127 Charlotte Street [2015] QBCCMCmr 19 (16 January 2015)

Last Updated: 28 January 2015

ADJUDICATOR’S ORDER

Office of the Commissioner

for Body Corporate and Community Management

ORDERS MADE:

REASONS FOR DECISION

Overview

[1] This application relates to parking in visitor car spaces and exclusive use car spaces.

[2] The applicant says there is limited parking in the scheme, with only five visitor parking bays, 80 exclusive use parking bays for residents, and one car space for retail/office use. He says there have been problems with parking since the formation of the Body Corporate in late 2012. He argues the Brisbane City Council (BCC) development approval was intended to provide residential parking only, but currently commercial tenants, the caretakers staff and contractors who are not bona fide visitors have unfettered access to the visitor bays and then park in exclusive use bays if the visitor bays are full. The applicant also says the Body Corporate permits the leasing of car spaces, including to commercial occupiers and caretaker staff.

[3] The applicant says he has attempted to resolve these issues with the Body Corporate but the Committee is selective of its reporting of parking issues to owners and is not managing the situation in accordance with the BCC or by-law requirements, or in the best interests of owners.

[4] The applicant seeks orders that the visitor parking and exclusive use parking by-laws be enforced. In regard to exclusive use parking in particular he wants exclusive use spaces not to be available to non residents and the reference to the use of car spaces by invitees to be removed from the exclusive use by-law.

[5] The submissions received overwhelmingly oppose the application. They support the current regulation of parking in the scheme and oppose any change to the by-laws.

[6] The issues to determine then are whether the Body Corporate has failed to enforce the by-laws with regard to parking and whether there is any basis to amend the by-laws.

Preliminaries

[7] 127 Charlotte Street community titles scheme 44257 consists of 143 lots and common property. The community management statement (CMS) shows the Accommodation Module applies. The scheme is registered as Survey Plan 234557.

[8] This application was lodged under the Act on 16 July 2014, seeking the following order:

1. Enforcement by the Body Corporate of By-law 16.5, "visitor parking in the Car Parking Facility must be used by bona-fide visitors only etc" (In conjunction with Brisbane City Council development approvals i.e. residential use)
2. Compliance with By-law 16.7, exclusive use rights for the use of Owners in conjunction with, and compliance with Brisbane City Council development approvals i.e, not permit exclusive use parking to be made available to non-residents.

This requires the amendment/removal to/of By-law 16.7 of the bracketed section 'and for the avoidance of doubt, their invitees'.

Jurisdiction

[9] I am satisfied that this matter falls within the legislative dispute resolution provisions.[1]

[10] An adjudicator may make an order that is just and equitable in the circumstances to resolve a dispute, in the context of a community titles scheme, about a claimed or anticipated contravention of the Act or the CMS, or the exercise of rights or powers or performance of duties under the Act or the CMS.[2] An order may require a person to act, or prohibit a person from acting, in a way stated. An order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate.[3]

Procedural matters

[11] In the first instance the applicant applied for conciliation.[4] An agreement was reached at a conciliation session in June 2014. However that did not resolve the dispute. Subsequently this application was lodged.

[12] The Commissioner invited submissions on the application from the Committee and all owners.[5] Some 17 submissions were received from owners, along with a submission on behalf of the Committee. The applicant inspected and responded to the submissions received.[6]

[13] A dispute resolution recommendation[7] was made referring the file to department adjudication.

[14] I then investigated the dispute[8], which included reviewing the application and submissions.

[15] The applicant frequently makes comments about matters raised in the conciliation session and the compliance with the conciliated agreement. I note first that a conciliation agreement is a voluntary agreement between parties and is not binding or enforceable. Furthermore, under section 252E(5) of the Act, evidence of anything said or done about a dispute in a departmental conciliation session is inadmissible in a proceeding. Accordingly, while I have noted some comments about the conciliation, I have not had regard to them in making my determination.

