Royal Pines South Shields [2009] QBCCMCmr 295 (14 August 2009)

Name of Plan:	Royal Pines South Shields
Number of Plan:	Group Titles Plan 2995
Address of Parcel:	380 Ashmore Road ASHMORE QLD 4214

I hereby order that the application by The Proprietors Royal Pines South Shields Group Titles Plan 2995 against Mrs Marion Cook, the proprietor of Lot 31 seeking to enforce by-laws and have the owner park offending vehicles in a visitor car park adjacent to her residence subject to committee approval, is dismissed.

Application
This application is by the Body Corporate against Mrs Marion Cook, the proprietor of Lot 31 seeking to enforce by-laws and have the owner park offending vehicles in a visitor car park adjacent to her residence subject to committee approval.

The Body Corporate provided a copy of a letter dated 4 December 2008 from Sallena Gibb of Archers Body Corporate Management (Body Corporate Manager) to Mrs Cook regarding car parking stating: “We have been instructed to write to you regarding complaints we have received from residents with regards to your vehicle’s protruding onto the footpath area which is dangerous and may cause accident as the vehicle’s hamper vision when residents are backing out. Resident vehicle/s should park in the allocated garage or carport. This is a contravention of the following Body Corporate By-Laws”; Nuisance (2.3), Vehicles (2.6), Thoroughfares (2.7), Parking (2.10), Failure to Rectify (5.5).

The Body Corporate also provided a copy of two notices titled ‘Notice Regarding Likely Future Contravention of a Body Corporate By-Law’ dated 4 February 2009 and 9 February 2009 addressed to Mrs Cook, citing By-Laws 2.3, 2.6, 2.7 and 2.10 and section 51 of the Building Units and Group Titles Act 1980 (BUGT Act), and stating: “It has been noted that you continued to breach the above By-Laws by parking your vehicle on Common Property. This matter can be referred back to a letter sent to you on the 18th November 2008.” The Body Corporate provided a letter addressed to Mrs Cook dated 9 February 2009 in terms similar to the above 4 December letter and advising that a request should be put in writing to the committee “if you have a justifiable reason that this contravention of the By-Laws in continuing”.

The Body Corporate provided a copy of a minute of a committee meeting dated 5 March 2009 authorising the Body Corporate Manager to issue a contravention notice to the occupier of Lot 2131, and a minute of a committee meeting dated 10 March 2009 to lodge an application to the referee “for an order in respect of contravention of the By-law 2.3, 2.6, 2.7 and 2.10 by Lot 2131”.

Jurisdiction
“Royal Pines South Shields” was created by the registration of Group Titles Plan 2995 on 5 June 1992 under the BUGT Act (s 27(1), BUGT Act). The Plan subdivided a secondary lot within a residential precinct of the Royal Pines Resort, an approved scheme under the Integrated Resort Development Act 1987. Consequently, the BUGT Act continues to apply to the Plan (s 328, Body Corporate and Community Management Act 1997).

Part 5 of the BUGT Act concerns disputes. Section 77 provides general powers of a referee to make orders. Subsection (1) states: “A referee may, pursuant to an application of a body corporate, a body corporate manager, a proprietor, a person having an estate or interest in a lot or an occupier of a lot in respect of a parcel, make an order on any person entitled to make an application under this subsection or on the chairperson, secretary or treasurer of the body corporate for the settlement of a dispute, or the rectification of a complaint, with respect to the exercise or performance of, or the failure to exercise or perform, a power, authority, duty or function conferred or imposed by this Act in connection with that parcel.” It has been demonstrated that the committee resolved to make this application. A committee decision is a decision of the body corporate (s 46(2), BUGT Act).

Submissions
Pursuant to section 73 of the BUGT Act, submissions were sought from Mrs Cook and all owners. The time for making submissions was subsequently extended.

Mr and Mrs Cook submitted that a 2008 survey indicated Lot 31 had a private driveway. They say they park on the driveway and never extend onto the roadway. The Cook’s provided photographs of a Hyundai Getz parked on the driveway (they provided a copy of a Vehicle Purchase Contract for a Getz after trading in a Combo SB Van). They state the photographs also show other occupiers, including committee members, park on common property driveway entrances and on roadways. Mr and Mrs Cook submit the committee allow parking on visitors’ spaces despite being informed of a commissioner’s ruling about parking on designated visitor car park spaces. They state that after receiving the 9 February 2009 letter, the committee informed them it was acting on a complaint from an occupier (believed to be Mr Reitburger, the owner of Lot 32) who could not see to reverse out. They question the complaint given the location of a shrub between Lots 31 and 32 which they say the committee does not intend to cut back and given that the owner has been reversing out from similar circumstances for the last four years. The Cook’s argue the action by the committee is discriminatory; the committee is acting unreasonably. They believe parking on common property is so widespread that the parking by-laws need to be revisited and reset at a general meeting so the by-laws can be enforced without discrimination.

