ELECTRIC VEHICLES IN STRATA PERTINENT CONSIDERATIONS

Introduction

The issue of electrical vehicles in strata has already become a significant issue, as bodies corporate attempt to balance the rights of individuals, with the rights of the community as a whole, in a rapid and ever-changing technological space.

Many committees and bodies corporate are raising concerns about the increasing uptake and use of electric vehicles. The issues stem from the need to charge and store the vehicles’ lithium-ion batteries within scheme land. It is necessary to consider the future trend towards wider ownership of this type of vehicle by occupants of schemes generally, as this will shape the needs within schemes, meaning that committees will have to consider, re-consider, and revise their plans accordingly.

While there is some overlap, to answer the most common questions and lines of enquiry from bodies corporate, it is necessary to deal separately with electric vehicles (EVs) and E-bike/scooters (E-bikes), as they each create different sets of issues.

Issues

Common queries from committees in this space include such matters as gleaned from a recent list of issues / queries / topics raised by a particular committee in a layered arrangement complex located in Brisbane City:

• Risk of electrical fires from Electrical Vehicle (EV) Charging
• Risk and liability associated with EV (Body Corporate vs EV owners)
• Insurance issues related to EV (Body Corporate vs EV owners/personal)
• Capacity issues (electrical grid) related to EV (obligations & limitations)
• Infrastructure & EV charging allocation issues (obligations & authority)
• Capacity & infrastructure – we (PBC) are awaiting a report & possible options from external stakeholders on these issues
• Certification – installation of EV chargers, passive fire remediation, etc.
• Infrastructure upgrade (cost vs risk, obligation on Body Corporate)
• E-bikes, scooters & other items with rechargeable batteries vs EV (issues)
• Risk/liability/insurance & mitigation issues specific to e-bikes, scooters, etc.
• Car parks (EV and e-bikes/scooters) vs apartments & balconies (scooters, e-bikes, appliances, tools, etc.)
• EV by-laws (prohibition vs recommendation only) – precedents/guidance
• By-laws relating to e-bikes/scooters, etc. – prohibition vs recommendations
• E-bikes/scooters – mitigation measures (safe room on-site, registers, proof of individual insurance for battery fires, adequate by-laws, guidelines, etc.)

Clearly, many of these issues overlap, and can be broadly broken down into the following four categories:

1. Risk, liability and insurance issues
2. Capacity, compliance and certification issues
3. Responsibility for installation and maintenance costs (body corporate / owners)
4. Prohibition and regulation (e.g. by-laws)

Such matters will form the focus of this paper.

Risk of Electrical Fires

Consumers and bodies corporate alike have become alert to the possibility of electric vehicle fires or explosions caused during the charging of the vehicle’s lithium-ion battery.¹

Global data suggests that, while the occurrence of electric vehicle battery fires is extremely rare (and that the occurrence is lower than for combustion engines), the consequences can be great due to the nature of the fire. The battery is susceptible to an event known as a “Thermal Runway”, caused by damage, overheating or overcharging, which ignites the flammable electrolytes contained inside the battery’s casing.² Understandably, there is concern about fire risk and dealing with any resultant fire that may be difficult to extinguish or may escalate in severity quickly.³

The Queensland Fire and Emergency Services (QFES) and the Queensland Electrical Safety Office (ESO) are cognisant of the risks associated with these products and there is clear guidance on the safe usage of the products.⁴ It should be noted that evidence suggests that the risk of fire and explosions are far lower in EVs than in E-bikes. For perspective, globally, there were 44 EV battery fires for the first half of 2023, compared to 500 plus for E-bikes.⁵ The reasoning for this is that factors such as the quality and type of battery used in an EV is higher, the charging is more likely to comply with the guidance, and the incorrect equipment is less likely to be used.⁶

It is important that the standards and requirements of installation and maintenance of any charging systems and vehicle are followed to reduce risks.⁷ Risk of fire hazard will be reduced where the batteries and chargers used are certified by the Electrical Equipment Safety System (EESS), where users follow manufacturer guidance and where the recommendations of bodies such as the QFES and the ESO are adhered to.⁸ Being aware of the nature of the risks and the relevant practices and precautions required to mitigate those risks will assist bodies corporate to act appropriately.

