Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Gisks v The Owners - Strata Plan No. 6743 [2021] NSWCATCD 14 Hearing dates: 17 May 2021 Date of orders: 24 May 2021 Decision date: 24 May 2021 Jurisdiction: Consumer and Commercial Division Before: G Blake AM SC, Senior Member Decision: (1) The proceedings are dismissed. Catchwords: LAND LAW — Strata title — Owners corporation — Application for the approval of works and a common property rights by-law – Whether the owners corporation unreasonably refused its consent Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Strata Schemes Management Act 2015 (NSW) Cases Cited: Endre v The Owners - Strata Plan No. 17771 [2019] NSWCATAP 93 Owners Corporation Strata Plan 7596 v Risidore & Ors [2003] NSWSC 966 The Owners – Strata Plan No 69140 v Drewe [2017] NSWSC 845 Category: Principal judgment Parties: Martin Gisks (Applicant) The Owners - Strata Plan No. 6743 (Respondent) File Number(s): SC 21/07549 Publication restriction: Nil REASONS FOR DECISION Overview 1. In these proceedings the applicant, Martin Gisks, who is the owner of lots 5 and 25, seeks an order for the approval of, and an order with respect to common property rights by-law with respect to, the installation of solar panels on the roof of his garage (the proposed works) which is lot 25 under the Strata Schemes Management Act 2015 (NSW) (SSM Act) against the respondent, The Owners - Strata Plan No 6743, which is the owners corporation responsible for the management of the strata scheme related to strata plan no 6743 (SP6743). 2. I have decided that the proceedings should be dismissed. The background 1. SP6743 consists of a 3 storey residential unit complex comprising of 15 two-bedroom units at Dolls Point. It was constructed in approximately 1972. Additionally, 13 enclosed single-car garages and 2 open single-car parking spaces are at the complex and all are at ground level. Each lot owner has access to 1 car parking space on a separate title. Of the 13 enclosed garages, 8 are within the main building and 5 are contained within a detached rear building at the (south west) rear of the property. From the street side of the complex, only one garage door (lot 24) can be seen - but only when viewing it while standing directly in-line with the southern side driveway. 2. Each of the 13 garages has mains power provided for internal lighting and a wall outlet. This power is individually metered against each respective lot owner's supply. The complex's main switchboard is located in an alcove along the northern (driveway) side of the main building. Power is supplied to each of the 5 lots in the rear garage building via 5 separate underground cables buried beneath the concrete driveway. This cable run is estimated to be at least 30 meters (for lot 25) from the associated main switchboard. 3. On 27 November 2019, the respondent at the annual general meeting (the 27 November 2019 AGM) defeated a motion submitted by the applicant for permission to install a photovoltaic solar panel array onto the existing garage roof for lot 25 and an accompanying common property rights by-law (the 27 November 2019 decision). 4. On 26 May 2020, the Tribunal dismissed an application by the applicant against the respondent for relief in respect of the 27 November 2019 decision in proceedings SC 20/04286 (the SC 20/04286 proceedings). 5. On 30 November 2020, the respondent at the annual general meeting (the 30 November 2020 AGM) defeated a motion submitted by the applicant for permission to install the proposed works and an accompanying common property rights by-law (the proposed by-law). The SC 20/04286 proceedings 1. On 24 January 2020, the applicant commenced the SC 20/04286 proceedings against the respondent by filing a strata schemes application in which he relevantly: 1. sought the following orders: "Under s126, grant consent to the applicant to enable installation of approx 8-10 solar panels laying flat across the existing flat metal roof immediately above the lot owner's garage (lot 25) to an area of size (approx) 3m x 5m or 15sqm total and not extending over or onto the roofs of the other adjoining garages." 