Helensvale Links South [2002] QBCCMCmr 200 (16 April 2002)

RA MeekREFERENCE: 0742-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	6120
Name of Scheme:	Helensvale Links South
Address of Scheme:	24 Stretton Drive HELENSVALE QLD 4212

TAKE NOTICE that pursuant to an application made under the abovementioned Act by the Body Corporate for Helensvale Links South

RA MeekI hereby order that the occupier of the lot 5, Mrs N Edgley, shall –

• immediately cease parking, and

• take all necessary steps to ensure that her invitees do not park

on the area of common property immediately behind the garage or carport for lot 5, in contravention of the by-laws and section 129 of the Act.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0742-2001

“Helensvale Links South” CTS 6120

The applicant, the Body Corporate for Helensvale Links South, 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 5 refrain from parking vehicles on the common property driveway.

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 is one of two similar applications involving this scheme. The other application is number 0762 of 2001, which seeks an order against the occupiers of lot 6 regarding parking.

In the supporting grounds, the body corporate states that the committee has endeavoured for a considerable time to “have the occupiers of units 5 and 6 comply with the by-laws in respect of the parking of vehicles on the common property driveway”. The body corporate further states –

Because of the configuration of units 5, 6 and 7 ... when vehicles are parked in front of the garage and carport of these units, the owner of unit 7 suffers from additional noise and fumes created from the starting of vehicles from unit 6, and difficulty from driving out of the complex because of the vehicle parked in front of unit 7. ...

Appropriate correspondence has been written to the owners and the occupiers of units ... 5 and 6 during the above periods.

In addition to the grounds, there is a plan attached which shows the configuration of lots 5, 6 and 7. Lots 5 and 6 face lot 7 and vice versa. The alleged parking for lot 6 in contravention of the by-laws is in the area directly behind the current carport and adjoining garage for lot 6. This area is directly in front of lot 7.

In the case of both applications, notwithstanding that a notice inviting submissions was sent to both occupiers, no submission in response to the application has been received from either of the two respondents.

The by-laws alleged to have been contravened are by-laws 2 and 6 headed Vehicles and Behaviour of Invitees respectively.

By-law 2 relevantly states that the owner or occupier of a lot must not, without the body corporate’s written approval, park or allow a vehicle to stand on the common property, or permit an invitee to park or allow a vehicle to stand on the common property.

By-law 6 relevantly provides that an owner or occupier of a lot must take all reasonable steps to ensure that their invitees do not behave in a way likely to interfere with the peaceful enjoyment of the owner or occupier of another lot or a person lawfully using common property.

Section 53 of the Act provides that a community management statement (which includes the by-laws for the scheme) is binding on “each person who is the occupier of a lot included in the scheme and each person who is the occupier of common property”. Ignorance of the by-laws is not an excuse.

Further, section 129 of the Act, headed Nuisances provides as follows –

129 Nuisances
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.

As I noted, no submission has been received in response to the application from the occupant of lot 6, Mrs N Edgley. In the circumstances, I can only assume from this that the occupier does not deny the statements contained in the application. Her opportunity to do so would have been to have made a submission to this effect. No other submission was received in respect of this application. However, at least two of the three submissions received for application 0762 appear to be generic and not specific to the alleged parking of the occupiers of lot 6 and their visitors. These submissions are supportive of the application.

Lot 5 is adjacent to lot 4, and the submission of the owners of lot 4 states that –

Tenants are not as considerate as one would expect with the running of engines in confined spaces as we are all in close proximity to each other. ... help us ease the noise and pollution for the harmony of others – owners and tenants. ...

In the circumstances, it is the responsibility of the occupier to ensure that both the occupiers, and her invitees, do so comply. I am further satisfied that the occupier is causing a nuisance to the owners of lot 4 specifically, and other owners and occupiers generally, in her use of the common property in terms of section 129 of the Act. I intend to make an order that both the occupier of the lot 5, Mrs Edgley, does so comply, and further that she take all necessary steps to ensure that her invitees do not park on the area of common property immediately behind the garage or carport for lot 5. Parking for visitors is in the Visitor car parking provided within the complex (if any).


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