The owner of Lot 32 submitted the vehicle in question protrudes onto common property obstructing their vision of oncoming traffic. They say the vehicle is parked in the position on a permanent basis contrary to the by-law, and that other vehicles are only parked temporarily.

The owners of 14 other lots made submissions variously stating: parking has never been a problem until this committee was formed; there have been complaints about occupiers parking in visitor car parks; the parking of the vehicle is potentially dangerous by precluding vision and endangering people; the committee cannot allow occupiers to park in visitor car parks; the Body Corporate is acting in a biased manner showing favouritism to some residents while picking on others; and parking issues have divided the community.

Investigation
A referee may make investigations with respect to the application as the referee thinks fit (s 73(1)(f), BUGT Act).

Reply to submissions by the committee
On 19 May 2009, I invited the Body Corporate to reply to the issues raised in submissions. On 1 June 2009, Mr Hewitt (chairperson) responded on behalf of the committee saying:

Further submissions by the committee
On 16 June 2009, I wrote to the Body Corporate stating:

“...The Body Corporate has not, in making its claims, demonstrated the part or parts of common property it believes Mrs Cook is parking a vehicle/s in breach of by-laws. A clear understanding of where the committee considers a vehicle/s is being parked is significant to the determination of this dispute.

The committee is invited to make submissions explaining where it is claimed Mrs Cook is parking a vehicle/s in contravention of a by-law; submissions that substantiate the claim that the affected part/s of the parcel is common property.

The order sought suggests Mrs Cook could, with committee approval, park in a visitor’s car space. Submissions have questioned the committee’s power to give this approval referring to a commissioner’s ruling...

The provision of designated areas of the common property for visitor parking is a requirement of local government. The number of car spaces is calculated by the Brisbane City Council according to its formula based on the number of lots, their configuration and other things; other local government authorities have similar requirements regarding the number and position of visitor spaces though the formula may vary. These spaces cannot be used by any person other than a genuine visitor; that term also includes, as in the case here, customers where there are commercial lots in a scheme. In a submission to this application my attention has been drawn to a previous order made concerning visitor car spaces, Order 693-1999 for a Gold Coast scheme, “Kingston”, which incidentally I also adjudicated, and the comments I made then are also relevant here –

While it may be true that the visitor car spaces may be vacant much, or most, of the time, these are designated visitor spaces required by the local government, the Gold Coast City Council, to be used for visitor’s parking. These spaces are a universal local government requirement for the registration of a community titles scheme, and remain a continuing requirement of the scheme. Even if the body corporate wanted to use these spaces for resident parking, or some other purpose, it is not able to do so...There is no question of the respondent, or any person other than a genuine visitor, being allowed to park in the designated visitor car spaces.

While the BCCM Act does not apply to Royal Pines South Shields, there is nothing to suggest that any local authority requirements regarding visitor parking are not applicable. It would seem the Body Corporate is uncertain about any relevant requirements. If there are applicable regulations, it is not evident that the space mentioned in the order sought is a visitor’s car space of a nature which would be subject to conditions referred to in the abovementioned adjudication.

Given the terms of the order sought, the committee is invited to make submissions about any relevant local government requirements; whether the Body Corporate has to maintain a specific number of car spaces on the parcel for visitors; if it does, the number of spaces that have to be maintained and the location of these spaces; whether the space mentioned in the order sought is one such space; and the location of this space.

The committee replied by letter dated 25 June 2009 referring to a recent survey of lot boundaries and stating white pegs adorn the Village leaving no doubt as to where the common line starts and finishes. The committee provided photographs which it says clearly show common property as defined by white survey pegs in relation to Lot 31. The committee submits the vehicles parked by the occupiers of Lot 31 are parked on common property in breach of the by-laws. It says the breach can be overcome by parking the vehicle in a more suitable location, and the committee has pursuant to By-Law 2.6 offered the occupier to park in the adjacent visitor’s car park.

