Isle of Palms Resort [2006] QBCCMCmr 27 (19 January 2006)

Number of Scheme:	20860
Name of Scheme:	Isle of Palms Resort
Address of Scheme:	21 Coolgardie Street ELANORA QLD 4221

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

I hereby order that the application for orders, including orders that the body corporate must cause the removal of all vehicles of permanent residents found in visitors’ car spaces, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0668-2004

"Isle of Palms Resort" CTS 20860

Isle of Palms Resort Community Titles Scheme (Isle of Palms) is a 174 lot scheme under the Body Corporate and Community Management Act (Act) and the Act’s Accommodation Module Regulation (Accommodation Module). This module is typically adopted by schemes where the majority of lots are for holiday letting or under residential leases. The scheme has resident caretakers.

This dispute concerns parking arrangements at the Isle of Palms. It is submitted that the local council planning scheme requirements at the relevant time were that each unit must have one enclosed garage and that there must be one visitor parking space for every two units unless the council approves a lesser number. This would indicate that Isle of Palms would need to maintain 87 visitors’ car spaces.

Isle of Palms does not have 87 spaces clearly designated as visitors’ car spaces. However, there are over one hundred parking spaces throughout the complex that are used by visitors and apparently also by some occupiers, particularly where the occupiers of one unit own more than one car between them.

The resident caretakers (applicants) have submitted plans of the proposed development that show about 108 proposed visitor car parks throughout the complex. The application seeks that all of these car parks be line marked and signed as visitor car parks. Orders are sought that all permanent residents be given seven days’ notice that they are not permitted to keep their vehicles in any of those spaces and that the body corporate then require the vehicles of any permanent residents kept in those car parks to be towed away at the owner’s expense.

By this application, the resident caretakers are seeking an adjudicator’s order to require the body corporate to have vehicles of permanent residents towed at their own expense if those vehicles are parked in any of the car spaces located on common property within the scheme.

The legislation includes provisions to the effect that the body corporate must administer, manage and control the common property reasonably and for the benefit of lot owners (Act 94, 152). Further the body corporate must act reasonably in enforcing the by-laws for the scheme (Act, 94).

Decisions of the body corporate may be made by owners by resolution in general meeting or, for certain issues, by committee resolution. The resident caretakers, as owners in the scheme, are able to put forward a resolution proposing that owners vote for the body corporate to arrange for the towing of vehicles from common property car spaces. However, I can see no legal basis for compelling the body corporate to do this in the absence of exceptional circumstances.

A submission was made to the effect that the body corporate was communicating with the local council and that the committee had been invited by the council to ask for a variation of visitor car parks. It was also submitted that there is no available street parking for residents and that it was reasonable for permanent residents to park in some of the common property car parks as Isle of Palms has a lot more car parks than those required by the council for visitor parking.

It would not be appropriate for the body corporate to allow occupiers to park in spaces that a local council requires to be kept for visitors. Further, the applicants have provided plans that describe all 108 car spaces located on common property as "visitor carparks". However, I do not accept that all of the 108 common property car parks are necessarily designated for use only by visitors in light of communications from the council indicating only 87 car spaces are officially required for visitor parking.

Provided the council is satisfied that the scheme has more car spaces than are required to be kept for visitors, it is difficult to see why the body corporate should require any vehicles owned by permanent residents to be towed away. This is not a case of occupiers using parks that are clearly required to be left for visitors under council regulations. Rather, many of the spaces being used by occupiers are in excess of the council’s requirements for visitor parking.

In summary, I have concluded that the application should be dismissed in its entirety.

Firstly, I have some questions about whether there is any genuine dispute between the resident caretakers and the body corporate regarding this car parking. There is no evidence that he resident caretakers have taken reasonable steps to resolve the matter, for example by putting forward resolutions for consideration by owners.

Secondly, the body corporate appears to be acting reasonably by communicating with the local council in relation to this issue. The applicants have not shown that the only reasonable solution would be for the body corporate to have vehicles of permanent residents towed away. Rather, I consider a decision of that nature would be appropriate for consideration by owners in general meeting.

Thirdly, the resident caretakers appear to suggest that persons they let units to for short term holidays should be entitled to use the common property car parks and only the cars of permanent residents should be towed. This suggestion seems discriminatory and unreasonable. The distinction between an occupier and a visitor may not always be completely clear. However, as a general rule, persons letting a unit for a week (including family or friends accompanying those persons for the majority of the period let) would be classed as occupiers. Persons just visiting for one or two nights of that period would normally be classed as visitors in the same way that a person visiting a permanent occupier for one or two nights would normally be classed as a visitor. The application appears misconceived to the extent it suggests that occupiers under a short term lease would have any greater right to use common property car parks than owner-occupiers or occupiers under a long term lease.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Isle of Palms Resort [2006] QBCCMCmr 27 (19 January 2006)