Body Corporate and Community Management Act 1997 (Qld) (Act), sections 227(1)(b) and 229(3)(a)

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

BY-LAWS - whether the respondent has contravened by-laws prohibiting occupiers' vehicles from parking in visitor parking spaces on common property.

Act, ss 59, 163A, 169, 182, 276, 284

1. I hereby order that the occupier of Lot 6 must not park their vehicle, or permit their vehicle to be parked, in any visitor parking space unless written permission is received by the body corporate.
2. If the occupier of Lot 6 parks their vehicle, or permits their vehicle to be parked, on common property in breach of by-law 2 or any approval, the Body Corporate for Sandpiper Place could resolve to engage a suitably licenced towing contractor to remove the vehicle from common property.

• [1] This application is about the respondent's vehicle being parked on common property. The body corporate objects to the respondent parking their vehicle in a visitor parking space.
• [2] The body corporate seeks the following final orders:

The tenant Abdullah Ramadan of Lot 6 to cease using the visitors' car spaces to park their vehicle(s).

Should the Adjudication application also become unresolved and/or the tenant continues to park in the visitors' carpark/common property, the Adjudicator gives permission for the Body Corporate to tow the vehicle(s).

• [3] Sandpiper Place community title scheme 19128 (Sandpiper Place) is a 23-lot scheme and common property in Labrador. The community management statement shows the Standard Module applies. The scheme is registered under group title plans 4278 and 100595.
• [4] The applicant is the body corporate for Sandpiper Place. The respondent is the occupier of Lot 6.

• [5] On 14 October 2024, the body corporate wrote a letter to the respondent notifying them that residents' vehicles, including theirs, must not be parked in visitor carparks as it breached by-laws 2.1, 2.2 and 2.3.
• [6] On 21 January 2025, the body corporate issued a notice of continuing contravention of a body corporate by-law (CCN) to the respondent in relation to breaches of by-laws 2.1, 2.2 and 2.3, requiring them to cease within 2 days. The CCN stated:

Notice was issued on 14 October 2024 White Hyundai registration YQN12L. Parking in Visitors' car park. Tenant has continued to park in the visitors' car park.

• [7] The body corporate applied for conciliation but on 19 February 2025 the matter was referred back to the Commissioner as contact could not be established with the respondent.
• [8] On 21 March 2025, the body corporate lodged the current application.

• [9] The Commissioner invited the respondent and all owners to make a submission on the application.[1] The respondent and the owner of Lot 6 made submissions. The body corporate did not elect to obtain copies of the submissions or provide a reply.[2] The Commissioner then referred the application to departmental adjudication.[3]
• [10] I have investigated the application, including reviewing the application, the submissions, the current CMS and the survey plans.[4]

• [11] The orders sought relate to a dispute between the body corporate and the respondent regarding compliance with the scheme's by-laws. As such, I am satisfied the dispute falls within the dispute resolution provisions of the legislation.[5]
• [12] 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 CMS, or about the exercise of rights, powers or performance of duties under the Act or CMS.[6] An order may require a person to act, or prohibit a person from acting in a way stated.[7] An order may contain ancillary and consequential provisions the adjudicator considers appropriate.[8]

• [13] The body corporate stated that, despite being requested to discontinue parking in the visitor carparks and common property, the respondent has continued to breach the by-laws.

• [14] On 23 April 2025, the respondent provided submissions which I have summarised as follows:
  1. There were concerns about selective enforcement as other owners and occupiers regularly used visitor parking spaces without receiving formal notices or warnings.
  2. Some visitor parking spaces were marked as being reserved for specific lots.
  3. Visitor parking spaces were directly opposite the main bedroom of Lot 6, causing vehicle headlights to shine directly into the bedroom impacting on the respondent's sleep and privacy.
  4. There had been instances where two vehicles were parked so close to the front of Lot 6's entrance that access was physically obstructed.
  5. Enforcement of the by-laws should be consistent and fair across all lots.
  6. The body corporate should address the parking layout and the proximity of carparks to the lots.
• [15] The respondent also requested no enforcement or punitive measures, such as towing, be permitted without a formal warning and confirmation of universal enforcement and that their concerns regarding selective targeting and possible discrimination be investigated.
• [16] The owner of Lot 6 provided submissions which similarly expressed concerns that other owners and occupants used visitor parking spaces for long term parking, that vehicles parked in the visitor parking space outside the main bedroom of Lot 6 caused a disturbance and were located close to the front door of the lot.
• [17] The owner of Lot 6 also expressed concerns about the body corporate's actions in relation to this application and that they may be in breach of insurance clauses. However, as stated above, to consider making orders in relation to such would require its own application.

