Herries Street Retail Centre [2002] QBCCMCmr 466 (24 July 2002)

RA MeekREFERENCE: 0130-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	25219
Name of Scheme:	Herries Street Retail Centre
Address of Scheme:	180 Herries Street TOOWOOMBA QLD 4350

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

Walters Investments Pty Ltd, the owner of lot 2



RA MeekI hereby order that the occupier of lot 1, Automotive Parts Group Limited, trading as Repco Discount Auto Parts, shall immediately implement all action and steps necessary to ensure that delivery or supply vehicles servicing its business do not park in common property areas designated “KEEP CLEAR”, but rather are parked in the area specified as “LOADING ZONE”.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0130-2002
“Herries Street Retail Centre” CTS 25219

The applicant, Walters Investments Pty Ltd, the owner of lot 2, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

1. That the proprietors or occupiers of the lots or any of their servants, employees, agents, invitee’s or licensees, be prohibited from parking or standing any vehicles or other property on the common property, so as to prevent the passage of any other vehicles over the pathways, driveways and easements of the common property and the lots.

2. That the proprietors or occupiers of the lots or any of their servants, employees, agents, invitee’s or licensees, be restricted to parking or standing any vehicles in only their relevant designated carparks as provided for in by-law 42 of by-laws of the scheme.

3. That by-law 43.3 of the by-laws of the scheme be enforced so that the employees of proprietors or occupiers of the lots are prohibited from parking or standing their vehicles in any carparks or common property during usual business hours.

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 –

The Occupiers of lot 1, namely Repco Auto Parts ... allow their servants, employees, agents, invitee’s or licensees, to park motor vehicles on the common property and the applicant’s designated carparks, which obstructs the ingress and egress, to and from the applicants lot, resulting in loss of business. Repco has previously agreed to police the parking of vehicles on the common property and the designated carparks, however Repco has failed to abide by its part of the Agreement. ...

In support of the application, a number of photographs were included.

Automotive Parts Group (Repco), the occupier of lot 1 has responded in a submission. Repco states

It is agreed that the proprietors or occupiers of lots 1 and 2 be prohibited from parking or standing any vehicles or other property on the common property, so as to prevent the passage of any other vehicles over the pathways, driveways and easements of the common property save and accept that the proprietors or occupiers of lots 1 and 2 retain their existing rights to continue their respective business operations including the loading and unloading of goods within areas already set aside or designated for loading and unloading purposes.

In reply to the submission by Repco, the applicant has stated –

It is acknowledged that the proprietors or occupiers of lots 1 and 2 have agreed to prohibit parking or standing of vehicles on common property, however Repco has not adequately policed this agreement and still allows its agents, suppliers etc to park on common property mainly for loading and unloading purposes.

The applicant did acknowledge that the agreement that employees of Repco be prohibited from parking or standing vehicles in the car park or common property “has been followed satisfactorily”.

After having considered the material, I convened and conducted a teleconference with the parties (Walter Ceccato for Walter’s Investments Pty Ltd and Kevin Larkin for Repco) on Wednesday 24 July 2002, which continued for approximately 40 minutes.

Whilst the terms of the orders sought by the applicant are quite wide, it is clear from the applicant’s own material, and from the teleconference, that the real or continuing cause of the applicant’s concern is the parking or standing (whilst unloading) of the delivery vehicles of Repco or independent suppliers in the area of common property which is a thoroughfare and which is designated “KEEP CLEAR”.

Lot 1 (Repco) and lot 2 (Walters Investments Pty Ltd) face one another across an area of common property. Adjacent to lot 2, there are a number of common property parking bays allocated for the exclusive use of lot 2. There are no parking bays for lot 1 facing lot 2. Instead, running north / south, there are two bays marked “LOADING ZONE”. The roller door servicing Repco is located towards the south end of the lot facing lot 2, whereas the loading zone is located towards the north end of the lot facing lot 2. Between the roller door and the loading zone, there is an area of common property which is subject to the “KEEP CLEAR” requirement. It is essentially this area that the applicant’s complaint relates to.

The applicant alleges, and the photographic evidence confirms, that small to medium sized deliver trucks are parking or standing on the common property “KEEP CLEAR” area immediately adjacent to the roller door in order to unload stock to Repco.

Larkin suggested that the photographs were out of date, and that drivers of all delivery vehicles were now aware, through the placing of a notice, not to park on the “KEEP CLEAR” area, but rather to park in the loading zone area. When questioned on this aspect, the applicant acknowledged that the photographs were about 6 months old, but he believed that the practice was continuing largely as before.

It is impossible for me to know the absolute correctness of the current position. However I am satisfied that Repco, whilst of late having been more diligent in ensuring supply vehicles park in the loading zone and not in the “KEEP CLEAR” area, is not doing enough to enforce this requirement. This failure results in the obstruction of common property in breach of both the Act (section 129) and the by-laws. In the circumstances, I intend to order that Repco, as occupier of lot 1, shall immediately implement all action and steps necessary to ensure that delivery or supply vehicles servicing its business do not park in common property areas designated “KEEP CLEAR”, but rather are parked in the area specified as “LOADING ZONE”. I have ordered accordingly. n