26 - 28 Rene Street [2003] QBCCMCmr 295 (19 December 2003)

TAKE NOTICE that pursuant to an application made under the abovementioned Act by the body corporate of 26-28 Rene Street

I hereby order that SynRG Pty Ltd, the owner of lots 3 and 4 (respondent) be on notice, for a period of one year from the date of this order, that it is required to comply with by-law 6 of the scheme by taking all reasonable steps to ensure that its invitees do not behave in a manner likely to interfere with the peaceful enjoyment of the proprietor or occupier of another lot or of any person lawfully using common property.

I further order that, within 7 days, the respondent must give written notice to Tewantin Furniture Removals (with a copy to the body corporate) stating that Tewantin Furniture Removals:

1. is only invited to bring vehicles to enter or stand on the scheme to the extent reasonably necessary to load or unload furniture;
2. must avoid causing nuisance to occupiers of 26-28 Rene Street; and
3. must comply with the by-laws and only park vehicles on the scheme with the written consent of the body corporate.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0380-2003

"26 - 28 Rene Street" CTS 18242

26-28 Rene Street Community Titles Scheme (Rene Street) is a 5 lot scheme under the Body Corporate and Community Management Act (Act) and the Act’s Standard Module Regulation (Standard Module). The scheme is designed for commercial purposes.

This application is by the body corporate for Rene Street (applicant) seeking orders against SynRG Pty Ltd, the owner of lots 3 and 4 (respondent). The body corporate has complained that the respondent has breached the by-laws of the scheme and has caused or permitted its invitee, Tewantin Furniture Removals (TFR), to interfere with the lawful use of common property of the scheme.

TFR occupies premises adjacent to Rene Street. However, the body corporate has provided evidence that TFR has been parking its trucks on the common property of Rene Street and that, on occasions, TFR uses the fire hose at Rene Street in order to wash its trucks. There are also submissions that TFR constructed shipping containers on the common property, stored hazardous materials on the common property, and caused damage to the common property.

The respondent, one of the owners of Rene Street, has become involved in this dispute because it has given TFR a written authority to enter onto the scheme. The body corporate claims that the use of the common property by TFR constitutes a nuisance and contravenes the by-laws for the scheme. This application is brought against the respondent because the body corporate claims that the respondent has not done enough to stop TFR, as its invitee, causing a nuisance and contravening the by-laws of the scheme.

On 26 March 2003, the body corporate issued the respondent with a by-law contravention notice. Subsequent to this contravention notice being issued the shipping containers were removed and TFR ceased parking its trucks on the common property of Rene Street. However, by the end of May 2003, the body corporate alleged that TFR had again commenced parking on the common property of Rene Street.

The respondent admits that it invited TFR to come onto the scheme to load and unload furniture. However, the respondent says that it has directed TFR to comply with the by-laws and not interfere with other owners’ use and enjoyment of the common property. The respondent says it has not given TFR permission to park on the scheme.

Even though no action is being taken directly against TFR, it is the alleged conduct of TFR that is the basis of this application.

The body corporate alleges that TFR is parking on common property of Rene Street, causing obstruction to other owners. Based on photographs provided by the body corporate I accept that this is occurring.

The body corporate has also alleged that TFR has erected shipping containers on the common property and is storing hazardous materials on the common property. There is also a claim that TFR has used the Rene Street fire hose to wash its trucks. Further, the body corporate has alleged that TFR’s trucks are causing damage to the common property. While these actions may have occurred in the past, the body corporate has not provided any persuasive evidence that these actions are continuing. Further, the body corporate has not sought any specific orders regarding repair of damage to the common property or provided evidence to assist in determining the quantum of any damage incurred. I will therefore confine the rest of the decision to the issue of TFR parking vehicles on the common property.

The respondent, as lot owner, has given TFR consent and authority to enter onto Rene Street and utilise the respondent’s rights to use common property. The respondent has signed an authorisation, dated 18 November 2002, giving TFR this authorisation.

It is because the respondent has given TFR this authorisation that the body corporate has commenced this application against the respondent. Minutes of a meeting of the body corporate show that the body corporate initially proposed to bring an action against TFR for trespassing on Rene Street property. However, after the respondent advised the body corporate that it had consented to TFR using scheme land the body corporate brought this application against the respondent seeking orders that the respondent not cause, allow or permit TFR to interfere with other occupiers’ use and enjoyment of the land.

