Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Lyon v The Owners – Strata Plan No 11045 [2023] NSWCATCD 31 Hearing dates: 17 February 2023 Date of orders: 31 March 2023 Decision date: 31 March 2023 Jurisdiction: Consumer and Commercial Division Before: M Deane, Senior Member Decision: (1) The Owners – Strata Plan No 11045 is to take all necessary steps to require the owner of Lot 31 to comply with Special By-law 14; that is, by requiring the owner of Lot 31 to reduce the height of the pergola to 2.7 metres measured from the concrete surface of the courtyard to Lot 31. (2) The Owners – Strata Plan No 11045 is to comply with order 1 within 6 months of the date of these orders. (3) The Owners – Strata Plan No 11045 is to arrange for the cleaning of the wall above the pergola at lot 31 and below the windows of lot 35 within 2 months of the date of this order. (4) Ben Swanson is removed as the second respondent. (5) Either party may file and serve written submissions of not more than 5 pages within 14 days of the date of this decision seeking an order in relation to the costs of the proceedings. (6) If either party files submissions in accordance with order (5), the other party may file submissions in response within a further 14 days. (7) Any submissions filed in accordance with orders (4) and (5) must address the question whether the question of costs may be determined on the papers and without a hearing pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) Catchwords: LAND LAW — Strata title — Common property — By-laws Legislation Cited: Strata Schemes Management Act 2015 Cases Cited: Bate v The Owners-Strata Plan No SP 60549; Birdsall v Bate [2018] NSWCATCD 36 Glenquarry Park Investments Pty Ltd v Hegyesi [2019] NSWSC 425 Owners Corporation SP 22607 v Yang [2018] NSWCATCD 3 ('Yang'); The Owners – Strata Plan No 5319 v Price; Price v The Owners – Strata Plan No 5319 [2019] NSWCATCD 3 The Owners - Strata Plan No 68255 v Downs; Downs v The Owners - Strata Plan No 68255 [2021] NSWCATCD 34 The Owners – Strata Plan No 74232 v Tezel [2023] NSWCA 35 Texts Cited: Nil Category: Principal judgment Parties: Suzanne Lyon (applicant) The Owners – Strata Plan No 11045 (first respondent) Representation: Solicitors: Applicant (self-represented) Bannerman Lawyers (First respondent) No appearance for second respondent File Number(s): SC22/39017 Publication restriction: Nil REASONS FOR DECISION Background 1. The applicant, Suzanne Lyon, is the owner of Lot 35 in Strata Plan 11045, a 69 lot strata scheme in Wollstonecraft, NSW. 2. The essence of the applicant's case was that on 26 August 2020 the OC had passed a common property by-law (Special by-law 14) allowing the owners of Lot 31 (the ground floor unit below) to build a pergola over the rear courtyard to Lot 31. The applicant contended that the pergola as built in October 2020 did not comply with the specifications in Special by-law 14 and so encroached on external common property and was interfering with the support and shelter for Lot 35. The applicant alleged that the OC had failed to take action to remove the encroachment and repair the damage to the common property. 3. The applicant filed an application on 30 August 2022 seeking orders against the respondent, the Owners – Strata Plan No 11045 (the Owners Corporation (the OC)) and the owner for Lot 31, Ben Swanson. 4. At the hearing, the applicant clarified that the orders that she sought had narrowed to three orders under s 232 of the Strata Schemes Management Act 2015 (the SSMA) requiring the OC: 1. to remove a pergola installed by Lot 31 or 2. to enforce Special By-law 14 by requiring the works to comply with Special By-law 14 under various sections of the SSMA and/or Special By-law 14 cll 3 and 6; and (in either event) 3. to maintain and keep in a state of good and serviceable repair the common property as a result of the OC's obligations under s 106(1). 1. For the OC it was contended that the pergola was compliant and that, in any event, the Tribunal did not have jurisdiction to make the orders sought against the OC. 2. Ben Swanson, as the owner of Lot 31, had been joined in the proceedings due to orders which had been sought under s 238 to the SSMA seeking to remove him from the Strata Committee. Mr Swanson did not attend the hearing. Mr Swanson was also unavailable to attend the directions hearing on 16 November 2022. 3. The question arose as to whether Mr Swanson was properly served with the hearing notice for the hearing on 17 February 2023 as it was sent to the Lot address where Mr Swanson did not reside. 4. The OC contended that the hearing could proceed in Mr Swanson's absence as he was no longer a member of the Strata Committee. The applicant confirmed that her application for orders against Mr Swanson had been withdrawn. 5. However as the hearing progressed, issues of procedural fairness arose regarding whether Mr Swanson should be heard on any orders which might affect his rights. The Tribunal telephoned Mr Swanson during the hearing on 17 February 2023 who advised: 1. He had received a notice of hearing but not for that particular date; 2. He had discussed the matter with the OC and determined that as the orders sought against him were to remove him from the Strata Committee, if he removed himself he would not need to join the hearing; 3. He was aware of the OC's submissions and agreed with them. He was happy for the hearing to proceed on the basis of the OC's submissions. 4. If he had participated, he would have submitted a statement similar to that provided by the strata manager to the effect that he had followed legal advice, he had brought the matter for approval at an EGM and obtained all electrical compliance certificates. He would not have provided any additional information. 5. He was unable to participate in the hearing by telephone as he was travelling interstate. 