Sanctuary Bay [2011] QBCCMCmr 84 (25 February 2011)

Last Updated: 1 September 2011

REFERENCE: 1152-2010

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Susanna Helbling, a co-owner of Lot 21

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 1152-2010

“Sanctuary Bay” CTS 6523

The application

This application was made to the commissioner on 8 December 2010 (amended 4 January 2011) by Susanna Helbling, a co-owner of Lot 21 (applicant), against the body corporate for the scheme.

The applicant seeks the following outcomes:

1. A halt on any further action by the body corporate regarding the southern parking area so the matter can be dealt with at the annual general meeting scheduled for 26 February 2011 (2011 AGM).
2. That the resolution of the committee on Motion 7.5 at its meeting dated 7 September 2010 (September meeting) and the resolution of the committee by voting in writing on 24 September 2010 about the southern parking area be declared void.
   
   

On 6 January 2011, the commissioner invited submissions from the owner of each lot (excluding the applicant) and the committee regarding the application under section 243 of the Body Corporate and Community Management Act 1997 (Act). Submissions were made by 9 lot owners and the committee.

On 18 February 2011, the commissioner made a dispute resolution recommendation under section 248 of the Act referring the application to departmental adjudication.

Jurisdiction

An adjudicator may make an order that is just and equitable in the circumstances to resolve a dispute about a claimed or anticipated contravention of the Act or the community management statement; or the exercise of rights or powers, or the performance of duties, under the Act or the community management statement (s 276(1), Act).

Submissions

The applicant

1. Because of the decision made at the Annual General Meeting held on 23 February 2002 (2002 AGM), a change in the use of the southern parking area can only be made if determined in general meeting.
2. The matter should be decided at the 2011 AGM.
3. The residents of 13 lots currently use the southern parking area.
   
   

The committee

1. The scheme was created in 1987 with 45 enclosed garages and 45 additional car spaces.
2. The committee provided a letter from Lisa Watson of the Gold Coast City Council (GCCC) dated 31 January 2011 saying that approval was given for 45 townhouses, there were no conditions regarding visitor parking specified in the approval and the development was subject to the Albert Shire Planning Scheme 1982 which required 0.5 spaces per unit for visitor parking unless council had approved lesser spaces.
3. As there is no evidence of any concession being approved by the council, 23 visitor parking spaces are required.
4. On 30 November 1988, the body corporate made an exclusive use by-law for the 45 additional car spaces (which included visitor car spaces) which would appear to breach the original planning scheme.
5. The visitors car park was constructed in 1989 after a body corporate resolution on 30 November 1988 to make a by-law that it do all things necessary to construct a visitor’s car parking area at the southern end of the complex. There are 5 marked car spaces in the southern parking area. It is understood the body corporate made this by-law in compensation for no longer having 23 visitor spaces.
6. From 1987 to 2002, the southern parking area was used as a visitors car park.
7. Since 2002, the area has been used for storage by occupiers and has not been available to visitors.
8. Various past committees have effectively allowed exclusive use of the car park to 8 owners to store their caravans, boats, trailers and kayaks on a permanent basis and a further 5 owners to store their kayaks even though the land is common property.
9. The disputed committee resolutions were intended to: provide equality to all occupiers in relation to usage of, and access to, common property; reinstate onsite visitor parking as current visitors are required to park on the street; and reduce by-law breaches as visitors park on common property to avoid parking on the street.
10. The resolutions did not attempt to overturn the 2002 decision; the committee did not restrict the type of vehicle that could park in the visitor car park which was what was approved in 2002.
11. The committee asks for clarification as to whether past committees may not have acted in the best interests of owners, direction as to the appropriate process past committees should have followed with respect to GCCC requirements, directions as to the appropriate intent and usage of ‘park vs store’ and the 2002 decision, and direction as to the definition of ‘visitor’.
    
    

