Finally, I get it. Yes, there is no longer a financial penalty for ignoring an NCAT order relating to a by-law breach. However, that doesn’t mean that repeat offenders are free to keep offending.
With a maximum fine $1100 for a first offence, and $2,200 for repeat offences within 12 months, there is a significant deterrent for badly behaved residents.
And since there is no need to issue a new Notice To Comply repetitions of the same breach, there’s an easier process for pursuing them.
But the deterrent effect depends on how much the by-law breach is worth to the miscreant owner. Let’s take the fairly common occurrence of tradies using their lock-up garage for storage and workshop facilities and then parking their vehicles on visitor parking.
The going rent for a parking spot in inner city suburbs is upwards of $60 a week. The going rate for secure workshops could be double that, if not more.
I’m plucking figures out of the air here, but let’s say Ted the Tradie would have to pay $200 a week for a secure workspace, or $120 a week to illegally park the family car and ute on common property.
That’s $6000 to $10,000 a year that he doesn’t have to pay if he keeps using his double garage for work and parks illegally.
Then look at the fines he might have to pay under the new regimes. Leaving aside the likelihood or otherwise of getting pinged the maximum fine for parking in visitor spaces, this is only going to happen every two months (if that).
Take into account the fact that both his tools and materials are right there on the doorstep, as are the vehicles, and you have to wonder at which financial point he decides to be a good citizen and obey the by-laws.
It’s a potential loophole, for sure, and it’s one that really needs to be tweaked or closed before we go much further.
Anyway, here’s the official response from Fair Trading
The relevant NCAT decision examined the different mechanisms for seeking monetary penalties for breaches of by-laws under the SSMA 1996 and the SSMA 2015 in order to determine if it had the power to impose a monetary penalty related to an order issued under the repealed SSMA 1996.
It is important to understand that an owners corporation does not have to apply for an NCAT order to stop a person breaching a by-law. If an occupant or lot owner is breaching a by-law, under s.146 of the SSMA 2015 the owners corporation can issue the person with a notice to comply with the by-law.
If the person then breaches the by-law, under s.147 of the SSMA 2015 the owners corporation can apply to the Tribunal for a monetary penalty which can be a maximum of $1,100.
If the person breaches the by-law again within 12 months of the first penalty, the owners corporation does not need to issue another a notice to comply, but can apply for an additional monetary penalty which can be a maximum of $2,200.
This is the new streamlined process for by-law enforcement. This removes need for the owners corporation to firstly apply for Tribunal orders that the person must comply with the by-law, and then apply for a monetary penalty.
It also increased the penalty from $550. The new process reduces both costs for the owners corporation and time delays for taking enforcement action.
Under the SSMA 2015, the penalties have been increased from $550 to $1,100, and repeat offenders can incur even higher penalties of $2,200. The purpose of the penalties is to discourage breaches of by-laws.