Federation Pak [2007] QBCCMCmr 282 (15 May 2007)

Last Updated: 27 September 2007

REFERENCE: 0207-2007

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

The Body Corporate for Federation Park CTS 30544

I hereby order that the application for an order that the Respondents abide by the body corporate by-laws and, in particular, by-law no.8 and that the Respondents be ordered not to park any motor vehicle in any visitors' car parking space in contravention of by-law no.8 is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0207-2007

"Federation Park" CTS 30544

Outcome Sought

The Body Corporate for Federation Park CTS 30544 (the applicant) has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 against the occupants of Lot 21 (the respondents):

The Body Corporate seeks an order that the Respondents abide by the body corporate by-laws and, in particular, by-law no.8 and that the Respondents be ordered not to park any motor vehicle in any visitors' car parking space in contravention of by-law no.8.

The application has been signed on behalf of the Body Corporate, by the Chairperson, Ms C.J. Hewison.

As all residents within a community titles scheme are required to abide by the by-laws, making it inappropriate for me to make broad orders regarding compliance. I will restrict my consideration to the specific by-law identified by the applicant which is the only matter which the respondent has been given an opportunity to make submissions on.

The Scheme

Federation Park is a community titles scheme comprising 42 lots and common property. The scheme was established upon registration of the standard format plan and is regulated by the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module).

Jurisdiction

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)).

By-Law

The relevant by law is:

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.

An owner or occupier shall not park or stand any motor vehicle or other vehicle on any street or park in a visitor(s) parking area within the confines of the Body Corporate. An owner or occupier must not park in the visitor(s) car park.

Visitors must park in the designated visitor(s) parking area. Visitors must not park on grassed areas except where specifically signed and set aside for visitor parking.

The only exception to the above shall be service vehicles, parking for no longer than a reasonable time allocated for the service provided.

Furthermore, no owner or occupier shall be permitted to ride any push bike or wear nay roller skates, blades or the like around the paths, internal roadways or recreation area unless with the prior approval of the Body Corporate, whereas these items are used for the purpose of transportation to and from the complex.

Background

I am assisted in understanding this dispute by reference to a previous application made by Peter Allan Hamilton & Eileen Belinda Meyer as trustees (the owners) of lot 21. I quote from the decision of Adjudicator Hanly as follows:

The (owners) stated that the scheme was developed by them, trading as KPE Developments, as trustees. They explained that the scheme consists of free-standing dwelling houses together with common property on which various communal facilities are constructed. They stated that in the planning stage, it was intended that a full time caretaker be appointed to manage the common property and to that end a garage was constructed at the rear of the dwelling to provide storage space for caretaking equipment as well as for a vehicle, allowing easier access to the common property. The applicants further stated that to facilitate access to the garage, a concrete driveway was constructed over the common property. Access was then available through a visitor’s car park and on to one of the roads within the scheme.

The body corporate resolved on 28 September 2005 to erect steel bollards at the end of the concrete driveway to prevent access to the garage.^[1]

In the above matter, Adjudicator Hanly dismissed an application by the owners to have the steel bollards removed.

Grounds

The Body Corporate is quoted as follows:

On 7 December 2006, the Body Corporate sent the respondents a notice regarding likely future contravention of a Body Corporate by-law ("the notice") informing the respondents of their breach of by-law No. 8 and requiring them not to repeat their contravention of that by-law.

The Body Corporate has photographic evidence of the contravention that occurred on 1 December 2006, which is referred to in the notice. There had been several contraventions of the by-law no. 8 by the respondents prior to the notice being issued.

Since 7 December 2006 the respondents have continued to park the vehicle referred to in the notice, namely a Holden Commodore Sedan registration number DAN 421 in a visitors’ car parking space.

The Body Corporate has photographic evidence of further contraventions that have occurred since 7 December 2006, should the respondents dispute that further contraventions have occurred.

A resolution of the Body Corporate committee passed on 23 February 2007 approved the issuing of the dispute resolution application and the chairman or secretary of the Body Corporate were authorised to sign the application on behalf of the committee.

The Body Corporate seeks an order in the terms of the orders specified under the heading of "outcome sought" above.

Submissions

Submissions were received from 2 committee members including the chairperson. Unsurprisingly, both support the application by the Body Corporate. However, both submitters seek to raise issues that are not the subject of the application. These new issues cannot be considered by the adjudicator as interested parties have not been given an opportunity to respond as is required in the interests of natural justice. If the committee wishes these matters to be the subject of adjudication, they will need to make an application accordingly. For future reference, the Committee should also take note, that there is no capacity within Body Corporate by-laws to discriminate between owners and their tenants.^[2]

One of these committee members points out that another resident in the scheme has also had a contravention notice issued to them. The chairperson provides dated photographs of the respondents’ vehicle in the visitors’ parking space.

The owners of Lot 21 say that they do not dispute that their tenants have parked in the visitors’ car park from time to time. They advise that until recently their tenants had not been able to access their property, however they have now rectified the issue of access to the lot and so the tenants should no longer need to use the visitors’ car park. They say there is no dispute.

Three other owners also made submissions and these were in support of the respondents. They say the by-law is not being enforced uniformly and that there are others in the complex using the visitors’ car spaces. The occupation of visitors’ car parks is described as ranging from occasional to permanently.

Determination

It appears that there may be at least 2 factions in opposition to each other in this scheme and I harbour concerns that the respondents have become victims of a feud between the committee and the owners of lot 21.

In terms of what might be considered just, it appears to me that it is unreasonable^[3] on Body Corporate’s part to seek to enforce this by-law when the Body Corporate knew that the tenants suddenly did not have realistic alternate access to off street parking. Naturally, the Body Corporate is well aware of this circumstance, as it was their decision to block the back access. I acknowledge that the Body Corporate’s right to do this has been upheld by an adjudicator, however it is unclear to me why the Body Corporate has sought to enforce the by-law pending the establishment of realistic alternate arrangements by the owners.

In any event, I am satisfied that alternate access has now been arranged so that the respondents can now park within their own facilities. As the dispute in relation to the respondents parking in the visitors’ parking space is at an end, I will dismiss the application accordingly.

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^[1] Federation Park CTS 30544, 0026-2006, 26 May 2006
^[2] Section 180(5) Act
^[3] Section 94 Act. The Body Corporate must act reasonably.