Tammy Rose Apartments [2004] QBCCMCmr 447 (21 September 2004)

Number of Scheme:	17622
Name of Scheme:	Tammy Rose Apartments
Address of Scheme:	103 Bradman Avenue MAROOCHYDORE QLD 4558

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

I hereby order that the Occupier of Lot 1, Mr Ian Imber, shall immediately cause to be removed the Holden Statesman (registration 743 HMZ) from the Visitors Parking Area and thereafter is prohibited from parking any vehicle, or permitting any vehicle to be parked, on the common property (except by bona fide visitors in the Visitors Parking Area) without written consent of the body corporate.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0200-2004

"Tammy Rose Apartments" CTS 17622

"Tammy Rose Apartments" Community Titles Scheme 17622 is registered as a building format plan of subdivision comprising seven lots and is operating under the Body Corporate and Community Management (Standard Module) Regulation 1997 (the Standard Module).

The Application

This application is brought by the body corporate against the Occupier of Lot 1, Mr Ian Imber, (the respondent) seeking an order that he immediately remove from the designated Visitors Parking Area on common property a Ford Falcon (registration 466 DWG) and a Holden Statesman (registration 743 HMZ).

Since the vehicles have been parked in the Visitors Parking Area (the Ford since around December 2002 and the Holden since around January 2004), the body corporate has written to the Owner of Lot 1, Palmaura Pty Ltd via Mr Terry Mitchell, on numerous occasions requesting him to direct his tenant to remove the vehicles from the Visitors Parking Area. On 17 March 2004, the
Respondent was sent a Notice of Continuing Contravention of a Body Corporate By-law and a Notice Regarding Likely Future Contravention of a Body Corporate By-Law. I am therefore satisfied that the preliminary procedure to lodging an application outlined in s.184 of the Body Corporate and Community Management Act 1997 (the Act) has been complied with by the body corporate.

Submissions

Submissions in response to the application were sought from the respondent and all owners. The respondent opposed the application and three owners who responded to the application supported it. The committee inspected the submissions and exercised their right to reply to them.

In his submission the respondent states that the Ford Falcon is no longer at the address and that the Holden Statesman belongs to a bona fide visitor to his unit. He further states that the visitor is expected to be with him for at least another month and up to six months. The respondent raised numerous other issues in his submission, which I consider to be irrelevant to this dispute. I have confined my determination to those matters raised in the application and the response to those matters in the submissions.

It is conceded in submissions that the Ford Falcon has been removed, however, the Holden Statesman remains parked in the Visitors Parking Area. The owners who responded challenge the respondent’s assertion that the car belongs to a bona fide visitor. They state that they have never observed the "visitor" and have only ever seen the respondent using the car. The body corporate has submitted documentation from the Queensland Department of Transport showing that the registered owner of the Holden Statesman is Carbon Sinks Plantations Pty Ltd with a business address of 1/103 Bradman Avenue Maroochydore, Queensland, the same as the residential address of the respondent. They also submit documentation from Australian Securities and Investment Commission showing that Carbon Sinks Plantations Pty Ltd was deregistered on 15 December 2002 and that, at that time, the respondent was the company secretary and a director.

Determination

Section 35 of the Act states that the common property is owned by the owners in the scheme as tenants in common. Section 152 then provides that the body corporate must administer, manage and control the common property reasonably and for the benefit of owners. The legislation empowers a body corporate to make by-laws for this purpose, including by-laws to control the parking of motor vehicles on common property.

"Tammy Rose Apartments" was registered as a building units plan on 10 January 1995 and under the then legislation, the Building Units and Group Titles Act 1980, the by-laws set out in the Third Schedule of that Act became the by-laws of the body corporate immediately upon registration of the plan. Under the 1988 transitional provisions of section 5(10) of that Act, and section 339 of the current Act, the by-law relating to the parking of motor vehicles for this body corporate is as follows–

The exemption provision in the by-law is not relevant here as there is no by-law made under section 30(7) of the previous Act giving the owners or occupiers of Lot 1 exclusive use of a particular part of the common property.

Accordingly, the by-law provides that owners and tenants of lots have no right to park vehicles on the common property without the prior approval of the body corporate. The committee, as the administrative arm of the body corporate, can give that consent in the name of the body corporate, though of course the body corporate in general meeting can, as the paramount body, overturn a committee’s decision.

The respondent has stated that the Holden Statesman is and has been in the possession of a bona fide visitor to his unit who is expected to be with him for at least another one month and up to another six months. He claims that as the car belongs to a visitor of his, it isn’t able to be the subject of any complaint or action by the body corporate. I disagree with the respondent on both counts.

Firstly, I consider that someone who resides in a lot for the length of time the respondent’s "visitor" has (that is, at least one month and possibly six months longer than he has already been there) comes within the definition of an "occupier" in Schedule 6 of the Act. An "occupier" is there defined as follows (bolding my emphasis):

I therefore do not accept the respondent’s assertion that the car is used by a visitor. I consider the car to be used by an occupier. The body corporate is able to enforce its by-laws against owners and occupiers.

In any event, the body corporate has submitted documentation (referred to above) to demonstrate that the car in question is registered in the name of a de-registered company of which the respondent was a director and secretary at the time of de-registration. Further, the submissions reveal that the only person ever seen using the vehicle is the respondent.

Secondly, even if the car was used by a "bona fide visitor", the body corporate could take action against the Occupier of the Lot in relation to conduct of the visitor, under section 167 of the Act, which provides as follows (bolding my emphasis):

The terms of the "Vehicles" by-law are clear. The area on which the respondent (or other occupier of Lot 1) has parked a vehicle is common property, and the consent of the body corporate has not been sought or given.
While it may be that the visitor car spaces may be vacant some of the time, these are designated visitor spaces required by local government regulations to be used for visitor’s parking. These spaces are a universal local government requirement for the registration of a community titles scheme and remain as being a continuing requirement of the scheme. Even if the body corporate wanted to use these spaces for resident parking, or some other purpose, it is not able to do so.

My order is against the respondent in regard to parking on any part of common property including the visitor car spaces. I should point out to the respondent that while failure to comply with a By-Law Contravention Notice attracts a maximum penalty of 20 penalty points ($1,500), failure to comply with an adjudicator’s order constiutes an offence and can attract a maximum penalty of 400 penalty points ($30,000).

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Tammy Rose Apartments [2004] QBCCMCmr 447 (21 September 2004)