The West Quarter [2003] QBCCMCmr 289 (12 December 2003)

Last Updated: 17 May 2005

REFERENCE: 0679-2003

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	26479
Name of Scheme:	The West Quarter
Address of Scheme:	60 Vulture Street BRISBANE QLD 4101

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Jerzy (George) PIETKA, as the owner of Lot 1,

I hereby order that within one (1) month of the date of this order the body corporate must refund to the relevant commercial lot owners, or occupiers of those lots as appropriate, all moneys paid by them to the body corporate for parking a motor vehicle in a scheme designated visitor parking space. I further order that occupiers of commercial and residential lots, including owners and tenants, must not at any time park a motor vehicle in any of the designated visitor parking spaces and that only visitors of occupiers of lots in the scheme may use these spaces, where the term includes, in respect of commercial lots; customers, suppliers and service providers. I further order that the signs on common property stating This carpark is strictly for visitors to unit complex only must be removed and no further signs restricting the use of the designated car parking spaces to particular categories of visitors may be exhibited, and further, signs referring to visitor must also contain equal reference to customer or there must be a sign of equal prominence exhibited with equal reference to customer. I further order that within one (1) month of the date of this order the body corporate secretary must send a copy of this order and the accompanying reasons to all lot owners.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0679-2003

"The West Quarter" CTS 26479

The applicant, George Pietka of Lot 1, has sought the following orders of an adjudicator under the Body Corporate and Community Management Act 1997 ("the Act") -

"Clarify equal rights. Refund collected fees for parking. Shop owners/operators have exactly the same rights to common property including visitors parking or residents/tenants of residential units.
Remove signs "Strictly for Visitors to Units Complex Only"

The applicant has also made application for the following interim order of an adjudicator –

"Prevent management from towing away shop operators cars.
Residents’ cars are still parked with no restrictions. And threats are made against shop operators cars and illegal levy or fees are collected from shops."

JURISDICTION:
This is a dispute between an owner (the applicant Pietka) and the body corporate (the respondent) concerning the parking of motor vehicles in common property designated visitor’s car spaces and discriminatory practices favouring commercial lot occupiers over residential lot occupiers regarding parking and signage. These are matters falling within the disputes resolution provisions of the legislation (see sections 227, 228 and 276 of the Act).

While section 279(1) of the Act provides that an adjudicator may make an interim order if satisfied on reasonable grounds that an interim order is warranted because of the nature or urgency of the circumstances, there is nothing in the legislation to prevent an adjudicator, in appropriate circumstances, from making a final determination of the dispute by proceeding directly to a final order.

I consider this course is appropriate in this instance because: the facts of the matter are relatively simple and clear; the appropriate parties have had the opportunity to read and respond to the applicant’s claim (see under heading "Application and Submissions" following); sufficient information is available to determine the matter, including that obtained from an on-site inspection; and a prompt resolution of the dispute is in the interests of all parties.

Accordingly, this order will be the only order made in respect of the application – the parties, of course, retain their appeal rights against the order made, and my having dispensed with the making of an interim order does not diminish those rights.

General powers of an Adjudicator in making an order:
Section 276(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 contractual matter about –

(i) the engagement of a person as a body corporate manager or service contractor for a community titles scheme; or
(ii) the authorisation of a person as a letting agent for a community titles scheme.

An order may require a person to act, or prohibit a person from acting, in a way stated in the order (section 276(2) of the Act). An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 284(1) of the Act).


APPLICATION AND SUBMISSIONS:
Under section 243 of the Act, a copy of the application was provided to the respondent body corporate (committee) and to other owners, with an invitation to respond to the matter of dispute raised in the application. The committee did not make a submission, though submissions were received from the chairperson, Greg Griffin, and the Body Corporate Manager, BUGT Management (Jenny Greig), which perhaps reflect the view of the committee though that is not stated in either document. Submissions were also received from the following parties: owner of Lot 35 and scheme Letting Agent/Resident Manager, Akram Fahman; owner of Lot 14 and past chairperson, Sally Margan; and a co-joint submission from the owners of Lots 3 (Nguyen), 5 (Osborne), 32 (Pohl), 39 (Cupples) and 45 (Hoit). The applicant viewed the submissions and subsequently lodged a reply (see sections 244 and 246 of the Act). The applicant included in his grounds statements signed by several shop owners relating to the parking dispute.

