Tahlia Court [2005] QBCCMCmr 345 (23 June 2005)

Last Updated: 2 August 2005

REFERENCE: 0026-2005

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	20295
Name of Scheme:	Tahlia Court
Address of Scheme:	Russo Court Strathpine Qld 4500

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

Mr Neal Parsons, the occupier of lot 11

I hereby order that the application for an order that Neal Parsons, as occupier of Lot 11, may park either one vehicle in the visitors parking area, or two vehicles uncovered within the boundary of Lot 11 is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0026-2005

"Tahlia Court" CTS 20295

APPLICATION

This application is made by Mr Neal Parsons the occupier of Lot 11 (the applicant) against the body corporate of "Tahlia Court" CTS 20295.


JURISDICTION

"Tahlia Court" Community Titles Scheme 20295 is a scheme under the Body Corporate and Community Management Act 1997 (the Act) and the Body Corporate and Community Management ( Standard Module) Regulation 1997 (the Standard Module).

There are 16 lots in the scheme and the buildings are created under a Group Title Plan of subdivision (GTP).

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

On 13th March 2005, following a request for further information sent from this office on 28th February 2005, the applicant provided four photographs of the garage area of Lot 11 and the visitors car park which were accepted as additional material to his application under section 245 of the Act. In accordance with the Act, submissions were called and a copy of the application provided to all members of the body corporate. There were three submissions received, being from Mrs Joan Kennedy owner of Unit 9; Mrs Cazna Shield owner of Unit 4; and Mr Harry Wolf, owner of Unit 12. The applicant did not make a reply to submissions.

DETERMINATION

The applicant has two adult sons each with cars and wishes to accommodate three cars within the boundary of Tahlia Court. He seeks an order of the Commissioner that he can park "one extra car" either within the boundary of unit 11 or in the visitors’ car park as shown in a diagram which was part of his application. The "one extra" car refers to one car in addition to the two car capacity provided for each unit, that is one in the garage and one on the hard standing area beside the unit.

It appears that the visitor parking area of common property has capacity for 6 cars, three on either side of the main driveway.

The 16 units consist of 8 duplexes with common property between each set of duplexes. The yard of Unit 11 measures 7.09m by 5.01m as shown on Group Titles Plan 2681 Sheet No. 2(a).

The relevant by-laws for the scheme are as follows:-

Vehicle Parking

7.	The occupier of a lot must not, without the Body Corporate’s written approval:-

(1) park a vehicle, or allow a vehicle to stand, on the common property; or
(2) permit an invitee to park a vehicle, or allow a vehicle to stand, on the common property.
(3) An approval under subsection (1) must state the period for which it is given. However, the Body Corporate may cancel the approval by giving 7 days written notice to the occupier.

8.	An owner or occupier of a lot shall not park nor stand any motor vehicle or other vehicle upon areas set aside for visitor parking.
9.	An owner or occupier of a lot shall ensure that their invitees use the visitor car parking area only for its intended purpose of casual parking.
10.	An owner or occupier of a lot shall not park nor stand any other vehicle upon common property except with the consent in writing of the Body Corporate.
11.	An owner or occupier of a lot shall not park or stand more than one vehicle on the uncovered area of their lot.

The applicant in a phone call to this office on 24th January 2005 advised that he had sent a letter to the body corporate committee but had not kept a copy and had lost the reply.

On 28th February 2005, the applicant was asked by this office to provide details of his written request to the body corporate seeking the approval of the proposed parking arrangements, copies of any written response, or a copy of the minutes of any meeting, details of any verbal communication with the body corporate on the issue; and photographs of the current and proposed parking areas.

For the purposes of this order it is presumed that the reply was in the negative and that the applicant has not received any relevant approval from the body corporate and that he is therefore in dispute with the body corporate concerning parking of an additional car.

Two of the three submitters, Mrs Joan Kennedy owner of Unit 9, and Mrs Cazna Shield, owner of Unit 4 are opposed to allowing the applicant to park an additional car, although Mrs Kennedy objected only to it being parked on common property (as opposed to a second vehicle within the boundary of the unit) and to the noise particularly from the visitors’ parking area. The third submitter Mr Harry Wolf, owner of Unit 12 supported the application with regard to either of the proposed parking places.

Submitter Mr Wolf says that the matter was discussed at the annual general meeting on 9th February 2005 and that there was a general consensus that the applicant be allowed to park at either of the proposed parking places, but there is no evidence that this was a motion put to a general meeting.


Parking on common property / Parking in a visitor parking area/ Parking a second vehicle on the uncovered area of a Lot
The by-laws for Tahlia Court are detailed with regard to parking. On 1st April 1998, the body corporate registered a new community management statement inter alia amending its by-laws to the current wording, and changing the by-laws relevant to parking, previously Items 50 and 51, as set out below:-

50 (a) A proprietor or occupier of a lot shall not park nor stand any motor vehicle

or other vehicle upon areas set aside for visitor parking.

(b)	A proprietor or occupier of a lot shall ensure that their invitees use the visitor car parking area only for its intended purpose of casual parking;

(c)	A proprietor or occupier of a lot shall not park nor stand any other vehicle upon common property except with the consent in writing of the body corporate.

51 Except where accommodated within a garage a proprietor or occupier shall not park, nor stand, nor permit the parking or standing of any caravan, trailer, boat or motor vehicle upon his lot unless for the purpose of immediately loading or unloading the same.

It is relevant that the amendment made in 1998 to by-law item 51 allowed one vehicle to park on the uncovered area of the lot whereas previously such standing was only for loading and unloading. However, unlike the provision of current by-law item 7, (an echo of former by-law item 50 (c)) that the body corporate may give approval to park on common property, there was no provision drafted for the body corporate (ie the committee as representatives of the body corporate or the body corporate at a general meeting) to give written approval for a second vehicle to be parked on an owner’s lot.

Both the former by-laws and the current by-laws also clearly differentiate between "common property" and "areas set aside for visitor parking." Again, whilst the body corporate may give written approval for an owner or occupier to park on common property by virtue of by-laws item 7 and 10 (which appears only to add the word "owner" to by-law item 7), there is no such provision for the body corporate to give approval for any owner or occupier to park in a visitor car-parking area, albeit that a visitor car-parking area is part of common property.

It is not clear from the application or submissions where the applicant is at present parking the third vehicle. However, I note that there is no evidence of a current breach of by-laws.

All members of the body corporate are entitled to have their by-laws enforced. If the body corporate wishes to amend its by-laws in respect of parking, for example, in respect of by-law item 11, that the body corporate may give written approval to park or stand more than one vehicle on the uncovered area of a lot, then it may do so in the usual way, ie. by a motion passed by special resolution at a general meeting and recording a new community management statement in the Land Titles Registry.

Following such amendment, the applicant can then seek approval which may be given at the discretion of the committee, or by ordinary resolution at a general meeting of the body corporate.