Favella [2006] QBCCMCmr 339 (26 June 2006)

Number of Scheme:	12066
Name of Scheme:	Favella
Address of Scheme:	54 Embie Street HOLLAND PARK WEST QLD 4121

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

I hereby order that the owners of Lot 4, Gordon Ian Campbell and Kylie Louise Campbell, must within seven days of this order remove and keep removed their vehicles from the common property driveway and any other area of Favella common property, unless written approval of the Body Corporate has first been obtained in accordance with By-law 2 of the Body Corporate by-laws.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0097-2006

"Favella" CTS 12066

Favella community titles scheme (Favella) consists of 4 lots and common property. The community management statement for Favella indicates that the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module) applies to the scheme.

APPLICATION

This application was made by the Body Corporate for Favella (applicant) on 13 February 2006 under the Body Corporate and Community Management Act 1997 (Act), pursuant to a flying minute of the Body Corporate Committee on 27 February 2006. The applicant sought the following order against Gordon and Kylie Campbell, co-owners of Lot 4 (respondents): "An order enforcing by-law 2 Vehicles and directing the owner of Lot 4 to cease parking on the common property driveway."

PROCEDURAL MATTERS

Under section 243 of the Act, a copy of the application was provided to the respondents and to all owners, with an invitation to respond to the matters raised in the application. A submission was made on behalf of the respondents and by two other owners. The applicant did not avail themselves of the opportunity to inspect and respond to the submissions received (see sections 246 and 244 of the Act respectively).

A dispute resolution recommendation was made referring the dispute to departmental adjudication.

On 19 June 2006 a conciliator with the Office of the Commissioner for Body Corporate and Community Management (Commissioner’s Office) contacted the Body Corporate to ascertain whether it would be willing to participate in conciliation to assist in the resolution of this dispute. However, the committee members contacted declined to participate.

JURISDICTION

I am satisfied that this is a matter which falls within the dispute resolution provisions of the legislation (see sections 227, 228, 276 and Schedule 5 of the Act).

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:

(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)).

MATTERS IN DISPUTE

The application arises because the owners of Lot 4 have been parking on the common property, allegedly in breach of By-laws 2 and 3. The facts of the dispute, as outlined in the application and submissions can be summarised as follows.

The submissions allege that the respondents started parking in the driveway in 2004. The owner of Lot 2 says he raised this as a concern with the respondents and they stopped. He moved out in late 2004 and it would seem that parking in the driveway became a more regular occurrence. When the owner of Lot 2 raised the issue he was again told by the respondents that they would stop. The problem reoccurred and is claimed to have impacted on Lot 2’s ability to access his garage when showing the property to prospective tenants. It is suggested that it resulted in a complaint from his tenants as it affected their ability to back their car out of their garage, although this is not supported by statements from the tenants. It is also suggested that at times the parking impeded access to rubbish bins. After apparently raising the issue on numerous occasions to no avail, the owner of Lot 2 wrote to the Body Corporate on 19 December 2005.

On 20 December 2005 the body corporate manager wrote to the respondents advising them of the concerns and alerting them to By-laws 2 and 3. The issue was also raised at the Annual General Meeting of 9 January 2006, and the respondents were advised they were breaching the by-laws.

On 24 January 2006 a Notice of Continuing Contravention of a Body Corporate By-law (BCCM Form 10) was issued to the respondents, requesting that they cease parking on the common property driveway within 14 days. As the parking continued, this application was lodged.

The respondents’ submission acknowledges that they park in the common property driveway in front of their garage. They claim they started "a few months back". Their submission refers to their personal circumstances, their need to use their garage for storage and a studio, and their need for close access to the house from their car for safety and practicality because they have a toddler. The submission suggests that they have "compromised" by moving a bin that was previously located between the wall and the car so that the car can be parked right up to the wall. They also suggest that they would be willing to park on the street on weekends.

The respondents’ submission includes statements from the owner of Lot 1 and the current and previous tenants of Lot 2. These statements indicate no objection to the car being parked in the driveway, assert that it provides no obstruction, and say there is a valid excuse for parking there.