1. The Tribunal flagged that it might be necessary to obtain further submissions from Mr Swanson or the parties. However, on further reflection, by telephoning Mr Swanson during the hearing, the Tribunal ascertained that he was aware of the orders being sought against the OC, he was aware that he would no longer be a party to the proceedings, he agreed with the submissions of the OC and he did not have anything further to add. Accordingly the Tribunal is satisfied that it is consistent with the Tribunal's obligations under s 36(3) of the Civil and Administrative Tribunal Act 2013 (the NCAT Act) to facilitate the just, quick and cheap resolution of the real issues in the proceedings not to seek further submissions and to proceed to a decision. Jurisdiction 1. An application for an order under s232 of the SSMA 2015 can be made by an interested person, original owner or building manager. Interested persons are defined in s226 of the SSMA 2015 to include an owner of a lot in the scheme. The applicant is an owner and therefore has standing to make an application for orders under s232. 2. The jurisdictional issues raised by the OC in relation to certain sections of the SSMA are considered below where necessary. 3. The application is within time under s 106(6). It was lodged within two years of the pergola being built (October 2020) being the time at which the applicant was first aware of the kind or type of loss that she is entitled to recover pursuant to s 106(5) (subject to establishing the elements of the cause of action); The Owners – Strata Plan No 74232 v Tezel [2023] NSWCA 35 at [41] – [42]. Issues 1. The Tribunal needs to consider the following issues: 1. has the applicant demonstrated, on the balance of probabilities, that the pergola does not comply with Special by-law 14? 2. if the pergola does not comply with Special by-law 14, does the Tribunal have the power to make orders under s232 of the SSMA requiring the OC to remove the pergola; or to require the owner of lot 31 to make the pergola compliant? 3. in any event is the OC obliged to clean the common property wall above the pergola and beneath the applicant's bedroom window? Special By-law 14 1. Special by-law 14 to the consolidated By- Laws describes the works in clause 1: 1. Grant of Special Privilege and Exclusive Use Right On the conditions set out in this by-law the owner for the time being (referred to in this by-law as the "Owner") of Lot 31 (the "Lot") shall have a special privilege in respect of the common property to carry out building works to the Lot and adjacent common property and a right of exclusive use and enjoyment of that part of the common property affected by the building works incorporating: (a) construction of a metal pergola within the courtyard measuring 2320 x 6000 and affixing of the pergola to the northern wall of the courtyard in accordance with the Stratco Drawings Job Reference 81772 dated 29/01/2020. Relevant conditions included: 2.2 Performance of Works In carrying out the Works, the Owner (including any contractor involved in the performance of the Works on behalf of the Owner) must: (a) ensure that the Works are carried out in a good and workmanlike manner by licensed contractors in compliance with relevant provisions of the Building Code of Australia and relevant Australian Standards and in such a way as to minimise disruption or inconvenience to any owner or occupier of any other lot in the strata scheme; (b) carry out the Works substantially in accordance with clause 1 of this by-law and as approved by the relevant Council; (c) not materially amend or vary the Works without the approval in writing of the Owners Corporation and, if required, the Council; (d) take all reasonable precautions to protect all areas of the building outside the Lot from damage by the Works … (h) ensure that the Works do not interfere with or damage the common property, the property of any other lot owner or any Utility Service otherwise than as approved by this by-law; … 4. Other Rights and Obligations (a) The Works will be the property of the Owner. (b) the Owner must, at the cost of the Owner, maintain the alterations and additions installed in the course of the Works and the common property affected by the Works (including but not limited to the fixtures and fittings installed as part of the Works) in a state of good and serviceable repair and must renew or replace them wherever necessary. 5. Costs (a) The Works must be undertaken at the cost of the Owner. (b) The Owner must pay the reasonable costs of the Owners Corporation in preparing, making, registering, implementing and enforcing this by-law. 6. Right to Remedy Default If the Owner fails to comply with any obligation under this by-law, then the Owners Corporation may: (a) carry out all work necessary to perform that obligation; (b) enter upon any part of the Lot to carry out that work; (c) recover the costs of carrying out that work from the Owner, and the Owner shall indemnify the Owners Corporation against any legal action or liability flowing from the action of the Owners Corporation pursuant to this clause. The applicant's evidence and submissions 1. The applicant provided five folios of evidence. Particularly relevant documents included: 1. A copy of the agenda for the AGM of 26 August 2020. Item 26 of 27 items was listed as "By-Law for Unit 31 – Pergola." The motion stipulated: "Special By-Law No. 12 – Authorisation of Building Works in Lot 31". (The Wording of the By-Law authorising the Pergola works is described as Special By-Law No 12. There is no dispute that this became Special By-Law 14 upon registration): 1. Grant of Special Privilege and Exclusive Use Right On the conditions set out in this by-law the owner for the time being (referred to in this by-law as the "Owner") of Lot 31 (the "Lot") shall have a special privilege in respect of the common property to carry out building works to the Lot and adjacent common property and a right of exclusive use and enjoyment of that part of the common property affected by the building works incorporating: (a) construction of a metal pergola within the courtyard measuring 2320 x 6000 and affixing of the pergola to the northern wall of the courtyard in accordance with the Stratco Drawings Job Reference 81772 dated 29/01/2020 [emphasis added]. Explanatory notes: Please see attached annexures describing the pergola. 