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Parking in private car parks

Information about the law for people who park in private car parks like supermarkets.

Private companies do not have the power to issue fines to motorists. They are not allowed to place wheel clamps or to tow away vehicles that are parked on their private land.

Penalty

The maximum penalty for unlawful towing or detention of a motor vehicle is 20 penalty units.

See s. 90C—Road Safety Act 1986 (Vic)(opens in a new window).

Many private companies such as supermarkets allow drivers to park free for a number of hours. Sometimes they require drivers to take a ticket and display this in their windscreen. If the driver does not comply with this request the company will try to get some payment from the owner. Usually they will leave some kind of notice on the vehicle's windscreen seeking payment.

Private car parks and misleading notices

Some private car parks have tried to make their notices appear similar to an infringement notice in the hope that a driver will believe that they have been 'fined'. The Supreme Court took a very dim view of this practice in a matter heard in April 2012.

Private companies can no longer apply to court for an order permitting access of the registered owner from the VicRoads database for the purpose of finding the owners of cars parked illegally. Without getting the owner's name and address they will not be able to issue demands for payment.

See s. 90R—Road Safety Act 1986 (Vic)(opens in a new window) and Road Safety Amendment (Private Car Parks) Bill 2015 (Vic)(opens in a new window).

Supreme Court makes it clear that this behaviour amounts misleading and deceptive conduct

In this case the car park, Ace parking, was issuing documents that stated that it was imposing 'penalties' and that an 'offence had been committed' and in some cases threatening to clamp vehicle wheels. Over a period of just under 2 years (31 March 2007 – 26 Feb 2009) the company issued 7,468 demands for payment and received $231,610 in payments in response to these demands.

Consumer Affairs Victoria (CAV) tendered evidence by affidavit from several people who had been fined in this way. The director alleged that this behaviour, amounted to misleading and deceptive conduct, harassment and coercion. CAV sought and were granted: injunctive relief, an adverse publicity order, refunds for the people who were fined and contribution to CAV costs.

See Director of Consumer Affairs Victoria v Parking Patrols Vic Pty Ltd & Anor [2012] VSC 137 (13 April 2012).

Do people have to pay these fines?

Private car park operators base their demands for payment on claims that the driver has breached a contract that was made when they entered the car park. Operators claim that by not displaying their ticket, the driver is breaching a term of this contract. They claim that the demand that they are making for payment represents a loss that is suffered by the company.

VCAT found a private parking fine unenforceable

In May 2014 VCAT found that a private car park's claim for $88 in liquidated damages for breach of a car park contract was really a penalty and therefore unenforceable.

See Vico v Care Park Pty Ltd (Civil Claims) [2014] VCAT 565.

The Consumer Action Law Centre (CALC) points out that the law remains unsettled, however if a binding contract is created by the driver entering the car park, then it could be argued that certain terms of the contract are unfair and that the amount that is demanded is a penalty rather than a genuine assessment of the company's loss.

How to proceed

CALC suggests that if a person gets a 'fine' or penalty notice on their windscreen in such a parking area that they can choose to:

  • do nothing—then the company will have to write to court to get the person's details from VicRoads. They are unlikely to bother doing this for a one-off matter
  • name the actual driver—if the person 'fined' was not the driver they can write to the company and explain the situation, notifying them who was driving at the time
  • issue legal proceedings against the company at VCAT—many drivers have done this and fines have all been waived rather than risking a test case.

See 'Private car parking fines' in Consumer Action Law Centre—Fact sheets(opens in a new window).

Parking areas may be controlled by local councils

Private companies that provide parking for the public may enter into a parking services agreement with the local council. This enables the council to take responsibility for regulating car parking on this private land.

The council may impose conditions on the private company before it will regulate any parking in the area. For example, the company may have to pay a fee for the service. The landowner may also be required to put up particular signs and barriers on the entrance to their property.

See s. 90D—Road Safety Act 1986 (Vic)(opens in a new window).

Can the landowner move the vehicle themselves?

If a vehicle has been left on private property, the land owner is able to resort to 'self-help' to remove a vehicle from their property, however vehicles must not be taken too far away. A vehicle must only be moved a 'reasonable distance' from the place where it was parked. The landowner must be careful if they decide to do this, as they could be held liable for any damage that they cause to the vehicle. There is also a penalty for tampering or interfering with a motor vehicle without reasonable excuse.

See s. 70—Road Safety Act 1986 (Vic)(opens in a new window).

Who my issue a fine if an agreement is made with a local council?

If an agreement is entered into between a land owner and a local council, any of the following people have the power to issue a fine a vehicle that is parked on that property:

  • an authorised council officer
  • a police officer, or
  • sheriff.

After an infringement notice has been issued, a police officer may also have the power to tow the vehicles away. The vehicle owner will have to pay for the vehicles release.

See s. 90F—Road Safety Act 1986 (Vic)(opens in a new window).

Penalty

The maximum penalty for parking in a council controlled, private car park is 3 penalty units.

See s. 90E—Road Safety Act 1986 (Vic)(opens in a new window).

More information

Legislation

Road safety Act 1986 (Vic)

  • s. 70—offence of tampering or interfering with a motor vehicle (without just cause or excuse)
  • s. 77—gives police, person authorised by a municipal council, authorised employee of Department of Infrastructure, VicRoads officer, or authorised officer of public authority if the offence happens on land controlled by that authority
  • s. 87(1A), (1B)—gives the municipal council the power to issue infringement notice for parking on private property
  • part 7A—Private parking areas
  • s. 90D—Agreements
  • s. 90C—prohibits wheel clamping on private property by anyone other than an authorised person (sheriff, police officer or person authorised by council)
  • s. 90F—removal or vehicle from council controlled areas
  • s. 90R—discovery for the purpose of recovery of private car park fees

See Road Safety Act 1986 (Vic)(opens in a new window).

Reference

Consumer Action Law Centre (CALC)

This specialist community legal service may provide legal assistance and information about a consumer's rights when buying goods and services.

See 'Private car parking fines' in Consumer Action Law Centre—Fact sheets(opens in a new window).

Road Safety Amendment (Private Car Parks) Act 2015 (Vic)

The Act amended the Road Safety Act (by adding s. 90R) to remove the right of owners of private car parks to get details of the owners of vehicles. This will stop operators from 'fining' drivers who use their car parks.

See Road Safety Amendment (Private Car Parks) Bill 2015 (Vic)(opens in a new window).

Updated