This article about parking bylaw breaches at strata properties has been supplied by Bannermans Lawyers.
Pesky parking practices by owners and occupiers can be a nightmare for strata schemes. However, this source of stress can be translated into a source of revenue for a savvy owners corporation.
It presents a perfect opportunity for an owners corporation to obtain a monetary order of up to $1,100.00 from the NSW Civil and Administrative Tribunal (“NCAT”) for every breach of a parking by-law. Plus an order for reimbursement of its legal expenses paid directly to the owners corporation.
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1. Read the by-law
Parking by-laws can be complex particularly for some larger schemes. The owners corporation must be certain on the terms of the by-law it is seeking to enforce.
2. Know your respondent
Parking by-laws will only be enforceable against owners and occupiers.
3. Resolve to issue the Notice to Comply
The owners corporation or strata committee may resolve to issue a Notice to Comply for breach of the parking by-law. For greater speed, the strata manager may issue the Notice provided this power has been delegated to them under the Strata Management Agreement.
We recommend using the standard form provided by the Office of Fair Trading which includes helpful instructions on how to effect service. Be sure to complete the affidavit of service on page two of the form as this may need to be relied upon at the hearing.
4. Obtain evidence of breach of the Notice to Comply
It is crucial that the owners corporation catch the pesky parker in the act of parking in breach of the Notice to Comply. A photo of a vehicle illegally parked is insufficient, when the standard model by-law applies, as per the below:
“1 Vehicles
An owner or occupier of a lot must not park or stand any motor or other vehicle on common property, or permit a motor vehicle to be parked or stood on common property, except with the prior written approval of the owners corporation or as permitted by a sign authorised by the owners corporation.”
The pesky parker could simply say that someone else was driving it at the time the parking offence was committed.
The pesky parker could simply say that someone else was driving it at the time the parking offence was committed.The installation of CCTV in the scheme can be great for this purpose. Most CCTV automatically comes programmed with facial and license plate recognition which easily allows for the skimming of data to obtain relevant evidence.
The average cost to install CCTV is approx. $1,200 – $1,500 per camera, including installation and equipment. Generally, you need a minimum of two or three cameras in a garage to identify people or vehicles.
5. Commence proceedings
If the owners corporation observes a breach of the Notice to Comply being committed within 12 months of the Notice being served it may then file an application for a penalty order with the Tribunal, immediately. There is no requirement to attend mediation beforehand. Please refer to the below table for more information on what to expect once proceedings are commenced.
| STEPS | ESTIMATE OF TIME |
| Resolution from the owners corporation that it is satisfied that there has been a breach of the by-law | Time required for a notice of a strata committee or general meeting |
| Resolution from the owners corporation that it is satisfied that there has been a breach of the by-law | Time required for a notice of a strata committee or general meeting |
| Preparation, signing and service of notice to comply which is valid for 12 months after service. A separate notice for each by-law and to each owner or occupier should be issued. | 2 weeks |
| Resolution from the owners corporation that it is satisfied that there has been a breach of the notice to comply and that it will commence proceedings in the Tribunal | Time required for a notice of a strata committee or general meeting |
| Complete and file application for a penalty | 12 months from service of Notice. |
| Tribunal serves application on all parties | 1 – 2 weeks |
| Directions and/or hearing (if it can’t be dealt with, within 30 – 45 minutes it will normally be treated as a directions hearing) | 4 – 6 weeks |
| Compliance with directions | As per agreed timetable |
| Further directions hearing | As required |
| Hearing | As set by the Tribunal |
| TOTAL OF ALL THESE STEPS | Usually, completed within 3 to 6 months, however, potentially longer depending on the conduct of the parties. |
Revenue to the owners corporation
The owners corporation can obtain a penalty order of up to $1,100.00 for every breach of a parking by-law which doubles if the offender commits a further breach within 12 months of the order being made. If the owners corporation can establish that special circumstances exist then it may also be entitled to an order for payment of its legal costs of the proceedings.
Examples of special circumstance may be the offender failing to mount an effective defence, missing dates to file evidence, failing to attend hearings or otherwise having no prospects of success.
Conclusion
Pesky parking can often be a source of great angst in strata schemes however by following the above steps, the owners corporation can quickly address this problem. At the same, time promoting the harmony of all owners and occupiers in the scheme by ensuring that it’s parking by-laws are complied with.
Related article Unauthorised Parking – What Can Owners Corporations Do?
Have a question about preventing pesky parking at strata properties or something to add to the article? Leave a comment below.
Read next:
- NSW: Q&A Overcrowding and Number of Occupants in Apartments
- NSW: Best Way to Solve Resident Parking Problems in Your Apartment Building
Bannermans Lawyers
T: 02 9929 0226
Suite 702, 2 Elizabeth Plaza
North Sydney NSW 2060
The information contained in this article is general information only and not legal advice. The currency, accuracy and completeness of this article (and its contents) should be checked by obtaining independent legal advice before you take any action or otherwise rely upon its contents in any way.
This post appears in Strata News #320.
This article has been republished with permission from the author and first appeared on the Bannermans Lawyers website.
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I’ve just moved into a new estate [removed by admin] and wanted to ask if the by law of this estate can prevent a person from parking their vehicle on the street? Who has jurisdiction over the roads this isn’t a gated community?
Hi Garrett
The following response has been provided by David Bannerman, Bannermans Lawyers:
If it is a public place and not part of the strata scheme or community association then it would be a matter for Council or a government authority to make and enforce parking restrictions.
NSW
we have multiple parking breaches by multiple units, daily, hours at a time and by work vehicles, such as a large Pirtek trucks by one of the owner occupiers. Even the Executive Committee members are parking on Common Property as above. I have sent multiple emails to the Strata Management and the Insurance Company due to safety concerns and Duty of Disclosure and still nothing and no responses.
WE also have bollards on Common Property which haven’t been working for years. Still no response. One of the Executive Committee has built walls about 100cm long and 25cm high which are clear trip hazards on Common Property and still no changes and no responses. The Strata Management, Insurance Broker and the Insurance Company are not responding
to add.
Can an individual owner give a Notice to Comply, take the offender to the Tribunal and be awarded the penalties and legal costs especially as the Owners Corporation are doing the breaching?
I am not a practising solicitor, but I recently looked this up re Qld. Don’t know about fines, as I was specifically interested in towing and clamping – there is a lot of guidance on the Qld govt website – basically clamping is not authorised, but towing is – Body Corporate needs to have an agreement with a licensed towing company and there is always an information sheet that has to be made available to the towed car’s owner, Signs should be prominently displayed, and most of the towing companies have a template sign with their phone number on it – go to https://www.qld.gov.au/transport/safety/rules/road/parking – I am pretty sure the same regime does not apply in NSW- it strikes me that is less messy than trying to levy and collect fines – I live in a Strata building with an active Facebook group and people are always sharing photos of cars being towed – a pretty good deterrent, I would have thought.
Hi Jo.
We practice only in NSW so you would have to consult a strata solicitor in QLD.
Does this process for pesky parking apply in QLD as well?
Hi Jo
We have received this response from Frank Higginson, Hynes Legal:
There is no scope under Qld law to charge fines for breaching by-laws, as much as that may eventually come on the table.