Posted on August 4, 2016 by

Council officers as strata scheme parking rangers?

Buried within Schedule 4  of the new Strata Schemes Management Act 2015 is an amendment to the Local Government Act 1993 (LG Act) to insert a new s650A. This will allow the body corporates to enter into an agreement with the council allowing the council to set rules as to how cars might park in their otherwise free parking areas. Breach of those rules will be subject to penalties of up to $550.00.
Patrolling private car parks

Section 650 of the LG Act currently allows a council to enter into an agreement with a private land owner, say Coles or Woollies, to allow the council to patrol the car park and book cars which overstay their welcome.

The new s650A is almost identical, but extends the scheme to owners’ corporations and the association of a community, precinct or neighbourhood scheme (Body Corporates) subject to the passage of a special resolution authorising the proposed agreement with the council.

Why would strata owners want Council intervention?

Given the popularity of Council parking officers with the general public, why would a Body Corporate want to enter into such an agreement? A quick review of decisions of the New South Wales Civil and Administrative Tribunal (NCAT) may assist.

One of the issues which dogs Body Corporates is the question of recalcitrant owners and tenants who abuse visitor places and who park in the wrong space, or use spaces they are not entitled to.

It is not merely the question of people who regularly park where they are not supposed to, it is the fact that the strata legislation and the Tribunal which oversees it, NCAT, has little apparent authority to settle parking issues to finality for a reasonable price. See for instance Luong v Owners Corporation SP 87671 and Telmet Ventures Pty Ltd [2015] NSWCATCD 105 for an example of a case where an owners corporation spent several AGM’s attempting to place bollards and introduce By Laws to stop owners and tenants parking contrary to direction.

Assuming that the Body Corporate has a clear By Law in place, or that entitlement to a particular space is clear, (for example where the space is part of the particular Lot in question), s650A can provide a quick, easy, self-executing solution to the problem of illegal parking that does not require the Body Corporate to march off to the Tribunal.

How the section works

Councils and Body Corporates can enter into agreements under the new section 650A (6) and (7). The agreement will allow the council to erect signs under section 632. If car users act contrary to those signs, council officers can issue PINs.

The council can fine a person who has caused the car to be parked contrary to the sign erected by council and issue a penalty notice.

The council collects the fine, and can charge the Body Corporate a fee for signing up to the agreement. While a Body Corporate will be under no obligation to sign up with a council, the problems that have occurred in many schemes suggest that councils may well be approached when the legislation comes into effect on 30 November this year.

Guidelines

Both the current section 650 and the proposed section 650A require the Director General to establish guidelines for agreements. Such a Guideline does exist for private operators under s650. It is dated August 1998. Presumably a new Guideline will issue for s650A. However, as the two sections deal with similar circumstances (Councils patrolling private property) a quick review of the current section 650 Guidelines suggests the issues likely to be dealt with:

• The right of the Council to automatically change the agreement to accord with changes to legislation;
• Determining what signs, directions and line marking will be necessary;
• Apportioning the cost of maintenance of the signage, line marking and fencing;
• The need for Council to determine in its complete discretion the times and circumstances in which patrols will occur, and when fines will issue;
• Ensuring that any time limits on parking and other limitations (for example, weight limits and types of vehicles) are necessary and appropriate.

In practice there are some other issues that need to be addressed, for example, ensuring that the car park dimensions conform to the Australian Standard AS2890, but councils should be able to check this with their own staff. This can be an issue if the configuration causes people to breach the notices.

Conclusion
When the recent strata law review was being conducted, strata managers identified parking as a continuing problem. The legislature has responded with a mechanism that will allow Body Corporates to ensure their parking lots are used in accord with expectations without the need for expensive litigation.