Individual or Communal Charging Stations

Individual charging stations

A body corporate could choose to simply consider any requests received from owners for permission to install individual chargers in their car parking spaces (which may be exclusive use or form part of a lot). Owners can make such requests at any time, which must then be appropriately considered by the body corporate. As with any request to a body corporate in the form of an appropriately worded motion, consent cannot be unreasonably refused – as a result of the body corporate’s obligation to act reasonably (including in making a decision).⁹

In either case, as with any proposed improvement to common property, the body corporate’s approval must be sought and obtained – in the case of exclusive use car parks, because it would constitute a direct improvement to common property and, in the case of car parks on title to individual lots, because the charging facility would need to be wired into the existing electricity network for the scheme (and such utility infrastructure forms part of the common property for the scheme).

If the car parks are exclusive use to the lots in the scheme (as is usually the case with underground or multi-level apartment buildings), the terms of the exclusive use by-law become relevant to determine what an owner can do in the relevant area (and the terms to which any works in the area become subject).

Relevantly, sections 183 / 193 of the Body Corporate and Community Management (Accommodation Module) Regulation 2020 (Accommodation Module) / Body Corporate and Community Management (Standard Module) Regulation 2020 (Standard Module) provide:

183 / 193         Improvements

1. An exclusive use by-law may authorise the owner of a lot who has the benefit of the by-law to make stated improvements to the part of the common property to which the by-law applies.
2. Without limiting subsection (1), improvements stated in the by- law may include the installation of fixtures on the common property and the making of changes to the common property.
3. If the exclusive use by-law does not authorise the owner of a lot to make an improvement, the owner may make the improvement only if the body corporate authorises it to be made.
4. If the value of the improvement mentioned in subsection (3) is more than $3,000, the body corporate’s authorisation must be by ordinary resolution.

If no authority is contained in the by-laws for the relevant improvement, the usual provisions in relation to improvements (under the relevant regulation module will apply).

Such provisions, in relation to lot owner improvements, are contained in sections 177 / 187 of the Accommodation Module / Standard Module and relevantly provide:

177 / 187         Improvements to common property by an owner of lot—

1. The body corporate may, if asked by an owner of a lot, authorise the owner to make an improvement to the common property for the benefit of the owner’s lot.
2. The improvement must be authorised by ordinary resolution of the body corporate unless—

3. An authorisation may be given under this section on conditions the body corporate considers appropriate.
4. An owner who is given an authority under this section—

5. In this section—

minor improvement means an improvement with an installed value of $3,000 or less.

On this basis, it would be open to a body corporate to adopt an exclusive use by-law, or amendments to the existing exclusive use by-law, which includes provision for owners to install their own charging facilities (as of right), subject to any particular requirements regulated in the by-law. Nonetheless, it should be appreciated that the creation, or amendment, of an exclusive use by-law requires a resolution without dissent (i.e. no votes recorded against the motion).¹⁰

Bodies corporate should be further aware of sections 182 / 192 of the Accommodation Module / Standard Module, which provide as follows (in relation to the default position for maintenance and operating cost responsibility in an exclusive use by-laws):

182 / 193         Conditions and obligations under exclusive use by-law

1. If the owner of a lot included in the community titles scheme, to whom rights are in the first instance given under an exclusive use by-law, agrees in writing, the by-law may impose conditions, including, for example, conditions that require the owner to do 1 or both of the following things—

2. An exclusive use by-law is taken, in the absence of other specific provision in the by-law for maintenance and operating costs, to make the owner of the lot to whom exclusive use or other rights are given responsible for the maintenance of and operating costs for the part of the common property to which the exclusive use by-law applies.

