Parking is at a premium in every major city, none more so than South East Queensland being the fastest growing area in the country. Hence we’ve seen a host of news headlines about Queensland residents being slapped with “fines” by private parking companies for parking in places thought perfectly acceptable such as a supermarket carpark, fast-food carpark, or even the carpark at work. The question then arises of whether or not these actions are legal and whether or not anything can be done to stop them.
Is this Legal?
The question of legality will depend on the specifics of each circumstance. Private car park operators are entitled to set fees and charges for the use of the car park which may include towing unauthorised vehicles or issuing a parking breach notice, provided those terms are clearly set out and can be seen at the time of choosing to park.
This is the circumstance typically encountered at paid parking centres in the CBD or when entering a shopping centre carpark. To ensure this practice is legal, the owners or operators of carpark must display the terms of entry to patrons prior to entry to the carpark, part of which will include a rate the patron agrees to pay for a specified duration to utilize the carpark service. Entry into the carpark, forms a contract with the owner of the carpark, pursuant to the terms and conditions set out at the entrance. It is ultimately up to the owner or operator of the private carpark to decide whether or not to apply and enforce the parking conditions.
The private contractor employed to regulate the use of the parking bays might attempt to issue a ‘parking breach notice’ for individuals breaching the terms of the contract. These may give the impression of being a fine however this is not so. The amount payable under the notice is more often than not a fee that approximates the actual cost of providing the service. Hence the parking breach notice is effectively an invoice for the service provided and must be paid.
How does it come about?
For the majority of circumstances, the carparks are run by the bodies corporate of a strata title complex and the body corporate committee has decided to enforce the bylaw relating to parking spaces. It has contracted the enforcement of the bylaw to a 3rd party private contracting company. Notably, in some strata complexes the Body Corporate has given exclusive use for spaces in the carpark to certain. These spaces should not be subject to enforcement without first agreeing to changes in the CMS. In some unique instances, usually with older complexes, carpark spaces can be marked on the title documents. In these circumstances it the property of the registered owner and the Body Corporate has absolutely no authority.
What does this mean for me?
The key takeaway is to read and understand the terms and conditions of entering into a paid or shared carpark of a property. Of course this is often easier said than done however it is important for patrons to be aware of liability under a contract which is formed on entry. Actions in breach of the contract can result in breach notices being issued which approximate the fee of providing the service which is legally payable. These notices may be appealed through the relevant channels, namely the issuing body outlined on the notice. However in terms of issuing a fine, the law is very clear that the only entity allowed to legally charge a fine or penalty is the government. Any other penalty issued by any other body is unenforceable. Notably, if the terms of the carpark are unclear and an infringement notice has been issued, then there are potential grounds for legal action. If the amount is proven to substantially exceed the loss caused to the carpark for providing the service, the infringement notice would in fact be a penalty, which is prohibited under the law.
If you have been issued with a parking breach notice or parking fine from a private company which you believe is illegal, you should contact Bennett Carroll to provide you with the legal assistance you need.