Kareela Court [2002] QBCCMCmr 637 (18 October 2002)

RA MeekREFERENCE: 0418-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	21194
Name of Scheme:	Kareela Court
Address of Scheme:	25 Sunbird Street BURLEIGH WATERS QLD 4220

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

Vicki Stehn, the owner of lot 1



RA MeekI hereby order that that occupiers of all lots in the scheme shall be entitled to park or stand one (1) motor vehicle on common property immediately adjacent to the garage of their lot, PROVIDED THAT the parking is to be in such a way as not to obstruct the passage of any other vehicle entering or exiting the property, or lawfully using the common property.
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STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0418-2002

“Kareela Court” CTS 21194

The applicant, Vicki Stehn, the owner of lot 1, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

An order to remove cars parked on common property which currently prevents access to units 1 and 2. All cars to be parked in garage.

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 “owner/occupiers of units 3 and 4 continually park vehicles on common property driveway which restricts access to units 1 and 2”.

Attached to the application is relevant correspondence and other materials associated with this “dispute”, for example –

• Photographs showing parking;

• Contravention notices issued to lots 3 and 4;

• Correspondence to owners from the body corporate manager;

• Correspondence by the owners of lots 3 and 4 to the body corporate;

• Responses by the owners of lots 1 and 2;

• Confirmation that proposal of lots 3 and 4 was not carried.

The scheme is registered under a group title plan of subdivision (now a standard format plan). There are four lots in the scheme. At its narrowest point the scheme abuts Sunbird Street, and this is the point of entry for all vehicles. The front of the parcel is common property, which provides the point of entry to garages which are part of each lot. The garage and part of the lots appears to from the boundary line between lots and common property.

Submissions were sought from all owners. The owners of lot 3, Daniel Robert Patch, and lot 4, Sonya Maree Bateman, have both responded by way of submission.

Patch submits –

• The photos supplied by the applicant are false in that the second 4WD in the driveway of lot 3 “belonged to a plumber” and “remained in the driveway for a total of 30 minutes”.

• His vehicle does not block the entrance to the applicant’s unit.

• Oil on the driveway was “from a previous owner and has since been removed”.

• Cars park on the footpath are unconnected with his lot.

Patch concludes that “when I park my vehicle in the driveway it is in the way of no-one. I would never be so arrogant or disruptive as to block my neighbours from entering their homes”.

Bateman submits –
“My car (unit 4) is always parked at the front of my unit next to the fence. ... It does not stop anyone from entering or leaving their unit”.
“As yet I am unable to park my car in my garage as I have furniture and bikes. As soon as I get / afford a garden shed I will be parking it in my garage”.
“There are probably 200 units or more in our street with strangers coming and going all the time. It is not safe to park cars on the street. The lock on my passenger door is damaged from someone trying to break in”.

Bateman concludes –

My solution would be to move the letter box and make the garden narrower so 1 and 2 have less trouble getting in and out, because it has nothing to do with where Dan and I park our cars.

Patch and Bateman did propose to the body corporate that “approval be given to the occupiers of each lot to park a vehicle or allow a vehicle to stand on the common area immediately in front of the occupier’s garage”. A vote was taken on this proposal, with two for (lots 3 and 4) and two against (lots 1 and 2). Consequently the motion was not carried.

The position is currently governed by by-law 2 headed “Vehicles” which provides that an occupier must not park or stand a vehicle on common property without the body corporate’s written approval.

Determination

I intend to order that owners / occupiers shall be entitled to park or stand one (1) vehicle on common property immediately adjacent to the garage of their lot, in such a way as not to obstruct the passage of any other vehicle entering or exiting the property, or lawfully using the common property.

The role of an adjudicator in respect of each dispute before him or her is to make orders which are just and equitable for the resolution of the dispute. The wider matter in dispute here is evidenced by the additional material provided by the applicant. In essence, I consider that the question to be determined is whether the body corporate’s failure to pass the proposal of the owners of lot 3 and 4 regarding parking of a vehicle on common property, was reasonable. If yes, then the applicant would be entitled to an order as sought. If no, then all owners are entitled to an order allowing parking of a vehicle on common property.

I have come to the conclusion that the body corporate’s failure to pass the relevant proposal was not reasonable, and that, in the circumstances, I should give effect to that proposal.

I now intend to address the objections of the owners of lots 1 and 2 to this proposal.

