QLD: If a Visitor Parking By-Law Is Invalid or Unreasonable, What Parking Rules Actually Apply?

Question: Our visitor parking bylaw seems to be unreasonable and unenforceable. Does that mean people can park anywhere?

I have a specific example of a bylaw that seems unreasonable/oppressive/unworkable.

If a bylaw is “invalid” then what applies instead? Would the Body Corporate Commissioner say that as the current by-law is “invalid”, it can’t be broken as no action at all could be enforced?

Here is our bylaw:

2. Vehicles
   
   1. The occupier of a lot must not, without the body corporate’s written approval

      1. park a vehicle, or allow a vehicle to stand, on the common property
      2. permit an invitee to park a vehicle, or allow a vehicle to stand, on the common property
   2. and (c) …..standard working for approvals and cancellation of approvals…

Visitor parking spaces are not mentioned in the CMS – though we have 8 visitor parking spaces on the common property. We are in Cairns, with no council-imposed visitor parking minimum applicable.

It seems no-one is allowed to park anywhere on the common property, even in the visitor parks, without written approval!

So – what enforceable parking restrictions are currently in place? Can anyone park literally anywhere (at the ends of buildings, behind other vehicles) with no recourse (unless blocking access, which would be subjective)?

Answer: The Body Corporate and/or the Committee would not be acting reasonably if it were to enforce an invalid by-law

While the Body Corporate has a duty to enforce its by-laws, the Body Corporate and the Committee are required to act reasonably. In our opinion, it is arguable that the Body Corporate and/or the Committee would not be acting reasonably if it were to enforce an invalid by-law.

The current by-law 2 prohibits an occupier from parking, or permitting its visitors to park, on the common property, without written approval of the Body Corporate. In our opinion, by-law 2 is poorly worded and arguably permits visitors to park anywhere on the common property but prohibits an occupier from allowing its visitors to park in the visitor designated car parks without written approval. Accordingly, we strongly recommend that:

1. by-law 2 is removed and replaced with a by-law which ensures that:
   
   1. visitors are directed to park in the visitor designated car parks; and
   2. an occupier can permit its visitors to park in the visitor designated car parks without written approval; and
2. until by-law 2 is rectified, the Body Corporate provides a blanket approval to all owners in the Scheme allowing them to permit their visitors to park in the visitor designated car parks without written approval. Usually an approval of this nature would need to take into account Council restrictions regarding the use of visitor parking. However, I note that you have advised that there are no Council restrictions.

To remove and replace by-law 2, the Body Corporate will be required to:

1. obtain approval of owners at a general meeting or obtain an adjudicator’s order from the Commissioner’s Office; and
   

2. register a new community management statement.

This post appears in the July 2021 edition of The QLD Strata Magazine.

Hayley Gath
Mathews Hunt Legal
E: hayley.gath@mathewshuntlegal.com.au
P: 07 5555 8000