Wynyard Estate [2009] QBCCMCmr 499 (11 December 2009)

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

Zinaida Grebeneva (Wood) and Peter Wood, owner and occupier respectively of Lot 17

I hereby order as follows –

that the Applicants may at their own expense make an improvement to common property, being the yard area over which they have exclusive use, by planting shrubs along the fence between their exclusive use area and the adjacent visitors’ car park;
that the body corporate shall within 14 days of the date of this order send a Notice Regarding Likely Future Contravention of a Body Corporate By-Law (Form BCCM 11) to the occupiers of Lot 56, with copy to the lot owner, in respect of numerous former breaches of By-law 3 of the scheme by-laws relating to parking vehicles on common property and in a designated visitor parking area;
that the body corporate shall within 14 days of the date of this order send a Notice Regarding Likely Future Contravention of a Body Corporate By-Law (Form BCCM 11) to the occupiers of Lot 58, with copy to the lot owner, in respect of numerous former breaches of By-law 3 of the scheme by-laws relating to parking vehicles on common property and in a designated visitor parking area; and
that the body corporate must take further follow-up action in respect of the notices referred to at item 2 and 3 above if the notices or either of them are not complied with.

In all other respects, this application is dismissed.

This is an application dated 15th July 2009 and amended on 23rd July 2009 by Zinaida Grebeneva (Wood) and Peter Wood, (the Applicants) owner and occupier respectively of Lot 17, against the body corporate for Wynyard Estate CTS 35055 (the body corporate) for orders as follows –

“Wynyard Estate” CTS 34055 is a community title 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 66 lots in the scheme created under a Standard Format 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)).

The Applicants make reference to a conciliation conducted by this Office. I have no knowledge of, and play no part in, any conciliation sessions conducted by this Office which must remain confidential. In this application it is up to the Applicants to set out their case “de novo” and it will be assessed on its merits.

The Applicants say that they have trouble “getting anything done” in the complex. Relevantly, they say that the committee ignores its duties inter alia, by ignoring by-law breaches.

The Applicants lodged a BCCM Form 1 with the committee on 24th March 2009 saying that the committee had contravened a by-law by failing to “follow up on the breaches of By-Laws reported to them” about illegal parking and naming the respondent as Paul Ratcliffe, who was the then chairman.
The Applicants attached to the BCCM Form 1, copies of numerous emails dated between 24th November 2008 and 10th January 2009 , and wrote “see attachment” in the sections of the form in which it is required to state which by-law is being broken and how the respondent has contravened the by-law. They said at section 4 of the form: “See attachment – Units 56, 60, 61, 64, 57, 58 Illegal parking.” There was no response by the committee.

The Applicants include in their application copies of correspondence written on 17th March 2008, 13th April 2008, 14th August 2008, 25th August 2008, 18th November 2008, 23rd November 2008 and 1st March 2009, the content of which is as follows –

17.03.08: (Letter addressed to the caretaker D Bay Property Management with copy to the then body corporate manager). The Applicants complain of people leaving their engines running and lights on for 5 minutes or more in the visitors car parking bays although “there have been no signs stating this area is for visitors only.” They also complain of slamming doors, loud talking on mobile phones and exhaust fumes. They say their lounge-room and master bedroom face this area and they are constantly disturbed. They reported times, dates and registration numbers of cars noted parking in the visitors’ bays from 12th March 2008 – 16th March 2008. They also noted a wrecked car parked behind their unit and asked for it to be removed, and the other cars to be wheel-clamped. They also complained of owners cars not properly parked in garages but left protruding onto the roadway asked for immediate action. There was no reply.

13.04.08: (Letter addressed to the then body corporate manager). The Applicants referred to specific by-laws 1, 2, 3 and 4 as being applicable, and the letter repeated the same complaints. In addition the Applicants complained about a “botched repair” to the front gate, and a breach of by-law 15 regarding the locking of external doors. They say that they cannot lock their lounge sliding screen door because they have no key for it. They say that the body corporate should fix this urgently. They also note that they are still waiting for their front fly-screen door to be repaired and refitted on the correct side so as not to interfere with access to their front door. They sought a reply and that something was done about the by-law breaches, telling the body corporate manager that it was its responsibility to police the by-laws. They also mentioned that the lawns were not properly cut and suggested that the body corporate manager did “away with front lawns altogether and put more native plants in to save water and reduce operating costs so you can employ a fulltime groundkeeper.”
There was a reply from the body corporate manager on 15th April 2008 that the complaint would be forward to the committee; and from the on-site manager on 16th April that notice had been given to the residents continually parking in visitor bays”.

