BY-LAW ENFORCEMENT TOOL KIT
By-Laws are the essential mechanism for guiding people towards appropriate and acceptable conduct. They set the standards by which everyone can live in peace and harmony. Like the laws of our country, they provide protection against conduct which affects the safety and common good of all community members.
1. Importance of By-Laws
Living in a home unit, townhouse or villa home community can have its challenges. Those challenges are usually associated with the behaviour of people (owners, tenants and visitors). By-Laws are the essential mechanism for guiding people towards appropriate and acceptable conduct. They set the standards by which everyone can live in peace and harmony. Like the laws of our country, they provide protection against conduct which affects the safety and common good of all community members.
1 This Tool Kit is suitable for use under all Regulation Modules, except for the Body Corporate and Community Management (Specified Two-lot Schemes Module) Regulation 2011.
2. Importance of enforcement
Having good by-laws in place is not, in itself, sufficient to ensure a harmonious communal environment. The by-laws need to be communicated to all stakeholders and fairly but firmly enforced. Failure to enforce the by-laws, or make people aware of their content, will diminish their effectiveness. A by-law enforcement strategy is the way to go.
3. By-Law enforcement strategy
An effective by-law enforcement strategy for a body corporate involves the following steps:
Communicating the by-laws to stakeholders (i.e. owners, tenants and other occupiers).
Identification of breaches.
Initial warning to offender.
Monitoring for any ongoing breach.
Service of a Contravention Notice on the offender.
Prosecution for failure to comply with the Contravention Notice.
Application for an Adjudicator’s Order for compliance with the by-law.
Prosecution for breach of the Adjudicator’s Order.
4. Communicating the by-laws to stakeholders
This is a very important step. People cannot be expected to comply with by-laws if they are unaware of them.
If the by-laws have been newly adopted, a letter to all owners, tenants and occupiers (or as many as can be identified) enclosing a copy of the by-laws is recommended (see Form A). In addition, a copy of the by-laws should be posted on the common property notice board, or other conspicuous place. If the by-laws have been in place for some time, a periodic letter to stakeholders reminding them of the by-laws and enclosing an up-to-date copy is recommended (see <http://www.bugdenallenlawyers.com.au/wp-content/uploads/2019/06/By-Law-Enforcement-Tool-Kit-Form-B.pdf”>Form B). Permanent display of a copy of the by-laws on the common property notice board is also a good idea.
5. Identification of breaches
This is the effective start of the enforcement process. The by-law breach must be observed and documented. Documentation can involve factual diary notes of what occurred with clear reference to date, times and potential witnesses. It can also involve the taking of photographs. This documentation will be essential if it becomes necessary to enforce the by-law being breached. Form C is an example of the type of documentation required.
Responsibility for identifying breaches must be assigned to a person or persons. If there is an on-site manager, they are usually the person who monitors performance of the by-laws, documents and reports breaches to the committee of the body corporate. Alternatively, a member of the committee, or even all committee members, can be given responsibility for monitoring the by-laws.
6. Initial warning to offender
Once a by-law breach has been identified and documented it is reasonable to provide a warning to the offender before formal enforcement action is taken. In many cases offenders are not aware of the fact they are breaching a by-law, or they fail to appreciate the impact of the breach on their neighbours. Bringing the breach to their attention will often result in remedial action and the avoidance of further breaches.
The warning can take one of a number of approaches:
- A friendly ‘chat’ with the person in breach.
- A preliminary letter (see Form D).
- A ‘sticker” placed in an appropriate position (such as the windscreen of an illegally parked motor vehicle) (See Form E).
7. Monitoring for any ongoing breach
After the initial warning, the person or persons responsible for identifying breaches should monitor further compliance with the by-law to ensure that the previous offender has not re-offended. Again, this involves observing and (if necessary) documenting in the same way recommended in paragraph 5 above.
8. Service of a Contravention Notice on the offender
There are 2 types of Contravention Notices:
- Continuing Contravention Notice where the circumstances of the contravention make it likely that the contravention will continue (see <http://www.bugdenallenlawyers.com.au/wp-content/uploads/2019/06/By-Law-Enforcement-Tool-Kit-Form-F.pdf”>Form F).
- Future Contravention Notice where the circumstances of the contravention make it likely that the contravention will be repeated (see Form G).
Issue of the Contravention Notice must be authorised by a resolution of the committee (see Form H) and the notice must be properly served. If the Contravention Notice is served on a person who is not the owner of a lot in the Scheme, then a copy of the notice must be given to the owner of the lot when the first notice is given, or as soon thereafter as practicable.
Service on an owner may be:
(a) personal (i.e. by handing it to the person to be served);
(b) by post to the address for service on the Roll; or
(c) if no such address is recorded, by post or delivery to the address of the lot.
Service on a tenant or occupier may be:
(a) personal (i.e. by handing it to the person to be served);
(b) by post or delivery to the address of the lot.
A diary note should be prepared recording details of the service (see Form I).
9. Prosecution for failure to comply with the Contravention Notice
Failure to comply with a Contravention Notice is an offence which carries a maximum penalty of 20 penalty units (currently $2,611.00). One option available if a person fails to comply with a Contravention Notice is for the body corporate to prosecute the person who failed to comply with the notice. The criminal standard of proof (i.e. beyond reasonable doubt) applies to any such prosecution.
If the likely cost of the prosecution is within the committee’s spending limit, then the prosecution can be authorised by a resolution of the committee. Because of the technical nature of these types of proceedings and the potential liability for costs if a prosecution is not successful, the body corporate should engage a lawyer to act for it in these proceedings.
10. Application for an Adjudicator’s Order for compliance with the by-law
The other option available if a person fails to comply with a Contravention Notice is for the body corporate to make an application to the Commissioner’s Office for an Adjudicator’s order requiring the offender to comply with the by-law. Service of a contravention notice is usually a required first step before such an application can be made. If an order is made and the offender refuses or fails to comply with the order, then they commit a further offence.
11. Prosecution for breach of the Adjudicator’s Order
Failure to comply with an Adjudicator’s order is an offence which carries a maximum penalty of 400 penalty units (currently $52,220.00). It is clearly a much more effective remedy than a failure to comply with a Contravention Notice. Again, the criminal standard of proof applies and because of the nature of these proceedings and the costs risk, the body corporate should engage a lawyer to act for it in these proceedings.
12. By-law enforcement by lot owners
If a lot owner is concerned about a by-law breach and the body corporate has refused or failed to take action to enforce the by-law, then the lot owner or occupier can complete an approved Form 1 (Notice to body corporate of a contravention of a body corporate by-law) and serve it on the body corporate. The body corporate then has 14 days in which to give a Contravention Notice and advise the complainant that the notice has been given (See Form J for the approved Form 1). Service of an approved Form 1 is usually a requirement before an owner or occupier can themselves make an application for an Adjudicator’s order.
FORM A – LETTER ENCLOSING COPY BY-LAWS
FORM B – BY LAW REMINDER LETTER
FORM C – BY LAW BREACH DOCUMENTATION
FORM D – WARNING LETTER
FORM E – WARNING STICKER
FORM H – COMMITTEE RESOLUTION AUTHORISING NOTICE
FORM I – DIARY NOTE RECORDING SERVICE