Example of operating cost for part of common property— cost of providing lighting to the part of common property

Clearly, in the case of any such by-law, or in circumstances where the general provisions dealing with improvements to common property are relied upon, an owner should be responsible for, not only the purchase and installation costs associated with the EV charging infrastructure, but also the on-going maintenance and operating costs (including the cost of electricity to the facility, which should be capable of separate measurement and charging to the owner / occupier of the benefitting lot).

Where improvements are authorised by the body corporate, the terms of the approval should be recorded in the register of authorisations affecting common property maintained by the body corporate secretary (or body corporate manager on their behalf).¹¹

Obviously, there may come a point at which a particular improvement proposal and request from a lot owner will ‘break the Camel’s back’ in the sense of overloading the physical capacity of the body corporate embedded electrical network infrastructure such that, in order to accommodate the proposal, significant upgrades and costs would need to be incurred to ensure that the system is not overloaded.

As a general rule of thumb, committees and bodies corporate need to be aware that the ‘floodgates’ argument is usually not accepted by adjudicators as constituting a sufficient basis to reject lot owner improvement (and other types of) requests – the general rule being that each individual application must be assessed and determined on its own merits at the relevant time.

Similarly, bodies corporate cannot unreasonably refuse a request simply because it would necessitate an upgrade to the network as a whole. However, in circumstances where the lot owner refuses to pay for such upgrade, it may in fact be reasonable for the body corporate to refuse the request, or approve it subject to a condition that the lot owner pay for the necessary upgrades.

Whilst this might seem unfair, any such lot owner would have appropriate remedies to seek redress if they find themselves in such a situation. Of course, apart from taking their chances in the Commissioner’s Office by seeking an order that the body corporate’s refusal (or any conditions of approval) was unreasonable, the owner might be better off submitting a motion to a general meeting proposing that the body corporate upgrade the electrical network as necessary to make provision for future EV infrastructure applications.

Any such undertaking by the body corporate to upgrade the electrical network capacity (as opposed to simply maintaining the existing network in good condition) is likely to constitute an improvement to common property. Sections 176 / 186 of the Accommodation Module / Standard Module relevantly set out the requirements for the body corporate to effect improvements to its common property:

176 / 186           Improvements to common property by body corporate—

1. The body corporate may make improvements to the common property if—

2. However, a body corporate may not pass more than 1 ordinary resolution mentioned in subsection (1)(b) in a financial year for the body corporate.
3. For subsection (1), if a series of associated improvements forms a single project, the cost of any 1 of the improvements is taken to be more than the amount worked out under subsection (1) if the cost of the project, as a whole, is more than the amount.
4. This section has effect subject to chapter 7, part 7.
5. In this section—

basic improvements limit, for a community titles scheme, means an amount worked out by multiplying $300 by—

ordinary resolution improvement range, for a community titles scheme, means an amount that is—

1. more than the basic improvements limit for the scheme; and

Of course, a body corporate could take the initiative and determine to consider its own motion for improvements to the common property to facilitate a greater EV charging capacity in the electricity network, and the committee can consider any such proposals within the basic improvements limit or, alternatively, put a motion before a general meeting of owners (to be decided by ordinary or special resolution – depending on the cost of works).

Communal charging stations

Just as bodies corporate could determine to upgrade the scheme’s electrical infrastructure network, similarly, it could also determine it appropriate to offer communal charging facilities within the scheme.

A body corporate could choose to allocate previously unallocated areas of common property for use as communal charging stations (should there be the space available to do so) or, alternatively, it could also seek to install charging facilities for use in existing common parking areas (e.g. within the guest and visitor parking areas).

However, bodies corporate should be careful in utilising existing visitor parking for charging stations intended to be used by occupiers (as opposed to their guests and invitees). That is because, apart from the practical implications of residents taking up visitor parking spaces whilst seeking to charge their EVs, often the development approval for a scheme will require a certain number of designated visitor car parking spaces. By using existing parking spaces for purposes other than genuine visitors, a body corporate could find itself in breach of the development approval for the scheme, and on the receiving end of enforcement action by the local council.

