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

BY-LAWS - whether the respondent has parked vehicles on common property in contravention of the by-laws.

Act, ss 182-186

• [1] This application is about vehicles being parked on common property.
• [2] The body corporate says the owner and occupiers of Lot 5509 have parked in the visitor car spaces on common property, in breach of By-law 12.3. Under By-law 12.3 occupiers cannot park on common property without body corporate written approval and designated visitor car spaces must remain available for the sole use of visitors.
• [3] The body corporate issued a by-law contravention notices to the owner of Lot 5509, the respondent, in March and August 2024. The applicant and respondent reached a conciliated agreement in December 2024, but the applicant says the issue is ongoing.
• [4] The body corporate now seeks an order to address the issue.

• [5] Laguna Waters - Jacaranda community titles scheme 55925 (Laguna Waters - Jacaranda) is a 44-lot scheme at Cleveland. It is registered as survey plans 307672 and the community management statement (CMS) shows the Accommodation Module applies.
• [6] This application was lodged on 27 February 2025. The application seeks the following order:

That the owner and occupiers of lot 5509 cease parking in the visitor parking space.

• [7] 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 CMS, or the exercise of rights or powers or performance of duties under the Act or the CMS.[1]
• [8] I am satisfied I have jurisdiction to determine this matter.[2] However, I will note below some issues regarding the parties to this dispute.

• [9] The applicant applied for conciliation against the respondent in October 2024.[3] The parties participated in conciliation in December and reached an agreement. However, it seems that agreement did not resolve the dispute.
• [10] This application was subsequently lodged. The application was not accompanied by a resolution authorising the lodgement of the application. Accordingly, I am unclear if the body corporate manager who lodged the application was authorised by the body corporate to do so.
• [11] The Commissioner's delegate sought clarification from the applicant on some aspects of the application.[4] The application was subsequently amended.[5]
• [12] The Commissioner invited submissions from the respondent and all owners.[6] One owner made a submission. The body corporate did not obtain or respond to the submission.[7]
• [13] The application was referred to department adjudication.[8]
• [14] I have now investigated the dispute, including reviewing the application and submission.[9]
• [15] The respondent did not make a submission. Notice of the application was initially sent to the respondent via email addresses provided by the applicant. The respondent did not acknowledge receipt of it. Attempts to telephone the respondent were unsuccessful. The application was then posted to the respondent's address with further time to respond. Again, there was no response. However, while the respondent did not engage with the adjudication process, I am satisfied reasonable attempts were made to alert the respondent to the dispute.

• [16] The submission from a lot owner says the residents of Lot 5509 have ignored requests and warnings about their use of the visitor parking spaces in the building since arriving in 2023. The submitter says the residents have 3 vehicles but only one car space, and the other 2 vehicles are parked in visitor parking spaces. They say that, despite the mediated agreement that no residents of Lot 5509 would use the visitor parking spaces, 2 vehicles have continued to do so. The submitter says the residents of Lot 5509 claim one of the vehicles is owned by someone who does not live in the lot, and so is entitled to park in the visitor parking. The submitter disputes that claim based on their observations, saying the vehicle is driven most days. They note the number plate for that vehicle recently changed.
• [17] The submitter says the conduct is annoying and inconvenient for other residents whose visitors cannot find a car space because residents are using the visitor spaces. They also say it influences other parking offenders. They say the body corporate is pursuing other offenders.
• [18] The submission was accompanied by three photographs said to be of two offending vehicles, dated in February, April and May 2025.

• [19] The issue in question is whether the respondent is breaching the by-laws regarding parking. In determining whether to grant the order sought, I will consider the applicable by-laws and whether I have any evidence the respondent has breached the by-laws.

• [20] The current CMS for Laguna Waters - Jacaranda includes the following by-laws relevant to parking in visitor parking areas: [10]

An Owner or Occupier 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 anyone else to park a vehicle, or allow a vehicle to stand, on the Common Property,

unless the area of Common Property is designated for such purpose and then only subject to any rules set by the Body Corporate in relation to use of such areas.

If a vehicle is parked on the Common Property without the written approval of the Body Corporate, the Body Corporate is empowered to have the vehicle towed at the expense of the Owner or Occupier who is responsible for the vehicle.

(a) The Occupier of a Lot must not, without the Body Corporate's written approval:-

(i) park a vehicle, or allow a vehicle to stand, on the Common Property, or

(ii) permit an invitee to park a vehicle, or allow a vehicle to stand, on the Common Property, except for the designated visitor parking which must remain available at all times for the sole use of visitors' vehicles.

(b) An approval under by-law 12.3(a) must state the period for which it is given, with the exception of designated visitor parking.

However, the Body Corporate may cancel the approval by giving 7 days written notice to the Occupier, with the exception of designated visitor parking.

• [21] By-law 21.2 allocates exclusive use of car spaces on common property to lots as identified in Schedule E. Lot 5509 has been granted exclusive use of one car space.
• [22] Under By-law 3.1, owners or occupiers must ensure their visitors or invitees comply with all the by-laws. However, the by-laws do not impose a duty on an owner to ensure occupiers of their lot comply with the by-laws.
• [23] The by-laws define (in By-law 44.2) the terms owner and occupier as meaning the owner or occupier of a lot.[11] The by-laws do not define 'visitor', 'invitee', or 'designated visitor parking'. However, the exclusive use plans in the CMS show several car spaces marked 'visitor'.

