Burpengary Gardens [2006] QBCCMCmr 2 (4 January 2006)

Number of Scheme:	19649
Name of Scheme:	Burpengary Gardens
Address of Scheme:	17 Burpengary Road BURPENGARY QLD 4505

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

I hereby order that the application for an order "that the Body Corporate and Mr Gary Willis and all owner/occupiers do not park any vehicles on or use designated Visitor Parking Spaces for any other purpose than for the parking on such Designated Visitor Parking Spaces by vehicles of Genuine Visitors to this complex situated at 17 Burpengary Road, Burpengary 4505" is dismissed.

In lieu I order that the body corporate take such positive and reasonable steps as it thinks appropriate to ensure that By-law 16 and By-law 22 of the scheme are known to, and complied with, by all owners and occupiers of the scheme.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0660-2005

"Burpengary Gardens" CTS 19649

APPLICATION

This is an application dated 14th September 2005, and amended on 20^th September 2005, by Warwick Parkinson and Annette Parkinson, (the applicants) co-owners of Lot 35 (Unit 55) against the body corporate for the scheme ( the body corporate) for an order that all members of the body corporate, and their tenants, and Gary Willis do not park any vehicles on or use the designated visitor parking spaces for any other purpose other than for genuine visitors.

JURISDICTION

"Burpengary Gardens" CTS 19649 is a community titles scheme governed by 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 62 lots in the scheme created under a building unit plan of subdivision.

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

(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 applicants say that the body corporate allows Gary Willis, (Mr Willis) owner of Lot 57, and occupier of Lot 43 (Unit 36), and caretaker for the scheme, as well as other owners and occupiers to park in the visitor car parking spaces on a regular intermittent basis. On 1^st October 2004, the applicants referred to "breach of by-law 2" concerning vehicles parking on common property, and sent a BCCM Form 1 Notice to Body Corporate of Contravention of a Body Corporate By-Law. The body corporate did not send a contravention notice to Mr Willis.

Further, the body corporate has given written permission for Mr Willis to use the visitor parking spaces for his vehicle and for other uses, such as dumping garden materials. The committee has also allowed other owners/occupiers to park in the designated visitor bays.

The applicants say that such use obstructs genuine visitors. The applicants have tried to reason with the committee and sought an interview with the body corporate manager but been refused. The applicant Warwick Parkinson is a past chairperson of the scheme and says he is aware of the by-laws which he says are now only being enforced in a discriminatory way, with friends of the committee receiving favoured treatment.

The applicants provide photographs of 5 vehicles in the visitor car-parking bays taken in August and September 2005. They are Mr Willis’ ute, registration number 573 HLT; a car registration number 652 FXY ; a car registration number 117 IQN; a car registration number 821 FZJ; and a car registration number 654 IJD. Car registration number 821 FZJ was later withdrawn from the complaint as this was a visitor’s car.

The applicants provide a copy of a letter dated 25^th January 2005 from the body corporate saying that the by-laws make allowances for the use of service vehicles within the complex and that since Mr Willis was the caretaker he was given authorisation to park in the visitor designated bays.

They also provide copies of committee meeting minutes to demonstrate the committee’s discriminatory approach. On 19^th January 2005, following two respective requests by a Vicki Jones, and the occupier of Unit 57, both wishing to use the visitor car park permanently, the committee resolved that " no permanent car parking approval can be given for the use of visitors car parks... ." . At the same meeting, the applicants’ BCCM Form 1 was considered and the committee resolved that " letter of response be written and advise committee have given approval due to work required by caretaker." At a previous committee meeting on 18^th August 2004, an EM Jackson requested permission to park a car opposite Unit 5, which is a visitor car parking area. The committee resolved that approval be granted until the next committee meeting "providing the conditions of the body corporate are met..."

The application attracted 15 submissions all against the application in that none of the submitters supported the application or thought it was necessary. All were in support of Mr Willis having his works vehicle close at hand whilst he was working, and none said that Mr Willis or any other car parked in the visitors’ parking bays caused an obstruction or inconvenienced them. Long term residents noted that "at no time has there been insufficient parking for visitors" and the design of the complex is such that residents sometimes need to park in places other than their garages in order for access to be gained to units by tradesmen. "There are 25 visitor spots in the carpark and always space there" said another resident. The submitters deny that there is any favouritism by the committee, and that wrongdoers receive breach of by-law notices.

Mr Willis says that he was on-site caretaker from September 2003 to September 2005, and during that time his ute was used daily on the complex, and he stored his tools in it. At evenings and weekends it would be parked in his own driveway. The previous caretaker also used his vehicle in the same manner. He says –

He says the committee has acted fairly and even-handedly in respect of the by-laws.

James and Elizabeth Jackson of Unit 5 (Lot 62), who are responsible for one of the four vehicles photographed by the applicants, admit that they use the visitor bay car park opposite Unit 5, but the committee gave them temporary approval to do so when their son came to live with them. The committee has since stated that it cannot give permission permanently now their son has taken up permanent residence, but they continue to park there since there are 26 car parking spaces for visitors which are "nearly always empty." Whilst they acknowledge that parking in the visitors’ bay is wrong, they say the applicants are not harmed by their parking. They say that the committee has supported them on compassionate grounds but they are trying to find somewhere else for their son to park.