1. provided the following reasons for asking for these orders: "The proposed installation was unreasonably refused by the Owners Corporation at the AGM held on 27 Nov 2019 - see Enclosure B. The owner presented a detailed proposal included in the 2019 AGM's agenda held on 27 Nov 2019 - (Enc. C). The owner, commensurate to presenting the proposal, also included a By-Law for the exclusive use of the common property roof area (above lot 25) in the AGM's agenda. Although there was some minor discussion about the proposal's merit just before the vote was taken, none of the other owners present at the AGM were owners of the adjoining four other garages. The proposal was [therefore] reasonable and properly presented. The applicant was unable to source quotations for the work despite four attempts to local Solar Panel installers who all said they would only conduct a site assessment once the necessary approval had been first obtained - at the AGM. The applicant has calculated the total area of available roof for panels is 395sqm - lot 25 is seeking just 15sqm or 3.8% of it." 1. enclosed an extract of the agenda for the 27 November 2019 AGM which set out the following proposal submitted by the applicant: "Proposal No. 2 Approval to install a Photovoltaic Solar Panel array onto existing garage roof (directly above Lot 25 - but not above any adjacent lot's garage roof) The owner of unit 5 seeks the Owners Corporation's approval to have a professionally accredited and licenced solar panel installer to fit to the roof area immediately above the garage (lot 25) approximately 8-10 solar panels which would be fitted to lay horizontal (on brackets/clips) over the existing roof metal. This installation would not be visible from the street and should not detract from the building's general appearance. The function of the panels would be to enable an electric vehicle to be charged by the sun during the daytime. This proposal includes a draft 'Exclusive Use' of common Property By-Law which has been included as Annexure A." 1. On 26 May 2020, the Tribunal in its reasons for decision (the SC 20/04286 decision) relevantly made the following finding: "21. I have formed the view that absent any evidence being attached to the motion which provided particulars of the name and license details of the contractor, a scope of work or even details of the nature of the installation from a contractor, the applicant has failed to discharge the onus he bears to demonstrate the owners corporation refusal to consent to the motion was unreasonable." The procedural history 1. On 21 February 2021, the applicant commenced proceedings SC 21/07549 against the respondent by filing a strata schemes application in which he relevantly: 1. seeks the following orders: "1. Strata Schemes Management Act 2015 s126 - A work approval order approving the installation of Solar Panels on the common property above roof of Lot 25. 2. Strata Schemes Management Act 2015 S149 - Make an order requiring the Owners Corporation consent to the proposed By- Law as presented by the Lot owner at AGM 2020 as at Agenda item 11 (Enclosure 1). 3. Civil and Administrative Tribunal Act 2013 s60(3)(e and f) - Award all costs incurred by the applicant against the Owners Corporation for its unreasonable refusal to approve the proposal." 1. has provided the following reasons for asking for these orders: "1. At the AGM held on 27/11/19, the Owners Corporation, unreasonably refused a motion by Lot 5 which sought approval to install Solar Panels onto the Common Property roof above Lot 25 - being a garage which is owned by lot 5. The motion was presented along with a proposed By Law for the exclusive use of Common Property. 2. At the AGM held on 30/11/20, the Owners Corporation, again unreasonably refused a thoroughly detailed motion by Lot 5 which sought approval to install eight Solar Panels onto the Common Property roof above Lot 25. It was also presented along with a proposed By Law for the exclusive use of the Common Property roof - some 15 square meters at the very rear of the complex and not visible from the street. See Enclosure 1 and 2 (Agenda AGM 2020 and associated Minutes) 3. Costs are sought from Owners Corporation upon the tribunal giving its due consideration to the nature and ongoing conduct of the Owners Corporation as highlighted by it twice unreasonably refusing the applicant's motions which simply sought to secure approval at consecutive AGMs held on 28/11/19 and 30/11/20. 4. The applicant has provided the Owners Corporation with very detailed documentation of the proposed installation, right down to the panel specifications and the installation fixing method & overall layout arrangement of the panels on the roof etc. These panels are laid flat to the existing roof pitch - which is 3 degrees. However, no matter what level of detail or information is provided to the Owners Corporation, they simply (and unreasonably) reject the proposal out of envy or not wishing to embrace positive change which brings benefits for our environment. 5. The Applicant wishes to note (as it can be seen in the AGM minutes for 2019 & 2020), that none of the AGM votes cast were made by owners of any of the 4 other adjoining garages. Also, those which were came from either lots with no enclosed garage (lots 2 and 10), or their own garage is within the main building (ie. do not have a roof immediately above their garage)." 