Question: We have a car stacker in our QLD body corporate. Our Bylaws state that owners have exclusive use of the car stacker and are responsible for its maintenance. However, wouldn’t the car stacker be classed as utility infrastructure?
Our unit block has a mix of car stacker system parking and ‘normal’ parking. 12 of 15 units have car stackers. 2 motors drive the car stackers.
The motors are regarded as Body Corporate property. Our by-laws state that owners own the car stacker and have exclusive use. They also state that owners are responsible for any cost in relation to the operation, maintenance, repair or replacement of the car stacker or any of its component parts and costs are not recoverable from the body corporate.
The QLD Government website provides a definition of utility infrastructure. Would the car stacker parking system fall into this definition as ‘another system or service designed to benefit a lot or common property‘? How does this fit with the by-laws? Do by-laws take precedence? Where does liability rest if a personal injury accident is sustained on the car stacker?
Answer: The exclusive use by-law would transfer the maintenance obligation of the car stacker to the lot owner.
The car stackers would amount to utility infrastructure within the scope of the definitions of the BCCMA. Section 20 of the BCCMA then provides that utility infrastructure is common property.
The important distinction with grants of common property is that they cannot be given over utility infrastructure as section 177 of the BCCMA relevantly provides:
An exclusive use by-law must not give exclusive use to the rights and enjoyment of, or other special rights about, utility infrastructure that is common property or a body corporate asset.
Accordingly, the exclusive use allocation related to the car stacker would be over the common property airspace where the car stacker is located as opposed to the car stacker mechanism itself.
The exclusive use by-law would then transfer the maintenance obligation of the car stacker (but not its nature as common property) to the lot owner.
Liability for injury is, unfortunately, a very open ended question as it would depend on a number of factors including the cause of the injury, whether the stacker was being properly maintained, whether there was a manufacturing fault, etc.
This post appears in the February 2022 edition of The QLD Strata Magazine.
Todd Garsden
Mahoneys
E: tgarsden@mahoneys.com.au
P: 07 3007 3753
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