Brad Knight , the chairman, says that as parking matters arise, the committee deals with them. He does not live on the complex so it is hard to monitor parking unless formal complaints are received. He does not believe there are any problems of which he is not aware.
Vani Reynolds, of Unit 47 says that she at a loss to understand what the application is about. Since Mr Willis was the caretaker he could " of course" park anywhere on site whilst he was working, as could any other contractor. She says the committee is "addressing the parking issue" and are " taking the softly softly approach" and getting results.

Ms Fiona McNamara (Ms McNamara), also a committee member of Unit 34 provided me with a site plan showing 6 areas of visitor car parking. She denies any favouritism by the committee saying that following a formal complaint, offenders are sent breach notices. She says there has only been one formal complaint since 2003. She attaches minutes of committee meeting on 10^th August 2005 showing a formal complaint made by Jessi Muir and Dylan Jones about 2 cars parked by occupants in visitors car parks outside unit 30. The committee ordered breach notice issued to owner of number 32.

She says that the applicants’ photograph of car registration 117 IQN is the first time that it has been bought to the committee’s attention that the occupier of unit 2 is using visitor car parking. She says that the applicants were aware, since Warwick Parkinson was the chairman at the time, that in Mr Willis’ contract of hire, the firm for which he worked, Earth and Garden, was given permission to park on common property. The previous caretaker also parked on the visitor’s car parking bays.

She says the only genuine ground for complaint is that the Jackson family were given temporary permission by the committee to park one car as there were " special family circumstances." She says that the committee is slowly "changing the way people do things." The previous committee used to allow residents to park a second car in the visitors’ parking bays, and there is a process of education going on.

The general view of the 15 was that the applicants were " making mountains out of mole hills... and that there is no substance in the application."

In reply the applicants say that the quality of the caretaker’s work and the work done by the committee is not the issue. Mr Willis has left since the making of the application. They say that importantly the committee never gave them any information about giving Mr Willis a contravention notice. Further, whilst permission to the Jacksons’ was given on a temporary basis, it has never been reviewed.

DETERMINATION

In this matter it is not disputed that Mr Willis, when he was caretaker for the scheme, parked his ute on the visitor’s car parking area. It also appears that James and Elizabeth Jackson of Unit 5 (Lot 62) use the visitor’s parking bay opposite their unit and have been granted temporary permission from the committee to do so, on compassionate grounds, on the understanding that such permission may be subsequently withdrawn.

There appear to be other residents who park or have parked in the visitors parking bays, notably the occupiers of Unit 32 who have been sent a contravention of by-law notice from the body corporate, and the occupier of Unit 2. Ms MacNamara who is on the committee, says that Unit 2’s car has not been previously reported to the committee.

Section 94(1)(b) of the Act requires that a body corporate must enforce the community management statement including any by-laws for the scheme. The by-laws for this scheme relevant to this matter are by-law 16 "Obstruction," and by-law 22 " Vehicles"

By-law 16 states –

"A Proprietor or occupier of a Lot shall not obstruct the lawful use of the common property by any person. In addition, pathways and driveways on the common property and any easement giving access to the common property shall not be obstructed by any such Proprietor or occupier or used by them for any other purpose that ( sic) the reasonable ingress and egress to and from their particular unit."

By-law 22 states-

"A Proprietor or occupier shall not park or stand any motor vehicle on any street or park in a visitor(s) parking area within the confines of the Body Corporate. A Proprietor or occupier must not park in the visitor(s) car park.

A Visitor(s) shall not park or stand any motor or other vehicle on any street within the confines of the Body Corporate.

Visitors must park in the designated visitor(s) parking areas. Visitors must not park on grassed areas except where specifically signed and set aside for the visitor parking.

The only exception to the above shall be service vehicles."

Section 94 of the Act also states that the body corporate must act reasonably in anything it does under subsection 94(1). (Section 94(2))

The reason for the existence of by-laws in a community titles scheme is to lay down ground rules for the social co-existence of several close neighbours using the same facilities, with the object that such rules, if adhered to, will prevent inconvenience or annoyance being caused to other lawfully in the complex, and using those facilities.

Whilst it is clear that only genuine visitors may park in the carparking bays, the applicants have made no mention of the fact that such intermittent parking causes them or any other residents ( or indeed any genuine visitors) any inconvenience whatsoever. They say that Mr Willis’s parking obstructed visitors but give no instances of such circumstances.

It is agreed that Mr Willis arranged for a large amount of soil to be delivered onto the visitor’s parking bays on 7^th September 2005, and that an area of the visitor parking bays was at that time unusable for a day. However, even this obstruction while work was in progress, and which seems to me to be a reasonable obstruction because of its temporary nature and the necessity to take delivery of topsoil to some point in the complex, does not appear to have caused any distress or inconvenience to any residents or genuine visitors. In other words, it is not alleged by the applicants that the soil prevented them from receiving visitors, for example, or obstructed access to their residence.

