Sailz Whitsunday [2009] QBCCMCmr 305 (20 August 2009)

Number of Scheme:	16912
Name of Scheme:	Sailz Whitsunday
Address of Scheme:	24 Pandanus Drive CANNONVALE QLD 4802

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

I hereby order as follows –

that the decision of the committee taken in general business at a meeting on 26th November 2008 to prohibit barbeques on ground floor patios was unlawful and therefore void and of no effect;
that the body corporate shall within three weeks of the date of this order remove the “no overnight parking” signs adjacent to visitor parking spaces on scheme land, whether through the services of the resident manager for the scheme, or by other means.

This is an application dated 3rd March 2009 and lodged on 6th March 2009 by Barrie Robertson (the Applicant) co-owner of Lot 24, against the body corporate for Sailz Whitsunday (the body corporate) for an orders as follows –

“Sails Whitsunday” CTS 16912 is a community titles scheme governed by the Body Corporate and Community Management Act 1997 (the Act) and the Body Corporate and Community Management (Accommodation Module) Regulation 2008 (Accommodation Module). There are 32 lots in the scheme created under a Building Unit 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-

(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

(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)).

I note in the material that there are references to a conciliation being attempted by this Office. I have no access to, or knowledge about, matters which occurred at or arose from any conciliation which remain confidential. In an application for adjudication, the applicant must plead his or her case “de novo” that is, this is a new application which will be assessed on its merits.

In respect of the first outcome sought, the Applicant says that on 26th November 2008 the committee at a committee meeting decided to ban BBQs on ground floor units. In ‘general business’ the committee decided in reply to an owner who had asked to install a BBQ on the downstairs patio “ that it was inappropriate to have BBQs on the downstairs patios. Residents should therefore remove any existing BBQs from their downstairs patio area on receipt of these minutes.”

He says that the committee’s decision is discriminatory, since several upstairs units have BBQs, and the Applicant has had a BBQ on his lower floor patio for in excess of three years. There is a common property BBQ which is unsupervised and can by used by all residents.

On 22nd December 2008, the Applicant wrote to the secretary asking why the decision was made, and pointing out that the decision was unreasonable. He advised that he had just been given a new Weber as a Christmas present. He and his wife have not received a reply.

In respect of the second outcome sought, he says that in 2007, the resident manager put up two signs saying “no overnight parking” on an area of visitor parking in the middle of the complex. He was chairman when this occurred and asked the committee to authorise him to write to the resident manager and ask her to remove the signs, since she had no authority to impose a time limit. The committee subsequently approved the signs and the new parking arrangements at a committee meeting on 25th September 2007, and he resigned from the committee at this time.

At the meeting, the committee resolved 6 – 0 that the “parking regulations that have been in place for the past seven months” were approved. The minutes read: “The front parking area is for overnight parking and visitors”. The “House Rules” which are circulated by the resident manager, also state “All visitors should park in the front Visitor’s (sic) car park, or on the street.” There is nothing in the house rules about visitors not being allowed to park overnight.

There are visitor parking areas at the front of the complex, and three spaces beside the swimming pool. On 28th November 2008, he wrote to the secretary about a notice or notices left by the resident manager on one of his visitor’s cars. The notice read in part: -

The notice stated that the vehicle had “been deemed to contravene” by-law 2, although the by-law was not set out. By-law 2 states -

“ 2. Vehicles. The proprietor or occupier of a lot shall not park, stand or permit to remain in or about the common property any vehicle (whether operative or not), boat, caravan, trailer, plant or equipment except with the consent in writing of the Body Corporate.”

He says that By-law 2 means that unless restricted parking times are stated, then restrictions cannot be enforced, and that neither the resident manager nor the committee has the power to enforce the “no overnight parking” sign.

He also quoted from Schedule 4 of the Act, and asked the committee to reconsider that the signs on the three central visitors’ parking bays were unlawful and should be removed.

The secretary replied on 16th December 2008 saying that the parking arrangements had been in place for almost two years and were successful and a great aid to security, although the committee agreed to discuss it at the next meeting. The secretary said that the visitor spaces in the central area used to be dominated by one or two committee members.

