This article is about sustainability infrastructure in NSW.
Recently I was asked two questions about the EV charging of vehicles in schemes. EV charging is becoming a concern for our schemes due to the uptake of electric and hybrid vehicles. The questions were not about how to install an EV charging system but about regulating the use of common property power and whether there is a power to regulate the use of EV chargers in lots in a community title scheme. The questions and my answers are below:
Question 1: Can an Association have a by-law to restrict or control what lot owners do with respect to EV Charging on their own lot?
An Association has very broad powers to make by-laws. This includes by-laws regulating conduct within a lot. While it is now subject to the requirement that a by-law not be harsh, unconscionable or oppressive under s130(1) of the Community Land Management Act 2021, if there is a genuine fire safety concern about the use of EV charging then this would likely not fall afoul of s130(1) provided that it regulated the use (not prohibited it outright) and limits being imposed were reasonable. This is because regulating the use of EV chargers would be a restriction of the lot owner’s property rights and there must be a very good reason to do so.
I did a blog recently on s139(1) of the SSMA which is the same as s130(1) of the CLMA. In the blog I talk about the test used. It is here: Please review your by-laws! Absolute prohibitions are generally not okay.
Question 2: What can be done if owners / occupants are using common property power points in basement car parks to charge their vehicles?
This is an issue of safety, entitlement to use resources (in this case common property electricity) and potentially of obstruction of the common property. I’m going to assume this question related to a strata scheme.
First, are there any by-laws regulating the use of the common property or lots for the purposes of EV charging? If not, I suggest the scheme invest in such a by-law so that the use (or non-use as the case is here) can be enforced.
Second, using the CP’s energy could be theft but does the person doing this know the common property power point is not theirs to use or that it is common property not lot property? Does using the power point (and the power) amount to stealing in law? If we look at the essential elements of the criminal offence they are:
- that the property must belong to someone other than the accused;
- it must be taken and carried away; and
- the taking must be without the consent of the owner of the property.
Beyond those three elements or requirements, there are an additional three elements which relate to the accused’s mental state at the time of the taking, namely:
- the property must be taken with the intention of permanently depriving the owner of it;
- the property must be taken without a claim of right made in good faith; and
- the property must be taken dishonestly.
So that the owner or occupant is aware that the owners corporation does not consent to the use of the electricity and that they know it is not theirs to use I recommend clearly labelling each CP power point as “Common Property – Owners Corporation’s use only” or something similar. I would also send around a newsletter, letter or email letting lot owners know not to use the power points. This notice could also go in each letterbox (to get to the occupants) and be placed on the noticeboard.
Thirdly, assuming the scheme has the model by-laws, there may be a breach of the by-laws that could be actioned by a notice to comply being issued or mediation followed by an application for an order to restrain the behaviour (note if an application for an order to restrain the behaviour there would need to be a safety risk that needs to be alleviated or a real obstruction on the common property or burden financially on the owners corporation that can be provide otherwise it may seem frivolous). What by-law has been breached?
Model by-law 1 deals with parking of motor vehicles on the common property. It requires approval. Is the lot owner or occupant parking their car on the common property to use the power point? This is the most likely by-law to have been breached.
1 Vehicles
An owner or occupier of a lot must not park or stand any motor or other vehicle on common property, or permit a motor vehicle to be parked or stood on common property, except with the prior written approval of the owners corporation or as permitted by a sign authorised by the owners corporation.
Model by-law 4 deals with obstruction of the common property. Running a power cord from a lot car space over a common area may be an obstruction of the common property but it would have to be done on a recurring basis to trigger a breach of by-law 4:
4 Obstruction of common property
An owner or occupier of a lot must not obstruct lawful use of common property by any person except on a temporary and non-recurring basis.
Model by-law 10 deals with the preservation of fire safety. This is a stretch unless it can be proved that using the power point or the manner in which it is being used would reduce the level of fire safety in the lots or the common property:
10 Preservation of fire safety
The owner or occupier of a lot must not do any thing or permit any invitees of the owner or occupier to do any thing on the lot or common property that is likely to affect the operation of fire safety devices in the parcel or to reduce the level of fire safety in the lots or common property.
I strongly recommend scheme’s think about obtaining a by-law to regulate the use of EV chargers in lots and on the common property rather than trying to use the model by-laws to do so.
Allison Benson Kerin Benson Lawyers E: allison@kerinbensonlawyers.com.au P: 02 4032 7990
This is general information and should not be considered to be legal advice. I recommend you obtain legal advice specific to your individual situation.
This post appears in Strata News #705.
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Read next:- NSW: Sustainability Infrastructure Survey
- NSW: Q&A Installing Electric Vehicle (EV) Charging Stations in Strata
This article has been republished with permission from the author and first appeared on the Kerin Benson Lawyer website.
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