Western Suburbs Trade Centre [2004] QBCCMCmr 649 (16 December 2004)

Last Updated: 30 September 2005

REFERENCE: 0466-2004

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	5971
Name of Scheme:	Western Suburbs Trade Centre
Address of Scheme:	500 Seventeen Mile Rocks Road JINDALEE QLD 4074

TAKE NOTICE that pursuant to an application made under the abovementioned Act by the Body Corporate for Western Suburbs Trade Centre community titles scheme 5971.

I hereby order that Western Suburbs Taxi Depot Pty Ltd, the owner of Lot 12 must immediately: 1. Comply with By-Law 2 of the scheme relating to "Vehicles" and cease parking or standing any motor or other vehicle on common property without the consent in writing of the body corporate. 2. Take all reasonable steps in accordance with the By-Law 6 of the scheme relating to "Behaviour of Invitees" to ensure that invitees behave in a manner that is not likely to interfere with the peaceful enjoyment of the owner or occupier of another lot or of any person lawfully using common property I further order that Western Suburbs Taxi Depot Pty Ltd, the owner of Lot 12 must, within six (6) weeks of the date of this order, remove and keep removed from common property any property belonging to Lot 12 being kept or stored on common property without the consent in writing of the body corporate.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0466-2004

"Western Suburbs Trade Centre" CTS 5971

APPLICATION

This application is by the Body Corporate (applicant) seeking an order against Western Suburbs Taxi Depot Pty Ltd, the owner of Lot 12 (respondent). The applicant is seeking the following outcome:

That all items (e.g. car parts, tyres etc.) including all vehicles illegally parked on common property be removed. That servicing and washing of all vehicles be attended to off site. That all vehicle parking be adhered to as per By-Law 2 – Vehicles.

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

• Since 1996, the respondent has either kept or allowed vehicles and car parts on the common property taking up an unreasonable amount of car parking and without body corporate approval.
• Taxis are serviced and cleaned on the common property.
• At the annual general meeting (AGM) held on 4 November 1999, it was decided that only registered vehicles could be parked on the common property, that working in the car park area was to cease, and that parking vehicles outside of property spaces was to cease.
• At the AGM held on 17 February 2004, it was decided that parking in the centre is restricted to the entitlement of each unit owner, and by-law contravention notices would be issued to owners who use the common property car parks for their own benefit.
• At the committee meeting held on 18 March 2004, it was resolved that the decision of the 2004 AGM be implemented and that a by-law contravention notice be given to the owner of Lot 12 for the following reasons:
− Unregistered vehicles and car parts are stored on common property.

− Vehicles associated with Lot 12 are using an unreasonable number of common property car spaces.
− Vehicles associated with Lot 12 are being maintained on the common property.

• The respondent was given a "Notice of Continuing Contravention of a Body Corporate By-Law" regarding contravention of By-Law 2.
• Photographs indicate that at various times since 2003 that a number of taxis have been parked on the common property, and that tyres and other car body parts have been placed located on common property.

JURISDICTION

"Western Suburbs Trade Centre" Community Titles Scheme 5971 is a 28 lot scheme under the Body Corporate and Community Management Act 1997 (Act) and the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module).

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)).

SUBMISSIONS

In accordance with the Act, submissions were called and a copy of the application was provided to the respondent and to body corporate manager for distribution to the owner of each lot. A submission was received from the respondent and a number of lot owners.

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

• The body corporate is acting in a discriminatory manner as other lot owners and occupiers are also breaching by-laws without any action by the body corporate.
• Car parts have been stored on the common property, and the tyres stored on common property are removed on a regular basis.
• A car racing frame is parked in a car park awaiting sale.
• Vehicles are parked on the common property awaiting repair.
• Vehicles belonging to taxi drivers may be parked on the common property, but staff of other lots also park on common property.
• Taxis are not serviced or washed on common property. On occasions, a mechanic may check the maintenance requirements for a vehicle before it is taken into the workshop for repair.
• Vehicles belonging to at least 1 other lot are washed on common property without action from the body corporate. The owners or occupiers of other lots store, or have placed equipment and storage on the common property on the common property.
• The photographs supplied by the applicant are misleading as they were either taken on week-ends when the complex is largely unoccupied, or at short-term periods when the business is at its peak.
• The customers of the business on Lot 12 are usually only parked on the common property for a short period.

Submissions from other lot owners indicated that:

• The shortage of car parking spaces and traffic congestion within the scheme is partly caused by taxi drivers parking their vehicles within the complex.
• The staff and clients of other businesses within the scheme cannot find parking spaces as most spaces are taken by vehicles associated with the business conducted in Lot 12.
• Access to other lots is impeded by taxis being serviced on the common property.

