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Towing Order Explained

One of the most contentious issues in strata properties is the perennial problem of residents using visitor car parking spaces. While the sight of a resident’s car continually occupying a visitor space contrary to the by-laws can cause tensions to rise, there is no quick fix to enforcing those by-laws. Tempting as it may be, a body corporate cannot have a vehicle towed without first obtaining an order from the Office of the Commissioner for Body Corporate and Community Management. And as a recent adjudication from the BCCM shows, that process takes time, patience and evidence.
In brief, an occupier of a lot was parking their vehicle in a visitor space on a regular basis, contravening the scheme’s parking by-laws.  But rather than immediately engage a contractor to tow the offending vehicle, the body corporate started a process that would take 18 months to secure the necessary approval to allow that action to take place should the resident offend again.
The lengthy process points to the importance of clear communication between a body corporate and a resident who it believes is contravening a by-law, as well as the need to keep a record of correspondence and a log of photographic evidence. It’s worth looking at the timeline of activity it took to finally reach an adjudication from the BCCM:
  • April 2021: the body corporate writes to the resident about the issue of parking in a visitor space. The matter is not resolved.
  • June/July 2021: the body corporate issues a by-law contravention notice.
  • July 2021: the body corporate passes a resolution, seeking an order from the BCCM, In order for the dispute to be resolved, we request that the occupier of lot 145 cease parking his vehicle/s unlawfully on the common property (i.e. not within the garage of the lot or on the driveway of the lot). If the occupier of lot 145 continues to park their vehicle/s unlawfully on the common property, we seek an order to allow the body corporate to tow their vehicle/s away.
  •  October 2021: the body corporate applies for conciliation. However, the conciliator “ended the conciliation because the respondent did not make a reasonable attempt to conciliate.”
  • November 2021: the body corporate lodges an application with the BCCM, acting on the July 2021 resolution.
  • January 2022: the body corporate issues a further by-law contravention notice.
  • May 2022: the body corporate makes its submission to the BCCM. The Commissioner invites the respondent, the affected person and all owners to make a submission to the application. A dispute resolution recommendation is made, referring the file to department adjudication.
  • September 2022: the adjudicator makes their ruling. In doing so, they note:
    • As with all its functions, a body corporate must act reasonably in making or not making decisions about the enforcement of its by-laws. The legislation sets out the process for pursuing an alleged by-law breach. I am satisfied from the submitted evidence that the body corporate has complied with the statutory process for enforcing the by-laws.
    • Based on the submitted material, I am satisfied that the respondent has previously parked on common property in breach of By-law 5. Moreover, I consider it likely that conduct has continued. On that basis, I will make an order that the respondent must not park unlawfully on common property unless he has prior written approval from the body corporate to do so. Furthermore, I will declare that it would not be unreasonable for the body corporate to resolve to remove the respondent’s vehicle in future if it is parked in breach of the by-law.
    • Of course, if the respondent has not continued to park on common property contrary to the by-law, these orders should be of no concern to him.
    • Aside from the potential for his vehicle to be towed, the respondent should be aware that if he fails to comply with this order, the body corporate will be at liberty to take action in the Magistrates Court to enforce the orders and to seek a penalty for the relevant offence.
So, after 18 months the body corporate secured approval to have a vehicle towed without the need to come back for further adjudication.  The BCCM adjudicator was at pains to point out the legal complexity of the process and the importance of seeking sound advice. The problem of people parking in visitor spaces contrary to by-laws is unlikely to ever go away, but there are remedies available to a body corporate to seek a solution. However, it will require patience, a record of correspondence and proper evidence to back up the claims.
This article has been contributed by Frank Higginson,  Hynes Legal

Leave a Reply

  1. Jana Koutova, EO, UOAQ

    HI Frank, thank you for informing about this case.

    Would the body corporate be able, on the basis of this order, tow any other vehicle parked on common property (thus contravening their by-laws), or is it only relevant for this particular owner? Hopefully the answer is yes – and that after 18 months of efforts (and no doubt expense) the body corporate has a practical tool to enforce their by-law for the future….

