Gracemere Island One [2011] QBCCMCmr 31 (1 February 2011)

Last Updated: 17 March 2011

REFERENCE: 0986-2010

ORDER OF A REFEREE

MADE UNDER PART V

BUILDING UNITS AND GROUP TITLES ACT 1980

Name of Plan:	Gracemere Island One GTP 107087
Address of Building or Parcel:	Oxenford - Southport Road, HOPE ISLAND QLD 4212

TAKE NOTICE that pursuant to an application made under section 77 Building Units and Group Titles Act 1980 by Gracemere Island One GTP 107087 body corporate.

I hereby order that the application for an order “ that the Owner of 2343 (Lot 43 on GTP 107087) permanently remove the boat trailer and jet ski continuously being stored/parked on the driveway of 2343 as requested previously by the Gracemere Island One Body Corporate so as to comply with Body Corporate By-law 7.04” is dismissed.

STATEMENT OF REFEREE’S REASONS FOR DECISION - 0986-2010

“Gracemere Island One” GTP 107087

APPLICATION

This is an application dated 22nd October 2010 and amended on 28th October 2010 by Gracemere Island One GTP 107087 body corporate (the body corporate) against Kevin McCarthy and Lyn McCarthy (Mr and Mrs McCarthy) owners as joint tenants of Lot 43, being house number 2343, for an order that they “permanently remove the boat trailer and jet ski continuously being stored/parked on the driveway of 2343 so as to comply with Body Corporate By-law 7.04.”

JURISDICTION

“Gracemere Island One” GTP 107087 is a subsidiary scheme in Hope Island Resort and is governed by the Integrated Resort Development Act 1987 (IRDA) which by section 179A provides that disputes about the operation of IRDA, or the rights and obligations of persons under IRDA may be dealt with by the Building Unit and Group Title Act 1980 (BUGTA). Section 77 BUGTA gives the Referee a general power to make orders 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 BUGTA, which power has been understood in many previous decisions to include the powers, authorities, duties or functions conferred or imposed also by IRDA.

The body corporate seeks to enforce its by-laws on a resident of the group title plan, and I am satisfied that BUGTA provides the mechanism to deal with a dispute about an alleged breach of group title plan by-laws.

There are 60 lots in the scheme.

SUBMISSIONS

The body corporate says that Mr and Mrs McCarthy as owners of Lot 43, house number 2343, continually store a boat trailer with a jet-ski on it in their driveway in contravention of By-law 7.04 which says in relevant part as follows -

VEHICLES
7.04.1

A Proprietor or Occupier will not park store or keep upon the Common Property any motor vehicle (which will for the purposes herein include a motor cycle and a motorised buggy, being an electric or motorised cart or buggy used to transport persons, luggage or golf clubs), boats, trailer and caravans other than:
i) in garages;
ii) 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.
   

The body corporate has written to Mr and Mrs McCarthy advising of the breach and asking for the trailer and jet-ski to be removed. It wrote on 10th September 2008, 1st October 2008, 7th October 2008, 19th November 2008, 26th November 2008, 6th January 2009, 20th January 2009, 10th February 2009, 17th February 2009, 11th March 2009, 17th March 2009, 21st April 2009, 29th April 2009, and 13th May 2009. The by-law quoted in these letters as being breached was “by-law 5.3” until the letter dated 21st April 2009 when by-law 7.04.1, as set out above, was quoted.

On 20th May 2009 the body corporate sent a notice of contravention of a by-law using a form devised for use under the Body Corporate and Community Management Act 1997. (BCCM Act) The form quoted by-law 7.04.01 in full and asked for the trailer to be removed within 7 days.

The contravention notice stated that the by-law had been breached by Mr and Mrs McCarthy consistently parking a boat trailer, with or without boat on it, on the driveway of 2343.

Further letters, quoting by-law 7.04.01 were sent on 5th February 2010, 24th February 2010, 1st April 2010, 21st April 2010, 31st May 2010, 23rd June 2010, 9th July 2010, 2nd September 2010 and 13th September 2010.

On 15th September 2010 the body corporate sent Mr and Mrs McCarthy another contravention notice, this time a “likely future contravention notice”, again, a form designed for use under the BCCM Act. The notice required that the contravention of the by-law not be repeated. A copy of By-law 7.04.1 was attached. Mr and Mrs McCarthy did not remove the trailer and jet ski.

