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

COMMITTEE MOTION - whether decision by committee to authorise the owner of a lot to park on a part of common property for a temporary but indefinite period (Parking Decision) was a decision on a restricted issue; REASONABLENESS - whether committee acted reasonably in making the Parking Decision.

Act, s 100; Accommodation Module, ss 44, 50(6)

• [1] This application is about committee decisions to authorise the owner of Lot 1 to park a vehicle temporarily, but with no set end period, on part of the common property (Parking Decision). The applicant - the owner of another lot in the scheme - says the committee originally decided to permit the Lot 1 owner to park in a visitor car space in breach of council regulations. She wrote to the committee suggesting the Parking Decision resulted in the loss of a visitor carpark and was a decision that must be made at a general meeting. The applicant is seeking an order that the body corporate not permit the owner of Lot 1 to park on unallocated common property.
• [2] Submissions from the committee and the owner of Lot 1 describe several underlying issues relating to parking for Lot 1. The lot was formerly occupied by the onsite manager and, unlike the other lots in the scheme, the CMS does not include an allocation of common property to be used for parking exclusively by the occupiers of Lot 1. Instead, it appears there was a carport - apparently within the boundaries of Lot 1 - for parking. At some point, likely in or around 2008 and with council approval, the carport was converted to a garage (Garage).
• [3] When the management rights agreement expired in 2011, Lot 1 became wholly residential and was purchased by its current owner. The owner of Lot 1 says that the Garage has always been too small for parking a car. In 2013, the committee authorised occupiers of Lot 1 to improve an area of scheme land for the purposes of parking 2 cars. Also relevant is that, at the time of purchase, telecommunications infrastructure servicing the body corporate was located in the Garage. Since then, additional infrastructure (NBN) has been added to the Garage, significantly restricting the useable space and creating privacy issues for Lot 1.
• [4] The committee says it made the Parking Decision as a temporary measure while it tries to address some of the issues raised by Lot 1. The committee says it acted reasonably in making the Parking Decision. It subsequently provided an update that it had decided temporary parking arrangement would cease as of Wednesday 28 May 2025.

• [5] Portmeirion Village community titles scheme 6858 (Portmeirion Village) was established in 1988 with the registration of Building Units Plan 8434, which is a building format plan of subdivision. It consists of 61 lots and common property. The current community management statement (CMS), registered in October 2020, shows the Accommodation Module applies.
• [6] The applicant is the owner of Lot 28.
• [7] The respondent is the Body Corporate for Portmeirion Village.
• [8] The parties initially participated in conciliation but were unable to completely resolve the dispute. When the applicant made this application for final orders, the Commissioner invited the respondent and all owners (excluding the applicant) to make a submission on the application. The owner of Lot 1, the committee on behalf of the respondent, and the owners of 4 other lots made submissions. The applicant inspected the submissions and provided a reply. The Commissioner made a dispute resolution recommendation to refer the application to department adjudication.
• [9] As an adjudicator, I have jurisdiction and power to make a range of orders to resolve disputes about the exercise of rights or powers, performance of duties under, or a claimed contravention of, the Act or the CMS.[1] This dispute includes allegations about owner rights and that the body corporate has contravened the Act and CMS. I am satisfied this dispute falls within the dispute resolution provisions of the Act.[2] I investigated the dispute, including by reviewing the application, the submissions, the reply, the survey plan, and the CMS. Pursuant to my powers of investigation, I also sought further information from the committee.