14.08.08: (Letter addressed to then body corporate manager and caretaker). The Applicants complained of the behaviour of the tenants in Lot 56, again about their use of the visitors’ car parking bays behind the Applicants’ back fence. The tenants repair cars in the area and play loud music. They said they expected some action.
There was a reply from the body corporate manager that the letter had been forwarded to the property manager. The property manager advised on 19th August 2008 that the tenants in number 56 are a couple in their 60s who have lived there for a number of years. They were spoken to about the problem and reminded of the by-laws.

25.08.08: (Letter addressed to then body corporate manager and caretaker). The Applicants complained about the tenants of Lot 56 and noted that the visitors’ car parking bays were only 4.87m from their bedroom. They say they have mentioned before that the same “4 or 5 cars” arrive each day around 6pm and stay overnight and take off early in the morning. The noise from cars such as running engines, music, doors slamming as well as lights and exhaust fumes have now caused severe anxiety in the Applicants. They say that at 4.20am on 21st August 2008 they were woken up by an engine starting and three more cars took off in a matter of 20 minutes. The next day, the engines started at 5am. They note that the visitors’ bay is almost full by 6am. They insisted that the current tenants in Lot 56 be forced to move out.
The body corporate manager sent a circular to all residents about the by-laws on 18th September 2008.

18.11.08: (Letter addressed to the then body corporate manager) The Applicants complain that their own visitors have unable to use the visitors’ parking bay because it is full of residents’ vehicles. They again complained about the tenants of Lot 56 whose car registration is RAC 47 and noted on numerous occasions. These tenants have a driveway and garage opposite the Applicants’ lot, but choose to use the visitors’ parking bay illegally, and to the discomfort of the Applicants. There are several residents’ cars using the visitor parking bay, one noted to belong to the occupants of Lot 64.
The body corporate manager advised that she had forwarded this letter to the committee on 21st November 2008.

23.11.08: (Letter addressed to caretaker, then body corporate manager, then chairman and committee members). The letter repeats the complaints of the previous five letters. The Applicants noted that on 2nd November 208 a second vehicle belonging to the occupants of Lot 56 was parked all day in the visitors’ bay and was washed there by the family. The following day the occupants of Lot 56 were arguing loudly on their balcony at 2am. The Applicants called security after speaking to the occupants of Lot 56. The Applicants noted that the cars belonging to the occupants of Lot 60, and Lot 58 were also parked in the visitors parking bays consistently, as well as those of Lot 64 and Lot 56. They insisted that a contravention notice be sent to the tenants of Lot 56 and that shrubs be planted long the back yard fence.
The body corporate manager advised on 24th November 2008 that she had spoken to the on-site manager about this problem and that “matters were in hand.”

01.03.09: (Letter addressed to the then chairman, caretaker, and body corporate manager). The Applicants repeat their complaints. The tenants in Lot 56 use the visitor’s bay for car repairs and car washing; they argue loudly in the night; and swear and gesticulate rudely at the Applicants. They also keep their garage free for a billiard table. They stated that the other persistent offenders for parking in the visitors’ bay were the occupants of Lot 58. The Applicants asked why a formal breach notice had not been issued, and said they were still awaiting a response about the shrubs. There was no response from any of the addressees.

The Applicants sent a second BCCM Form 1 on 20th June 2009 (the second form) to the then chairman Mr Ratcliffe naming the caretaker D Bay Management Pty Ltd as the respondent. They quoted at section 4 the number and text of by-laws breached by “the respondent” as 3(1)(A) – The occupier ,must not without the body corporate’s written approval park a vehicle on the common property; 3(5) vehicles may only be driven on the parts of the common property that are designed for the purpose; and 5(1)(A) An occupier must not without the body corporate’s written approval damage a lawn, garden, tree, shrub, plant on the common property. They said that the caretaker had contravened the by-law by giving verbal permission to “the occupier” to park their cars on the common property; that the caretaker drives its cars into their driveway cutting the corner on the common property-garden; and the respondent caretaker has damaged the garden edging.

