Question: What are the legal implications, including access rights for owners, of an unauthorised car park, and how should we proceed to rectify the situation?
We’ve recently discovered that our 15-car parking bays were constructed without the local council’s necessary development approval (DA). Our insurance company refuses to cover the car park until we obtain the required approval. To mitigate potential risks, the committee has decided to close the car park until we can rectify this issue.
Has the committee taken the appropriate action by closing the car park? Are there any legal implications for residents regarding their access to the car park?
Answer: The body corporate may restrict access to common property areas in certain circumstances.
The body corporate may restrict access to common property areas if:
- there is a compelling reason to do so, for example, security or health and safety reasons;
- an ordinary resolution was passed at a general meeting to restrict access or a by-law is inserted which restricts access.
In De Ville [2020] QBCCMCmr 361 it was found:
Arguably, a body corporate could resolve to limit occupiers’ access to common property that is not the subject of a grant of exclusive use or a formal lease or licence. However, there would need to be a compelling reason for limiting access, for example, to restrict access to body corporate equipment in a secure storage area.
Otherwise, all occupiers are entitled to reasonable use of the common property for themselves and their invitees, subject only to the limitation that a person may not use common property in such a way as to interfere unreasonably with the rights of others to do likewise. That entitlement is not subject to a person having or revealing any need or purpose in accessing common property.
… I have concluded above that the restricted-access policy restricts or changes occupiers’ use and enjoyment of common property. I therefore consider that its implementation is a decision that changes the rights or privileges of an owner. It then follows that it was a decision on a restricted issue that the committee was not authorised to make.
Development approval conditions (DAC) imposed by local councils may (and often do) include stipulations as to the number of, and ability to restrict, car parks within a community titles scheme. There are significant financial penalties for a body corporate if it breaches a DAC.
In the present case:
- assuming the car park is common property, the body corporate may restrict access to the car park if it is reasonable to do so (which may be the case in circumstances where the car park contravenes the DAC); and
- the decision has been approved at a general meeting by ordinary resolution.
Liam Boudin Mahoneys E: lboudin@mahoneys.com.au P: 07 3007 3724