Submissions

[16] The submission from the Body Corporate opposes the application:

1. During the first 12 months (which commenced occupancy in late 2012) little was done to enforce the by-laws. In that time there were many new building issues. While the applicant’s concerns may have been valid in the early days, they were not unjustified.
2. A new committee of lot owners was elected in early 2013 and inherited many issues, both serious and minor, including complaints from owners about parking. In mid 2013 it asked the resident managers to investigate the parking rules in similar schemes.

100. The committee believes the registered by-laws, which were prepared by solicitors, accurately reflect the BCC development approval. The development approval is specific about vehicle parking but is not specific about exclusivity of individual owner lots. The committee is not in receipt of any advice from the BCC of any breaches.

4. The committee and resident managers have tried to manage parking with a common sense approach, including mediating matters, but then towing vehicles and cancelling security access when that was not successful.
5. The minutes in the application detail the steps taken by the committee to address parking issues, including implementing parking rules; parking signs and bollards for individual owners; and CCTV cameras.
6. All cars in the parking area either have security access to the carpark (with a FOB) or are an invitee who has been let in by an owner or resident.
7. Since December 2012 the Body Corporate has received only two complaints from owners other than the applicant about parking.
8. In accordance with the conciliation agreement, the parking rules were modified and submitted to the next committee meeting on 4 August 2014 for endorsement.
9. Regardless of the arrangements, there will always be parking issues. Cooperation by all parties is required. The applicant should check car dashboard for details of authorisations and better familiarise himself with the by-laws. If the applicant has a problem with his car space he should report it to reception.
10. In regard to the specific parking cases referred to by the applicant, in the majority of cases the vehicles were entitled to park where they were. Details are given on each.
11. The proposed changes to the by-laws would be improper as they would diminish the rights of those who purchased car parks; force greater usage of the already limited visitor car parking; increase costs for contractors to attend the building;

50. The applicant has had obvious issues with the resident managers since moving in and is prepared to see owners loose their rights to pursue his agenda.

[17] Some 15 submissions from the owners of 63 lots oppose the application. Comments include:

1. The applicant is causing a nuisance with this application and his regular complaints.
2. Carpark access is controlled and there is no evidence of non-resident use.

100. Owners are well aware of their designated car space.

4. Some say there is no record of any other carparking complaints. The resident managers say parking complaints do occur but incidents are not high.
5. One submitter says that in 2013 they had three incidents of vehicles parking in their car space. These were reported to the manager and the problem was dealt with promptly. There have since been improvements in the control of access to parking spaces.
6. The Committee has worked to improve the rules and makes it clear that the parking is not available to the commercial lots and cannot be rented externally.
7. If a vehicle is reported as illegally parked, signage is placed on the windscreen.
8. The by-laws are working effectively. They do not agree with change to the by-laws.
9. One notes they occasionally allow other family members to use the car space they purchased, and know the applicant’s family and friends access his.
10. One submission does not support only one registered number plate for each car space as they have more than one car and sometimes allow family to use their space.
11. Another says they have no problem with leasing a car space out to another resident.

50. The resident manager, which owns 6 lots with 3 car spaces, and rents some 39 car spaces for guests staying in the scheme, says there is no external sub-leasing of car spaces. Spaces are allocated to residents, guests and tenants or their invitees. Occasionally staff use otherwise vacant spaces but only during the day.

13. One submission notes that visitors are recorded in a log by the managers and given visitor cards to display on the dashboard. They believe the managers handle a difficult situation well. Another similarly notes that they obtain a visitor parking pass if needed.
14. The manager says tradespersons and contractors attending the building attend the reception and are either directed to visitor car parking or if they are attending for longer periods they are allocated a car space rented by the management company.
15. One submission comments that they have no problem with the small number of caretaking staff using the visitor car spaces if they are not otherwise occupied and genuine visitors have priority. They trust the manager to manage the car spaces.
16. Owners who have paid some $60,000 for an exclusive use car pace should have a right to use it themselves and for their invitees.

[18] A further submission agrees the car park needs to be properly supervised to stop unauthorised vehicles being parked but says contractors working on the building should be permitted. The submitter does not agree with (non-resident) lot owners not being able to use their car park.

