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

BY-LAWS - where the applicant alleges the scheme's by-law which only permits parking of a single motor vehicle in each parking bay is oppressive and unreasonable - whether the by-law should be invalidated.

Act, ss 169, 180

1. I declare that By-law 46.1(a) of the By-laws for Pinnacle Portside Wharf CTS 47105 is invalid for being oppressive and unreasonable, having regard to the interests of all owners and occupiers of lots included in the scheme and the use of the common property for the scheme, in contravention of section 180(7) of the Act.
2. Within 60 days of this order, the Body Corporate for Pinnacle Portside Wharf CTS 47105 must lodge a request to record a new community management statement to remove subclause (a) of By-law 46.1.

• [1] Pinnacle Portside Wharf CTS 47105 (Pinnacle Portside) is located in Hamilton, Queensland. It is part of a layered arrangement being a one of four subsidiary schemes within the Portside Wharf Principal CTS 36407. It is governed by the Accommodation Module.
• [2] This dispute is about one of the scheme's by-laws, By-law 46.1(a), which provides that only a single motor vehicle may be parked in the parking bays in the scheme's underground carpark.[1]
• [3] The applicant, Joseph Rastegorac, is the joint owner and occupier of Lot 20001 in the scheme. His lot has been allocated one of the unenclosed car spaces and I understand he has been parking two motor cars and a motorcycle in his allocated parking bay. The applicant says all these motor vehicles fit within his parking bay and there is no rationale reason for the body corporate to mandate that parking bays can only be used for one motor vehicle.
• [4] The applicant says he was notified of the parking issue 16 months after moving into the scheme. He says he made multiple attempts to have the by-law amended but was eventually issued with a contravention notice for breaching By-law 46.1(a). The applicant says it was this that prompted him to contact our office to resolve the ongoing dispute.
• [5] The applicant says By-law 46.1(a) is oppressive and unreasonable and seeks an order that the body corporate be directed to lodge a request to record a new community management statement (CMS) to remove the disputed by-law.
• [6] I note the applicant bears the onus of establishing that the order he seeks is warranted in the circumstances.

• [7] The applicant lodged an application for conciliation on 27 November 2024.[2] The parties attended a conciliation session and a conciliation agreement was drafted. However, the agreement was not finalised and the application was referred back to the commissioner as the parties ultimately did not reach an agreement.[3]
• [8] The applicant lodged this application for adjudication on 7 April 2025. The commissioner sought clarification on some aspects of the application and the application was amended.
• [9] The commissioner invited submissions from the body corporate committee and all other owners in the scheme. The committee and five other owners made submissions in response to the application.
• [10] The applicant inspected the submissions made in response and submitted a reply.
• [11] A dispute resolution recommendation was made referring the file to department adjudication.[4]

• [12] An adjudicator may make an order that is just and equitable in the circumstances (including a declaratory order) to resolve a dispute, about (relevant to this dispute): a claimed or anticipated contravention of the Act or the CMS, or about the exercise of rights or powers or performance of duties under the Act or the CMS.[5]
• [13] I am satisfied I have jurisdiction to determine this matter under the legislative dispute resolution provisions.

• [14] The applicant says there is no definition of 'motor vehicle' or 'motor' in the scheme's by-laws and on a literal interpretation of By-law 46.1(a) only one 'vehicle' with a motor can be parked in an allocated parking bay. He says this can be interpreted as only permitting one motorised bicycle or skateboard to be parked in a parking bay regardless of the size of either the vehicle or the size of the parking space. He says this is outdated and ambiguous.
• [15] The applicant goes on to explain there are 182 parking bays in the scheme's underground carpark with 147 of those bays measuring 5.4 metres in length and 35 of those bays measuring 10.8 metres in length. He says it is unreasonable for By-law 46.1(a) to impose a blanket restriction of only one motor vehicle for all bays regardless of their size or configuration. He says this creates a situation where owners are prevented from utilising the full extent of their exclusive-use parking spaces as some bays are large enough to easily accommodate more than one vehicle.
• [16] In addition, the applicant says the effect of By-law 46.1(a) means owners with larger parking bays are penalised as the by-law arbitrarily restricts how owners are able to use their private parking space. The applicant says the restriction serves no practical or community benefit, especially as multiple vehicles can fit in a parking bay without encroaching on common property or causing an obstruction to any other users of the carpark.
• [17] The applicant says removing subclause (a) of By-law 46.1 will not compromise the overall order or appearance of the scheme's underground carpark. He notes subclause (b) of By-law 46.1 already prohibits parking spaces from being used for storage and By-law 13.1(a) ensures no vehicle is parked in a way that encroaches on any part of the common property. He says these existing by-laws are sufficient to regulate the appropriate use of parking bays without imposing blanket limitations on the number of vehicles permitted per bay.