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

Faye Davis, owner of Lot 29 and the resident manager, says that when she purchased there were no BBQs on downstairs patios, but there was a BBQ in the breezeway on the common property, and then a special weatherproof area was built in 2003. The majority of ground floor villas have “either transient Residents or Holiday Guests” and she feels that individual BBQs could be a fire or safety issue.

In respect of parking, she feels that the present arrangements work very well, and that most of the significant problems have gone since the committee reviewed the parking arrangements two years ago. She would be happy to abide by advice from the Whitsunday Regional Council about visitor parking and the original development.

Douglas Hillary, (Mr Hillary) co-owner of lot 5, a ground floor unit, says that he purchased in 1996 as one of the first owners. At that time, no BBQs were allowed on ground floor patios. The upstairs villas have a patio that is on their lot’s title. Only the Applicant has got a BBQ, and everyone else uses the one on common property. He says that individual BBQs are detrimental to the “general functionality and concept of the Sailz Complex” which is a holiday and short term rental complex.

The central carparking area is adjacent to his villa and he had some safety and security issues with people parking there overnight. He has seen unknown drunks asleep in a cars, and animals kept in the backs of cars, and damage done to the common property. Unidentifiable cars have also been left there and required police involvement. Since visitors have been prevented from parking overnight there, these problems have become almost non-existent. He has never heard anyone else complain about this, visitor or guest, and does not think anyone is inconvenienced. Anyone with mobility problems is allowed to park overnight there by the resident manager. The committee has decided to investigate the position with the Council. From his own purchase documents he cannot see that any area was defined as “public parking.”

Heather Russell, owner of Lot 3 says she would welcome the removal of the restriction on both ground floor BBQs and overnight parking as it is making it difficult to rent out units.

Matthew McCarthy, owner of Lot 10, says that he does not agree with having BBQs on ground floor patios, although he does not say why. He agrees that current car parking arrangements are suitable. His response was made on a pro-forma submission drafted by Mr Hillary, as ‘elected secretary’, and urging owners to respond to this application and “to maintain the standard at Sailz and not to let it become another “sub standard” Complex in the area.”

Arnold and Elizabeth Percy, co-owners of lot 9, say that they like the uniformity and tidiness at Sailz. To “allow BBQs on patios would in time cause visual untidiness and would be detrimental to the visual appeal” thus lowering values. They say that the central parking area is “meant for short term parking by guests.”

Diane Jackson, owner of Lot 19, says if that ground floor units do not have BBQs then they should be banned on level one units as well, otherwise it would be “highly unfair.” In respect of the car parking she says there is ample parking at the front of the complex for long-term parking, and the internal parking bays should be used for short term visitors. They are only 100 – 120 metres apart anyway.

Susan and Philip Matthysen, co-owners of Lot 20 say that they believe BBQs should be allowed on ground floor patios, and that visitors should be allowed to park overnight, although they give no reasons.

Warren and Carol Connelly, co-owners of Lot 7, say that BBQs on ground floor patios will have a negative image and affect property values. The common property BBQ should be used instead. They find the current parking arrangements suitable and fair for residents, visitors and guests.

Lisa and Daniel Angell, co-owners of Lot 26, find the banning of ground floor BBQs unfair and “un-Australian.” They do not think it fair that some owners have to park their second car on the street as the overnight carpark at the front is usually full, with two parks within the complex, standing empty.

Ken and Jenny Langston, (Mr and Mrs Langston) co-owners of Lot 14, do not agree with BBQs on patios of ground floor villas. They were told when they purchased that this was not allowed on front patios but was fine on rear patios, and they think that is sensible. They say that BBQs in the front “would be detrimental to the general functionality and concept of Sailz.....” They say that the car parking arrangements are suitable, and is aware that there have been security problems before.

Rachel Halemai, owner of Lot 8, made a submission on the committee ”pro-forma” response saying that she does not agree with BBQs on front patios, and that the parking arrangements are suitable, without any reasons given.