• [18] The issue in question is whether the respondent is compliant with Sandpiper Place's by-laws prohibiting them from parking on common property.
• [19] In determining whether to grant the order sought, I will consider the applicable by-laws, whether the CCN was appropriately issued to the respondent, and whether the respondent has breached the by-laws.

• [20] The Act states that the CMS is binding upon the body corporate and each member of the body corporate, including occupiers of a lot within the scheme.[9] The Act also states a scheme's by-laws may provide for the administration, management and control of common property and body corporate assets.[10] This may include the regulation and applying conditions to the use and enjoyment of common property.
• [21] Sandpiper Place's CMS was registered on 6 September 2021. The by-laws relevant to this dispute are:
  1. Vehicles

• 2.1 Occupiers must comply with, and must ensure that, their invitees comply with, directions given by an authorised representative of the Body Corporate regarding use of visitor car parking spaces. * 2.2 The Occupier of a lot must not, without the Body Corporate's written approval:-

(a) park a vehicle, or allow a vehicle to stand; or > > (b) permit an invitee to park a vehicle, or allow a vehicle to stand,

on the common property other than as permitted under sub-section (1).

• 2.3 The Body Corporate may cancel an approval given under sub-section (2) by giving seven (7) days written notice to the Occupier.

• [22] Sections 182(1) and 182(2) of the Act combine to state that if a body corporate reasonably believes that a person who is an owner or occupier of a lot in a scheme is contravening a provision of the scheme's by-laws, and the circumstances make it likely the contravention will continue, the body corporate may issue a CCN requiring the person to remedy the contravention.
• [23] For a CCN to be valid, it must state the following:[11]
  1. that the body corporate believes the person is contravening a provision of the by-laws; and
  2. the provision the body corporate believes is being contravened; and
  3. details sufficient to identify the contravention; and
  4. the reasonable period within which the person must remedy the contravention; and
  5. that if the person does not comply with the contravention notice the body corporate may, without further notice;
     1. start proceedings in the Magistrates Court for the failure to comply with the notice; or
     2. make an application under chapter 6 for resolution of the dispute.
• [24] By-law 2.3 relates to the body corporate being required to provide an occupant with 7 days written notice before cancelling any written approval given to an occupier or their invitee to park or allow their vehicle to stand on common property. As such, it cannot be said that the respondent as an occupier has breached this by-law.
• [25] On the evidence before me, I am satisfied that the CCN was valid and appropriately provided to the respondent in relation to a reported contravention of by-laws 2.1 and 2.2.

• [26] The person issued with a valid CCN must comply with it.[12] The person will not have failed to comply with a CCN if, when it was issued to them, they were not contravening the by-law in the way detailed within the notice.[13]
• [27] By-law 2.1 requires occupiers to comply with directions given by the body corporate regarding the use of visitor parking spaces. By-law 2.2 prohibits occupiers from parking or allowing their vehicles to stand on common property without written approval from the body corporate.
• [28] A review of the survey plans indicate that the visitor parking spaces form part of the common property and there are no other by-laws in the CMS relevant to the visitor parking spaces. As such, the question to be answered is whether the respondent has breached the by-laws by parking on common property without written approval from the body corporate.
• [29] In considering whether the respondent breached these by-laws, I have considered the letter dated 14 October 2024 included photographs depicting the respondent's vehicle parked in an area indicated to be a visitor parking space. I also note the photographs included signage stating it was for visitor parking only for a maximum of 6 hours.
• [30] The respondent did not dispute that the vehicle located in the visitor parking space outside Lot 6 was theirs, nor that they had parked on common property. It has also not been argued that the body corporate provided the respondent with written approval to park on common property.
• [31] In considering the evidence before me, I am satisfied the respondent's vehicle was parked on common property without the written approval of the body corporate prior to the CCN being issued. Therefore, I am satisfied the respondent contravened by-laws 2.1 and 2.2.