• [18] The body corporate says By-law 46.1(a) is not oppressive or unreasonable because it is a proportionate regulation of the exclusive-use car spaces which addresses safety, manoeuvrability and insurance risk. It says the by-law regulates rather than prohibits parking and comparable decisions have upheld similar regulation of exclusive-use parking when supported by practical benefit.
• [19] The body corporate further says the democratic will of owners was expressed at the general meeting held on 27 June 2024 where the applicant's motion to amend By-law 46.1(a) was defeated with 25 owners voting against the motion and only 17 voting in favour.
• [20] The body corporate says that pursuant to section 169 of the Act, it is granted the power to make by-laws which, amongst other things, regulate the use and enjoyment of lots and the common property. It says By-law 46.1(a) is within the body corporate's power to make.
• [21] The body corporate says the restriction of each parking bay to a single motor vehicle, (regardless of the bay's length), is designed to maintain safe and unobstructed accessways and minimise the risk of blocked access for vehicles and for emergency evacuation. It says having more than one vehicle per parking bay would create hazards for both vehicles manoeuvring out of the carpark and for emergency services.
• [22] However, notwithstanding the above, the body corporate says it has taken a practical approach to implementing By-law 46.1(a) by recognising that two vehicles can be validly parked within bays measuring 10.8 metres (which it refers to as tandem parking bays). I understand the body corporate allows this at the scheme. However, it explains the applicant was served with a contravention notice because he continues to park two cars and a motorcycle in his tandem parking bay.
• [23] The body corporate says owners and occupiers will likely experience difficulties accessing their allocated parking bays and navigating the scheme carpark if too many vehicles are not parked correctly within their designated parking bays. It says for safety, compliance and ease of access, it is imperative that the rule of one-vehicle per bay is strictly observed.
• [24] The body corporate says the layout of the scheme's carpark presents significant challenges in terms of manoeuvrability and spatial limitations which makes parking within the designated boundaries of parking bays difficult. It says complaints and photographs have been provided to illustrate the constraints faced by owners and occupiers when attempting to park in accordance with the by-laws.
• [25] The body corporate further explains that the carpark has a dual direction traffic zone which is extremely tight. It says due to the narrowness of the accessways, it is virtually impossible for two vehicles to pass simultaneously. It says parking also begins immediately upon entry to the basement carpark which further limits manoeuvrability and visibility.
• [26] The body corporate says By-law 46.1(a) is not a blanket prohibition on parking but is a targeted and proportionate regulation to prevent the misuse of the parking spaces affecting other users of the carpark. It says owners and occupiers retain the full use of their bays for the purpose for which they were designed. It says prevention of vehicles encroaching or interfering with the exclusive-use rights of others is reasonable in the circumstances.
• [27] The body corporate says By-law 46.1(a) is not ambiguous. It says 'vehicle' is defined under the by-laws and if a vehicle has a motor, it is a motor vehicle. Accordingly, this includes cars, motorcycles, motorised scooters, electric bikes and similar conveyances.
• [28] The body corporate says the restriction of a single motor vehicle per bay is not arbitrary, discriminatory or oppressive as the by-law applies equally to all owners and occupiers and has the rational purpose of avoiding congestion and safety issues while maintaining the orderly use of the scheme's parking resources.