• [10] The applicant says Lot 1 has the small Garage but no "on-title" car park. She says in February 2024, the committee resolved to authorise the owner of Lot 1 to park a vehicle in an adjacent visitor car parking space. She was unaware of the committee's decision until a "Reserved Parking Unit 1 Only" sign was installed in the parking space.
• [11] The applicant says she wrote twice to the committee regarding her concerns. In one email she commented that:
  1. the committee was discussing parking with the owner of Lot 1 but not with all owners
  2. the owners of Lot 1 had purchased the lot with only the Garage for parking but in 2013, claiming it was too small, had obtained committee approval to instead convert (at their own expense) an exclusive use area (EUA Courtyard) for parking 2 cars
  3. in 2023, the owners of Lot 1 obtained approval for and undertook works to widen the entry to the EUA Courtyard to better enable parking
  4. despite suggesting parking in the EUA Courtyard was compromised by an energy station (Transformer), the owners of Lot 1 sought and received approval to install a shed (larger than the Transformer) in their EUA Courtyard, and
  5. in the applicant's view, Lot 1's issue with the body corporate infrastructure in the Garage is a smokescreen and not related to parking.
• [12] The applicant says she was not satisfied with the committee's replies because they did not address the issues she had raised. She says the committee then voted a second time to approve Lot 1's use of a visitor parking space. Thereafter, the applicant says she contacted the relevant council department about compliance with the visitor parking conditions of the development approval (DA) for the scheme and was told council would investigate.
• [13] To try and resolve the dispute with the body corporate, the applicant filed an application for and participated in a conciliation.
• [14] The applicant says in October 2024, a council compliance officer advised that the body corporate was in breach of council visitor parking regulations.[3] Thereafter, in November 2024, the applicant says the body corporate changed the visitor parking arrangements and made the Parking Decision to allocate the owner of Lot 1 a parking space on common property right next to the post boxes. The applicant says that the committee has not addressed her concerns. Although it has updated the body corporate about parking issues, she says it has done so in a way that identifies her, distorts what has happened, and vilifies her.
• [15] The applicant seeks an order that:

The body corporate be ordered to desist allowing Unit 1 the use of a Visitor (or any other Common Ground) car park as they are in Breach of Gold Coast City Council Development Compliance.

• [16] The owner of Lot 1, the committee, and several other lot owners made submissions responding to the application.

• [17] The owner of Lot 1 - the person with the benefit of the committee's Parking Decision - made a submission opposing the application. The submission materials suggest:

1. Lot 1 was formerly the onsite manager's lot and when used for that purpose, it included:

(i) the single Garage, which the owner of Lot 1 says was "never suitable for housing a passenger vehicle" > > (ii) certain Telstra infrastructure located in the Garage, and > > (iii) the "exclusive use of the first car space closest to the energy station" (Old Manager Parking Space).

1. At the time the current owner purchased Lot 1 in 2011, it ceased being the manager's lot and the exclusive use of the Old Manager Parking Space was revoked. 2. At some point after 2011, infrastructure for the National Broadband Network (NBN) for the scheme was added to the Garage. This has caused several issues:

(i) the infrastructure now takes up approximately 50% of the space, > > (ii) although Telstra representatives used to visit infrequently, visits from NBN technicians have increased in frequency (including 4 unannounced visits in November 2024) and cause loss of privacy and security, and > > (iii) the power required to operate both the Telstra and NBN infrastructure is charged to the energy account of Lot 1. In other words, the owners of Lot 1 have been covering those costs on behalf of all owners.

1. Regarding parking, at the time of purchase, revocation of the Manager Parking Space left no parking available to the new owners (or future owners) of Lot 1. The owners consulted with the committee about parking, and it was agreed that occupiers of Lot 1 could park their vehicles in Lot 1's EUA Courtyard. 2. However, there are now two issues with the EUA Courtyard parking arrangement:

(i) the Transformer hinders the use of the EUA Courtyard for parking making it only accessible for small to medium size vehicles, and the opening to the area cannot be expanded without relocating the Transformer, which the owner of Lot 1 recognises would involve significant cost to the body corporate, and > > (ii) parking in the EUA Courtyard over the years has caused movement in the paving, which the owners of Lot 1 have rectified at their own expense, yet other owners are not required to maintain the structure of their designated vehicle spaces.