Lot owners

1. The owners supporting the application variously state:
   • (i) Currently each unit has a garage (unless it has been converted for another use), plus an undercover carport and permission from the body corporate to park a third vehicle on front of their garage door. Two units do not have room for a third vehicle but have permission to park a third vehicle on common property. One of these spaces can be used for visitor parking.
   • (ii) The 2002 decision allows the area to be used as a storage area for boats, trailers etc.; to change the area to visitor parking should require the same process. The area has been used in the way decided in 2002.
   • (iii) People using the area have committee approval on an availability basis, past committees have given approval to any requests, owners applied on the basis that if there is space available they could use it, more approvals have been granted than there is space available, and until this year no-one has been refused.
   • (iv) The September meeting decision is unreasonable and adversely impacts on owners using the southern parking area. It was unreasonable for the committee to, in a short period of time and with little consultation, revert the area to visitor parking when it has been used as a storage area for 8 years.
   • (v) The southern parking area is accessed by a large gate on rollers which is kept locked, if it is to be used for visitor parking the occupier will need to go to the gate and unlock it for access and repeat the process when the visitor leaves.
   • (vi) The area is not practical for servicing lots other than those that are immediately adjacent. It is some 400 metres from units at the northern end of the scheme and its use for visitor parking is not a workable solution for all occupiers.
   • (vii) There are enough spaces to satisfy GCCC requirements.
2. The owners opposing the application variously state:
   • (i) Because of the GCCC requirement that there be 23 visitor car parks, it was decided that rather than give up the exclusive use carpark adjacent to each unit 3 visitors car parking areas would be constructed at the southern, northern and western ends of the complex. The southern parking area was constructed first as a visitors car parking area and the other areas have not been constructed.
   • (ii) The area was never intended to be used as it is currently.
   • (iii) The 2002 decision was not legal as it is unfair and unjust. The car park is not being used in the resolved manner. The current use of the southern parking area is not conducive to fairly representing all owners and it should be available for the use of all residents. Other owners may wish to enjoy the same privileges but cannot do so due to the prolonged tenure by a minority of owners.
   • (iv) The owner of Lot 25 submits the southern car park is near her unit and the current usage interferes with her use and enjoyment of her lot.

Background

The body corporate was created by the registration of Building Units Plan 8776 on 11 November 1988.

On 3 January 1989, new By-law 43 provided an entitlement for the owner of each lot to exclusive use of identified parts of common property “for purposes associated with the residential use” including car parking. New By-law 44 provided the body corporate may do all things necessary to construct a visitor’s car parking area at the southern end of the complex.

On 1 September 2000, a new community management statement was recorded for the scheme that included By-law 27 which would seem to be in similar terms as the abovementioned By-law 43. The statement did not include a by-law in the terms of, or similar to, By-law 44. An occupier required body corporate approval before parking a vehicle on common property, or allowing an invitee to park a vehicle on common property; the approval needed to state the period for which it was given (By-law 2). By-law 33 defined ‘vehicle’ and ‘invitee’.

At the 2002 AGM, the body corporate passed Motion 11 by ordinary resolution: “That resident occupiers of lots be permitted, with prior written approval of the committee, to park vehicles and boat trailers in the southern car park on a first in basis”. The body corporate also defeated Motion 17 which proposed this car park be used for visitor parking.

On 1 April 2009, a new community management statement was recorded for the scheme (this is the current statement for the scheme). The abovementioned By-laws 2 and 27 are included in the statement. By-law 33 includes a different definition of vehicle and contains a definition of invitee.

At the September meeting, the committee discussed the southern parking area at Motion 7.5. It is minuted the committee took into consideration owners who had approval for many years to park a vehicle or to store belongings in a designated space and that this use could represent exclusive use. It was resolved: “(in accordance with the by-laws which gives authority to the committee to control parking) to convert this area back to a visitor car park and all owners that currently use this area need to remove their vehicle/items being stored by 31 December 2010”.

By voting outside a committee meeting dated 24 September 2010, the committee resolved to review the resolutions passed at the 2002 AGM at the next meeting to determine the effect these resolutions may have on the resolution passed at Motion 7.5 at the September meeting.

At its meeting dated 19 October 2010, the committee opposed a motion to rescind the decision made at Motion 7.5 at the September meeting and to review the matter at the 2011 AGM (at Motion 7.7).

On 23 December 2010, I made an interim order that pending final determination of this application, the body corporate must not proceed with or implement the resolution passed on Motion 7.5 at the September meeting.

Determination

The outcomes sought centre around the resolution passed at Motion 7.5 at the September meeting. It would seem any body corporate action sought to be halted would be an action that would be taken because of this resolution. The committee resolution on 24 September 2010 added nothing to the disputed earlier resolution.

Given submissions and the information in BUP 8776, I am satisfied the southern parking area is common property. It is land that must be administered by the body corporate for the benefit of lot owners (s 94(1)(a), Act). The body corporate may make by-laws about the administration, management and control of common property and about the use and enjoyment of common property (s 169(1)(a) and (b)(ii), Act).

It would seem By-law 44 registered in 1989 related to the use and enjoyment of the southern parking area. While it is not clear what the body corporate did pursuant to the by-law, there is no doubt this by-law has not applied to the scheme since 1 September 2000 when a new community management statement for the scheme was recorded and the statement did not contain the by-law. The only by-laws which currently specifically apply to parking are By-laws 2, 27, 28 and 29. By-law 2 regulates parking a vehicle on a part of common property such as the southern parking area.

