Isle of Palms Resort [2005] QBCCMCmr 194 (11 April 2005)

Last Updated: 5 July 2005

REFERENCE: 0767-2004

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	20860
Name of Scheme:	Isle of Palms Resort
Address of Scheme:	21 Coolgardie Street ELANORA QLD 4221

TAKE NOTICE that pursuant to an application made under the abovementioned Act by the Body Corporate for Isle of Palms Resort Community Titles Scheme 20860

I hereby order that Peter and Yvonne Hansen, the owners of Lot 103 must: 1. immediately cease parking a vehicle on any part of the common property designated as a visitor car space; and 2. within two (2) months from the date of this order, cease parking a vehicle on any other part of the common property unless the owners of Lot 103 obtain the written consent of the body corporate under By-Law 2.2 of the By-Laws for the Community Titles Scheme.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0767-2004

"Isle of Palms Resort" CTS 20860

APPLICATION

This application is by the body corporate (applicant) against Peter and Yvonne Hansen (respondents). The body corporate is seeking a decision that the respondents cease parking a motor home on the common property.

The applicant’s main submissions were to the effect that despite requests from the body corporate, the respondents continue to park their motor home on the common property in contravention of By-Law 2.1. The body corporate included a copy of the form BCCM 10 "Notice of Continuing Contravention of a Body Corporate By-Law" dated 14 April 2004 addressed to the respondents relying on a breach of By-Law 2.1 on the basis that the motor home "is not housed in a garage and is visible from other Lots".

JURISDICTION

"Isle of Palms Resort" Community Titles Scheme 20860 is a scheme under the Body Corporate and Community Management Act 1997 (Act) and the Body Corporate and Community Management (Accommodation Module) Regulation 1997 (Accommodation 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 respondents and to the body corporate secretary for distribution to the owner of each lot. A submission was received from the committee and a number of lot owners.

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

• There are many other vehicles using the common property parking within the complex.
• The vehicle is rarely parked on the complex for more than 48 hours.
• The height of the vehicle prevents it from being parked in the garage of the lot.
• The vehicle is not directly visible from other lots in the scheme.
• Several committee members have indicated that they do not have a problem with the vehicle being parked in the complex.
• They understood that they had a right to park a second vehicle on the common property parking area.

Submissions from two other lot owners indicated support for the respondents. Relevantly, one of the other owners submitted that other owners or occupiers are parking vehicles on the common property.

The applicant made a written reply to submissions under section 244 of the Act. The applicant’s main submissions were to the effect that:

• It is relying on the reference to recreational vehicles in By-Law 2.1.
• The caretaker should be asked why other non-compliant vehicles have not received breach notices for parking on the common property.
• The vehicle is very visible.
• The committee is awaiting a decision by the Gold Coast City Council as to the position of visitor parking in the complex.

FACTS

By-Law 2 of the body corporate by-laws included in the community management statement (CMS) for the scheme is titled "Vehicles".

By-law 2.1 states:
"An occupier or any invitee of an occupier must not park or keep on his lot any motor vehicle other than wholly within the parking area designated for it, except that a recreational vehicle (which includes, but without limitation, a camper unit, car motor home or boat) may be parked or kept elsewhere on the lot if it is housed in a garage so as not to be visible from any other lot."

By-Law 2.2 states:
"An occupier must not park any vehicle upon common property except-

(a) with the consent in writing of the body corporate;
(b) where authorised by an exclusive use by law; or
(c) in an area designated as a visitor carpark."

DETERMINATION

The by-laws form part of the CMS for the scheme, and under section 59 of the Act, the CMS is binding on the body corporate, 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. Sections 182 to 188 of the Act make provision for the enforcement of body corporate by-laws by the body corporate and by individual lot owners and occupiers.

