Penrose [2005] QBCCMCmr 219 (21 April 2005)

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

I hereby order that the owner of lot 1, Maree Grace Harbott, shall from the date of this order cease parking her vehicle (or any vehicle) on the common property driveway of the scheme.

I hereby order that the occupier of lot 1, Jonathon Harbott, shall from the date of this order cease parking his vehicle (or any vehicle) on the common property driveway of the scheme.

I further order that the owner of lot 1, Maree Grace Harbott, shall from the date of this order take all reasonable steps to ensure that her visitors, tradesmen and family members do not park any vehicle on the common property driveway of the scheme.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0116-2005

"Penrose" CTS 8261

ORDER SOUGHT

The applicant Marcia Elaine Rankin has sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) as follows:

I would like Mrs Harbutt and her son Jonathon to park their cars somewhere other than in the driveway or common area.

JURISDICTION

The application evidences a dispute between an owner of a lot included in a community titles scheme and the owner of another lot included in the scheme (section 227(1)(a) of the Act).

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

(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)).

SCHEME DETAILS

Penrose is a Community Titles Scheme comprising 2 lots and common property. The building unit plan (now described as a building format plan) registered on 17 October 1985. The scheme is regulated by the Body Corporate and Community Management (Standard Module) Regulations 1997 (Standard Module).

BACKGROUND

The applicant stated that she has lived in her lot for over six years and during that time she has experienced ongoing problems with the adjoining owner, Mrs Harbutt, and with Mrs Harbutt’s son, Jonathon, both of whom regularly park their vehicles on the common property, thereby blocking access to the applicant’s property. The applicant provided photographs of the alleged parking infringements.

The applicant also provided a sketch of the area, with various dimensions shown on it. The sketch included the positioning of the Harbutt’s vehicles.

Mrs Harbutt was invited to respond to the application. No submission was received. After the application was forwarded to Mrs Harbutt, the applicant provided further information on 2 March 2005 in relation to another incident allegedly involving Mrs Harbutt. The applicant provided a copy of the further information to Mrs Harbutt by posting it to her address on 2 March 2005.

On 7 March 2005 the person assisting the applicant, Mr Allan Vallis, wrote to the Commissioner advising that the letter forwarded to Mrs Harbutt had been returned via the applicant’s letter box on 4 March 2005. The envelope which bore the postmark of 2 March 2005, and which was addressed to "Ms M Harbutt 1/20 Botanical Drive Labrador 4215" was endorsed with the following comments:
"I am not open your letter Alan no way Never read it You are so stuiped"
(typed as written)

It is not clear by whom the comments have been made. It is however, in my view, reasonable to infer that the comments have been made by Mrs Harbutt.

DETERMINATION

The body corporate legislation allows bodies corporate to adopt by-laws, which in general terms, may provide for the administration, management and control of common property and body corporate assets, as well as regulating the use and enjoyment of lots, common property, body corporate assets, and any services and amenities supplied by the body corporate (section 169 of the Act). The parking of vehicles on common property is a matter that is commonly dealt with by body corporate by-laws.

By-laws for particular bodies corporate are stated in the community management statement applying to the scheme. In accordance with section 59(2) of the Act, the community management statement for a community titles scheme (including the by-laws), is binding on the body corporate, and the owners and occupiers of lots included in the scheme.

In this scheme, the body corporate adopted the by-laws in Schedule 3 of the Building Units and Group Titles Act 1980 (BUGTA), being the Act under which the scheme was originally created. At a meeting held on 18 October 1985, the day after the plan registered in the Titles Office, the body corporate resolved by resolution without dissent to add two further by-laws granting exclusive use of certain parts of the common property to each of the two owners. Based on the photographs provided by the applicant, and by reference to the plan of exclusive use attached to the Notification of Change of By-Laws recorded in the Titles Office on 4 November 1985, the only area of common property not allocated to either of the owners under the exclusive use by-laws is the concrete driveway leading from Botanical Drive up to the garages of each lot.

I note that the applicant has named a "Mrs Maree Harbutt" as the respondent to the dispute application lodged in this office on 16 February 2005. The applicant also named "Jonathon Harbutt" as a person who would be affected by the outcome sought in the application. I further note that the letter from this office enclosing a copy of the application and inviting a written submission was addressed to "Mrs Maree & Mr Jonathon Harbutt". That letter was not returned unclaimed to this office.

I further note that a copy of the applicant’s letter of 2 March 2005 to this office providing further information in relation to the dispute, was forwarded to "Ms M Harbutt". That letter was returned to the applicant on 4 March 2005, with the endorsement to which I have referred above. The endorsement does not indicate that the letter was returned on the basis that the person to whom it was addressed did not live at that address.

The owner of lot 1 is Maree Grace Harbott.

Whilst the author of the endorsement on the envelope addressed by the applicant to "Ms M Harbutt" has not been identified I consider that it is reasonable to conclude that Mrs Maree Harbott at least has received the letter from this office enclosing a copy of the dispute application. I am therefore satisfied that written notification of the application has been given to the owner of lot 1, Maree Grace Harbott (section 243 of the Act).

Mrs Harbott has not challenged the applicant’s assertions in relation to the obstruction of the common property by her vehicle. I therefore accept the assertions. No explanation has been provided as to why Mrs Harbott does not park her vehicle in her garage. Even if Mrs Harbott’s garage were being utilised for other purposes (storage for example), this would not entitle her to park on the driveway. In these circumstances she should park her vehicle on the street.

By-law 2 provides:

Save where a by-law made pursuant to section 30(7) authorises a proprietor or occupier so to do, the 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.

There is no evidence of a by-law having been made under section 30(7) of BUGTA in relation to the common property driveway, nor is there evidence of the body corporate having consented to any person standing or parking their vehicle on the driveway.

Furthermore, by-law 3 provides that an owner or occupier of a lot shall not obstruct lawful use of common property by any person. The applicant claims that her visitors have been obstructed by Mrs Harbott’s vehicle being parked on the driveway.

The exclusive use allocation of common property relating to lot 1 includes the grassed area adjacent to and immediately in front of lot 1. Accordingly, Mr Jonathon Harbott, or Mrs Maree Harbott, may park a vehicle on that grassed area. In doing so, however, the parties need to be aware that by-law 4 specifically prohibits any owner or occupier damaging any lawn, garden, tree, shrub, plant or flower being part of or situated upon common property. The applicant complains that this grassed area has "become a mud heap". No further elaboration of this statement was given.

As neither Mrs Harbott nor Mr Harbott, nor any other person visiting the scheme has any authority to park on the driveway, I have made appropriate orders to address the situation.

Mrs Harbott and Mr Harbott should be aware of the following provisions of the Act:

mentioned in subsection (1) is made.

** 1 penalty point = $75.00 (Maximum penalty $30,000.00)

Number of Scheme:	8261
Name of Scheme:	Penrose
Address of Scheme:	20 Botanical Drive LABRADOR QLD 4215

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Penrose [2005] QBCCMCmr 219 (21 April 2005)