Regal Heights [2003] QBCCMCmr 410 (6 March 2003)

Last Updated: 10 September 2007

P J HANLYREFERENCE: 0624-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	5535
Name of Scheme:	Regal Heights
Address of Scheme:	39 Princess Street, BULIMBA QLD 4171

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

Dean Arthur Russell, the owner of lot 4



I hereby order that the occupiers of lot 5, Tatam Roffman and Leonie Roffman, shall forthwith cease parking their vehicles, or any vehicle, on the common property.

I further order that the owner of lot 5, Ulrich Roffman, shall forthwith cease parking his vehicle, or any vehicle, on the common property.

I further order that the owner of lot 5, Ulrich Roffman, shall take all reasonable steps to ensure that the occupiers of lot 5 do not park their vehicles, or any vehicle, on the common property.

I further order that no owner or occupier of any lot within the scheme shall, without the consent in writing of the body corporate, park any vehicle on the common property.

I further order that the secretary of the body corporate shall, within 1 month of the date of this order, forward a copy of this order and the accompanying statement of reasons for decision, to all owners.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0624-2002

"Regal Heights" CTS 5535

The applicant, Dean Arthur Russell, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

I request that the Commissioner prohibit parking anywhere on the complex driveway, and provide affected tenants with a set process to follow if vehicles are found.

Section 223(1) of the Act 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 when vehicles are parked on the driveway, he finds it extremely difficult to access his garage. The applicant further states that the occupiers of lot 5 cause the majority of his problems with cars being parked on the driveway. The applicant further states that he has placed notes on the offending vehicles, and had conversations with the owners of the vehicles, all to no avail.

The body corporate committee, the occupiers of lot 5 and all owners were invited to respond to the application.

Submissions were received from the owner of lot 5, and from the owners of lot 7.

The owner of lot 5 did not deny that residents continue to park vehicles on the driveway, and accepted that this practice might obstruct entry into garages. However, he suggested that the way to solve the problem would be to increase parking facilities to cater for secure and safe parking for tenants’ second vehicles.

The owners of lot 7 supported the application.

This scheme is regulated by the Body Corporate and Community Management (Standard Module) Regulation 1997 (the Standard Module). The building units plan (now described as a building format plan) was registered on 5 February 1990, under the provisions of the Building Units and Group Titles Act 1980 (BUGTA). The by-laws for the scheme are those contained in Schedule 3 of BUGTA.


By-law 2 in Schedule 3 states:

2 Vehicles

Save where a by-law made pursuant to section 30(7) authorises a

proprietor or occupier so to do, the proprietor or occupier of a lot shall not

park or stand any motor or other vehicle upon common property except

with the consent in writing of the body corporate.

There is no evidence before me that the body corporate has consented to any owner or occupier parking or standing a vehicle on common property. I note from the registered plan that each lot has a lock-up garage, which I understand can accommodate one vehicle. The photographs provided by the applicant clearly show vehicles parking on common property. It is evident from the photographs that any person wishing to gain access to a garage in the vicinity of a parked vehicle, such as depicted in the photographs, would have reduced access to that garage. It is equally evident that general access over the driveway would be restricted by the presence of one or more vehicles on the driveway.

Parking is frequently a problem within schemes, particularly those schemes in which parking is only available for one vehicle, as here. The by-laws are specifically designed to address this problem. Owners or occupiers cannot assume that one or two vehicles will not make a difference, or that other owners or occupiers will somehow be able to manoeuvre their vehicles around an offending vehicle. If every owner or occupier in the scheme parked one vehicle on the common property driveway, the scheme would be completely gridlocked.

I propose to make the orders sought by the applicant. I have made an order against the occupiers of lot 5, as they appear to be the principal offenders. I have also made a general order against the owner of lot 5 and then all owners and occupiers to cover those other parties who may from time to time park vehicles on the driveway. I have further ordered that a copy of this order, and the accompanying Statement of Reasons for Decision, is to be sent to all owners.

Parties should be aware of the following provisions of the Act:

235 Failure to comply with adjudicator’s order

(1) A person who contravenes an order under this chapter (other than an

order for the payment of an amount) commits an offence.

Maximum penalty--400 penalty units.

(2) A proceeding for an offence under subsection (1) (other than a

proceeding taken by the Attorney-General) may only be taken by the

applicant for the application for the original order, or the body corporate.

(3) Costs awarded against a defendant in a proceeding under this section

may include the amount of the fee paid to the commissioner on making the

application for the original order.

(4) In subsection (3)--

"application for the original order" means the application for the order

of an adjudicator for the purposes of which the order mentioned in

subsection (1) is made.

A penalty unit equals $75.00. Accordingly, the maximum penalty for failure to comply with an adjudicator’s order is $30,000.00. Proceedings must be taken in the Magistrates Court.2n