In any event, practical difficulties are likely arise where common parking spaces are used for the dual purposes of guest parking and occupier EV charging (e.g. parking time limits, disputes about priority and use of the charging facilities by non-occupiers, etc.). Accordingly, it would be preferable for there to be a clear separation of occupier charging spaces and visitor parking.

Of course, that is not to say that a body corporate cannot look to set-up charging facilities within guest parking areas in the scheme. However, it is obviously important to ensure that owners are not paying for the electricity used by visitors to the scheme, and the infrastructure should be set-up on a user-pays basis. In fact, it should be no different for communal charging stations designed for occupiers within the scheme, who should be paying for the electricity consumed in charging their EVs. It is

inappropriate for the charges to be borne by the owners as a whole (where only some, and not all, benefit from the service).

In this respect, a utility service (such as EV charging) needs to be distinguished from common property in general, including recreational and other facilities. A body corporate cannot selectively charge particular owners for the use of a pool or lift (for example), simply because other owners do not (or even could never) use or take advantage of such facilities. For instance, take the costs of a lift by owners whose lots are on the ground floor. The ground floor owners must contribute to the costs of maintaining and servicing the lift in the same way as every other owner (despite never having a need to use it).

In respect of utilities and other types of services, sections 200 / 210 of the Accommodation Module / Standard Module relevantly provide:

200 / 210    Supply of services by body corporate—

1. The body corporate may supply, or engage another person to supply, utility services and other services for the benefit of owners and occupiers of lots, if the services consist of 1 or more of the following types of services—

1. maintenance services including, for example, cleaning, repairing, painting, pest prevention or extermination and mowing;
2. communication services including, for example, the installation and supply of telephone, intercom, computer data and television;
3. domestic services including, for example, electricity, gas, water, garbage removal, air-conditioning and heating.

1. The body corporate may, by agreement with a person for whom services are supplied, charge for the services, including for the installation of, and the maintenance and other operating costs associated with, utility infrastructure for the services, but only to the extent necessary for reimbursing the body corporate for supplying the services.

3. In acting under subsections (1) and (2), the body corporate must, to the greatest practicable extent, ensure the total cost to the body corporate, other than body corporate administrative costs, for supplying a service, including the cost of a commercial service, and the cost of purchasing, operating, maintaining and replacing any equipment, is recovered from the users of the service.

In choosing to provide communal charging a body corporate can, to some extent, mitigate risk by exercising greater control over things like quality of the materials, rules around usage, compliance of the installation, and on-going maintenance and servicing.

Where individual owners install their own chargers, the body corporate (through relevant by-laws and approval processes) can still ensure the quality and compliance of the product, and on-going obligations on the owner or occupier to mitigate such risks. However, the body corporate will always be exposing itself to greater risks under such arrangements as, in the event of non-compliance, enforcing the conditions of approval is a process (and never as efficient or effective as simply having full control over management of the relevant infrastructure).

In choosing to provide communal charging a body corporate can, to some extent, mitigate risk by exercising greater control over things like quality of the materials, rules around usage, compliance of the installation, and on-going maintenance and servicing.

Where individual owners install their own chargers, the body corporate (through relevant by-laws and approval processes) can still ensure the quality and compliance of the product, and on-going obligations on the owner or occupier to mitigate such risks. However, the body corporate will always be exposing itself to greater risks under such arrangements as, in the event of non-compliance, enforcing the conditions of approval is a process (and never as efficient or effective as simply having full control over management of the relevant infrastructure).

Insurance Issues

According to the Insurance Council Australia, owing to the early stages of EV uptake (here and globally), there is no published data on its effects on insurance costs.¹² At this stage, it is too early for insurers to have a clear risk profile regarding EVs. Insurers for community titles schemes are considering the nature of the risk, where intense heat could damage buildings structurally – a factor that may drive up premiums.

While there is the potential for fire hazards with EV batteries, the EV industry is moving towards advancement to ensure consumer confidence, and it is likely that improvements to the technology will lead to far reduced fire risks.

