Parking and towing remedial action do not fall within the Body Corporate and Community Management Act 1997 or the Regulation Modules.
A body corporate is entitled to make by-laws to regulate the use of common property and lots in the Scheme, but the by-laws must not discriminate against the types of occupiers or impose a monetary fine (see Section 180 of the BCCM Act). Where a contravention of the by-laws arises (such as an abuse of visitor parking), the right reserved to the body corporate falls under Sections 181, 182 and 184, which authorises the imposition of contravention notices and enforcement action.
We are aware that advocacy of by-laws imposing recovery of towing fees from parking on common property have been espoused by some firms. The problem we have with this arises from the adjudicator’s finding in Ephraim Island – Subsidiary 105, Ref 0879-2006:
“I am of the view that by-laws 19.6 (and 11.6) are invalid. Section 180 Act puts limitations on what a by-law can do. Section 180(6) states that a by-law (other than an exclusive use by-law) must not impose a monetary liability on the owner or occupier of a lot. A fine under this by-law would be such a monetary liability. There is no power in a body corporate to fine its members for breaches of by-laws.”
Therefore, if parking and a monetary fee are combined in one by-law, it may be deemed to be invalid in its entirety if sought to be enforced against an owner/occupier.
This does not mean a body corporate is without a solution. Despite Sections 135 through 136 of the Transport Operations Road Use Management Act 1995, which prohibits the locking of vehicle immobilisations and towing in broad circumstances; a body corporate has options.
Options in relation to Owners/Occupiers:
A body corporate may specify in its by-laws that an owner is not permitted to park on common property unless granted an exclusive use of that area, and proscribe that if the owner does park on common property, the body corporate shall be permitted to enter upon the area to carry out the owner’s obligations (including removal of the vehicle).
Many by-laws do not prohibit owners/occupiers from parking on common property. Therefore, in the absence of the prohibition, a body corporate may struggle to issue a contravention notice in circumstances where the conduct is not expressly prohibited.
Whether the costs associated with the exercise of the body corporate’s powers are recoverable (such as tow fees), is a question for the Commissioner or Court. Importantly, however, bodies corporate should be hesitant to tow or compromise a vehicle owned by an “owner/occupier”. The body corporate’s legislative rights arise out of Sections 181, 182 and 184 – which require the body corporate to issue contravention notices. If contravention notices do not quash the activity, then the body corporate can pursue enforcement with the Body Corporate Commissioner or Magistrate Court.
Options in relation to Visitors:
A visitor has no inherent right to occupy common property; therefore, if the limited right of access (which is often advertised by way of board over parking areas) is exceeded in duration – an “owner” – being the “body corporate” may remove the vehicle.
The difficulty arises in determining whether a vehicle is owned by a “visitor” or an “owner/occupier.” A number of bodies corporate have introduced parking voucher/passes which are required to be “displayed” to distinguish owner/occupier and visitor cars. The problem is that if the voucher or pass is not displayed and by the omission of that voucher or pass the car is deemed to be a visitor without rights, the body corporate could be liable for damages.
If repeated offences arise, and a vehicle cannot be readily determined to be a “visitor” owned vehicle, we recommend erring on the conservative side and commencing the process of contravention notices. It may be that the issuance of a contravention notice alone may alert an offending “visitor” to the issues that they may be creating for their associated “owner/occupier” – and this alert may be sufficient to stop further violations of the visitor parking license.
The entire question of towing is very dangerous, and accordingly, any recommendations we make to you need to be properly weighted with warnings. By all means, however, we can vary your current parking and introduce towing by-laws. We recommend that any body corporate encountering serial offenders seek legal advice before taking action, including, but not limited to the issuance of a contravention notice.
If you have a body corporate parking issue, we welcome you to contact our offices on (07) 5574 3560 or email firstname.lastname@example.org. We thank you for considering Nautilus Law Group.
Submitted by: Katrina E. Brown BA JD ATIA TEP SSA