QLD: Q&A Body Corporate Rules for Cars on Common Property

This Q&A is about body corporate rules for cars on common property in QLD.

Jump directly to the QUESTION you are after:

• QUESTION: To solve our parking issues, we’ve come up with a process for allowing resident to park on common property. Is this enforceable and legal?
• QUESTION: We are addressing parking issues in our strata by implementing a criteria-based approval system. What is a reasonable criterion for rejecting applications?
• QUESTION: Can I put a fold down bollard in my allocated apartment block parking space?
• QUESTION: We have an owner who drives a truck into the common property. The truck runs over edging and damages plants on the way in and out of the complex.
• QUESTION: My car was parked in visitor parking because access to my property was blocked due to tree cutting. Someone backed into my car. Is the body corporate responsible?
• QUESTION: Two out of our three lot owners would like permission to park on common property. As we are a majority, do we need approval from the other lot owner?
• QUESTION: What are the rules about washing your car in your car park or on common property? Should there be a designated area for car washing?

Question: To solve our parking issues, we’ve come up with a process for allowing resident to park on common property. Is this enforceable and legal?

Our CMS states that parking is only allowed on common property if a resident has sole use or written permission from the committee. Residents in our complex who have parking in front of their garage have sole use of that common property. Residents who do not have enough space can fill in a pre approved application form to park on common property and they receive a yellow sticker so the manager can quickly identify an approved vehicle.

The committee has been informed that the manager cannot put a bylaw violation notice on any vehicle until the written permission process and sticker system to help the manager is added to the parking bylaws in the CMS.

Is this correct or is the written permission process just an internal system.

Answer: Apart from other issues with this process, the manager is unable to enforce the by-laws

The starting point is an owner’s right to use the common property as an exclusive parking bay. The CMS needs to provide for a specific exclusive use by-law. Otherwise the area is common property that all owners have equal rights to use. The adjudicator in Malibu [2021] QBCCMCmr 276 confirmed this position by stating:

The significance of the concept of indefinite use, or disposition, of common property has been highlighted by the Queensland Court of Appeal in Katsikalis v Body Corporate for ‘The Centre” [2009] QCA 77. The Court of Appeal found that where an improvement has the effect of granting use of part of common property exclusively to a lot owner for an unlimited period, section 187 of the Standard Module cannot be treated separately in its effect from section 184 of the Standard Module, and an improvement that would be enjoyed exclusively and indefinitely by an owner amounts to a disposition of common property for an indefinite period.

Additionally, the High Court of Australia, in Ainsworth & Ors v Albrecht & Anor (2016) 261 CLR 167, made clear that an allocation of exclusive use of body corporate airspace is a serious and significant issue.

Secondly, the manager is unable to enforce the by-laws. This is a role that is specifically reserved for the committee as it requires a decision making process to be undertaken and resolution passed. The manager’s role is limited to assisting the with by-law contraventions by reporting to the committee and seeking instructions. The adjudicator confirmed this position in Tingeera [2011] QBCCMCmr 442 by relevantly providing:

[28] A body corporate cannot delegate its powers, and cannot contract out of the provisions of the Act. Therefore, regardless of the terms of any contract with a caretaker or BCM, the responsibility for enforcing compliance with the by-laws remains with the body corporate, usually through the committee. While a caretaker or a BCM may have a contractual obligation to monitor compliance with the by-laws, that responsibility can only extend to notifying the committee of alleged breaches and implementing committee decisions. A caretaker or a BCM has no independent capacity to enforce compliance with the by-laws.

The legislation provides for a specific by-law enforcement procedure – the warning sticker system would simply be an informal internal system which operates as a precursor to the formal process and does not need to be specifically provided for in the by-laws.

Todd Garsden
Mahoneys
E: [email protected]
P: 07 3007 3753

This post appears in Strata News #485.

Question: We are addressing parking issues in our strata by implementing a criteria-based approval system. What is a reasonable criterion for rejecting applications?

I represent the BC Committee of a 23-unit residential complex. We have an issue with parking on common property, especially outside garage doors. We are addressing this by implementing a criteria-based approval system. We believe we have covered most of the needed criteria with:

• Does not block entry and exit to the complex
• Does not block entry and exit to other lot garages
• Does not block other Common Property areas such as Visitor Parking bays
• Does not prevent emergency service vehicles accessing all necessary areas
• Does not impede traffic flow.