In 2002, By-law 2 provided the occupier of a lot could not, without body corporate approval, park a vehicle on common property or permit an invitee to park a vehicle on common property. By-law 33 defined ‘occupier’ as an owner or a tenant, a ‘vehicle’ to mean any mechanical apparatus that could transport persons or goods by road, sea or air and ‘invitee’ to include a guest or contractor. It is not claimed the committee could not give an approval under By-law 2 (s 100(1) and (2), Act). The resolution passed on Motion 11 at the 2002 AGM indicates the committee could give approval.

This resolution did not amend By-law 2. Basically, the body corporate decided that an occupier could, with committee approval, park a vehicle and boat trailer on the southern parking area. The resolution did not obligate the committee to make the area available only for the use of occupiers, nor did it (or could it) prevent an occupier from asking the body corporate to allow an invitee to park a vehicle on this part of common property. Neither did the resolution restrict any other use of this part of common property. Even though the previous By-law 44 referred to a visitor’s parking area, there is no evidence that the southern parking area was, at the time of the resolution, a designated visitors car parking area pursuant to a by-law, law or regulation. The resolution did not affect the committee’s power to approve a request from an occupier to park a vehicle or boat trailer in the southern parking area under By-law 2. It should be noted the current definition of vehicle in By-law 33 no longer refers specifically to a mechanical apparatus that could transport persons or goods by sea (which would seem to include a boat trailer).

Given submissions, it would seem a number of occupiers have been given approval to park a vehicle and possibly place other personal items on the southern parking area. With respect to parking a vehicle, a difference between the 2002 AGM decision and By-law 2 is the direction that approval be given on a “first in basis”. If body corporate approval had been given or denied on this basis, there may be a question about the reasonableness of the decision (s 94(2) and 100(5), Act). However, this is not a matter for determination in this application. In addition, it is not a matter for consideration that a person’s (including an invitee) ability to use the area may have been frustrated because of this direction.

An opinion has been expressed in submissions that the resolution passed on Motion 11 at the 2002 AGM was not legal. However, there is no evidence the motion was questioned at the meeting, that the resolution passed was disputed under the dispute resolution provisions of the Act or that the decision has been amended or revoked pursuant to section 95 of the Body Corporate and Community Management (Standard Module) Regulation 2008). In my view, it does not conflict with a by-law. There is no evidence that, subsequent to the 2002 AGM, the body corporate decided to designate the southern parking area as visitor parking or that it has been otherwise required to maintain this car park solely for visitor parking.

Importantly, this is a decision by the body corporate in general meeting about the use and enjoyment of the southern parking area. It is a decision the committee cannot disregard. The committee must put into effect a lawful decision of the body corporate (s 101(2), Act).

The committee has, however, decided the southern parking area would be limited in its use and enjoyment to visitors parking vehicles. Effectively, it has decided an occupier would not be given approval by it to park a vehicle on this part of common property. In making this decision, the committee has adopted an approach that is contrary to the decision made by the body corporate at the 2002 AGM. It suggests the committee will not approve a request from an occupier to park a vehicle on the southern parking area or to otherwise use this area.

The committee resolution refers to by-laws giving the committee authority to control parking. By-law 2 is the only by-law which specifically enables the committee to control parking on a part of common property such as the southern parking area. The control is that an occupier requires body corporate approval before parking on the area. There is no power under the by-law for the committee to designate a part of common property exclusively for the use of visitors. The body corporate (including its committee) must consider, on its merits, each request made to it to park a vehicle on common property. The body corporate and the committee must act reasonably making a decision (s 94(2) and 100(5), Act). As the southern parking area is not a designated visitor parking area pursuant to the by-law, the committee cannot apply a blanket rule that an occupier will not be permitted to park a vehicle on this part of common property.

In my view, the committee could not, in the circumstances, make the decision which had the effect of restricting an occupier’s use of the southern parking area. I do not think reasons given by the committee in submissions that the resolution provides equality, reinstates visitor parking and reduces by-law breaches is a basis for making the decision. There is nothing to suggest the current use of the southern parking area by some occupiers’ amounts to exclusive use. In this regard, it is noted an approval to park a vehicle must state the period for which it is given and the approval may be cancelled (By-law 2(b) and 2(c)). Lastly, there is nothing to suggest the GCCC has required the body corporate to do something about visitor parking and the resolution satisfies that requirement. Whether the GCCC requires a specific number of car spaces to be established and maintained on common property for the use of visitors may need to be pursued by the body corporate. However, it is not a reason for making the resolution.

For these reasons, I have made an order that the September meeting decision is void. Given this order, I have dismissed the other outcomes sought.