Leopard Lodge [2002] QBCCMCmr 49 (31 January 2002)

RA MeekREFERENCE: 0467-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	4169
Name of Scheme:	Leopard Lodge
Address of Scheme:	Leopard Street KANGAROO POINT QLD 4169

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

Janetta Ann Douglas, the owner of lot 3

RA MeekI hereby order that the application by Janetta Ann Douglas, the owner of lot 3 for an order to prohibit “long term parking” (in excess of 10 minutes) on that section of common property at “Leopard Lodge” needed by all tenants to access their designated parking bays, is dismissed.

I further order that the body corporate resolution to create a visitor parking space on a portion of common property immediately adjacent to lot 2 is valid PROVIDED THAT only one additional vehicle is to be parked on the common property at any one time (other than those parked on the exclusive use area allocated for lot 3), and further that care should be taken with parking in the visitor parking space to ensure that the vehicle parked there is aligned as closely with the eastern boundary wall of lot 2 as is reasonably possible.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0467-2001

“Leopard Lodge” CTS 4169

The applicant, Janetta Ann Douglas, the owner of lot 3, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

To prohibit “long term parking” (in excess of 10 minutes) on that section of common property at “Leopard Lodge” needed by all tenants to access their designated parking bays.

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)).

I do not intend to restate the applicant’s grounds in any detail, nor the contents of submissions which have been made by the owners of lots 1 and 2. I consider all parties are aware of the material in consequence of the application process. The applicant is opposed to a resolution purportedly resolved at an EGM of the body corporate held on 14 August 2001. The minutes of that meeting resolved in part that –

The motion to approve visitor car parking was passed with 2 votes for the motion and 1 vote against.

I note that the resolution does not identify the area proposed for visitor parking.

I undertook an inspection of the parcel on Wednesday 30 January 2002. The inspection was conducted in the presence of the owners of all lots, excepting Noelene Bentley, the co-owner of lot 1. At the inspection, a vehicle had been parked on the eastern side of the area of common property immediately adjacent to the rear of lot 2. It was indicated by the owner of lot 2 that this was the area selected for visitor car parking.

In resolving the create a visitor parking space on common property, the body corporate must comply with the requirements of section 114 of the Act, quote -

114 Body corporate’s duties about common property etc.
(1) The body corporate for a community titles scheme must—
(a) administer, manage and control the common property and body corporate assets reasonably and for the benefit of lot owners; and
(b) comply with the obligations with regard to common property and body corporate assets imposed under the regulation module applying to the scheme.

It is open for me to invalidate the resolution if I conclude that the decision to allow a visitor parking space is unreasonable in the circumstances, and not for the benefit of lot owners, which can include a minority of owners. However simply because one owner objects to a body corporate resolution does not mean that that resolution is not for the benefit of lot owners. It is a question to be determined on the circumstances of each application. It will depend to some extent on weighing the benefit accruing to certain owners from the decision versus the detriment to others, or another.

Lot 3 does not use any part of the lot for parking. Rather the open space at the rear of the lot is used as a garden courtyard area. This area is immediately adjacent to an area of common property which is allocated for the exclusive use of the owner of lot 3 for parking. The area of common property in question is the whole of the area between the rear of lot 3 and the rear boundary of the parcel. It has a width of 7.527 m and a length equivalent to the rear width of lot 3, namely 8.239 m. It is clear that the owner of lot 3 uses this area to park two vehicles, and I conclude that the proportions of the area are generous for this purpose. Moreover, the access to this area is almost as wide. At the entrance to the driveway, the width as shown on the plan is 7.04 m. I am satisfied that this width continues for the length of the common property driveway.

In terms of parking, I note that both lots 1 and 2 have one parking space within the lot for parking. Both these spaces were occupied by vehicles at the time of the inspection. At the rear of lot 3, there is an area adjacent to the common property exclusive use area which might be described as a courtyard area. The owner of lot 2 indicated at the inspection that this area should be available for parking. I do not agree that the owner of lot 3 should use the courtyard area for parking. The owner of lot 3 has the exclusive use area for parking.

The owner of lot 2 has raised various objections questioning the validity of the exclusive use by-law in favour of lot 3, both on the basis of correct procedure being followed and also that it is not in the interests of all owners. I indicated at the inspection that the by-law was recorded, and as such an adjudicator does not have power to overturn such by-law (see section 223(3)(i)) even if he / she considered it reasonable to do so. I further indicated that I would not be considering the question of whether the allocation of common property to lot 3 affected or was contrary to any town planning scheme. This is a matter for the local authority assuming an objection on this basis is possible.

I now turn to the question that I do intend to determine; namely whether the creation of one visitor car parking space in the space indicated at the inspection, is or is not a reasonable decision of the body corporate.

The applicant states that she and her husband had “purchased our unit on the understanding that we would have unrestricted access across common property into our two parking bays ...” (The owner of lot 2) “suggested I park on an angle so that I would not be “boxed in” and added there is “ample room for a competent driver” to “squeeze around any vehicle parked on common property”.

This is the only specific reference I can find to the alleged difficulty the owner of lot 3 will encounter in parking in her exclusive use area if the resolution is allowed to stand. The owner of lot 3 does attach a diagram showing “normal use of common property”. In this diagram the owner of lot 3 shows that her normal route for ingress and egress to the exclusive use car parking area for lot 3 is in a forward or reverse direction from the gate directly across common property or vice versa. It does not involve a reversal, followed by a forward direction as the applicant alleges is the case with lots 1 and 2, from their garage.

In the circumstances, I intend to dismiss the application and to allow the resolution to stand as valid. I am not satisfied that the inconvenience which the applicant alleges is such that the applicant will be denied reasonable use of the common property. I am satisfied that even with a vehicle parked in the area proposed for a visitor car parking space, the applicant’s access to her exclusive use area will not be impeded to such an extent that parking of two vehicles in that area becomes impossible, or even difficult. As I stated earlier, the proportions of the driveway and exclusive use common property parking area are generous in my view (particularly in their width) and are such that the creation of one additional car parking space on the common property immediately behind lot 2 will not detrimentally affect parking on the exclusive use area. It may mean that the owner of lot 3 is required to park vehicles, or one of them on a slight angle, but I conclude that there is sufficient room for this manoeuvre to be completed with relative ease.

However, my determination is subject to a number of reservations. I consider that the common property driveway is able to accommodate one additional car parked on it without interfering unreasonably with the use of the common property by the owner of lot 3. However, a second vehicle parked on the common property would alter this equation. I therefore consider that at any given time, there should only be three vehicles parked on common property, excluding those parked in the exclusive use area for lot 3.

I further consider that some care should be taken with parking in the visitor parking space to ensure that the vehicle parked there was aligned reasonably closely with the eastern boundary wall of lot 2. The parking of a vehicle in this location should not be used to interfere with the use of the common property by the owner of lot 3. In this regard, I remind all owners of the provisions of section 129 of the Act, headed “Nuisances” which provides –

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.
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