1. A letter to the Owners of Unit 31 from Low Doherty & Stratford Lawyers dated 12 March 2020 which had been attached to the AGM agenda: RE: CONSOLIDATION/CHANGE OF BY-LAW Annexed hereto is Consolidation/Change of By-Law. You will note that in paragraph 1 we have described the Works. This document should be given to the Strata Manager to confirm their satisfaction of the contents. We have not put the height of the pergola (2.7m?). there is a reference in the registered strata plan to the courtyard height being 2.3m. We should firstly see if the Strata Manager is happy with the document. 1. The Stratco drawings for job reference 81772 which were attached to the AGM Agenda for 26 August 2020. According to those drawings: 1. Footing Details: footing type On concrete 2. Dimensions (Outside Frames): 1. Deck Overhang: 0 2. Height 2700mm 3. Length 6000mm 4. Width 2320mm 1. Roof Details: Deck type Cooldek Classic 50mm After the specifications, there were four drawings showing the dimensions of the pergola from above (height not included). The only drawing purporting to show a view of the pergola from ground level did not depict any decking or include any height measurements; 1. The minutes from the AGM of 26 August 2020 which noted that item 26 By-Law for Unit 31 – Pergola was "resolved". 2. An A3 page plan showing the alleged actual dimensions of the pergola as built; 3. Three reports from Geodesy Pty Ltd T/as Geodesy Survey Group, completed by Robbie Davidson dated November 2020, August 2021 and April 2022 (the Surveyor reports) reflecting visits made to the building on 5 November 2020 and 23 February 2021: 1. according to the November 2020 Surveyor report, the pergola encroaches the stratum limitation from the courtyard of Lot 31 in Strata Plan 11045 into Common Property, by up to 890mm, being 3.19m above the upper surface of the concrete floor of Lot 31 in Strata Plan, being Ground Floor. The stratum limitation referred to is as follows: "Courtyard heights are restricted to 2.3 metres above & 0.1 below the upper surface of the concrete floor of the attached terrace (Strata Plan 11045 sheet 7)." 1. According to the April 2022 Surveyor report: 1. The front of the metal roof awning RL13.29 is 2.55m above the timber deck in the court yard below RL10.74m; 2. The front of the metal roof awning RL13.29 is 3.19m above the upper surface of the concrete floor beneath RL10.1, being the Ground floor; 3. The rear of the metal roof awning LR13.31m is 2.57m above the timber deck in the court yard below RL10.74m; 4. The rear of the metal roof awning RL13.31m is 3.21m above the upper surface of the concrete floor beneath RL10.1m being the ground floor. 1. A letter of complaint from the applicant to the OC dated 16 May 2021 outlining the requirements of Special by-law 14, noting that the Surveyor report had been provided to the OC and requesting action by the OC to call an EGM to assess the pergola's compliance with Special by-law 14 and to obtain legal advice regarding the steps required to manage non-compliance with the by-laws including damage to common property/lot owner property outside the by-law specifications; 2. An affidavit attested by the applicant on 29 November 2021 setting out the history of the matter. The applicant did not dispute that Special by-law 14 had been passed by special resolution at the AGM on 26 August 2020; 3. A statutory declaration dated 11 January 2023 from the Co-owner of Lot 36, to the effect that the owner of lot 31 had clarified at the AGM on August 26 2020 that the planned pergola would be in lot 31 only. There was no discussion that the planned pergola specifications were outside lot 31 and that the pergola would impact other lots including lot 36. The pergola had reduced the view of the southern garden from the kitchen window of lot 36 and a bolt and silicon had been installed on common property outside lot 36. There has been minimal maintenance of the pergola and the owners of lot 36 supported the orders sought by the applicant for the removal of the pergola; 4. A statutory declaration dated 26 November 2022 from the owner of Lot 33, set out that she had been approached by the owners of lot 31 about the installation of the pergola prior to the AGM and was asked to sign a proxy to support the planned pergola. She had trusted that the pergola would be built within the legal specifications of the proposed bylaw and the plans would not impact other owners. She set out her observations of the pergola to be noisy, unpleasant and unhygienic and supported its removal. 5. Photographs of a black substance growing on the walls above the pergola and beneath the windows of the applicant's lot; 6. Copies of the legal advice to the OC from Chambers Russell Lawyers dated 12 August 2021 and 8 September 2021 which were also provided by the OC and are detailed below in their evidence; 1. Summarising the applicant's written and oral submissions, the applicant contended as follows: 1. the pergola does not comply with Special by-law 14 because: 1. according to the Surveyor reports, it is outside the dimensions approved by Special by-law 14. The pergola measures 3.19 m above the concrete floor of the terrace at the front and 3.21m at the rear, compared to the height of 2700mm stipulated in the Stratco drawings. Further, the pergola measured 2,465mm deep compared to 2320mm specified in the Stratco drawings; 2. The A3 page plan showing the alleged actual dimensions of the pergola as built differs materially from the Stratco drawings; 3. the pergola roof is very near windows on level one associated with lot 35; 4. electrical cable had been installed in a water drain located in common property airspace which was a nuisance and a hazard to lot 35; 5. the construction of the metal pergola was very noisy. The applicant was frequently woken from sleep during heavy rain which continued to have a significant impact on her well-being; 6. her personal privacy had also been breached on several occasions and on 13 June 2022 an incident occurred with a non-supervised tradesperson. 