River Place Apartments [2004] QBCCMCmr 639 (13 December 2004)

Last Updated: 30 September 2005

REFERENCE: 0518-2004

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 QLD 4000

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, subject to the concluding limitation expressed in the Statement of Adjudicator’s Reasons for Decision, that for so long as the occupier of lot 298, Peter David Yeo remains an occupier of a lot in the scheme, the Mercedes Benz vehicle with registration number 00 AAA may be parked on his behalf 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.

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

"River Place Apartments" CTS 30270

The applicant, the Body Corporate Committee for River Place Apartments community titles scheme 30270, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) quote –

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

On 6 September 2004, the Adjudicator made the following interim order:

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.

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)).

"River Place Apartments" is a community titles scheme of 314 lots recorded under a building unit plan (now a building format plan) of subdivision under the Act and the Body Corporate and Community Management (Accommodation Module) Regulation 1997 (the Accommodation Module).

In the interim order, the adjudicator outlined relevant aspects pertaining to the scheme and including the background to this application which I restate here:

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.

In the interim order, the Adjudicator concludes as follows:

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. ...

Submissions

This office sought submissions from the affected occupier and all owners of the scheme. Of 315 possible respondents to the application, 4 were received, including one from the affected occupier. I assume that amongst the 311 or 99% of owners who chose not to respond to the application, that no particular opposition exists to what the body corporate is seeking. Of the three owners who did choose to make a submission, 2 are supportive of the application, whilst one owner opposes it. The submission of the owner opposing the application can in my view be summarised in the following statements:

It is totally inappropriate for a "commercial vehicle" to be permanently parked in the front of a building adjacent to the prestigious entrance. This distracts from the good appearance of the premises, harms the enjoyment of the premises for other occupiers and may have some commercial impact to potential buyers / sellers of other lots.

Permissions of this type, contrary to bye (sic) laws and regulations, set precedents with unwanted consequences for the long term.

... This vehicles is a "commercial vehicle" type and is festooned with advertising for the disabled. Parking such a vehicle long term outside the main entrance is totally inappropriate and detracts from my enjoyment of the premises and may have a commercial impact on buyers / sellers of lots.

Determination

I intend to allow this application.

Whilst I note the objections raised by the owner opposing the application, I do not accept such objections provide a valid basis for dismissing the order as sought. I have been provided with photographic evidence of the parking of the vehicle in question in the location in question, and consider that the concerns of the opposing owner regarding aesthetics and impact upon the scheme of the parking are somewhat overstated. Whilst there is some signage on the vehicle, I conclude that it is not "festooned" as alleged. "Festooned" suggests to me that there is paraphilia hanging off the vehicle; this is certainly not the case.

Further, whilst I acknowledge that the parking is at the front of the building, I conclude that it does not distract from the appearance of the building or harm the enjoyment of the premises. The overriding impression I have is of a well presented tradesperson’s vehicle. It has approximately the same level of signage as might be expected on such a vehicle I suggest. Moreover, the vehicle is clean and well presented. As for being at the front of the complex, I note that this is in fact the area reserved for the parking of vehicles of disabled persons in any event. Without knowing the specifics of this, perhaps it is so for the very reason that disabled persons vehicles are usually somewhat higher / larger than standard vehicles, or that additional space adjacent to such vehicles is required for ingress / egress of disabled persons. My point is that this area was specifically designated for disabled parking (albeit visitor) in any event. The applicant / or the body corporate on behalf of the applicant is not seeking to convert the area to disabled parking from some more general form of parking.

Finally, I cannot accept the allegations that the parking of the vehicle in this location would have a potential impact on the purchase / sale price of lot. There is no evidence of this, and I conclude that the assertion is simply not a reasonable one.

Section 94 of the Act provides -

94 Body corporate’s general functions
(1) The body corporate for a community titles scheme must--
(a) administer the common property and body corporate assets for the benefit of the owners of the lots included in the scheme; and
(b) enforce the community management statement (including any by-laws for the scheme); and
(c) carry out the other functions given to the body corporate under this Act and the community management statement.
(2) The body corporate must act reasonably in anything it does under subsection (1).

I conclude that the actions of the body corporate in respect to this matter are consistent with the requirements of this section. I agree with the Adjudicator’s reasoning that:

... 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.

This latter point is confirmed in a submission, quote –

Our observation is that it is almost always the sole vehicle parking in the disabled parking bays, which are more often than not little used during the rest of the day.

That submission goes on to state –

It is our view that such parking in no ways inconveniences either disabled (or abled for that matter) drivers so far as their parking is concerned. River Place properly provides adequate bays for disabled parking and the order that is requested will in no way inconvenience other disabled drivers. ...

I conclude that the requested order is a reasonable one. I am prepared to order in terms as sought, subject to one limitation. The determination of this matter in the affirmative is prefaced on the fact of there being one disabled occupier in the scheme requiring this special privilege or dispensation from the standard operation of the by-laws. However, if there were to be a second or subsequent application by a further disabled occupier, then I consider that the body corporate is at liberty to re-consider its position on this matter. A second or further disabled occupier with similar needs might start to seriously impact on the body corporate’s ability to respond in a similar manner in which it has to the specific needs of the occupier of lot 298. Consequently, I consider that this should be construed as a one-off dispensation, creating no binding precedent on the body corporate and a dispensation which the body corporate might reasonably re-consider should further disabled occupiers approach the body corporate with similar requests.