Baker Street [2005] QBCCMCmr 88 (16 February 2005)

Last Updated: 5 July 2005

REFERENCE: 0684-2004

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	24152
Name of Scheme:	Baker Street
Address of Scheme:	6 - 14 Sheriff Street Hermit Park Qld 4812

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

Edward William Mann, the owner of lot 9

I hereby order that the application by Edward William Mann, the owner of lot 9, for an order that the body coprorate reinstate correct signage at the complex entrance and visitor parking areas, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0684-2004

"Baker Street" CTS 24152

The applicant, Edward William Mann, the owner of lot 9, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) quote –

Reinstate correct signage at complex entrance and visitor parking areas.

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)). The scheme is a subdivision of 13 lots recorded under a building unit plan (now a building format plan) of subdivision. The regulation module applying to the scheme is the standard module.

This dispute concerns the validity of a resolution carried by the body corporate in 1998 which resolved that a sign "Residents Vehicles Only" be placed at the entrance to the complex. After the recent purchase of his lot, the applicant discovered that the parking spaces were in fact 10 visitor parking spaces required by the local authority. The applicant initially directed his concerns to the local authority which responded that the then current sign would be replaced "with a complying sign at the earliest". The new sign reads "car parking onsite". This wording is acceptable to the local authority, but not to the applicant who is concerned at insurance implications of owners parking or using spaces allocated for visitor parking. He states in correspondence to this office:

To completely satisfy any insurance company should injury etc take place and to ensure that this body corporate is "risk free", the front signage needs to be "Visitor Parking Only Onsite", both of our parking areas should carry signage "Visitor Parking Only". ... (the applicant then goes on to elaborate why an insurance company would refuse or deny liability).

The applicant has not provided as part of the application or submitted to the body corporate any written evidence of his contention regarding insurance. In respect of this matter, the body corporate resolved at its recent meeting to contract the insurance company regarding insurance cover for owners parking or using visitor car parking spaces. I understand that the body corporate enquiries in this regard have established that the insurance position is not as stated by the applicant.

I consider that the applicant’s position is without substance. I conclude that the applicant is really seeking or pursuing a situation where the parking in question is reserved strictly for visitor parking. I do not have a view on this. Rather, I consider it a self management issue for the body corporate to determine. Alternatively, it is for the local authority to enforce its requirements in this regard. If the local authority is not prepared to take action, then it is not for this office to act as a de facto enforcement agency for the local authority. Specifically, if the applicant is concerned with the parking situation, then he should seek to overturn the previous body corporate resolution of 1998 in this regard. This application is dismissed.