1. Under cl 3 of Special by-law 14 the Owner of Lot 31 has indemnified the OC against any cost charge or expense incurred by the OC arising from the Works and under cl 6, the OC has the right to remedy any default under the by-law leading to a reasonable expectation that the OC will enforce the by-law under s 135 SSMA; 2. Mould had also developed on the common property wall above the pergola and underneath the windows to the applicant's lot which was unsightly and unhealthy. The applicant could not open her windows including the bedroom window due to mould and debris. The OC should undertake its duties under s 106 to maintain the common property and clean the mould. The OC's evidence and submissions 1. The OC provided a witness statement from Zac Marshall, the strata manager of Strata Plan 11045. According to that statement: 1. Regarding the compliance of the pergola with Special by-law 14: On 3 August 2021 the strata committee resolved to obtain independent legal advice on whether the pergola complied with the Strata plan and Special by-law 14. On the basis of the legal advice dated 12 Aug 2021 and 8 September 2021, the strata committee instructed the strata manager to write to the applicant to advise of the outcome and advised that no further action was required from the strata committee; 2. regarding the complaint in relation to the mould/cleanliness of the pergola: Clause 4(b) to Special by-law 14 imposed the responsibility for the repair and maintenance of the pergola and the area of common property immediately adjacent to the pergola on the owner of lot 31 and so Mr Swanson was responsible for the repair and maintenance of the pergola and the common property immediately adjacent to the pergola; 3. Regarding the electrical cabling work: On 3 August 2021 the strata committee convened a meeting to discuss the applicant's concerns regarding the electrical cable on the pergola and directed the strata manager to engage a licenced electrician to provide written advice on its safety. Subsequently the OC received a certificate of compliance – Electrical Work No 4434776 from Adrian Ferrano dated 27 October 2020 confirming that the installation of four downlights and one fan to the pergola was completed in accordance with the relevant regulations. The OC also obtained a report confirming that the conduit and cabling installation met the relevant standards and were not illegal. On 8 September 2021 the OC obtained legal advice as to whether Special by-law 14 allowed for the installation of the electrical cabling which noted that Special by-law 14 permitted works in accordance with the Stratco drawings which appeared to permit the installation of downlights. 1. The following documents were attached to the witness statement: 1. A "summary and further advice" regarding block B balconies and unit 31 pergola dated 8 September 2021 from Chambers Russell Lawyers which provided the following relevant opinions to the OC: 1. In answer to the question "does Special by-law 14, by reason of the detail in the Stratco drawing, allow the pergola to occupy space above the upper vertical limit of the lot?" the advice relevantly states "… all three external areas of unit 31 are limited in height to 2.3 metres above the upper surface of the concrete floor of the terrace. The Stratco drawing specifies the height of the permitted structure as being 2700mm or 2.7 metres. The "footing type" Is listed as "on concrete" with the effect that on an objective rating of the Stratco drawing the permitted height of the structure was 2.7 metres above the upper surface of the concrete structure of the terrace. Accordingly in our view the by-law permits the pergola structure to encroach vertically into common property by 0.4 metres. The drawing also notes the pergola roof to have a pitch of 2 degrees. It seems likely therefore that the 2.7 metre height in the Stratco drawing is a reference to the height of the roof of the pergola at its highest point." 2. in answer to the question "Does Special by-law 14 permit the mechanical fixing of the pergola structure to the wall of the unit 35 balcony?" the advice relevantly states "on the assumption that the location that is 2.7 metres above the upper surface of the concrete floor of the terrace intersects with the balcony wall of unit 35, Then in our view Special by-law 14 permits the attachment of the pergola to that wall." 1. "Advice regarding the ownership and responsibility for balconies, a pergola, and fences within the strata scheme" dated 12 August 2021 from Chambers Russell Lawyers. In regard to the pergola at lot 31 at paragraph 2.3 this advice notes that the Stratco drawing was not available and the advice assumes that the pergola as constructed complied with the requirements of the bylaw; 2. Minutes of a strata committee meeting held on 14 September 2021 which note at item 15: "further information received from U35 re electrical cabling has been distributed to SC and confirms that the cabling meets requirements under Aust standards. Independent legal advice was obtained and stated that the installation of the pergola in lot 31 has been completed as per the terms and conditions set out in the bylaw approved at the AGM. SM to write to the owner of U35 outlining the outcome. No further action is required at this stage by the SC." 3. A letter dated 22 September 2021 from the strata manager to the