This article addresses issues around disabled parking in NSW apartments.
Table of Contents:
- ARTICLE: NSW: Owners Corporation and Discrimination Legislation
- QUESTION: We purchased an Off-the-plan apartment and at the prepurchase inspection found our parking spot is the disabled parking space. Can they do this?
- QUESTION: My husband and I jointly own the only commercial lot in a residential building. He is disabled and from time to time parks in the disabled car park. We do not reside here as it is an office. Can we use the space?
- QUESTION: I am the owner of an apartment in a large complex and I have a Disabled Parking Permit. Do I have a right to park in the visitor’s car park disable spot?
- QUESTION: Is the Owners Corporation now in breach of the Development application approval for making a special Use by-law that gives away our disabled parking in apartments?
NSW: Owners Corporation and Discrimination Legislation
Is your owners corporation likely to be subject to claims that it is discriminating against disabled persons?
A recent decision of the Administrative and Equal Opportunity Division of the Civil and Administrative Tribunal of New South Wales (NCAT) has determined that an owners corporation “provides services” to owners and occupiers within a strata scheme. As a result, owners corporations are potentially subject to the provisions of the Anti Discrimination Act 1977, in relation to the way that owners corporations manage and control common property and the finances of the strata scheme.
This raises the prospect that owners corporations may face increasing burdens to manage common property with the needs of disabled persons in mind.
The Recent NCAT Decision – January 2021
In this decision (Araya v Owners Corporation SP65717  NSWCATAD 5) NCAT was asked to consider whether an owners corporation discriminated against a disabled resident and her husband. It was alleged that owners corporation discriminated against them by enforcing a by-law prohibiting parking by residents in a visitor parking space specifically set aside for disabled visitors. The disabled resident consistently parked in one of the parking spaces set aside for disabled visitors, in breach of the owners corporation’s by-laws.
NCAT dismissed the application by the residents on the basis that the actions of the owners corporation to enforce the relevant by-law against them were not due to the resident’s disability. The Tribunal also found that the requirement not to park in visitor car spaces did not amount to discrimination against the disabled resident.
However, beyond the specific facts of this decision, the finding by NCAT that an owners corporation “provides services” means that all actions by an owners corporation in dealing with and managing common property potentially open the owners corporation to claims under the Anti Discrimination Act 1977.
The strata scheme, in this case, was the subject of a development consent which required the building to contain a number of visitor car parking spaces. The applicant, in this case, a disabled resident, regularly parked in one of the disabled visitor car parking spaces, in breach of the owners corporation’s by-laws. The owners corporation sought to enforce that by-law against the disabled resident.
NCAT noted that the requirements of the Anti Discrimination Act 1977 meant that the disabled resident, in order to succeed in their claim, needed to demonstrate two initial matters, namely:
- that the resident had a disability; and
- that the owners corporation “provided services” to that resident
There was no argument that the resident had a disability, however the issue of whether the owners corporation “provides services” (a preliminary requirement pursuant to section 49M of the Anti Discrimination Act 1977) was argued.
In an earlier Tribunal decision (Hulena v Owners Corporation Strata Plan 13672  NSWADT 119) the Tribunal had found that an owners corporation provided a number of specific services, which included providing accessible entrances and exits from the common property to individual apartments within the strata complex.
However, in this 2021 decision of the Tribunal, it was found that the owners corporation’s management and control of the use of common property pursuant to s9(2)(a) of the Strata Schemes Management Act 2015 constituted the provision of a service. NCAT also found that the management of finances for the strata scheme pursuant to s9(3)(a) of the Act also was a service.
Ultimately in this case, NCAT dismissed the application by the disabled resident because it was not satisfied that the resident’s disability was a factor in the manner in which the owners corporation acted. However, the decision has wider implications.
Potential Implications for Strata Schemes
Potentially, this decision widens the possibility that claims under the Anti Discrimination Act can be brought against owners corporations. This is because the decision has broadened the understanding of whether an owners corporation provides “services” as that term is understood under the Anti Discrimination Act
Previously there had only been a very narrow understanding of whether an owners corporation “provides services”, and therefore becomes subject to the provisions of the Anti Discrimination Act 1977. The decision of NCAT in this case, that the management and control of common property and the management of finances constitute “services”, if upheld and followed, means that many aspects of the operation of a strata scheme may be open to challenge under the anti discrimination legislation.
Provision of appropriate access for disabled persons, provision of alternatives to stairs, installation of lifts and other lifting mechanisms, broadening of doorways to enable wheelchair access, the provision of nonslip devices, installation of access ramps, are all matters which potentially are “on the table” for owners corporations, and will need to be considered by them.
Issues such as the accessibility of parking spaces, the accessibility of garbage facilities, and the accessibility of pool facilities and other recreational facilities, are all matters which potentially may be subject to anti discrimination legislation because they fall under the owners corporation’s responsibility for the management and control of common property.