• [18] The owner of Lot 1 says she understands moving the NBN equipment from her Garage would be a financial burden on the body corporate. She is committed to working with the body corporate to find a solution that would not impose a financial burden on owners, however, she requires appropriate space to park her vehicles while solutions are being found. She believes the committee's Parking Decision and temporary allocation of a parking space has no impact on the applicant or any other lot owner. She says she is prepared to relinquish use of that parking space once the NBN infrastructure is relocated, and appropriate adjustments are made to enable access and vehicle parking in the EUA Courtyard.

• [19] The committee made a submission on behalf of the respondent. For this complex issue, it says it has acted reasonably, fairly and professionally on behalf of all owners to find the best possible solution that is compliant with body corporate and council regulations, and with minimal financial impact. It says generally that:
  1. it has the authority to make the Parking Decision to give the committee time to investigate options to resolve the issues
  2. it has restored visitor parking spaces (8) necessary to comply with council requirements
  3. it does not understand how the applicant is disadvantaged by the Parking Decision
  4. it has spent significant amounts of time in trying to resolve this dispute with the applicant, and the body corporate has incurred additional expenses
  5. it communicates regularly with owners, and
  6. there has been misinformation and confusion surrounding the complex dispute, which has resulted in considerable additional work for the committee.
• [20] The committee describes the Garage as the "on-title carpark" for Lot 1. It notes that, the owners of Lot 1 made demands regarding the body corporate's Telstra and NBN infrastructure in that area. The committee and the owners came to a practical agreement about the infrastructure and the committee also agreed to allow the owner of Lot 1 to park temporarily in a visitor car park while the committee investigated options. One potential option was the possibility of Lot 1 using an exclusive use area adjacent to the lot for parking.[4]
• [21] During the committee's investigations, the applicant raised issues with the temporary parking arrangement. The committee says the applicant rejected its repeated efforts to resolve the dispute and she lodged a complaint with the council. It provides a summary of its efforts at self-resolution of the dispute, including noting its participation in a 3-hour conciliation session.[5]
• [22] The committee says the matters raised by the applicant and her issues have diverted valuable time and have hindered its ability to address the issue with the NBN infrastructure in the Garage. It says it is complying with all relevant authorities, is trying to arrive at a resolution that benefits the balance of owners and is communicating factual updates to the body corporate. It rejects assertions by the applicant that it is scapegoating her and asks that the applicant cease the actions that are disrupting this process.
• [23] Regarding the outcomes sought by the applicant, the committee says:
  1. it has restored the visitor car parks to comply with council regulations
  2. it sought advice from its body corporate manager (BCM) and a lawyer about making the Parking Decision and understands By-law 4 in its CMS permits the body corporate to make rules relating to the common property
  3. the area of common property allocated temporarily to Lot 1 (next to the post boxes) is not currently used and does not offer significant benefit to the community
  4. its objective is to resolve the issue with the NBN for the benefit of owners, and
  5. in terms of council requirements, the body corporate has engaged a town planner to advise and assist it in investigating its options, one of which is re-instating the Garage for parking for Lot 1.