• [24] Under the Act, all owners and occupiers are bound by the CMS and the by-laws in it.[12]
• [25] A body corporate must enforce the CMS, including the by-laws.[13] As with all its functions, a body corporate must act reasonably including in making or not making decisions about the enforcement of its by-laws.[14]
• [26] The legislation sets out the process for pursuing an alleged by-law breach.[15] The first formal step for a body corporate is to issue a by-law contravention notice to the person it alleges is breaching the by-law. The notice should detail the by-law it alleges is being breached and details of the alleged contravention. If the alleged breach is not remedied, the body corporate can apply for dispute resolution against the person it asserts is breaching the by-law. In the first instance, the body corporate will usually be expected to attempt to resolve the dispute by conciliation with the person who is alleged to be breaching the by-law.
• [27] Unless it is explicitly provided for in a by-law (which is not the case here), it is not the responsibility of an owner or occupier to enforce the by-laws against other owners and occupiers of their lot. A body corporate is responsible for pursuing alleged by-law breaches against each owner or occupier that it alleges is breaching the by-law.
• [28] The body corporate gave a notice of a likely future contravention of a by-law to the respondent in March 2024.[16] The attachment cited By-law 2.3 but quoted part of By-law 12.2. A second notice was sent to the respondent in August 2024. The attachment quoted By-law 12.3.
• [29] Both noticed named the respondent as the person against whom the complaint was made. No other persons were named or identified as in breach of the by-laws. Both notices described the alleged by-law contravention simply as 'parking on common property'. A covering letter for the first notice referred to 'continued parking within designated visitor parking spaces'. The covering letter for the second notice referred to the respondent parking on common property.

• [30] The body corporate only named Shaista Herd as the 'respondent' to the application. No affected parties were named in the application form or otherwise identified. However, the body corporate seeks an order against the owner and occupiers of Lot 5509.
• [31] The address for service for the respondent provided by the applicant is not an address at Laguna Waters - Jacaranda. Given that, it is not clear the respondent resides at Lot 5509, such that they are an 'occupier' of the lot.
• [32] Even if the respondent does occupy Lot 5509, it is evident from the submitted material that there are other occupiers of Lot 5509. However, those other occupiers have not been named as respondents. Moreover, the body corporate has not evidenced that it has issued a by-law contravention notice to those occupiers or attempted self-resolution or conciliation with them.
• [33] In the interests of natural justice, I can only consider making an order against the respondent. Where other occupiers are not named as respondents and notified of the application, they were not on notice that an order could be made against them personally.
• [34] On that basis, I will not consider at this time whether the occupiers of Lot 5509 have breached By-law 12.3. A dispute against them would need to be pursued directly. I will only consider the dispute with Shaista Herd and whether orders against Shaista Herd are warranted.

• [35] It appears the body corporate asserts the respondent and occupiers of Lot 5509 have been parking vehicles in a visitor car parking area at the scheme. As outlined, the only issue for me to consider at this time is whether the owner of Lot 5509 is parking in breach of the by-laws.
• [36] The application includes 17 photographs said to have been dated 19 March 2024, 12 to 15 May 2024, 10, 16 and 18 June 2024, 4 and 5 September 2024, 14 to 17 October 2024, and February 2025. These show vehicles parked in a space marked 'visitor'. The applicant references three vehicle registration numbers shown in the photographs. One vehicle is shown in 3 photographs, one in 8 photographs, and the third in 10 photographs. It is not clear from the application whether the photographs represent the only instances of alleged breaches or, if they are only examples, how often and for how long the alleged conduct occurs.
• [37] Nothing in the by-law contravention notices nor the application provides any detail of who the specific persons are alleged to have been parking in the visitor car parks. No evidence is provided of who owns or is driving (and parking) the vehicles referred to.
• [38] By-law 12.3 refers specifically to an occupier of a lot. A lot owner who is not an occupier is not bound by this by-law. As previously stated, the by-laws do not specifically impose a duty on an owner to ensure occupiers of their lot comply with the CMS.
• [39] The submission from an owner indicates the identified vehicles belong to the lot owners' children, who are claimed to be occupiers of Lot 5509. The submission does not appear to assert that the owner of Lot 5509 has personally been parking in visitor car spaces.
• [40] The applicant bears the onus of proof. I do not consider that the applicant has provided sufficient evidence that the respondent is an occupier or that they parked a vehicle in a designated visitor parking area. Accordingly, the applicant has not established that the respondent has contravened By-law 12.3.

• [41] Of course, the occupiers of Lot 5509 must not park or stand vehicles in designated visitor parking areas at the scheme. The body corporate is entitled to keep visitor car spaces reserved for genuine visitors and to enforce the relevant by-laws if they are breached. It may be that the occupiers of Lot 5509 have contravened By-law 12.3. However, the body corporate has not provided substantive evidence of any breach of the by-laws by the named respondent, the owner of Lot 5509. It follows that I have dismissed the application.

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

[4] Section 241 of the Act

[5] Section 245 of the Act

[6] Section 243 of the Act

[7] Section 244 and 246 of the Act

[8] Section 248 of the Act

[10] Titles dealing number 722744168, recorded on 13 September 2023

[11] The definition of 'occupier' of a lot in schedule 6 of the Act includes a resident owner or a resident lessee of the lot, or someone else who lives on the lot.

[12] Section 59 of the Act

[13] Section 94(1)(b) of the Act

[14] Section 94(2) and 100(5) of the Act

[15] Section 182-188 of the Act