• [29] Five owners made submissions on this dispute with two owners making submissions in support of applicant's application and three owners making submissions in opposition.
• [30] In support of the application, the owners of Lot 20906 say they have no objection to allowing multiple motor vehicles to be parked within the boundaries of any parking bays at the scheme. They say amending the wording of the by-laws to allow this seems practical.
• [31] The owner of Lot 20012 also supports the applicant's application and says owners should be allowed to park multiple vehicles in an exclusive use parking bay provided the other by-law conditions are still complied with. He says in this case the applicant is easily able to fit two motor cars and a motorcycle in his tandem parking bay without any effect on others. He says it seems unreasonable not to allow the applicant the ability to do this.
• [32] In opposition of the application, the owner of Lot 20706 says By-law 46.1(a) needs to reflect the scheme's current parking bays and clarify that one vehicle be permitted to be parked in bays which are 5.4 metres in length and two vehicles be permitted within bays which are 10.8 metres in length. However, the owner says allowing motorcycles to be parked between the two vehicles will reduce the ability for drivers to safely navigate entering or exiting their vehicles.
• [33] The owners of Lot 21007 make a very similar submission to the owner of Lot 20706.
• [34] The owner of Lot 20504 also does not support the applicant's request to remove By-law 46.1(a). She says the car park at the scheme is quite confined so restricting parking bays to a single vehicle is fundamental for the safe and orderly operation of the car park. However, she says the definitions in the scheme's by-laws could be updated to specify that a parking bay means a car space of 5.4 metres in length and a parking space of 10.8 metres in length is two parking bays.

• [35] The applicant says the restriction of a single motor vehicle per parking bay does not impact emergency evacuation. He says provided all the vehicles are fully within the parking bay lines and do not encroach on the common property then the concern about vehicles causing an obstruction during an evacuation is unfounded. He says the fire risk associated with two small cars and a motorcycle is no different to that posed by two large cars.
• [36] The applicant says that if a vehicle has not been parked 'correctly' within a parking bay, then the matter can be dealt with by the committee with enforcement action taken against any owners who are encroaching over their allotted bays. He notes the point about preventative by-laws being justified to prevent interference. However, he says where his motorcycle is fully within the confines of his exclusive use bay it does not interfere with either adjacent bays or the common property. He says a preventative by-law should not go beyond what is necessary and there is no need to have a restriction of only one motor vehicle per parking bay to prevent encroachment.
• [37] The applicant says the body corporate has failed to provide any meaningful evidence of disruption or of risks posed by parking additional vehicles when they fit within a parking bay. He says the safe and orderly operation of the scheme's carpark can be maintained while still allowing more than one vehicle per parking bay. He says other by-laws and basic enforcement are sufficient to manage the parking at the scheme.

• [38] A body corporate is empowered to make by-laws regulating the use and enjoyment of lots and common property in the manner permitted by the legislation. Section 169 of the Act sets out the content and extent of by-laws and provides the following:

(1) The by-laws for a community titles scheme may only provide for the following -

(a) the administration, management and control of common property and body corporate assets

(b) regulation of, including conditions applying to, the use and enjoyment of:

(i) lots included in the scheme

(ii) common property, including utility infrastructure

(iii) body corporate assets, including easement areas relevant to common property

(iv) services and amenities supplied by the body corporate, and

(c) other matters the Act permits to be included in by-laws.

• [39] Section 180 of the Act sets out other limitations for by-laws. As relevant to this case, section 180(7) of the Act provides:

(7) A by-law must not be oppressive or unreasonable, having regard to the interests of all owners and occupiers of lots included in the scheme and the use of the common property for the scheme.

• [40] The current CMS for Pinnacle Portside[6] includes the following by-law in relation to how the scheme car spaces and garages can be used:

(a) may only be used for the parking of a single motor vehicle in each parking bay; and > > (b) must not be used for storage, except storage of household furniture and belongings in a storage device permitted under By-Law 46.

• 46.2 Garages (enclosed carspaces) may be used for the parking of motor vehicles and for storage of household furniture and belongings.

• 46.3 An Owner or Occupier having the exclusive use of a carspace or garage:

(a) must ensure that any motor vehicle parked on the car space or in the garage is in sound mechanical condition; > > (b) may not, without the consent of the PBC Committee, use the car space or garage for the parking of caravans, campervans, mobile homes boats or trailers; and > > (c) may not without the consent of the PBC Committee, enclose a carspace or install any improvements on the carspace or in the garage unless permitted under By-Law 48.