On 10 December 2003 I visited the scheme to better understand the practical aspects of the dispute, and viewed relevant scheme areas in the presence of the applicant Pietka and Beryl Fahham, and Grieg and Vicky Lancaster of BUGT Management.

Rather than set out brief facts of the matter here, I intend to deal with each of the facets of the dispute separately in my Determination of the application, referring to relevant evidence contained in the application, submissions or obtained during my visit to the scheme.

Because of the disharmony that the parking problems have caused, including the alleged vandalism of property owned by the applicant and other commercial lot owners (for which, I understand, a tenant has been charged with respect to one such incident), I have gone to some lengths in explaining the law relating to the use of designated visitor car spaces and the common property generally for parking, and have, for the same reason, ordered that each owner be provided with a copy of the order and these reasons.


DETERMINATION:
"The West Quarter" was registered as a building format plan on 5 January 1999. The scheme comprises 49 lots, made up of forty four residential lots (being Lots 2 to 45) and five commercial lots (being Lots 1, 46, 47, 48 and 49). The scheme is regulated by the Body Corporate and Community Management (Standard Module) Regulation 1997 ("the Standard Module").


Exclusive Use car spaces:
The scheme’s first community management statement provides in its by-laws, by way of By-law 35 and Schedules B and E, for the allocation of specified areas of common property to residential owners’ lots for "the purposes of car parking".

There are no similar allocations of exclusive use car parking areas for the commercial lots, though By-law 33 and Schedules A and E allocates to commercial lots the exclusive use of the respective areas of common property that are situated immediately in front of their southern lot boundary.

The specific areas are shown in the Schedule A diagram, including that Lot 49 also has exclusive use of that area of common property bounding its eastern boundary. The specified use for these areas is set out fully in By-law 33.2(a) to (c) – briefly, these are described as Signage, tables and chairs, service of food, alcohol and other services. However, this right of exclusive use attaching to commercial lots does not bear on this dispute and I have only mentioned it to indicate the different rights of owners.

In summary, residential lot owners (Lots 2 to 45) have the right to use their respective exclusive use areas of common property for car parking purposes; and commercial lot owners (Lots 1, and 46 to 49) have the right to use their respective exclusive use areas of common property for the commercial purposes specified.

Commercial lot owners may question the wisdom of the developer in not making car parking provision for them also, as I do, however the scheme as registered was accepted by the local government body (the Brisbane City Council) and others, and owners are bound by it. A prudent search by intending purchasers would have disclosed this lack of parking; if it was not realised then regardless, the purchaser must accept the situation as it stands.


Designated Visitor Parking:
The provision of designated areas of the common property for visitor parking is a requirement of local government. The number of car spaces is calculated by the Brisbane City Council according to its formula based on the number of lots, their configuration and other things; other local government authorities have similar requirements regarding the number and position of visitor spaces though the formula may vary. These spaces cannot be used by any person other than a genuine visitor; that term also includes, as in the case here, customers where there are commercial lots in a scheme. In a submission to this application my attention has been drawn to a previous order made concerning visitor car spaces, Order 693-1999 for a Gold Coast scheme, "Kingston", which incidentally I also adjudicated, and the comments I made then are also relevant here –

While it may be true that the visitor car spaces may be vacant much, or most, of the time, these are designated visitor spaces required by the local government, the Gold Coast City Council, to be used for visitor’s parking. These spaces are a universal local government requirement for the registration of a community titles scheme, and remain a continuing requirement of the scheme. Even if the body corporate wanted to use these spaces for resident parking, or some other purpose, it is not able to do so...There is no question of the respondent, or any person other than a genuine visitor, being allowed to park in the designated visitor car spaces.

