Dritsas and Anor v Finlayson and Anor (Unit Titles)
[2020] ACAT 89
•4 November 2020
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
DRITSAS & ANOR v FINLAYSON & ANOR (Unit Titles) [2020] ACAT 89
UT 32/2020
Catchwords: UNIT TITLES – long-standing dispute over the use of a ‘service area’ on the common property of commercial premises for visitor parking – application by owners of five of six units for an order restraining minority unit owner from allowing customers of his café to park on the common property – common property also used for parking by tenants of the other units and their invitees and by members of the public generally – injunction refused on discretionary grounds – consideration of alternative ways of resolving the dispute by providing a permanent workable solution to stop unauthorised parking on the common property – applicants favour installation of boom gates – applicants agreeable to meeting the cost of installation and future maintenance – no consideration given to queuing requirements – TCCS requires minimum queuing area of 12 metres to be provided between the boundary and the boom gate located entirely within the boundary – not appropriate to make an order under section 129(2) giving effect to applicants’ agreement without them having an opportunity to obtain proper technical and costing advice – application dismissed
Legislation cited: Unit Titles (Management) Act 2011 s 129
Subordinate
Legislation cited: Construction Occupations (Licensing) Unit Title Site Assessment Code of Practice 2016, cl 19.2
Tribunal: Senior Member M Orlov
Date of Orders: 4 November 2020
Date of Reasons for Decision: 4 November 2020
AUSTRALIAN CAPITAL TERRITORY
CIVIL & ADMINISTRATIVE TRIBUNAL UT 32/2020
BETWEEN:
CHRIS DRITSAS
First Applicant
LORRAINE DRITSAS
Second Applicant
AND:
GRAEME FINLAYSON
First Respondent
THE OWNERS CORPORATION – UNITS PLAN 425
Second Respondent
TRIBUNAL: Senior Member M Orlov
DATE:4 November 2020
ORDER
The Tribunal orders that:
The application is dismissed.
………………………………..
Senior Member M Orlov
REASONS FOR DECISION
Introduction
This application is the culmination of a long-standing dispute between two owners about the use of a dedicated service area for parking by visitors to commercial premises in Mitchell. The applicants own five of the six units in Units Plan 425. All of their units are leased to commercial tenants. The first respondent owns one unit, from which he carries on business as a café. There is a long history of unpleasantness between one of the applicants, Mr Dritsas and the first respondent, Mr Finlayson and his staff and customers. It is not necessary to recount the allegations and counter allegations each makes about the other’s conduct. Suffice to say that relations between Mr Dritsas and Mr Finlayson are, and for some time have been, fraught.
The applicants allege that the first respondent allows or encourages customers of the café to park on the common property – in particular, in an area designated as a service area. They allege that he encourages this by leaving the back door of the café open to allow access for customers.
The applicants seek an order to “stop the unauthorised parking in the common property of Units Plan 425…by customers of Unit 1, The Bean Addiction Café, at the direction of Graeme Finlayson”.
Background
It is necessary to understand the layout of the common property that is material to the dispute.
The commercial premises comprise an L-shaped building fronting Lysaght Street and Huddart Court in Mitchell. Vehicle access to the rear of the property is through an ungated driveway entrance on Buckland Circuit at the south-west corner of the site.[1] The driveway entrance opens onto an approximately 25 metres square area of concrete pavement bounded on the western and northern side by two metre high brick walls, on the eastern side by the western wall of the building and on the southern boundary by a chain link fence. ‘No Parking’ signs are installed at various locations. The driveway continues behind the building giving access to garage or storage areas belonging to each unit and to designated parking spaces for twelve cars along the southern boundary.
[1] For the purpose of identifying the location of relevant features of the property I have adopted the convention that the frontage to Lysaght Street faces north and the frontage to Buckland Crescent faces west.
The controversy concerns vehicles using the open square area of concrete pavement adjacent to the driveway entrance from Buckland Circuit for parking. The approval drawings for the development, dating from October 1985, designate this as a “service area”. Clause 19(2) of the Construction Occupations (Licensing) Unit Title Site Assessment Code of Practice 2016 defines ‘service area’ to mean “an area for building plant and building services, waste collection, clothes drying, and includes the area occupied by, [among other things], a waste hopper enclosure … [and] bin enclosure.”
A strip of concrete adjacent to a chain link fence on the southern boundary is set aside for rubbish skip bins. The decision to locate the skip bins outside the designated service area, where they are clearly visible from Buckland Circuit, was made many years ago by Mr Dritsas. The ready access to the bins from Buckland Circuit has resulted in members of the public using the skip bins and surrounding area as a dumping ground for rubbish.