On the reverse of the second form, the Applicants said that this was the second request to serve “a remedial action notice “ on the respondent caretaker, and that the first request was sent on 20th May 2009 but no response was received. They noted on the reverse that the caretaker does not comply with the caretaking or letting agreements or the code of conduct.

Prior to the sending of the second form, the Applicants had written letters of complaint on 15th April 2009; 19th April 2009; 20th May 2009 and 16th June 2009 as follows :

15.04.09 (Addressed to caretaker, body corporate manager and Paul Ratcliffe) The Applicants pointed out that there had been no reply to their last two letters. The Applicants said that the tenants of Lot 56 were doing mechanical repairs to the car in the visitors’ bay on 11th April 2009 and their car was there all day. It was also parked there on 15th April 2009. The car belonging to Lot 58 is also regularly parked there.
The body corporate manager replied on 30th April 2009 that she had contacted the chairperson and on-site manager.

19.04.09 (Addressed to the caretaker). The Applicants noted that the car belonging to Lot 56 was parked in the visitors’ bay all day on 19th April 2009. They also noted that the car belonging to the occupier of Lot 64 was parked there over a weekend 17th April 2009 to 19th April 2009.
The caretaker replied on 29th April 2009 that they had been in touch with the occupiers and reminded them about the by-laws and in particular the restriction in parking in visitors bays.

20.05.09 (Addressed to the then chairman/secretary Mr Ratcliffe). The Applicants advised that on 9th May 2009 at 4.15pm they went to see the on-site manager about the persistent use by the occupiers of Lots 56 and 58 of the visitors’ parking bay. Whilst they were aware that the office was closed, they considered they had a right to see the manager in accordance with the caretaking agreement dated 14th June 2005. They were told by the caretaker that the manager was not available and that it was his day off. He was angry with them for disturbing him and shut the door on them. The Applicants quoted the contract to him and he re-opened the door and said it was not his job to police the by-laws, but that the Applicants should address their concerns to the committee. The Applicants did not know any committee members who lived in the complex. The contract says that the manager must “Police the observance of the By-laws of the body corporate”. The manager showed them a deed of variation but the Applicants say that the essence is the same, that the manager must be contactable by phone as reasonably required to carry out caretaking duties. The Applicants asked the committee to issue “THE NOTICE as the manager failed to comply with the caretaking agreement.” They describe the manager as Ms Sue-Tin who was listening in a room next door and would not speak to them, and the caretaker is Mr Sue-Tin who answered the door.

16.06.09: (Addressed to Mr Ratcliffe, body corporate members with copy to Commissioner’s Office). The Applicants complain about the cleanliness of their villa when they moved in in March 2007 and that having perused the caretaking and letting agreements and variations thereto, they were of the view that the manager does not comply with the code of conduct at Schedule 2 Act, and is “guilty of gross misconduct and gross negligence in the performance of [its] duties.” They cite that employees and contractors are not supervised, giving as an example leaking toilets in their own villa before their purchase which they had to pay to get fixed; blinds which were not fixed in their unit; and downlights inside not working so they had to replace globes themselves; the failure to police by-laws; failure to inspect fire-fighting equipment; failure to arrange pest control because there are lots of ants everywhere throughout the complex; failure to keep order, lock gates, or mend holes in the back fence; failure to weed and garden; failure to sweep and hose walkways; failure to remove rubbish; and failure to be available in the office. They query whether the deed of variation is “legal.”

In respect of the letting agreement, they say that the caretaker did not clean on top of kitchen cabinets and inside when their own tenants moved out nor empty the tenant’s garbage. They queried the painting and electrical skills of the caretaker; say that the caretaker has allowed the occupiers of Lot 56 to park their vehicles on the common property in breach of By-law 3(1)a). The caretakers also drive their cars into the driveway cutting the corner in breach of by-laws 3(5) and 5(1a) and causing damage to garden edging. They say that they have discriminated between them and the occupiers of Lot 56 who are in their sixties as if that was an excuse for them to breach the by-law.

They asked the body corporate to consider termination of the caretaking agreement “under section 8(c)” for gross misconduct or gross negligence and termination of the letting agreement “under section 7(c)” for the same reasons, and also cited section 122 Act.