Nonetheless, bodies corporate should review their coverage, enact by-laws that are consistent with both the fire safety regulations and community titles legislation. The body corporate can enact by-laws that require lot owners to obtain approval to do, bring or keep things on the scheme that will increase the cost of insurance. It is also relevant to note provisions of the Accommodation Module / Standard Module, which include the following:

191 / 201    Premium

1. The owner of each lot that is included in the community titles scheme and is covered by reinstatement insurance required to be taken out by the body corporate is liable to pay a contribution levied by the body corporate that is a proportionate amount of the premium for reinstatement insurance that reflects—

1. for a lot created under a building or volumetric format plan of subdivision—the interest schedule lot entitlement of the lot; and
2. for a lot created under a standard format plan of subdivision—the cost of reinstating the buildings on the lot.

2. The body corporate may adjust the contribution payable by an owner of a lot under subsection (1) in a way that fairly reflects—

1. the extent to which the premium relates to fixtures and fittings that—

1. form part of the lot; and
2. are of a higher standard than the fixtures and fittings of lots included in the scheme generally; or

3. the extent to which the premium relates to improvements made to the common property that benefit the lot; or
4. the proportion of the total risks covered by the policy attributable to activities carried on, or proposed to be carried on, on the owner’s lot.

Example for paragraph (c)—

In a community titles scheme, the owner of a lot starts a small manufacturing business requiring the use and storage of flammable chemicals. The insurance premium for the body corporate policy is increased by the insurer because of the increased risk of damage through fire. The contribution payable by the owner for the insurance premium will include the amount of the increase.

(3) The contribution that the owner of a lot is liable for may be recovered by the body corporate as part of the owner’s annual contribution to the administrative fund.

In terms of claims and excess payments where there is an adverse event, as with any claim made on insurance, it will depend on the circumstances. Broadly, the body corporate will be liable for damage to the common property through its own policy of insurance, though it is worthwhile noting the following provisions of the Accommodation Module / Standard Module:

193 /203            Excess

1. Despite a requirement under this part to insure for full replacement value, the body corporate is not prevented from insuring on the basis that an excess is payable on the happening of an event for which the insurance gives cover.
2. However, in putting the insurance in place, the body corporate must ensure the arrangements for the liability for an excess under the insurance would not impose an unreasonable burden on the owners of individual lots, having regard to subsections (3) and (4).
3. For an event affecting only 1 lot, the owner of the lot is liable to pay the excess unless the body corporate decides it is unreasonable in all the circumstances for the owner to bear the liability.

Example—

If a shower screen is damaged in a lot and an insurance claim is made under the body corporate’s reinstatement insurance, the owner of the lot would be liable under subsection (3) to pay the excess unless the body corporate decides it is unreasonable for the owner to be required to pay it. However, if there is a fire within a lot caused by a short circuit in electrical wiring located in an internal partition, the body corporate might decide it would be unreasonable for the owner to be required to pay the excess.

(4) For an event affecting 2 or more lots, or 1 or more lots and common property, the body corporate is liable to pay the excess unless the body corporate decides it is reasonable in all the circumstances for the excess to be paid for by the owner of a particular lot, or to be shared between owners of particular lots, or between the owner of a lot and the body corporate, or between owners of particular lots and the body corporate.

Accordingly, the existing community titles legislation has provision to allow for the allocation of any increased insurance premiums to those owners where the use of their lots, or improvements to common property benefiting their lots, result in an increased premium. If an insurer identifies the risk of EV fires as a reason for increasing insurance premiums, the body corporate will be able to lawfully allocate the additional cost amongst those owners that have EV facilities in their lot or exclusive use car parks.

Similarly, the legislation also enables a body corporate, in the event of a claim arising due to the malfunctioning of an EV charging system or vehicle, to require the owner responsible to pay the excess so as not to burden other owners in circumstances where the damage has arisen due to the owner’s actions, or equipment belonging to the owner stored within the scheme.

Capacity Issues

Data suggests that the average daily usage of electricity by occupants of apartments with one or two occupants ranges from 8 – 15 kWh per day. Charging an EV from empty to full requires between 40 – 60 kWh. Average usage requires recharging the EV 2 – 3 times per week. It can be estimated that the purchase of an EV will add 30% to the energy consumption for a household.