Mr Finlayson accepts that some of his customers park in the ‘service area’ for short periods of time, although he denies encouraging them to do so. He says that the back door of the café must remain unlocked because it is a designated emergency exit and provides access for goods and produce deliveries, which may occur at various times throughout the day. This has caused considerable friction between Mr Finlayson and Mr Dritsas who, over the years, appears to have taken a particular set against customers of the café parking in the ‘service area’, even though evidently it is not (and apparently never has been) used for that purpose. Mr Finlayson provided statutory declarations from customers and staff deposing to having been abused and yelled at by Mr Dritsas for parking there.
I am satisfied that the service area is used regularly by tenants of the other units and their invitees for parking. Mr Finlayson provided photographic evidence supporting his claims (including a photograph of a vehicle belonging to unit 6 parked in a car space designated for the exclusive use of his unit). Recently, when I attended the premises for a view in the presence of the parties, four vehicles, none of which belonged to customers of the café, remained parked in the ‘service area’ for the duration of the view (about one and a half hours). At one point, a fifth car, belonging to a customer of the café, drove in and parked for a short time.
Mr Finlayson claims to have heard Mrs Dritsas say on a particular occasion that their tenants can park there. Mrs Dritsas denies this. Nevertheless, I have seen no evidence to suggest that the applicants have done anything to restrict unauthorised parking by other persons other than to put up “No Parking” signs, or that Mr Dritsas has behaved in the same manner towards his tenants and their invitees parking in the ‘service area’ as he has done towards the first respondent’s customers and staff.
There clearly is a significant problem with unauthorised parking on the premises. However, the problem is not confined to customers of the café and will not be solved by making an order of the kind sought by the application. Mrs Dritsas advised during the view that members of the public working in nearby buildings also use the area for parking, which is of concern to her and her husband. I attribute the applicants singling out the first respondent and his customers as the focal point of the relief sought in application, to the long-standing animosity Mr Dritsas has developed towards Mr Finlayson. The feeling of animosity clearly is mutual.
Reframing the dispute
I informed the parties at the hearing that I was not persuaded that it was appropriate in the circumstances to grant the relief sought in the application, including because I did not consider that it provided a workable solution to the underlying problem of unrestricted access and unauthorised parking by visitors to the premises. As an alternative, I suggested that the parties should try to agree a workable permanent solution. Among other things, this may help to remove the cause of long-standing friction between Mr Dritsas and Mr Finlayson, which has spilled over more generally into the running of the affairs of the Owners Corporation.
The remainder of the hearing focused on exploring alternative solutions. I indicated that, in a practical sense, the only way I could see to stop unauthorised parking would be to install a boom gate. An alternative would be to better control parking on the site by providing additional marked visitor parking spaces along one side. That at least would stop unregulated parking by visitors to the premises, who currently park their vehicles wherever they please in the service area. I invited the parties to contribute any ideas they may have for other solutions.
The first respondent was in favour of providing additional visitor car spaces to regulate parking in the area. The applicants were opposed to increasing the number of parking spaces and said that parking was not permissible in the designated ‘service area’. This however ignored the possibility of relocating the rubbish skip bins into the service area, freeing up part of the southern boundary for the provision of additional visitor parking spaces.
I directed the applicants to provide the first respondent and the Tribunal with a site plan clearly marked to show existing car spaces, utility and service areas and any other information relevant to the use or restrictions on use of the common property and, armed with that information, for the parties and their representatives to attend a view on 22 October 2020. The intention was to try to find common ground, which could be the basis for an order under section 129(2) of the Unit Titles (Management) Act 2011. This gives the ACAT the power to “make any other order it considers reasonably necessary to resolve a dispute under this part”.
The outcome of the view
The first respondent’s position remained that providing additional visitor parking spaces was a sensible and cost-effective way to control parking on the site. Prior to the view, Mr Finlayson canvassed the views of tenants of the other units, all of whom (except one who could not be contacted) supported the provision of additional car parking spaces.
The applicants remained opposed to any increase in the number of parking spaces. They said that increasing the number of car spaces would require development approval, which they were not willing to pay for. They expressed concern about the increased risk of public liability and the possibility that the cost of insuring the premises may increase. However, the applicants were attracted to the idea of installing a boom gate to restrict unauthorised access.
The first respondent was opposed to a boom gate because it would likely cause inconvenience for deliveries to his premises, particularly milk which is delivered at around 5am when no one is working at the café. However, as the applicants pointed out, there are a number of ways this could be overcome.
The first respondent was not willing to contribute to the cost of installing or maintaining the boom gate.