1. enclosed an extract of the agenda for, and the minutes of, the 30 November 2020 AGM. 1. On 15 March 2021, the Tribunal made the procedural directions (the 15 March 2021 orders) which relevantly provided: "2. The applicant shall provide to the respondent and the Tribunal, either in person or by post, a copy of all documents (see note below), on which the applicant intends to rely at the hearing by 12-Apr-2021. … IMPORTANT NOTE: For the purpose of these directions "document" means: - Witness statements / statutory declarations or affidavits - Expert reports - Photographs - Accounts or receipts - Quotations … 6. All evidence from a party's witness(es) in support of that party(ies) must be in the form of a statement, statutory declaration, affidavit or expert report as appropriate." The hearing 1. On 17 May 2021, the hearing took place by telephone. The applicant appeared for herself. Mr R Morton (Mr Morton), the secretary of the respondent, appeared for the respondent. 2. The applicant relied on the following documents which were admitted into evidence without objection: 1. an extract of the agenda for the 30 November 2020 AGM (Ex A1) which includes a three page document setting out the proposed works (the proposed works application) and the "attached data sheet" referred to therein which is a four page brochure of LG Electronics Australia Pty Ltd dated "08/2019" in respect of LG Neon 2 solar panels; 2. the minutes of the 30 November 2020 AGM (Ex A2); 3. the letter dated 7 April 2021 from himself to the Tribunal which was admitted into evidence so far as it contains facts (Ex A3) (the 7 April 2021 letter). 1. The applicant sought to tender a quotation dated 9 April 2021 of Sure Solar Pty Ltd for the installation a photovoltaic solar panel array onto the garage roof for lot 25 and accompanying brochures. I rejected the tender and delivered short oral reasons. 2. The respondent relied on the following documents which were admitted into evidence without objection as to documents (1) to (3), and over objection as to documents (4) and (5): 1. the SC 20/04286 decision (Ex R1); 2. an extract of the agenda for the 30 November 2020 AGM (Ex R2); 3. the minutes of the 30 November 2020 AGM (Ex R3); 4. a document headed "Solar panels" on the website of NSW Fair Trading (Ex R4) (the solar panels information); 5. a document headed "FRNSW sees rise in solar panel-related fires" on the website of Fire and Rescue NSW (Ex R5). 1. There was no oral evidence. 2. The applicant relied on the submissions contained in the 7 April 2021 letter. Mr Morton relied on the submissions contained in the respondent's folder of documents which was received by the Tribunal on 5 May 2021. 3. The applicant and Mr Morton made oral submissions. The issues 1. The following issues arise for determination: 1. whether the respondent unreasonably refused its consent to the proposed works; 2. whether the respondent unreasonably refused its consent to the proposed by-law; 3. whether an order should be made that the respondent is to pay the applicant's costs of the proceedings. 1. Before considering these issues, it is appropriate to set out the relevant statutory provisions, the applicable legal principles, and the evidence and submissions of the parties. The relevant provisions SSM Act 1. Part 6 Division 1 (ss 106-115) contains provisions dealing with the common property including: 1. section 108 which deals with changes to common property, and relevantly provides that an owner of a lot in a strata scheme may add to the common property, alter the common property or erect a new structure on common property for the purpose of improving or enhancing the common property only if an authorising special resolution has first been passed by the owners corporation; 2. section 109 which deals with cosmetic work by owners, and relevantly provides that an owner of a lot in a strata scheme may carry out cosmetic work to common property in connection with the owner's lot without the approval of the owners corporation. This section does not apply to work that changes the external appearance of a lot: s 109(5)(c); 3. section 110 which deals with minor renovations by owners, and relevantly provides that an owner of a lot in a strata scheme may carry out work for the purposes of minor renovations to common property in connection with the owner's lot with the approval of the owners corporation given by resolution at a general meeting. Before obtaining the approval of the owners corporation, an owner of a lot must give written notice of proposed minor renovations to the owners corporation, including (a) details of the work, including copies of any plans, (b) duration and times of the work, (c) details of the persons carrying out the work, including qualifications to carry out the work, and (d) arrangements to manage any