applicant attaching the legal advice dated 12 August 2021 and 8 September 2021; 4. Text messages between the owners of lot 31 and lot 35; 5. An email from High-Crat Home Improvements Pty Ltd confirming that the pergola was built to Australian standards; 6. a certificate of compliance-electrical work dated 27 October 2020 which notes the particulars of work as "install 4x downlights + 1 fan for pergola certified by a licenced electrical contractor; 7. a report from Citywide Electrical Contractors dated 19 August 2021 finding that the conduit and cabling installation meets AS3000:2018 Standards. "All cabling has mechanical protection through conduit work. No junctions or joins have been done in the wet area (Gutters) also it has been securely fitted with cable ties to the roof. The reason that the works have been installed in this manner is due to circumstances not allowing the conduit to be fixed to the concrete/brick walls. In saying this the works are not illegal and do meet the current electrical standards. As the cabling is RCD protected and mechanically protected."; 8. Minutes of a Strata Committee meeting of 27 July 2021 noting correspondence from the owners of lot 35 and lot 31 regarding the pergola. 1. Summarising the OC's written and oral submissions, the OC responded in relation to order 1: 1. The applicant had not demonstrated that the pergola breached Special by-law 14; 1. Special by-law 14 was a common property by-law and by its nature allowed the owner of Lot 35 to build into the common property; 2. Although the height was stipulated to be 2700mm in the Stratco drawings, the Stratco drawings did not indicate where this was to be measured from. If the height were measured from the decking, according to the applicant's surveyor's report, the pergola was 2.55m above the decking at the front and 2.57 above the decking at the back and would fall within the specifications of the Stratco drawings, which did not define the lower horizontal boundary; 1. Even if there were a defect, that defect would be the responsibility of the owner of Lot 31. Special by-law 14 binds the owner of Lot 31, not the OC and there was no statutory duty requiring the OC to enforce its by-laws; 2. Subsection 106(1) SSMA does not impose a duty on the OC to repair and maintain the pergola as it does not form part of the common property; In any event, under s 106(7) the obligation to maintain the common property is subject to the provisions of any by-law made under s 108. The OC was not under any duty to repair and maintain the pergola due to provisions set out in Special by-law 14 which required the owner of Lot 31 to maintain the alterations and additions installed in the course of the works and the common property affected by the works in a state of good and serviceable repair; 1. Section 119 SSMA stipulates that an OC may carry out work that is necessary to rectify defects in the common property but does not give the Tribunal jurisdiction to make an order requiring the OC to undertake works; 2. Section 119 only allows the OC to undertake necessary work to rectify a structural defect affecting the support or shelter provided by that lot for another lot in the building or the common property or other defects in a pipe wire, cable or duct for certain purposes and so does not apply to the present circumstances; 3. Section 120 did not give the Tribunal power to compel the OC to undertake work required by a by-law to be undertaken by the occupier of the relevant lot. The OC's power under s 120(2) was discretionary and it was ultimately the Lot owner's responsibility to repair any damage caused by the undertaking of the works to install the pergola. The OC contended Notwithstanding, the wording of section 120(2) SSMA refers to works that are "required" pursuant to that by-law. The by-law does not require any further works, the works that have been undertaken merely go beyond what the by-law has authorised. 1. An application under s 132 could only be made by an OC and the applicant did not have standing to seek orders under that section; 2. Section 135 only specifies that the OC is bound by the by-laws, it does not impose a statutory duty on the OC to enforce its by-laws; 3. Section 151 SSMA did not give the Tribunal the power to make an order to compel an OC to undertake works; 4. Section 151 was directed to an owner, mortgagee or covenant chargee in possession, tenant or occupier of a lot and did not place any obligation on an OC; 5. The appropriate order in circumstances regarding unauthorised works to the common property was an application against a lot owner seeking that they undertake a specific scope of works. No such scope of works had been filed and even if it had been the application should have been brought against a lot owner and not against the OC; 6. The applicant had not provided a scope of works of sufficient specificity to be enforced. 1. In relation to order 2: 1. The Tribunal did not have jurisdiction to make an order requiring the OC to compel a lot owner to comply with the scheme's by-laws; 2. Section 146 SSMA empowers the OC to issue a notice to a lot owner to comply with the scheme's by-laws, however that power is exercised at the OC's discretion and there is no strict duty placed upon the OC to issue such a notice; 3. Subsection 146(3) requires the decision to issue a notice to be made by resolution of the OC at a general meeting or by the strata committee of the OC and so requires a level of approval by the OC and is not a function or mandatory rule; 4. Special by-law 14 is a s 108 by-law and notices under s 146 are typically issued for rules by-laws made under s 136 SSMA for the management, administration, control use or enjoyment of the lots or the common property and lots of a strata scheme. 