Parkside Gardens [2003] QBCCMCmr 346 (23 January 2003)

Last Updated: 7 September 2007

RA MeekREFERENCE: 0577-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	16791
Name of Scheme:	Parkside Gardens
Address of Scheme:	28 Pelican Waters Boulevard, GOLDEN BEACH QLD 4551

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Douglas McGarvie, the co-owner of lot 8

RA MeekI hereby order that the application by Douglas McGarvie, the co-owner of lot 8, for an order seeking to have the "House Rule" declared void, and removed from the body corporate rules for the Parkside Gardens Scheme, is dismissed.

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STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0577-2002

"Parkside Gardens" CTS 16791

The applicant, Douglas McGarvie, the co-owner of lot 8, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

Seeking to have the "House Rule" declared void, and removed from the body corporate rules for the Parkside Gardens Scheme. The "House Rule" states "that parking by an individual vehicle in visitor car parks will be limited to 14 days. Particular cases may be addressed by the committee but at all times courtesy and good sense will prevail". Also seeking to have by-law No. 2 enforced, and strictly adhered to.

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 "the "house rule" violates four of the Body Corporates by-laws (... 1, 2, 3 and 6)".

He further states that –

The House Rule causes much distress and disruption to the applicant’s life. The scheme is a very small complex of 18 units with five (5) visitor parking bays, three (3) of which are within a few metres of the Applicant’s unit.

The frequent use and subsequent abuse of the House Rule causes considerable noise and thus distress and inconvenience to the applicant.

This order is should to ensure the quiet enjoyment and common good of all residents.

The applicant has attached a copy of the by-laws. Relevantly, the by-laws referred to by him are headed –

1.	Noise
2.	Vehicles
3.	Obstruction ...

6. Behaviour of invitees.


This office sought submissions from the body corporate committee and all owners regarding the application. The committee and 8 (of 18) individual owners responded to the application. All submissions received oppose the terms of the order as sought in the application.

In my view, it is difficult to discern precisely what outcome the applicant is hoping to achieve by his application. Clearly, he seeks that the "house rule" be invalidated, but if so, what then is the position in relation to parking in visitor parking spaces (VPS). The applicant’s grounds note that there are five (5) VPS within the common property of the scheme.

I have gained some better understanding of the applicant’s desired outcome from other correspondence of the applicant which has been provided to me as part of submissions. This correspondence is –

• Letter by applicant to committee of 11 March 2002; and

• Letter by applicant to committee of 3 April 2002.

I consider it reasonable to conclude that the applicant is seeking that there be no VPS in the scheme. Whilst this is not explicitly stated, I consider it implied from several statements of the applicant, including –

It is not in fact, incumbent on any body corporate to provide parking facility for invitees.

This statement is relevant for two reasons. It indicates, in my view, the applicant’s preferred position regarding VPS. Secondly, I consider it to be wrong in law. Provision for VPS form part of the development approval for any given scheme given by the local authority. The number of VPS is determined by the number of proposed lots for the scheme. The policy, as I understand it, behind the local authority requiring a requisite number of VPS is so as to reduce the demand for street parking in areas of higher density community living. It is a planning issue. Contrary to the view of the applicant, I consider it a legal requirement for each body corporate to maintain the number of VPS required by the council in its original building approval.

On this more general aspect of the requirement to maintain VPS, I conclude that this body corporate must maintain the number of VPS required by the local authority in its original approval. This is non-negotiable in my view, and to the extent that this application seeking a ruling that there be no visitor parking on common property, this application is dismissed.

I now turn to the specific question of the validity of the "house rule". The applicant alleges that this is contrary to by-laws 1, 2, 3 and 6. The body corporate, and all members of the body corporate, are bound by the by-laws recorded for the scheme. House rules have no status in the legislation. They are simply not referred to. What might be concluded is that any "house rule" which conflicts with or is contrary to by-laws is invalid and of no effect.

The applicant alleges that this is the case with the house rule. The house rule provides "that parking by an individual vehicle in visitor car parks will be limited to 14 days. Particular cases may be addressed by the committee but at all times courtesy and good sense will prevail". The rule is not specific to whom it is to apply (ie. owners, occupiers or visitors, or all or any combination of these classes of persons). In contrast, by-laws 1, 2, 3 and 6 specify that they apply to govern "a proprietor or occupier". Only by-law 6 also extends to "invitees" and only to the extent of requiring an owner or occupier take reasonable steps to ensure that the conduct of their invitees is appropriate.

Whilst I noted that the house rule is not specific as to whom it is to apply, the applicant’s has not alleged that the committee is authorising owners or occupiers to park in the VPS under the house rule. The two complaints referred to by the applicant in his correspondence to the committee of 11 March 2002 both refer to parking by invitees, not owners or occupiers. I therefore conclude that whilst the rule is not specific, it has only been applied to requests for parking by invitees. Moreover, VPS should be restricted to visitor parking only, and not approved generally for the use of owners or occupiers.

I conclude that the house rule, and the by-laws referred to, are not inconsistent or in conflict. I therefore refuse to invalidate the rule on this basis.

More generally, the role of the body corporate is to administer, manage and control the common property. This role falls to the committee in many instances, including the application and enforcement of by-laws. I consider that a committee is entitled to have "house rules" or standard practices regarding its dealing with the common property. If it did not seek to standardize its practices, it might open itself to allegations of discrimination or bias in its dealings with owners or occupiers. I therefore conclude that any "house rule" or practice is valid, provided it is consistent with the by-laws. I have previously concluded that the particular house rule complained of is not inconsistent or in conflict with the by-laws for this scheme.

The final aspect I wish to consider is the applicant’s allegation that the rule "causes much distress and disruption to the applicant’s life" and "considerable noise and thus distress and inconvenience to the applicant". The applicant’s preferred position is that there be no provision for VPS. Given that this is not an option, one wonders how the applicant’s distress, disruption and inconvenience can be best reduced.

On the aspect of the extent of the distress, disruption and inconvenience caused by the VPS, the applicant has not elaborated. It is difficult therefore to assess how it might be reduced. Objectively, though, I note the contents of submissions of other owners who arguably are equally or similarly affected by the VPS. The owner of unit 9, which I understand is directly above the applicant’s lot, states "I wish to say that I ... am in complete agreement with the interpretation of the by-laws re parking of the committee ... and deny any inference by Mr McGarvie to the contrary".

The owner of unit 6 states –

... Access to this bay by vehicles using it, and four garages directly alongside my unit must pass directly by my front entry both coming and going and I am subject to much more inconvenience than Mr McGarvie including his own vehicle access to his garage. This poses no problem to me as I consider this minor problem part of communal living. Noise is not a factor only noise is generated by passing traffic. I am in complete agreement with the handling of Mr McGarvie’s complaints by the committee.

Another adjacent owner states –

Every owner here knew exactly where and how many visitor spaces were available when they bought into the complex. With a space below and outside my balcony I have no problem with noise. In passing, I mention I am hypersensitive to noise as I wear cotton wool in my ears at theatre and concerts.

Given the lack of any specific detail by the applicant, and the rejection of the implication of any unreasonable noise being created by the use of the VPS by three adjacent owners, I conclude that the applicant’s allegation of distress, disruption and inconvenience is not substantiated.

For the above reasons, this application is dismissed.
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