In respect of the second outcome sought they say that the occupiers of Lot 56 still use the visitors’ parking bays on a permanent basis. The Applicants sought assistance from the Moreton Bay Regional Council from 28th August 2008 but did not get information about the requirements for visitors’ parking bays. They asked how many parking bays there should be for the scheme and how many were approved in the development permit.
Council replied on 6th October 2008 that the onsite car parking spaces comply with the relevant requirements of the development approval; and the regulation of the use of the spaces is covered by the community management statement for the scheme.

From 17th December 2008, the Applicants visited the visitors’ car parks on common property every day and reported the registrations of cars found there, keeping a spread-sheet of days and registration numbers.

They also note that on 5th June 2009, Lot 56 had 12 garden lights on and “ugly chairs” on their porch which they say is in breach of by-law 9 (Appearance of Lot). They also complain of Lot 56 having a hose pipe hanging round the front tap in permanent view.

On 30th June 2009 the Applicants were shouted at and abused by “a large man” outside Lot 13. He yelled that he was parked on the lawn and that the Applicants could report him if they liked. The Applicants say that the occupants of Lot 13 have a cat, and curtains instead of vertical drapes also contrary to the by-laws.

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

Six owners simply submitted that they have no complaint about the on-site manager, nor with the committee members or chairperson whom they fully support. They thought that the scheme was being administered appropriately.

Kay Ebert, co-owner of Lot 24, relevantly says that the parking bays have been there since the scheme was built in 2005 and that at times parking there will create noise and light from headlights. The Applicants should have considered this when they purchased. They believe that the on-site managers monitor the situation to keep the use by tenants and owners to a minimum. Such parking by owners and tenants is a “technical” breach, but because of a shortage of parking spaces on a practical note, it is difficult for the managers to monitor 100%. If residents need to park in the visitors’ bays they should give every consideration to adjacent owners, such as turning radios off as they enter the estate, and talking to a minimum round the visitors’ bays.

She supports the planting of shrubs along the back fence of Lot 17. Lots 16 and 19 also had shrubs planted and if the body corporate paid for that then the body corporate should also pay for the Applicants’ shrubs, but if the owners of Lots 16 and 19 paid, then it should be the same arrangement for the Applicants. The trees planted should be in keeping with those at Lots 16 and 19.

D Bay Property Management, caretakers and owners of Lot 1, says that it feels that it is fulfilling the requirements of its contract and the monitoring of the by-laws. It supports the committee.

Wendy Ratcliffe, co-owner of Lot 14 relevantly says she has only rarely seen cars parked in the visitors’ car park when they visit relatives and friends living in the scheme. The visitors’ car park is on the Applicants’ back boundary and they should have considered that when they purchased. She believes that the Applicants have been given permission to plant shrubs on the back boundary in their property.

She notes that the fumes and lights would result in the same problem whether it was a visitor who parked there or the tenants of Lot 56. The tenants of Lot 56 also have a right to be on their balcony. She is of the view that the actions of the Applicants and the “continual surveillance” has created the hostility now directed towards the Applicants from the occupiers of Lot 56.

She has not noticed the curtains in Lot 13 which is opposite Lot 14, because they are cream-backed and unobtrusive. There is an inside cat but this is a “totally separate matter which has no effect on Lot 19(sic). She finds that some of the Applicants issues are very petty and of no consequence to them, and says there should be some give and take.

The committee says that the Applicants have sent numerous emails about parking of vehicles in the visitors’ car park. These emails have been discussed with the on-site managers who in turn have spoken to vehicle owners. There has been no written, as opposed to email, correspondence with the committee, even though committee members Ivan Draganic and Paul Ratcliffe have asked the Applicants to put their complaints in writing and address them to the body corporate manager.

The Applicants should have been aware when they purchased that “there may be a problem with vehicle noise and exhausts.” The committee and the on-site manager have made a note of whether vehicles are parking in the visitors’ car park and have “ not found it to be a problem to the extent the applicants state.” The committee believes that the shrubs planted in Lots 16 and 19 have been planted by owners and that there would be no objection to the Applicants planting shrubs in their backyard exclusive use area.

The on-site manager has spoken to the tenants in Lot 56 to remind them of the by-law “re parking in the visitors car park” but denies informing that the complainant was the Applicants. With the Applicants’ open surveillance and photography of the complex “it would not be difficult for other residents to assume who is complaining.”