At the time of visiting the scheme there were motor vehicles owned by both commercial lot and residential lot owners occupying designated visitor car spaces ("visitor spaces"). The applicant Pietka previously "leased" a visitor space but after complaint from his solicitor the body corporate refunded the moneys paid on the undertaking that he not park there again. Commercial owners’ cars parked in visitor spaces at the time of my visit were there under a similar "lease" arrangement made with the committee which evidently has been in place since earlier in the year.

Apart from the illegality of the body corporate committee allowing persons other than visitors to park in the relevant visitor spaces, I understand that has been no body corporate resolution to lease (or licence) the relevant areas to the relevant commercial lot owners, whether for a period of less or more than three years, in accordance with the legislation (see section 111(3) of the Standard Module). I further understand that it was a decision of the committee and not of the body corporate in general meting.

The committee has no power to lease or licence an area of common property and neither the committee nor the body corporate in general meeting has that power in respect to a visitors space. The arrangements put in place by the committee were contracts for an unlawful purpose and whatever benefits the body corporate obtained from them, which I understand was a fee of $15 per space per week, must be reimbursed to the relevant parties. I appreciate that these owners agreed to the arrangement and have obtained the benefit of having a designated car parking space, however I also conscious of the situation of disadvantage they were in and the perceived authoritative (albeit mistaken) position of the committee. I have made an appropriate order for the repayment of these moneys by the body corporate.

A complaint of the applicant concerning parking was that while commercial lot owners were charged a parking fee for using visitor spaces, residential owners and tenants also regularly used them without payment. From the evidence before me it appears that residential occupiers have been using these spaces but, mostly, infrequently and not for long periods at a time. The simple means of overcoming these problems is to abide by the law where no person other than a visitor uses a visitor space. To ensure this, I have made an order to this effect.


Signage:
There has been a history of dispute between commercial lot owners and the body corporate committee over signage.

Section 35 of the Act provides that the common property is owned by the lot owners as tenants in common. Sections 94 and 152 then provide that the body corporate has the responsibility to administer, manage and control the common property reasonably and for the benefit of owners. Owners have a general proprietary right to use the common property provided they do so without causing a nuisance or hazard, or interfering unreasonably with another’s use and enjoyment of their lot or the common property (see section 167 of the Act).

There is no distinction between residential and commercial lot owners as to their rights, duties and responsibilities under the legislation as owners. In consequence, the body corporate cannot deal differently with the two categories of owner including any dealing with their visitors or customers. This is set out specifically in respect of by-laws in section 180(5) of the Act which states that A by-law must not discriminate between types of occupiers.

At the time of my visit to the scheme, there were a number of signs fixed to the wall situated at the rear of the commercial lots and directly in front of the visitor spaces on the southern side of the driveway entrance. There can be no objection to those signs that refer to visitor parking only, having cars towed away, and customer parking.

However, the two signs stating "This carpark is strictly for visitors to unit complex only" are clearly discriminatory against commercial lot owners in respect to their visitors and customers. I cannot understand how the body corporate committee considered such signs to be either lawful or fair. They are in contravention of the legislation and cannot remain, despite the submission of the chairperson and co-joint submission of 5 owners to the contrary. I have made an order for the removal of these signs.

The applicant alleges that these two signs were paid for out of body corporate funds, that they cost in the vicinity of $200 each and they were supplied by a relative of a committee member.
As there is no further information in the matter, and it is incidental to the main dispute, I do not intend to pursue the matter any further, but would state that though this allegation was included in the grounds to the application it was not rebutted in any submission.

One further matter on signs remains. As there are commercial lots in the scheme, then it is reasonable to expect that customers will form part of the visitor category who will use the visitor spaces, and the siting of the spaces near to the commercial lots tends to confirm this. It is therefore reasonable, in my view, as with any other scheme comprising shopfront lots, that signage should include the word "customer" so that customers will readily know they are able to park whereas the term "visitor" may mislead them.

Accordingly, the current signs that show both "visitors" and "customers" are appropriate. To be effective they need to be above vehicle height so they can be seen when vehicles are parked in front of them.

