Tea Tree Grove At Hendra [2005] QBCCMCmr 350 (27 June 2005)

Last Updated: 2 August 2005

REFERENCE: 0035-2005

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	28335
Name of Scheme:	Tea Tree Grove At Hendra
Address of Scheme:	139 Pring Street HENDRA QLD 4011

TAKE NOTICE that pursuant to an application made under the abovementioned Act by the Body Corporate for Tea Tree Grove at Hendra community titles scheme 28335

I hereby order that Arthur Vincent, the occupier of Lot 65 must immediately cease parking a vehicle in contravention of By-Law 7.04.5 of the By-Laws for the Community Titles Scheme.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0035-2005

"Tea Tree Grove At Hendra" CTS 28335

APPLICATION

This application is by the body corporate (applicant) against Arthur Vincent, the occupier of Lot 65 (respondent). The applicant is seeking an outcome that the respondent cease parking vehicles on the common property overnight in breach of By-Law 7.04.5.

JURISDICTION

"Tea Tree Grove at Hendra" Community Titles Scheme 28335 is 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 the body corporate manager for distribution to the owner of each lot. A submission was received from Edward Blaney of EMB Property on behalf of the respondent, and from three lot owners.

DETERMINATION

By-Law 7.04 of the body corporate by-laws included in the community management statement (CMS) for the scheme is titled "Vehicles" and contains detailed conditions relating to parking, storing or keeping a vehicle on scheme land. The body corporate has relied on By-Law 7.04.5 which states, quote:

No vehicle shall be parked in the designated parking bays between the hours of 12.00am to 6.30am without the prior written consent of the Committee.

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 body corporate has submitted and demonstrated that it has given the respondent a "Notice of Continuing Contravention of a Body Corporate By-Law" under section 182 and given a copy of the Notice to the lot owner as required by section 187 of the Act. The body corporate has provided material which indicates that despite this notice being given on 26 October 2004, the respondent has continued to contravene the By-Law. The body corporate has provided a copy of notes from David Moore and Tricia Dickson, the resident managers and letting agents which record a number of instances of parking infringements from the residents of Lot 65 during December 2004 and January 2005. The applicant is therefore entitled to make an application under the dispute resolution provisions of the Act. The Minutes of a Committee Meeting dated 6 December 2004 indicate that it was resolved to make this application due to the ongoing breaches of the by-laws.

The submissions from lot owners have supported the application stating that vehicles are parked on the roadway or on the grass in front of Lot 65 for durations ranging from several minutes to a couple of hours which is contrary to the By-Law. It is also submitted that the occupiers of Lot 65 have continually contravened the Vehicles By-Law despite notification from the resident manager.

Edward Blaney of EMB Property (the managing agent for Lot 65) made a submission on behalf of the respondent to the effect that the managing agent visited the scheme in January 2005 and discussed this issue with the respondent who, while accepting that he was responsible for some of the alleged by-law breaches, denied that all of the allegations were associated with the use of his vehicle. It is submitted that the respondent was advised not to park a vehicle in breach of the By-Law and the respondent agreed to comply. Mr Blaney submits that no further notification was given until the owner of Lot 65 informed EMB Property that this application had been lodged.

It is evident that the matter of the respondent parking a vehicle in contravention of By-Law 7.04 has been the subject of consideration since the "Notice of Continuing Contravention of a Body Corporate By-Law" was given in October 2004. The body corporate has provided a copy of a letter from Edward Blaney dated 6 November 2004 stating that he has been assured by the respondent that he is not continually parking vehicles in the area. Subsequent to the lodgement of the application, the respondent rang this office complaining that he was being singled out by the body corporate. Edward Blaney, by letter dated 23 May 2005 advised this office that the respondent has agreed not to park in non parking areas. He then rang this office on 21 June 2005 questioning why the matter had not been withdrawn. Despite these claims, the body corporate manager informed this office by telephone on 23 June 2005 that as far as the body corporate manager is aware that parking is still an ongoing problem and there has not been any change in behaviour and the committee want to proceed with the application.

Given the views of the body corporate, the submissions from lot owners and the instances of parking infringements by the residents of Lot 65 during December 2004 and January 2005 provided to the body corporate manager by the resident managers, I am satisfied, despite assurances which may have been given to the managing agent, that the respondent has continued to park a vehicle in contravention of By-Law 7.04.5. I am of the view that the respondent does not currently have a right to park a vehicle on the common property. For the reason that the respondent is bound by the terms of By-Law 7.04.5, I have ordered that he immediately cease parking on the common property in contravention of this By-Law.