This article discusses whether old strata by-laws on electric scooters still apply and what options exist to update or challenge them.
Question: Old bylaws in our QLD scheme prohibit the use of scooters. As electric scooters are used more as both mobility devices and commuters, how do we address this?
Our complex consists of free-standing homes with common area gardens and paths as well as a private road around the complex that is also Common property. The bylaws are quite old and do not permit the “use of skateboards, scooters, or roller blades on common property”. Bicycles can only be ridden in ingress or egress to an owners lot.
Some lot owners would like to use an electric scooter as a commuter and they have requested permission to ride it between their lot and the front gate. As there were no electric scooters around when the by-laws were written, is the by-law applicable or is this a grey area? In addition, what would happen if someone were to injure themselves while riding the scooter in the complex? If the Body Corporate were to give approval, what would be needed to ensure that the Body Corporate is not liable for any claims or accidents?
Also, what happens if the electric scooter is to be used as a “personal Mobility Device”? From my reading of this situation, in this instance the “scooter” fits these QLD Government guidelines. Can it be called a scooter and, therefore could it be argued that the by-laws do not pertain to the device?
As the popularity of these devices is exploding I would imagine that this is a matter that could become a big issue for Body Corporates in the future if they have by-laws about scooters.
Answer: If the by-law prohibits scooters, then there is no ability for the committee to permit their use. If the device isn’t a scooter…..
If the by-law prohibits scooters, then there is no ability for the committee to permit their use. That’s one of the perversities of by-law enforcement: technically, the committee must continue to enforce a by-law, even if it is in all likelihood invalid, right up until the point the by-law gets changed.
So, what to do now? Assuming the owner has requested permission and the committee deny it, then either the owner or committee can put a motion to a general meeting to have the by-law changed. If that motion were to fail, the owner would have the ability to challenge that decision in the Office of the Commissioner for Body Corporate and Community Management.
I can’t comment on your query re: liability for injury, you would need to seek qualified advice (e.g., legal advice, or advice from your insurance broker) about that. I’d suggest that advice would be essential if a new by-law was being contemplated and there was any thought of including in it a provision for the body corporate to have no responsibility in the event of an accident.
The golden rule: any by-law which prohibits, rather than regulates, is very likely to be invalid.
Personal Mobility Devices
If the device isn’t a scooter, then the committee could decide to give permission for its use because they are being asked to give permission on something for which there is no by-law.
That said, you need to take care here. You’ve framed this in terms of ‘your reading’ of it and that it ‘could be argued’. Which of course, means the opposite could be argued from someone else’s ‘reading’ of it. In other words, someone else on the committee may take a different view to yours and say they can’t give permission.
Which is where the need to seek qualified advice might be needed and really, where you are headed here, I think, is a review of the by-laws to get this one – and any others – up to date.
What you don’t mention is whether the device in question is related to a disability (and perhaps you don’t know that one way or the other). The committee would need to tread very carefully in making a decision about the use of a device needed to aid someone with a disability, as other laws might then come into play (e.g., human rights and disability laws).
Another fly in your ointment to consider: is the shared driveway in good condition? Has the committee been proactive in ensuring that it is even and free of potholes, cracks and other potential hazards? Because if not, and someone is going to use a device – mobility scooter, or otherwise – to traverse it, there would be every chance the body corporate would be held responsible for any damage incurred as a result (there is provision under body corporate legislation for this). That’s putting aside the injury (or worse) possibility which might arise.
This post appears in the February 2022 edition of The QLD Strata Magazine.
Chris Irons Strata Solve E: chris@stratasolve.com.au P: 0419 805 898