On 30 June 2009, I wrote to the Body Corporate referring to the 16 June 2009 letter stating that I was not satisfied with the response dated 25 June 2009 as: “Firstly, the notations on the photographs point to lot boundaries; boundaries which do not seem to correspond to those defined on Group Titles Plan 2995. For your information, attached are Sheets 2, 2L and 2M of the Plan. The committee is invited to make further submissions about the eastern boundary of Lot 31, submissions which explain or demonstrate the place it is claimed Mrs Cook is parking a vehicle/s in contravention of a by-law. Secondly, I am not satisfied that the submissions adequately respond to the second matter about visitor car spaces and local government regulations. The committee is invited to make further submissions dealing with the specific issues I raised in the 16 June letter with respect to this matter.”

The committee responded by letter dated 6 July 2009 attaching the survey plans and restating the committee’s contention that vehicles are being parked outside the boundary line as defined by the survey pegs. The committee says it has been unable to establish if there are any local government requirements or whether the Body Corporate has to maintain a specific number of car spaces for visitors. It submits that with the abundance of visitor car spaces, it seems commonsense to use some in special circumstances such as accommodating occupiers’ additional vehicles. The committee states it would seem sensible to seek clarification from the local authority about occupiers using the car parks in special circumstances, but this can be pursued after this dispute is resolved.

Further submissions by Mr and Mrs Cook
On 9 July 2009, I invited Mr and Mrs Cook to make submissions in response to the further submissions by the committee.

They responded by letter dated 14 July 2009 providing photographs they state: show the screws in pavers; the true boundary line; and the car parked within Lot 31. They also provided a plan and copies of the committee’s photographs they say show the true boundary line and the misleading boundary lines submitted by the committee. Mr and Mrs Cook submitted the committee refuse to acknowledge the driveway as part of Lot 31 and it should have made enquiries with the local authority before allowing the use of visitor’s car spaces or making application about using a visitor’s car space. They have contacted the Gold Coast City Council, the Queensland State Planning Department about visitors car parking. They state a number of vehicles belonging to occupiers are parked in visitor car parks and some are authorised to park on common property. They say photographs show other owners parking on common property in the driveway entrance and partially on a roadway; parking which is ignored by the committee. Mr and Mrs Cook believe an order on the committee to include rescinding visitor car parking approvals may help address issues.

Reply by the committee
On 20 July 2009, I invited the committee to reply to the submissions by Mr and Mrs Cook.

The committee state the main point is Mr Cook parking vehicles on common property in a potentially dangerous manner. The committee consulted the surveyor who surveyed the Village in 2007 who attended the site on 29 July 2009 and provided a report of the same date. The report from R.S. Jasprizza & Associates (Licensed Surveyors) states: “...The property has a frontage to Common Property of 4.862 metres, and a depth of 31.085 metres or thereabouts. It is noted that the front (Eastern) boundary of the property is defined by Screws in pavers 4.862 metres apart, and that there is private parking within this area as shown on the sketch attached...” The Sketch Plan A of Lot 31 GTP 2995 notes ‘Conc building’ and ‘Private parking’.

The committee submit Mr Cook was parking a panel van on common property when the matter was brought to its attention and that Mr Cook with 3 vehicles appears to be complying with the By-Laws, but he currently has one vehicle parked in a neighbour’s carport for approximately 6 months. The committee state he seems to change his vehicle on a regular basis and an unfavourable ruling could encourage a similar parking occurrence as when the van was owned.

Decision
An order is sought primarily to enforce by-laws, but also to require Mrs Cook to park on a part of common property identified as a visitor car space subject to committee approval.

By-Laws 2.3, 2.6, 2.7 and 2.10 are referred to in the correspondence submitted by the Body Corporate. A body corporate may make by-laws; any amendment, addition to or repeal of the by-laws has no force or effect until recorded by the registrar of titles (s 30(2) and (3), BUGT Act). On 27 October 1998, the registrar recorded a change of by-laws on the Plan (No. 702968993) containing:

Section 30(5) of the BUGT Act provides: “Without limiting the operation of any other provision of this Act, the by-laws for the time being in force bind the body corporate and the proprietors...lessee or occupier, of a lot to the same extent as if the by-laws had been signed and sealed by the body corporate and each proprietor...lessee and occupier respectively and as if they contained mutual covenants to observe and perform all the provisions of the by-laws.” Section 27(3) of the BUGT Act provides: “Subject to this Act the body corporate shall have the powers, authorities, duties and functions conferred or imposed on it by or under this Act or the by-laws and shall do all things reasonably necessary for the enforcement of the by-laws and the control, management and administration of the common property.”

