117 John Street [2003] QBCCMCmr 591 (24 June 2003)

Last Updated: 12 September 2007

REFERENCE: 0010-2003

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	30292
Name of Scheme:	117 John Street
Address of Scheme:	117 John Street REDCLIFFE QLD 4020

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

Lionel Anthony Coleman and Evelyn Coleman, the owners of lot 3

I hereby order that the owners of lot 4, Susan Ann Beazleigh and Raymond Frederick Beazleigh, shall immediately cease parking, or allowing any other person to park, any vehicle on the common property driveway.


STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0010-2003

"117 John Street" CTS 30292

The applicants, Lionel Anthony Coleman and Evelyn Coleman, have sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) that the owners of lot 4, Susan Elizabeth Beazleigh and Raymond Frederick Beazleigh, discontinue parking on the common driveway area and visitor car park in front of town houses 3 and 4.

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 the 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)). An adjudicator's order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate (section 284(1)).

The applicants state that their next door neighbours, the Beazleighs, do not use their garage, and park both of their cars outside their lot, one on the common property driveway and one in a visitor car park. The vehicle mostly parked on the driveway is a larger vehicle, and partially obstructs the applicants’ path when reversing from their own garage. The applicants also raised a number of other matters, but as they did not seek orders in respect of those matters, I have confined my considerations to the parking issue.

The body corporate committee, all other owners and the respondents were invited to respond to the application. A submission was received from Mrs Beazleigh, one of the respondents.

Mrs Beazleigh stated that their garage is presently being used to store belongings. She also stated that she and her husband were unaware that they were not permitted to park in front of their own garage or in the visitor’s car park.

This scheme is regulated by the Body Corporate and Community Management (Small Schemes Module) Regulation 1997 (the Small Schemes Module). The by-laws for the scheme were recorded on 22 May 2002. By-law 2 provides that the occupier of a lot must not park on common property without the written approval of the body corporate. It further provides that if the body corporate does give such approval then the period for which the approval is given must be stated, and the body corporate may cancel the approval by giving 7 days written notice to the occupier.

On 28 January 2003, the body corporate resolved to grant permission to the Beazleighs to park a Lancer motor vehicle in one of the visitor’s car parks at the Creek Street entrance to the scheme until 31 December 2003. No permission was sought, or given, to park on the common property driveway outside lot 4.

Although it is likely that the Beazleighs will no longer park their car outside their garage, now that they understand the by-laws, I propose to make the order sought by the applicants in relation to the driveway, so that the issue is placed beyond doubt. Of course, the Beazleighs are permitted to park the Lancer motor vehicle in the visitor’s car park whilst ever the present body corporate approval to do so remains in force.