• [41] The scheme's CMS provides the following definition for vehicle:[7]

'Vehicle' includes but is not limited to all types of automobiles, motorcycles, scooters, trucks, bicycles, boats, trailers, caravans, camper vans, mobile homes, golf buggies, segways, skateboards, rollerblades or any other equivalent means of transportation.

• [42] The applicant challenges the validity of By-law 46.1(a) saying it is oppressive and unreasonable. The question for me to consider is whether subclause (a) contravenes section 180(7) of the Act. If I am satisfied subclause (a) is, having regard to the interests of all owners and occupiers of lots included in the scheme and the use of the common property for the scheme, oppressive or unreasonable, I may make an order requiring the body corporate to lodge a request to record a new CMS to remove subclause (a) of By-law 46.1.[8]

Considering whether a by-law is oppressive or unreasonable

• [43] The meanings of the words 'oppressive' and 'unreasonable' were considered in the case of Crystal Waters Permaculture Village & Ors v Boyle.[9] Member Roney QC noted that the words should be given their ordinary meaning.[10] Accordingly, a by-law may be found to be oppressive if it is an "unjustly harsh or burdensome in exercise of power". And, a by-law may be found to be unreasonable if it is "not endowed with reason, not guided by reasonable good sense, not agreeable to, based on or in accordance with reason or sound judgment, exceeds the bounds of reason, or is immoderate, capricious or exorbitant".[11]
• [44] It is also important to note that context is an essential component in determining whether a by-law is oppressive or unreasonable. That is, in considering the issue, the adjudicator must take into account the facts and circumstances of the particular scheme.

• [45] Pinnacle Portside is a residential high-rise building comprised of 162 lots with allocated exclusive use parking and storage in the basement of the scheme. The scheme's CMS records there are 182 parking bays including 147 bays which measure 5.4 metres in length (single bays) and 35 bays which measure 10.8 metres in length (tandem bays). Schedule E of the scheme's CMS lists the exclusive use parking bays allocated to each lot. The applicant's lot has been allocated a tandem parking bay.[12]
• [46] I note a by-law should be interpreted by giving the words which are used in the by-law their plain meaning.[13] In my view, the words used in subclause (a) of By-law 46.1 clearly provide that only one motor vehicle is permitted per parking bay. The by-law does not recognise there are different size bays at the scheme some of which are large enough to accommodate more than one motor vehicle. In addition, the by-law draws no distinction between different types of motor vehicles. The body corporate acknowledges in its submission that the definition of motor vehicle would include small vehicles such as motorcycles, motorised scooters, electric bikes and similar conveyances, of which more than one could fit into a parking bay.
• [47] I have carefully considered the reasons the body corporate has provided for why it considers By-law 46.1(a) is necessary to regulate the parking at the scheme and the applicant's rebuttal of those points. I have set these out below in turn.

• [48] The body corporate argues that By-law 46.1(a) is designed to maintain unobstructed accessways in the scheme's carpark and minimise the risk of blocked access for vehicles in the event of an emergency evacuation. It refers to the case of Vardon Point Apartments_[14]_ and says the adjudicator in that case found that preventing storage of additional items (including bicycles) in parking bays would be justified if legitimate evidence was provided which showed such storage threatened safe evacuation.
• [49] The applicant counters that the restriction to a single vehicle per parking bay does not impact emergency evacuation. He says provided the vehicles are within the lines of the parking bay and not encroaching onto common property, this concern about additional vehicles causing an obstruction during evacuation is unfounded. He says the fire risk associated with two small cars and a motorcycle is no different than one posed by two large vehicles.
• [50] I have reviewed the decision in Vardon Point Apartments and note the adjudicator found the following:

Claims are also made regarding fire safety. However the undocumented recollections of a passing comment alleged to have been made during a fire safety inspection many years ago is an entirely inadequate basis to assert that it is unsafe to keep bicycles in a basement carpark. The application of building fire regulations is beyond the scope of this Office and the Committee should contact the Queensland Fire Service if they have genuine concerns in this regard. However I have perused the regulations. There are a range of provisions keeping fire evacuation routes free from obstruction. However, in the absence of any information to the contrary from the Committee, I have difficulty with the suggestion that keeping a bicycle in a car space would obstruct an evacuation route. I would assume that the car spaces themselves could not be part of the evacuation route and if they were, surely parking a car in the car space would present a much greater obstruction to a person fleeing a fire than a bicycle.