1. In relation to order 3: 1. The OC was under no statutory duty to repair or maintain the pergola, including undertaking any cleaning, as the pergola is lot property and not common property; 2. Under cl 4(b) to Special by-law 14 the lot owner is responsible for the maintenance of the pergola and the Tribunal did not have jurisdiction to make an order requiring the OC to undertake works to maintain the pergola; 3. There was no expert evidence regarding the mould or that the pergola was not the cause of the mould, in which case the mould would be the responsibility of the owner of Lot 31; 4. The OC submitted that the owner of Lot 31 … has complied with Special by-law 14 with respect to the maintenance of the works (at least with respect to cleanliness) by undertaking regular cleaning the pergola and installing gutter guards to prevent debris falling into the gutter. The owner of Lot 31 had undertaken works to clean the pergola. Special by-law 14 did not include a requirement that the wall be cleaned; 1. The OC had obtained advice that the electrical cabling works were not illegal and no evidence had been found of a safety hazard. 1. In relation to the absence of the owner of Lot 31 from the hearing: 1. The Tribunal did not have jurisdiction to make an order impacting on the owner of Lot 31; 2. Even if there was, the OC submitted that there was precedent for giving time for the owner of Lot 31 to seek an amendment to Special by-law 14 to rectify any discrepancies as was done in The Owners - Strata Plan No 68255 v Downs; Downs v The Owners - Strata Plan No 68255 [2021] NSWCATCD 34. Has the applicant demonstrated, on the balance of probabilities, that the pergola does not comply with Special by-law 14? 1. Special by-law 14 as passed by special resolution at the AGM of the OC on 26 August 2020 specifically referred to the Stratco drawings. Special by-law 14, as a common property by-law under s 108 SSMA, was passed by special resolution on the basis that it would be built in accordance with those drawings. 2. The covering letter which accompanied the drawings and was attached to the AGM agenda specifically noted that the height of the pergola had been omitted from the wording of Special by-law 14. Therefore the only guide to the permitted height of the pergola is the height specified in the Stratco drawings. 3. The Stratco drawings refer to the footings as being in concrete. It is not contested that the floor of the courtyard to Lot 31 is concrete. The OC contends that the height should be measured from the height of the decking rather than the concrete floor. However the decking is not represented anywhere in the Stratco drawings or mentioned in Special by-law 14. The presence of the decking was not part of the consideration undertaken by the OC at the AGM on the basis of the papers presented and passed by special resolution. I do not accept the contention that the allowable height for the pergola should be measured from the decking when there is no evidence that this was a consideration put before the OC prior to the vote. 4. On the basis of Special By-law 14 as it presently stands, when read with the Stratco drawings, the maximum allowable height of the pergola is 2700m above the concrete floor of the courtyard to Lot 31. 5. The Surveyor reports provided by the applicant indicate that the pergola is 3.21m above the concrete floor at the rear and 3.19m above the concrete floor at the front. 6. Although the OC noted that the Applicant's Surveyors Reports did not strictly comply with Procedural Direction 3, the OC did not provide any expert evidence in response. Under cl 11, Procedural Direction 3 applies (relevantly) in Evidence Rules Proceedings, proceedings in the Consumer and Commercial Division involving claims under the Home Building Act 1989 (NSW) where the amount claimed or in dispute is more than $30,000; and any other proceedings in which the Tribunal directs that this Procedural Direction 3 is to apply. Accordingly Procedural Direction 3 does not apply to these proceedings. 7. The Surveyor Reports are the only independent expert evidence before the Tribunal regarding the actual height of the pergola and there is no reason to consider they are unreliable. As a result, the applicant has demonstrated on the balance of probabilities that the pergola exceeds the height specifications in the Stratco drawings and the owner of Lot 31 has failed to comply with the obligation under clause 1 of Special By-law 14 that the pergola be built in accordance with the Stratco drawings. 8. This finding is consistent with the legal advice obtained by the OC. In the letter of advice from Chambers Russell Lawyers dated 12 August 2021, it was "assumed" that the pergola as constructed complied with the requirements of the by-law. In the further advice dated 8 September 2021 the advice relevantly notes that all three external areas of unit 31 are limited in height to 2.3 metres above the upper surface of the concrete floor of the terrace. The Stratco drawing specifies the height of the permitted structure as being 2700mm and the "footing type" is listed as "on concrete." The advice notes that on an objective rating of the Stratco drawing the permitted height of the structure was 2.7 metres above the upper surface of the concrete structure of the terrace which permitted the pergola structure to encroach vertically into common property by 0.4 metres. According to the surveyors report, at its highest point the pergola reaches 3.21m and so encroaches the common property by 0.91 metres. 9. Taken with the November 2020 Surveyor report which showed that the height of the pergola was more than 2700mm from the concrete floor, it is apparent that the OC had legal advice that the pergola did not comply with Special By-law 14 prior to its decision to take no further action on the matter in September 2021. Does the Tribunal have the power to make orders under s232 of the SSMA requiring the OC to remove the pergola or to require the owner of lot 31 to make the pergola compliant? 