The owners of lot 2, Craig and Vicki Morgan, have stated that the proposal would –

• Obstruct passage to and from neighbour’s garages;

• By-law 2 applies and should continue to apply;

• Photos indicate what happens if this is permitted.

To respond, I conclude that the proposal to park a vehicle on common property will not necessarily obstruct passage to and from neighbour’s garages; by-law 2 can be made subject to a further resolution of the body corporate in general meeting; and perhaps the photos supplied do not truly reflect the facts of this matter.

Stehn has responded that –

• Access to lots 1 and 2 is limited “as a result of garden beds and the angle of the drive”.

• “Unit 1 will not be able to enter and leave the garage if unit 2 has a vehicle parked in front on common property. The only foreseeable way to remedy this would be to remove the letter boxes and the garden bed to extend the driveway and road access”.

I consider the Stehn has acknowledged in her objection the same solution proposed by Bateman; namely move the letter box and widen the driveway.

• Damage to garden beds in parking by owner of lot 4.

• Damage occurring to driveway paving as a result of heavy vehicles parked there.

I conclude that these are both matters which can be dealt with independently. They are not matters which in themselves should de-rail the proposal, if it has merit.

• Vehicle parked in front of lot 3 is leaking oil severely.

• Can be 3 and 7 vehicles parking in the drive of units 3 and 4 which hampers access and is an eyesore.

Patch denies that his vehicle leaks oil, and states that it was the vehicle of a former occupier. On the issue of how many vehicles are usually parked in the driveway, the photograph evidence relied on by the applicant does not support this. On the basis of the photos supplied, three vehicles are shown. Presumably the two darker 4WD vehicles belong to the owners of lots 3 and 4. The fact of pipes on the roof rack of the silver vehicle lend weight to the contention of Patch that this vehicle belonged to a plumber referred to. In my experience, tradesmen have little respect for rules regarding parking and the like.

• Maintenance of common property is hampered.

I am of the view that this issue can be otherwise addressed, without refusing the proposal. For example, if a gardener is to attend the site, all that is required is for occupiers to be informed of the relevant time, and for them to be requested to ensure vehicles are not parked on common property between certain times.

More generally thought, I consider there are other factors which support the making of the order which I intend. The scheme is located at the end of a cul-de-sac. The frontage of the scheme is 11.6 metres in total. Photos supplied by Bateman show that the driveway covers approximately half this distance. This leave less room then might usually be expected at kerbside for parking.

Moreover the scheme appears to have no provision for visitor parking on common property, which is usually a local authority requirement. This suggests that visitors are required to park at the kerbside. If owners occupy these spaces, there is no space for visitors.

Further, Bateman submits that there “are 28 units just in this circle” and that “there is parking for 6 at the most”. The photos supplied by Bateman certainly suggest that parking in the cul-de-sac is at a premium.

Each lot has car parking provision for 1 vehicle. Whilst not every household has two vehicles, this is not unusual these days. The options for parking of a second vehicle here are kerbside. I have already noted the shortage of parking at kerbside in this cul-de-sac. I consider that, as an owner, I would find it somewhat stressful to be driving home and wondering if I would chance a park at kerbside for my second vehicle, and if not, how far up the street, I would find a park.

I further consider that whilst access might be an issue, particularly for lot 1, such issue can be overcome by the solution that owners appear to be aware of, namely –

• To relocate the letter box, either (when facing the scheme) to the left of its current position, or alternatively, on the right of the current driveway; and

• Widening the driveway on the left hand side to enable sufficient access to lot 1.

Further, I consider that this order has potential benefits for all lot owners, and not simply lots 3 and 4. For example, even if the occupier of a lot has only one vehicle, it is not unusual to have visitors come to stay for varying periods. This order will allow visitors to lots 1 and 2 to park their vehicles on common property, off the street. It will guarantee parking for such vehicles, which would otherwise not be the case if they were required to park the vehicle on common property.

Finally, I consider that this order will not have an unreasonable impact on the owners of those lots currently opposed to parking on common property. I have made the terms of the order quite specific. In particular –

• It allows parking of one (1) additional vehicle on common property;

• In a position that is immediately adjacent to garage of the relevant lot;

• In such a way as not to obstruct the passage of any other vehicle entering or exiting the property.

The body corporate is at liberty to make further rules regarding the parking, for example –

• No parking on garden beds;

• Owners to maintain on a periodic basis the driveway under where their vehicle is parked;

• Owners to repair any damage to common property caused by the parking. n