Robert and MA Gnezdiloff, (Mr and Mrs Gnezdiloff) co-owners of Lot 15, say that they own an upper villa and purchased in 1996. They were advised that no BBQs were to be placed on either floor front patios. As for parking they say that extended parking by a small number of individuals is inequitable. There are 32 units in the complex and limited visitor car parking spaces inside the complex. Short term parking within the complex might also be needed for emergency vehicles.

In the submission from the body corporate it explained that it has sought guidance from the Whitsunday Regional Council on whether there would have been designated areas for visitor parking on any original plans.

Following the Applicant’s complaint the committee sent a circular to all lot owners on 10th January 2009 about parking, prior to a committee meeting due in March 2009. In the circular they say that the central parking area does not seem to have been “gazetted” as a visitors’ car park. There were up to four spaces “seemingly non-Gazetted” in the middle of the complex from 1995 until 2006. These spaces were “virtually commandeered by the chairman and his family, and the secretary” in 2006 – 2007. These committee members have now left the scheme. At the end of 2006 the spaces were reduced to 3 because of the realignment of the pool fence. (Committee meeting 6th November 2006 refers). It was not publicised or “gazetted”. They are still assumed to be “visitor only” car parking spaces and treated as such by past and latest committee.

The committee tried “no overnight parking” for seven months as a trial period from February 2007. and it was then adopted by the committee. The trial period was recommended by the resident manager after various issues over 4 years including lack of access by trades people, residents disregarding the visitor signs, damage to the pool fence overnight, and undesirable drunks sleeping in cars. During this time there was a fire in Lot 13 on 25th July 2007 at 11pm and unidentifiable vehicles parked in the central area blocked access to the fire services. The arrangement was endorsed by the committee at meeting September 2007, and it “has been incorporated into the by-laws (Rules)”

There are 8 car spaces at the front of the complex “outside the boundary”, on a Council easement, but “ generally assumed to be ‘usable’” by Sailz. They have been treated as visitor car parks since 1995 but are now used by residents on a first come, first served basis. The committee supports this practice, but does not allow permanent parking here, nor boats caravans etc, and the by-laws control this. Vehicles not moved for 48 hours are given a “move on” notice by the resident manager and “[t]his arrangement has been incorporated into the By-laws(Rules)...”

There have only been two complaints about the visitor arrangements, both from the Applicant, about his visitors. His visitors could have used the front ‘visitors’ park’ on each occasion as there was space there.

The Applicant has in the past proposed various other parking plans based on the developer’s sales brochure, but the one they have now works well. The trial and policy were approved by the committee, that is, there is no overnight parking in the central visitors’ carpark, and no parking there for residents. The Applicant objected at the time. The Applicant’s proposals would mean that all visitors car parks would be out of bounds for residents, and they will have to park in Pandanus Drive.

Re:BBQs
The front ground floor patios are exclusive use areas. The Applicant in No. 24 and the tenant of Villa 19 had BBQs as at 25th November 2008 when the committee discussed this, and another owner asked to have one and this is how the matter arose. The committee’s concerns were of fire; the safety of small children; odours, since “complaints have been received in the past”... ;the “standardised” appearance of ground floor units which are in the letting pool; increased maintenance for the body corporate since the committee has noticed that in respect of the owners of first floor lots, “painting of ceilings has been required due to smoke and fumes” and in an exclusive use area, the body corporate would have to bear this cost; and the fact that the body corporate has a communal BBQ for lot owners to use. The body corporate is to carry out a professional evaluation of the fire risk from BBQs on first floor patios shortly.

The Applicant exercised his right of Reply. He said there are many errors which are too numerous to correct. He wrote to the body corporate manager on 21st March 2009 and provided a copy as his reply. He complains of constant harassment by the on-site manager and Mr Hillary over minor issues which have been previously approved by a former committee, summarised as “bogus directives and exclusions” giving rise to constant applications to this Office for relief against infringements of his and his wife’s property rights.

On 10th July 2009 I sought further information from Whitsunday Regional Council planning department, which was kind enough to provide further information on 11th August 2009. I was provided with the original town planning report submitted with the application for the development; the planning report to council; the town planning consent and approved plans 9431-SK3 and 9431-SK4 dated July 1994 by Peter Conley and Associates; and a copy of the Building Format Plan as released by Council in 1995.