DETERMINATION

The issues for me to consider in this application are whether a valid by-law exists, whether it has been breached, and whether there is any reasonable justification for its breach.

Applicable law

The Community Management Statement for Favella includes By-law 2 which states:

The relevant elements of this by-law are that an owner or occupier must obtain the written approval of the Body Corporate before parking a vehicle on the common property.

Section 94 of the Act provides that the body corporate administers, manages and controls the common property, and must do so reasonably and for the benefit of owners. Section 169 empowers a body corporate to make by-laws for that purpose, including conditions applying to the use of common property. The statutory by-laws set out in Schedule 4 contain a by-law (also By-law 2) to regulate the parking of vehicles on common property. Accordingly, it is clear that the Favella By-law 2 is a by-law that is within the power of the Body Corporate to make and enforce.

In addition, Favella’s By-law 3 provides that "the occupier of a lot must not obstruct the lawful use of common property by someone else". This is identical to the statutory By-law 3.

Section 94(1)(b) of the Act imposes a duty on the body corporate to enforce the community management statement, including the by-laws. Accordingly, the Body Corporate is obliged to enforce By-law 2 and 3 against offenders who breach its provisions.

Sections 182 to 188 of the Act provide the process for pursuing an alleged by-law breach. When a body corporate is pursuing a by-law issue^[1], the first step is generally to issue a contravention notice. The contravention notice, which must state certain things including the nature of the breach, must be given to the person who the body corporate believes is breaching the by-law. If the issuing of a contravention notice does not rectify the matter, the body corporate can either commence proceedings in the Magistrate’s Court or may lodge a dispute resolution application in the Commissioner’s Office.

Justification for breach of by-laws

Notwithstanding some disagreement over when this issue first arose, the respondents openly admit that they have repeatedly parked their car on the common property driveway. It is evident that the Body Corporate has not given written consent and so this is clearly in breach of By-law 2. I accept the respondents’ assertion that, if their car is parked right up to the wall there should be no obstruction to Lot 2. On the material presented it seems to me that obstructions may have occurred from time to time. However, as By-law 2 has undoubtedly been breached I do not consider it is necessary for me to determine conclusively whether By-law 3 has been breached.

The question then is whether there is any reasonable excuse for the breach of By-law 2.

The respondents suggest that the other owners do not have children and do not appreciate what it is like to bring up a child. As the parent of a toddler I certainly understand the concerns of the respondents, and their desire for parking arrangements that they feel will be safer and more convenient. However, I am of the view that their situation is one entirely of their own making and it is not the responsibility of the Body Corporate to solve it.

It is the respondents alone who chose to purchase a property that did not have sufficient space to meet their needs. It is the respondents who chose to address their space constraints by utilising their garage for purposes other than parking their car. It is the respondents who have not sought Body Corporate approval for their parking preferences, and who have ignored requests to cease parking in the driveway. Other owners are not obliged to (although they may elect to) hand over what could be seen as exclusive use to part of the common property driveway because the respondents live in a property that is inadequate for their personal circumstances.

Even if there was no obstruction and the space was not used by other owner or tenants, this is not sufficient excuse for the breach. The respondents can not simply choose to ignore the by-laws because they are not convenient to them or because they don’t think they matter.
The respondents suggest that this case is ‘unique’ and ‘unprecedented’. I can assure them that disputes about parking on common property are very common community titles schemes. In such matters, including in cases involving parking in a driveway with disputed obstruction and where garages are otherwise utilised, adjudicators have rarely found any reasonable excuse for non-compliance with the by-laws.^[2]

I refer to the comments of the Adjudicator in one application to this Office on a quite similar issue.^[3] In that matter the respondents had also converted their garage to ‘habitable use’ and as a result regularly parked in the visitor carpark and other areas of common property. The respondents in that matter cited security and business justifications, and the fact that their vans did not fit within the garage. I refer to page three of the Adjudicator’s statement of reasons:

Body Corporate approval

The respondents have made a call to the ‘compassion’ of other owners to consider their personal circumstances. However I have not been provided with any evidence that they have made any genuine or formal attempt to seek approval to park in the driveway and to fully explain their circumstances to the Body Corporate. Rather, they appear to have simply parked in driveway and ignored the requests of the other owners to stop.

