Fiona Place [2002] QBCCMCmr 421 (28 June 2002)

DP GardinerREFERENCE: 0280-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	29206
Name of Scheme:	Fiona Place
Address of Scheme:	9 Fiona Street BIGGERA WATERS QLD 4216

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

Mrs Leonie Robyn Revell, the Owner(s) of lot 2



DP GardinerI hereby declare that parking of vehicles on common property is prohibited.

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STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0280-2002

“Fiona Place” CTS 29206

The applicant Mrs Leonie Robyn Revell, the Owner(s) of lot 2, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

The owner of unit 1, Mrs. Jan Peel , believes her visitors have a right to park in the single drive (i.e. common property) outside her garage. I want her visitors to move off the “common property”.


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, as a result of visitors to the respondents’ lot parking their vehicles on common property, access to her driveway is severely curtailed. The applicant has enclosed a photograph, a sketch and the by-laws to assist me in my determination of this dispute.

In her reply, the respondents says that, as the applicant also allowed visitors to park on common property and that there were only 2 lots in the scheme, that infrequent parking on common property was not a problem.

The respondent says that she has now had a “no parking” sign affixed to the front of her garage.

The by-laws applicable to this scheme relevantly provide:

Vehicles

2. (i)The occupier of a lot must not, without the body corporate’s written approval :-

(a)	park a vehicle, or allow a vehicle to stand, on the common property; or
(b)	permit an invitee to park a vehicle, or allow a vehicle to stand, on the common property.

There is no dispute that the respondent has allowed visitors to park on common property without the permission of the body corporate and that this has significantly interfered with the applicant’s right of access.

However, I accept that this transgression of the by-laws was an innocent mistake on the part of the respondent which I do not think will be repeated as evidenced by the actions of the respondent in fixing a “no parking” sign to her garage door.

In the result, the order that is appropriate is a declaration that parking of vehicles on common property is prohibited.

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