  2. Peter Kermond

    Thanks Frank,

    Most of the literature here concerns lot owners and invitees, but some vehicle issues are outside parties such as neighbours, commuters and errant tradies.

    Interested in your thoughts about the body corporate’s ability to tow cars belonging to outside parties, my hunch is that this is a much shorter process and the BC as the owner of common property can simply tow according to the Tow Truck Act 1973 and with suitable signage, but as ever one defers to Mr Higginson.

  3. Tanya Steadman

    Towed vehicles – our body Corp tow a car if parked for more than 6 hours in a visitor space. What grounds does the car owner have to recoup the towing costs if they were not legally allowed to have this car towed? There are signs but does that mean body Corp have all necessary approvals in place for ad-hoc overstays of time in a parking space?

  4. S. Egan

    Not being clear as to whether or not the respondent was a tenant or an owner. What is clear to this reader and BCC member is that the TIO and the system in general works to favour the tenant or in this case the aggressor or antagonist of the situation.
    Out building has a number of Telcos who perch on our rooftop. They include Telstra and Optus who pay a reasonable sum to be there.
    Then some years ago we received a letter from a Sydney Lawyer that stated a small telco would be moving onto our rooftop and there was nothing we could do about it. Out lawyers told us we had no legal right to stop them. We refused to be bullied, sacked our lawyers and negotiated what ended up as 4 different Telcos paying to be on our rooftop.
    Now one of these refuses to pay the rent they agreed to and their electricity usage. They threaten to sue both us and the electrical company if we cut off their power. We ask TIO for assistance / advice, they told us they had no power to intervene.
    See what I mean? Like ASIC and APRA….TOOTHLESS TIGERS!

  5. John Hull

    Is wheel clamping, by the body corporate manager/ body corporate, also within this, ruling, if it is in the body corporate bylaws

  6. Tony Davis

    A simpler way is tow anyway, and if the offending user objects they can go through the justice system to claim back the tow-away costs. This process will take just as long for them to achieve a result. The whole system is biased towards irresponsible and arrogant users who are given every reason to expect their bad behaviour will have no consequences.

  7. Len Chapman

    We experience the same problem with Occupiers parking in Visitor Car Parks. Body Corporate Law is certainly a toothless Tiger and the requirement to be constantly “reasonable” is entirely unreasonable. My view is that Technology must be able to provide a solution whether that be via number plate recognition combined with controlled entry to Visitor Car Spaces. Towing is never a solution given the effort that has to go into that exercise. Car Park Control technology exists but has yet to be applied to Visitor Car Parks.

  8. Angela

    Hi Frank,

    Is it legal to tow a vehicle parked from the visitors carpark, whether it be owner, resident, third party if there is clear signage for residents visitors parking only and that all vehicles parked longer than the specified time limit, and the towing clause is included in the body corporate by-laws, that a vehicle will be towed?

  9. Phil Matthews

    I totally understand the frustration, as the treasurer of Body Corp facing the same challenge. My main cause of angst is toward the government who legislate without reference to us the representatives of communities. Why have by- laws if we cannot enforce them. That’s the bottom line!

  10. John A

    What about the situation where the body corporate hands over control of the common property parking spaces to a private contractor who installs cameras that record the comings and goings of vehicles using the parking via registration plate recognition along with signs detailing (in very small print) the purported conditions for parking on the property and stating time limits (2hours) that apply to visitors using the common property parking, none of which is signed as visitor parking. The by-laws require all visitor parking to be marked as such, however the building manager simply says that its all visitor parking.

    The contractor then issues parking infringement notices by mail to anyone that overstays the 2 hour limit, regardless of the time of day or night. The penalty is around $80.

  11. Sally

    If a parking permit has been granted to a resident for visitor parking and still valid and the car is towed is this illegal?
    There was no attempt of contact even though all details were taken in process of getting the permit.

  12. Victoria Addington

    It helped when you mentioned that the perennial issue of residents using visitor car parking spaces can be a contentious problem. My friend wants to get their truck towed. I should advise him to hire a towing service to ensure quality work.