resulting rubbish or debris: s 110(4). This section does not apply to work that changes the external appearance of a lot: s 110(7)(c); 1. Part 6 Division 6 (ss 126-132) contains provisions dealing with orders about property. Section 126 deals with orders relating to alterations and repairs to common property and other property, and relevantly provides: 126 Orders relating to alterations and repairs to common property and other property (1) Order requiring owners corporation to carry out work on common property The Tribunal may, on application by … an owner of a lot in a strata scheme, order the owners corporation to consent to work proposed to be carried out by an owner of a lot if the Tribunal considers that the owners corporation has unreasonably refused its consent and the work relates to any of the following— (a) minor renovations or other alterations to common property directly affecting the owner's lot, (b) carrying out repairs to common property or any other property of the owners corporation directly affecting the owner's lot. (2) Order consenting to owner's work on owners corporation property The Tribunal may, on application by a lessor of a leasehold strata scheme or an owner of a lot in a strata scheme, make an order (a work approval order) approving of minor renovations or alterations or repairs already made by an owner to common property or any other property of the owners corporation directly affecting the owner's lot if the Tribunal considers that the owners corporation unreasonably refused its consent to the minor renovations or alterations or repairs. …" 1. Part 7 Division 3 (ss 142-145) contains provisions dealing with by-laws conferring rights or privileges over common property. Section 142 contains a definition of a common property rights by-law, and relevantly provides: 142 Common property rights by-law For the purposes of this Act, a common property rights by-law is a by-law that confers on the owner or owners of a specified lot or lots in the strata scheme— (a) a right of exclusive use and enjoyment of the whole or any specified part of the common property, or …" 1. Part 7 Division 5 (ss 148-150) contains provisions dealing with orders about by-laws. Section 149 deals with orders with respect to common property rights by-laws, and relevantly provides: 149 Order with respect to common property rights by-laws (1) The Tribunal may make an order prescribing a change to a by-law if the Tribunal finds— (a) on application made by an owner of a lot in a strata scheme, that the owners corporation has unreasonably refused to make a common property rights by-law, or … (2) In considering whether to make an order, the Tribunal must have regard to— (a) the interests of all owners in the use and enjoyment of their lots and common property, and (b) the rights and reasonable expectations of any owner deriving or anticipating a benefit under a common property rights by-law. NCAT Act 1. Part 4 Division 5 (ss 56-63) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) deals with the determination of issues and proceedings. Section 60 deals with costs, and relevantly provides: 60 Costs (1) Each party to proceedings in the Tribunal is to pay the party's own costs. (2) The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs. (3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following— … (e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance, (f) whether a party has refused or failed to comply with the duty imposed by section 36(3), … (5) In this section— costs includes— (a) the costs of, or incidental to, proceedings in the Tribunal, and The applicable legal principles 1. In Owners Corporation Strata Plan 7596 v Risidore & Ors [2003] NSWSC 966 (Risidore) the Supreme Court considered an application under the substantially similar statutory predecessor of s 126(1) of the SSM Act, and at [12]-[13] held that the question falls to be determined having regard to the state of affairs in existence at the time of the refusal of consent. In considering that question, regard should not be had to material that came subsequently into existence. 2. Risidore at [12]-[13] has been applied in relation to an application under s 126(2) of the SSM Act: Endre v The Owners - Strata Plan No. 17771 [2019] NSWCATAP 93 (Endre) at [29]-[30]. 