Recently, Will Marquand, our General Manager / Senior Body Corporate Manager and Todd Garsden from Mahoneys collaborated with LookUpStrata to discuss some practical solutions to body corporate parking problems.
Body Corporate Parking Problems Webinar Recording
Here is just one of the body corporate parking problems discussed during the webinar:
Question: We have a bylaw in our complex that clearly states you can’t park outside your unit because it’s common property. However, some owners do and the committee won’t enforce the bylaw. What can I do?
WILL:
This is a great question because this is so common at townhouse properties where the garage was originally designed to hold the car but the garage gets filled with all of the stuff that we have that make up our lives. Then what people do is they park in front of their garage spot, but that garage spot is technically common property. I’ve dealt with a number of properties where people have accepted that as a benefit and they don’t mind it too much and other sites where it’s caused a great deal of stress because technically it is an infringement because you’ve got people parking on common property.
Todd, I’ve got a couple of questions for you: can body corporate change its bylaws to perhaps allocate these common property spaces as private parking spaces to resolve the issue so that would allow people to park on their driveways? Would council have any issue with that?
TODD:
That’s a good question and that’s the answer really because it would be a bylaw breach nine times out of 10 if someone is parking on common property, even though it’s in their driveway, it’s still obstructing common property, and that common property is owned by all the owners.
The answer is to grant a use right over that part of common property and that would regularise it, and also make it lawful. Because it’s substantial and permanent, adjudicators say that’s not a simple committee resolution or saying, by bylaws that people can park in front of the unit, it’s actually disposing of part of that common property and it’s akin to an exclusive use grant. So it should be leased, or licenced, or granted by exclusive use, if it’s going to be substantial or a permanent use. If it’s just intermittent or temporary, which it doesn’t sound like this is, then it needs that higher level of approval. For that lot owner, who’s not happy with that type of use, the committee should be enforcing the bylaw and you can send in a form one and give them a period of time to do it and if they don’t, then you’ve got the option to go and do it yourself.
WILL:
What’s the risk for body corporates, if they just do nothing? If they say ‘Look everyone wants that extra space, everyone’s using it. It’s not really causing any harm. There’s no real social discord. It’s not like people are parking in each other’s driveways or anything like that’. What’s the risk if they just do nothing?
TODD:
It does depend on the circumstances but if it was causing issues, and it was unreasonable for the body corporate not to enforce it, keeping in mind the body corporate has a positive obligation to enforce bylaw breaches, that owner can go to the commissioner’s office and get some declarations that the body corporate isn’t carrying out its functions and must enforce the bylaws so it can be forced to do it. So there is that risk.
WILL:
It’s hard for body corporates because you shouldn’t pick and choose which bylaws you’re applying. You have to apply them all or not at all. As soon as you’re saying, Well, this one doesn’t matter. Well, then does the next one matter, then the next one?
What do you do about the person who says, ‘Well, the noise bylaw doesn’t really matter that much and the damage to common property doesn’t really matter either?’ because you’ve already set the standard of saying the bylaws don’t matter. It’s quite a difficult precedent for body corporates to set in that respect.
TODD:
They should be changing the bylaws if they don’t want to enforce them.
WILL:
Do you think councils would accept that? Because they have, zoning regulations and regulations around how many parking spots you’re allowed, do you think council would be willing to take on these new kinds of bylaws?
TODD:
They’re normally concerned with having a minimum number of car parks. They’re normally concerned when you start taking car parks away. With the right approach to council, with the right town planner, you’re normally going to get approval if you’re solving a problem. The issue is going to be if it causes some sort of egress blocking requirements or turnaround requirements, because there are parts of common property that are designated on the approved plans that need to be open so that cars can do uturns when they drive to the end of the driveway and have nowhere to go. So there are some considerations. There are specialist traffic engineers that can actually give some advice on those types of issues but if it makes sense, and it’s reasonable for them to be parking there, the council wouldn’t really prevent it if you’re trying to add car parks.
Todd Garsden
Mahoneys
E: tgarsden@mahoneys.com.au
P: 07 3007 3753
William Marquand
Tower Body Corporate
E: willmarquand@towerbodycorporate.com.au
P: 07 5609 4924
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