The committee says that as at 19th September 2009, the date of the submission. None of the committee has observed the tenants of Lot 13 parking on the lawn. It has noted that the curtains are cream and unobtrusive, and there have been no complaints about them. The committee is aware of the cat.

The Applicants exercised their right of Reply. In respect of this application they reaffirm their claims. With regard to the statements that they should expect some noise and pollution from a visitor car parking bay, they say that if the complex was maintained properly no-one would have to be subjected to inconsiderate use of the area. The complex is not designed for people to house two cars within their lots. They say that the committee should pay for their shrubs if the committee is allowing residents to park in the visitors bays, and thereby failing to enforce scheme by-laws.

They say that all owners have exclusive rights to their back yards which is surrounded by a fence and gate ( By-law 21.1) All the property in the complex is common property.

They do not find that interstate investors can make relevant submissions on the situation. They say that 57 owners are “absolutely apathetic” since they made no submissions at all. They say that as at 20th August 2009, the tenants of Lot 56 were still using he visitors’ car parking bays to service their car. The on-site manager spoke to the tenant of Lot 56 who said that a visitor’s vehicle had its radiator checked and water topped up there and that no maintenance was being done. The Applicants say that the car was not a visitor’s car.

They say that the committee seems to accept by-law breaches as normal. Talking to tenants is not sufficient and the committee should issue by-law breach notices. They have now received confirmation from the Council that the development approval was for one covered car space for each unit and an additional 22 car bays for visitors, as well as one wash bay. They attach a letter date 11th August 2009 from the Council

In this application, there has been a voluminous amount of material, much of it repeated, and much of it not relevant to the outcomes sought by the Applicants. The Applicants have had another application lodged in this Office, and in general complain about the performance of the committee, the current and former body corporate managers, and the on-site managers, the complaints about whom have been repeated in this application sometimes without relevance to the issues.

Meanwhile, whilst the application is about breaches of by-laws, no copy of the by-laws was provided in the application.

First outcome
The Applicants’ first outcome sought is “for improvement to the common property by the body corporate to plant shrubs along Lot 17 backyard fence.” This appears to me to be an application that the body corporate does the planting. However, the Applicants do not state whether they want the body corporate to plant shrubs within their yard, over which they have exclusive use; or outside their yard along the permiter of the visitor parking bays, that is, they do not say on which side of the fence they want the shrubs to be planted. The Applicants say in their Reply that they want the body corporate to pay for the shrubs.

In their letter of 23rd November 2008, which included committee members as addressees, the Applicants said at the conclusion of the letter–

3. that some dense shrub to be planted along my backyard fence for noise and light protection.” (sic)

This appears to be the only approach to the committee either for permission to plant shrubs, or to require the body corporate to plant shrubs. The passive tense that the “shrubs be planted” appears to me to be a request by the Applicants that the body corporate is to pay for the shrubs and plant the shrubs, in order to give the Applicants some protection from the use of the visitors’ parking area.

Section 164 Accommodation Module relates to improvements to the common property by the body corporate. The committee might approve such expenditure if the cost is not more than $300 x the number of lots, which in this scheme gives an amount of $19,800. The proposal is therefore within the committee’s power to grant, without the need to propose a motion to a general meeting.

In its submission, the committee said that there is no objection for the Applicants to plant shrubs in their exclusive use area, presumably at their own cost. It therefore seems that the Applicants and the committee are talking at cross-purposes, and I agree that it is far from clear exactly what the Applicants require from the committee, or at what cost.

Section 164 Accommodation Module relates to improvements to common property to be made by a lot owner and requires that such an improvement is authorised by an ordinary resolution of the body corporate at a general meeting, unless such improvement is “ a minor improvement” defined as having an installed value of less than $3,000, and does not detract from the appearance of any lot or common property, and that the improvement is not likley to promote a breach of the owner’s duties as an occupier.

Whilst the value of the shrubs proposed has not been given, I am of the view that it is likely that sufficient shrubs may be purchased and planted for under $3,000. The permission for the shrubs may therefore be given by the committee. The shrubs appearance would in the normal way, enhance the appearance of common property.

There seems to be no reason why the body corporate should pay for shrubs to be planted in an exclsuive use area of the Applicants. There is also no objection to the Applicants planting shrubs in their own exclusive use area. I therefore order that the Applicants may plant shrubs along the fence in the area of common property over which they have exclusive use, at their own cost. If the Applicants wish the body corporate to plant shrubs along the outside of the fence in the visitors’ parking bays, they should make such request in writing to the committee.