[19] One of the submissions was from the company owner of 29 lots, and that company also made a similar submission in its capacity as the owner of three adjacent commercial lots (Lots 1-3 on SP 234556). The commercial lots are not part of the Body Corporate, but are associated with the scheme through a building management statement.

[20] In his reply to the submissions the applicant comments:

1. It appears owners have been misled or misadvised on parking issues.
2. It was accepted at conciliation that contractors undertaking work at the building were permitted to access the visitor carparking bays.

100. At the conciliation it was accepted that for the parking rules to work they needed to be included in the CMS as by-laws. This has not occurred.

4. The committee submission indicates a belief that the committee can tow offending vehicles. Adjudicator’s rulings state the opposite.
5. On 27 May 2014 he could not access his car space because a committee member had parked in the applicant’s space, allegedly because someone had parked in his own. This highlights the ongoing problem.
6. Parking has not improved since the application was lodged. He provided photographs of alleged breaches. The committee submission does not address the problem.

Analysis

[21] The key issue in this application is whether the Body Corporate has failed to enforce the by-laws with regard to parking. I will first outline the by-laws that apply to parking and comment on the Committee’s parking rules. I will then look at the management of visitor parking in the scheme, and whether the Body Corporate is failing to enforce the by-laws in regard to visitor parking. Finally, I will look at the by-laws relating to exclusive use, and whether the Body Corporate is enforcing those by-laws or there is a need to amend the by-law/

Parking by-law and parking rules

[22] The current CMS for the scheme (recorded on 18 September 2014) provides in detail for parking. The primary by-law of relevance is By-law 16:

16. BY-LAW 16 – PARKING OF VEHICLES

16.1 Owners must not:

(1) park a vehicle, or allow a vehicle, motor cycle or bicycle to stand, other than in a designated area for parking of vehicles, motor cycles and bicycles respectively in the Car Parking Facility; or

(2) without the approval of the Body Corporate, park a vehicle, motor cycle or bicycle, or allow a vehicle, motor cycle or bicycle to stand, on any other part of the Common Property or any Adjacent Lot over which the Body Corporate holds Rights comprising Body Corporate Assets including under a BMS that applies to the Scheme land; and

(3) permit an Invitee to park a vehicle, motor cycle or bicycle, or allow a vehicle, motor cycle or bicycle to stand, on the Common Property or any Adjacent Lot over which the Body Corporate holds Rights comprising Body Corporate Assets including under a BMS that applies to the Scheme land, other than in a designated area for parking of vehicles, motor cycles and bicycles respectively in the Car Parking Facility.

16.2 ...

16.3 ...

16.4 ...

16.5 Any designated area for visitor parking in the Car Parking Facility must be used by bona-fed visitors only and an Owner must not park a vehicle, motor cycle or bicycle or allow a vehicle, motor cycle or bicycle to stand upon areas designated for visitor parking.

16.6 Owners must ensure that their Invitees use the areas designated for visitor parking in the Car Parking Facility only for its intended use of casual parking, within the rules set from time to time by the Committee.

16.7 The areas of exclusive use under these By-laws are to be used only by Owners (and, for the avoidance of doubt, their invitees). Designated areas for parking of vehicles, motor cycles and bicycles respectively in the Car Parking Facility must not be advertised as available for use by the general public and the Body Corporate must not allow a sign to be placed on any part of the Car Parking Facility or Scheme land advertising the availability of car parking to the general public.

[23] By-law 17 provides generally for exclusive use allocations. By-law 18 provides specifically for exclusive use for car parks and motorbike parks, with the allocation set out in Schedule E.

[24] I note the by-laws refer only to owners. In By-law 1 ‘owners’ is defined to mean the registered owner of a lot and includes the owner’s invitees. ‘Invitees’ is defined to include the owner’s agents, visitors, tenants, licensees or others. ‘Car Parking Facility’ is also defined.

[25] Section 94(1)(b) of the Act imposes a duty on the body corporate to enforce the community management statement, including the by-laws. The formal processes for a body corporate to enforce the by-laws, and the preliminary steps for an owner or occupier who believes the by-laws have not been complied with, are set out in sections 182-188 of the Act.