1. Section 232(1)(e) of the SSMA empowers the Tribunal, on application by an interested person, to make an order to settle a complaint or dispute about an exercise of, or failure to exercise a function conferred or imposed by or under the SSMA or the by-laws of a strata scheme. As the owner of a lot in the scheme, the applicant is an interested person under s 226(1)(d). 2. Under s 4 SSMA, function is not merely limited to a duty as contended by the OC; it includes a power, authority or duty, and exercise a function includes perform a duty. Duty is not otherwise defined in the SSMA but must include a duty to comply with the provisions of the Act, Regulations and By-laws in force from time to time. Consequently, the applicant, as an interested person, can apply for an order under s 232(1)(e) that the OC be required to comply with any relevant section of the SSMA or the By-laws. 3. Section 232(2) clarifies that an OC, strata committee or building management committee is taken not to have exercised a function if it decides not to exercise the function or application is made to it to exercise the function and it fails to exercise the function or inform the applicant that it has decided not to exercise the function within two months. 4. Taking into account the wording of s 232(2) that an OC or strata committee is taken not to have exercised a function if it decides not to do so, the OC's argument that the Tribunal had no jurisdiction to make an order in relation to a function which the OC had a discretion to exercise cannot be maintained. There will be sufficient basis to make an order under s 232(1)(e) where the OC, strata committee or building management committee has a discretion to exercise a function but decides not to do so or fails to do so within two months of an application being made. 5. Under s 9 SSMA, the owners corporation for a strata scheme has the principal responsibility for the management of the scheme. The owners corporation has, for the benefit of the owners of lots in the strata scheme, the management and control of the use of the common property of the strata scheme, and the administration of the strata scheme. 6. Section 10 SSMA describes the functions of the owners corporation generally: (1) An owners corporation has such other functions as may be conferred or imposed on it by or under this or any other Act. (2) An owners corporation must not delegate any of its functions to a person unless the delegation is specifically authorised by this Act. 1. Section 36 SSMA sets out that the strata committee has the functions conferred on it by or under the SSMA or any other Act and that a decision of a strata committee is taken to be the decision of the owners corporation. Section 37 stipulates that it is the duty of each member of a strata committee of an owners corporation to carry out his or her functions for the benefit, so far as practicable, of the owners corporation and with due care and diligence. 2. Under s 135, the OC is bound by the by-laws. 3. Although Special By-law 14 allows the owner of lot 31 to build into the common property airspace and along the common property wall to a height of 2.7m, the pergola in fact encroaches on the common property airspace to a height of 3.21m at its highest point. This is not permitted by Special by-law 14 or under any other relevant approval and is evidence of default under Special by-law 14. 4. Under clause 6 of Special By-Law 14, the OC has the right to remedy default. If the Owner fails to comply with any obligation under the by-law, the OC may carry out all work necessary to perform that obligation; enter upon any part of the Lot to carry out that work and recover the costs of carrying out that work from the Owner. 5. As evidence that the strata committee of the OC had decided not to exercise its functions under the SSMA or the by-laws in relation to the non-compliant work, the Applicant provided minutes of a strata committee meeting held on 14 September 2021 which note relevantly at item 15 that independent legal advice was obtained and stated that the installation of the pergola in lot 31 had been completed as per the terms and conditions set out in the by-law approved at the AGM, that the Strata Manager was to write to the owner of U35 outlining the outcome and no further action was required at this stage by the Strata Committee. Further, a letter dated 22 September 2021 from the strata manager to the applicant attached the legal advice dated 12 August 2021 and 8 September 2021. 6. The reason for deciding not to exercise the functions appears to be that the legal advice confirmed that the pergola complied with the by-law. As noted above, this is incorrect; the advice assumed that the pergola complied with the by-law and the Surveyors Reports obtained by the applicant demonstrated that the pergola in fact did not comply with the by-law. 7. The OC, by way of a decision of the strata committee, has decided not to exercise its function under cl 6 to Special By-law 14 when it is clear that the pergola does not comply. As a result the OC has decided not to exercise a function to administer the scheme for the benefit of the owners of lots in the strata scheme. 8. The evidence provided by the applicant has met the threshold to empower the Tribunal to make an order under s 232(1)(e); however the Tribunal's power to make orders under s 232 is discretionary and is subject to further considerations. 9. The OC contended that the Applicant had not provided a scope of works with sufficient specificity for the Tribunal to make an order requiring the OC to make the pergola compliant with Special By-law 14. 10. The orders requested by the applicant provided that the pergola be removed from the common property and the common property should be repaired. Although the formulation appears simple, its execution is more complex. Special by-law 14 does allow the pergola to be built to a height of 2700mm and simply requiring the OC to remove it would result in parts of the pergola which are permitted by Special by-law 14 also being removed. On that basis (and for other reasons which it is not necessary to address due to the findings on order 2), I would not make Order 1 which was sought by the applicant. 