Second outcome
In respect of the second outcome sought, the Applicants want the committee to send a “future contravention notice” to the occupiers of Lot 56. The Applicants have requested this on several occasions from the committee, which is the correct authority to send such a notice, even though the committee might direct the body corporate manager to acts on its behalf.

The Applicants provided the committee with evidence that the occupiers of Lot 56 have on numerous occasions used the visitor parking bays for their own vehicles, up to three in number.

Following receipt of a Form BCCM 1, which is an approved form, the committee is required by section 182 Act to turn its mind to whether it reasonably believes that a person who is the occupier of a lot is contravening a provision of the by-laws.

A BCCM Form 1 was sent to the committee on 24th March 2009. It named the respondent, that is, the person accused of breaching the by-law, as Paul Ratcliffe, the then chairman. At section 4 where the form asks the complainant to state the by-laws breached it states “ see attachment – Units 56 ,60, 61, 64, 57, 58 Illegal parking.” The Applicants attached copies of emails.

The form was deficient in stating, at section 4, the number and text of the by-law(s) breached. The form was in error in naming the chairman as a person who had breached a by-law. In my view, on receipt of this document, the committee had no obligation to consider any action against those referred to obliquely by lot number. However, as a common courtesy, the committee might at this stage have advised the Applicants that their form was insufficient, and would not be put to a meeting of the committee for a decision to be made.

The by-laws for the scheme are set out at Schedule C of the Community Management Statement lodged in the Lands Titles Registry. By-law 3 concerns vehicles. It states that the occupier of a lot must not without the body corporate’s written approval park on the common property, or permit an invitee to do so except for in a designated visitor parking space. The visitor parking area “must remain available at all times for the sole use of visitors’ vehicles.”

By 24th March 2009, the Applicants had mentioned in the emails to the committee, the parking of cars on common property, mainly the visitor’s area nearest them, by occupants of Lots 56, 57, 58, 59, and 61. Other registration plates were given but no other lot numbers. There is no evidence in relation to the occupants of Lot 60, or lot 64 by lot number in the emails, although these lots are included on the BCCM Form 1.

However, despite the Applicants’ failure to provide a satisfactory BCCM Form 1, it seems to me that there is ample evidence from the observations of the Applicants that the occupants of Lot 56 regularly flout By-law 3 in their habitual use of the visitor parking area. I am of the view that the committee has chosen not to make a decision at a committee meeting about the parking by Lot 56 and let the matter ride, since it appears that the only residents whose peace is disturbed by the parking is the Applicants’.

It is true that any bona fide visitor parking in the visitors’ area is likely to disturb the Applicants, but it seems that they are subjected to additional noise and light by the fact that those parking in the visitors bays are largely not visitors. Whilst it is common in smaller schemes that insufficient parking is available for families with more than one car, the visitors parking areas are a council requirement which must be kept available only for visitors. It may well be that such spaces remain vacant whilst residents must park off scheme land, but that is the current arrangement of this, and many other schemes.

The body corporate has a duty to enforce its by-laws (section 94(2) Act). I therefore order that the body corporate sends a future contravention notice BCCM Form 11 to the occupants of Lot 56 (with copy to the owners ) in respect of not parking cars owned by them or in their control, in visitor car parks. The body corporate should also take action on the future contravention notice if it is not complied with by the date given in the notice.

Third outcome sought
In respect of the third outcome sought, the Applicants ask for a future contravention notice to be sent to the occupants of Lot 13. I can see no evidence at all that the Applicants have taken steps to bring any contraventions by the occupants of Lot 13 to the notice of the body corporate. The application does not say what the contravention notice is for, and what by-laws are deemed to have been breached. The occupants of Lot 13 were not listed on the BCCM Form 1 sent to the body corporate about “illegal parking” on 24th March 2009, nor was Lot 13 cited in the numerous emails sent to the committee between 24th November 2008 and 10th January 2009.

Prior to making an application to this Office, any person who is of the view that a by-law is being breached must take the preliminary step of asking the committee to send a contravention notice, using the approved form BCCM Form 1. (Section 184 Act.) The Applicants have not done this.

