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

BY-LAWS - where the applicant alleges the respondent is parking on the common property without approval -whether this amounts to a contravention of the by-laws - whether orders are warranted.

Act, ss 59, 66, 182, 183, 185 and 288.

1. The respondent, Mr Denis Burgess, an occupier of Lot 333 (Unit 41), is not to park any vehicle in any visitor parking space or any other part of the common property without the prior written approval of the Body Corporate.

• [1] The Montego Residences community titles scheme 32496 (Montego) is a residential community title scheme located on the Gold Coast, comprising 88 lots and common property. The community management statement (CMS) shows that the Standard Module applies.
• [2] This application relates to parking on the common property. The applicant is the Body Corporate for The Montego Residences and seeks the following outcome:

That the occupier of Lot 333 (Unit 41) be requested to comply with By-law 22 by refraining from parking their vehicle in any visitor parking space or any other part of the common property without the prior written approval of the Body Corporate.

• [3] The applicant says that when owners, occupiers, or their guests, use the visitor carpark in breach of the bylaws, it affects the entire community. It limits access for genuine visitors, creates frustration, and places extra pressure on both building management and the Committee to monitor and enforce compliance. This ongoing misuse undermines fairness and disrupts the harmony and efficiency of our Body Corporate.
• [4] By-Law 22 reads as follows:

(f) An Owner or Occupier of a Lot must not obstruct the lawful use of the Common Property by any, person. The pathways and driveways, on the Common Property and any easement giving access to the Common Property must not be obstructed by any such Owner or Occupier or used by them for any other purpose than the reasonable ingress and egress to and from their particular Lot.

(g) An Occupier shall not:

(i) drive or permit to be driven any vehicle in excess of the tonnage set by the Committee from time to time on to or over the Common Property other than a vehicle necessary to facilitate the occupation of any Lot and any vehicle permitted by any law to access the Common Property;

(ii) permit any invitees' vehicles to be parked on the roadway forming part of the Common Property at any time;

(iii) permit any boat, trailer, caravan, campervan or mobile home on the Common Property or on or in any car parking space.

(h) Occupiers may park their vehicles on the driveway that services their respective lot provided that the vehicle is wholly contained in the driveway area and that there are already vehicle(s) parked in the garage of the Lot concerned.

(i) Any invitees shall park their vehicles in the visitors' parking bays on the Common Property and shall use such area only for its intended purpose of casual parking.

• [5] The applicant body corporate says it has issued multiple emails and letters to both the owner of lot 333 and the respondent regarding the unauthorized parking on common property.
• [6] As this failed to resolve the matter, they served a number of formal contravention notices on the respondent pursuant to sections 182 and 183 of the Act, for contravention of by-law 22. Despite these efforts, the tenant has failed to comply.
• [7] Initially the applicant body corporate sought to resolve this dispute by departmental conciliation. The respondent was notified of the scheduled conciliation session but failed to attend without providing any explanation. The applicant says this non-attendance demonstrates a lack of willingness to engage in dispute resolution. As a result, the Body Corporate decided to escalate the matter by applying for an adjudicator's order.
• [8] The applicant Body Corporate says the Occupier of Lot 333 (Unit 41) continues to breach By-law 22, which prohibits residents from parking in visitor parking spaces or any other part of the common property without prior written approval from the Body Corporate.

• [9] The respondent is a tenant/occupier and is the driver of the vehicle in question, which is a company vehicle belonging to Ideal. The Body Corporate made a formal request for the tenant's details in order to address the matter appropriately.
• [10] Although the vehicle is not registered to the respondent personally, he has use of it through his role with the company. Additionally, there is direct correspondence addressed to the owner of the lot, Mr. George Argenti, regarding this matter.
• [11] This correspondence has been included in the application to demonstrate the steps taken by the Body Corporate to resolve the issue.
• [12] The respondent, who occupies lot 333 and drives a vehicle with registration number 4IDEAL, continued to park in the visitor car parking despite receiving continuous letters regarding vehicles, breach letters, and final contravention notices.

• [13] 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] On the face of it, I appear to have jurisdiction to determine this matter under the dispute resolution provisions.[2]
• [14] In addition to those provisions, there are procedures for by-law enforcement which must be observed before a dispute resolution application can be made.[3]

• [15] The applicant applied for departmental conciliation and that application was referred to the Commissioner with a notation by the conciliator that I have referred your application back to the commissioner because one or more parties were unable to attend.
• [16] In the first instance the Commissioner sought clarification from the applicant on some aspects of the application.[4] The application was subsequently amended.[5]
• [17] The Commissioner invited submissions from the respondent and all lot owners.[6] Submissions were received from six lot owners. Five submissions supported the application and one submission opposed the application.
• [18] The application was referred to department adjudication.[7]
• [19] I have now investigated the dispute, including reviewing the application and records.[8]

• [20] Pursuant to section 243 of the Act the respondent and all lot owners were invited to make submissions in response to the application.
• [21] Submissions supported the application, noting that the respondent continues to park his car in the visitors carpark despite many requests and formal notices not to do so. They say the owner of lot 333 has other tenants, who use the garage and car parking available to this lot and is unable to supply extra parking for the respondent. They believe the respondent should park his car offsite, as other residents do when parking is not available for them. They say the disregard for the by-laws causes concern for other residents, the committee and the onsite manager who monitors and attempts to enforce compliance with the bylaws.
• [22] The owner of Lot 333 says the respondent is his friend and the committee is denying him permission to park his car on scheme land. He believes the complex has in excess of 100 visitor car parking spaces and that there are never more than 10% occupied. He believes that the respondent should be permitted to park in visitor car parking spaces.

