The Lakes East [2009] QBCCMCmr 382 (6 October 2009)

Last Updated: 12 November 2009

REFERENCE: 0639-2009

ORDER OF A REFEREE

MADE UNDER PART V

BUILDING UNITS AND GROUP TITLES ACT 1980

Name of Plan:	The Lakes East
Number of Plan:	Group Titles Plan 107139
Address of Parcel:	Oxenford - Southport Road, Hope Island, Queensland

TAKE NOTICE that pursuant to an application made under section 77(1) of the Building Units and Group Titles Act 1980 by The Proprietors The Lakes East Group Titles Plan 107139.

I hereby order that Mr Con Giannaros, the occupier of Lot 53 must not park, store or keep a commercial bus on land comprised in The Lakes East Group Titles Plan 107139 in a way which contravenes By-Law 7.04.

STATEMENT OF REFEREE’S REASONS FOR DECISION - 0639-2009

“The Lakes East” GTP 107139

Application
This application made on 10 July 2009 is by the Body Corporate seeking an order that Mr Con Giannaros of 6146 Vico Avenue, Hope Island Resort comply with By-Law 7.04.

The Body Corporate submits that on 4 February 2009, Spectrum Property Management (SPM) informed Mr Giannaros that parking a commercial bus is in breach of the by-laws. The Body Corporate states it was subsequently advised that parking was continuing. It says SPM advised that a remedy breach had been issued and it was advised that a new place would be found by 1 April 2009. The Body Corporate submits that, on 27 April 2009, the committee resolved to give Mr Giannaros a contravention notice; the notice was served on 29 May 2009; and the coach was seen on 29 June 2009.

The Body Corporate provided a copy of:

• An email from Ashley Moore to the body corporate manager dated 6 April 2009 referring to a bus being parked at the parcel.
• A letter dated 6 May 2009 to Mr Giannaros from the secretary, who on behalf of the Body Corporate said that the committee, at its meeting dated 27 April 2009, had resolved to give a by-law contravention notice for failure to comply with By-Law 7.04 by continuing to store a jetski on a trailer at the front of the lot and parking a bus on the driveway and common property despite requests from the property manager.
• A Notice of Continuing Contravention of a Body Corporate By-Law dated 1 May 2009 to Mr Giannaros in the terms of the above letter and which included By-Law 7.04.
• An email from Ashley Moore to the body corporate manager dated 5 June 2009 referring to a bus being parked outside 6146 Vico Avenue overnight.
• A resolution passed outside a committee meeting dated 23 June 2009 stating that despite having been issued with a breach of by-law notice, the occupier of Lot 53 continues to park a commercial vehicle on the driveway of the Lot; and that an application be made for an order of a referee and should the occupier continue to do so, the Body Corporate be authorised to commence legal proceedings at the Magistrates Court.
• A letter dated 25 June 2009 from the Community Manager on behalf of the Body Corporate to SPM saying that a commercial coach has been observed being parked on the driveway and nature strip of 6146 which is not permitted under By-Law 7.04.2.
  

Jurisdiction
“The Lakes East” was created by the registration of Group Titles Plan 107139 under the Building Units and Group Titles Act 1980 (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 Mr Giannaros and all owners.

Mr Giannaros submits his rental agreement ceases in January 2010 and that subsequent to getting the notices he has not left the bus overnight at the property described in the application. He says that on average he goes home for lunch once a week, and that he parks the bus within the Hope Island Resort for a period of 1 hour. Mr Giannaros believes the by-law does not stop him from parking the bus for that period of time. He states he is happy to discuss this matter with the Body Corporate.

Ashley Moore supported the application submitting that over an 8 month period the resident of 6146 Vico Avenue has ignored requests from the committee to find alternative parking outside Hope Island Resort for a commercial “Airport” bus and accompanying trailer, and by parking a jet ski in the front yard.

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

On 15 September 2009, I invited the Body Corporate to reply to the issues raised in submissions. On 23 September 2009, the body corporate manager responded on behalf of the Body Corporate saying Mr Giannoras was first advised in February 2009 that the parking of his commercial vehicle on his driveway breached By-Law 7.04 and that the Body Corporate was informed that should any further action be postponed, he would, by 1 May 2009, seek alternative arrangements and the vehicle would not be sighted within the community. He says that consistently after this date the vehicle was reported frequenting the area in the same manner as earlier reports. He submits that for this reason, the Body Corporate will not consider any further relaxation of the By-Law.

On 28 September 2009, the manager provided information that Mr Giannaros occupies Lot 53 on Group Titles Plan of Resubdivision 107156; a lot that is included in ‘The Lakes East’.

Decision
A by-law has force or effect when the registrar of titles has, pursuant to a notification in the prescribed form lodged in the land registry by the body corporate, recorded the notification on the registered plan (s 30(3), BUGT Act).

On 20 December 2004, the registrar recorded a Notification of Change of By-Laws (No.708275601) on GTP 107139 which included By-Law 7.04 relating to vehicles. The By-Law contains three sections. For the purposes of determining this application, sections 7.04.1 and 7.04.2 state:

7.04.1 A Proprietor or Occupier will not park store or keep upon the Common Property any motor vehicle...boats, trailers and caravans other than:

1. in garages;
2. in the case of motor vehicles only, on driveways in front of garages; and
3. on other parts of a Lot that are screened so that the thing parked cannot be seen from outside the Lot.
   

7.04.2 A Proprietor or Occupier of a Lot will not park, store or keep a vehicle of a commercial type (including but not limited to a dump truck, cement mixer truck, delivery truck, coach, bus or inoperable vehicle equipment whether mobile or otherwise) within the Parcel other than for the purpose of commercial deliveries.

The by-laws for the time being in force bind the body corporate, proprietors and occupiers of a lot (s 30(5), BUGT Act).

“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” (s 27(3), BUGT Act).

While the BUGT Act does not prescribe a framework for enforcing by-laws, it is apparent that the Body Corporate has informed Mr Giannaros that it believed he was contravening By-Law 7.04 giving him details to identify the contravention. It is evident that the Body Corporate subsequently decided to make this application. Mr Giannaros has not disputed the notice given to him by the Body Corporate. Nor has he questioned the basis on which the Body Corporate has proceeded with respect to this matter. He believes that the By-Law does not apply in the current circumstances where he parks the bus for a short period of time.

There is nothing in the material to suggest there is a question about By-Law 7.04 and specifically By-Law 7.04.2 applying to the type of bus Mr Giannaros is parking within the parcel. Mr Giannaros has not argued that the By-Law does not apply. He does not dispute parking on the parcel and there is nothing to suggest the bus is being parked on the parcel “for the purpose of commercial deliveries”. Mr Giannaros states he only parks the bus on the parcel during his lunch break. The By-Law does not make any allowance for the amount of time a commercial bus may be parked within the parcel. It prohibits any parking except “for the purpose of commercial deliveries”.

In these circumstances, I am satisfied from the material presented that despite being notified by the Body Corporate, Mr Giannaros has continued to park the bus on land in contravention of By-Law 7.04. In this circumstance and on the basis of the submissions made, I am satisfied the Body Corporate has acted in accordance with the legislation in enforcing By-Law 7.04 against Mr Giannaros. For these reasons, I have made an order with respect to parking the commercial bus within the parcel in the terms sought.

The Body Corporate also claims a jetski on a trailer is being parked at the front of the Lot. Even though this matter is referred to in the contravention notice, it is not mentioned subsequently including at the committee meeting where it was resolved to make this application. I am not satisfied from the material presented that an order is warranted with respect to this allegation.