Raintree Glen [2005] QBCCMCmr 250 (11 May 2005)

Last Updated: 5 July 2005

REFERENCE: 0145-2005

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	19967
Name of Scheme:	Raintree Glen
Address of Scheme:	27 Raintree Glen RUNAWAY BAY QLD 4216

TAKE NOTICE that pursuant to an application made under the abovementioned Act by the Body Corporate for Raintree Glen community titles scheme 19967

I hereby order that Sevil ALDAS and Aydin ALDAS, the owners of Lot 22 must: 1. Within two (2) weeks of the date of this order cease parking a vehicle on any part of the common property for the scheme in contravention of By-Law 3(a) of the By-Laws for the Community Titles Scheme. 2. Immediately cease driving a vehicle on any part of the common property in a manner in contravention of By-Law 3(b) of the By-Laws for the Community Titles Scheme, and to the greatest practical extent, ensure that their invitees drive a vehicle on any part of the common property in accordance with By-Law 3(b).

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0145-2005

"Raintree Glen" CTS 19967

APPLICATION

This application is by the body corporate (applicant) against Sevil and Aydin Aldas, the owners of Lot 22 (respondents). The applicant is seeking an outcome that the respondents:

•	Cease parking a vehicle or permitting any resident of the Lot to park a vehicle on a visitor car parking space or on any other part of the common property.
•	Cease driving a vehicle, or permitting any resident of the Lot from driving a vehicle on the common property at a speed greater than 10 kph or such other speed that the body corporate shall from time to time determine.

JURISDICTION

"Raintree Glen" Community Titles Scheme19967 is a 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

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

• Since the respondents purchased Lot 22 in February 2003, the body corporate has on numerous occasions given notice to them about the matters which are the subject of the application. The body corporate has provided a copy of four letters given to the respondents about these matters in 2003.
• The problem ceased in 2004, but in late 2004 the previous practices recommenced.
• The body corporate gave another letter to the respondents in December 2004, followed by a "Notice Regarding Likely Future Contravention of a Body Corporate By-Law’ dated 17 January 2005.
• Since this time, at least one vehicle belonging to the respondents has been parked on the common property, and one vehicle in particular has been driven in excess of the permissible 10 kph.

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

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

• They originally parked a second vehicle on the common property, but ceased this practice after notice from the body corporate.
• However, in October 2004, a number of vehicles (including one of the respondents vehicles) parked outside the complex were damaged. They again sought body corporate approval to park on a visitor’s car space. This request was denied.
• Many other owners or occupiers also park on the common property.

DETERMINATION

By-Law 3 of the body corporate by-laws included in the community management statement (CMS) for the scheme is titled "Vehicles". This By-Law states that except where authorised by an exclusive use by-law, an occupier of a lot must not park a vehicle on the common property without the consent in writing of the body corporate committee. The By-Law also provides that an occupier must not exceed the speed limit of 10 kph on the common property roadways. An occupier must also ensure that an invitee does not exceed this speed limit.

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.

It is clear that the body corporate has written to the respondents on a number of occasions. The body corporate has also given the respondents a "Notice Regarding Likely Future Contravention of a Body Corporate By-Law’ dated 17 January 2005 quoting By-Law 3(a) and By-Law 3(b) and identifying the respondents’ actions that are in contravention of the By-Law. The body corporate is entitled to give this notice under section 183 of the Act where the body corporate reasonably believes that a by-law has been contravened and the circumstances of the contravention make it likely that the contravention will be repeated.

The respondents have submitted that they initially complied with the body corporate’s request to cease parking on the common property. However, as a consequence of damage to one of their vehicles, it would seem that the respondents are now parking a vehicle on the common property. It would also appear that a number of owners or occupiers are similarly parking a vehicle on the common property, for the reason that they own more than one vehicle or because the garage for their lot is being used for another purpose.

I am of the view that the respondents do not currently have a right to park a vehicle on the common property. By-Law 3 requires the consent in writing of the body corporate committee, and it is plain that this consent has not been given. Without this consent, the respondents cannot park on the common property. For the reason that the respondents are bound by the terms of By-Law 3(a) and the body corporate has correctly applied the legislation in giving appropriate notice to the respondents, I have ordered that they cease parking 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 would seem that other owners and occupiers are similarly parking on the common property, possibly in contravention of the By-Law. 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 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.
Therefore, if it hasn’t already occurred, other owners and occupiers should be made aware of their obligations and be required to comply with the By-Law.

The two week timeframe should be viewed as giving the respondents the opportunity to make other arrangements for the parking of the vehicle. This could include housing the vehicle on the lot, or in another place in a manner which does not contravene the by-laws or which is in accordance with the directions of the body corporate.

In relation to the use of a visitors car space, it should be noted that 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, an owner or occupier 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.

An order has also been sought with respect to the speed limit imposed in By-Law 3(b). The body corporate has given the respondents a "Notice Regarding Likely Future Contravention of a Body Corporate By-Law’ dated 17 January 2005 quoting By-Law 3(b) and identifying the respondents’ actions that are in contravention of the By-Law. The respondents have not made any statement about this matter. On the basis that they are bound by this By-Law and have not contested the body corporate’s application, I have ordered that the respondents immediately take steps to ensure that they and their invitees comply with By-Law 3(b). The respondents should also note the requirements of section 167 of the Act which provides:

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.

The applicant has sought a decision against the respondents and any other resident of Lot 22. However, only the respondents have been named as a party to the dispute. As the other residents of the Lot (who may be occupiers) have not been named, they have not been given an opportunity to respond to the application. Therefore, I cannot make an order against them. However, the occupiers of this lot and any other lot in the scheme should note that they are bound by the scheme by-laws, including By-Law 3.

The grounds to the application refer to a reimbursement of the costs associated with the making of the application. An adjudicator does not have the power to make an order in these terms.