Management of car parking is an issue for many Bodies Corporate, particularly when it comes to enforcing by-laws in relation to parking at a scheme. While there is a statutory process for enforcing parking by-laws, this can be long and cumbersome when it comes to issues such as how people are parking at the Scheme – leading Bodies Corporate to investigate alternative methods of dealing with the problem.

For example, a Body Corporate was recently challenged in the Commissioner’s Office regarding its decision to engage a company to issue “parking tickets”, including fines, to occupiers for improper parking at the Scheme.

The Body Corporate engaged a carpark management company pursuant to a motion at its annual general meeting to “enforce the by-laws surrounding vehicle parking” at the Scheme.

As part of this process:

1. the management company would install signage;
2. the building manager would monitor the car parking areas as it had been previously doing, but if they identified a non-compliant vehicle, they now had the option of issuing a $77 fine by way of attaching an invoice to the windscreen; and
3. the non-compliant vehicle owner then had 21 days to object and 28 days to pay the invoice and, if not paid within this time, the matter would be referred to the management company’s debt collection agency which may result in the vehicle owner incurring additional costs.

An owner questioned the Body Corporate’s ability to do this, viewing it as:

1. the Body Corporate delegating its powers to the carpark management company, in contravention of section 97 of the Act; and
2. an attempt to impose a monetary liability for contravention of a by-law, in contravention of section 180(6).

So, can Bodies Corporate fine lot owners for improper parking?

The crux of the alleged “delegation of power” appears to be the carpark management company’s ability to recover fines issued by the Body Corporate in relation to alleged breaches of the by-laws. Accordingly, it is prudent to consider whether this is a power a Body Corporate even has in the first place.

As noted by the owner in the above application, Bodies Corporate are prevented under the legislation from imposing monetary liabilities on owners under by-laws that are not exclusive use by-laws.

This not only means that Bodies Corporate cannot impose a monetary fine for non-compliance with a parking by-law within the by-law itself, but it effectively prevents a Body Corporate from issuing fines in relation to any by-law breach by way of an external policy document. This is because rules or policies that are not located in the by-laws (such as anyone who parks in contravention of the parking by-law will be subject to a $77 fine) are considered ‘house rules’ and, as noted in several decisions, are not considered binding or enforceable by the Body Corporate.

Accordingly, while everyone would desire a quicker resolution than the current by-law enforcement provisions set out in the Body Corporate and Community Management Act 1997, attempting to enforce by-laws by fining lot owners for non-compliance (particularly through a third-party entity) is not a valid method of doing so.

The outcome of the application

At this point in time, only interim orders have been made regarding the application. However, the Adjudicator made several relevant points regarding this issue, including the following:

[10] The committee says that PriPark is not enforcing the by-laws, despite the language of motion 13, and the body corporate is not delegating its powers nor imposing a monetary liability. It says the body corporate has imposed a set of terms and conditions for people who choose to park on the private land of the scheme. By entering the scheme, they are agreeing by contract to abide by those terms and conditions, including the payment of parking fees for any breach.

[11] However, owners and occupiers of lots are not guests on private land with no right to enter without the permission of the body corporate. Lot owners own the common property as tenants in common. Where a lot is occupied by someone other than the owner, the occupier has the owner’s rights to the use and enjoyment of the common property. Owners’ and occupiers’ right to the reasonable use of the common property is generally not subject to the consent of the body corporate. Hence, it is far from obvious that, by bringing their vehicles onto the scheme, they are implicitly agreeing to the terms and conditions on the signs erected by PriPark. It is more likely that they are simply exercising their statutory rights to their common property.

[12] Of course, owners and occupiers are obliged to comply with the scheme’s by-laws, including in relation to parking. But the by-laws do not make any provision for the payment of parking fees, nor do they mention the terms and conditions appearing on the recently installed signs. The Act makes no provision for the body corporate to impose fines for by-law breaches either. In any event, the committee says that the parking fees are not about enforcing the by-laws.

The community titles legislation law reform working group has specifically discussed the issue of car parking, but whether we see legislative change remains an unknown. Until then, what we cover in this article remains the legal position.

This article was contributed by Frank Higginson, Hynes Legal

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