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There’s always a lot of hype in the build-up to legislative change, even when the changes proposed have been in the pipework for more than a decade and some of them, like pets and smoking, aren’t changing at all – they are just restating what adjudicators have been telling us for years.

Legislative change in this sector moves at a glacial pace. The only good thing about that is bodies corporate have ample time to prepare themselves for change.

For almost 27 years, bodies corporate have been stuck with a dispute resolution system that simply doesn’t work when it comes to enforcing parking by-laws. So, it’s understandable some committees are getting very excited about the prospect of towing.

It is a significant change. No longer will the committee need to follow the usual dispute resolution processes – filling out forms, going through conciliation and adjudication, waiting for months for an order, racing off to the Magistrate’s Court for enforcement (assuming the offending vehicle is still parked in the visitor’s car park 12 months after the aforementioned proceedings kicked off). Instead, committees will be able to take matters into their own hands and tow offending vehicles away.

But before you get too trigger-happy, the committee can’t tow vehicles carte blanche – it must comply with the common law and other laws specific to towing. For example, get used to hearing about the Transport Operations (Road Use Management) Act 1995 (TOA)… more legislation to add to the committee’s reading list!

Before a body corporate tows a vehicle, it should approve and implement a towing policy to ensure it complies with the relevant requirements of the law. For example, it should:

  1. ensure appropriate signage is displayed at the scheme, identifying parking rules and the consequences of non-compliance;
  2. engage a towing contractor (but don’t forget that ultimately the committee is responsible for discharging its obligations in relation to towing – so, don’t let third party contractors dictate the terms of your towing policy).
  3. implement a system of registration for all vehicles parked at the scheme (so the owners of the vehicles can be identified – there are emerging technologies to assist with that including self-registration of vehicles via apps which record the contact details of visitors and the duration of their stay);
  4. give reasonable notice to the owner of the vehicle before towing a vehicle (what’s reasonable will depend on the circumstances – for example, if the vehicle is blocking access, it might be reasonable to give little or no notice before towing);
  5. ensure the decision to tow the vehicle is made by the committee (the committee cannot delegate that power to another person, such as the building manager or another service provider, such as an external parking administrator).

Although it’s likely the cost of those things will fall within the committee’s spending limit, we recommend they be considered by the body corporate in a general meeting (by ordinary resolution) to avoid any argument that the implementation of the towing policy is a restricted issue for the committee.

Don’t fall for the hype – there is no need to change the by-laws to enable a committee to tow a vehicle. The ability to tow comes from the new provisions of the Act, not from the by-laws.

But why not incorporate these things into the by-laws?  Let’s think about that.

Parking by-laws are there to regulate parking on scheme land by residents and their guests. If residents are using visitor parks as a permanent home for their seldom-used jet ski or if bona fide guests are outstaying their welcome, the committee can enforce the by-laws to make sure people park where they are supposed to.

By-laws that impose positive obligations on the committee are futile since the committee is charged with the obligation to enforce the by-laws. What self-respecting committee is going to enforce a by-law against itself?

Towing is risky business. What if the Maserati gets scratched after the committee authorises it to be towed away. Best if you chat to your insurer about that before implementing your towing policy.

Towing is not for everyone. Tow trucks generally can’t access basement car parks. And if you think you can clamp wheels as an alternative to towing, read the TOA and think again!

In summary, before you tow, toe the line – adopt and implement a towing policy (and don’t worry about updating your by-laws… the money you save can be invested into your shiny new signs and parking app).