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These Guidelines are made by the Chief Commissioner of State Revenue with the approval of the Minister for Transport pursuant to Section 12(1)(b) of the Parking Space Levy Act 2009.
Clause 8(3) of the Parking Space Levy Regulation 2019 provides an exemption for an unleased tenant’s parking space. These are Guidelines as to whether, in particular circumstances, a parking space is, or is not, to be exempted from the calculation of the parking space levy as an unleased tenant’s parking space.
Clause 8(3) states that a parking space on leviable premises in a Category 1 or Category 2 area is an exempt parking space while it is an unleased tenant’s parking space.
Clause 8(4)(b) defines an unleased tenant’s parking space as a parking space that:
is attached to commercial premises, and
is unavailable for use as a parking space by a person other than a lessee or licensee of the commercial premises, and
has no lessee or licensee of the commercial premises to whom the parking space is allocated.
Accordingly, the definition of ‘unleased tenant’s parking space’ has three elements. To satisfy the definition, all three elements must be met.
What are commercial premises and when is a parking space attached to commercial premises?
Under the Order, commercial premises means any of the following:
business premises,
office premises,
retail premises.
Business premises is defined as a building or place at or on which:
an occupation, profession or trade (other than an industry) is carried on for the provision of services directly to members of the public on a regular basis, or
a service is provided directly to members of the public on a regular basis,
and includes funeral homes, goods repair and reuse premises and, without limitation, premises such as banks, post offices, hairdressers, dry cleaners, travel agencies, betting agencies and the like, but does not include an entertainment facility, home business, home occupation, home occupation (sex services), medical centre, restricted premises, sex services premises or veterinary hospital.
Office premises is defined as a building or place used for the purpose of administrative, clerical, technical, professional or similar activities that do not include dealing with members of the public at the building or place on a direct and regular basis, except where such dealing is a minor activity (by appointment) that is ancillary to the main purpose for which the building or place is used.
Retail premises is defined as a building or place used for the purpose of selling items by retail, or hiring or displaying items for the purpose of selling them or hiring them out, whether the items are goods or materials (or whether also sold by wholesale), and includes food and drink premises, garden centres, hardware and building supplies, kiosks, landscaping material supplies, markets, plant nurseries, roadside stalls, rural supplies, shops, specialised retail premises, timber yards and vehicle sales or hire premises. It does not include farm gate premises, highway service centres, service stations, industrial retail outlets or restricted premises.
A parking space will be taken to be attached to commercial premises where it:
is part of a lot or lots in a deposited plan that the commercial premises occupy, or
is common property or one or more strata lots in a strata development that the commercial premises occupy
When does a tenant have exclusive use of a parking space under a lease or licence that is unavailable for use by anyone else?
A parking space is considered to be a tenant’s parking space, if a tenant has exclusive use of the parking space and the spaces cannot be leased to anyone apart from a tenant.
If a space is available for use by anyone apart from a tenant of the premises, the exemption will not be available for that space.
The Chief Commissioner will consider the terms of any agreement or arrangement as to the use of a parking space in determining whether it is a tenant’s parking space and, in particular, will consider if:
the space is set aside for exclusive use by the tenant
the space cannot be leased to anyone else other than a tenant at the premises
the rights conferred under any lease or licence
When is a tenant’s parking an unleased space?
A parking space is considered to be an unleased space if it is not leased or let out to any tenant for any period during the year.
The exemption for an unleased tenant’s parking space is calculated on a daily basis. Accordingly, an owner wishing to claim an exemption for unleased parking space must keep the following records for each day for which they wish to claim an exemption:
the total number of tenant’s parking spaces
the total number of unleased tenant’s parking spaces
the total number of days the parking spaces were unleased
occupancy/vacancy details from Property Manager
evidence that attempts have been made to have the property leased (either privately or through a real estate agent)
previous lease/licence agreements.
The records must be retained for a minimum of 5 years from the date an exemption is claimed in a return lodged with the Chief Commissioner.
Examples of where the exemption would apply
An office building has ten levels of office space and 100 parking spaces. Due to council restrictions, the parking spaces can only be leased or licenced to tenants in the building. Only six levels of the building are leased and sixty of the parking spaces are licenced to tenants. An exemption can be claimed for the portion of the year that the forty parking spaces remain vacant.
Examples of where the exemption would not apply
An office building has ten levels of office space and 100 parking spaces. The parking spaces are available for lease or licence to tenants and the general public. As all of the spaces are available for lease or licence to persons who are not tenants in the building, no exemption can be claimed under Clause 8(4)(b) for any of the 100 parking spaces.
An office building has ten levels of office space and 100 parking spaces. All the parking spaces are leased to a car park operator. The operator licences the spaces to persons on a month to month basis. The operator has advised 50 of the car spaces remain unused for a year. As all of the spaces are available for lease or licence to persons who are not tenants in the building, no exemption can be claimed under Clause 8(4)(b) for any of the 100 parking spaces. Furthermore, as none of the spaces would be a ‘casual parking space’, an exemption under Clause 8(4)(a) would not be available for any of the 100 parking spaces. Refer to the Guidelines as to the unused casual parking space exemption for further information.
A car park has 100 parking spaces, with each space individually titled. There is no other use of the property. As the parking spaces are not attached to commercial premises, no exemption can be claimed under Clause 8(4)(b) for any of the 100 parking spaces.
A building has 20 serviced apartments and 20 parking spaces. There is no other use of the property. As the parking spaces are not attached to commercial premises, no exemption can be claimed under Clause 8(4)(b) for any of the 20 parking spaces.