On 22nd July 2009, the committee also provided me with plans dated August 1994 by architect Philip Impey and a commentary about the plans. It says “sadly the ‘site plan – key’ which is only a proposal bears almost no resemblance to the actual finished Sailz Complex Site’s layout...” and gives detailed particulars. It says inter alia that the front park has room for 9 cars, whereas only 6 spaces (VP 1 – 6) are shown on the Philip Impey plan

Plan 9431-SK3 by Peter Conley and Associates is not identical to the Philip Impey plan but all visitor car parks are in the same positions with the exception of Visitor Car Park 22, which is not noted on the Philip Impey plan.

1. BBQs on ground floor front patios
In this matter the Applicant seeks to overturn a decision of the committee made at a committee meeting on 26th November 2008. The legislation requires that an application to void a decision of the committee is made within 3 months of that decision being made unless there is a good reason, or the Applicant has made an application for conciliation during that time.[1] I understand that an application for conciliation was made, but in any event, I am of the view that since the Applicant did not know of the decision of the committee until after he received a copy of the minutes on 18th December 2008, that it would be “good reason” enough and that it would be reasonable to allow him until 18th March 2009 to make any application.

“.... the Committee resolved that it was inappropriate to have BBQs on the downstairs patios. Residents should therefore remove any existing BBQs from their downstairs patio area on receipt of these Minutes.”

This was not a matter on the agenda for the committee meeting but a matter which arose in “general business” following correspondence from a lot owner. There was therefore no notice to the Applicant (or any other lot owner) that this matter was to be considered at the meeting, and the Applicant (and any other interested owner) was not given the opportunity of listening to the committee’s debate and possibly addressing the committee on this subject.

Lot owners may attend committee meetings on giving 24 hours notice to the secretary.[2] There is no automatic right to speak but a lot owner may be invited to do so. Even had the committee not invited the Applicant to speak, as is its right, I am of the view that a decision which required implementation “on receipt of these Minutes” is not a reasonable period of notice for the creation of an “offence” for which an owner could be held “in breach”. At this point owners might have liked to address the committee, and/or canvas the view of other lot owners and either petition the committee or ask the committee to provide reasons for its decision. No reasons were given in the minutes as to why BBQs were “inappropriate”, nor, was the wording of the motion recorded, contrary to section 55(5)(d) Accommodation Module, which requires full and accurate minutes to be taken.

The Applicant wrote to the committee on 22nd December 2009 asking for the reasons for its decision, but was not given the courtesy of a reply.

The Applicant says that the decision is discriminatory since owners on the first floor may keep BBQs on the front patio. There seems to be some evidence that in 1996 owners were advised that this was not allowed, but why, or by what regulation, is not stated.

In submissions the body corporate says that BBQs on the front patios could be a fire risk; a danger to small children; might cause odours; might result in maintenance for the body corporate; and are unsightly in that they do not present a uniform appearance from the road. Whilst there has been
“complaints of odours in the past” the committee does not say who made these complaints, when they were made or about whose BBQ. It also does not state what action was taken by the committee at the time the complaints were made.

The committee does not contend that the Applicant is breaching a by-law of the scheme, and perhaps for that reason has made no moves to send the Applicant a by-law contravention notice. It does not appear to me from a perusal of the 39 by-laws for this scheme to be a breach of any by-law that the Applicant has a BBQ on his front patio.

Submitters, Mr Hillary, Mr and Mrs Langston and Mr and Mrs Gnezdiloff say that when they purchased, they were told that BBQs were “not allowed” on ground floor patios (and in the case of Mr and Mrs Gnezdiloff, on first floor patios either) but this prohibition is not recorded as a by-law for the scheme. On 31st July 1995, new by-laws were recorded. They are similar to the current by-laws and make no mention of the prohibition of BBQs on either ground floor or first floor patios. A new community management statement was recorded on 23rd August 2000. Again there is no by-law prohibiting the use of BBQs on any lot or common property.

Section 94 Act requires the body corporate to administer the common property for the benefit of lot-owners, to enforce the community management statement including the by-laws, and to carry out its functions under the Act and the community management statement, the whole in acting reasonably.