If a particular bicycle was being kept in a manner that could cause a nuisance or a hazard, the Committee could have addressed the issue by virtue of section 167 of the Act rather than seeking a blanket ban on any bicycles or requiring all bicycles not in storage spaces to be in a bike rack.

• [51] Ultimately, the adjudicator was not satisfied the committee has been able to substantiate any justifiable basis as to why bicycles could adversely affect any other owner or occupier if they were kept in exclusive use car spaces. I do not consider that the case of Vardon Point supports the body corporate's submissions in relation to additional vehicles being parked in parking bays posing a genuine concern about safety and fire risks.
• [52] In any event, the body corporate has provided no evidence that allowing more than one vehicle to be parked in a parking bay at Pinnacle Portside would lead to obstructed accessways or cause problems with emergency evacuations. I have carefully reviewed the photographs the applicant has provided of the three motor vehicles he has parked in his tandem parking bay and the vehicles are well within the lines of the bay and are not encroaching either on the common property accessway or the adjacent parking bays.
• [53] As the adjudicator indicated in Vardon Point Apartments, the parking bays themselves are unlikely to be part of the evacuation route. So, provided any vehicles parked in a parking bay were fully within the confines of the bay, then the number of vehicles parked in a bay would not affect the evacuation routes.
• [54] I further note the body corporate has acknowledged it takes a 'practical approach' to implementing By-law 46.1(a) and I understand it allows owners or occupiers with tandem parking bays to park two motor vehicles in those spaces. This may be a perfectly sensible and appropriate approach for the committee to take but it is at odds with the wording of the by-law. If properly applied, the body corporate has no discretion to make compromises in appropriate cases, even where there is no impact on safety or emergency evacuation. This gives weight to the argument that By-law 46.1(a) is oppressive and unreasonable.

• [55] The body corporate argues that permitting only one motor vehicle per parking bay is necessary to prevent encroachment on the accessway and adjacent parking bays in the scheme carpark. It argues that attempting to park motorcycles and scooters next to a motor vehicle in a parking bay will affect the ability of other users of the carpark from being able to safely manoeuvrer cars in and out of parking bays and hinder users from opening car doors.
• [56] The body corporate refers to the case of Petrie Mansions[15] and says this decision highlights that restrictive by-laws may be reasonable where there is evidence of actual or likely inconvenience or hazards to other users and that a by-law must be supported by complaints or examples of practical difficulties. It says it has provided evidence of complaints and photographs of encroachments in the scheme carpark over the past 12 months. It says this demonstrates the manoeuvrability and spatial limitations of the scheme carpark which make parking in the designated boundaries of the parking bays difficult.
• [57] The applicant says it was actually him who sent these photographs of the encroachments to the committee. He explains he was attempting to highlight that some vehicles exceeded the dimensions for their allotted bays while his two small vehicles as well as his motorcycle all fitted within his allocated bay and were not encroaching on the accessway or other parking bays. The applicant says that instead of addressing this fairly, the committee dismissed this as an issue and focussed its enforcement efforts on him when his three motor vehicles all fit within his parking bay. He says this shows the by-law is being used as a tool for targeted action rather than legitimate parking management.
• [58] I have carefully reviewed the photographs the body corporate has provided of encroachments. Five of the photographs show very large vehicles parked in single parking bays but, due to the size of the vehicles, they do not fit in the allocated space and are encroaching on the accessway. The remainder of the photographs show two motor vehicles parked in tandem parking bays, (which the body corporate acknowledges it allows), but the size of the two vehicles mean they do not fit in the allocated space. I note that none of the images provided were of the applicant's parking bay.
• [59] I accept that the carpark at Pinnacle Portside has space limitations and the accessways in and out of the carpark are narrow. However, the body corporate has provided no evidence of any complaints about the applicant having encroached on the accessway or adjacent parking bays by parking three motor vehicles in his allocated parking bay. There is no evidence in the materials before me that this is a genuine issue at the scheme.