• [32] As I am satisfied the respondent breached by-laws 2.1 and 2.2, I will now consider whether the breach has continued.
• [33] The respondent submitted that they were not the only resident using visitor parking spaces and they were prepared to comply with the by-laws moving forward.
• [34] In considering the evidence before me, I note that on 14 October 2024, the body corporate wrote to the respondent that their vehicle was parked in a visitor parking space breached the by-laws and the CCN was issued approximately three months later on 21 January 2025. Further, the respondent's submissions provided on 23 April 2025 indicate that they have continued to park in the visitor parking space.
• [35] It has not been argued that the respondent ceased parking in the visitor parking space outside Lot 6 after the CCN was issued. Further, while the respondent submitted that they were prepared to comply with the by-laws moving forward, they did not argue that they had ceased parking on common property. Therefore, I am satisfied the respondent's breach of by-laws 2.1 and 2.2 has continued.

• [36] Regarding the second order sought by the applicant, I have considered section 163A of the Act which states:

(1) Nothing in this Act prevents a body corporate for a community title scheme from towing a motor vehicle from the common property for the scheme under another Act or otherwise according to law.

(2) If a motor vehicle owned or operated by the owner or occupier of a lot included in the scheme and parked in contravention of a by-law for the scheme is towed by the body corporate, the body corporate is not required to comply with a requirement under chapter 3, part 5, division 4.

• [37] This means that, if a vehicle owned or operated by an owner or occupier of a lot is parked in contravention of a by-law (such as on common property) and it is towed by the body corporate, the body corporate is not required to comply with the by-law enforcement requirements under the Act.
• [38] I acknowledge the respondent submitted that he requested that punitive action, such as towing, is not taken without the provision of a written warning. While the body corporate is not required to issue a CCN prior to towing a vehicle parked on common property in breach of the by-laws, the body corporate has a duty to act reasonably in making decisions, including the decision to tow a vehicle.[14]
• [39] Adjudicators have previously commented that there may be unforeseen consequences when a body corporate decides to tow an owner or occupier's vehicle, and that this decision may be challenged as unreasonable.[15]

• [40] I am satisfied on the evidence before me that the respondent has continued to park on common property, specifically the visitor parking space outside Lot 6, in breach of by-laws 2.1 and 2.2. I consider an order that the respondent not park their vehicle, or allow it to be parked, in visitor parking spaces without written permission from the body corporate, is appropriate to comply with by-laws 2.1 and 2.2.
• [41] I have also made a declaration that the body corporate could resolve to tow the respondent's vehicle if he continues to park it, or permits it to be parked, on common property in breach of the by-laws or any approval received by the body corporate. However, the body corporate should be aware and consider the possible consequences of towing a vehicle and must act reasonably should they decide to do so.
• [42] I acknowledge the concerns expressed by the respondent and the owner of Lot 6 about the disturbance caused by vehicles parked outside Lot 6's main bedroom. It would be of benefit for all parties to be aware that it is open for the occupier of Lot 6 to request written approval from the body corporate to park their vehicle on common property pursuant to by-law 2.2. The body corporate has a duty to act reasonably in considering such a request on its merits and take into account all relevant considerations. A decision to reject such a request on the basis that there has been a dispute and CCNs to the respondent in relation to the relevant parking space could be challenged as unreasonable.
• [43] In considering the submitted impact of the use of the visitor parking space outside Lot 6, it is open to the respondent or the owner of Lot 6 to request the body corporate make changes to the visitor parking arrangements outside Lot 6. These could include a requirement that any vehicles in the visitor parking space outside Lot 6 be reversed in or a restriction against parking overnight. It is within the scope of the body corporate's duties to manage and control the common property reasonably and for the benefit of lot owners.[16]
• [44] I acknowledge the respondent submitted that he felt singled out and expressed concerns that other owners and occupiers were parking in visitor parking for extended periods of time. Similar concerns were also expressed by the owner of Lot 6. I also note the photographs provided by the body corporate indicate the maximum amount of time a visitor parking space can be used is limited to 6 hours. The body corporate should be aware that it has a responsibility to act reasonably in enforcing the scheme's by-laws. If multiple owners or occupiers contravene the by-laws in the same way, the decision to selectively issue and enforce contravention notices upon one owner or occupier could be challenged as unreasonable. The onus of proof would fall on the applicant party in such a matter, and they would be required to demonstrate on the balance of probabilities that the body corporate acted unreasonably in the circumstances. In this matter, the respondent and owner of Lot 6 did not provide evidence of their claims, however it is open to them to provide BCCM Form 1s to the body corporate if they believe other residents are breaching the by-laws. However, the fact that others are breaching the by-laws does not justify the respondent to do the same.

[5] Sections 227, 228, 276 and Schedule 5 of the Act.

[15] Aztec on Joyce [2013] QBCCMCmr 28 at [8] - [12].