Alice Place [2008] QBCCMCmr 31 (30 January 2008)

Number of Scheme:	20456
Name of Scheme:	Alice Place
Address of Scheme:	132 Bryants Road SHAILER PARK QLD 4128

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

I hereby order that John de Ruyter and Linda Harvey, the Applicants, may park one motor-car belonging to either or both of them on any of the three car-parking spaces demarcated on the common property at such time or times as they wish, provided always that visitors to the scheme may also park on the three car-parking spaces, the whole on a "first-come, first-served" basis.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0797-2007

"Alice Place" CTS 20456

APPLICATION

This is an application dated 8^th October 2007 by Linda Harvey and John de Ruyter, (the Applicants) co-owners of lot 4 in the scheme, against the body corporate for the scheme (the body corporate) for an order that the Applicants should have approval to park their two cars on the common property in accordance with By-Law 2 of the scheme.

JURISDICTION

"Alice Place" Community Titles Scheme 20456 is a community titles scheme governed by the Body Corporate and Community Management Act 1997 (the Act) and the Body corporate and Community Management (Standard Module) Regulation 1997 (Standard Module). There are 5 lots in the scheme create under a Group Title Plan of subdivision.

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-

(b) the exercise of rights or powers, or the performance of duties, under the Act or the community management statement; or

(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

The Applicants explain that they have had a long-term dispute with the body corporate about parking their two cars within the scheme, and have had to park their cars on the roadside. Meanwhile other people park all over the common property for days and weeks. The Applicants sought approval from the committee pursuant to By-law 2 of the scheme to park two nominated cars on common property.

It was demonstrated to the committee that the local authority had no requirements for visitors parking, but the committee refused the application on 21^st August 2007 saying that it needed a resolution without dissent to amend By-law 2 to exclusive use parking and that the Applicants should put a motion to a general meeting. The Applicants prepared a motion and submitted it to the Secretary, for all residents to have blanket approval to park on common property providing that access to residents was not blocked; and that the visitor’s spaces should be clearly signed as available between Monday to Friday 7.30am – 4.30pm only.

The meeting was called for 22^nd September 2007 but did not take place. Meanwhile, the Applicants cars are still parked on the roadside. Others are still parking in the complex on common property and the committee say that’s the way it is and won’t be doing anything about it. The committee further said it would only consider one car in any motion put since the Applicant’s have a garage for the other car.

The Applicants use their garage space for household purposes, although they say they can drive a car into it. They think they are being discriminated against. They provide photographs showing the secretary/treasurer’s car using the visitors’ bay.

They enclose with their application an email dated 26^th June 2007 from Logan City Council which says that at the time the development was approved, the Council requirement was for 1.5 car spaces per unit, and there was no recommendation or requirement for visitor parking.

The Applicants say that the scheme has the "Schedule 3" by-laws from the Building Units and Group Title Act 1980. The Applicants make reference to a conciliation conducted by the Office. I am unaware of the content of the conciliation and cannot know what took place at that session since it must remain confidential. I note merely that a conciliation session between the parties was not successful.

In accordance with section 243(2)(b) Act, submissions were invited from all lot owners

There was only one submission from Kerry Watson (Ms Watson), owner of Lot 5, who was chairperson in August 2007. Ms Watson submitted copies of numerous documents, minutes of meetings, former correspondence and copies of unsigned management agreements. She is keeper of the body corporate records and included a helpful sketch plan of the scheme buildings and common property. She says that personally, she does not want to see the three visitor parking spaces being used for the exclusive use of owners since there can be anything up to 25 visitors a week, and her unit is immediately beside the spaces. She thinks that the number of car movements would increase if owners were allowed to use the spaces, with a consequent increase in noise, headlights at night, and fumes entering her unit.

She says that when the Applicants park their cars outside their own Unit 4, it makes it very difficult for her to turn her own car and enter and exit from her garage. It is also visually unsightly to have cars all over the common property.

