Jacaranda Gardens [2007] QBCCMCmr 458 (1 August 2007)

Last Updated: 8 August 2007

REFERENCE: 0250-2007

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	19631
Name of Scheme:	Jacaranda Gardens
Address of Scheme:	68-72 Springwood Road SPRINGWOOD QLD 4127

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

the body corporate for Jacaranda Gardens

I hereby order that, before close of business on 10 August 2007, Zoran Martinovic, owner of lot 27 (respondent) must submit to Capitol Body Corporate Administration a motion proposing amendments to by-law 24 and any other changes he wishes to propose to the parking arrangements at Jacaranda Gardens. I further order that any other owners may submit a motion proposing amendments to by-law 24 or proposed changes to the parking arrangements at Jacaranda Gardens. I further order that, if prior to close of business on 10 August 2007, any owners submit to Capitol Body Corporate Administration any motions proposing amendments to by-law 24 or proposed changes to the parking arrangements at Jacaranda Gardens then those motions must be included on the agenda for the upcoming annual general meeting of Jacaranda Gardens. I further order that, as soon as practicable, the body corporate must distribute a copy of this order and reasons for decision to all owners. I further order that the application is otherwise dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0250-2007

"Jacaranda Gardens" CTS 19631

Application

Jacaranda Gardens Community Titles Scheme (Jacaranda Gardens) is a 46 lot scheme under the Body Corporate and Community Management Act 1997 (Act) and the Act’s Accommodation Module Regulation (Accommodation Module). The scheme is designed for residential purposes.

This application is by the body corporate for Jacaranda Gardens (applicant) seeking orders against Zoran Martinovic, owner of lot 27 (respondent). The body corporate says that the respondent regularly parks his car on the common property driveway in front of his townhouse blocking access to another car park and his car port. An order is sought that the respondent abide with by-law 24 and not park any motor vehicle on the common property or allow his invitees to do so.

Submissions

The body corporate’s main submissions were to the effect that:

• The respondent has received numerous verbal warnings and written breach notices from the resident unit managers as he continues to park on common property in front of his townhouse blocking access to another car park and a car port;
• The respondent was a resident for a number of years prior to purchasing the unit in which he currently resides. The respondent has told the manager and chairperson that as a long term resident the by-laws do not apply to him. He has also claimed that as a resident in a three bedroom townhouse he is entitled to an extra car park. This is not the case; and
• The respondent has annexed this entire end of the driveway for his own exclusive use, told other residents not to park in that area, and has blocked in residents who have parked in that area.

The respondent's main submissions were to the effect that:

• This matter has already been determined by the Small Claims Tribunal and that determination was final and binding on all parties; and
• The building approval plan approved by the Logan City Council shows parking entitlements of 1.5 spaces per unit. The car park referred to as "V12" has been used for Units 25 and 26 only for nearly 12 years without any change or conflict. It is only the present committee and onsite manger that are acting unreasonably.

Other owners have also provided submissions. All submissions are available for the parties to inspect upon request and it is unnecessary for me to summarise these submissions here.

Decision

Investigation and findings

I have reviewed plans, photographs and the community management statement for the scheme. I also held a teleconference between the respondent and a representative of the committee.

Jacaranda Gardens contains 46 townhouses. Each townhouse has one covered car parking space that forms part of the lot. The Logan City Council approved plans show 23 car parks numbered "V1" to "V23". These car parks are located at various places on the common property. A submission has also been made to the effect that the committee has recently arranged for the removal of some trees and the creation of an additional four car parks.

Lot 26 (Unit 25) and lot 27 (Unit 26) are located at the end of a cul-de-sac. Car park "V12" is located beside Unit 26 towards the end of this cul-de-sac. This cul-de-sac is unique within the scheme in that there is no car park or building on the other side of this end of the cul-de-sac and photographs and submissions satisfy me that the respondent regularly parks one or two vehicles at the end of the cul-de-sac blocking any entry to car space "V12".

Submissions indicate that no other occupiers regularly park in the cul-de-sacs or otherwise on driveway areas that are not allocated for car parking. However, as a matter of course, owners and occupiers regularly park in some of the common property car parking spaces numbered "V1" to "V23" or in some of the four additional car parks that were created more recently.

Applicable law

The Act gives the owners of units in a scheme the power to vote on what by-laws will apply to their scheme. All owners and occupiers are obliged to comply with registered by-laws, unless or until the owners vote to modify or remove a particular by-law. Modifications to the by-laws can be made by special resolution (Act, 62(3)) and take effect on the recording of the modified by-laws by the registrar of titles (Act, 179).

The body corporate has a duty to enforce the by-laws (Act 94(1)). Rights of individuals are protected to the extent that the body corporate is required to act reasonably in enforcing the by-laws (Act 94(2)). Further, by-laws cannot be inconsistent with the Act (Act, 180).

No parking except in garages

By-law 24 for Jacaranda Gardens provides:

24. Vehicles
A proprietor or occupier of a Townhouse shall not park or stand any motor or other vehicle upon the parcel except within the Garages provided for the use of proprietors and occupiers and except for the private vehicles of a visitor to an owner by such visitor's vehicle shall not be permitted to park overnight on the parcel.

