupier of a lot shall take all reasonable steps to ensure that his invitees do not behave in a manner likely to interfere with the peaceful enjoyment of the proprietor or occupier of another lot or of any person lawfully using common property.”

I note that two by-laws have been recorded by the Registrar which continue to be applicable to this scheme. The first by-law relates to a grant of exclusive use to the owners of the eight lots for parking purposes. I assume that this by-law relates to the common property car spaces on the western side of the building as marked on the registered plan. The second by-law provides:

“That the Council shall have the power to take all steps that it may reasonably consider desirable to ensure that cars are parked in allotted Car Spaces on the common property and not elsewhere. In the exercise of the power hereby granted the Council may employ such Agents and Servants as it thinks fit.”

The “Vehicles” by-law provides that owners and occupiers of lots have no right 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 committee may also take reasonable steps to ensure that vehicles are only parked on allocated common property parking spaces.

Mrs Grant has not responded to the application. Therefore, I have to rely on the information provided by the body corporate and I am satisfied that the occupier of Lot 8 has parked a vehicle on the common property in contravention of the by-law. For this reason I have ordered that Mrs Grant must comply with the “Vehicles” by-law and cease parking a vehicle on the common property without the consent of the body corporate in accordance with this by-law.

The body corporate has also sought an order that Mrs Grant’s visitors cease parking on the common property. As stated above, in the absence of a submission from the respondent, I accept the information provided by the body corporate. Therefore, I have ordered that Mrs Grant must comply with the “Behaviour of invitees” by-law and ensure that her invitees do not interfere unreasonably with the peaceful enjoyment of any person lawfully using common property.