The body corporate provided a photograph of the trailer and jet-ski situated in the driveway, and taken from the front entrance/verge of house number 2343.

In accordance with section 73(1)(d) BUGTA, all owners within the group title plan were invited to make a submission about the dispute.

Christine Attridge owner of Lot 292, number 2329, made a submission saying that she had no objection to Mr and Mrs McCarthy parking the jet-ski and trailer in their driveway. It is parked between the house and the fence and “not really visible from the street unless you stop and look for it.” She says that it is a waterfront estate so jet-skis and boats are a common sight. She thinks that the by-laws should be changed.

The body corporate was given the opportunity to reply and noted that the current by-laws prohibit the parking of trailers, and the body corporate has a duty to enforce the by-laws as they are.

The respondents, Mr and Mrs McCarthy did not make any submission. This Office tried to contact Mr and Mrs McCarthy on 9th December 2010. The mobile number (provided by the Applicant body corporate) was not in use and a message was left on the landline number in respect of a response by making a submission. There was no response from Mr and Mrs McCarthy. On 6th January 2011, this Office again attempted to contact the respondents. The mobile number raised a message that “Kevin is going to be away for a few days from 5th January.” When this number was dialled, there was a message service for ‘Gold Coast Accommodation.’

On 14th January 2011, I sent a letter by Recorded Delivery to Mr and Mrs McCarthy to 2343 Cressbrook Drive, Hope Island Resort Queensland 4212 asking them to respond if they wished to do so by close of business on 24th January 2011. The Respondents did not make a submission by close of business on 24th January 2011.

DETERMINATION

In this matter, the facts are not in dispute. When I wrote to Mr and Mrs McCarthy, with copy to the body corporate on 14th January 2011, I had not appreciated that the driveways of houses in the scheme were not themselves common property, or that there were not “common property” garages in the scheme. The scheme is a group title plan, with owners owning their house and the parcel of land around it, in accordance with registered survey plans. Lot 43 is an area of 963m².

By-law 7.04.1 prohibits the parking of trailers, and certain other vehicles, on common property.

There is a proviso to the by-law which appears to allow parking of vehicles in garages, on driveways, and on other parts of a lot so that the thing parked cannot be seen from outside the lot.

However, the proviso makes a nonsense of the substantive by-law, since it is contradictory. It says, in fact: You may not park on common property other than in your own lot. Since a lot is not common property, the by-law can have no meaning.

The former by-law quoted, said to be “by-law 5.3”according to the letters sent by the body corporate to Mr and Mrs McCarthy between 10th September 2008 and 21st April 2009, said–

5.3 “Vehicles, boats, trailers and caravans may only be parked:

1. in garages; and
2. in case of cars only, on driveways in front of garages; and

100. on other parts of a Lot that are screened so that the thing parked cannot be seen from outside the Lot”
     

That by-law would be relevant to Mr and Mrs McCarthy’s situation. However, since 9th July 2003, the body corporate has had by-law 7.04.1 recorded in the Land Titles Registry under dealing number 706762077. There is no current wording such as is given for “by-law 5.3” as set out above.

Therefore, from the time when the first letter of complaint was sent to Mr and Mrs McCarthy, “by-law 5.3” was not a by-law of the scheme. The relevant wording was contained in by-law 7.04.1.

Certainly, the correct by-law, 7.04.1 was quoted in later correspondence to Mr and Mrs McCarthy, but I find that by-law 7.04.1 is contradictory and meaningless, save perhaps in the circumstance where an owner or occupier parks, stores or keeps a motor vehicle on common property. It may possibly be separated or ‘severed’ from its contradictory proviso, the words following “other than...”, but it is arguable that the entire by-law fails in the circumstances.

In any event, since there is no evidence that Mr and Mrs McCarthy have parked on common property, I do not need to construe the validity of the by-law. Simply, the body corporate cannot rely on this by-law in the circumstances where Mr and Mrs McCarthy park a trailer within their own lot, whether it is visible or not.

The intent of the body corporate may well be to regulate parking within lots, as well as on common property, but by-law 7.04.1 fails in its attempt to deal with both situations in one section, as one being the proviso of the other.

In the circumstances, I find that Mr and Mrs McCarthy have not breached a scheme by-law by their action in parking a trailer and jet-ski beside their house and within their lot.

I therefore dismiss this application.