Halifax [2011] QBCCMCmr 339 (10 August 2011)

Last Updated: 13 September 2011

ADJUDICATOR’S ORDER
Office of the Commissioner
for Body Corporate and Community Management

CITATION:	Halifax [2011] QBCCMCmr 339
PARTIES:	Gary Taylor (applicant) Colin and Wendy Saint AND Elle Saint and Owen Hall (respondents)
SCHEME:	Halifax CTS 8119
JURISDICTION:	Sections 227(1)(a) and 229(3)(a) of the Body Corporate and Community Management Act 1997 (Qld) (Act), applying the Act and the Body Corporate and Community Management (Standard Module) Regulation 2008 (Standard Module).
APPLICATION NO:	0495-2011
DECISION DATE:	10 August 2011
DECISION OF:	May Tsui, Adjudicator
CATCHWORDS:	BY-LAWS – whether vehicles may be parked on common property driveway

ORDERS MADE:

I hereby declare that the occupiers (from time to time) of each lot may park one vehicle per lot on the common property driveway of Halifax CTS 8119, provided that the vehicle does not obstruct other occupiers from accessing their lot. The application is otherwise dismissed.

REASONS FOR DECISION
Introduction

[1] Halifax is a community titles scheme with two lots and common property. This dispute is about parking on the driveway in the scheme.
[2] The applicant says he does not want the respondents to park their vehicles on the driveway outside his unit as this generates noise and infringes on his privacy. The respondents say the applicant parks on the driveway as well and that it should be used by both units wisely.
[3] The main issue to be decided is whether vehicles are permitted to be parked on the driveway. The applicant also seeks an order regarding parking on the grass outside the scheme.

Overview

Procedural Matters

[4] Mr Gary Taylor lodged this application on 16 June 2011 against the occupiers of unit 2, Elli Saint and Owen Hall and against the owners, Colin and Wendy Saint. Mr Taylor seeks the following outcomes:

1) No vehicles to be parked on common property.

2) No parking on grass lawn.

[5] On 24 June 2011, the Commissioner gave notice of the application to the respondents and invited the respondents to make a written submission.[1] Submissions were received from Colin and Wendy Saint. The applicant inspected the submissions but did not make a reply.[2] On 1 August 2011, the Commissioner made a dispute resolution recommendation, referring the application to departmental adjudication.[3]

Jurisdiction

[6] I am satisfied that this matter falls within the dispute resolution provisions of the Act.[4] It is a dispute between a lot owner and the occupiers and owners of another lot in the scheme about a claimed contravention of the Act and community management statement.
[7] Pursuant to section 276(1) of the Act, an adjudicator may make an order that is just and equitable in the circumstances to resolve a dispute. An adjudicator may require a person to act, or prohibit a person from acting, in a way stated in the order.[5]
[8] I have decided the application based on the written material and the most relevant arguments from this material are referred to below.

Determination

[9] The plan of subdivision for the scheme shows that the duplex is on a long block of land with the applicant’s lot (Lot 1) situated at the front and the respondents’ lot (Lot 2) attached behind. The plan also shows there is common property surrounding both lots. However part of this common property has been allocated to Lot 1 for its exclusive use and other parts allocated to Lot 2 for its exclusive use. The only area of common property that remains unallocated is a strip of land that runs parallel to Lot 1 from the road to the entrance of Lot 2. From the material provided, it is clear that this area of common property is the driveway that Lot 2 uses to get into their carport and is the area subject of the current dispute.

What is the applicable by-law?

[10] Under the Act, the by-laws for a body corporate are those identified in the scheme’s community management statement (“CMS”). For a community titles scheme that existed prior to the introduction of the Act in 1997, the by-laws that were in effect at the time continued to be in force until a new CMS was recorded with the titles registry. The transitional provisions of the Act stated that if a new CMS was not recorded 3 years after the commencement of the Act i.e. 13 July 2000, the titles registry would put in place a standard CMS.
[11] Halifax was registered on 20 December 1985. The by-laws applicable at that time were those contained in Schedule 3 of the Building Units and Group Titles Act 1980 (“BUGTA”).
[12] I have obtained a copy of the CMS for the scheme. The CMS is a standard one which states that the by-laws are taken to be those in effect as at 13 July 2000. The records held by the titles registry also indicate that a change of by-laws was recorded on 7 January 1986 which added two exclusive use by-laws allocating common property to the lots as outlined above.
[13] This means that the by-laws which apply to this scheme are the by-laws contained in Schedule 3 of BUGTA and as amended on 7 January 1986. Of those by-laws, the one applicable to the present dispute is as follows:

2 Vehicles

Save where a by-law made pursuant to section 30(7) of this Act authorises a proprietor or occupier so to do, the proprietor or occupier of a lot shall not park or stand any motor or other vehicle upon common property except with the consent in writing of the body corporate.

