Question: Can a disabled owner permanently use the disabled visitor car space, and what can be done about it?
A disabled apartment owner uses the disabled visitor car park as their permanent car space. This causes a problem for any other owners who may have visitors who also qualify for that spot.
What are the laws regarding the use of disabled visitor spots in apartment complexes? Can the committee take any action to make this spot available to visitors on an ongoing basis?
Answer: A lot owner cannot use a common property disabled car space without owners corporation authorisation, but that approval cannot be refused on discriminatory grounds.
A lot owner cannot use a common property disabled car space in a strata scheme without the proper authorisation from the owners corporation. The Strata Schemes Management Act 2015 (the Act) provides that common property, including parking spaces, is managed and controlled by the owners corporation (OC) for the benefit of all lot owners. Section 9 of the Act outlines the OC’s responsibility for the management and control of common property. Section 112 of the Act allows the OC to grant a licence to an owner or occupier of a lot to use common property in a specific manner or for particular purposes, after approval by a special resolution. Such a licence may also be subject to terms and conditions. The OC can also give authorisation to use common property under a lease or a common property rights by-law. Without this authorisation, a lot owner is not permitted to use common property, including a disabled car space, for their own purposes.
Therefore, a lot owner must seek and obtain the necessary approval from the OC, typically under an existing parking by-law, a licence or a by-law, to use a common property disabled car space. That application must not be rejected for a discriminatory purpose. Even if only one of two reasons is discriminatory, the Anti-Discrimination Act 1977 (the Anti-Discrimination Act) would deem the purpose to be discriminatory. Without such approval, the use of the space would be unauthorised and could lead to enforcement action by the OC under the applicable by-laws and the Act.
In Araya v Owners Corporation SP65717 [2021] NSWCATCD 5, the OC had a by-law prohibiting parking on common property without approval. The Arayas sought approval to park in the common property disabled parking space due to Ms Araya’s disability. The OC rejected the application; a key reason was that it was required as a disabled visitors parking space under the development consent. The Tribunal found Ms Araya had a relevant disability and that the OC’s control and management of the common property was a service under the Anti-Discrimination Act. However, it also found that the OC’s enforcement of its parking by-law was not for the purpose of discrimination on the grounds of disability, nor was there any evidence of indirect discrimination as there was no evidence that the Arayas had been held to a standard that a higher proportion of people without the disability could meet. The standard was whether other lot owners could park in the car space for their lot.
The scheme in this question has visitors who need, and may not be able to use, the disabled car space due to the conduct of the lot owner. We recommend reviewing the scheme’s by-laws regarding parking. For schemes with the model by-laws, there will be one. However, if there is not, the scheme should consider passing one. If there is a prohibition on parking in visitors spaces, it could and should be enforced. We also recommend checking the development consent conditions for the parking spot. If it is a requirement of the consent, then the scheme is in breach of the consent if it allows the lot owner to continue using the visitors disabled parking space. For a more permanent solution, if there is room on the common property, the OC should also consider adding another disabled parking space and potentially license, lease or sell it to the lot owner.
For more information, read Allison’s blog: Discrimination in Strata and Community Title Schemes.
This post appears in the June 2026 edition of The NSW Strata Magazine.
Allison Benson Kerin Benson Lawyers E: allison@kerinbensonlawyers.com.au P: 02 4032 7990