After extensive discussion the applicants agreed to bear the whole cost of installing the boom gate, including the cost of obtaining any necessary approvals and to bear the cost of future maintenance.
As the applicants saw it, installing a boom gate was a relatively simple affair that was unlikely to require development approval. They envisaged that the boom gate would be installed close to the boundary, without the need to provide an off-street queuing area for vehicles and trucks to stand safely while waiting to enter through the boom gate. No enquiries had been made at that point to verify whether this was permissible.
I expressed doubt about this and indicated that I would make it a condition of any order under section 129(2) that plans for the location and installation of the boom gate should be prepared by a properly qualified consultant. As the type of boom gate had not been selected and the operational requirements of the system had not been defined, I indicated also that any order would require the eventual choice of system to be approved by the Tribunal. I consider this to be essential to ensure that there is minimum interference with the first respondent’s access to the premises for deliveries, among other considerations.
Although I was inclined at the conclusion of the view to make orders pursuant to section 129(2) giving effect to the applicants’ agreement, having now investigated the design requirements for queuing at carpark entrances specified by Transport Canberra and City Services (TCCS) I am satisfied that it is not appropriate to do so without the applicants having an opportunity to consider whether they wish to proceed with the benefit of appropriate technical and costing advice.
TCCS requirements for queuing at carpark entrances
TCCS has issued an Engineering Advisory Note (EAN) 06[2] setting out the relevant design requirements. Under ‘Background’, the note states:
AS 2890.1 Parking Facilities Part 1 Off-street car parking Clause 3.4 requires that queue lengths be considered at the entrance to a carpark whether it be at grade, structured or a basement for residential or commercial facilities. The queuing area to be provided between the vehicle control point [defined in clause 1.3.11 to include a boom gate] and the property boundary is required to be sufficient for entry of vehicles which will not adversely affect traffic, cycle or pedestrian movement in the road frontage (incl. the verge).
[2] Document No. DRC-EAN-02 Issue No. 1: Revision 3 Date of issue: 31/05/2017
Under ‘Advice’, the note states in part:
TCCS require that all developments meet either the:
(a)requirements of AS 2890.1 Parking Facilities Part 1 Off-street parking Clause 3.4 QUEUING AREAS and Table 3.3, or
(b)demonstration of the queuing requirement from first principles including the provision of technical details and performance specifications of proposed control point equipment.
If the first method is adopted, “the capacity of the car park is to be taken as the number of car spaces which are served by each control point lane” and that where there are multiple lanes or access locations to a car park that the number of car spaces is proportioned appropriately.
If the second method is adopted, the developer or its consultant shall provide the following as a minimum:
(a)The type of boom gate/roller door to be installed at the control point
(b)Complete manufacturer’s specification for the gate/roller door to be installed including all operational performance parameters including speed of operation / hourly throughput
(c)The queuing length required to be provided (in metres) from first principles (including all assumptions such as peak arrival rates)
(d)The general arrangement of the entrance with dimensions and the location of the boom gate/roller door at the control point
The note goes on to state that the minimum requirement for queuing between the block boundary and the control point is 12 metres where the car parking area accommodates less than 100 cars.
The current designated capacity of the carpark at the premises is 12 cars. The minimum requirement for queuing applies, therefore. The queuing length must be contained within the property boundary as required by AS2890.1 in all cases.
The note concludes with the following statement:
If the client/developer defers the installation of parking controls until after the building is complete this does not diminish the need for compliance with the requirements of AS2890.1 and this Advisory Note and the consultant should advise the client/developer of the physical requirements for meeting the Australian Standard AS2890.1 at a later date should controls be installed.
Conclusion
In the circumstances, I am not prepared to make any order in relation to the installation of boom gates. If the applicants decide to proceed, the design will have to comply with the TCCS and any approval requirements and the works will have to be authorised in the usual way by a general meeting of the Owners Corporation.
As I am not satisfied that the discretionary relief sought in the application should be granted, the application must be dismissed.
………………………………..
Senior Member M Orlov
HEARING DETAILS
FILE NUMBER: | UT 32/2020 |
PARTIES, APPLICANT: | Chris Dritsas and Lorraine Dritsas |
PARTIES, FIRST RESPONDENT: | Graeme Finlayson |
PARTIES, SECOND RESPONDENT | The Owners Corporation – Units Plan 425 |
COUNSEL APPEARING, APPLICANT | N/A |
COUNSEL APPEARING, RESPONDENT | N/A |
SOLICITORS FOR APPLICANT | Baker Deanne & Nutt |
SOLICITORS FOR RESPONDENT | N/A |
TRIBUNAL MEMBERS: | Senior Member M Orlov |
DATES OF HEARING: | 14 & 22 October 2020 |
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