Daroonda [2005] QBCCMCmr 289 (31 May 2005)

Last Updated: 5 July 2005

REFERENCE: 0203-2005

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	12871
Name of Scheme:	Daroonda Community Titles Scheme
Address of Scheme:	36 Rolle Street, HOLLAND PARK QLD 4121

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Jennifer Margaret Smith, the owner of Lot 6:

I order that the respondent (David Gordan Andrews) remove any vehicle/s parked on any portion of common property within the Daroonda Community Titles Scheme within 4 weeks of the date of this order. I further order that the respondent (David Gordan Andrews) refrain from parking any vehicle/s on common property unless first complying with the requirements of by-law 11 of the community management statement of the Daroonda Community Titles Scheme.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0203-2005

"Daroonda" CTS 12871

The applicant has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 ("the Act") -

"That Mr Andrews vehicles be removed from common property."

Jurisdiction:

This is a dispute between an owner of a lot Jennifer Margaret Smith (the applicant) and another owner of a lot David Gordon Andrews (the respondent) concerning the use of common property within the scheme. This is a matter which falls within the dispute resolution provisions of the legislation (see sections 227, 228 and 276 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 this 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) of the Act). An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 284(1) of the Act).

Application and Submissions:

Under section 243 of the Act, a copy of the application was provided to the respondent and all owners in the scheme with an invitation to respond to the matters raised in the application. The respondent and a few owners have provided submissions in reply to the application.

I do not propose to outline in detail the materials submitted in support and in reply to the application. I will however provide an overview of the major points raised in this application.

The Daroonda Community Titles Scheme provides one parking bay for each lot each bay being accessed from a common property driveway. At one end of the parking area is an area of common property where there is sufficient room to park three vehicles. The applicant alleges that the respondent has used this area to park three vehicles on for varying periods of time and to store other items of property. This in essence is the nature of the applicant’s concerns.

The applicant advises that approximately 12 months ago the respondent moved into Lot 1 and soon thereafter took up parking three vehicles on the common property area in question. In January 2005 the respondent caused other items to be stored on the area of common property in question (namely carpet rolls, old kitchen cabinets and white goods) for a period of 8 weeks.

In an effort to address this situation the applicant took up the parking issue with the respondent and the body corporate. The body corporate did not choose to get involved in the matter and as no satisfactory outcome had been reached the applicant resolved to lodge a dispute application with the Commissioner. I note that the applicant sought the issue of a contravention notice for breach of a by-law under the Act by the body corporate but it elected not to proceed with the issue. I will accept that the requirements of section 185 of the Act have been complied.

In reply to the application the respondent confirmed his usage of the common property area in question including how he used the area and for what time periods. The respondent acknowledged his awareness of the by-laws applicable to the scheme (although he states that he only became aware of them late in 2004). The respondent also advised that he believed that this issue will resolve itself in the near future as he has disposed of all the ‘offending’ items of property and will soon sell the last of the subject vehicles. I thank the respondent for his reply to this matter.

I note an absence of comment about whether an application was made to or approval given by the body corporate for use of the common property area by the respondent. No doubt if this had been done it would have been raised by the respondent. On this basis I can safely assume that no such application was made or approval given to the respondent about this matter.

After considering the application the Commissioner for Body Corporate and Community Titles determined that this matter would be an appropriate matter to be referred for adjudication.

Determination:

"Daroonda" was established on 22 September 1976. Under the transitional provisions of the (new) Act the scheme was subject to the Body Corporate and Community Management (Standard Module) Regulation 1997. One new community management statement has been lodged since the creation of the scheme which confirmed the regulatory module to the Body Corporate and Community Management (Standard Module) Regulation 1997 ("the Standard Module"). The new community management statement became operative on 15 July 2000.

The current dispute involves the actions of the respondent of parking vehicles on the parts of the common property of the scheme. The scheme is regulated by by-laws those being included in the community management statement. In particular the community management statement includes by-law 11 which provides:

"11. Vehicles. 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."

Relevantly the community management statement also includes by-law 12 which provides:

"12. Obstruction. A proprietor or occupier of a lot shall not obstruct lawful use of common property by any person."

In applications of this sort the usual course to adopt is to strictly apply the by-laws. The by-laws are designed to allow all owners fair and reasonable use of scheme assets and common property and unless there are significant reasons to excuse there operation then they should be applied.

I note that the respondent had the option to seek approval to use the area in question to park his ‘extra’ vehicles. Despite this being available it was not used. Neither, it appears, did the respondent take the time to ask a neighbour or contact the body corporate directly to discuss his needs which may have circumvented this application. I will however commend the respondent’s candour and honesty in acknowledging his position and clear admissions in using the common property.

In taking a firm line in this matter I will warn other lot owners that even in cases where visitors stay just for a couple of days that body corporate approval should be sought and all by-laws complied with.

Decision
I order that the respondent (David Gordan Andrews) remove any vehicle/s parked on any portion of common property within the scheme within 4 weeks of the date of this order.

I order that the respondent (David Gordan Andrews) refrain from parking any vehicle/s on common property unless first complying with the requirements of by-law 11 of the community management statement of the Daroonda Community Titles Scheme.

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