• [24] One owner supports the application and does not see any reason why Lot 1 should have a preferential parking space, especially where one parking space has been "lost" to the new manager. He says other occupiers have to park their second vehicle on the street, and Lot 1 should not get special treatment when they have ample vehicle parking.
• [25] The owners of another lot also support the application and say:
  1. Lot 1 was originally purchased in 2011 with the Telstra equipment in the Garage.
  2. In 2013, Lot 1 applied to convert the EUA Courtyard to 2 car spaces.
  3. Lot 1 has been successfully parking 2 large vehicles in that exclusive use double car space for more than 8 years.
  4. The Garage is now also housing some NBN equipment. When the owner of Lot 1 raised issues with technicians accessing the equipment, the committee agreed to install a separate entry. This is not a car parking issue.
  5. Given Lot 1 already has 2 approved car spaces, the owners do not support allocation of a third car parking space for that lot.
• [26] The owners of another lot consider the root cause of the dispute is the size of the Garage associated with Lot 1. They note that the Garage has not changed in size since the lot was purchased by its current owner. The fact it is now claimed that the Garage is not big enough to house a vehicle is not the other lot owners' problem. The owners also explain that historical decisions were made to locate infrastructure in the Garage. They consider there is some "noise" in this dispute surrounding irrelevant factors including Lot 1 already having 2 carparks, Lot 1's claims for 6 years' compensation relating to the body corporate's use of the Garage for the infrastructure, and the committee permitting temporary use of the visitor carpark.
• [27] These owners propose an alternative solution, namely that the body corporate:
  1. remove and relocate at body corporate expense all telecommunications/NBN equipment from the Garage,[6] which will solve any issues of external contractors requiring access to the garage and restore its exclusive use to Lot 1, and
  2. remove the temporary allocation of a further car parking space to Unit 1.
• [28] Another owner, who serves as the secretary, also made a submission. It is directed towards the applicant's assertions about the conciliation rather than the substantive issues in dispute.

• [29] In response to the submissions, the applicant says the committee originally illegally allocated a designated visitor carpark to Lot 1. She initiated a referral to the council who investigated and confirmed this was in breach of visitor parking requirements.
• [30] The committee then made the Parking Decision allocating the temporary parking space, which she says is within 1 metre of the post boxes and large parcel storage. The applicant is concerned by statements from the committee that it is contemplating the possibility of the temporary space as a permanent option. She says the Parking Decision area of the common property offers significant benefits, has been used for visitor parking for more than 22 years, and to allocate it permanently to Lot 1 would inconvenience all occupiers and visitors. The applicant notes that there is discontent at the scheme with the loss of parking and car washing spaces, including another area of common property allocated to the new manager for parking.

• [31] The order sought by the applicant relates to the committee's Parking Decision which permitted the owner of Lot 1 to use an area of common property for parking "temporarily" while solutions were investigated for other issues relating to Lot 1's Garage. The threshold question is whether the committee had the power to make the Parking Decision on behalf of the body corporate. If it did, the next question is whether it acted reasonably in making that decision.

• [32] For context and information, I will first describe some of the relevant legal principles, aspects of the scheme land, and parts of the Portmeirion Village CMS.

• [33] For a basic community titles scheme registered under the Act, the scheme land includes lots (which are registered on separate titles) and the common property.[7] The common property is owned by the owners of the lots, as tenants in common.[8]
• [34] A body corporate can decide to allocate a right to exclusively use and enjoy a designated part of its common property (EU Area) to the occupier(s) of a particular lot. This is done by way of an exclusive use by-law, which attaches to a lot in the scheme and is recorded in the scheme's CMS.[9] The EU Area itself, however, remains part of the common property.
• [35] Among other things, an exclusive use by-law may include conditions for use, impose obligations relating to maintenance costs, and may authorise the relevant lot owner to make stated improvements.[10] The owner of the lot benefiting from a new grant of exclusive use must consent to the by-law.[11] Before registering the exclusive use by-law in the CMS, the registrar for the Titles Office may require that the subject common property be identified in a plan.[12]
• [36] The Land Titles Act 1994 (LTA) may also impact the use of scheme land. Potentially relevant to some of the underlying issues presented here, the LTA includes certain utility infrastructure easements for lots included in, and common property for, a community titles scheme.[13]