[14] The applicant has not referred to this particular by-law in his application but has based his arguments on a similar by-law currently in the Act which also restricts an occupier from parking a vehicle on common property without the approval of the body corporate.

Are the respondents permitted to park on the driveway?

[15] The respondents have not denied that they have been parking on common property. Instead, they refer to the agreement reached at conciliation which gave them permission to park one vehicle on the driveway.[6] In addition, they say the applicant also parks his car on the driveway and that the driveway should be utilised by both units wisely.
[16] A conciliation agreement is entered into voluntarily by the parties and is not binding unless formed into a consent order by an adjudicator.[7] The conciliation agreement in this matter is not subject of a consent order. Accordingly, regardless of what the parties may have agreed upon, I do not have the power to give effect to the terms of that agreement.
[17] However in the circumstances, as both owners in the duplex form the body corporate, it seems the respondents have in effect been given body corporate authority to park on common property as required by the by-law. The respondents have relied upon this authority to park on the driveway although the applicant claims the respondents have gone beyond this authority by parking several cars there.
[18] The applicant has said he does not want any vehicles to be parked on common property because of the noise this generates. However the noise seems to be only of a greater concern when multiple cars are parked on the driveway. If the occupiers are limited to parking one vehicle on the driveway, I do not consider this will unreasonably interfere with the use and enjoyment of others’ property.
[19] The applicant also raises concerns that even where there is only one car parked on the driveway, this is an infringement on their privacy as the car is visible from the back room of his property. Again, I do not consider the applicant has demonstrated that parking one vehicle on the driveway would infringe unreasonably with his privacy or enjoyment of the property and moreover, the applicant himself has previously sought to park his car on the driveway next to Lot 2.
[20] Further, an owner or occupier who parks on common property must still adhere to the by-laws in the scheme relating to noise and conduct. In particular, the following by-laws would still be relevant:

1 Noise

A proprietor or occupier of a lot shall not upon the parcel create any noise likely to interfere with the peaceful enjoyment of the proprietor or occupier of another lot or of any person lawfully using common property.

3 Obstruction

A proprietor or occupier of a lot shall not obstruct lawful use of common property by any person.

6 Behaviour of invitees

A proprietor or occupier of a lot shall take all reasonable steps to ensure that his or her invitees do not behave in a manner likely to interfere with the peaceful enjoyment of the proprietor or occupier of another lot or of any person lawfully using common property.

[21] An adjudicator may make an order that is just and equitable in the circumstances (including a declaratory order) to resolve a dispute.[8] In the circumstances of this dispute, I consider that it is just and equitable that each lot be given approval to park one vehicle on the common property driveway, provided that in doing so, they do not obstruct each other. I note from the photographs provided that there is sufficient space to allow two vehicles to be parked beside one another on the common property. The applicant says he had requested permission from the owners of Lot 2 to park his car next to theirs on the driveway however this offer was apparently rejected. If the respondents want permission to park a vehicle on common property, it is just and equitable that the same right also be extended to the applicant. Ultimately, it will be up to the parties how they utilise the driveway so that each of them may park one vehicle on it without obstructing the other.

Parking on the grass

[22] The applicant has also sought an order that the respondents not be permitted to park on the grass lawn outside Lot 1 which he says is Council property. However, the applicant has not produced any evidence to substantiate his claims that the respondents have parked on the lawn. Furthermore, as the area in question does not form part of the scheme land, it is not within my power as an adjudicator to make any orders in respect of it.
[23] Accordingly, the second outcome sought is dismissed.

Conclusion

[24] I have made an order that both lots in the scheme are permitted to park one vehicle on the common property driveway. When utilising the common property for parking, all owners and occupiers must be mindful to comply with the by-laws, in particular in relation to noise and obstruction.
[25] Common property in a community titles scheme is owned by the lot owners as tenants in common.[9] The body corporate must administer, manage and control the common property reasonably and for the benefit of lot owners.[10] In the case of a duplex, the body corporate is made up of the owners of the two lots. It is these owners’ responsibility to ensure that the common property is managed reasonably and for their mutual benefit.

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[1] Section 243 of the Act
[2] Sections 246 and 244 of the Act
[3] Section 248 of the Act
[4] Sections 227, 228, 276 and Schedule 5 of the Act
[5] Section 276(2) of the Act
[6] Conciliation Application Ref No:0308-2010 lodged by the applicant on 31 March 2010.
[7] Section 252I(4) & (5); Section 276(5) of the Act
[8] Section 276(1) of the Act
[9] Section 35(1) of the Act
[10] Section 152(1)(a) of the Act