• [60] The body corporate argues that By-law 46.1(a) is necessary to prevent unreasonable interference with other users of the carpark. It says the by-law is a targeted and proportionate regulation to prevent vehicles from encroaching on other parking bays. It refers to the case of Tea Trees[16] and says this case upholds the principle that preventative by-laws are justified to avert nuisance and interference but should not go beyond what is necessary.
• [61] The body corporate, (referring to Vardon Point Apartments and Petrie Mansions), further argues that adjudicators have previously only required reasonable evidence to justify maintaining restrictions. It says this might include a history of complaints, safety reports or incidental data.
• [62] The applicant reiterates that his two cars and motorcycle all fit fully within the boundary of his exclusive use parking bay. He says accordingly, there is no nuisance or interference caused to other users. He says this shows By-law 46.1(a) goes beyond what is necessary to manage the carparking at the scheme. He says the safe and orderly use of the carpark can be maintained while allowing more than one motor vehicle per bay, provided no part of any vehicle protrudes over the lines or encroaches on other areas.
• [63] From the materials before me, I am not satisfied that By-law 46.1(a) is necessary to prevent nuisance or unreasonable interference with other users. The body corporate has provided no evidence to show that the applicant's three vehicles being parked in his parking bay have caused a nuisance or unreasonable interference by encroaching into the accessway or an adjoining parking bay. The photographs the applicant has provided of his parking bay clearly shows that his three motor vehicles can be parked well within the confines of his allocated bay.

• [64] The body corporate says By-law 46.1(a) is not ambiguous. It says vehicle is defined in By-law 2.1(t) and any vehicle with a motor is a 'motor vehicle'. It says this includes cars, motorcycles, motorised scooters, electric bikes and other similar conveyances.
• [65] As I set out at paragraph [47] above, I agree with the body corporate that the meaning of motor vehicle appears to be clear. However, I believe the point the applicant was making in this regard is that this means By-law 46.1(a) only allows one motorised scooter, or one electric bike per parking bay. This is despite the bays easily being able to accommodate more than one of these vehicles without encroaching on either the accessway or adjacent parking bays. This seems arbitrary and no reasonable explanation has been put forward which justifies this restriction.
• [66] I reiterate that even the committee acknowledges that the tandem parking bays at the scheme can accommodate more than one motor vehicle and it allows users to park two vehicles in these spaces. This demonstrates that By-law 46.1(a) does not provide sufficient flexibility to appropriately regulate the use of parking bays at this scheme.

• [67] Having taken all the materials into account, I am satisfied that, in the context of this particular scheme, By-law 46.1(a) is oppressive (unjustly harsh) and unreasonable (not endowed with reason) in contravention of section 180(7) of the Act.
• [68] Accordingly, I have declared that By-law 46.1(a) of the By-laws for Pinnacle Portside is invalid for being oppressive and unreasonable. I have ordered that, within 60 days of this order, the body corporate must lodge a request to record a new CMS to remove subclause (a) of By-law 46.1.

[1] The full wording of By-law 46.1(a) is set out at paragraph [41] below.

[3] Conciliation certificate issued 8 January 2025

[4] Section 248(3)(e) of the Act

[5] Section 276(1)(a) and (b) of the Act

[6] Executed on 13 September 2023 (dealing number: 722752376)

[9] [2020] QCATA 80 (Crystal Waters)

[10] See Crystal Waters at paragraph [72] citing the case of River City Apartments CTS 31622 v McGarvey [2012] QCATA 47 with approval

[11] See Crystal Waters at paragraphs [68] to [72]

[12] Car park allocation is 'PT 1', see Schedule E of the scheme's CMS

[13] See Lake View Park [2005] QBCCMmr 476

[14] [2010] QBCCMCmr 529

[15] [2010] QBCCMCmr 186

[16] [2007] QBCCMCmr 60 at paragraphs [107]-[108]