DETERMINATION

"Western Suburbs Trade Centre" was registered as a building units plan on 14 July 1989. The body corporate has not, since its establishment, made any changes to its by-laws. In addition, the body corporate has not decided to record a new community management statement (CMS) for the scheme since the commencement of the Act on 13 July 1997. Therefore, the by-laws applying to the scheme are those specified in the Third Schedule of the Building Units and Group Titles Act 1980 (section 339 of the Act). The by-laws in Schedule 4 of the Act are not applicable to this scheme.

As the by-laws relating to vehicles and the behaviour of invitees have been referred to in this matter, the applicable by-laws in the Third Schedule state:

"Vehicles. Save where a by-law made pursuant to section 30(7) authorizes him so to do, a proprietor or occupier of a lot shall not park or stand any motor or other vehicle upon common property except with the consent in writing of the body corporate.

Behaviour of invitees. A proprietor or occupier of a lot shall take all reasonable steps to ensure that his invitees do not behave in a manner likely to interfere with the peaceful enjoyment of the proprietor or occupier of another lot or of any person lawfully using common property."

The by-laws form part of the CMS for the scheme, and under section 59 of the Act, the CMS is binding on each member of the body corporate and on each person who is otherwise an occupier of a lot in the scheme. It is a function of a body corporate under section 94(1) of the Act to enforce the CMS, including any by-laws for the scheme. Under section 94(2), the body corporate must act reasonably in enforcing its by-laws.

The body corporate has relied on the incorrect by-law when giving the respondent the "Notice of Continuing Contravention of a Body Corporate By-Law". The By-Law 2 included in this notice is in Schedule 4 of the Act which clearly does not apply to this scheme. The body corporate must ensure that when giving a continuing contravention of by-law notice, it complies with section 182 of the Act. Despite the fact that the body corporate has relied on the incorrect by-law, I have made an order that the respondent comply with the applicable by-law for the following reasons:

1.	Every owner and occupier has this obligation under section 59 of the Act.
2.	The respondent has been aware of the concerns about parking on the common property since at least the AGM held on 4 November 1999.
3.	I consider that the information provided in this application indicates that the respondent is parking or standing a vehicle on the common property without the consent of the body corporate.

I am also of the view that the number of vehicles being parked on the common property by invitees of the respondent contributes to the parking issues in this scheme. The respondent has an obligation under By-Law 6 to ensure that invitees do not interfere unreasonably with the peaceful enjoyment of any person lawfully using common property. It is clear from the photographs included with the application that, on occasions there are many taxis parked on the common property. This activity would affect another person’s rightful enjoyment of the common property. While the respondent may claim that the body corporate has unreasonably taken action against Lot 12, the respondent has an obligation under By-Law 6, and for this reason I have ordered that the respondent comply with By-Law 6 immediately.

It is clear that the respondent is storing equipment and other items such as car parts on the common property. While the common property is owned by all lot owners, the body corporate has a duty for its management and administration. A lot owner does not have the right to store or keep property on the common property without body corporate approval. Therefore, I have ordered that the respondent must remove, and keep removed, any property being kept on the common property, including tyres, equipment and other car parts.

However, for the following reasons, I have determined that the respondent has 6 weeks to comply with this order:

1. I consider the respondent should have a reasonable period to comply with the order.
2. There is a distinct possibility that other owners or occupiers may also be similarly storing or placing belongings on the common property without body corporate consent.
3. The respondent has submitted that the business will be relocated to another property by the end of January 2005.

The respondent has made claims that the body corporate has acted unreasonably in seeking to enforce the by-laws against Lot 12. There is a distinct possibility that other owners or occupiers may also be parking on the common property in contravention of By-Law 2, or allowing invitees to act in a manner in breach of By-Law 6. In addition, it is conceivable that other owners and occupiers are similarly storing or placing belongings on the common property without body corporate consent.

If this is in fact the case, then the body corporate should be aware of its legislative obligation to act reasonably in enforcing its by-laws. The body corporate should not enforce a by-law against a particular owner or occupier and ignore similar actions by another owner or occupier. Therefore, I would expect that the body corporate acts in a reasonable manner and takes steps to ensure that all owners and occupiers comply with the by-laws. For example, the body corporate should ensure that all owners and occupiers have knowledge and understanding of the by-laws which apply to the scheme, are aware of their obligations with respect to the by-laws, and are aware of the legislative provisions relating to by-law contraventions stated in sections 182 to 188 of the Act. The body corporate and lot owners and occupiers should also be aware of section 167 of the Act which 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.