However, any owner is entitled to seek that the by-laws are enforced. The applicants sent to the committee on 1^st October 2004, a notice of Contravention of a Body Corporate By-Law, complaining about Mr Willis parking his ute registration number 573 HLT in a visitor parking bay area. Section 182(3) of the Act states that if the committee is requested to issue a continuing contravention notice, it must within 14 days after receiving the request advise the person who made the request that the continuing contravention notice has been given to the offender. However, the section only applies "if the body corporate for a community titles scheme reasonably believes that a person who is the owner or occupier of a lot included in the scheme is contravening a provision of the by-laws for the scheme.." There is provision made for the person making the request to make an application to the Commissioner’s office if the body corporate does not issue the notice, and this is what the applicants have done. (Section 185(2) Act).

The applicants quoted on their BCCM Form 1, a by-law from Schedule 3 of the Building Units and Group Title Act 1980, which are generic by-laws not applicable to the scheme. The scheme has its own specific by-laws recorded in the Land Titles Registry on the Community Management Statement on 10^th June 1999. It appears that the committee has not pointed out this error to the applicants, but where a complainant has brought a suspected breach to the attention of the committee, the notice was enough, in my view, for the body corporate to be requested to act. The committee did respond following a committee meeting on 19th January 2005, where correspondence going back to August 2004 was considered.

The body corporate wrote to the applicants on 25^th January 2005 pointing out that "the by-laws make allowances for the use of service vehicles within the complex ." The body corporate did not quote by-law 22. The applicants would have been aware at that time that the committee did not "reasonably believe " that a provision of the by-laws had been breached, and were not proposing to sent a breach notice to Mr Willis.

The applicants seem to place importance on the fact that Mr Willis was not only caretaker but also a resident, so that his vehicle was in fact a "resident’s vehicle." This argument cannot be supported. Mr Willis was a caretaker for the scheme and used his vehicle in his role as caretaker. In that role it was a "service vehicle" excluded under the proviso of By-law 22. It is common practice for a caretaking service contractor also to be an owner of a unit in the scheme, or at least live "on-site."

The applicants in their reply also say that the committee never advised them that it had given Mr Willis a contravention notice. In his submission, whilst it is not entirely clear, it appears that Mr Willis is talking about the notice the applicants sent to the committee, which was perhaps shown or given to him, and not about a notice emanating from the committee. The committee would hardly tell him that a notice issued by the committee was " invalid". It is not in my view in any event a particularly relevant or important point that the committee did not send a breach notice to Mr Willis. The committee is not obliged to do so if it does not reasonably believe that a breach has occurred. If it does do so, it should inform the person who has requested that one is sent. What is clear is that it was Mr Willis’ understanding from the committee that he was doing nothing wrong by parking in the visitor’s parking bays whilst performing his duties, and that this was communicated to the applicants by the committee in the letter of 25^th January 2005.

Submitters have taken pains to point out that intermittent parking in visitors parking spaces has caused no detriment to be suffered by residents in the scheme, and that there has never been a lack of parking places. However, it is generally a local authority requirement that a scheme carries a certain number of visitor car parking spaces, and if this is the case, it is not within the power of the committee to allow usage by a resident. In matter 0679 of 2003 "The West Quarter" CTS 26479, the adjudicator said –

"The provision of designated areas of the common property for visitor parking is a requirement of local government. The number of car spaces is calculated by the Brisbane City Council according to its formula based on the number of lots, their configuration and other things; other local government authorities have similar requirements regarding the number and position of visitor spaces though the formula may vary. These spaces cannot be used by any person other than a genuine visitor; .....

While it may be true that the visitor car spaces may be vacant much, or most, of the time, these are designated visitor spaces required by the local government, the Gold Coast City Council, to be used for visitor’s parking. These spaces are a universal local government requirement for the registration of a community titles scheme, and remain a continuing requirement of the scheme. Even if the body corporate wanted to use these spaces for resident parking, or some other purpose, it is not able to do so...There is no question of the respondent, or any person other than a genuine visitor, being allowed to park in the designated visitor car spaces."

I am not advised if this is the case, but if so, the body corporate may like to approach the local authority to see whether the number of designated visitor spaces can be varied in some way, for example, for dual usage, or general purpose. It does seem that there are sufficient visitor spaces for some to be redesignated for this purpose, and I would suggest that a submission should be made to the Council to this end. I have no jurisdiction in this area and can only suggest it to owners in general and the body corporate committee in particular.

Since Mr Willis has now resigned his post, and it appears that the committee are now aware of specific cars being intermittently parked, and since the committee has pledged its adherence to the by-laws by a programme of education for residents, I find that the body corporate requires no specific direction. Apart from an order against Mr Willis, which is now redundant, the applicants seek an order that owners/occupiers do not park in designated visitor parking spaces, that is, they seek an order that the body corporate enforces its by-laws. I am confident that it will do so.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Burpengary Gardens [2006] QBCCMCmr 2 (4 January 2006)