I have concluded that in the absence of any by-law to the contrary, to prohibit a lot owner from maintaining and using a BBQ, about which there is no complaint, on an exclusive use area allocated to that lot owner, is not a reasonable exercise of the power of the committee.

The body corporate’s concern about damage to paintwork, I find is somewhat fanciful. By-law 34 specifies that the body corporate’s duties in respect of “repair, maintenance and replacement” are not transferred to the lot owner with the exclusive use, but it might be expected in the absence of specific provisions to the contrary, that a lot owner with the benefit of the exclusive use must keep the exclusive use area clean.[3] In my view this would include wiping grease marks and any smoke stains from walls and ceilings. The Applicant has had the BBQ for over three years and there does not appear to have been any concern about the maintenance of the exclusive use area, or the need to paint the ceiling caused by, or aggravated by, the normal use of a BBQ. It appears that BBQs are permitted on back patios, which are also exclusive use areas as shown on sketch plans “A” “B” “C” and “D” but there is no evidence about additional maintenance being required for those exclusive use areas.

The body corporate provides no evidence whatsoever about BBQs being a fire hazard or being dangerous for children, and it seems that BBQs are permitted on rear patios and first floor patios, which renders the alleged concerns about safety, meaningless. The BBQ on the common property provided by the body corporate would be an equal hazard for small children, and the use of any BBQ will require supervision of small children by adults. The body corporate says that it will in the near future commission a report about fire safety of BBQs on first floor patios, but the fact that this item is not currently on the agenda shows that there is no real concern about BBQs being any more of a fire hazard that any other domestic cooking appliance maintained in a unit. It also does not foreshadow that the result of any such report would be that BBQs are intrinsically hazardous, and to suggest so would be absurd.

It seems to me that the primary concern of the committee and the submitters who opposed the application was that the Applicant’s BBQ is alleged to spoil the uniformity of the frontage of the scheme, and for that reason, it is “inappropriate”. The “inappropriateness” is solely in a visual context. It is the committee’s view that the Applicant’s BBQ either on its own, or because it will encourage others, will make the scheme look “substandard” as described on the pro-forma submission circulated by the committee. BBQs on front patios are detrimental to the “general functionality and concept of the Sailz Complex.” By this somewhat strange phrase, I understand merely that the committee does not like the Applicant’s BBQ.

Whilst I do not share the opinion that the Applicant’s BBQ is an eyesore, if this is the view of the body corporate, then the body corporate might pass a by-law about covers being required on BBQs maintained in areas of front facing units and to be of a certain style or colour, such as is often seen in by-laws about curtain backing.

The committee’s decision of 26th November 2008, communicated to the Applicant who is the lot owner most apparently affected by the decision, only in the minutes of a meeting received on 18th December 2008, was high handed, discriminatory, and unreasonable. I therefore hold that it was not a valid decision of the committee.

The Applicant seeks an order that the committee is ordered to direct the resident manager to remove the signs saying “No overnight parking” from two locations.

By-law 2 of the scheme, as set out above, prohibits the parking by owners and occupiers on any part of the common property without the permission in writing of the committee. By-law 2 is subject to by-law 34 which gives exclusive use areas of common property to each lot owner in the scheme as allocated on Sketch plans “A”, “B”,”C” and “D” lodged in the Land Titles Registry. The exclusive use areas for car parking relate to areas described as “carports” and there is no other parking for owners or occupiers designated on the registered plans.

In July 1995 when the scheme was first registered, the local council by-laws or regulations in respect of visitor parking would have been applicable to the development. At the time when the development application was approved by the Council of the Shire of Whitsunday, the car parking requirement for the scheme was for 1.25 cars per unit, ie. 40 cars. [4] The development proposed a total of 54, being 32 undercover parks adjacent to units; 12 visitor car parks; and 10 areas where visitors could “stack park.”

I understand “stack parking” to be the practice whereby cars may be parked one behind the other, even bumper to bumper, where they can be moved easily by a discernable group.[5]

There is no registered plan of visitor parking areas, and this is not at all uncommon.