• [23] The issue in this application is whether the respondent has contravened the by-laws for the scheme.
• [24] By-Law 22 reads as follows:

(f) An Owner or Occupier of a Lot must not obstruct the lawful use of the Common Property by any, person. The pathways and driveways, on the Common Property and any easement giving access to the Common Property must not be obstructed by any such Owner or Occupier or used by them for any other purpose than the reasonable ingress and egress to and from their particular Lot.

(g) An Occupier shall not:

(i) drive or permit to be driven any vehicle in excess of the tonnage set by the Committee from time to time on to or over the Common Property other than a vehicle necessary to facilitate the occupation of any Lot and any vehicle permitted by any law to access the Common Property;

(ii) permit any invitees' vehicles to be parked on the roadway forming part of the Common Property at any time;

(iii) permit any boat, trailer, caravan, campervan or mobile home on the Common Property or on or in any car parking space.

(h) Occupiers may park their vehicles on the driveway that services their respective lot provided that the vehicle is wholly contained in the driveway area and that there are already vehicle(s) parked in the garage of the Lot concerned.

(i) Any invitees shall park their vehicles in the visitors' parking bays on the Common Property and shall use such area only for its intended purpose of casual parking.

• [25] It is evident that vehicle 4IDEAL is used by the respondent and the applicant has provided photographs of the vehicle parked in designated visitor car parking spaces on various dates. This is not disputed by the respondent.
• [26] In some circumstances it may be excusable for a person to not strictly comply with the requirements of such a by-law. For example there may be a one-off occasion involving unique or extenuating circumstances. However in this case, it is evident that there are numerous occupiers of lot 333 and insufficient garage and driveway space to accommodate all of their vehicles.
• [27] The availability of visitor car parking should not be a consideration for the respondent. They are not entitled to park in designated visitor parking without the written approval of the body corporate.
• [28] The by-laws are part of a scheme's community management statement (CMS), which is binding on the body corporate, each member of the body corporate (each owner) and each person who is otherwise the occupier of a lot in the scheme.[9] A function of the body corporate is to enforce the CMS, including the by-laws.[10] The body corporate must act reasonably when doing so.[11]
• [29] The Act provides a framework for dealing with by-law contraventions.
• [30] Section 182 provides that if a body corporate reasonably believes that an owner or an occupier is contravening a by-law and the circumstances make it likely that the contravention will continue, the body corporate may give a continuing contravention notice to the person to remedy the contravention. The notice must state the by-law the body corporate believes is being contravened and details sufficient to identify the contravention. The person must comply with the notice.
• [31] Section 183 provides that if a body corporate reasonably believes that an owner or an occupier has contravened a by-law and the circumstances make it likely that the contravention will be repeated, the body corporate may give a future contravention notice to the person not to repeat the contravention. The notice must state the by-law the body corporate believes has been contravened and details sufficient to identify the contravention. A future contravention notice has effect for 3 months after it is given or a shorter period mentioned in the notice. The person must comply with the notice.
• [32] The notice states that if the person does not comply, the body corporate may start proceedings in the Magistrates Court or make a dispute resolution application.[12] A Magistrates Court may impose a maximum penalty of 20 penalty units for failure to comply with the notice.[13] Unless special circumstances exist, a body corporate may make a dispute resolution application only if it has given the owner or occupier a contravention notice[14].
• [33] Rather than starting proceedings in the Magistrates Court, the body corporate has made this dispute resolution application and has named the respondent as the person against whom an order is sought. The body corporate has demonstrated that before making this application, it gave the respondent notice of the alleged by-law breaches.
• [34] The body corporate has provided me with a copy of a letter, a BCCM Form 10 issued to the respondent on 18 February 2025 and a BCCM Form 11 issued to the respondent on 18 February 2025, each alleging a contravention of by-law 22.
• [35] I am satisfied on the evidence provided that the respondent has contravened by-law 22 by parking their vehicle 4IDEAL in designated visitor parking spaces, without written approval from the body corporate to do so.
• [36] I consider it appropriate to make orders clarifying where the respondent may park a vehicle.
• [37] The by-law regulates the act of parking or standing a vehicle regardless of whether the person operating the vehicle is its owner. The respondent has not made any submission that they had the approval of the body corporate to park on the common property or that the body corporate has unreasonably refused him permission to park on the common property.
• [38] I am satisfied the respondent has parked in designated visitor parking without the consent of the body corporate. Parking on common property, and more specifically in allocated visitor car parking spaces, is explicitly regulated by the by-laws. I am satisfied that the respondent parking a vehicle in in visitor parking spaces is a contravention of by-law 22. I consider that the requested order is warranted.
• [39] If the respondent does not comply with the order I have made, the body corporate can institute proceedings in the Magistrates Court for enforcement of the order. If this action becomes necessary, the respondent could be guilty of an offence and subject to a fine of up to $66,760[15] for failing to comply with an adjudicator's order[16].

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

[3] See sections 182, 183, and 185 of the Act

[8] The investigative powers of an adjudicator are set out in section 271 of the Act