[26] It appears the Body Corporate has set ‘Car Parking Rules’ which detail the use of car park areas, including the visitor spaces. The by-laws refer to the potential for Committee rules about the use of visitor parking in particular (in By-law 16.6) and generally (in By-law 4.1(2)). Rules set by committees (often known as ‘house rules’) are not uncommon in bodies corporate. They are not contrary to the legislation and can be useful guidelines for the use of particular facilities or common property in general. However they do not have the status of a by-law and are not binding or enforceable as such even when they are contemplated in a by-law.[9]

Visitor parking

[27] The BCC development approval[10] required five visitor car spaces (one disabled), and the plans for the scheme designated five visitor spaces. The applicant asserts that these spaces are not used for bona fide visitors. I will consider in turn the ‘residential use’ of these spaces, the meaning of a visitor, and the enforcement of By-law 16.5 regarding visitor car parking.

Residential use

[28] The applicant appears to indicate (although the application is not clear in this regard) that under the development approval the visitor spaces are only for residential use.

[29] I have no role in the enforcement of the BCC development approval, and the applicant has not given any detail of how the use of the car park currently contravenes the development approval. If the applicant has ongoing concerns in this regard he may wish to contact the BCC.

[30] While the conditions in the development approval (item 32) designate 80 car spaces as ‘residential’, there does not appear to be any such designation for the 5 visitor spaces. While the conditions (item 8) state that the car parking in the building is to be maintained exclusively for the ancillary use of the development, it would appear that the development which was approved encompassed the entire building, including the community titles scheme and the adjacent lot which are clearly commercial. As is evident from the designation of one car space for retail/office, and notwithstanding that the five car spaces are located within the common property of the Body Corporate which is residential, it is not apparent from the development approval that all car spaces are required to be for ‘residential’ use.

Visitors

[31] Visitor parking is generally a requirement of councils, with the number of required spaces calculated by the council when the development is approved. Such spaces must be reserved for genuine visitors, even if that means they are left vacant for some of the time.[11]

[32] I consider a ‘visitor’ would include anyone who is not an occupier[12] of a lot, but who is genuinely visiting a lot or the scheme. I do not consider this is limited to residential or non-commercial visits. While a visitor may be a friend or family member visiting an tenant, they may also be a contractor such as an electrician visiting the scheme to do work.

[33] I would consider the employees of the resident manager to be occupiers to the extent that they predominantly or regularly work at the building (as distinct from, for example, an employee who is based elsewhere but visits for an ad hoc meeting). However a cleaning contractor attending to clean one or more lots, would arguably fall within the designation of a visitor.

[34] Occupiers and visitors to the adjacent commercial lots would not appear to be entitled to use the visitor car spaces, unless that was provided for in the building management statement (which is not apparent).

[35] I see nothing in the parking rules that conflict with these concepts, and the applicant has provided no evidence to convince me that the Body Corporate is encouraging or deliberately allowing occupants, persons associated with the commercial lots, or persons who are not genuine visitors to lots or the scheme, to park in visitor car spaces.

By-law enforcement

[36] The primary issue is whether the Body Corporate failed to enforce By-law 16.5. To substantiate this claim, the applicant bears the onus of demonstrating that he notified the Body Corporate of alleged breaches, that it has failed to act, and that it acted unreasonably in failing to act. A consideration in this regard is whether there was any reasonable evidence available to the Body Corporate to substantiate a claim that the by-law had been breached.

[37] It is clear the applicant has frequently raised general concerns about parking with the Body Corporate, and that at times he has cited specific breaches by specific persons or cars. However it is not evident that he notified the Body Corporate using the steps provided for in the Act – that is by giving notice (using BCCM Form 1) of an alleged breach. Aside from being the statutory process, the notice process enables a complainant to clearly specify who they believe is breaching a by-law, the by-law breached, and the conduct they believe is in breach.

[38] It is not evident that the Body Corporate has issued by-law contravention notices to any person in response to any of the applicant’s complaints, or for any other reason. However that does not mean it did not take any action to enforce the by-laws. While the action it took may not have been what the applicant wanted, that does not necessarily mean it was unreasonable. The applicant has given little comment on the steps taken by the Body Corporate in regard to parking and why he considers that this is inadequate having regard to its legal obligations.