The Body Corporate has argued that it is enforcing the abovementioned By-Laws against Mrs Cook because a vehicle/s is being parked on common property and because the place the vehicle/s is being parked causes a danger.

It would seem there were complaints about a red van when the matter was initially brought to the attention of the committee. It is apparent this vehicle no longer belongs to Mrs Cook or any other occupier of Lot 31 and that it has been replaced with a Hyundai Getz. The Body Corporate has stated that the change of vehicles has not changed anything. Submissions have not identified the parking of any other vehicle as being cause for making this application.

The first issue is whether a vehicle is being parked on common property. While the van may have been the cause of initial concern, it is evident the Getz is the vehicle being parked on a part of the parcel which would seem to be of concern to the Body Corporate. In making the application, the Body Corporate did not identify the common property the vehicle is being parked on. In investigating the application I made it clear this matter is significant in the determination of the application. Given the material provided during my investigation, it would seem there may be some confusion about lot boundaries. However, on the basis of GTP 2995 and the information provided by R.S. Jasprizza & Associates, I accept the submissions made by Mrs and Mr Cook about the approximate position of the relevant boundaries of Lot 31. I am satisfied from the submissions by the Cook’s about the place the Getz is being parked in relation to lot boundaries. Nothing has been provided by the Body Corporate which casts doubt on this material. Given these conclusions, and in the absence of substantiating material from the Body Corporate about the part of common property the vehicle is being parked on, I do not consider it has been demonstrated that Mrs Cook is parking a vehicle on common property in breach of By-Law 2.6. There may have been a previous occasion/s when a vehicle was parked on common property. However, it is significant that the Body Corporate has not substantiated the claim that the vehicle is currently being parked on common property. I do not consider there is an objective basis in the circumstances to make an order with respect to this By-Law for the reason it may be breached in the future.

The second issue relates to the danger caused given the place the vehicle is being parked. By-Law 2.3 relates to nuisance. By-Law 2.7 deals with obstruction. A number of conflicting claims have been made with respect to this issue. I have noted the submissions made, particularly that from the owner of Lot 32. I have also examined the photographs provided of parts of the parcel adjacent to Lot 31, the height of the shrub on common property between Lots 31 and 32, and the place the vehicle is parked. While the vehicle does protrude beyond the shrub from one angle, I do not consider that in the circumstances it can be objectively demonstrated that parking of the vehicle is likely to cause a nuisance or unreasonable disturbance or annoyance to anyone on common property or to the occupier of another lot to warrant enforcement of these By-Laws against Mrs Cook. It is also relevant that other vehicles are parked on parts of the parcel which could be similarly viewed as interfering with vision of oncoming traffic. While these instances do not excuse the owner or occupier of Lot 31, they do point to claims of discrimination (as argued by Mr and Mrs Cook). Even though it has been stated these vehicles are parked temporarily as opposed to permanently, there is a question about reasonableness in this regard.

By-Law 2.10 would seem to relate to parking on a lot. Its intent is not clear in this application, particularly when the claim is that the vehicle is being parked on common property. While it was referred to in correspondence to Mrs Cook, its relevance to this dispute has not been explained. The Body Corporate did not provide any grounds to support the enforcement of this By-Law and there does not appear to be any definition of “designated parking area” in the by-laws. I do not consider there is any basis in the circumstances to make a finding against Mrs Cook with respect to the enforcement of this By-Law.

It is apparent from submissions that there are issues about parking on the parcel, including on parts being referred to in submissions as visitor parking areas. Whether allocations for visitor parking is a requirement of the local authority should be pursued and clarified so there is certainty about the use of parts of common property being referred to as visitor parking and whether the committee may permit parking under By-Law 2.6. However, the use of common property and visitor car parking generally are not matters for determination in this dispute. It may be the Body Corporate needs to examine the regulation of parking on lots and common property considering factors such as the needs of owners and the effectiveness of its existing parking by-laws.

In conclusion, I do not consider that in the circumstances being argued in this application, that the Body Corporate has shown that it is reasonable to enforce an identified By-Law against Mrs Cook about parking a vehicle. Consequently, there is no reason to require Mrs Cook to park a vehicle in a visitor car park. For these reasons, the application is dismissed.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Royal Pines South Shields [2009] QBCCMCmr 295 (14 August 2009)