Body Corporate and Community Management (Standard Module) Regulation 2020 (Standard Module)

BY-LAWS - whether the respondent is breaching the by-laws by parking on the common property without body corporate approval and dumping rubbish on the common property.

Act, ss 182(4)(e)(i)&(5), 183(4)(e)(i)&(6), 288(1).

1. The respondent must cease parking her vehicles on the common property without body corporate approval.
2. The application is otherwise dismissed.

• [1] The body corporate accuses Ms Thirlwell of lot 6 of:
  1. parking on the common property, and permitting her invitees to park on the common property, without body corporate approval in contravention of by-law 2, and
  2. dumping rubbish on the common property contrary to by-law 7.
• [2] It seeks orders against her in the following terms:

The body corporate would like the owner and occupants of unit 6 to abide by the body corporate bylaw 2 and only park in their allocated carpark, and not on common property. The body corporate would like the owner and occupants of unit 6 to abide by the body corporate bylaw 7 and council regulations to properly and responsibly dispose of rubbish in receptacles provided.

• [3] Ms Thirlwell did not make a submission, just as she did not participate in conciliation when invited.
• [4] Ms Thirlwell is plainly in breach of by-law 2, the relevant parts of which state:

(a) Park a vehicle, or allow a vehicle to stand, in a regulated parking area; or

(b) Without the approval of the body corporate, park a vehicle, or allow a vehicle to stand, on any other part of the common property; or

(c) Permit an invitee to park a vehicle, or allow a vehicle to stand, on the common property, other than in a regulated parking area.

"Regulated parking area" means any area of scheme land designated by the Body Corporate as being available for use, by invitees of occupiers of lots included in the scheme, for parking vehicles.

• [5] The body corporate submitted photographs of various parked vehicles, but with little to identify who each belonged to, whether the vehicle's owner was an occupier or visitor, and whether they were parked in "regulated parking areas".
• [6] However, one was a white Kia SUV bearing the personalised number plate "LAUREN G". Titles Registry records show "G" is Ms Thirlwell's middle initial. The vehicle is shown parked on common property near the entrance to Central Cairns Apartments, and on common property marked "NO PARKING" next to lot 6's parking space.
• [7] Ms Thirlwell is an occupier and is not permitted to park on the common property without body corporate approval. I will order her to stop. That simply repeats what the by-law requires of her anyway, though failure to comply would now be an offence, punishable with a fine.[1]
• [8] By-law 7 prohibits an occupier from leaving rubbish on the common property:

...in a way or place likely to interfere with the enjoyment of the common property by someone else.

• [9] The body corporate says Ms Thirlwell leaves her rubbish in other lots' bins or elsewhere on the common property. It submitted photographs of a bag of rubbish leaning against two wheelie bins. A woman is shown carrying that same bag in an image submitted by the owner of lot 1 (and chairperson of the body corporate committee). The suggestion is that the woman is Ms Thirlwell, though I am not familiar with her. It is not obvious that the bag has been left "in a way or place likely to interfere with the enjoyment of the common property by someone else" though. It appears to be in a bin area.
• [10] Lot 1 submitted further photographs of rubbish piled on top of wheelie bins, left in bags on the floor of the bin area, or left elsewhere on the common property. Some of it has clearly been left in a way and place likely to interfere with the enjoyment of the common property, such as the large cardboard boxes left in parking spaces. But it is not evident who left the rubbish there.
• [11] The body corporate manager forwarded an email, presumably from an occupier, with photographs of a box of rubbish left on someone's doorstep. The box is said to bear Ms Thirlwell's name and address, though it cannot be made out in the photograph. The occupier said she had earlier seen the box left on Ms Thirlwell's car.
• [12] Both of those locations breach the by-law. I am reluctant to apportion blame with such limited information though. I cannot make out the name on the box, and I do not know where the box was originally left. It sounds as though another occupier placed the bag onto Ms Thirlwell's car to make a point, and Ms Thirlwell then placed it on the doorstep in a similar spirit.
• [13] There is insufficient evidence to make any orders in relation to the rubbish left on the common property. It is either unclear who left it or that its location is likely to interfere with the enjoyment of that part of the common property. With clearer evidence, the body corporate might apply again, or it can apply directly to the Magistrates Court to enforce a by-law contravention notice.[2]

[2] Act, ss 182(4)(e)(i)&(5) & 183(4)(e)(i)&(6).