Island Court [2002] QBCCMCmr 12 (10 January 2002)

RA MeekREFERENCE: 0717-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	19957
Name of Scheme:	Island Court
Address of Scheme:	43 Island Street CLEVELAND QLD 4163

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Antun Rozumberski, the owner of lot 3

RA MeekI hereby order that the occupier of lot 4 shall immediately cease and thereafter not park or stand their motor vehicle on any part of the common property adjacent to lot 4, and shall not resume such parking unless and until the owner of lot 4, Gisela Antonia Hobelt, has first sought and obtained the authorisation of the body corporate to such parking in accordance with by-law 2.

I further order that the owner of lot 4, Gisela Antonia Hobelt, shall not permit any invitee of her lot to park or stand their motor vehicle on any part of the common property adjacent to lot 4, unless and until the owner of lot 4, has first sought and obtained the authorisation of the body corporate to such parking in accordance with by-law 2. n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0717-2001

“Island Court” CTS 19957

The applicant, Antun Rozumberski, the owner of lot 3, has sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), relating to parking on common property by the occupier and invitee of lot 4.

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)).

In the supporting grounds, the applicant states that –

It is accepted by majority of owners of the units No. 1, No. 2, No. 3, that there is no parking of vehicles permitted within the common grounds. The only place to park vehicles of non-permanent residents is visitor’s car park or kerb on street. If a non-permanent visitor parks his / her vehicle in garage, the permanent resident has no right to park his / her car on common ground. Common ground shall be keep free all the time for use by all residents.

I arranged for a mediation conference between the parties to be held on 10 January 2002, in an endeavour to resolve this dispute through mediation. The mediation was attended by the applicant, Jill Brown, the owner of lot 2, and a Mr W Franz, the appointed agent of Gisela Antonia Hobelt, the owner of lot 4. Ms Hobelt did not attend the proposed mediation. Mr Franz is described in the appointment as the neighbour of Ms Hobelt.

In view of the non-attendance of Ms Hobelt, I determined not to proceed with the mediation conference and indicated this to all parties present. So as not to waste the time of the parties in attending however, I indicated that I proposed to proceed with a meeting (the meeting) for the purposes of investigating the application with the view to making an order to resolve the dispute (see section 220 of the Act). All parties present accepted this approach.
The application was made in consequence of an incident which occurred on the common property related to parking. An invitee of the applicant’s lot 3, who had the permission of the owner of lot 3 to park his vehicle in the garage for that lot was endeavouring to so park his vehicle in that garage. An invitee of the owner of lot 4, who’s vehicle, a Holden, was parked partly on lot 4 and partly on common property, was endeavouring to reverse from where he was parking. It is alleged, and generally agreed at the meeting, that a confrontation then ensued between the two drivers. All parties present at the meeting stated that they did not observe the confrontation. The driver of the Holden vehicle parked on common property then is alleged to have gone to the entrance of lot 3 and acted in a verbally aggressive manner towards the female occupier of that lot, the applicant’s mother-in-law.

It must be said at this point that I have no power to make an order against the driver of the Holden, an invitee of the owner of lot 4, even if I was minded to do so, which I am not. It is not so much the incident which occurred which I intend to focus on but rather the fact of parking on common property by certain persons associated with lot 4.

At the meeting, I was shown a photo of two vehicles parked on the area in question which is in part lot 4 and in part common property. The area which is part of lot 4 is not sufficiently wide to accommodate two vehicles parked length ways, causing vehicles which are parked there to protrude onto common property.

At the meeting, Mr Franz states that as the parking was mostly on part of lot 4 and only on common property to a limited extent, that the parking was acceptable and an as of right use of the common property. I disagreed with this view. I stated that it would be dependent on the by-laws. The by-laws applying to this scheme are the standard by-laws applying under the previous legislation, the Building Units and Group Titles Act 1980. The standard by-law relating to parking on common property provides as follows –

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 vehicle upon common property except with the consent in writing of the body corporate.

The reference to section 30(7) is a reference to an exclusive use by-law. There are no exclusive use by-laws recorded in the case of this body corporate. Consequently, for an owner or occupier to park or stand a motor vehicle on part of the common property, they must firstly obtain the consent in writing of the body corporate.

There are two vehicles associated with lot 4 which are currently being parked on the common property at the rear of the scheme. The first, a utility type vehicle, belongs to an occupier of lot 4. The second, the Holden vehicle, apparently belongs to the daughter of the owner of lot 4. In any event, the owner or owners of these vehicles are invitees of the owner of lot 4. It is the responsibility of the owner of lot 4 to ensure that the conduct of her invitees is such as to not interfere with the peaceful enjoyment of the owner or occupier of another lot or of any person lawfully using the common property (see by-law 6).

The scheme has four garages, one for each of the four lots, all located at the rear of the scheme, and two visitor car parking spaces, both of which are located at the front of the parcel. I was further informed at the meeting that there was ample street parking for vehicles of occupiers or invitees, as the scheme was adjacent to a park. In any event, whether there is sufficient street parking is not the issue. The fact of the matter is that neither the occupier of lot 4, nor any invitee of the owner of lot 4, has authority to park or stand their motor vehicle on any part of the common property (excepting in the case of the invitee, a visitor car parking space) unless and until, the owner of lot 4 has obtained authorisation of the body corporate for such parking.

In the circumstances of this application, I intend to order that the parking on common property of both vehicles associated with lot 4 cease immediately, and shall not resume unless and until the owner of lot 4 has first sought and obtained the authorisation of the body corporate to such parking in accordance with by-law 2. I have ordered accordingly.

I further indicate that the body corporate is able to give authorisation to park on common property subject to conditions it considers reasonable. For example, the authorisation might be given on the basis that it can be withdrawn if the person to whom permission is given causes a nuisance or interference to other owners or occupiers in connection with the parking of the vehicle in question.

n