Each unit has a double garage, but many residents are using the garage for other purposes like storage, gym, yoga classes, etc. and park outside the garage. We feel that garages should be used for their intended purpose and want to discourage the practice by rejecting applications to park on common property if the garage has been repurposed. Excluding special needs cases, is this a reasonable criterion for rejecting applications?

Answer: Your proposal sounds reasonable in principle, assuming that the areas outside the garage doors are common property.

Issues associated with parking on common property is one of the most common issues experienced in bodies corporate.

Your proposal sounds reasonable in principle, assuming that the areas outside the garage doors are common property.

Does the Body Corporate have a by-law preventing parking on common property unless the approval of the Body Corporate has been obtained?

If not, I recommend that the by-laws are updated. The proposed change requires a special resolution. Alternatively, if there is a relevant by-law, the approval can include reasonable conditions, such as:

1. the five conditions that you have listed; and
2. that a vehicle can only be parked on the common property if the garage of the relevant lot already has vehicles parked in it.

The conversion of a garage will be regulated by the by-laws (if there is a by-law that requires approval) and by any required Council approval. If the required approval has been obtained, it is likely that a requirement that the garage be used for parking vehicles will be unreasonable.

Hayley Gath
Mathews Hunt Legal
E: [email protected]
P: 07 5555 8000

This post appears in Strata News #432.

Question: Can I put a fold down bollard in my allocated apartment block parking space?

Answer: Bollards can be an effective way of controlling parking issues. Most likely you will need approval from the Owners Corporation to install a bollard.

Bollards can be an effective way of controlling parking issues.

Most likely you will need approval from the Owners Corporation to install a bollard. Contact your strata manager about your intention and they should be able to confirm what application is required.

It is advisable to select the model of bollard you have in advance and send this through to the manager so that they can clearly see what you have in mind.

William Marquand
Tower Body Corporate
E: [email protected]
P: 07 5609 4924

This post appears in the November 2020 edition of The QLD Strata Magazine.

Question: We have an owner who drives a truck into the common property. The truck runs over edging and damages plants on the way in and out of the complex.

We have an owner who drives a truck classed as a heavy vehicle onto the common property area every weekday for up to a few hours. 

Residents are fed up with the noise of the vehicle and the fact that the truck runs over edging and damages plants on the way in and out of the complex. The truck is reversed (with loud beeping) into a spare area just outside the residents unit. We are also concerned this heavy vehicle is damaging our concrete roadway as we have several patched areas now crumbling. 

Other than a breach (as the truck is only there for a portion of the day), is there something about heavy vehicles not being allowed unless delivering? 

Answer: Given that the truck has damaged the roadways, it is likely to have breached the schemes by-law.

Given that the truck has damaged the roadways, it is likely to have breached the schemes by-laws (e.g. damage to common property). The body corporate can (depending on the wording of its by-laws) issue a contravention notice in relation to the damage that has already occurred (assuming that the body corporate has not rectified the damage).

Regarding the loud beeping and other noise of the vehicle, this is likely to breach nuisance related by-laws of the scheme, as well as s.167 of the BCCM Act as it appears the noise unreasonably interferes with the use of lots and common property, and is recurrent. The body corporate can (depending on the wording of its by-laws) issue a contravention notice in relation to the nuisance and also notify the owner that the Body Corporate believes they are also breaching s.167.

If the damage is not rectified and/or the nuisance continues, the body corporate can take the matter to the Commissioner’s Office.

By-laws can only impose an absolute prohibition on vehicles over a specified weight limit using common property roadways if there is a reasonable basis for the limit, e.g. an engineer has advised that vehicles over a certain weight will damage the common property.

Hayley Gath
Mathews Hunt Legal
E: [email protected]
P: 07 5555 8000

This post appears in Strata News #383.

Question: My car was parked in visitor parking because access to my property was blocked due to tree cutting. Someone backed into my car. Is the body corporate responsible?

My car was parked in visitor parking because access to my property was blocked due to tree cutting.

On returning to my vehicle I notice someone had backed into my car, leaving a dent in my passenger door and scratches all down the left side.

Who is responsible as it was parked on common property (visitors car park) because access to my property was blocked by the tree cutting?