• [37] Common property that is not the subject of an exclusive use by-law is often described as "unallocated" common property. Owners and occupiers have certain rights to occupy and use such common property.[14] However, occupiers must not use the common property (or a lot) in a way that causes a nuisance or interferes unreasonably with the use and enjoyment by a person who is lawfully on that common property.[15]
• [38] For its part, the body corporate's functions include administering the common property and enforcing the CMS.[16] It is given powers to discharge these functions, including the power to make by-laws imposing conditions upon the use and enjoyment of the common property.[17] The body corporate must act reasonably in making decisions,[18] including when it makes decisions about the management and regulation of common property. When the committee is making a decision on behalf of the body corporate, it is also obligated to act reasonably.[19]
• [39] The committee is permitted to make some, but not all, decisions on behalf of the body corporate. For example, decisions about certain issues are considered "restricted issues" for the committee.[20] Categories of restricted issues for the committee are set out in Section 44 of the Accommodation Module. Committees must not decide motions if a decision would be on a restricted issue. Decisions made by a committee on restricted issues are not considered decisions of the body corporate.[21] In addition, a committee must not decide a motion if the decision would conflict with the Act, the applicable regulation, or the scheme's by-laws.[22]

• [40] Bodies corporate can have various arrangements for parking on scheme land. For example, a parking space may be included as part of the lot itself (On-Title Parking), or the occupiers of a lot may be allocated the right to exclusively use a specified part of common property for parking (EUA Parking). EUA Parking allocations are included as an exclusive use by-law in the CMS. EUA Parking allocations will also often be identified in the CMS on a plan diagram showing the location of, and in some cases the dimensions, of the subject common property.
  • [41] A body corporate may also resolve at a general meeting to pass a variety of by-laws, including ones that regulate parking on areas of unallocated common property. Such by-laws can, for example, designate particular areas of common property to be used only for parking by bona fide visitors to the scheme. A by-law may also expressly preclude parking on unallocated common property unless the body corporate has given its written permission to do so. For example, the default by-laws contained in Schedule 4 of the Act include such a by-law giving a body corporate the discretion to approve parking by occupiers on unallocated common property for a stated period of time.[23]
  • [42] Council regulations may also be relevant to parking arrangements on scheme land. As part of a development approval (DA) for building, it is common for the local council to mandate minimum parking requirements. As part of a DA, council may mandate a minimum number of occupier parking spaces, and a minimum number of parking spaces to be made available to visitors. A DA will not necessarily specify where those spaces must be located.

• [43] In terms of the existing parking arrangements at the scheme, the CMS shows that each lot -except for Lot 1 - has been allocated an EU Area of common property for parking.[24]
• [44] The CMS for the scheme includes a by-law about parking that provides:

(a) The Occupiers of a Lot must park their vehicles within the garage in the exclusive use space designated to their Lot;

(b) Only temporary visitors and guests are permitted to park in the spaces marked "Visitors" on the Common Property;

(c) Vehicles must not be parked in the spaces marked "manager" or "car wash"

• [45] As discussed below, the Portmeirion Village CMS also contains two other by-laws that are potentially relevant to parking. Specifically, By-law 4, which authorises the body corporate to make rules about common property, and By-law 23, about obstruction of common property.
• [46] The committee says the Garage is part of Lot 1 as an "on-title" car space for that lot, i.e., the Garage is within the lot boundaries. Council shares that view.[25] Although the owner of Lot 1 takes the view that the Garage has always been too small for parking a vehicle, comments from the committee suggest that council considers the Garage is sufficient to meet council requirements for the supply of parking for Lot 1. I am satisfied all parties agree that the Garage cannot currently be used for vehicle parking due to the NBN infrastructure.
• [47] Since at least 2013, the occupiers of Lot 1 have parked 2 vehicles in what is described as Lot 1's EUA Courtyard. Although there appears to be a consensus view that a former committee approved the arrangement, any such approval it is not reflected in the current CMS.[26]

• [48] The committee says the Parking Decision is a temporary measure while the committee investigates a solution to the location of body corporate NBN infrastructure in the Lot 1 Garage. The first question to be determined is whether the committee is permitted to make the Parking Decision. If so, the second question is whether it acted reasonably when it made the decision.

