This matter concerns a residential property at Lyneham, ACT where the applicant was the executive committee and the respondent an owner of unit 29.
Around February 2019 a complaint was received by the executive committee about caravans/campers/boats parked in driveways at the property. The complaint stated that driveways are available for the use provided any parked vehicle or trailer does not encroach on paths or roads.
Rule 16 regulated the use of common property and sub-rules 16(6) and 16(7) provided as follows:
(6) Residents may only park registered vehicles (excluding caravans, motor homes, trucks, boats and box trailers) on the common property hardstand in front of the garage of the unit in which they reside and must be parked so as not to infringe the roadway.
Notes
1 Sub-clause (6) is not intended to apply for a 24 hour period where an excluded vehicle is being loaded or unloaded.
2 In sub-clause (6) an excluded truck does not include small trucks, vehicles used for professional purposes by the resident.
(7) Visitors may only park registered vehicles (excluding caravans, motor homes, trucks, boats and box trailers) in the spaces signposted for visitor parking or in accordance with (6) of this rule with the permission of the owner, occupier or user of a unit and must be parked so as not to infringe the roadway.
Notes
1 Sub-clause (6) is not intended to apply for a 24 hour period where an excluded vehicle is being loaded or unloaded.
2 In sub-clause (6) an excluded truck does not include small trucks, vehicles used for professional purposes by the resident.
On 20 May 2020 the strata manager sent a letter to the respondent seeking advice on the actions being taken to remove a caravan parked in breach of rule 16.
On 16 July 2020 an infringement notice pursuant to section 109 of the UTM Act was given to the respondent requiring compliance with rule 16 by removal of the vehicle immediately or at least by 31 July 2020.
The OC filed an application in the Tribunal on 8 September 2020 seeking the following orders:
As per Rule 16(6) and (7), we seek an order for the owner and occupant of unit 29 to discontinue parking their caravan (an excluded vehicle) on the common property hardstands in front of the garage which they reside (unit 29).
We seek that the respondent also pay the costs incurred by the Owners Corporation in these proceedings.
Section 109 allows the executive committee to pass an ordinary resolution to authorise the owners corporation to issue a rule infringement notice if the executive committee reasonably believes that a person has contravened a provision of the corporation’s rules and the circumstances of the contravention make it likely that contravention will continue or be repeated.
Section 109 nominates certain mandatory inclusions in rule infringement notices. In particular, section 109(3)(f)(i) states that the notice must state that if the person does not comply with the notice the person commits an offence. Mandatory requirements for information must be included in a rule infringement notice. The rule infringement notice given to the respondent did not state the mandatory requirement under section 109(3)(f)(i), in particular that if the person did not comply with the notice the person commits an offence. Therefore, there was a question about the validity of the notice. The consequence of the omission was either that the notice was invalid or it at least raised the question of whether the Tribunal should in its discretion make the orders sought by the applicant. The Tribunal considered that the power to make orders requiring removal of the caravan should be predicated upon a rule infringement notice that complied with section 109. Therefore, the orders sought by the applicant pursuant to section 129(1) of the UTM Act were declined on this ground.
However, the Tribunal indicated that if the Tribunal was wrong about the dispositive effect of the non-compliance with section 109(3)(f), rule 16(6) as it was drafted contained a significant ambiguity. It was not clear if the exception “registered vehicles (excluding caravans, motor homes, trucks, boats and box trailers)” operated to allow caravans etc to be parked on the common property hardstand in front of the garage or if caravans etc were exempted from the operation of the sub-rule generally. Therefore the Tribunal held that on this alternative basis, the application must also be dismissed.
Ultimately the Tribunal declined to make the orders sought because the rule infringement notice could not support orders under section 129 to require the respondent to remove the caravan based on a failure to comply with a rule infringement notice where the rule infringement notice did not include a mandatory requirement under section 109. Alternatively, the uncertainty or ambiguity in rule 16 affected the notice’s enforceability.