The respondents indicate that they were aware that By-law 2 provides that parking on common property would be permissible with the written consent of the Body Corporate. I acknowledge that the respondents appear to have checked with the other tenants and were aware that one of the owners would consent. However this is obviously insufficient in respect of By-law 2. I can not accept that the respondents genuinely believed that the consent of one owner or of neighbouring tenants could amount to the approval of the Body Corporate as a whole.

The appropriate course of action for the respondents would have been to write to the Body Corporate Committee as soon as they were aware that their parking arrangements were inadequate and before they commenced parking on the driveway. At that time they could have formally requested approval under By-law 2, justify their request by explaining their personal circumstances, give assurances that they would not obstruct any other lot and, as appropriate, offer any conditions on their use of the site. If the Committee declined, they could have raised it at a general meeting. If the general meeting did not provide consent and the respondents felt this was unreasonable, they could have lodged a dispute resolution application with this Office.

It is not too late for the respondents to pursue this course of action. Of course, given the elapse of time and the ‘bad blood’ which has been created over this issue they may find it more difficult to make their case than if they had made a formal approach earlier.
It is clearly within the power of the Body Corporate to give permission to the respondents to park in the driveway. While it is a matter for the owners, I would encourage them to carefully consider whether there any current obstruction is being caused and whether any other owners or tenants have any genuine need to use the space where the respondent’s car has been located. They should also note that it is open to them to make permission conditional. For example, they could limit the hours or days or use, give permission for an initial trial period only, or make permission conditional on no obstruction being caused. Above all, and as required by section 94(2) of the Act, it incumbent on the owners to act reasonably when making a decision on this issue.

The other option for the respondents is to seek Body Corporate consent for an exclusive use by-law covering the area in front of the Lot 4 garage. Sections 170 to 178 of the Act provide for exclusive use by-laws, and this would not be ‘unheard of’ as the respondents suggest. I will not go into the details of the establishment and operation of exclusive use by-laws here, but the respondents can contact the Information Service in the Commissioner’s Office for more information. They may also wish to seek legal advice in pursuing negotiations on any such arrangement with the Body Corporate.

Conclusion

The respondents have clearly breached By-law 2 by repeatedly parking their vehicle in the common property driveway without having sought written approval from the Body Corporate. The respondents have not provided sufficient evidence that their circumstances justified this breach.

Accordingly I have ordered that the respondents and their invitees must cease parking on common property. To assist the respondents adjusting their domestic circumstances to facilitate the changed parking arrangements, I have given them one week to comply with my order.

Notwithstanding this order, it is open to the respondents to formally seek approval from the Body Corporate to park in the driveway, either within the scope of By-law 2 or through an exclusive use by-law. Of course, the respondents must cease parking in the driveway while any such request is considered. In the interests of good relations in the scheme in the long term, I would encourage all owners to set aside any past animosity and to be cooperative and constructive in their communication if any such request is pursued. I would also encourage the parties to consider mediation or conciliation to assist in reaching an outcome that acknowledges the needs and interests of all owners.

^[1] Section 185 of the Act outlines the preliminary procedure for an owner or occupier who wishes to pursue an alleged by-law breach.

Rangi Court, reference 0584-1998, 1 March 1999 (In this matter the occupiers used the garage for storage and parked in the driveway. It was claimed that parking in the driveway had occurred for 20 years. The existence of an obstruction was disputed. The adjudicator ordered compliance with the by-law.)

Villa Zagreb, reference 0008-1997, 6 May 1997. (Here a boat was stored in the garage. While compliance with the by-law was ordered, the Adjudicator also required the Body Corporate to consider the owner’s prior application for approval to park on common property.)
^[3] The Timbertop Terraces, reference 0719-2002, 27 March 2003

(a)	park a vehicle, or allow a vehicle to stand on the common property; or
(b)	permit an invitee to park a vehicle, or allow a vehicle to stand, on the common property, except for the designated visitors parking which must remain available at all times for the sole use of visitors’ vehicles.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Favella [2006] QBCCMCmr 339 (26 June 2006)