If a body corporate decides to tow a vehicle, they must act reasonably.
This new legislation has taken a few steps in relation to towing. The first step is to recognise towing explicitly. And that’s a new thing. The legislation now provides that, yes, the body corporate can tow. But the process around that is the interesting thing.
In effect, the body corporate doesn’t need to go through the usual by-law enforcement process before it tows a car. It doesn’t need to go through conciliation, issuing form 1s or form 10s, applying to the Commissioner’s Office for an order that the car be towed and then wait for whatever period it takes for that order to arrive. This has always been the issue because waiting six months for an order to tow a car is unrealistic.
The government has basically said, ‘Go for it!’. You’ve got to comply with whatever the laws might be, which is the Transport Operations and Road Use Management Act, which relates to signs implying consent and all that stuff, which we’re not talking about today. You can only tow owners and occupiers under the BCCM Act. You can’t tow third parties under the BCCM legislation. That means these changes do not capture ‘visitors’ and ‘invitees’. And remember – neither of those terms are defined in legislation! Nor is an ‘occupier’!
So, that’s simple in theory, but the explanatory note had some very interesting commentary.
It says that if a body corporate decides to tow a vehicle, the body corporate must act reasonably. There are still rights available to an owner or occupier to dispute the body corporate actions, and the body corporate may still be liable if the decision to tow is found to be unreasonable or unlawful.
This seems very deliberate from the government. On the one hand, they’ve provided this quite new approach to towing, but then, on the other hand, they’ve given bodies corporate a pretty big reminder that they need to be careful about what they do.
We urge caution to anybody who thinks this means it’s carte blanche to tow. Yes, the options are now there to tow, but you must be careful.
It is not the free for all that people might think it is. The legislative intent is to resolve things without going to third parties like the Commissioner’s office. It would be crazy to tow a car without trying to find out who it belongs to and asking them to move. That is very unlikely to be capable of being defended as a reasonable decision.
There will no doubt be people who do it. Our issue with this legislation is that the explanatory note says, ‘Hey people, be reasonable’, but there’s nothing as prescriptive to that effect in the Act.
Let’s present this scenario. You’ve got a high-rise building with predominantly a high turnover of tenants. You’ve got somebody who signed a 12-month lease in the building only one or two weeks ago. They haven’t seen the by-laws. They park in a spot they believe quite reasonably is space in which they can park, particularly if there’s no signage or the signage isn’t clear. Is it reasonable to tow that person? If they parked there for an hour over the length of time? I think there are several factors that would lead you to think it might not be reasonable.
If you’re defending one of these positions from a body corporate perspective, when you’re towed someone without trying to talk to them, you must be able to answer ‘Why’ and be able to justify that to whoever is asking, which is more than likely to be an adjudicator.
A short note here: the issue of an ‘abandoned vehicle’ is not really covered by these changes. By that, we mean a vehicle abandoned on common property, it doesn’t belong to an owner or occupier, or despite all the best efforts of the body corporate, they cannot track down the owner of the vehicle.
A final, tiny side note is that ‘Motor vehicle’ here has the same definition as it does under the transport laws. It does not include a motorised mobility device, a motorised scooter, a personal mobility device, or a power assisted bicycle. It may not even include a golf cart!
This post appears in the November 2023 edition of The QLD Strata Magazine.
Frank Higginson
Hynes Legal
E: frank.higginson@hyneslegal.com.au
P: 07 3193 0500
Chris Irons
Strata Solve
E: chris@stratasolve.com.au
P: 0419 805 898
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