Clamping – how it can be done legally

There’s a lot of confusion about whether or not we can clamp illegally parked cars.  Beverley Hoskinson-Green of our sponsors Makinson & d’Apice, give us the definitive answer – even if it is, yes and no.

The way it works is this:

• The Local Government Act (LGA) prohibits (in an obscure part – sections 651A, 651B and 651C – I’d call that buried, wouldn’t you?) wheel-clamping and towing of vehicles without the consent of the owner.
• The by-laws for a strata scheme bind the owners corporation, owners and occupiers (and mortgagees, covenant chargees in possession, lessees etc etc) to the same extent as if they had been signed and sealed by each of them and the by-laws contained mutual covenants to observe and perform all of their provisions (section 44(1) of the Strata Schemes Management Act (SSMA)).
• Those words (signed and sealed) mean that the by-laws operate as deed and the obligations in the by-laws operate as a covenant on the part of the owners corporation, owners and occupiers (and mortgagees, lessees etc etc) to observe and perform their obligations arising under them.
• A covenant is an agreement, promise or pledge on the part of one person to do something or observe or be bound by something.
• As a result, a properly worded by-law providing for the wheel-clamping or towing of a vehicle owned by an owner, lessee or occupier (or any mortgagee, etc etc) that is parked on the common property in breach of the by-laws operates as a consent to that wheel-clamping or towing for the purposes of the LGA.
• The problem with the by-law approach is that, while section 44 of the SSMA provides that by-laws bind owners corporations, owners, occupiers and lessees, it does not include any reference to visitors.
• So the tradesman who parks his ute in the driveway, the commuter who parks in visitor parking and all the other sundry visitors to the strata scheme who leave their vehicles littered around the common property can’t be lawfully wheel-clamped in reliance on a wheel-clamping by-law.

There are other problems with the by-law approach.

First, it is very difficult for owners corporations to get a towing company to tow a vehicle away in reliance on the by-law.  They have it firmly fixed in their collective minds that private towing of vehicles without a direction from the owner of that vehicle is illegal and that they will be fined if they do it.  Explaining the fine points of the law of deeds, covenants and by-laws to tow truck operators tends to fall on deaf ears.

Secondly, while an owners corporation can itself affix a wheel-clamp to an offending vehicle, when it comes time to remove it, most members of the executive committee or a building manager, caretaker or the like don’t want to deal with a very irate illegal parker.  Rather, it would be best if a security company is hired to both affix the wheel-clamp and attend to its removal.  The problem with that is that you run into the same issue as with the towing companies – convincing them that wheel-clamping in accordance with the by-law is lawful.

Thirdly, there is a technical issue arising under the LGA provisions which prohibits the wheel-clamping of “a vehicle owned by any other person …except with the consent of that other person”, which gives rise to questions about the ownership of the actual vehicle (in addition to the issue as to whether the vehicle was parked unlawfully by an owner or occupier of a lot in the strata scheme).  There are arguments about the implied consent of an actual owner which I won’t go into here.  But it is another issue that makes the by-law approach less than satisfactory.

Now, having said all that, I act for a very large strata scheme at St Leonards that is quite close to St Leonards railway station.  They have had significant problems with commuters using their car park to “park and ride” and with residents using visitor parking as their second car space.  The owners corporation adopted a wheel-clamping by-law I drafted over a year ago and the building manager has wheel-clamped a very small number of vehicles.  The effect has been to stop the illegal parking both by the trespassing commuters and by residents parking in breach of the by-laws.

Beverley Hoskinson-Green

Partner l Makinson & d’Apice, Lawyers

Level 12, 135 King Street, Sydney NSW 2000

Website http://www.makdap.com.au