3. In Endre at [25]-[27] the Appeal Panel rejected the submission that s 126(2) of the SSM Act only operates in respect of "minor repairs". The use of the disjunctive "or" in s 126(2) in the expressions "minor renovations or alterations or repairs" makes clear the Legislature was not intending to limit the operation of this section to minor repairs only. 4. In The Owners – Strata Plan No 69140 v Drewe [2017] NSWSC 845 (Drewe) the Supreme Court in an application under the substantially similar statutory predecessor of s 126(1) of the SSM Act at [43] held that the onus lay upon the owner of the lot to establish that the grounds relied upon by the owners corporation for refusing consent had no rational basis in that they were not guided by sound judgment or good sense. While some questions were put to a representative of the owners corporation that challenged one of the six grounds upon which it relied, no suggestion was put that was capable of discharging that onus. 5. Drewe at [43] has been applied in relation to an application under s 126(2) of the SSM Act: Endre at [59]. 6. The determination of whether a refusal is unreasonable must depend upon the conduct of the owners corporation and all the relevant circumstances. An individual lot owner's views are one of the factors to be taken into account when determining whether the refusal to approve works was unreasonable in all the circumstances: Endre at [45], [53]. The evidence of the parties The evidence of the applicant 1. The proposed works application is relevantly in the following terms: "Proposal No. 2 Lot 25 Owner seeks Owners Corporation approval to install a Solar Panel array onto the garage roof above Lot 25 "The Owners Corporation approve the owner of Lot 25 to install a Solar Pane! Array on top of the roof above their garage." Scope of the proposal: The owner of the garage - lot 25 (see figure 1 below for the location), seeks the Owners Corporation's approval to install to the roof area immediately above lot 25, eight (8) standard sized solar panels. Lot 25 is one of five enclosed garages in the detached single storey building at the rear of the unit complex. See figure 2 depicting the location. The eight standard panels will be fitted flat (that is parallel) to match the (approx. 3 degree) slope of the existing corrugated metal roof. This installation arrangement is detailed in Annexure A and should not be visible from [address omitted] and would therefore not detract from the building's overall appearance. The function of the panels would be to enable an electric vehicle charging in the future. This proposal includes a draft 'Exclusive Use' of common Property By-Law which has been included as Annexure B consideration. The installation would be entirely undertaken by an accredited solar panel installer with the required professional insurances and electrical trade licences and in accordance with the required standards etc. [Figure 2 omitted] Details of Proposed Installation Lot 25 - Solar Panel Array on Garage Roof The installation consists of 8 Solar Panels will be laid flat (not elevated) similar to the diagram shown in Figure 3. [Figure 3 omitted] The installation is of eight standard sized solar panels of type LG Neon 2 (or equivalent) - see attached data sheet. The Panels are fixed using extruded aluminium brackets/clips such as shown in the representational pictures below. The proposed panels are 40mm thick and weigh 17kg (or lOkg/sqm) each. The panels are tempered glass and framed with aluminium. At 10kg per square meter, these panels apply just a fraction of the force of an adult standing on top of the roof. Hence no structural load analysis is required for this installation. Also no council approval is required for this type of installation. [Figure 4 omitted] Installation [Figure 5 omitted] … [Figure 6 omitted]" 1. The proposed by-law is in the following terms: "Proposed By-Law Lot 25 - Solar Panel Array on Garage Roof 1 This by-law confers on the owner special privileges and exclusive use rights in respect of part of the common property as a consequence of the installation of photovoltaic solar panel array to the garage roof above lot 25. 2 The exclusive use rights conferred by this by-law are the rights to exclusively use part of the common property above lot 25 to an area of no more than a maximum of 16.6 square metres and not to extend above/across an adjacent lot's garage or over the gutter or barge cap at the eastern and western ends respectfully. 3 For the purpose of this by-law, the photovoltaic solar panels are fitted flat (parallel to the existing roof's slope) on top of the garage roof of lot 25 only. The panels therefore exclusively service the lot. 4 The special privileges conferred by this by-law are the rights to alter and use the common property by installation of a photovoltaic solar panel array that affects the common property to the extent of:- 4.1 Installing photovoltaic solar panels flat to existing roof slope and affixed to industry standard metal fixing brackets via screws which are attached to the roof directly above Lot 25 in such a configuration to maximise the covering of the available roof space but no larger than a maximum of 16.6 sqm and not extending over any sides of the building envelope or across adjacent garages; 4.2 Drilling one hole to a maximum 25mm diameter through the common property metal roof directly into the garage space of Lot 25 to enable the power cable from the solar array to be connected into the garage; 4.3 Fitting an appropriately weather-rated electrical isolation switch attached to the solar panel array as may be required to comply with the applicable electrical standards or Australian Standards for such an installation; 4.4 Fitting of any equipment warning labels to the building's main electrical panel as may be required to comply with the applicable electrical standards or Australian Standards for such an installation. 