Further she says that the Applicants have a garage but they have put furniture in it; and that the secretary/treasurer Ryan Russell (Mr Russell) sometimes parks in the visitor’s bay because he does not live in the scheme where he owns Lot 3, but visits his father who lives there.

Ms Watson and Mr Russell tendered their resignations from the committee by letter dated 11^th September 2007.

There is no submission from the body corporate.

The Applicants did not exercise their right of Reply.

DETERMINATION

In this matter, the Applicants seek the consent of the committee to park two cars on common property in accordance with By-Law 2 of Schedule 3 of the Building and Group Title Act 1980, which are the by-laws which apply to this scheme.

By-law 2 states as follows-

Save where a by-law made pursuant to section 30(7) of this Act authorises a proprietor or occupier so to do, the 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.

The committee therefore has the discretion to allow lot owners to park on common property. Section 94 Act requires that the body corporate, that is the committee, acts reasonably in anything it does in administering the common property for the benefit of owners. A refusal of the request made by the Applicants to the committee should therefore be given with satisfactory reasons.

The Applicants wrote to the committee on 20^th April 2007 and they did not get a reply from the committee until 21^st August 2007. Then, the committee refused the Applicant’s request in rather an oblique way. It said –

It referred to 3 parking spaces "required by Council."

In my view, this was an erroneous decision about the committee’s powers. The committee does have the power to allow lot owners to park on common property, specifically given by By-law 2, and to direct where such parking should be, and perhaps on what conditions, eg. times when the parking is to be available. A refusal should have given reasons stating the committee’s concerns. Following a refusal, the Applicants were always at liberty to put a motion to a general meeting, asking for the same approval as the committee could have given. There is no need to seek an exclusive use, although the Applicants could also have sought an exclusive use if they wished at a general meeting.

The body corporate, that is the entire body of lot owners at a general meeting, also has a different power, that is the power to grant exclusive uses to lot-owners. The right to park as granted by the committee would be personal to the Applicants, and would not be transferable to a new owner for instance, and could be revoked if necessary by subsequent committees, whereas the grant of an exclusive use is by a resolution without dissent at a general meeting and is registered in the Land Titles Registry as an "exclusive use by-law." The exclusive use would attach to the lot which enjoyed the exclusive use, and there might be conditions applicable, such as the owners of the exclusive use might have to maintain the area or pay for the use. The exclusive use would be transferable to new owners.

Car parking spaces
The reference to the three parking spaces appears to be a reference to the area now used as a visitor car park. This area is not shown as a visitors’ car parking area on the plans for the scheme which are lodged in the Land Titles Registry. Submitter Ms Watson includes a letter written in March 1991 from the original owner of the scheme Nootka Pty Ltd (Nootka) to Logan Body Corporate Service, which I am assuming to be the body corporate manager at that time, saying that it is a "council requirement" to provide off-street parking calculated at a space and a half for each town-house.

It is not clear whether it means that this was a "local authority" requirement, the committees for a body corporate in 1991 being known as "councils." However, the Applicants provide a copy of an email dated 26^th June 2007 from Christian Parks, Senior Planning Officer for Logan City Council saying that the spaces were not designated visitor car parks, simply car parking spaces. Mr Parks says that at the time the scheme was established the local authority planning scheme required 1.5 spaces per unit, that is 8 car parking spaces, to be provided in the scheme layout, and there was no division between owners and visitors. The veracity of this email is not challenged by the body corporate.

Since I understand that each unit has a single garage, with the three extra car-parking spaces making 8 in all, the local authority planning requirements of the day would be satisfied.

On balance I prefer the explanation from the senior planning officer, to that of the original owner, Nootka. It was required to provide 8 spaces as a council requirement, which it did. Whether these were for visitors or not was not stipulated, and certainly not registered in the Land Titles Registry.