Owners corporations would be well advised to take great care, and even to seek advice, when issues of discrimination are raised by lot owners and residents.
This post appears in Strata News #449.
Question: We purchased an Off-the-plan apartment and at the prepurchase inspection found our parking spot is the disabled parking space. Can they do this?
We purchased an off-the-plan apartment about 2 years ago in Sydney and were recently invited to a pre-settlement inspection. Upon inspection, we found that they have made our car spot a disabled spot. The parking space has our unit number but also has a disabled parking sign.
Are they allowed to do this? Does this mean if someone who has a disabled parking permit parks in our spot, we have to allow it?
The settlements team advised that the building requires a certain number of disabled parking spots and therefore they have allocated some to the residents parking spots.
Answer: You may have purchased what is known as an “adaptable” unit.
It would appear you may have purchased what is known as an “adaptable” unit which is designed in such a way that it is adaptable and accessible to residents and visitors with a disability/mobility issues.
You should consult your solicitor/conveyancer to confirm the type of unit you have purchased.
The signage is indicative of your car space being disability/mobility friendly not that any disabled person may park in your space in priority to yourself.
This post appears in Strata News #322.
Question: My husband and I jointly own the only commercial lot in a residential building. He is disabled and from time to time parks in the disabled car park. We do not reside here as it is an office. Can we use the space?
We are the only commercial lot in a residential building. There are two visitors carparks and one disabled car park. We do not have a car park in the building.
My husband and I jointly own the commercial lot. He is disabled and from time to time parks in the disabled car park. We do not reside here as it is an office.
Are we therefore residents? What are the rules about disabled parking in apartments? Is he able to park from time to time in the disabled car park? There is no ‘Visitors Only’ sign on the car park spot, just a ‘Disabled’ sign.
Answer: Disabled car spaces are intended for use for disabled visitors.
Disabled car spaces are intended for use for disabled visitors. As your husband is a co-owner, he is not a visitor. Therefore, unfortunately, he shouldn’t be using it.
This post appears in Strata News #267.
Question: I am the owner of an apartment in a large complex and I have a Disabled Parking Permit. Do I have a right to park in the visitor’s car park disable spot?
I am the owner of an apartment in a large complex and I have a Disabled Parking Permit. Do I have a right to park in the visitor’s car park disable spot which is not marked as a visitors parking spot?
Disabled Parking in Apartments
I have 2 parking spots allocated to my apartment. With my disabilities, I’m unable to twist to get out of the car and there’s not enough room to fully open the door when a car is parked in the next spot.
Parking in the visitor disabled parking spot would make things much easier for me.
Answer: The visitor’s car park disabled spot must be used for its bona fide purpose. As you are an owner, you are, by definition not a visitor.
The visitor’s car park disabled spot must be used for its bona fide purpose. As you are an owner, you are by definition not a visitor.
However, the Owners Corporation may be agreeable to your “swapping” your 2 x car spaces with the common property more readily accessible ones. There are a number of ways to achieve this including a common property rights by-law.
A more permanent and reliable method would be to pay for a strata plan of subdivision which would show the conversion/reallocation of car parking spaces (local council and owners corporation’s approvals are required for both scenarios).
Question: Is the Owners Corporation now in breach of the Development application approval for making a special Use by-law that gives away our disabled parking in apartments?
Our Owners Corporation passed a Special Use by-law that allows a lot owner to take over a larger visitor’s car parking space than their previous spot. However, they have given away our disabled parking to the Lot owner and we have no other disabled parking in apartments. Also, on the strata plan it indicates the Lot owner is still the property owner of the original car space ie it is not marked as “V” on the Survey Plan, so in effect, the title has not changed hands.
Is the Owners Corporation now in breach of the Development application approval? We now have no disability parking or ambulance parking.
Answer: The Owners Corporation cannot pass any bylaw that conflicts with the legislation in general, including council regulations.
It appears from the details you have provided that this lot owner now has access to two spaces, the original space on the title and for the sole use of the subject-owner plus the disabled car space which has been granted exclusive use via the special bylaw to this owner.
We would suggest looking at the DA requirements which will generally specify the conditions of parking and the Owners Corporation cannot pass any bylaw that conflicts with the legislation in general, including council regulations.
In summary, if the subject car space is required under the DA to be used for the sole purpose as a disabled parking space than the bylaw passed would be in our view a breach of the DA. The Owners Corporation would need to apply for a section 96 to amend the DA conditions and request consent to use the space for other purposes.
This post appears in Strata News #130.
Is disable parking a problem at your building? If you have a question or something to add to the article, please leave a comment below.
- NSW: Q&A Can Access to Visitor Parking be Restricted?
- NSW: Q&A Owners Corporation Meetings – Times and Frequency
- NSW Case Study: Is your illegal parking notice just an empty threat?
- Parking mix up: why is my car space marked for disability parking? [PODCAST]
This article is not intended to be personal advice and you should not rely on it as a substitute for any form of advice.
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