In respect of both the keeping of a cat, and the hanging of curtains, both by-laws are “permissive” in that, the body corporate committee may give permission for owners to do both, whereas the body committee is unable to allow residents to park in visitors’ car parking bays. The scheme is not “pet free” as the Applicants seem to think, but the by-law invites those wanting to keep animals, which desire is envisaged by the by-laws, to obtain permission from the body corporate. As Mrs Ratcliffe says, this is a separate matter from the obvious discomfort caused to the Applicants by the parking by residents in the visitors’ parking area behind their lot.

Fourth outcome
In respect of the fourth outcome sought, the occupants of Lot 58 were mentioned in the defective BCCM Form 1 of 24th March 2009, and there are emails to the body corporate committee concerning parking by Lot 58. The Applicants request that a continuing contravention notice is sent to them. Again, I am of the view that the committee has ample evidence about the parking by the occupants of Lot 58 and that it has chosen not to make the decision to enforce its by-laws.

The body corporate should send a by-law contravention notice to the occupiers (and owners) of Lot 58 requiring them to cease parking in the visitor parking bay in contravention of By-law 3.

However, I can see no evidence about the occupants of Lot 63. They were not mentioned on the BCCM Form 1 sent on 24th March 2009, nor in the numerous emails sent to the committee. There is no evidence of what the by-law contravention notice should say or which provision of the by-laws is alleged to have been contravened.

The second notice is also defective since “the occupier” who is given permission to park on common property is unidentified and the complaint is against the caretaker as respondent. In accordance with By-law 3, only the body corporate committee or the body corporate at a general meeting might give written approval to park on common property. A verbal permission by the caretaker is ineffectual and invalid, but it is not a breach of the by-laws by the caretaker.

The remainder of Section 5 of the second notice says that the caretakers have cut across the common property garden when driving into their driveway; and damaged garden edging. However, in this application, there is no outcome sought for any action in respect of the occupants of Lot 1, the caretaker/manager. Nor does the Applicants’ allegation that the caretaker does not comply with the caretaking/letting agreement have any relevance to this application and the outcomes sought herein.

In conclusion, it appears to me that in this scheme where there are very few owner/occupiers, the parking by-laws are not vigorously enforced. Where the result of that is to cause distress and inconvenience to another lot owner or occupier, the body corporate should review its “laissez faire” policy and take action. It does not matter if only one owner is inconvenienced or there is only one source of complaint. The body corporate has a duty to enforce its by-laws.

However, it is also clear to me that the Applicants do not fully comprehend the duties of the caretaker and the committee of the body corporate. The incidental complaints about items such as screen door keys, light bulbs and repairing their toilet demonstrate that the Applicants seem to think that the “body corporate” is akin to a service agency which should conduct maintenance or caretaking services on their lot. The Applicants are freehold owners in a standard format plan of subdivision which means that the body corporate has no duty whatsoever to maintain or clean or repair any part of the Applicant’s lot, save for shared utility infrastructure such as guttering. The contract between the body corporate and the caretaker is for maintenance and care of common property only excluding exclusive use areas.

If the Applicants wish to engage the caretaker as a letting agent for their lot, that is a separate private agreement between them as owner, and the letting agent. That does not involve the body corporate. All owners are members of the body corporate and must act together to administer the scheme through a committee elected each year.

As stated, the application contained much irrelevant information which would not form the basis of a dispute, for example the complaint that the occupants of Lot 56 have “ugly chairs” on their balcony in breach of the “Appearance” by-law. This is vexatious and petty nonsense. Perhaps the trying time which the Applicants have had with the constant parking of residents’ cars in visitors’ car parks, has affected their sense of proportion.

Finally, this matter of the use of visitors’ car parking spaces is not a new issue and many schemes have a concern about the local authority (and by-law) requirement to keep such spaces free whilst there are residents who have nowhere to park on scheme land. The body corporate might like to review its visitor parking arrangements in consultation with the Moreton Bay Shire Council, and its requirements for off-street parking. Any changes to the current by-laws will of course need to be approved by special resolution at a general meeting.

Number of Scheme:	34055
Name of Scheme:	Wynyard Estate
Address of Scheme:	90 Webster Road DECEPTION BAY QLD 4508

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Wynyard Estate [2009] QBCCMCmr 499 (11 December 2009)