• [49] Committees are not permitted to make decisions on behalf of the body corporate about restricted issues, including decisions "changing rights, privileges, or obligations of the owners of lots."[27] Further, committees must not make decisions on motions if the decision would conflict with the Act or Accommodation Module or by-laws.[28]
• [50] I wrote to the committee and asked whether it considered the Parking Decision was a decision it could make. The committee responded that it understood it was permitted to do so.
• [51] Firstly, on the question of restricted issues, the committee refers me to sections 42 and 43A of the Accommodation Module. Based on the excerpts provided, the committee is relying on a prior version of the Accommodation Module.[29] Section 44 is the section currently in force and it provides that a decision that changes the rights, privileges or obligations of owners is a decision about a restricted issue for the committee.[30]
• [52] The committee says it does not consider the Parking Decision is about a restricted issue because there was no change to the CMS or to exclusive use allocations of common property. However, simply because there are no changes to the CMS does not automatically mean the decision was not about a restricted issue. I consider the question is whether the decision has the purpose and/or effect of materially changing owner privileges or rights.
• [53] In this scheme, By-law 10 only permits owner occupiers to park in their respective garages. Where it is understood the owner of Lot 1 already has permission to park 2 vehicles in an EUA Courtyard, I can appreciate why the Parking Decision may be viewed as effectively affording the owner of Lot 1 a privilege that is not enjoyed by other owners. Nevertheless, I consider the purpose of the Parking Decision is to temporarily compensate (rather than grant a privilege to) the owner of Lot 1 for the loss of amenity of part of her lot (the Garage) from the NBN infrastructure located therein. As such, in my view, the Parking Decision was not a decision made by the committee on a restricted issue.
• [54] Secondly, the committee says the Parking Decision is not inconsistent with By-law 10, because the committee has properly allowed the owner of Lot 1 to park temporarily on unallocated common property. By-law 10 provides that occupiers of lots "must park" within "the garage in the exclusive use space designated to their lot" (emphasis added). Where the occupier of Lot 1 does not have the benefit of an exclusive use garage (but an On-Title Parking garage), I agree that it is not inconsistent to authorise parking on unallocated common property.
• [55] The committee also says that the Parking Decision is not inconsistent with By-law 23, which provides that an occupier of a lot shall not obstruct the lawful use of the common property by someone else. Where the body corporate is obligated to administer, manage, and control the common property, and the Parking Decision can be revoked at any time by the committee, I do not consider the decision to be necessarily inconsistent with the by-law.[31]
• [56] Thirdly, the committee suggests it could make the Parking Decision pursuant to By-law 4, which gives the body corporate a general discretion to make rules relating to the common property provided such rules are not inconsistent with the by-laws. The committee views the Parking Decision as a rule it made pursuant to By-law 4.
• [57] It is not uncommon for a specific by-law to provide, as By-law 4 does, that bodies corporate may make rules or policies about the use of common property (often known as "house rules"). Although adjudicators accept that a by-law can validly permit a committee to make rules, such rules are not themselves by-laws because they have not been approved at a general meeting by the required resolution. Hence, rules cannot be enforced in the same way as a by-law.[32]
• [58] In any event, I do not think the committee needs to rely on By-law 4. I consider that the body corporate's obligations to administer, manage, and control the common property, means it necessarily has an inherent power to make decisions to discharge those obligations, subject of course to the decisions being made in accordance with the legislation and the CMS.

