Suva Court [2002] QBCCMCmr 419 (27 June 2002)

P J HANLYREFERENCE: 0261-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	13620
Name of Scheme:	Suva Court
Address of Scheme:	29 Second Avenue, SANDGATE QLD 4017

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

Delma Krause, the owner of lot 4



I hereby order that the application for an order to overturn the decision of the body corporate made on 1 March 2002 to allow the occupiers of lot 1 to park a Toyota Hi-Ace vehicle on common property at certain specified times, is dismissed.

I further order that the application for an order to have the freestanding wall adjacent to lot 1 removed to allow parking in the back yard, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0261-2002

“Suva Court” CTS 13620

The applicant, Delma Joy Krause, the owner of lot 4, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

To overturn parking permission (for special vehicle needed to transport wheelchair) given on 1^st March 2002.

Request permission to remove freestanding wall and have vehicle park in back yard.

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 applicant states that heat glare and noise and emissions are adversely affecting her living conditions. By way of further explanation, the applicant states that when the vehicle is started, it fills her unit with diesel emissions and when the doors are opened to load and unload the wheelchair it is too noisy. The applicant also alleges that the vehicle is parked at times for which no approval has been given, and it is also not parked against the side fence as instructed. In relation to the freestanding wall, the applicant claims that it gives intruders access to her lot and should not have been built.

The body corporate committee was invited to respond to the application. A submission was received from the body corporate manager, on behalf of the committee. A submission was also received from the owner of lot 1.

I have also perused the minutes of the meetings at which the issue of parking was considered.

The applicant replied to the submission of the owner of lot 1. In her reply, she provided two further photographs, showing, in her view, why the “current situation” would be stressful for anyone living in her lot. One of the photographs depicted a small white sedan, registration number 979-DCG, parked against the wire fence and close to the freestanding wall. The other photograph depicted a Hi-Ace vehicle standing near the rear end of the small white sedan. The applicant advised a member of the Commissioner’s staff that she does not know who owns the white sedan, but that it arrives “with the chappie who drives Mr Jones” and that Mrs Jones uses it during the week. The applicant also provided an article which apparently appeared in the Sunday Mail on 19 May 2001 in relation to noise levels in suburbia, and another article from an unidentified source on the alleged effects of diesel fumes on children’s lungs.
I do not accept the applicant’s assertions that the heat and glare from the Hi-Ace vehicle are adversely affecting her living conditions. The vehicle is permitted to park from 5.00pm until 9.00am on Friday, Saturday and Sunday. Even in summer, and with the foliage that is present in the corner where the vehicle is parked, the likelihood of heat and glare being emitted from the roof of the Hi-Ace during the hours in question is, in my opinion, remote.

I also do not accept the applicant’s assertions in relation to fuel emissions. Her lot is situated on the first floor of this building. The emission from the vehicle in question would not, in my view, be any greater than from any other vehicle being driven along the common property driveway. The fact that the Hi-Ace is a diesel-fuelled vehicle should not preclude its normal use on the common property driveway. The owner of lot 1 has stated in her submission that the engine of the vehicle is turned off immediately it comes to a halt on the driveway, and that it is not turned on again until the vehicle is to be driven again. In addition, the owner of lot 1 has stated that the vehicle is serviced regularly. I am not persuaded by the unsourced article provided by the applicant, which, in any event, relates to a study on children’s lungs.

Finally, I do not accept the applicant’s assertions in relation to the noise allegedly made by the opening and closing of the doors of the Hi-Ace when the wheelchair is being loaded or unloaded. In my view, there is a certain amount of noise which must be accepted as being part of everyday living. I do not regard the noise of car doors periodically opening and closing as falling into the same category as lawnmowers, barking dogs, air-conditioning units and loud television sets.

In all of the circumstances, I consider the complaints of the applicant to be petty and unfounded. I am not prepared to overturn the decision of the body corporate, which I consider to have been made advisedly, and after taking the applicant’s concerns into account, as stated by the body corporate manager in his submission on behalf of the body corporate.

I am also not prepared to grant the applicant’s request that the freestanding wall be demolished to make way for the van to be parked in the back yard. Firstly, the wall has obviously been in place for many years, if not from the time that the building was first constructed, and as such the applicant, in my view, should have considered any concerns that she may have about intruders gaining access to her lot via the wall when she purchased her lot last year. Secondly, I consider the back yard in its present state to be an entirely unsatisfactory place for the van to be parked, particularly if there had been rain, because moving a wheelchair over wet grass would be extremely difficult.

I have therefore dismissed the application in its entirety.


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