[39] The applicant has made numerous allegations about parking incidents but generally does not provide any evidence to substantiate his assertions. The current application gives little proof that there are current breaches of the by-laws. I note in this regard that the provision of a registration number or the photograph of a car is not evidence of who owns the car or that the owner is not able to park in the particular location. In respect of some allegations, the Body Corporate has asserted that the car was in fact able to be parked in the respective location.

[40] On balance I am not satisfied the applicant has demonstrated a general or systemic failure of the Body Corporate to enforce By-law 16.5. There may be parking transgressions from time to time, which is to be expected in a scheme where there are a high number of short-term guests, and no amount of signage or information to owners and occupiers will prevent that. However it seems that in the main the Body Corporate is proactive in managing parking and takes steps to address problems when they arise. [13] The applicant has simply not satisfied me that the Body Corporate has acted unreasonably or failed in its obligation to enforce By-law 16.5.

Exclusive use car spaces

[41] The next issue is whether the Body Corporate is enforcing By-law 16.7 and whether exclusive use car spaces can be used by non-resident persons. It appears the applicant’s concern is owner’s renting out their exclusive use car spaces. I will look at the capacity to allow others to use an exclusive use area, enforcement of the by-law, and the proposed by-law amendment.

Use of exclusive use car spaces

[42] Under the current wording of By-law 16 (including the bracketed text in By-law 16.7) but also more generally having regard to the definition of an owner and invitee, owners and occupiers have unfettered right to benefit from car spaces allocated to their lot (subject to any limitations in the legislation, like making improvements) and are free to allow an invitee to use them.

[43] It is common for by-laws to explicitly provide for an owner or occupier to allow their invitees to use an allocated exclusive use area. Even if this was not provided for in the by-law, it is not clear why a by-law should or could restrict who an owner or occupier could allow to use the space that has been allocated to them for their exclusive use. With regard to the particular concern about leasing out car spaces, the applicant has not identified any legislative provision that restricts the capacity of a lot owner to lease out an exclusive use area and I am not aware of any such restriction.

[44] Section 35(3) of the Act provides that an owner’s interest in a lot is inseparable from their interest in the common property, and the examples note that an owner cannot deal with or dispose of their interest in common property. However this section is referring to an owner’s interest in the entire common property of the scheme as a tenant in common, rather than the rights granted under the exclusive use by-law. An exclusive use by-law grants a statutory right rather than a common law interest in land.[14]

[45] Section 159 of the Accommodation Module provides for the leasing and licensing of common property. However it only covers the decisions that a body corporate must make to deal with common property, and not to an owner or occupier dealing with an exclusive use area.

[46] Section 180(4) of the Act prohibits a by-law from preventing or restricting a lot owner from leasing their lot. That section refers to the lot and does not mention the exclusive use or other special rights granted under an exclusive use by-law. However it could be argued that the limitation extends to the rights that attach to the lot.

[47] Subject to any limitations under section 180(4) of the Act, an exclusive use by-law could impose restrictions or conditions on the leasing of the exclusive use areas if that were reasonable.[15] The only explicit condition in By-law 16.7 is that parking areas cannot be advertised as being available for use by the general public. This is clearly justifiable as a reasonable condition because it is mandated by the development approval.

Enforcement of the by-law

[48] It is not disputed that from time to time persons in the car park may have parked in an exclusive use car space that they are not entitled to park in. As noted above, this is unsurprising in a scheme where there are short-term guests staying in lots who are unfamiliar with the car park and may not properly read the signage of the information given to them.

[49] The applicant provides few specific details of particular incidents, or to substantiate his claims of cars cruising the car park for any vacant spot. It would appear the applicant has believed some cars have been parked inappropriately when the Body Corporate says they were authorised. The submissions do not indicate that other owners are generally experiencing problems and I am unclear how the applicant asserts to know who is entitled to park in any space other than his own. However, while the details are not clear, it would appear that at least on one occasion an unauthorised person has parked in the applicant’s allocated car space.