This increase in electricity usage is an important consideration for schemes that will need to consider how they will manage the scheme’s capacity, and determine the best way to accommodate the growing demand on its electricity infrastructure as EV ownership increases.

There are a number of factors and issues to consider in relation to any scheme’s electrical infrastructure capacity, including:

1. The scheme’s current capacity, and if or when it will need to be upgraded to accommodate the totality of EV users into the future. Certain types of chargers, such as a fast, three-phase chargers, will also impact on the schemes capacity, or may not be supported by the current electrical infrastructure.
2. If the electrical infrastructure requires upgrading, the body corporate should consider how it will fund improvements, and whether it does that by entering a loan agreement or by a special levy.
3. Whether the scheme proceeds with communal charging stations or approves individual installations may be influenced by the capacity of the electrical infrastructure. For example, one communal charging station that services eight apartments is likely to be more energy efficient, and less likely to necessitate infrastructure upgrades, in comparison to eight separate installations (where occupants potentially plug in at the same time and put pressure on the system).

That said, as indicated earlier, even if a body corporate offers communal charging facilities, that does not necessarily mean that it can refuse individual lot owners’ requests to install individual charging stations in their car parking

spaces. It will be one of many factors that go to the issue of reasonableness in any decision to refuse individual installations but, ultimately, an adjudicator will determine whether any such refusals were reasonable in the individual circumstances of each case.

4. Where a scheme has individual charging stations, subject to the age of the scheme and when the scheme’s electrical infrastructure was last upgraded, it is almost inevitable that the scheme’s electricity infrastructure will reach capacity after a certain number of chargers are installed. This will result in the remaining owners who have not installed chargers being denied them at a later date (if the scheme does not upgrade the electrical grid to accommodate the demand).

Given there is a general requirement on bodies corporate not to discriminate between owners, where previous installations have been allowed to occur, it may be difficult for a body corporate to reasonably refuse additional owners to carry out the same or similar installations. Arguably, it would also be unreasonable for such owners to bear the costs of upgrading the electricity network (which benefits all owner), simply because of the timing of their application and request to the body corporate.

5. Another relevant and developing factor may be the availability and accessibility of publicly available EV charging stations in proximity to the scheme, which is likely to be another factor for an adjudicator to consider and weigh-in when determining whether any refusal by a body corporate to authorise an individual charging station was reasonable.

The body corporate should consider how it intends to manage the scheme’s needs in light of the above, as the increasing demand for electricity due to EV use will inevitably put pressure on the scheme’s electricity infrastructure. Committees should weigh up the needs of the scheme, the appetite that lot owners will have for access to EV charging on scheme land, and whether it is equitable for all lot owners to invest in the related infrastructure.

Application / Approval Processes

The specific legislative provisions and commentary regarding the application and approval process for the different installation authorities as between individual lot owner requests and improvements to the common property by the body corporate are outlined and detailed earlier in this paper. To briefly reiterate and expand upon the relevant approval processes:

Individual Lot Owners

The same process and requirements apply as with any improvement to common property by an owner.

Should the cost of the charger and installation be less than $3,000, the committee may be able to consider the request, provided the proposed installation doesn’t affect the rights, privileges or obligations of owners. Whether the rights, privileges or obligations of owners are affected by an installation may depend on whether the existing electricity infrastructure can safely accommodate the proposal, or whether the installation will give rise to a requirement for the body corporate to consider and attend to upgrades to the electricity network as a whole.

The committee can consider the lot owner’s duties when making its decision and may weigh up whether nuisance to others, or the need to prevent impact on supply of a utility service within the scheme are necessary.¹³ The committee can make its decision acting reasonably, and an adjudicator found in The Duporth Riverside¹⁴ that a committee acted reasonably when it refused approval of an individual EV charger installation while it investigated the options that would be in the best interest for the scheme in the future.

