Raintree Glen [2002] QBCCMCmr 55 (1 February 2002)

RA MeekREFERENCE: 0531-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	19967
Name of Scheme:	Raintree Glen
Address of Scheme:	27 Raintree Glen RUNAWAY BAY QLD 4216

TAKE NOTICE that pursuant to an application made under the abovementioned Act by the Body Corporate for Raintree Glen

RA MeekI hereby order that Ms Lee Perlitz, the occupier of lot 43, cease parking in the common property visitor parking areas unless and until she has first obtained the consent in writing of the body corporate committee for such parking.

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STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0531-2001

“Raintree Glen” CTS 19967

The applicant, the Body Corporate for Raintree Glen, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

That the resident of villa 43 be ordered to comply with the body corporate by-laws and no longer utilise the visitors parking facilities.

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 –

Lee Perlitz is using the visitors parking facilities for parking her vehicle on a regular basis.

Ms Perlitz has made a submission in response to the application. Ms Perlitz states that “the issue of residents parking in the visitor’s car park has been raised on a previous occasion” and that at the time Ms Perlitz was referred to the by-law and advised that –

... the term “common property” was vague and ambiguous and as there was no definition of what this term included provided anywhere within the body corporate by-laws, it was subject to individual interpretation. One could ... choose to believe it include the visitors parking area or not – there was no clear cut ruling. ...

Ms Perlitz concludes that –

... In the absence of any clear and indisputable ruling on this issue I have continued to intermittently park my car there and have now, some 12 months later, received another letter regarding a matter that was never resolved the first time round.

The concept of common property is not “vague and ambiguous” as apparently was suggested to Ms Perlitz. Common property, as stated in section 11 of the Act is “other land ... that is not included in a lot”. In any scheme, there are lots (2 or more) and common property. All those areas of the scheme which are not part of a lot as delineated by the plan, are common property. In addition, by virtue of the extended definition of common property in section 21 of the Act, even certain parts of a lot (eg utility infrastructure) are considered part of the common property.

It is the duty of the body corporate to administer, manage and control common property, reasonably and for the benefit or owners. One of the ways a body corporate does this is by enforcing its by-laws. The by-laws include the one which Ms Perlitz was referred to; namely by-law 3 dealing with parking on common property. The visitor parking areas in this scheme would form part of the common property. As such, the terms of the by-law applies to parking in the visitor parking area, and all owners and occupiers of lots have an obligation to comply with by-laws.

Ms Perlitz has noted that the visitor parking areas are not fully utilised, and that there are always abundant spaces. However, the contrast of this is that if the by-laws are not enforced by the committee, then potentially over time, owners or occupiers will come to assume a right to park in the visitor parking spaces. This in turn has potential for dispute in that there will not be sufficient visitor parking spaces for an equal allocation to all occupiers, and secondly, if spaces are used by permanent occupiers, then it is conceivable that genuine visitors might not be able to find a parking space.

In the circumstances, I have ordered that Ms Perlitz cease parking in the common property visitor parking areas unless and until she has first obtained the consent in writing of the body corporate committee for such parking.




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