5 The special privileges and exclusive use rights conferred on the owner by this by-law are conferred upon and subject to the conditions of this by-law. 6 Conditions for the photovoltaic solar panel array above the roof of the garage of lot 25 are: 6.1 Maintenance of Solar Panel Array; The owner must properly maintain the solar panel array, electrical isolation switch and the electrical cable/conduit penetration through the roof in a state of good and serviceable repair and, when necessary, renew or replace any fixtures or fittings comprised in the panel array. 6.2 Waterproofing of Holes for the Cable Conduit: The owner must ensure that any holes or penetrations made to any part of the common property to enable the electrical cable to enter lot 25 are, at all times, adequately sealed and waterproofed. 6.3 Repair of Damage Caused to Common Property by the Solar Panel Array The owner must make good any damage to the common property of the garage's roof caused by the solar panel array no matter when such damage may become evident. 6.4 Licensed Contractors The owner must ensure that any contractors who service the solar panel array are appropriately qualified, licensed and insured to undertake that work. 6.5 Compliance With Laws The owner must comply with all statutes, by-laws, regulations, rules and other laws from time to time being in force and which are applicable to the solar panel array. 6.6 Indemnity The owner must indemnify and keep indemnified the owners corporation against all actions, proceedings, claims, demands, costs, damaged and expenses which may be incurred by or brought or made against the owners corporation arising out of the Photovoltaic solar panel array, or the altered state or use of the common property arising as a result of the solar panel array. 6.7 Removal of Panels for Access to Conduct Routine Maintenance by the Owners Corporation The Owners Corporation must notify the owner of Lot 25 solar panel array no later than 30 days prior to the commencement of routine maintenance works which necessitate the removal of the solar panel array for access. In this case the costs of the removal and reinstallation shall be borne by the Lot owner unless the works are cancelled by the Owners Corporation once the lot owner has first been notified to have them removed. If the lot owner does not remove the panel by the required date provided the proper notice has been provided, the Owners Corporation shall have the authority to remove them and recover, as a debt from the lot owner, the reasonable costs incurred from their removal. 7 Breach of this By-law 7.1 If the owner breaches any condition of this by-law and fails to rectify that breach within 30 days of service of written notice from the owners corporation requiring recttfication of that breach, then the owners corporation may: (a) rectify any such breach, (b) enter on any part of the strata scheme, by its agents, employees or contractors, in accordance with the Strata Schemes Management Act, for the purpose of rectifying any such breach, and (c) recover, as a debt due from the owner, the costs of the rectification together with the expenses of the owners corporation incurred in recovering those costs. 7.2 Nothing in this clause restricts the rights of or the remedies available to the Owners Corporation as a consequence of a breach of this by-law." The evidence of the respondent 1. The minutes of the 30 November 2020 AGM relevantly provide: "11 ADDITIONAL MOTION LOT 5 - SOLAR PANELS That by Special Resolution the owners corporation consider the additional motion (Proposal No 2 Approval to install a solar panel array onto the garage roof above lot 5) UE Total 127 UE For 20 UE Against 107 Motion Lost The owners requested that the following points be noted in regards to their decision on not approving the proposal put forward by lot 5 to install a solar panel array onto the common garage roof. • The proposal is not compliant with the NCAT Orders -file No: SC 20/04286 dated 26/05/2020 • The proposal is for an individual and not all of the owners. • The proposal seeks to take ownershop [sic] of common property and increase the value of Unit 5 to the detriment of the other owners." 