Mitchell Park Parkview [2006] QBCCMCmr 6 (5 January 2006)

Last Updated: 19 July 2006

REFERENCE: 0675-2005

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	4062
Name of Scheme:	Mitchell Park Parkview
Address of Scheme:	65 Mitchell Avenue CURRUMBIN QLD 4223

TAKE NOTICE that pursuant to an application made under the abovementioned Act by the Body Corporate for Mitchell Park Parkview community titles scheme 4062

I hereby order that within one month of the date of this order, Brian Cox, the owner of Lot 7 must cease parking the motor home type vehicle on any part of the common property for Mitchell Park Parkview community titles scheme 4062 (the scheme) other than: 1. The part of the common property allocated for the exclusive use of the owner of Lot 7 under By-Law 35 of the scheme By-Laws provided the vehicle is parked on this part of the common property in accordance with By-Law 35; or 2. A part of the common property which has been consented to by the body corporate under By-Law 2 of the scheme By-Laws.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0675-2005

"Mitchell Park Parkview" CTS 4062

APPLICATION

This application is by the body corporate (applicant) against Brian Cox, the owner of Lot 7 (respondent). The applicant is seeking an outcome that the respondent cease parking or permitting any resident of Lot 7 to park a campervan in a way that it encroaches onto common property, or on any part of the common property.

The disputed vehicle is referred to by the body corporate as a campervan and by the respondent as a motor home. For the purposes of this order, the vehicle will be referred to as a motor home.

JURISDICTION

"Mitchell Park Parkview" Community Titles Scheme 4062 is a scheme under the Body Corporate and Community Management Act 1997 (Act) and the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module).

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)).

SUBMISSIONS

In accordance with the Act, submissions were called and a copy of the application was provided to the respondent, and to the body corporate manager for distribution to the owner of each lot. A submission was received from the respondent and a number of lot owners.

DETERMINATION

The "Mitchell Park Parkview" body corporate was created by the registration of Building Units Plan 11525 by the registrar of titles on 19 February 1992. On 8 December 1992, changes were made to the body corporate’s by-laws. Given that a standard community management statement applies to the scheme, these by-laws continue to apply to the scheme (section 339, Act). By-law 2 provides that "proprietor or occupier of a lot shall not park or stand any motor or other vehicle upon common property except with the consent in writing of the body corporate". By-Law 35 allocates parts of common property for the exclusive use of each lot owner for car parking purposes. The exclusive use car space for Lot 7 is located adjacent to the north-west boundary of the Lot. By-Law 36 allocates parts of common property for the exclusive use of each lot owner as a courtyard. The exclusive use courtyard for Lot 7 is located adjacent to the eastern and western boundaries of the Lot.

The by-laws form part of the community management statement (CMS) for the scheme, and under section 59 of the Act, the CMS is binding on the body corporate, each member of the body corporate and on each person who is otherwise an occupier of a lot in the scheme. It is a function of a body corporate under section 94(1) of the Act to enforce the CMS, including any by-laws for the scheme. Under section 94(2), the body corporate must act reasonably in enforcing its by-laws. Sections 182 to 188 of the Act make provision for the enforcement of body corporate by-laws by the body corporate and by individual lot owners and occupiers.

The body corporate’s main submissions are that:

• By letters dated 10 March 2005 and 8 April 2005, the body corporate informed the respondent that he could not park his campervan on common property.
• By letter dated 21 April 2005, the respondent sought temporary approval to park the campervan on common property. The body corporate’s consent to this arrangement expired on 25 May 2005.
• By letters dated 3 and 23 June 2005, the body corporate informed the respondent that he could not park his campervan on scheme land.
• On 26 July 2005, the committee resolved by voting outside a committee meeting to give the respondent a notice of continuing contravention of by-laws relating to parking and that if the notice is not complied with, to make application under the dispute resolution provisions of the Act.
• On 2 August 2005, the notice of continuing contravention of By-Laws 2, 35(c) and 36(b) was given to the respondent citing that a campervan was being kept "in the car space and front courtyard for Lot 7 and in the visitor car park without approval of the body corporate".

The respondent acknowledges that he did park the motor home on common property and that he has subsequently parked it on the exclusive use area for Lot 7. He submits that the parking of the motor home in this area does not inconvenience any occupiers. The respondent also claims that the occupiers of Lot 6 park a vehicle on common property without any action from the body corporate.

The photographs provided by the respondent show that the motor home is being parked on land between 2 car parking areas. This land is part of the common property and has been allocated for the exclusive use of the owner of Lot 7 pursuant to By-Law 36. Relevantly, By-Law 36(b) states that the "proprietor shall not keep any vehicle, boat, caravan or similar in the courtyard". An exclusive use by-law may impose conditions (section 30(7), Building Units and Group Titles Act 1980; section 123, Standard Module). The motor home is a vehicle and in my view, the parking of the motor home in this area is prohibited by the By-Law 36(b) condition. Given that the respondent is bound by the By-Laws for the scheme, he cannot park the vehicle on this common property exclusive use area.

In addition, it is apparent that the respondent does not have the approval of the body corporate under By-Law 2 to park the vehicle on any other part of the common property. In my view, the body corporate has demonstrated that it has reasonably sought to enforce the requirements of this By-Law. The respondent has stated that the body corporate has not taken similar action against the occupier of another lot in the scheme. If this is the case, the body corporate should be aware of its obligation to act reasonably with respect to the enforcement of by-laws and should ensure that all owners and occupiers comply with the scheme by-laws. If the respondent is aware that an occupier of a lot in the scheme is parking on common property contrary to By-Law 2, the respondent can give notice to the body corporate in accordance with section 185 of the Act.

The body corporate has also relied on the condition in By-Law 35(c) that the "proprietor for the time being shall not place any caravan, boat or other chattel in the car space except as provided by these by-laws". In my view, the motor home is a vehicle and therefore is not subject to this condition. Given that By-Law 35(a) specifies that the space can only be used "for the purpose of car parking", I would consider that it would be reasonable to permit the motor home to be parked within this space provided the space was used solely for the purpose of parking and not for example, to reside in the motor home.

For these reasons, I have ordered that the respondent must, within one month of the date of the order cease parking the motor home vehicle on any part of the common property other than that part of the common property allocated for the exclusive use of the owner of Lot 7 under By-Law 35 or another part of the common property which has been approved the body corporate under By-Law 2. I have given the respondent one month to comply with the order to provide him with the opportunity to make appropriate arrangements for the parking of the vehicle.

The body corporate has also sought an order against any resident of Lot 7. However, the body corporate has not named any other person and has not demonstrated that a person other than the respondent is responsible for the by-law contravention. Therefore, the order is limited to the owner of Lot 7.