• [59] When a committee is making a decision on behalf of the body corporate, it must act reasonably. To do so, a committee must consider factors that, in the context of the scheme and in the particular circumstances, are relevant to its decision. On-site parking is a scarce resource in many schemes, and it appears that Portmeirion Village is no exception. Although I accept the committee was acting in good faith, I am satisfied that there were several relevant factors it did not adequately consider or perhaps misunderstood.
• [60] Firstly, I am persuaded that, when it decided to offer a parking space (even temporarily) on common property to the owner of Lot 1 to compensate for material obstruction in the Garage, the committee did not fully consider whether a temporary parking space on common property was appropriate in the circumstances. It did not consider that the owner of Lot 1 had not parked in the Garage since at least 2013 and always viewed it as too small for parking regardless of the infrastructure. Nor that the body corporate had approved modifications to the Garage in response to the owner's privacy concerns relating to the NBN infrastructure.
• [61] Secondly, I am satisfied the committee failed to adequately consider that: owners understood that Lot 1 had been authorised (circa 2013) to improve (at their own expense) an EUA Courtyard for parking 2 cars, the owners of Lot 1 had been parking 2 cars in that area since that time, and that the committee had approved modifications Lot 1 to widen the entry to the area. There is no indication that the committee considered whether the owner of Lot 1 could continue to park in the EUA Courtyard (as it had done for more than a decade) as a temporary measure while the committee investigated options for providing at least one car space for Lot 1 on scheme land to satisfy council regulations.
• [62] Thirdly, although the committee considered and ensured council requirements for visitor parking were met, I am satisfied that it did not adequately consider that its reallocation of parking spaces and the Parking Decision had the effect of reducing the overall number of visitor spaces/car washing spaces that had previously been available at the scheme. In my view, this was a relevant factor that a committee acting reasonably was obliged to consider.
• [63] For more than 25 years, the body corporate had visitor parking spaces in excess of the number required by council. The committee explains it changed the designation of one such area (part of the former V1) from visitor parking to unallocated common property and then, via the Parking Decision made that area available for use by Lot 1. The Parking Decision thus had the effect of reducing what was previously allocated for visitor parking by one space for an indefinite period. I am persuaded by the committee's own comments that, when making the Parking Decision, it did not adequately consider the overall reduction in visitor parking.
• [64] Finally, I consider the period for which the Parking Decision would apply was a relevant factor for a committee acting reasonably to consider. Where there is no evidence in the minutes or in the committee's submission that it considered this factor, I am persuaded it did not adequately consider the time period or whether it should set a specific end date for its Parking Decision.

• [65] Even where I am satisfied a committee has failed to act reasonably in making decisions, I must also separately consider whether it is just and equitable to make the order sought.
• [66] In this case, I was not prepared to make the order sought because such an order would place undue restrictions on the body corporate's capacity to manage its own common property. However, I was originally satisfied it would be just and equitable, and I was prepared to make an order, that the committee reconsider the Parking Decision.
• [67] Shortly before I was about to issue the order, the committee wrote to advise that it had made new decisions about the NBN infrastructure in the Garage and, as a result, it had decided the Parking Decision would cease to have effect as of 28 May 2025. The committee has represented, and I accept, that it has notified all owners, including the applicant, of its new decisions. The committee is, of course, obligated to put its new decision ending the temporary permission for Lot 1 to park on unallocated common property into effect.
• [68] With the committee's Parking Decision now ceasing to have effect, I now consider the dispute has been resolved and that orders are unwarranted and unnecessary.