I have looked at Logan City Council’s latest planning scheme and note that a development being built today would require 2 parking spaces per dwelling unit, of which 1 space is covered, and one visitor space per 2 dwelling units where the visitor space is located within 50 metres of the dwelling unit it serves.^[1]

The owners in this complex are stuck with the dimensions of scheme land which they have, and in 1991 perhaps it was not envisaged that lot owners would own 2 cars. It was certainly not catered for, so if a lot-owner had more than one car, he or she would need to ask the body corporate if it could be parked on the common property in accordance with By-Law 2, or parking would have to be in the street.

In this matter, the body corporate has erroneously, and perhaps with some justification over time, assumed the three extra car parking spaces to be for visitors. I am of the view that the 1.5 spaces provided were intended both for lot-owners and their visitors, at the discretion of the committee.

I then come to whether the committee has exercised its powers reasonably in accordance with section 94 Act. I do not think that it has, because it has wrongly assumed the priority of visitors over lot owners.

"Driveway" parking
The Applicants do not specify in the application where on the common property they wish to park.
From the photographs and plan enclosed by Ms Watson, the Applicants’ cars parked outside their own unit hinder her access into and out of her garage and could hinder access and egress on the main drive.

By-Law 3 for the scheme states –

In The Body Corporate of the Phoenician v Herme Pty Ltd^[2] it was held that the placing of tables and chairs at one side of a passageway was ‘an obstruction’ of the common property contrary to the by-laws even where at least two metres of the passageway was kept clear. The court quoted with approval a High Court decision wherein Griffiths CJ said –

Other cases have decided that the "obstruction" must actually cause a nuisance to others.

I am of the view that it would be reasonable for the committee to refuse consent to park on the common property anywhere other than in a car-parking space, and this has caused the dilemma for the committee, since it believes that those spaces are designated only for visitors. And so the argument becomes circular.

Since the parking spaces are not designated for visitors alone, should the Applicants be able to use the spaces to park one or two of their cars? What would be fair to all, is that all lot owners, have use of half a car space, as per the planning scheme in 1991. This in effect means that the same space might be used over different periods of time by different owners. Whilst this may not be practicable, it seems reasonable that the Applicants, who are the only lot-owners who have brought this application, and for whom the question of car-parking is pressing, should be allowed to park one car in any one of the car-parking spaces, and visitors may also park there if there is a free space. The Applicant’s second car should be housed in the Applicant’s garage or parked on the street, failing the consent of the committee or the body corporate to allow it to be stationed on another part of the common property.

This means that the Applicants and bone fide visitors only may share the spaces, save further applications and approvals by the committee from other lot owners. The Applicants may park one car in any of the spaces, when a space is available.

The Applicants are of course free to seek an exclusive use of one particular space, to the exclusion of all others, and that is a matter for the body corporate to decide. Since it needs a resolution without dissent, that is, there are no votes received against such a motion, it seems unlikely that such a motion would be successful at least in the near future.

In the submission made by Ms Watson, there is a letter from Wayne Callaghan the owner of Lot 2 to the chairperson. The letter is undated but it suggests that the grassed area at the front of the complex be converted to parking space, giving an additional 2 parking spaces. This leaves 5 spaces in addition to the garages, which could be allocated to each lot owner and used by that owner or their visitors. If the garages are used as additional storage space, then a second vehicle should be parked on the street, so that all lot owners have one undercover parking area and one outside car-parking area available to them. His suggestion may be of interest to other lot owners and would seem to be a sensible idea where the boundaries of the scheme land cannot be stretched. However, this is entirely a matter for the body corporate to decide at a general meeting.
This order does not prevent the Applicants from accepting in lieu, allocation of a particular space if Mr Callaghan’s suggestion is taken up at some future time.

^[1] Chapter 5 – Assessment Criteria for Development of a Stated Purpose or of a Stated Type, Part 3- Work Codes, Section 5.3.4. Logan City Council Planning Scheme effective 17 March 2006.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Alice Place [2008] QBCCMCmr 31 (30 January 2008)