This article discusses locked disabled parking strata, including whether common property disability spaces can be locked for exclusive use and what approvals are required.
Question: Our building’s 1 disabled parking spot has a locked bollard. The key has been given to a disabled tenant even though her unit comes with a parking space. Are strata allowed to do this?
We have 1 disabled parking spot in our building.
The spot has had a keyed bollard put in it and the key has been given to a disabled tenant even though she has her own parking space. This is effectively stopping any disabled visitors from being able to use the disabled spot.
What are the disabled parking rules? Are strata allowed to do this?
Answer: It is not possible for someone to simply put a bollard in a common property visitor parking spot.
Your question raises matters which are often not dealt with correctly in the strata context. I think it would be helpful for me to briefly address them, in turn, :
- Dealing with common property – it is not possible for someone to simply put a bollard in a common property visitor parking spot. Such a dealing with common property would need to be the subject of a special resolution passed at a general meeting of the owners corporation. If that has not happened, then this action is open to being challenged in NCAT;
- The nature of the arrangement between the owners corporation and the tenant – this also needs to have been properly done, and the absence of such an arrangement could also be the subject of an NCAT challenge.
Having said that, the recent decision of the Tribunal which I referred to in my article, “opens the door” to the possibility that owners corporations may need to consider how they deal with disabled occupants, and it may be that the owners corporation to which you have referred has found that this is the easiest way of dealing with the matter on a temporary basis and in the absence of complaint by other lot owners.
I am happy to discuss this matter in further detail if that is of assistance.
This post appears in Strata News #465.
Warwick van Ede
JS Mueller & Co Lawyers
E. warwickvanede@muellers.com.au
P: 02 9562 1266
Regarding Disabled Owners Parking in the Disabled Visitors Spot. We have a sitation where a Disabled Apartment owner uses the Disabled Visitor Carpark as their permanent car space. This causes a problem for any other owners who may have Visitors who also qualify for that spot (eg the elderly). They simply cannot use it.
What are the laws regarding the use of Disabled Vistors Spots iin Apartment complexes? What action can be taken to make this spot more available to other visitors on an ongoing basis.
Hi Yvonne
We have just received this reply back from Allison Benson, Kerin Benson Lawyers:
In NSW, 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 provides that common property, including parking spaces, is managed and controlled by the owners corporation for the benefit of all lot owners. Section 9 of the Act outlines the owners corporation’s responsibility for the management and control of common property. Section 112 of the Act allows the owners corporation 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. Authorisation to use common property could also be given 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 owners corporation, 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 would deemed the purpose to be discriminatory. Without such approval, the use of the space would be unauthorised and could lead to enforcement action by the owners corporation under the applicable by-laws and the Strata Schemes Management Act 2015 (NSW).
In Araya v Owners Corporation SP65717 [2021] NSWCATCD 5, the owners corporation had a by-law prohibiting parking on common property without approval. The Araya’s sought approval to park in the common property disabled parking space due to Ms Araya’s disability. The owners corporation rejected the application; a key reason being 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 owners corporation’s control and management of the common property was a service under the Anti-Discrimination Act 1977. However, it also found that the owners corporation’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 Araya’s 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 that need, and may not be able to use, the disabled car space due to the conduct the lot owner. We recommend reviewing the scheme’s by-laws dealing with parking. For schemes with the model by-laws there will be one however if there is not, then the scheme should consider passing one. If there is a prohibition on parking in visitors spaces by-law then 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 then the owners corporation should also look to see if it could add another disabled parking space and potentially licence, lease or sell it to the lot owner.
Allison Benson
Kerin Benson Lawyers
W: kerinbensonlawyers.com.au
E: allison@kerinbensonlawyers.com.au
T: 02 8706 7060
This information is not intended to be personal advice and you should not rely on it as a substitute for any form of advice.