1. The solar panels information relevantly provides that the installation of solar panels must be undertaken by either a licensed builder or a licensed electrical contractor. The submissions of the parties The submissions of the applicant 1. The applicant makes the following submissions on whether the respondent unreasonably refused its consent to the proposed works: 1. none of the owners of the adjoining garage lots of the detached building even voted on the motion; 2. there was no requirement for him to comply with the SC 20/04286 decision. This was a new proposal at a different annual general meeting and needed to be voted on as such; 3. the proposal does not in any way take ownership of any common property away from the respondent and simply assign it to lot 5; 4. the proposal was extremely technically detailed to clearly articulate every aspect of the proposal including the scope of work and mounting hardware and so on. It left no ambiguity as to what was being sought; 5. the proposal was associated with a draft by-law-included in the agenda and which is thoroughly comprehensive and detailed to avoid doubt over maintenance, waterproofing, repairs to common property, compliance with laws, indemnity and liability; 6. the proposal does not impede other lots from following his lead. It does not disadvantage any other owner of the four adjoining garages should they also which to mimic the installation. It does not disturb or damage the common property; 7. the proposal is of negligible impact; 8. it is not practical for the respondent to use the roof area on top the rear garages for their collective benefit of the lot owners. The garage roof area will only be suitable for each lot beneath it at best. 1. The applicant did not make any submissions on whether the respondent unreasonably refused its consent to the proposed by-law, and whether an order should be made that the respondent is to pay the applicant's costs of the proceedings. The submissions of the respondent 1. The respondent makes the following submissions: 1. as to the order sought under s 126(1) of the SSM Act: 1. it relies on the failure of the applicant to provide the information specified in the SC 20/04286 decision at [21]. It cannot consider the applicant's request and also properly discharge its duties to all owners without knowing what works are to be done on common property. Without a contractor name, license details or a statement of work it cannot check that the contractor installing the solar panels holds a valid licence; 2. individual solar panels have potential to increase the value of an individual lot through lower energy costs. Granting such access will increase the value of the applicant's lot to the detriment of other owners. It believes that this common property should be for the benefit of all owners on the basis of their ownership in the building; 1. as to the order sought under s 149(1) of the SSM Act, it cannot approve a by-law unless it is clear on the works being proposed; 2. as to the order sought under s 60(2) of the NCAT Act, it has properly followed the direction of the Tribunal and is properly discharging its duties. To pay costs for following directions and discharging its duties would be unreasonable. Whether the respondent unreasonably refused its consent to the proposed works Consideration 1. Notwithstanding the request for a work approval order in the strata schemes application which, as the terms of s 126(2) of the SSM Act indicate, is the name of the order where minor renovations or alterations or repairs have already made by an owner to common property, it is clear that the applicant is seeking an order under s 126(1) of the SSM Act to order the respondent to consent to the proposed works. 2. In circumstances where it is common ground that there have not been any solar panels on the roof of the garage which is lot 25, there is no basis for a finding that the proposed works relate to carrying out repairs to common property or any other property of the owners corporation directly affecting the applicant's lot within s 126(1)(b) of the SSM Act. 3. The following two conditions must relevantly be satisfied before the Tribunal can exercise the discretion under s 126(1) of the SSM Act to order the respondent to consent to the proposed works: 1. the respondent has unreasonably refused its consent; 2. the proposed works relate to minor renovations or other alterations to common property directly affecting the applicant's lot within s 126(1)(a) of the SSM Act. 1. The submissions of the parties addressed the question of whether the respondent unreasonably refused its consent to the proposed works, but did not address the question of whether the proposed works relate to minor renovations or other alterations to common property directly affecting the applicant's lot within s 126(1)(a) of the SSM Act. 2. As to the second condition referred to in [41] above, the proposed works are neither cosmetic work within s 109 of the SSM Act nor minor renovations within s 110 of the SSM Act because they will change the external appearance of lot 25 and so are excluded from being cosmetic work or minor renovations pursuant to s 109(5)(c) and s 110(7)(c) of the SSM Act respectively. 