Answer: A body corporate will generally only be liable for damage to personal property where that damage has been caused because of a contravention by the body corporate of the legislation.

A body corporate will generally only be liable for damage to personal property where that damage has been caused because of a contravention by the body corporate of the legislation (for example, where damage has been caused by a body corporate’s failure to maintain its common property). Given that the damage was likely caused by bad driving rather than a breach by the body corporate, the property damage is not a body corporate issue.

However, you can still:

1. Report the incident to the committee or body corporate manager for discussion at the next committee meeting; or
2. request information from the committee in an attempt to identify the person responsible for causing the damage (for example, CCTV footage if it exists).

Hayley Gath
Mathews Hunt Legal
E: [email protected]
P: 07 5555 8000

This post appears in Strata News #378.

Question: Two out of our three lot owners would like permission to park on common property. As we are a majority, do we need approval from the other lot owner?

I am a Lot owner in a Small Scheme Module Triplex in Queensland with a By-Law that prohibits owners and occupiers from parking or standing a vehicle on the Common Property at any time without the approval of the Body Corporate.

The Complex is managed by a Strata Title Company and there are two committee members myself and the owner of Lot 2.

I would like to seek Committee approval for one parking space in front of the garage of each Lot for owner/occupier’s use.

The owner of Lot 3 has expressed to me that they would like to park in front of their Lot but they are not on the Committee.

The owner of lot 2 has been very difficult about this issue in the past and strictly oversees the By-Laws of the Complex to their benefit.

Can this lot owner unreasonable refuse, given that myself and the Owner of Lot 3 would really like to have the option to park in front of our Lots?

What other avenues would be available to me to get this passed?

Answer: Permission for each lot owner to park on the common property (in unallocated car parks) being included on a general meeting agenda requires an ordinary resolution, which would be achieved if you and the owner of lot 3 both voted in favour of the motion.

The Committee must act reasonably in its decision making, including in relation to requests by owners.

However, a decision for all three lots owners to have designated parks on common property would be a restricted issue for the Committee.

You may wish to consider submitting a motion to be considered at the next general meeting which proposes that all three lots be entitled to park a vehicle out the front of their lot within specific areas to the exclusion of all others.

A motion for exclusive use requires a resolution without dissent (no ‘no’ votes) and the consent of all affected owners. If the owner of lot 2 was the only lot who voted against the motion, you could challenge their opposition to the motion by an application to the Commissioner’s Office.

Alternatively, permission for each lot owner to park on the common property (in unallocated car parks) being included on a general meeting agenda only requires an ordinary resolution, which would be achieved if you and the owner of lot 3 both voted in favour of the motion.

Hayley Gath
Mathews Hunt Legal
E: [email protected]
P: 07 5555 8000

This post appears in Strata News #371.

Question: What are the rules about washing your car in your car park or on common property? Should there be a designated area for car washing?

Answer: Some bodies corporate have by-laws regarding the washing of cars

Some bodies corporate have by-laws regarding the washing of cars in car parks or on common property, which can be found in the community management statement.

It is common for the by-laws to prohibit an owner or occupier from parking or standing a vehicle on common property without prior approval. If this is the case, and to be cautious, approval should be obtained from the Committee to park your car on common property for car washing purposes.

As regards washing your car in your car park:

1. if the car park has been allocated to your lot as exclusive use, then the relevant exclusive use by-law (in the community management statement) will state whether there are any restrictions on how the car park can be used. In our opinion, a car should not be washed in a basement car park as it is likely to cause a hazard; and
2. if the car park forms part of your lot (i.e. is on title), there may still be by-laws which apply (such as not causing a hazard). However, generally a by-law prohibiting the use of a lot for a normal use (such as for car washing) will be invalid.

There is no requirement to have a designated car washing bay. If a particular scheme is required to have a designated car washing bay, the requirement will be contained in the local authority development approval for the scheme.

Hayley Gath
Mathews Hunt Legal
E: [email protected]
P: 07 5555 8000

This post appears in Strata News #362.

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Read More:

• QLD: Q&A Can a Lot Owner Convert Their Garage into a Bedroom?
• QLD: Q&A Purchasing Exclusive Use Common Areas
• NSW: Q&A Strata Obliged to Supply a Common Area Water Tap?

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