Raintree Glen [2005] QBCCMCmr 317 (9 June 2005)

Last Updated: 2 August 2005

REFERENCE: 0144-2005

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 Ross Healy, the owner of Lot 38 must immediately: 1. 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. 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 his 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 0144-2005

"Raintree Glen" CTS 19967

APPLICATION

This application is by the body corporate (applicant) against Ross Healy, the owner of Lot 38 (respondent). The applicant is seeking an outcome that the respondent:

•	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 Scheme 19967 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

In accordance with the Act, submissions were called and a copy of the application was provided to the respondent and to the body corporate manager for distribution to the owner of each lot. A submission was received from three lot owners. The respondent has not made a submission in response to the application.

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.

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

• The respondent was notified by letter dated 17 May 2004 concerning noise related issues, by letter dated 22 October 2004 regarding the use of common property facilities and by letter dated 28 October 2004 regarding, amongst other things, an occupier of Lot 38 parking a vehicle in a common property visitor’s car space.
• The body corporate gave the respondent a "Notice Regarding Likely Future Contravention of a Body Corporate By-Law’ dated 17 January 2005 concerning a contravention of By-Law 3 by an occupier of Lot 38.
• At least one vehicle belonging to an occupier of Lot 38 has been parked on the common property, and vehicles belonging to occupiers of Lot 38 have been observed as being driven on scheme land in excess of the permissible 10 kph.

The submissions from lot owners supported the application. While the respondent has not made a submission, I am satisfied that the respondent has been given proper notice of the application through the various correspondence forwarded to him by this office. It can only be concluded from the absence of any response from the respondent that he is not objecting to the claims made by the body corporate.

It is clear that the body corporate has written to the respondent on a number of occasions about a range of concerns about contraventions of the By-Laws by the occupiers of Lot 38 and their visitors. The body corporate has also given the respondent a "Notice Regarding Likely Future Contravention of a Body Corporate By-Law’ dated 17 January 2005 quoting By-Law 3(a). 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.

I am of the view that the respondent does not currently have a right to park a vehicle on the common property. By-Law 3(a) 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 respondent cannot park on the common property. For the reason that the respondent is bound by the terms of By-Law 3(a), I have ordered that he ceases parking on the common property.

In relation to the issue of exceeding the speed limit specified in By-Law 3(b), there is no evidence that the body corporate has given a by-law contravention notice as required by the legislation. In addition, it is difficult to assess the speed of a vehicle by observation. Therefore, I am not satisfied that the body corporate has proper grounds for seeking an order with respect to a breach of By-Law 3(b). However, given that the respondent is bound by the by-laws and has not responded to the application, I have ordered that the respondent comply with By-Law 3(b).

This is the second application from the body corporate for this scheme dealing with the contravention of By-Law 3. Given the correspondence to owners and occupiers regarding parking, it would seem that the body corporate has problems with this matter and I consider that provided the body corporate is acting reasonably with respect to the enforcement of the by-laws, it is complying with its obligation to apply the legislative processes to ensure that all lot owners and occupiers comply with the by-laws to which they are bound.

In relation to the other issues outlined in the application, the respondent and any other occupier of Lot 38 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 respondent and any other resident of Lot 22. However, only the respondent has 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, any other occupiers of this lot should note that they are bound by the scheme by-laws, including By-Law 3. The respondent should ensure that any other occupiers of Lot 38 are aware of the by-laws and the obligation to comply with the requirements of the by-laws.

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.