Where the installed value will be greater than $3,000, the installation would affect the rights, privileges and/or obligations of owners included in the scheme, or the matter has been made a restricted issue for the committee to decide (by the passing of an ordinary resolution at general meeting), the lot owner would require approval for the relevant infrastructure by the passing of a motion by ordinary resolution at a general meeting of the body corporate.¹⁵

Body Corporate

Depending on the improvement, a body corporate can improve the common property by installing one or more communal charging stations approved by either the committee, or by ordinary or special resolution at a general meeting (depending on the cost of the works).¹⁶

A body corporate acting reasonably can make by-laws that regulate the use of EV chargers within the scheme for the benefit of lot owners. It is recommended that the scheme’s community management statement is updated to include by-laws that regulate the use of the chargers and the parking spaces they occupy, upgrade any by- laws that regulate fire control and risk, and update parking by-laws.

Schemes will need to upgrade their fire safety equipment and protocols to comply with relevant regulations, including the guidelines provided by the QFES and the ESO.

The body corporate will need to consider matters regarding metering, body corporate supply of electricity to lot owners, including entering service agreements with lot owners (if necessary) pursuant to sections 200 / 210 of the Accommodation Module / Standard Module (detailed above).

These precise arrangements for such matters will depend on the nature of the improvements made to common property, how the electricity used to supply the EV charging infrastructure is supplied and metered, and the provisions of relevant by-laws regulating the use of the equipment.

Extent of By-Law Regulation

As discussed already, the QFES and the ESO have set out guidelines for the installation and use of EV batteries. Requiring that lot owners seek approval, which may be conditional upon certain criteria being met (such as products used are certified by the EESS and that installation can only be done by a licence electrician) will reduce associated risks. The body corporate must act in the interests of all lot owners when considering approvals and weigh the benefits against the risks.

In assessing any such requests from lot owners, bodies corporate, including committees, need to keep in mind that section 94 of the BCCM Act relevantly provides:

94           Body corporate’s general functions

(1) The body corporate for a community titles scheme must—

1. administer the common property and body corporate assets for the benefit of the owners of the lots included in the scheme; and
2. enforce the community management statement (including enforcing any by-laws for the scheme in the way provided under this Act); and
3. carry out the other functions given to the body corporate under this Act and the community management statement.

In terms of regulation under the by-laws, bodies corporate also need to be aware of the general restrictions on by-law making power. As a starting point, it should be assumed that any by-law which attempts to completely prohibit a particular activity (i.e. banning EVs from the scheme) is likely to be invalid – by-laws can only regulate, not prohibit, conduct (unless prohibition is the only way to effectively regulate a particular activity). Further, bodies corporate and committees should be conscious of section 180 of the BCCM Act and, in particular, subsections (5) to (7) which provides as follows:

180         Limitations for by-laws

(5) A by-law must not discriminate between types of occupiers.

Example— A by-law cannot prevent a tenant from using a pool on the common property.

(6) A by-law (other than an exclusive use by-law) must not impose a monetary liability on the owner or occupier of a lot included in a community titles scheme.

(7) A by-law must not be oppressive or unreasonable, having regard to the interests of all owners and occupiers of lots included in the scheme and the use of the common property for the scheme.

By-laws that prohibit EVs (and/or their charging) on scheme land, or prohibit the installation of charging stations, will likely be considered oppressive and unlawful. As discussed above, by-laws can be introduced to regulate the approval process, the use of charging stations, and outline the compliance required to mitigate risks (e.g. fire hazards) and the impact on the insurance position of the body corporate. The body corporate should look to update its by-laws once there is a decided approach on how it will manage EVs charging within the scheme.