3. If the proposed works are "other alterations to common property" within s 126(1)(a) of the SSM Act, then it is clear that they directly affect the applicant's lot as they will be a structure immediately above lot 25 for the purpose of providing power to the garage. 4. I am satisfied that the construction of s 126(2) of the SSM Act in Endre at [25]-[27] referred to in [28] above applies equally to s 126(1)(a) of the SSM Act. This means that the Tribunal can make an order to consent to work proposed to be carried out by an owner of a lot where the work in question is neither cosmetic work within s 109 of the SSM Act nor minor renovations within s 110 of the SSM Act. On this basis, I am satisfied as to the second condition and accordingly the Tribunal has power to order the respondent to consent to the proposed works because they are other alterations to common property directly affecting the applicant's lot within s 126(1)(a) of the SSM Act. 5. As to the first condition referred to in [41] above, the proposed works application is uncertain because the relevant solar panels are to be LG Neon 2 "or equivalent". It is unclear what solar panels are equivalent to LG Neon 2 solar panels. 6. The evidence relied on by the applicant in these proceedings is unsatisfactory in several respects: 1. the applicant failed to comply with orders 2 and 6 of the 15 March 2021 orders by providing his evidence a statement, statutory declaration, affidavit or expert report as appropriate. This failure is not inconsequential because the proposed works application includes technical information and its source has not been identified; 2. there is no expert evidence as to the technical information in the proposed works application; 3. while it may be accepted that the proposed works are not minor renovations within s 110 of the SSM Act, the proposed works application does not contain any of the information specified in s 110(4). Further, as set out in [46] above, the panels to be installed are not certain. All of this information is necessary to enable the respondent to decide whether to approve the proposed works. 1. I am satisfied that the finding in Drewe at [43] in relation to the onus of proof under the substantially similar statutory predecessor of s 126(1) of the SSM Act applies equally to the onus of proof under s 126(1) of the SSM Act. 2. I am satisfied that the applicant has not established the respondent unreasonably refused its consent to the proposed works. The matters specified by the Tribunal in the SC 20/04286 decision at [21] are relevant considerations which the applicant failed to provide. Further, technical information about the proposed works in the form of a report by an expert and information of the nature specified in s 110(4) of the SSM Act about the proposed works are relevant considerations which the applicant failed to provide. 3. I am satisfied that the other matters relied on by the respondent, being that the proposed works will benefit an individual and not all of the owners, and will increase the value of the applicant's lots to the detriment of the other owners if there was evidence to this effect, were not relevant considerations in the consideration of the proposed works by the respondent. 4. It follows that the applicant is not entitled to an order under s 126(1)(a) of the SSM Act in respect of the proposed works. Whether the respondent unreasonably refused its consent to the proposed by-law 1. As the applicant has not established the respondent unreasonably refused its consent to the proposed works, this issue does not arise for decision. 2. It follows that the applicant is not entitled to an order under s 149(1)(a) when read with s 142 of the SSM Act in respect of the proposed by-law. Whether an order should be made that the respondent is to pay the applicant's costs of the proceedings 1. As the applicant has not established an entitlement to any order in his favour, these is no basis for any finding that the grounds specified in one or both of s 60(3)(e) and s 60(3)(f) of the NCAT Act have been satisfied. 2. It follows that the applicant is not entitled to an order under s 60(2) of the NCAT Act in respect of the proceedings. Order 1. I make the following order: 1. the proceedings are dismissed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 August 2021