[50] However, the question is not whether the by-law is being breached but whether the Body Corporate has failed in its statutory obligation to enforce the by-laws. In my view the Body Corporate will have discharged its responsibility if it takes reasonable steps to manage parking proactively, and actively respond to by-law breaches, even if breaches continue to occur.

[51] I note again that the applicant has not indicated that he has used the process provided for under the Act to notify the Body Corporate using BCCM Form 1) of alleged breaches.

[52] For the same reasons noted above in regard to the enforcement of the parking by-laws with regard to the visitor car spaces, I am simply not satisfied the applicant has demonstrated that there has been a systemic failure to enforce the exclusive use car parking by-laws.

Amendment to the by-law

[53] The applicant believes that By-law 16.7 should be amended to remove the bracketed text referring to invitees. Such an amendment would not achieve the applicant’s aim of preventing owners allowing an invitee to use a car space because the definition of owner in the CMS as a whole encompasses invitees. A more substantive and explicit amendment would be required to the CMS to restrict owners from allowing invitees using their space.

[54] I am unclear why any such amendment would be desirable. Preventing someone like a visitor to a lot from parking in the car space attached to the lot will not reduce the risk of persons inadvertently or deliberately parking in a car space that is not allocated to them, and will simply increase the usage of the limited visitor car spaces. To the extent that it sought to restrict the rights to use an exclusive use allocation with no appreciable benefit to the Body Corporate or other owners or occupiers, it is arguable that such an amendment would be oppressive and unreasonable and therefore contrary to the Act.[16]

[55] More fundamentally for present purposes, it is not evident that applicant has ever actually proposed an amendment to the by-law to the Body Corporate.

[56] A CMS, including the by-laws contained in the CMS, can only be amended by passing a resolution at a general meeting to record a new CMS that incorporates the changes. If the new CMS only changes the by-laws a special resolution will be required, unless the change is to the exclusive use by-laws in which case a resolution without dissent would be required.[17]

[57] If the applicant genuinely seeks a by-law amendment, he would need to submit an appropriate motion to a general meeting. The indications from the submissions are that such a motion is unlikely to pass. The applicant could potentially challenge that decision but would bear the onus of proving that the Body Corporate acted unreasonably in failing to pass the motion.

Conclusion

[58] It is apparent (and unsurprising), that from time to time the visitor car spaces or exclusive use car spaces at 127 Charlotte Street are used inappropriate and in breach of the by-laws. Notwithstanding that, I do not consider the applicant has demonstrated that any such breaches are the result of a failure of the Body Corporate to actively manage the parking arrangements in the building or to discharge its legislative responsibility to enforce the by-laws. Moreover, for the reasons outlined above, I am not satisfied the applicant has demonstrated that an order should be made to amend any relevant by-laws.

[59] It follows that the application is dismissed.

[1] See sections 227, 228, 276 and Schedule 5 of the Act

[2] Section 276 of the Act

[3] Section 284(1) of the Act

[4] Application reference 0439-2014

[5] Section 243 of the Act

[6] See sections 246 and 244 of the Act respectively

[7] Section 248 of the Act

[8] The investigative powers of an adjudicator are set out in section 271 of the Act

[9] Ocean Air Apartments [2015] QBCCMCmr 448

[10] BCC Application number A002966957

[11] The West Quarter [2003] QBCCMCmr 289

[12] I note the definition of ‘occupier’ in Schedule 6 of the Act includes someone who lives on the lot, or who occupies the lot for business purposes, or who works on a lot carrying on a business from that lot.

[13] The applicant comments in his reply to submissions about towing. This is not specifically raised in his application and it is not directly relevant to the issues in the application. However the Body Corporate should note that it may not be entitled to tow vehicles that are parked in breach of the by-laws – see for example City Connection II [2013] QBCCMCmr 487

[14] Independent Finance Group Pty Ltd v Mytan Pty Ltd & Anor [2001] QCA 306

[15] Pursuant to section 94(2) and section 180(7) of the Act

[16] Section 180(7) of the Act

[17] Section 54 and 62 of the Act