Civil and Administrative Tribunal New South Wales Medium Neutral Citation: The Owners-Strata Plan No 8461 v Georghy [2023] NSWCATCD 156 Hearing dates: 1 June 2023 Date of orders: 14 December 2023 Decision date: 14 December 2023 Jurisdiction: Consumer and Commercial Division Before: G Sarginson, Senior Member Decision: (1) The application is dismissed. (2) Any costs application is to be dealt with as follows: (a) The costs applicant is to file with the Tribunal and serve on the costs respondent all costs submissions and documents by 16 January 2024. (b) The costs respondent is to file with the Tribunal and serve on the costs applicant all costs submissions and documents by 30 January 2024. (c) The costs applicant is to file with the Tribunal and serve on the costs respondent all costs submissions in reply by 6 February 2024. (d) Costs submissions are to include whether the parties consent to the issue of costs being determined without a further oral hearing under s 50 (2) of the Civil and Administrative Tribunal Act 2013 (NSW), and if not, why not. (e) The parties may apply in writing to the Tribunal and the other party to vary or extend the timetable for costs submissions and documents. Any application for an extension of time is to be made prior to the date of the relevant timetable obligation. Catchwords: LAND LAW---Strata title---Storage of items on common property---Unauthorised alterations to common property---Whether Lot owner should be ordered to remove items and alterations Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Strata Schemes Development Act 2015 (NSW) Strata Schemes Management Act 2015 (NSW) Cases Cited: Coscuez International Pty Ltd v The Owners-Strata Plan No 46433 [2022] NSWCATAP 147 Texts Cited: None cited Category: Principal judgment Parties: The Owners-Strata Plan No 8461 (Applicant) Joseph Georghy (Respondent) Representation: Counsel: J. Young (Applicant) Solicitors: DEA Lawyers (Applicant) Spiers Ryan (Respondent) File Number(s): 2022/00394252 (previously SC 22/56548) Publication restriction: Nil REASONS FOR DECISION 1. This is an application by an owners corporation to obtain orders against a Lot owner to remove certain items that are purportedly being stored on common property; to remove purported unauthorised alterations to common property; not to park vehicles on common property; and to restore the common property. 2. The dispute involves the provisions of the Strata Schemes Management Act 2015 (NSW) (SSM Act). 3. In this decision, any reference to 'the owners corporation' is a reference to the applicant; and any reference to 'the Lot owner' is a reference to the respondent. BACKGROUND 1. There has been a past history of disputation between the parties, including previous Tribunal proceedings. 2. It is clear from the documentary evidence that the Lot owner blames Mr Condon (strata committee member) and the owners corporation for taking previous action against him; contacting the local Council; and refusing to consent to proposed Development Application in respect of the rooftop area of the building that is subject to a common property rights by-law. The Lot owner asserts Mr Condon and the owners corporation has acted unreasonably towards him. 3. Mr Condon asserts the Lot owner is at fault, and is unreasonably aggrieved that the owners corporation is asserting legitimate rights. Mr Condon asserts the Lot owner has acted in an unreasonable manner towards him. It is unnecessary to set out in any detail the substance of the various assertions. 4. The Tribunal refers to such matters not because it is necessary to make factual findings about such matters in these proceedings, but to provide context to the current dispute and the relationship between the parties. 5. The current dispute between the parties involves interpretation of various by-laws of the strata scheme. 6. The strata scheme building is located in the North Sydney area. 7. The respondent is the owner of two Lots. He has the benefit of common property rights by-laws over part of the roof of the strata building which is able to be accessed from his Lot; and an area immediately outside the ground floor of the strata scheme building. The respondent resides in the strata building. 8. The respondent purchased his Lots in June 2014. The respondent owns Lots 105 and 106. There are 108 Lots in the strata scheme. 9. The building was constructed in 1961. The by-laws were registered in 1974. The building has a basement level; a ground level; 7 stories/floors; and a roof. The building was originally serviced apartments, but was later converted to a mixture of commercial and residential Lots. 10. Within the area of the rooftop that is the subject of the relevant common property rights by law is a brick structure which the respondent refers to as "the penthouse." The respondent asserts that from the 1960's onwards, the "penthouse" was used, for a considerable period of time, as a "caretaker's residence". 11. The area also included an enclosed pergola/sunroom, deck, railings; and balustrades that involved various alterations to common property over the years. 12. On 1 November 2001, the local Council granted a Complying Development Certificate for the replacement of the enclosed pergola, deck and perimeter balustrade immediately to the east of the "penthouse". Such works were performed by the owners corporation. 13. In 2013 and 2014 waterproofing works were performed on the rooftop, involving the replacement of the waterproofing membrane and associated works. The owners corporation engaged Assetmark Group Pty Ltd (Assetmark) to perform such works. According to the respondent, in late 2014, he installed ceramic tiles using a "pedestal system" in the patio and terrace area, rather than the owners corporation replacing the previous clay tiles, because the ceramic tiles had "superior waterproofing qualities". 14. In August 2018, the owners corporation engaged Assetmark to perform invasive investigation of waterproofing works on the roof, which involved the removal of vinyl floor covering in the pergola and removal of tiles on the terrace. Repairs and reinstatement works were done by the owners corporation after the testing was completed. 15. In about 2020 there was a complaint to the local Council about the 'penthouse'. 