On 8th September 1994 the Council of the Shire of Whitsunday granted approval for 32 multiple dwellings on scheme land subject to conditions including that “an off street carparking area laid out generally in accordance with Drawing 9431/SK3 by Peter Conley and Associates” (the plan) be provided, paved, laid out, linemarked, signposted, drained and maintained in accordance with Council’s standards. (Condition 8)

The plan designates 22 areas marked “VP 1 – VP 22”. Under “VP 22” which is an area of patterned concrete outside Reception, is written the words “short term.” The 22 areas are not all defined as box shaped spaces, “VP’s” 13 – 22 being undefined, and “VP’s” 1 – 12 being shown as rectangles. This accords with the written application.

The council approval is only that the scheme is laid out “generally in accordance with” Drawing 9431/SK3 and variations to the drawing in minor particulars would not be a breach of the town planning consent, for example, the changed numbering of the carports as noted by the committee, VPs 7 and 8 being a “waiting zone” used for guests checking in, and the positioning of the central VPs which has also changed.

There are now either eight or nine parking spaces at “the front” of the scheme, in lieu of “VP”s 1 – 6, and there are currently three spaces in the centre of the scheme, previously four (VPs 9,10,11, and 12) prior to the realignment of the swimming pool fence.

The three central areas appear to me to be designated as visitor parking areas on the plan whether or not they are in the exact positions proposed on the plan. The spaces at the front of the complex described by the body corporate as “outside the boundary” are in fact within the Sailz scheme boundary, as are the council easements. The body corporate has “generally assumed” these spaces to be “usable by Sailz,” and they are currently used by residents on a first come, first served basis.

In my view, since at least 6 of these spaces are designated visitor parking spaces on the plan, they should not be used by anyone other than a bona fide visitor, nor can the body corporate allow anyone other than a genuine visitor to park in a designated visitor car parking area if that means that the scheme falls below the required number of spaces to be kept for visitors. As at 1995 this was 0.25 per lot = 8.

A bona fide visitor is someone who is not the owner or occupier, however temporary that occupation may be. If holiday-makers are renting units, they are treated as “occupiers” and must use the unit’s exclusive use area carport. A visitor is someone who calls on the owner or occupier. The length of time over which a visitor needs to stay may vary depending on the purpose of the visit. [6]

As a general rule, persons letting a unit for a week (including family or friends accompanying those persons for the majority of the period let) would be classed as occupiers. Persons just visiting for one or two nights of that period would normally be classed as visitors. Similarly, if the relative of an owner/occupier regularly visits for one or two nights every month then that relative would normally be classed as a visitor.

If the remaining two/three front spaces are not designated visitor car parks, then I am of the view that owners and occupiers might use these front spaces only with the consent in writing from the committee, since these are areas of common property, caught by By-law 2. The committee might give a “general consent” in writing that the areas may be used on a first-come/ first-served basis to any owner or occupier.

The body corporate says that the scheme by-laws now incorporate two decisions of the committee, the first being the committee decision made on 25th September 2007 to accept the new “regulated parking” arrangements, which were that there were to be no cars left overnight in the 3 central car parking spaces; and the second being that vehicles parked in the front 8 spaces for longer than 24 hours are issued with a “move on” notice by the resident manager. It does not seem to me that either of these decisions have “been incorporated into the by-laws” since the by-laws can only be made by special resolution of the body corporate at a general meeting. These two pieces of policy do not appear in the recorded by-laws for the scheme.

“The Committee can make rules relating to the common property and in particular in relation to the outdoor and indoor recreational facilities and the lifts, not inconsistent with these by-laws and the same shall be observed by the proprietors unless and until they are disallowed or revoked by a majority resolution at a general meeting of the proprietors.”