• [69] I have dismissed the application for the reasons given above.
• [70] Even though I have dismissed the application, I consider the analysis above may be of some utility to the parties and have decided to issue the above reasons in full.
• [71] I note that there were multiple issues underlying the committee's Parking Decision. The committee notes it has spent considerable time investigating the underlying issues and suggests its efforts have been impeded by the dispute with the applicant and her questions to council. Where the committee was actively seeking to address those issues, it made the Parking Decision believing it to be a fair, reasonable, and practical interim measure. There was no suggestion that the decision was made in bad faith.
• [72] However, the applicant is entitled to question whether decisions about common property are being made in accordance with the legislation, council regulations, and by-laws. Other owners echoed the concerns in their submissions. Although the committee may have preferred the applicant to engage with it more directly, the applicant wrote to the committee setting out her concerns and participated in conciliation to try and resolve the dispute. Moreover, I do not agree with the committee's implied suggestions that the reductions in available visitor parking or spaces for car washing are attributable to the applicant's queries to council. The body corporate was always required to comply with council requirements, regardless of the applicant's queries.
• [73] Finally, the submissions suggest that there are other issues about the existing parking arrangements at the scheme that were beyond the scope of this application. For example:
  1. There were questions raised about prior arrangements for parking by Lot 1 on an area of scheme land that owners understood to be an EU Courtyard for that lot, and it is unclear whether such arrangements have been properly authorised. Although I did not need to decide those questions for the purposes of this application, I note that the current CMS shows no allocation of an EU Area to Lot 1 for parking; and
  2. Schedule E of the CMS shows that Lot 1 has only been allocated two courtyard EU Areas (labelled as 1a and 1b on Sketch Plan B). In my investigations, I drew the committee's attention to the fact that curiously, Sketch Plan B in the CMS includes two areas adjacent to Lot 1 labelled as 1c and 1d even though no such areas are referenced in the Schedule E table of allocations. I note also that the 1c and 1d areas were not in the 2009 CMS but appeared in the CMS in 2012. Further, the body corporate made at least 3 requests to register a new CMS in 2012, at least one of which was rejected.[33]
• [74] Notwithstanding that the Parking Decision and council visitor parking requirements appear to have been resolved, the body corporate and the owner of Lot 1 may wish to carefully review the current CMS, including the exclusive use allocations and associated exclusive use by-laws. The body corporate may also wish to consider more generally the wording of its parking-related by-laws.

[1] See id. at Section 276(1) of the Act

[2] See Sections 227 and 229 of the Act

[3] The applicant also refers to a motion relating to use of owners' exclusive use garage spaces considered by the body corporate at its recent annual general meeting (AGM) held in October 2024. I am satisfied by the response to my investigation that the motion is not related to the present application.

[4] In its response to my investigations, the committee clarified that it was referring to the option of council approving the EUA Courtyard in lieu of the Garage as satisfying parking requirements for Lot 1. I understand the committee to be saying it is not currently considering the area of unallocated common property affected by the Parking Decision as a permanent option to satisfy council requirements.

[5] I note that the session was facilitated by a conciliator from the BCCM Office, not an adjudicator.

[6] The submitters also question whether the infrastructure is redundant and could be removed completely.

[10] See Sections 182 and 183 of the Accommodation Module

[13] See e.g., LTA Division 5 at Sections 115O and 115P

[16] See Section 94(1) of the Act. All community titles schemes must have a CMS, and the CMS must include by-laws. See Sections 24 and 66 of the Act. The CMS for the scheme is binding on the body corporate, each member of the body corporate, and certain others. See Section 59(2) of the Act

[17] See Section 169(1)(b) of the Act

[22] See Section 50(5) of the Accommodation Module

[23] See Schedule 4 of the Act at Vehicle By-laws 2(b) and 2(2)

[24] See Schedule E of the CMS (Dealing 720352783)

[25] I note that council's views are not determinative of whether the Garage is within the boundaries of Lot 1.

[26] For the purpose of this application, it is unnecessary for me to make findings on this issue. I have made some comments below at [74] - [75] about the current CMS and prior versions of the CMS.

[27] See Sections 44(1)(b) and 50(5)(a) of the Accommodation Module

[28] See Section 50(5) of the Accommodation Module

[29] That regulation was completely repealed and has been superseded. Section 43A of the Accommodation Module was part of the COVID-19 legislative amendments, is inapplicable, and has expired.

[30] Queensland legislation that is in force can be found at: https://www.legislation.qld.gov.au/browse/inforce

[31] Determining whether an occupier is obstructing the lawful use of common property by another is a complex and fact dependent task. See e.g., Redgums Two [2024] QBCCMCmr 451

[32] See e.g., The Grove [2018] QBCCMCmr 581 at [57] - [60]. I note that a by-law cannot purport to give a committee the power to make decisions the legislation precludes a committee from making. See Winchcombe Place [2024] QBCCMCmr 321 at [19].

[33] See Dealing 714183858 rejected on 31 January 2012; Dealing 714585696 in July 2012; and Dealing 714795907 in November 2012.