By-law basics – enforcing by-laws
A body corporate has a legislative obligation enforce its by-laws. This is established under section 94(1)(b) of the Body Corporate and Community Management Act 1997. In this article I will note some issues regarding by-law enforcement.
The following are some general matters for a body corporate to consider.
As with all of its functions, a body corporate must act reasonably in enforcing its by-laws (section 94(2) of the BCCM Act). It may not, for example, be reasonable for a body corporate to take formal steps in regard to a technical but very minor or one-off breach of its by-laws.
Section 95 of the BCCM Act gives a body corporate the powers necessary to carry out its functions, including enforcing by-laws. However under section 97 a body corporate cannot delegate its powers.
A committee can make a decision on behalf of the body corporate about the enforcement of by-laws (except to the extent that it is a restricted issue for the committee). However neither a body corporate or committee member can delegate to any individual, including a committee member, body corporate manager or caretaker, the power to enforce the by-laws. One of these persons may have a role in notifying alleged breaches to the committee, or issuing a contravention notice that the committee decides to send, but they do not have a decision-making role with regard to by-law enforcement.
Section 94(1)(b) of the BCCM Act provides that a body corporate must enforce its by-laws ‘in the way provided under this act’. As I will outline below, the BCCM Act provides for by-laws to be enforced against owners and occupiers through the issuing of a contravention notice followed by proceedings in the magistrates’ court or the commissioner’s office.
If a body corporate tried to enforce the by-laws in some different way (such as directly imposing a fine, clamping or towing a vehicle, or banning access to part of common property) this would be contrary to the BCCM Act. Moreover, if such steps were taken without issuing a contravention notice, there would be no opportunity for the alleged offender to refute or remedy the claimed contravention or for an independent assessment of whether the by-law has actually been breached and by whom.
If a body corporate reasonably believes that an owner or occupier has breached a by-law, in the first instance it may seek to approach the alleged offender informally.
The first formal step is to issue a continuing or future by-law contravention notice to the alleged offender. The Commissioner’s Office provides BCCM form 10 and 11 for this purpose. The body corporate does not have to use these forms but if it doesn’t it must ensure that it sends a single notice with the following items:
A contravention notice must specify in a single document:
• That the body corporate believes the person is breaching a provision of the by-laws;
• The by-law provision the body corporate believes is being breached;
• Sufficient details to identify the contravention;
• That the person must not repeat the contravention, or a reasonable period in which the person must remedy the contravention; and
• That if the person fails to comply with the notice the body corporate may, without further notice, start proceedings in the magistrates’ court or lodge a dispute resolution application.
It is important that the contravention notice names the person the body corporate thinks is breaching the by-law. If the person breaching the by-law is an occupier, the notice must name the occupier, not the owner. However the body corporate must give a copy of the notice to the owner.
If the body corporate is notified of an alleged breach of the by-laws by someone else, it should only issue a contravention notice if it reasonably believes that the by-law has in fact been breached. It should not issue a contravention notice if it does not believe the by-law has been breached. If an alleged offender does not remedy the breach after being sent a contravention notice, the body corporate can then lodge an application with the Commissioner’s Office. The application must name the alleged offender as the respondent. Normally a conciliation application must be lodged in the first instance.
The body corporate may alternatively commence proceedings in the magistrates’ court for the offence of failing to comply with the by-law contravention notice.
If an owner or occupier believes a by-law has been breached, the first formal step to address the matter is to make a formal complaint to the body corporate using the BCCM form 1. This notice must name the person that the complainant believes is breaching the by-law.
If the body corporate does not issue a contravention notice to the alleged offender, or doesn’t tell the complainant either way, the complainant can lodge an application (normally a conciliation application) against the alleged offender. However the complainant will need to have demonstrated that they have tried to resolve the matter directly with the alleged offender as well.
Alternatively, if the body corporate tells the complainant within 14 days that they have issued a contravention notice to the alleged offender, the complainant cannot pursue a dispute with the alleged offender. The body corporate is then responsible for taking action if the contravention notice is not complied with.
However if the body corporate does not then take action, the complainant can pursue the body corporate for failing to enforce the by-laws.
In exceptional and urgent circumstances (see section 186 of the BCCM Act) an application can be lodged in the Commissioner’s Office without the required notices having been issued.
