Pfeffer v Body Corporate for Bellevue on Memorial

[2014] QCATA 102

CITATION: Pfeffer v Body Corporate for Bellevue on Memorial [2014] QCATA 102

PARTIES:	Sharon Maria Pfeffer (Applicant)
v
Body Corporate for Bellevue on Memorial (Respondent)

APPLICATION NUMBER: APL475-13

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Member Barlow, QC

DELIVERED ON: 2 May 2014

DELIVERED AT: Brisbane

ORDERS MADE: Appeal dismissed.

CATCHWORDS:

APPEAL - Body Corporate and Community Management – Non-compliance with by-laws in community management statement – Car parking on common property – Obstructing use of common property – Whether error of law in ordering compliance with by-laws

Body Corporate and Community Management Act 1997 (Qld) ss 59, 94(1)(b), 182 - 188

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

1. This is a dispute about car parking.  Ms Pfeffer is the resident owner of lot 3 in Bellevue on Memorial, a community titles scheme situated in Maroochydore.  The body corporate sought and obtained orders from an adjudicator that Ms Pfeffer not park or allow a vehicle to be parked on common property without the express written permission of the committee of the body corporate, nor in such a way that it obstructs the lawful use of the common property by somebody else.  She appeals from those orders.

2. Ms Pfeffer’s application states that the brief grounds of appeal are that “the adjudicator’s decision has not been handled properly, nor the decision and ruling applied in the right context, being the point of law.  The decision is biased, unreasonable, prejudicial and oppressive towards the occupiers of her lot. A common sense approach has not been reached.  The vehicle is not obstructing common property.”  The application goes on to make other statements that cannot on any view constitute grounds of appeal.

3. The scheme is regulated by the Body Corporate and Community Management (Standard Module) Regulation 2008.  Under the community management statement, 19 exclusive use parking areas are shared between the 12 lots.  Lot 3 (Ms Pfeffer’s lot) has one area allocated to it. 

4. Ms Pfeffer’s partner, Mr Linnenlucke, also occupies lot 3.  Since about March 2012, he has had the practice of parking his car on the common property in the car park area adjoining the exclusive use area allocated to lot 3.  Neither he nor Ms Pfeffer has ever had the body corporate’s permission for him to park his car there.  The body corporate and several lot owners who made submissions to the adjudicator contend that parking the car there is not only impermissible without permission, but also obstructs the lawful use of the car parking area (that is, common property) by other lot owners and their invitees who wish to park in adjoining car parking spaces. 

5. The relevant by-laws of the scheme provide as follows:

   By-law 2 Vehicles

   (1)   The occupier of a lot must not, without the Body Corporate’s written approval:

   (a)    park a vehicle, or allow a vehicle to stand, on the common property; or

   (b)permit an invitee to park a vehicle, or allow a vehicle to stand, on the common property.

   By-law 3 Obstruction

   The occupier of a lot must not obstruct the lawful use of the common property.

6. The adjudicator found that, by parking his car on the common property adjacent to the parking area allocated to lot 3, Mr Linnenlucke (and Ms Pfeffer, by allowing him to do so) was breaching by-law 2.  Mr Linnenlucke’s stated reason for parking there was that he feared that his car would be vandalised if left on the street.  Ms Pfeffer asked the committee and the body corporate in general meeting for permission for Mr Linnenlucke to park there, but permission was refused on both occasions.  Given the effect of the car on the ability to manoeuvre other vehicles in the area, the adjudicator considered that refusal to be reasonable.  In my view, such a finding was open.  The adjudicator was therefore clearly correct in finding that Mr Linnenlucke and Ms Pfeffer were in breach of by-law 2.

1. The adjudicator also found that, on the evidence, parking Mr Linnenlucke’s car in that location obstructed other lot owners from using the common property comprising that area when moving their cars in the car park.  In particular, it was difficult, if not impossible, for the owner of lot 7 to use his allocated exclusive use car parking area and it also affected the ability of the owner of lot 12 to manoeuvre cars in and out of the car parks allocated to that unit.  Again, the adjudicator appears to have been clearly correct in making those findings.  Even if access to the exclusive use car parking area of lot 7 was not made completely impossible, when Mr Linnenlucke’s car was parked adjacent to the exclusive use area for lot 3, it would obstruct the movement and manoeuvring of vehicles attempting to park in the other nearby exclusive use areas, including those of lots 7 and 12.

2. In determining the appropriate remedy, the adjudicator considered the terms of the by-laws, the fact that lot owners and occupiers are bound by the by-laws (under s59 of the Act), the obligation of the body corporate (under s94(1)(b) of the Act) to enforce the by-laws, the steps which the body corporate had taken concerning the breaches (under ss182 to 188 of the Act) before making its application, the evidence as to the effect of parking Mr Linnenlucke’s car where he does, and that there appear to be plenty of public car parking spaces on nearby roads within 50 metres of the entrance to the scheme car park, which Mr Linnenlucke could use. The adjudicator considered that the body corporate’s conduct in seeking to enforce the by-laws was reasonable and appropriate in all the circumstances. Accordingly, the adjudicator made the orders that I have summarised above.

3. An appeal from the decision of an adjudicator may be brought to this Tribunal only on a question of law: s 289(2).  I can see no error of law by the adjudicator, either in the reasoning or the manner in which the decision was made.  There is therefore no basis for the appeal and it should be dismissed. 

4. I should add one further comment.  Ms Pfeffer submitted 36 photographs of the car parking area in support of her appeal.  Those photographs were not before the adjudicator.  It is not open to an appellant to seek to provide additional evidence to this Tribunal on an appeal, nor can this Tribunal accept and act on additional evidence, as an appeal under s 289 is an appeal in the strict sense and not by way of re-hearing.[1]  It is therefore not open to this Tribunal to consider the evidence comprising those photographs. But even if it were to do so, having looked at them they do not alter my view that the adjudicator made no error of law. 

   [1]River City Apartments v McGarvey [2012] QCATA 047 at [11]-[16].

5. Therefore, the appeal must be dismissed.