I have two concerns about this by-law. Firstly, the part of the by-law dealing with visitor parking does not make sense. Secondly, it appears the by-law is widely misunderstood in respect of where owners and occupiers are entitled to park.

In the first respect, it appears the word "by" should actually read "but". The broad intention appears to be that visitors are entitled to park within the scheme but not overnight.

In the second respect, the plain words of the by-law provide that "A proprietor or occupier...shall not park...except within the Garages provided". This means that no owners or occupiers should be parking anywhere on the driveways or within car spaces"V1" to "V23". Any parking spaces within the scheme are effectively reserved by by-law 24 to be solely for visitors to the scheme. Occupiers would be entitled to park one car within their garage but would have to park any additional vehicles outside the scheme land.

Need to consider alternative parking arrangements

The respondent is contravening by-law 24 by parking on the common property driveway at the end of the cul-de-sac. However, numerous other occupiers are also contravening by-law 24 by parking in common property car spaces "V1" to "V23". It does not seem reasonable for the committee to take action in enforcing by-law 24 against the respondent and not take any action against other occupiers who are also contravening by-law 24 on a daily basis. Further, it appears that the respondent parked in the location in question for a number of years without disruption to other occupiers before action was taken to seek to enforce the by-laws against him.

An adjudicator is required to make an order that is just and equitable to resolve a dispute (Act, 276). An adjudicator’s order may also contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (Act, 284). It is just and equitable in the present circumstances to require owners to reconsider the wording of by-law 24 and consider alternative proposals for car parking within the scheme before making any order to enforce by-law 24.

I have been informed that the committee will be holding a meeting on Monday 13 August to attempt to finalise the agenda for the annual general meeting expected to be held in September 2007.

I will make an order to require the respondent to put forward a proposal to amend by-law 24. The respondent may also wish to put forward another proposal, for example that he lease the entire area of common property at the end of the cul-de-sac adjacent to his lot. This would potentially give the respondent an area in which he could park three cars, albeit with some cars being blocked in by others. However, for the respondent to have such a proposals accepted by the body corporate he would need to convince owners to adopt the proposals by special resolution. There is obviously some benefit for other owners if up to three cars used by occupiers of the respondents unit are parked next to that unit rather than in other spaces that could be made available to other occupiers. However, owners could also expect the respondent to pay a reasonable sum for the benefit of any lease granted by the body corporate.

Of course, the committee, or any other owner, may also wish to put forward their own proposal for amending by-law 24 and altering parking within the scheme. For example, it may be possible for a number of the existing car parks to be leased to specific owners. It may also be possible to convert some of the existing single car parks into tandem car parks that can be leased to a specific owner.

For any proposal to be effectively adopted, the proposal will need the support of other owners and will also need to comply with any requirements of the Logan City Council. For example, the Logan City Council is likely to require a specific number of car parks to be kept available for visitors and have other specific requirements about the location of car parks and tandem car parks generally.

I have made some preliminary enquiries with the Logan City Council. It seems unlikely that the Council would have any objection if by-law 24 was amended so that it did not place any restriction on the use of the uncovered car parks provided that the scheme has at least 23 uncovered car parks. However, there may well be limitations on the number of uncovered car parks that the body corporate could lease to specific owners as the Council may require that at least 23 uncovered car parks are available at the scheme for general use rather than reserved for the benefit of any particular lot.

Other matters

The respondent has said that the allegation he has contravened the by-laws has already been dealt with by the Small Claims Tribunal. I do not accept this submission. It is obvious that the respondent, like many other occupiers, is currently contravening by-law 24. The order of the Small Claims Tribunal dated 2 October 2006 requires that a notice to leave dated 4 September 2006 be set aside. This may indicate that any contravention of by-law 24 was not sufficient to justify termination of a lease but does not indicate the Small Claims Tribunal concluded that the respondent had not contravened the by-law. Specifically, I note that the body corporate has the responsibility to enforce the by-laws and that the body corporate was not a party to the Small Claims Tribunal application.

The respondent also makes submissions indicating that car park"V12" should be for the use of Units 25 and 26 only. There is no legal or factual basis that supports the respondent having any greater right to use car park "V12" than any other occupier. In fact, presently the car park should only be available to genuine visitors to the scheme. It is for the respondent to negotiate a lease or similar arrangement if he wants special rights to that car space.

Order

I propose to make orders requiring the body corporate to consider amendments to by-law 24 and any other suggested changes to the parking arrangements at Jacaranda Gardens. Any proposals should be received by the body corporate, Capitol Body Corporate Administration, prior to close of business on 10 August 2007. The application indicates that material being sent to Capitol Body Corporate Administration should be marked to the attention of Ms Josephine D'Arcy and posted to PO Box 2362, Chermside Centre Qld 4032 or sent by facsimile to [phone]. As this issue is important to all owners and their tenants, I will order that a copy of this order and reasons for decision be provided to all owners.