Fiona Place [2003] QBCCMCmr 546 (2 June 2003)

Last Updated: 12 September 2007

P J HANLYREFERENCE: 0075-2003

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	29206
Name of Scheme:	Fiona Place
Address of Scheme:	9 Fiona Street BIGGERA WATERS QLD 4216

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

Leonie Robyn Revell, the owner of lot 2



I hereby order that the owner of lot 1, Janice Anne Heese, shall not herself park a vehicle, nor allow her visitors to park a vehicle, on the common property, and in particular on the common property driveway leading to the garage of lot 1.

I further order that the owner of lot 1, Janice Anne Heese, shall not obstruct the lawful use of the common property by Leonie Robyn Revell, or by her invitees.


STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0075-2003

"Fiona Place" CTS 29206

The applicant, Leonie Robyn Revell, has sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), in relation to parking problems at the scheme.

Section 276(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 contractual matter about the engagement of a person as a body corporate manager or service contractor for a community titles scheme or 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)). An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 284(1)).

In the supporting grounds, the applicant states that the new owner of lot 1, Mrs Jan Heese, removed the "No Parking" sign from the front of her garage soon after she took up residence late in 2002. The applicant states that she has had to ask Mrs Heese’s visitors to move their vehicles on several occasions, as she and her visitors find it very difficult to reverse down a narrow driveway and then around the parked vehicles.

On 18 February 2003 I conducted a teleconference with Mrs Revell and Mrs Heese. Mrs Revell explained that she has difficulty reversing from her exclusive use area, around the corner of the building and out onto the street if vehicles are parked outside Mrs Heese’s garage. Mrs Heese stated that she could not understand why Mrs Revell would have such difficulty, and suggested that Mrs Revell might just be a poor driver. Mrs Heese referred to the lack of suitable on-street parking in the area.

On 25 February 2003, Mrs Heese was invited to respond to Mrs Revell’s application. No submission was received, and when a member of the Commissioner’s staff contacted Mrs Heese on 3 April 2003, she stated that she did not wish to make a submission.

Mrs Heese had lodged her own application (No 0078-2003) within one day of the application lodged by Mrs Revell. That application sought an order that temporary parking be allowed behind her garage on occasions, as some of her friends are unable to walk unaided. Mrs Revell responded to that application, and reiterated the difficulty she has in reversing from her exclusive use area. Mrs Revell also noted that the by-laws clearly state that owners must not permit an invitee to park a vehicle, or allow a vehicle to stand, on the common property.

Mrs Heese subsequently withdrew her application, stating that the issue had been resolved. When contacted by a member of the Commissioner’s staff, Mrs Revell disagreed that the issue had been resolved, and requested that an adjudicator deal with the matter.
This scheme is regulated by the Body Corporate and Community Management (Small Schemes) Regulation 1997 (the Small Schemes Module). Its by-laws are contained in the community management statement recorded on 1 May 2001. There are two by-laws relevant to this dispute, namely by-law 2 relating to vehicles and by-law 3 relating to obstruction.

By-law 2 provides that the occupier of a lot must not, without the body corporate’s written approval, park a vehicle or allow a vehicle to stand on the common property, or permit an invitee to do so.

By-law 3 provides that the occupier of a lot must not obstruct the lawful use of the common property by someone else.

A previous order of an adjudicator made on 28 June 2002, declared that the parking of vehicles on common property is prohibited. Since that order was made, the ownership of lot 1 has changed. The earlier order is still valid, however, the applicant now wishes to have an order that specifically relates to the owner of lot 1. I propose to make such an order, as this will allow the applicant to take enforcement action should the owner of lot 1 disregard the order. However, I trust that common sense will prevail, and that such action will be unnecessary.

The parties should note the following provisions of the Act:2n

288 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. (presently $30,000.00)

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

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

(a) the applicant for the application for the original order; or

(b) a person in whose favour the order mentioned in subsection (1) is

made; or

(c) the body corporate; or

(d) an administrator appointed under this chapter who is authorised

to perform obligations of the body corporate or its committee.

(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.