Question: A lot owner rents out their unit but uses the attached marina berth to moor their boat. Should they park in a visitor parking space when they use the boat? Sometimes, friends accompany them and also use the visitor parking space.
Answer: An owner will not be a visitor, even when they do not occupy their lot at the scheme.
Generally, visitor parking must remain available at all times for use by visitors to the scheme. The adjudicator in Sailz Whitsunday [2009] QBCCMCmr 305 explained:
“I am of the view that if a local government requires that a certain number of spaces or areas are provided for visitors to residential units, then such spaces must always be available. … They must be there to accommodate visitors’ cars and to prevent congestion and on-street parking where the scheme is required to provide off-street parking. That must be the point of a visitor’s car park.
Unless specifically stated, I am of the view that visitor car parking must be freely accessible to visitors with no encumbrances.”
An owner will not be a visitor, even in circumstances where they do not occupy their lot at the scheme. This is because:
- Section 35(4) of the Body Corporate and Community Management Act 1997 (Qld) relevantly provides:
If the occupier of a lot is not the lot’s owner, a right the owner has under this Act to the occupation or use of common property is enjoyed by the occupier.
- adjudicators define visitors as those who call upon occupiers.
Accordingly, this owner will generally have no right to park their vehicle within a visitor carpark at the scheme or moor their boat (unless this was not part of the tenancy arrangements with the occupier).
The enforcement action available to the body corporate in respect of this conduct will, however, depend upon the terming of the relevant by-laws for the scheme, or if it wishes to rely only upon the legislation in this regard.
This post appears in the April 2025 edition of The QLD Strata Magazine.
Connor Mahoney Mahoneys E: tgarsden@mahoneys.com.au P: 07 3007 3753