Whilst a “majority resolution” is a particular type of resolution used only in very specific circumstances defined in the legislation, it appears that what this by-law sets out to achieve is that the committee may make binding rules which shall stand until they are overturned at a general meeting (by ordinary resolution which requires a simple majority.) The reasonableness of a by-law which allows a committee to make rules, but only the body corporate in general meeting to revoke them, is in itself questionable, but in any event “house rules” do not have the same weight as by-laws and are unenforceable. Owners will be ‘bound’ by them only in a spirit of co-operation and goodwill. Only by-laws recorded in the Land Title Registry have the force of law, and can be acted upon by the body corporate, and enforced in the Magistrates Court by way of fine if applicable.[7]

I have considered whether the committee is able to restrict visitor parking or whether it would be a “restricted issue” from the committee, subject to section 42 Accommodation Module, and a decision which should be made by the body corporate at general meeting because it affected the rights, privileges or obligations of owners of lots. However, I have come to the view that in the case of visitor parking, which is a local authority requirement, that the body corporate at a general meeting also has no power to deplete the number of visitor car parks, even if it wished to.

"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 guidance from the Council about its definition of what constituted a visitor parking space at the time the approval was given. However, I am of the view that if a local government requires that a certain number of spaces or areas are provided for visitors to residential units, then such spaces must always be available. The visitor spaces are not required only on certain days or during holidays. They must be there to accommodate visitors’ cars and to prevent congestion and on-street parking where the scheme is required to provide off-street parking. That must be the point of a visitor’s car park.

Unless specifically stated, I am of the view that visitor car parking must be freely accessible to visitors with no encumbrances, and be free of charge, and that access and egress must not be restricted by keys or barriers in any way tending to privatise the space, or reserve the space for another. It follows that a restriction on times of use flies in the face of the purpose of the “visitor car park” since bona fide visitors may stay overnight.

I am also of the view that “overnight parking” is not a term which can be enforced by the body corporate. When does “the night” commence? When has the visitor parked “over the night”? At dusk, or at dawn? It would seem quite nonsensical for a visitor dining with an owner or occupier at 9pm, say, to be asked to remove his or her car in the middle of the meal. Restrictions on the use by visitors of spaces intended for them, cannot be imposed in any meaningful way by the body corporate.

Visitors are not of course bound by the by-laws or the community management statement.[8]

In conclusion I am of the view that at least 8 visitors’ parking spaces must be maintained solely for visitors, generally in accordance with Drawing 9431-SK3, and that they must not have any restrictions as to times of parking placed on them. The body corporate must remove the “no overnight parking” signs.

For completeness I refer to By-law 32 “Security”. I find that this by-law reads that, if reasonable to ensure the security of scheme land, the body corporate may close off any part of the common property unless it gives access to a lot or access to a car park. The body corporate may also restrict owners and occupiers from gaining access to common property other than those parts required to give access to lots and access to car parks.

That is to say, access to any car park is not to be closed off or restricted to an owner or occupier.

I also consider that the removal of one of the visitor’s central area car parks at the end of 2006 to accommodate the pool fence would also be a restricted issue from the committee. It does not appear that it was put to the body corporate at the time. However, that matter is not part of this application.

I note that the body corporate seeks to make one of the central visitor spaces a designated disabled parking space. Before this matter is put to a general meeting, the body corporate might also like to ascertain the view of the Whitsunday Regional Council.

[1] Section 242(3) Act
[2] Section 51(2) Accommodation Module
[3] Section 171(2) Accommodation Module
[4] As per Development Report – Town Planning Consent for 32 multiple dwelling units at Lot 1 on RP 38821 prepared by Peter Conley and Associates, provided by the Whitsunday Regional Council on 11th August 2009
[5] “Stack Parking -Stack parking in public parking areas without attendant parking will generally not be permitted. However, consideration may be given to allowing stack parking in private parking areas provided that each stack parking module is small and restricted to one tenant or identifiable group.” Ballina Shire Combined Development Control Plan Chapter 1 – Urban Land Policy Statement No.2 Car Parking and Access; “STACKED CAR PARKING Stacked car parking is only permissible in conjunction with single dwelling houses and dual occupancies.” Coffs Harbour Development Control Plan; “'Stack Parking' means parking spaces in a line, one behind the other.” Rockdale City Council Parking & Loading Code adopted by Council on 12 August 1987and amended on 28 June 1989

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Sailz Whitsunday [2009] QBCCMCmr 305 (20 August 2009)