It is also relevant to mention here that By-law 36.4 sets a maximum visitor time of six hours. I think that is an unfortunate by-law as the term is both too long for a customer and does not allow an overnight stay for a genuine visitor of a resident occupier. I note that the current sign includes the statement "Max. 2 hrs" under "Visitor Parking Only". That is a reasonable time but of course a visitor may claim that they need, for example, 5 hours and that is permissible within the by-law. It is alleged that the Resident Manager, and perhaps others, want customers to have a much shorter period, reportedly a maximum of 10 minutes. That is clearly an unacceptable imposition – apart from that, neither the Resident Manager nor individual committee members have any power to make such decisions in the name of the body corporate. I suggest the committee meets to discuss this matter in an attempt to reach a decision which reasonably balances the needs of commercial occupiers, the Resident Manager (for letting owners and tenants), and resident occupiers.


Final comments on parking:
I appreciate that commercial lot owners who currently have arrangements to park in visitor car spaces will be unhappy at having to remove their vehicles and not park there again. Similarly, those resident owners and tenants who use these visitor spaces regularly or irregularly for various purposes, whether for short or longer periods, will also be unhappy. However it will undeniably resolve the unpleasantness that has arisen over use of the spaces.

There are two remaining problems: firstly, where will commercial lot owners (and perhaps their staff) park their vehicles; and secondly, where will commercial owner’s park temporarily in order to receive stock deliveries, or load outgoing goods. I cannot see that residential occupiers, who have the benefit of an exclusive use car space, have any reason to use a visitor space even for incidental matters such as picking up a passenger or retrieving some article from their lot.

In regard to the first problem, commercial lot owners will need to find alternative car spaces either by: renting an exclusive use car space from a willing residential occupier; parking in the street; or parking at a nearby parking station or other premises where the owner is willing to rent space for parking.

In regard to the second problem, of course a services provider (electrician, plumber, Blue Nurse, etc) or supplier (delivery of a television, carpet, etc) fall within the scope of the term "visitor" whether the person is visiting a commercial or residential lot occupier.


I would also regard the delivery of stock by a supplier, or the rendering of a service by a service provider, to a commercial lot as also falling within the ambit of the term "visitor", even if they are a regular visitor though only for the particular purpose and for a short period of time. However, that does not extend to a vehicle of an owner or tenant that might be used for similar purposes.

I have already referred to section 167 of the Act which allows an occupier to use the common property providing the use does not cause a nuisance or hazard, or interferes unreasonably with another’s use and enjoyment of their lot or the common property. It has always been my view, which has not been challenged, that occupiers can exercise their general proprietary right by parking temporarily on the common property for incidental matters such as; picking up a passenger, retrieving a forgotten item from their lot, or off-loading groceries, provided that they do not breach any of the conditions set out in section 167. These uses relate mainly to residential occupiers.

Similarly, vehicles used by commercial lot occupiers for receiving and delivering goods could also use areas of common property (but only for the purpose and for short periods) again so long as the use does not breach the section 167 conditions. They could not, for example, use the scheme entrance driveway as this would cause an unreasonable interference with the access and exit of vehicles into the building carpark area. Whether or not there is an area of common property that can be used for this purpose (loading, unloading etc), I cannot say from my short visit, but this is a matter the body corporate committee and commercial lot owners may wish to investigate.

Alternatively, the body corporate and/or the commercial lot owners may wish to approach the Brisbane City Council to see whether the number of designated visitor spaces can be varied in some way. Given a full explanation of the parking circumstances, the Council may consider, for example, the conversion (or dual usage) of at least one visitor space to a general purpose use (eg "loading bay" or similar designation). It does seem that there are sufficient spaces for one to be redesignated for this purpose, and I would suggest that a serious submission should be made to the Council toi this end. It would seem to me that such a change will not only benefit all owners and reduce ill-feeling, but will resolve street parking problems for the Council as well. I have no jurisdiction in this area and can only suggest it to owners in general and the body corporate committee in particular.