E-bikes and E-scooters

The fire hazard risk for E-bikes occurs because the battery is susceptible to an event known as a “Thermal Runway”, caused by damage, overheating or overcharging, which ignites the flammable electrolytes contained inside the battery’s casing.¹⁷ The incident likelihood associated with E-bike batteries is higher than for EV batteries, due in part to the lower cost and build quality of E-bike batteries. The ACCC recommends that “consumers should avoid mixing and matching chargers, unplug products when fully-charged, and charge batteries in a cool, dry place and away from combustible materials like beds, lounges or carpet”.¹⁸

Unlike EVs, which owners park and charge in allocated car parking spaces, E-bikes are portable and can be stored in apartments. The E-bike’s portable nature also necessitates that owners have a secure place to store them when not in use, or they risk the E-bike being lost or stolen property. Bodies corporate must balance the management of risk within the scheme against the needs and interests of occupants who own E-bikes (including E-scooters and the like).

The body corporate should also consider that the use of the lithium-ion battery is not restricted to EVs and E-bikes. The batteries are used in a growing number of consumer products and the risks, while they vary, apply to all batteries of this kind.

Schemes have a number of options to deal with such issues, including updating by- laws to regulate the safe use of E-bikes and other similar products within scheme land, and to require compliance with other applicable regulatory requirements. While there might be an appetite within committees to take the approach of prohibiting E-bikes from scheme land, similar to prohibitions on EVs and related facilities, this is also likely to be oppressive and unlawful.

A body corporate can manage the use of E-bikes within the scheme by providing for safe secure spaces within the common property for the storage and charging of E- bikes. This may be an option, however, will not guarantee compliance. Otherwise, the body corporate can encourage the safe storage and charging of E-bikes, within lots, by having appropriate by-laws and education/signage.

In light of the need to regulate use of E-bikes, to mitigate risk and reduce the cost associated with property damage and insurance claims that may result from fire incidents, a body corporate can update its by-laws to regulate their use. As with EVs, simply prohibiting E-bikes is likely to be oppressive and unlawful. By-laws can be utilised in such a way that regulate E-bike use, including charging and storage.

Education is another important tool that the body corporate can utilise as it encourages safe, responsible use of E-bikes, much like pool safety signage achieves. The committee will need to consider its approach and do so with the interests of all of the owners of the scheme in mind (consistent with its functions under section 94(1) of the BCCM Act).

This article is general information about relevant considerations of electric vehicles and is not, nor intended to be, legal advice. Specific advice should always be sought based on your particular circumstances. Grace Lawyers accept no liability to any party that relies on the contents of this document for their own purposes.

Article contributed by Grace Lawyers

1. https://www.insurancebusinessmag.com/au/news/breaking-news/ev-charging-stations–what-are-the-risks-and- insurance-implications-477557.aspx

2.  https://stratacare.com.au/the-risks-of-charging-lithium-batteries-in-apartments-a-comprehensive-guide/

3. https://www.productsafety.gov.au/products/electronics-technology/lithium-ion-batteries

4.  https://www.qfes.qld.gov.au/safety-education/battery-and-charging-safety/electric-vehicle-fire-safety

5. Insurers still assessing EV fire risks (goauto.com.au)

6.  https://www.electricalsafety.qld.gov.au/lithium-ion-battery-operated-equipment-including-electric-scooters

7. https://www.eess.gov.au/

8. Insurers still assessing EV fire risks (goauto.com.au)

9. Section 94(2) and 100(5) of the Body Corporate and Community Management Act 1997 (BCCM Act)

10. Section 171 of the BCCM Act.

11. Sections 217 / 228 of the Accommodation Module / Standard Module.

12. Insurers still assessing EV fire risks (goauto.com.au)

13. https://smartstrata.com/electric-vehicles/; ss 166 & 167 of the Body Corporate and Community Management Act 1997.

14. [2023] QBCCMCmr 494

15. ss 177 / 187 Accommodation Module / Standard Module.

16. ss 176 / 186 Accommodation Module / Standard Module.

17. https://stratacare.com.au/the-risks-of-charging-lithium-batteries-in-apartments-a-comprehensive- guide/

18. https://www.accc.gov.au/media-release/consumers-urged-to-use-and-store-lithium-ion-batteries-safely-to-prevent-deadly-fires; https://www.electricalsafety.qld.gov.au/lithium-ion-battery-operated-equipment-including-electric-scooters