O'Quinn Street Apartments [2004] QBCCMCmr 277 (28 May 2004)

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

I hereby order that the proposal to allocate the seven (7) common property parking spaces by way of exclusive use as contained in motion 1 considered by the body corporate at the EGM held on 7 October, 2004, was not passed because of opposition that in the circumstances was unreasonable.

I further order that the motion is valid and that the body corporate shall now take all necessary steps to give effect to the proposal, including the preparation of the relevant by-law and exclusive use allocation plan, and lodgement of the same for registration.

I further order that this approval of the motion is subject to the following allocation of the seven (7) visitor car parking spaces which shall be reproduced in the relevant recorded exclusive use by-law, namely –

• Lot 1 to be allocated visitor parking space numbered 3 on the building plan;
• Lot 4 to be allocated visitor parking space numbered 7 on the building plan;
• Lot 5 to be allocated visitor parking space numbered 4 on the building plan;
• Lots 2 and 3 to be allocated the tandem visitor parking spaces numbered 1 and 2 (or vice versa) on the building plan;
• Lots 6 and 7 to be allocated the tandem visitor parking spaces numbered 5 and 6 (or vice versa) on the building plan.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0704-2003

"O’Quinn Street Apartments" CTS 30714

The applicants, Brian Patrick Cronan and Mary Margaret Robinson, the co-owners of lot 2, Dawn Claudine Taylor, the owner of lot 3, Michael John Cullen and Melita Ruth Cullen, the co-owners of lot 6 and Merome Lee Smith the owner of lot 7, have sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) quote –

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

(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 scheme

The scheme is a subdivision of 7 lots registered under a building format plan. The regulation module applying to the scheme is the standard module.

The application and submissions

This office sought submissions in respect of the application from the committee and all owners. I do not intend to set out in any detail the applicants grounds, nor the contents of submissions in response. I am satisfied that all parties are aware of the position of the other from the application, submissions and the right of reply processes. I therefore intend only to refer to those materials necessary for a determination of the issues raised.

The motion sought to be validated was considered by the body corporate at the EGM held on 7 October 2003. The motion, numbered 1, and headed Decision on Exclusive Usage of Car Parks, and requiring a resolution without dissent, proposed that –

The motion was defeated on the basis of one "no" or dissenting vote. There were four votes in favour of the motion, and one abstention.

I intend to answer the second of the orders sought first: namely the power to make the order in question, or alternatively, whether there is some legal impediment to the making of the order. Firstly, I am satisfied that I have the power to make the order as sought.

Schedule 5 of the Act headed Adjudicators Orders provides at paragraph 10, by way of examples of orders which an adjudicator might make -

If satisfied a motion (other than a motion for reinstatement of scheme and or termination or amalgamation of the scheme) considered by a general meeting of the body corporate and requiring a resolution without dissent was not passed because of opposition that in the circumstances is unreasonable --an order giving effect to the motion as proposed, or a variation of the motion as proposed.

The question then becomes whether the motion in question was not passed because of opposition that in the circumstances is unreasonable. This is the question I now intend to consider.

I note that 4 of the 7 owners have responded by way of submission. Three are applicants and the fourth is Wendy Gae Colbran, the owner of lot 1 (Colbran). Colbran was the owner who voted "no" to the motion in question, and who continues to oppose the proposal in her submission. Colbran’s submission is voluminous, and much of it is unnecessary. There are issues canvassed by Colbran which will have no bearing on the determination of this matter.

I conclude that Colbran’s opposition to the proposal is based on a misconception. Whilst Colbran, by voting "no" to the motion, is technically opposing the allocation of the 7 car parks by way of exclusive use, it becomes clear from the contents of her submission that Colbran doesn’t simply oppose the allocation of the car parks by way of exclusive use, but in fact Colbran is seeking to prohibit or prevent the use of the parking spaces as car parking spaces completely, be they allocated by way of exclusive use or simply authorised for use under the relevant vehicle parking by-law.

This conclusion is clear from several statements contained in Colbran’s submission. For example –

I conclude that Colbran believes that by opposing the "exclusive use" allocation of car parking, she can prevent parking on the common property areas in question completely. The fact that parking is presently occurring on these areas from time to time Colbran believes is a breach of the by-laws, and if the by-laws were complied with or observed, then that this would mean that no parking would occur in these areas. This is the outcome that Colbran seeks to achieve. In particular, Colbran seeks to have no parking adjacent to her lot. Reference to the building plan in respect of which the developer obtained local authority approval shows that Colbran’s lot has 3 "visitor parking" bays adjacent to it, as does lot 4.

Colbran’s position is fundamentally flawed for a number of reasons which I will endeavour to explain. The original local authority "development permit" for the development contains the following conditions regarding parking, quote –

Amongst other matters, the permit required the developer to provide 14 carparking spaces within the scheme. The developer did this by creating one space as part of each lot (7 spaces) and the remaining 7 were created on common property. It is not disputed by Colbran that the seven areas nominated by the developer as "visitor parking" are in fact car parks. Colbran simply want to prevent their use as carparks.

Colbran has purchased a lot from the developer off the plan which happens to be surrounded by 3 "visitor parking" bays. Colbran states in her submission opposing this application that it is neither just or equitable my unit is surrounded by vehicles. However, in my view, this is a matter Colbran cannot now prevent. Colbran’s choice in my view was not to purchase this particular lot given its configuration with surrounding carparking, or not to have purchased in the scheme at all. Having purchased though, Colbran is seeking to prevent the use of areas within the scheme designated as car parks for carparking purposes. This is not reasonable. The areas in question were allocated for car parking purposes. In fact the local authority has approved the building on this basis. If Colbran believes that the area of common property surrounding her lot, and its proposed use, was misrepresented to her by the developer in the contract of sale, perhaps Colbran might consider her legal options arising under the contract, but Colbran cannot prevent the use of parking spaces for car parking purposes.

