Federation Park [2007] QBCCMCmr 267 (11 May 2007)

Last Updated: 22 May 2007

REFERENCE: 0349-2007

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	30544
Name of Scheme:	Federation Park
Address of Scheme:	9 Harpulia Court MORAYFIELD QLD 4506

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

Eileen Meyer & Allan Hamilton, the Owner(s) of lot 21

I hereby order that, pending a final determination, the body corporate for Federation Park must not take any action to erect bollards across the new section of driveway in front of lot 21. This is an interim order and will remain in effect for a period of not longer than six months. It is the responsibility of the applicants to apply to extend this order if no final determination has been made within that period. This order will automatically lapse upon a final order being made or this application being withdrawn.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0349-2007

"Federation Park" CTS 30544

Interim Application

Federation Park Community Titles Scheme (Federation Park) is a 42 lot scheme under the Body Corporate and Community Management Act (Act) and the Act’s Standard Module Regulation (Standard Module).

This is an application for interim orders. It arises out of an application by Eileen Meyer and Peter Hamilton, owners of lot 21 (applicant) against the body corporate for Federation Park (respondent).

The applicants say that the driveway to their property is inaccessible by vehicles due to a very steep incline resulting from an engineering error. They say that, as a result, they have extended the driveway to allow their tenants to park on the property. Photographs show an extra concreted area beside the existing driveway that appears to facilitate vehicles parking on the lot beside the existing garage. Access to this area is over part of the common property and it is submitted that the body corporate proposes to install bollards to prevent this access.

Interim Orders Sought

The applicants seek an interim order to prevent the body corporate from installing bollards that would restrict vehicle access to this area. A final order is sought to allow the applicants to keep the additional concrete portion of the addition made to the driveway to facilitate access to parking on their lot.

Decision

Urgent interim relief

An interim order will not be granted unless is it necessary due to the nature or urgency of the circumstances to which the application relates (Act, 279). Further, any orders granted must be just and equitable in the circumstances (Act, 276).

In determining whether it is just and equitable to grant interim relief it is relevant to briefly consider whether the application raises any serious questions for final determination.

It is also relevant to consider whether any inconvenience likely to result from the interim order is outweighed by the potential detriment alleged in the application. Any evidence that an interim order is necessary to prevent serious or irreparable harm will be significant.

Parking on lot

I note that by-law 8 for the scheme states that "An owner or occupier shall only park in their designated parking area within their lot, and shall keep this area in a neat and tidy condition at all times". It is not clear from the material whether the area beside the garage is a designated parking area. Further, it is not clear from the material that it is in fact not possible to access the garage with a vehicle or modify the driveway to allow such access. However, if the area beside the garage is a designated parking area or it is necessary to park in that area then it may be unreasonable for the committee to erect bollards to prevent vehicular access to that area.

Given the erection of bollards has been challenged it appears more practicable to await a final determination before allowing any erection of bollards to proceed. The committee have made a submission indicating they are prepared to wait for an adjudicator’s determination before erecting the proposed bollards. In fact, the committee have sought an order that the applicants be required to reinstate the gardens and grass they removed from the common property, in which case the committee say they will not need to erect bollards at all.

Order

At this stage I will make an interim order that the body corporate must not erect bollards pending a final determination.

The application will be allowed to proceed to submissions and a final determination in the normal course. Final orders may be made to authorise the additional area of driveway and allow vehicle parking on lot 21 adjacent to the garage. Alternatively, orders may be made to prohibit parking in that area and require reinstatement of gardens and grass that were removed to install the new driveway.