Federation Park [2007] QBCCMCmr 481 (10 August 2007)

Last Updated: 16 August 2007

REFERENCE: 0349-2007

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

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

I hereby order that, within one month, Eileen Meyer and Peter Allan Hamilton, owners of lot 21 (applicants) must submit an application to the body corporate for permission to extend the width of their driveway and build a car parking area beside their garage. I further order that the application is otherwise dismissed.

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

"Federation Park" CTS 30544

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 by Eileen Meyer and Peter Hamilton, owners of lot 21 (applicants) 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.

Submissions

The applicants’ main submissions were to the effect that:

• The garage to their property in inaccessible to vehicles due to an engineering error resulting in the driveway being too steep;
• The body corporate has issued by-law contravention notices to their tenants for parking in visitor bays and requested that the applicants provide their tenants with parking inside the property;
• To provide their tenants with parking within the lot, the applicants have added an extension of concrete along the side of the house and have extended the width of the existing driveway;
• Other owners have made similar extensions to their driveways; and
• The committee are now threatening to erect bollards to prevent the tenants using the extended width of the driveway to access the property.

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

• The local council requires each dwelling to have a covered parking space. The applicants were the developers and are responsible for rectifying the problem of the unusable garage;
• The problems all stem from a badly built property that can never be sold until the original driveway is fixed. This is not a body corporate problem;
• The body corporate never gave the applicants permission to use common property to solve their parking problem.

Other owners have also provided submissions. Some of these submissions support the actions of the applicants in terms of providing parking for their tenants within their lot. Other submissions are to the effect that the new concrete area is unsightly and created without permission. These submissions consider the large concrete area added along the side of the applicant's house to be unsightly and say that all other houses in Federation Park have fenced and gated back yards with only the front yards visible to the street as per the existing design. All submissions are available for the parties to inspect upon request and it is unnecessary for me to summarise all of these submissions in detail here.

Decision

Applicable law

The legislation includes provisions to the effect that:

• Owners must maintain their lots in good condition and occupiers must keep readily observable parts of the lot in a clean and tidy condition (Standard Module, 120);
• Owners must obtain the permission of the body corporate to make any improvements to the common property. This permission must be by special resolution unless the improvement is a minor improvement, does not detract from the appearance of any lot or common property, and is not likely to promote a breach of occupier duties (Standard Module, 224); and
• 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 and carrying out its functions (Act, 94(2)).

Investigation and findings

From a review of the submissions, plans and photographs provided I am satisfied that the applicants have concreted an area running from the road, alongside their existing driveway, and beside the side of their house.

It appears that:

1. The body corporate requested, by letter dated 29 November 2006, that the applicants make provision for their tenants to park within the lot. However, no specific request for approval was made by the applicants when adding the new concrete section in March 2007;
2. This concreting involved altering a garden. However, the garden was on the applicants' lot rather than on common property; and
3. Approximately 4.675 square metres of this concreted area is on a strip of common property that was formerly grassed verge between the road and the applicants' front boundary.

A few other lots within the scheme do appear to have had their driveway areas extended and additional areas created for the storage of caravans or similar vehicles. However, photographs indicate that each of these areas has a gate across it so that any vehicle is obscured. The gates match the existing fencing and only the front yards of the houses in question are visible to the street. This gives a quite different visual appearance to the applicants' lot where the newly created concrete area is visible from in front of the lot. I also note that the concrete laid by the applicants does not match the colour and pattern of the original driveway. However, the applicants have indicated they intend to rectify this upon finalisation of the application.

I have also reviewed the community management statement for Federation Park. By-laws that are relevant to the present dispute are:

8. 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.
20. No structural alterations or external additions will be made to any lot (including ... altering in any manner whatsoever the ... external area of a lot) without the prior permission in writing of the committee or the body corporate but such permission must not be unreasonably withheld.

Body corporate permission required

I do not accept that the body corporate gave the applicants any permission to create the additional parking area within their lot, either by the letter of 29 November 2006 or by any other action. The applicants have initiated this dispute by simply acting to have concrete poured over a large section of their lot and a small area of the common property without any attempt to obtain authorisation from the body corporate.

By-law 20 requires that the written permission of the committee be obtained before any external additions are made to a lot. The pouring of a large area of concrete on the lot requires permission under this by-law. By-law 8 further provides that an occupier shall only park in their designated parking area within their lot. The by-law is not clear on the meaning of "designated parking area", who can grant this designation, and whether this applies only to the garage or can extend to areas subsequently designated for parking. However, at a minimum, the applicants should have sought permission of the committee before creating a new parking area within their lot.

Further, the legislation specifically provides that any improvement made to the common property for the benefit of a lot must be approved by the body corporate. Some improvements can be approved by the committee with more significant improvements requiring approval by special resolution. The applicants have simply extended the width of their driveway to include a slightly larger part of the common property footpath. This would not seem to create any significant detriment to other owners or occupiers. However, the applicants have contravened the legislation to the extent that they have done this without permission of the body corporate.

Permission cannot be unreasonably withheld

I have concluded that the applicants have contravened the legislation by acting without body corporate permission. These actions should not be condoned and I would have no hesitation in requiring the applicants to reverse their actions if there were legitimate grounds for the body corporate to refuse to grant its permission.

However, the modifications made by the applicants seem unlikely to affect other owners to any significant degree. The body corporate may wish to impose reasonable conditions on any approval. For example, requiring the applicants keep a gate across the area so only the front area of the lot is visible and setting a time limit for the colouring of the concrete. Such conditions would be reasonable to keep the appearance of the lot consistent with other lots that have additional vehicle parking areas. It is not, however, reasonable for the body corporate to refuse permission simply because the work was originally performed without authorisation. If the applicants seek permission of the body corporate at this late stage then the body corporate must consider the application on its merits.

I therefore conclude that, as a first step, the applicants should be required to apply to the body corporate for approval of the new driveway and car parking area they have created. Any subsequent dispute about the terms of any approval can be dealt with at a later time.

Other matters

I note that the applicants will need to comply with any local council requirements in addition to any body corporate requirements. However, this office has jurisdiction over disputes between certain limited parties in the context of a body corporate dispute and does not have jurisdiction over local council issues.

I further note that the evidence does not satisfy me that the committee has made any present decision to erect bollards across the new driveway. No order will therefore be made in that respect and I expect the situation can be resolved following normal body corporate process of requiring the applicants to seek approval from the body corporate. For that reason the orders sought by the applicants will be dismissed and an ancillary order will be made requiring the applicants to seek approval from the body corporate for the modifications the applicants have made.

Order

For these reasons, I make the order above.