Riverleigh Gardens [2006] QBCCMCmr 349 (28 June 2006)

Last Updated: 19 December 2006

REFERENCE: 0034-2006

ORDER BY A DELEGATE OF A REFEREE

MADE UNDER PART V

BUILDING UNITS AND GROUP TITLES ACT 1980

Number of Plan:	GTP 104105
Name of Parcel:	Riverleigh Gardens
Situated at:	Riverleigh Drive, Hope Island Resort HOPE ISLAND QLD 4210

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

the body corporate

I hereby order that, Jeanette Cross and Gary Steigmeier (respondents) must not park or allow to be parked any campervan or other vehicle, apart from a car, in a position on their lot where it is visible from outside the lot. This is subject to the respondents being entitled to allow a vehicle to stand on their driveway for up to two hours on any one day for the purpose of loading or unloading the vehicle. I further order that this order is effective for a period of two years but is only effective subject to any change of by-laws that results in the respondents being authorised to park a campervan or other vehicle in a position where it is visible from outside the lot.

REASONS FOR DECISION - REF 0034-2006

"Riverleigh Gardens" GTP 104105

Application

The Proprietors – Riverleigh Gardens Group Titles Plan 104105 (Riverleigh Gardens) comprises a body corporate under the Building Units and Group Titles Act 1980 (Act). The body corporate (applicant) is bringing this application against the occupiers of 3141 Riverleigh Drive, one of the lots in the plan (respondents).

Decision

Parking campervan contrary to by-laws

The body corporate alleges that the respondents park their campervan on the driveway of the lot they occupy, contrary to the by-laws for Riverleigh Gardens.

The application attaches a copy of a letter from one of the respondents to the body corporate. This letter admits that the campervan has been parked within the property on occasions. However, the letter indicates that the respondents believe that there is good justification for parking their vehicle on the property. The letter states that "The vehicle is a brand new unit, completely unoffensive in appearance and fits some three metres inside the property line. It does not obstruct any view or traffic and I cannot see any rational reason for the harassment we have received, much of which has occurred when the vehicle was not even on the property. Between travelling it is necessary to have access to the vehicle for maintaining and re-stocking. In addition, the vehicle is fitted with expensive equipment and items that are not covered by insurance if stored remote from our place of residence...This letter is not intended to be confrontational, however, it is intended to invoke rational thinking and intelligent interpretation of by-laws that were intended to improve lifestyle for residents, not infringe upon their freedom to own and enjoy recreational equipment of their choice".

By-laws for Riverleigh Gardens

The body corporate is required to do all things reasonably necessary for the enforcement of the by-laws (Act, 27(3)). The relevant by-law states:

5.3 Vehicles, boats, trailers and caravans may only be parked:
(a) in garages; and
(b) in the case of cars only, on driveways in front of garages; and

(c) on other parts of a Lot that are screened so that the thing parked cannot be seen from outside the Lot.

Owners of lots in a body corporate can, by special resolution, make by-laws for the control, management, administration, use or enjoyment of lots and common property (Act, 30). These by-laws must be registered to give incoming owners an opportunity to obtain a copy of the by-laws prior to purchasing a lot. A lease of a lot is deemed to contain an agreement by the lessee that the lessee will comply with the by-laws and the lessee can request a copy of the by-laws from the lessor (Act 30(4), 31).

Contravention of by-law 5.3

From the submissions of the body corporate and the letter from one of the respondents it is clear that the respondents have, from time to time, contravened by-law 5.3 by parking a campervan on their driveway in a position clearly visible from outside their lot.

The respondents may have good reasons for wishing to park their campervan in this position. However, by choosing to occupy a lot in Riverleigh Gardens, the respondents are bound to comply with any valid by-laws for the scheme. If the respondents consider it would be in the interests of occupiers that owners be allowed to park campervans in driveways then they should convince owners that the by-law should be changed to allow this.

At the minimum, the respondents would need to convince other owners that the by-law should be changed to allow the body corporate to consent to particular occupiers keeping a campervan on their driveway for good reason and then apply for the consent of the body corporate in their particular circumstances.

As it stands, the respondents have contravened by-law 5.3 from time to time. The body corporate has a responsibility to enforce valid by-laws. All three owners who have made submissions in respect of the application object to the presence of the campervan with reasons including that it is contrary to the by-laws are designed to enhance the amenity of the neighbourhood. In the present circumstances it is appropriate that I make an order that the respondents must not park any campervan or other vehicle apart from a car in a position on their lot where it is visible from outside the lot. I will make this order effective for a period of two years during which time the respondents will commit an offence and be subject to a penalty if they contravene the order (Act, 113).

The letter from one of the respondents does raise a question of whether the by-law operates to only prohibit the parking of vehicles on the driveway and does not prohibit allowing vehicles to stand for short periods for the purposes of loading or unloading. I conclude that the intention of the by-law is to protect the visual appearance of Riverleigh Drive and that it is not the intention of the by-law to prohibit allowing a vehicle to stand on the driveway for a reasonable period of time for the purposes of loading or unloading the vehicle. I will therefore make the order subject to the respondents being entitled to allow the vehicle to stand on their driveway for up to two hours on any one day for the purpose of loading or unloading the vehicle. The prohibition on the respondents parking a campervan or other vehicle in a position where it is visible from outside the lot will also be subject to any change of by-laws that permits the above to occur.

Order

For these reasons, I make the order above.