Even without the allocation of these car parks by way of exclusive use, these areas can still be used for car parking purposes. The relevant by-laws provides that –

The existing by-law allows the body corporate to authorise use of the 7 car parking spaces located on common property, or any of them, in my view. All that is required is for the committee of the body corporate to grant an approval to an owner or occupier subject to the terms of the by-law. If such an approval is given, then parking in the spaces will be authorised. I consider that Colbran has misinterpreted this by-law in order to achieve the outcome which she seeks; no parking on the common property.

The use of the common property for parking purposes, if authorised, or if exclusive use is granted, is at all times subject to the other provisions of the Act, including that of Nuisances. Section 167 provides

167 Nuisances
The occupier of a lot included in a community titles scheme must not use, or permit the use of, the lot or the common property in a way that--
(a) causes a nuisance or hazard; or
(b) interferes unreasonably with the use or enjoyment of another lot included in the scheme; or
(c) interferes unreasonably with the use or enjoyment of the common property by a person who is lawfully on the common property.

Colbran complains that the parking of vehicles on the common property around her unit interferes with the use and enjoyment of her lot and the common property. At page 21 of her submission, she states –

I have formed the belief that Colbran’s concerns in this regard are somewhat overstated. The building plans show that the area along the front of her unit, which includes the porch to her lot, is 1.4 metres wide. Using this same scale, then the area of common property between the parking bays and the front boundary of the property is 2 metres. Photographic evidence included with Colbran’s submission shows a row of small shrubs planted in this area. Perhaps the body corporate needs to consider the removal of these shrubs in order to ensure unimpeded access at all times. However, I do conclude that notwithstanding the parking, there is sufficient room to allow Colbran access to and from her lot, and to areas of common property she needs to access. I consider Colbran’s concerns are based more on her desire to prevent parking in the areas in question, rather than any actual difficulty or nuisance created as a result.

Colbran also raises the point that the seven parking spaces provided on the plan are described as "Visitor Parking", with the implication that such parking is restricted to visitors to the units and is not available for the use of owners and occupiers. I disagree with this conclusion for several reasons, namely –

Colbran has also raised concerns with "tandem parking" suggesting that it is now contrary to local authority policy. However, the local authority has approved these plans in my view, notwithstanding the tandem parking. I consider that the tandem parking is an issue which the body corporate will need to consider and address in determining how to allocate the spaces.

Colbran has also noted the numbering of the visitor parking spaces and suggested that there are anomalies in that her lot 1 car park is blocked by the visitor parking for lot 3. There is no correlation between the number of the visitor parking spaces and the unit number in my view. Clearly, if there is to be an exclusive use allocation, then the two parking spaces directly behind the garages of lots 1 and 4 should be allocated to the exclusive use of lots 1 and 4. This prevents the owners or occupiers of lots 1 and 4 from being parked in; it limits this potential problem to the two tandem parking bays at the front of the property, where the potential problem cannot be avoided, and will need to be managed as between the parties involved.

Given the above, I do conclude that the opposition of Colbran to the motion proposing exclusive use was unreasonable in the circumstances. I am prepared to overrule this objection, and to allow the allocation of the 7 parking spaces by way of exclusive use on the basis of one per lot. However, I do intend to impose certain conditions on the allocation of the spaces. I have already indicated that the two visitor parking spaces behind the garages of lots 1 and 4 should be allocated to those lots. This leaves 5 visitor parking spaces to be allocated. There are four parties to this application. I conclude that the remaining single visitor parking space (numbered 4 on the building plan and opposition lot 7) should be allocated for the exclusive use of lot 5, the only remaining non-party to this application. I assume that the owner of lot 5 will not take objection to this for two reasons, namely –

This leaves the four parties to this application, and those specifically seeking the exclusive use allocation of the car parking spaces, to share between them the tandem spaces, with the occasional difficulty which might arise in this scenario. I consider that it is logical that lots 2 and 3 should be allocated visitor parking bays 1 and 2, or vice versa, and similarly, lots 6 and 7 should be allocated visitor parking bays 5 and 6 or vice versa. I intend to leave it to these four parties to determine how each of the spaces will be allocated, or alternatively shared. I do warn these parties however that the situation has the potential for conflict, and that the use of the spaces between these parties will require some degree of common sense, compromise and reasonableness. It will require these parties to come up with their own solutions or arrangements for sharing the tandem spaces.

The arrangement will not work if the outcome is that one party is parked in by the other on a recurring basis. If this occurs, and it becomes apparent that the relevant parties cannot share the tandem spaces fairly and effectively, then it may provide a basis for an adjudicator reversing the allocation of exclusive use for the tandem spaces at some time in the future. This will also have implications for future owners of lots 2, 3, 6 and 7. I recommend that in respect of the sale of any of these lots, that the selling agent be instructed to bring this issue to the attention of all prospective purchasers before a contract of sale is signed.

Number of Scheme:	30714
Name of Scheme:	O’Quinn Street Apartments
Address of Scheme:	4 O’Quinn Street TOOWOOMBA QLD 4350

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

O'Quinn Street Apartments [2004] QBCCMCmr 277 (28 May 2004)