11. Nevertheless, there is little point in creating a statutory mechanism for the OC to pass a common property by-law merely to have that by-law flouted and for the OC to fail to act in the face of legal advice and complaints from other lot owners. The OC's failure to manage the owner of Lot 31's non-compliance with Special By-law 14 or to make any attempt to require the owner of Lot 31 to comply with Special By-law 14 leads the Tribunal to conclude that an order should be made requiring the OC to exercise its functions to administer the strata scheme for the benefit of the owners of lots in the strata scheme 9 S 9 SSMA) and in accordance with the by-laws (s135). As a result, I consider that an order should be made under s 232(1)(e) requiring the OC to take all necessary steps to require the owner of Lot 31 to comply with Special By-law 14. 12. The OC referred to the decision in The Owners - Strata Plan No 68255 v Downs; Downs v The Owners - Strata Plan No 68255 [2021] NSWCATCD 34 (Downs) where the Tribunal had given the Lot owners sufficient time to present a section 108 by-law at a general meeting of the OC to have unauthorised works retrospectively approved. This approach has also been taken in other Tribunal decisions, including Owners Corporation SP 22607 v Yang [2018] NSWCATCD 3 ('Yang'); The Owners – Strata Plan No 5319 v Price; Price v The Owners – Strata Plan No 5319 [2019] NSWCATCD 3 (Price) and Bate v The Owners-Strata Plan No SP 60549; Birdsall v Bate [2018] NSWCATCD 36 ('Bate'). The OC noted that, if the Tribunal was not minded to dismiss the Strata Application, there was precedent for allowing a period of time for the owner of lot 31 to seek approval from an EGM of the OC to amend Special by-law 14 such that the pergola would be compliant with the amended by-law. 13. It is consistent with other Tribunal decisions to defer any orders to rectify the changes for a period of 6 months to allow time for the owners of Lot 31 to make that application to the OC. 14. The applicant has been successful in relation to order 2, which was sought as an alternative to order 1. Is the OC obliged to clean the common property wall above the pergola and beneath the applicant's bedroom window? 1. The OC submitted that the applicant had not provided any expert evidence regarding the mould. However the applicant provided detailed photographs of a black substance accumulating across the common property wall above the pergola and below the windows of the applicant's lot. The applicant did not provide a mould report but expressed concern that the substance was mould and/or hazardous to health. The OC did not provide any rebuttal evidence on this point. 2. On the basis of the photographs, the applicant has demonstrated the accumulation of a black substance on the common property wall. 3. The OC contended that it should not be responsible for cleaning the wall above the pergola because the applicant had not demonstrated that the pergola was not the cause of the mould. However, the OC has a statutory duty to maintain and repair the common property under s 106(1). That duty is deferred under s 106(4) if the OC has taken action against an owner in respect of damage to the common property, which it has not. The duty is also subject to the provisions of a common property by-law under s 106(7). Under cl 4(b) to Special by-law 14, the owner of Lot 31 must, at the cost of the Owner, maintain the alterations and additions installed in the course of the Works and the common property affected by the Works and so the OC submitted that responsibility for cleaning the wall fell to the owner of Lot 31. However, to demonstrate that cl4(b) transferred responsibility for maintaining the common property wall to the owner of Lot 31, it was necessary for the OC to show that the common property wall had been affected by the pergola. The OC did not provide any evidence to demonstrate that the black substance was caused by the pergola. 4. In those circumstances, it falls to the OC to properly maintain the common property under s 106(1). 5. The OC has failed to exercise its function under s 106(1) to maintain the common property wall above the pergola and accordingly is required to clean the substance from the wall. An order will be made accordingly. orders 1. The Owners – Strata Plan No 11045 is to take all necessary steps to require the owner of Lot 31 to comply with Special By-law 14; that is, by requiring the owner of Lot 31 to reduce the height of the pergola to 2.7 metres measured from the concrete surface of the courtyard to Lot 31. 2. The Owners – Strata Plan No 11045 is to comply with order 1 within 6 months of the date of these orders. 3. The Owners – Strata Plan No 11045 is to arrange for the cleaning of the wall above the pergola at lot 31 and below the windows of lot 35 within 2 months of the date of this order. 4. Ben Swanson is removed as the second respondent. 5. Either party may file and serve written submissions of not more than 5 pages within 14 days of the date of this decision seeking an order in relation to the costs of the proceedings. 6. If either party files submissions in accordance with order (5), the other party may file submissions in response within a further 14 days. 7. Any submissions filed in accordance with orders (4) and (5) must address the question whether the question of costs may be determined on the papers and without a hearing pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW). ********** 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 Amendments 17 August 2023 - Formatting amendments. 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: 17 August 2023