River Place Apartments [2004] QBCCMCmr 429 (6 September 2004)

Last Updated: 30 September 2005

REFERENCE: 0518-2004

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	30270
Name of Scheme:	River Place Apartments
Address of Scheme:	82 Boundary Street Brisbane, Queensland

TAKE NOTICE that pursuant to an application made under the abovementioned Act by the Body Corporate Committee for River Place Apartments community titles scheme 30270:

I hereby order that pending a final determination of this application, the Mercedes Benz vehicle with registration number 00 AAA may be parked on behalf of the Occupier of Lot 298 in any of the car parking areas of the common property allocated for the use of visitors to the scheme with a disability, notwithstanding the terms of any applicable body corporate by-laws and regardless of any time limits imposed by house rules adopted by the Body Corporate. I further order that this interim order has effect until a final order is made determining the application or until a period of 12 months has expired from the date of this interim order, whichever is the earlier.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0518-2004

"River Place Apartments" CTS 30270

1.	The application

On 16 August 2004, the Body Corporate Committee for "River Place Apartments" filed an application with the Commissioner for Body Corporate and Community Management under the Body Corporate and Community Management Act 1997 (the Act).

The Committee has sought interim and final orders authorising the parking of a particular vehicle on the common property for the scheme.

"River Place Apartments" is a community titles scheme under the Act and the Body Corporate and Community Management (Accommodation Module) Regulation 1997 (the Accommodation Module).

The Commissioner has referred the application to me under section 247(2) of the Act to decide whether an interim order should be issued because of the nature or urgency of the circumstances of the application. The Commissioner has referred the application to me notwithstanding that affected persons have not been issued with formal notice of the application or afforded an opportunity to make submissions about the application (section 247(3)).

On 3 September 2004, I conducted a brief teleconference with the Body Corporate Manager for the scheme and the Building Manager to clarify some details of the application.

2.	Background to the application

I am aware that the common property for "River Place Apartments" includes four car parking spaces that are allocated for the use of visitors to the scheme who have a disability. This application concerns the use of those car parking spaces.

From the material, I understand that due to a disability, the Occupier of Lot 298 requires the use of a modified vehicle (a white, Mercedes Benz van) the vertical height of which appears to be significantly more than many other vehicles.

While Lot 298 has the benefit of an exclusive use car parking space, this space is located beneath the building. I understand that the height of the Occupier of lot 298’s vehicle prevents it from accessing this exclusive use car parking space due to the limited clearance of the main car parking area.

However the four car parking spaces allocated for the use of visitors to the scheme with a disability are located outside of the main car parking area and are accessible by the Occupier of Lot 298’s vehicle.

As "River Place Apartments" is a large, inner-city, residential building the Committee is understandably concerned about the potential problems of residents using common property visitor car parking spaces. However, it is also apparent that the Committee is also concerned about the needs of the Occupier of Lot 298 and is endeavouring to accommodate those needs as far as possible.

As a result, the Committee considers that there are special circumstances that warrant the Occupier of Lot 298 being permitted to park in one of the car parking spaces allocated for visitors with a disability. The Committee has sought interim and final orders to this effect.

Interim order

The parking of vehicles on common property for a community titles scheme (including areas of common property allocated for visitor car parking) is commonly a matter that is regulated by body corporate by-laws.

The community management statement for "River Place Apartments" includes the following by-law relating to vehicles and parking:

1.

Vehicles

1.1	The owner or occupier of a Lot must not, without the Body Corporate’s written approval:
(a)	park a vehicle, or allow a vehicle to stand, on the Common Property; or
(b)	permit an invitee to park a vehicle, or allow a vehicle to stand, on the Common Property, except for the designated visitor parking which must remain available at all times for the sole use of visitors vehicles.

1.2	An approval under subsection (1) must state the period for which it is given, with the exception of designated visitor parking.

1.3	However, the Body Corporate may cancel the approval by giving 7 days written notice to the owner or occupier, with the exception of designated visitor parking.

The terms of this by-law seemingly prevent the Body Corporate from authorising an occupier of a lot included in the scheme to use visitor car parking spaces. I am also aware that on 15 May 2002, the Body Corporate adopted (by ordinary resolution) a house rule limiting visitor car parking to a maximum time period of four hours. These restrictions appear to be what has prompted the Committee to make this application.

At this time, I am solely concerned with the application for an interim order. I anticipate that the Commissioner will invite owners to make a written submission about the application prior to the matter being finally determined.

In considering the application for an interim order, I am mindful of the general principles that body corporate by-laws should be enforced and that visitor car parking spaces should only be used for genuine visitors to the scheme rather than by the occupiers of lots. However, I am also mindful that bodies corporate must apply their by-laws reasonably (section 94(2) of the Act). In addition, and while not making a final finding on the issue, it also seems to me that there are special circumstances in this case that warrant the Occupier of Lot 298 being permitted to park in the visitor’s car parking spaces, at least on a temporary basis. I also note that in our teleconference, the Building Manager indicated to me that the car parking spaces in question are rarely fully occupied by genuine visitors to the scheme with a disability.

In the circumstances, I am satisfied that at least pending a final determination of this application, the Occupier of Lot 298 should be able to have his vehicle parked in the visitor car parking spaces allocated for the use of people with a disability, notwithstanding the terms of the body corporate by-laws or house rules. I have issued an interim order in these terms. However, I do wish to add that this order is not intended to displace the right of visitors to the scheme with a disability from using the car parking spaces. If the Occupier of Lot 298 returns to the scheme on a particular occasion to find that the four visitor car parking spaces are fully occupied by visitors to the scheme with a disability, he will need to make alternate arrangements for car parking on that occasion.

This application will now be administered in accordance with the Act and the normal processes of this Office. The application will be finally determined in due course.