Kerb Your Enthusiasm - “sharing” private car parks
Michael Kleinschmidt - Stratum Legal Pty Ltd & Steve Vlatko-Rulo - Downes Group Pty Ltd
13th February 2018
What Uber did for “ride sharing” Kerb is now doing for “car park sharing”. Before you start renting out your car parking space however, have a think about the risks for you and your Body Corporate…
Back in 2010 the Oaks Group in Brisbane was fined $25,000 by the Brisbane City Council for renting out unit owners car parks. Oaks was running a Management Rights business and as part of letting out the owners Lots, it also had control of the exclusive use car parking spaces attached to those Lots.
Oaks must have discovered at some stage that, probably given the nature of its tenants, it had a surplus of car parks. Those car parks were then offered to the general public for a fee. The Brisbane City Council determined that this was, in effect, running a commercial car parking operation. That required a town planning approval. Oaks didn’t have one.
What you can do with Kerb and other similar car park sharing apps is to list your car park as available for hire by a third party at a rate and for a duration. Unless you have multiple car parks in one building it is unlikely that you (as a lot owner) will get caught in the same way that the Oaks Group was. That does not mean that your Body Corporate won’t. The common property is a ‘lot’ for the Planning Act 2016, the owner of which is the Body Corporate. If there are a sufficient number of (exclusive use) car parks being offered to the general public, then the Body Corporate could be caught; just as Oaks was.
Most lot owners would also not know that when their local council approved the development of their unit complex, that approval came with a set of conditions. Almost always there are conditions to do with the provision of car parking. The intention of those conditions is to ensure that car parks are available for use by the owners and occupiers of the development land (i.e. the unit complex) and bona fide visitors. By offering car parks for rent to persons that have no connection with the complex, there is a real risk that the development approval conditions will be breached.
Savvy local councils will no doubt start to change their standard conditions to make crystal clear that rental to third parties unrelated to the complex is not permitted; including because of the perverse traffic result. That is, more traffic being brought into the unit complex and the local area than was originally catered for as part of the development approval process. What then, if you or your Body Corporate wants to get approval to allow ‘car park sharing’?
In Queensland, public car parks are regulated under the planning law as Parking Stations. The standard definition of a Parking Station is “Premises used for parking vehicles where the parking is not ancillary to another use.” Once a car park is offered commercially, by itself, then the use is arguably not ancillary; for example ancillary to a residential or commercial leasing use of the lot to which the car park attaches. Parking stations are subject to the requirement for a development approval even in centre zones (business districts) where they are most likely to locate. Generally, Parking Stations are considered prohibited development in all other zones, such as residential and industrial. Therefore unless significant planning scheme amendments occur, ‘commercial’ car parks connected to other land uses will not obtain Council approval.
Contemporary urban planning actively seeks to discourage personal car use and promote public transport, cycling and walkability, particularly in inner city areas. Councils have approved higher density residential developments with reduced parking rates where developers have successfully argued the residents living close to their workplace are less likely to own a car. Several developments in Melbourne and Sydney have even incorporated car sharing schemes. Student accommodation is another example of this trend. There are instances where parking spaces are provided for non-residents such as in a mixed use development however planning scheme codes require separation from safe and secure parking areas for residents and other building users for privacy and security reasons. These spaces cater for the expected traffic generation of the non- residential use and there are rarely situations were there would be an over-supply of car parks that could potentially be rented out.
Here on the Sunshine Coast, (where car is King), Council is considering an application in Mooloolaba with both resident and public parking. Interestingly the public car park will be controlled by Council; see Cumming, Stuart “Massive new hotel, retail and car park development for tourist strip”, Sunshine Coast Daily, 12 December 2017. Even if you did not need, or would not breach, a development approval for your ‘car park sharing’ there are other real risks for owners thinking of renting out their car park. By-law 6 of the schedule 4 by- laws in the Body Corporate and Community Management Act 1997 provides that an occupier of a Lot must take reasonable steps to ensure that the occupier’s invitees do not behave in a way that is likely to interfere with the peaceful enjoyment of another Lot or the common property. At the very least this would mean that the car park tenant must be briefed about the rest of the by- laws for the scheme (for example as to noise, security arrangements and the like) and the owner of the car park has some way of supervising the tenant. In a well drafted set of by-laws an owner hiring out their car park who does not adequately supervise their invitee will end up being in breach of the by-laws. As a result that owner could ultimately end up being liable for prosecution and even a fine.
Even if there is no current by-law dealing with the hire of car parks, it is understandable that Bodies Corporate would introduce them. Why? Because a “secure” car parking area with an entry gate and pass keys becomes a lot less secure when one owner is handing out pass keys and access codes to enable their car parking tenant into the building! If you are thinking of renting out your car park then stop to consider these and any other issues that may be relevant to your scheme. If you are a committee member and you are worried that your private car park will soon become a public one, then contact Stratum Legal Pty Ltd. They can help you develop and implement a plan to deal with the issue.