The body corporate has argued that the respondent must take responsibility for TFR’s actions because the respondent invited TFR to use the common property. This argument is supported by a provision of the Act that states that occupiers must not permit the use of the common property in a way that causes a nuisance or interferes unreasonably with the use or enjoyment of the common property by other persons lawfully on the common property (Act, 167).

It is also supported by by-law 6 of the scheme that provides "a proprietor or occupier of a lot shall take all reasonable steps to ensure that his invitees do not behave in a manner likely to interfere with the peaceful enjoyment of the proprietor or occupier of another lot or of any person lawfully using common property".

In the circumstances, TFR is contravening both the Act and the by-laws for the scheme. The evidence suggests that TFR is regularly parking a number of trucks on the common property. This is something that even the respondent itself, an owner in the scheme, would not be entitled to do. By-law 2 of the scheme prohibits owners and occupiers from parking vehicles upon common property without written consent of the body corporate. The only exception to this is parking within the exclusive use area allocated to the particular owner.

TFR may claim that it is simply using car park areas designated for customer car parking. However, it is clear that TFR is using the car park areas far in excess of any times when it is a genuine customer of businesses in the scheme.

Further, there is evidence that TFR has parked trucks in a way that interferes with other occupiers accessing the rear of the building and interferes with other owners using exclusive use areas designated for the use of those owners.

By inviting TFR to use the common property, the respondent has taken some responsibility for TFR’s actions. The respondent claims that it does not authorise TFR to contravene any body corporate by-laws or interfere with the use and enjoyment of the common property. This may well be the case. However, the respondent has not done enough to prevent this interference with the use of the common property occurring.

The respondent must take all reasonable steps to prevent TFR interfering with the use or enjoyment of the common property. In the circumstances, this would require the respondent to provide a written request to TFR that it cease any behaviour that is interfering unreasonably with the use or enjoyment of the common property. The respondent claims that it has only invited TFR onto the scheme to load and unload vehicles. It has not given TFR permission to park on the scheme. I have therefore made an order requiring the respondent to give written notice to TFR clarifying this position.

The Act contains specific procedures for proceedings to enforce by-laws (Act, 184 - 188). In most cases, if an occupier of a lot contravenes a by-law the body corporate must give that occupier (and the relevant lot owner) a warning in the form of a contravention notice. Subsequently, if the occupier does not comply with the contravention notice, the body corporate can either bring an application before the Magistrates Court seeking imposition of a penalty or bring an application before this office seeking resolution of the dispute.

In this instance, I am satisfied that it is just and equitable to grant orders against the respondent that will require the respondent to take reasonable steps to ensure TFR does not unreasonably interfere with use of the common property. However, I have no jurisdiction to grant the monetary penalties sought. These would need to be sought from the Magistrates Court (Act 188, Act 288, Justices Act 19).

Order
The body corporate has demonstrated that the respondent has contravened both the Act and the by-laws. The body corporate has previously issued a contravention notice to the respondent in respect of its contravention of by-law 6. I will now make an order prohibiting future breaches of this by-law. I will make this order effective for a period of one year. The effect of this order will be that any breach of by-law 6 by the respondent in the next year will be in contravention of this order and can be dealt with immediately by the body corporate by application to the Magistrates Court.

After one year the respondent will still be required to comply with by-law 6 (as is the case with all other occupiers), however any contraventions will need to be dealt with in the usual way of a contravention notice being issued prior to any application to the Magistrates Court.

I have also made further orders to deal with the current problem of truck parking by TFR. These require the respondent to write to TFR to clarify the terms on which TFR is invited to bring vehicles onto the scheme. In this respect, by-law 2 of the scheme allows the body corporate to consent to an owner parking their vehicle on common property apart from their own exclusive use area. If, for example, the respondent brought an application providing reasons why its invitee should be allowed to park on common property on a particular occasion the body corporate would need to consider this application. The body corporate must act reasonably in deciding whether to grant such an application (Act, 94).

A final issue is that the respondent must take all reasonable steps to prevent TFR parking trucks on the scheme without consent but TFR may simply ignore the respondent and continue to park trucks on the scheme. In that case, the respondent would not be in contravention of its responsibilities but the body corporate may wish to consider taking action for trespass against TFR.

Number of Scheme:	18242
Name of Scheme:	26 - 28 Rene Street
Address of Scheme:	26 - 28 Rene Street NOOSAVILLE QLD 4566

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

26 - 28 Rene Street [2003] QBCCMCmr 295 (19 December 2003)