In both the application and the "Notice of Continuing Contravention of a Body Corporate By-Law" dated 14 April 2004, the body corporate has relied on By-Law 2.1. Given that it is not contended that the respondents are parking on the common property, I consider that By-law 2.1 is not relevant to this dispute. This By-Law regulates the parking of a motor vehicle and a recreational vehicle on a lot, and would be applicable, for example if a motor vehicle was not being parked on a lot in accordance with its terms and conditions. By-Law 2.1 does not make any provision for the parking of vehicles on the common property. This dispute relates to the parking of a vehicle on the common property. As By-Law 2.2 provides for parking on the common property, I consider that this By-Law is relevant to this dispute. While the body corporate has relied on the incorrect By-Law, I have decided to proceed with the application on the basis that there is no contention that a vehicle is being parked on the common property, and the matter has been in dispute for some time.

My reading of By-Law 2.2 indicates that an occupier can park on common property without body corporate consent if authorised by an exclusive use by-law or if the area is designated as a visitor carpark. Body corporate consent is necessary if the occupier is proposing to park on another part of the common property. It is clear that the respondent is not parking on a part of the common property allocated for the exclusive use of the lot. However, it is not apparent as to whether the area on which the respondent is parking is a designated visitor car space or another part of the common property. While I note that the body corporate is awaiting a decision from the Gold Coast City Council about visitor parking allocations in the scheme, for the following reasons, I do not consider that this uncertainty affects the decision I have made on this matter:

• An area designated for visitors parking is for the use of visitors only despite any body corporate by-law which may authorise an owner or occupier to park in that area. This matter has been the subject of many applications to this office and adjudicator’s have consistently held that "These spaces are a universal local government requirement for the registration of a community titles scheme, and remain 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" (Order No. 0693-1999). Therefore, the respondent does not have a right to park a vehicle on a common property car space designated for the use of visitors to satisfy local authority requirements.
• It is clear that the respondents do not have the consent in writing of the body corporate to park a vehicle on the common property.

I am of the view that the respondents do not currently have a right to park a vehicle on the common property. However, given the circumstances of this matter I have not ordered that the respondents are to immediately cease parking on the common property. It is clear that other owners and occupiers are similarly parking on the common property, possibly in contravention of the By-Law. I do not accept the body corporate’s contention that the caretaker should be asked why other vehicles have not been given breach notices. It is a function of the body corporate under section 94 of the Act to enforce the by-laws reasonably, and sections 182 to 188 of the Act make provision for the enforcement of body corporate by-laws by the body corporate. The committee, as the administrative arm of the body corporate has power to make body corporate decisions, including decisions about body corporate by-laws. The body corporate has taken an action against one lot owner, and if the body corporate complies with its obligation to act reasonably, it must also act in a similar manner against other owners or occupiers who are similarly breaching the Vehicles By-Law. Further, the body corporate has relied on the incorrect by-law, and has not previously required the respondents to request the proper consent.

On the basis that I consider that there are grounds to support a contention that the body corporate has not acted reasonably in taking this action against the respondents, I have provided the respondents with the opportunity to request body corporate consent under By-Law 2.2(a). This consent can be given by the committee (unless it is a restricted issue under section 24 of the Accommodation Module), or by the body corporate by ordinary resolution at a general meeting. If this consent has not been obtained within 2 months of this order, then the respondents must comply with By-Law 2.2 and cease parking on the common property. The 2 month timeframe should also be viewed as giving the respondents the opportunity to make other arrangements for the parking of the vehicle if body corporate consent is not given. This could include housing the vehicle on the lot in accordance with By-Law 2.1, or in another place. The respondents could also seek the enforcement of the by-law against other owners or occupiers under sections 182 and 185 of the Act. For more information about the enforcement of by-laws, the respondents may choose to contact the Information Service of this Office on 1800 060 119.

However, I would suggest that the body corporate gives serious consideration to the issue of parking on the common property and if necessary contemplate the making of new by-laws that reflects any change in the policy regarding parking on the common property, especially given the comments I have made regarding the parking on designated visitors car spaces. I would also suggest that if the respondents make a written request to park a vehicle on the common property, that the body corporate treat this request reasonably given the fact that other owners and occupiers are similarly parking on the common property. The respondents would be entitled to be aggrieved if they do not obtain the necessary consent and the body corporate takes no action against other owners and occupiers. This action could ultimately result in further applications to this office.