Sanctuary Bay [2004] QBCCMCmr 455 (24 September 2004)

Last Updated: 30 September 2005

REFERENCE: 0189-2004

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	6523
Name of Scheme:	Sanctuary Bay
Address of Scheme:	81 Boykabil Esplanade HOPE ISLAND QLD 4216

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

Ms LM Watts, the Owner(s) of lot 1

I hereby order that the application for an order to the effect that parking arrangements be rearranged so that the applicant can have better access in and out of her garage is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0189-2004

"Sanctuary Bay" CTS 6523

Application

Sanctuary Bay Community Titles Scheme (Sanctuary Bay) is a 45 lot scheme under the Body Corporate and Community Management Act 1997 (Act) and the Act’s Standard Module Regulation (Standard Module). The scheme is designed for residential purposes.

This application is by Lesley Watts, owner of lot 1 (applicant) seeking orders against James Lockhart and Glenda Deutscher (respondents). The applicant is seeking an order to the effect that the respondents rearrange their parking arrangements so that the applicant can have better access in and out of her garage.

Background

The plan for the scheme indicates that the applicant is located in the end unit of a block of five units adjacent to a waterway. To get to her garage, the applicant has to drive past the garages of the four other units in the block.

The applicant claims that the respondents are parking a vehicle in front of their garage leaving insufficient room for her to reverse out of her garage past that vehicle.

Submissions

The applicant’s main submissions were to the effect that:

• The respondents park their vehicles so that the longer of their two vehicles is outside their garage leaving only 3.75 metres of space for her to reverse past in a slight curve;
• The applicant’s car is 2.7 metres wide which leaves her very little space to reverse past the other car; and
• She constantly grazes her tires on a low wall on the other side when concentrating to miss the respondent’s vehicle.

The respondents’ main submissions were to the effect that:

• Neither the two previous owners of the applicant’s lot or their visitors have expressed any concern about reversing past the respondents’ vehicle;
• The respondents’ have seen the applicant reverse past their vehicle on many occasions without any hesitation or slowing in speed that would indicate the grazing of tyres;
• The area behind the respondents’ parked car meets planning requirements and Australian Standards for driveway width of 3.0 metres (a copy of Australian Standard AS/NZS 2890.1:2004 is attached);
• Information from the internet indicates that the applicant’s car is in fact only 1.77 metres wide not 2.7 metres wide;
• The body corporate has given permission for owners to park behind their garages, and the applicant should have been aware of this when she purchased her lot;
• The applicant had a conversation with them in which she indicated that she did not like the look of their car parked behind their garage. She did not raise any concern about difficulty reversing behind their car; and
• If the applicant does have difficulty reversing in a slight curve then she could manoeuvre her own car so that she can reverse in a straight line or, alternatively, alter her own parking arrangements.

Other owners have also provided submissions. The committee states that it neither supports or opposes the application. However, it confirms that the respondents, and other owners, have body corporate permission to park behind their garage provided other persons lawfully on common property are not obstructed.

Decision

Applicable law

The legislation includes provisions to the effect that an occupier must not use common property in a way that unreasonably interferes with the use or enjoyment of another person lawfully on the common property (Act, 167).

However, I am not satisfied that the respondents are parking their vehicle in a way that does unreasonably obstruct the common property.

There is evidence that the applicant can actually reverse past the respondents’ vehicle without causing damage. From a review of the plan, the respondent also has some room in which she could take more time to manoeuvre her vehicle so she can reverse in a fairly straight line, even if there is insufficient room for her to be able to turn her vehicle around completely.

I also accept that other occupiers have been able to reverse beyond the respondents’ vehicle and that the applicant should have appreciated when purchasing her unit that she would conceivably have to reverse out of her immediate garage area. Finally, the applicant concedes that her vehicle is not actually 2.7 metres wide as originally claimed. I find that there is a reasonable amount of room for the applicant to reverse behind the respondents’ vehicle

In conclusion, I am satisfied that the respondents are not unreasonably obstructing the common property or causing unreasonable interference to the applicant. The applicant has not established any legal ground on which the respondents should be forced to alter their parking arrangements and the application is therefore dismissed.

Order

For these reasons, the application is dismissed.