16. On 5 January 2021, the local Council wrote to the respondent regarding the rooftop 'penthouse' being used as a dwelling without local Council approval under the Environmental Planning and Assessment Act 1979 (NSW). The letter relevantly stated as follows: … I note that, during the inspection, you stated that you are occupying the dwelling. In this regard, staff observed that the dwelling contains a bedroom and a bed, a bathroom, shower, and toilet. According to Council's records, no formal Development Consents have been issued for the dwelling, and staff have determined this was required… I realise you have occupied the dwelling for some time. However, without Development Consent, where this was required under the Act, staff are unable to determine that its use has been approved. Council intends to assess any planning implications presented by the dwelling and its use for residential premises, and you are therefore, invited to lodge a Development Application to initiate the assessment process. … 1. On 19 February 2021, the respondent's Solicitor wrote to the owners corporation seeking that it consent to the online lodgement of a Development Application, and attached various documents. The letter stipulated that the owners corporation had 7 days to provide notification of its consent, or the respondent may commence proceedings in the Tribunal. 2. On 9 March 2021, the respondent commenced proceedings in the Tribunal seeking an order under s 232 (6) of the SSM Act that the owners corporation consent to the lodgement of the Development Application. 3. In March 2021, the owners corporation entered into an agreement with Assetmark for the waterproofing membrane of the roof to be replaced, and for associated repair works to the common property. 4. On 16 July 2021, the respondent's application for an order under s 232 (6) of the SSM Act was head by the Tribunal. The decision was reserved. 5. On 31 August 2021, the Tribunal (Deane SM) dismissed the respondent's application. Written reasons were given for that decision. 6. In 2021, the owners corporation had taken its own Tribunal proceedings seeking that orders be made invalidating By-laws 31-33 and seeking access so that the owners corporation could perform common property repair works to the rooftop waterproofing membrane (Matter SC 21/25349). 7. At a General Meeting of the owners corporation in February 2022, the owners corporation passed a special resolution to amend By-law 31. The amended By-law 31 was subsequently registered. 8. The amended By-law 31 contained a number of provisions. 9. Firstly, it gave the Lot owner exclusive use of "Area A1" and "Area A2". Area A1 was the area "hatched and marked A1" in the attached plan (including the area marked "sunroom") 10. Area A1 is described as bounded by: (i) The upper boundary being the internal ceilings within the hatched areas marked "A1" as shown on the Plain (for the avoidance of doubt the structure and areas marked "LIFT OVERRUN", "STAIRS", and "SERVICES" are not included within the Exclusive Use Area). (ii) The lower boundary being the upper surface of the waterproofing membrane installed on the concrete roof slab of the area shown as sunroom and the upper surface of the concrete floor slab for the remainder of the area hatched on the Plan; and (iii) The outer boundary being the inside surface of the external walls of the structures and, where there is no structure, the lines shown on the Plan and conjointly delineated as a line or lines on the Plan, For clarity, the Exclusive Use Area: (iv) includes all walls, floors, ceilings and other structural and non-structural elements including fixtures, fittings, tiles, railings, balustrades, columns and windows that service or benefit the respective Use Area; (v) excludes the roof of all structures and any Common Property services shared amongst more than one lot, such as sewerage services, electrical and water mains and services; and (v) excludes the structure and areas marked "LIFT OVERRUN," "STAIRS," "SERVICES," and the hallway areas/landings to those areas. 1. Area A2 is defined as "the are described as Terrace (Deck) and marked "A2" on the Plan annexed hereto and bounded by": (vii) The upper boundary being 2.5 meters above the upper surface of the waterproofing membrane installed on the concrete roof slab of the area shown on the Plan; (viii) The lower boundary being the upper surface of the waterproofing membrane installed on the concrete roof slab for the area shown on the Plan; and (ix) The outer boundary being the external surface of the aluminium handrail and glass balustrading and indicated by a line or lines shown on the Plan. For clarity, the Exclusive Use Area A2 includes but is not limited to all tiles, floors, structures including the aluminium handrail and glass balustrading. 1. Secondly, the common property rights by-law approves past alterations to the common property (referred to as "Past Works") and certain future works (referred to as "Future Works"). 2. The "Past Works" included renovations to the bathroom and kitchen; replacement of the clay pavers with ceramic pavers; installation of glass balustrading; installation of sliding glass door to the sunroom; and replacement of the air-conditioning system. 3. The "Future Works" are identified as follows: (1) the reinstatement at the Owners cost of the pergola/sunroom structure in the Exclusive Use Area in accordance with the complying development certificate number Z257/01 issued by North Sydney Council on 1 November 2001 or such further or other approval that the Owner may obtain at his own cost from an Authority to be undertaken after the OC works are complete; and (2) the reinstallation of the terrace tiles and the railing and glass balustrading that separate the terrace area from the remainder of the Common Property of the roof of the Strata Plan. 1. Thirdly, the common property rights by-law contains various conditions. Relevant to these proceedings, there is a condition (condition 4 (j)) that the Lot owner give reasonable access to the owners corporation to inspect, maintain and repair common property within 24 hours of any written request; a condition that the Lot owner "must not block, lock, or obstruct the Owner's Corporation's access to the other Common Property roof areas of the Strata Plan" (condition 4 (k)); and a condition that the Lot owner "must at the Owner's cost, keep the Exclusive Use Area clean and tidy and free from vermin and pests" (condition 4 (4)). 2. Fourthly, provides for a payment of $25,000 for the exclusive use of the common property. 3. Fifthly, referred to the waterproofing works to the roof that the owners corporation intended to perform pursuant to its contract with Assetmark entered into in March 2021. 4. Those provisions are set out in Clause 6 of the common property rights by-law and are important to the disposition of part of these proceedings. The subclauses of Clause 6 are referred to in this decision as "conditions". 5. The provisions provide for the Lot owner to give reasonable access to the owners corporation and its contractor to perform the works; and for the owners corporation to reinstate certain items that needed to be removed to perform the waterproofing works. In substance, the provisions relevantly stated: 1. The railing and glass balustrade that separates the terrace area from the remainder of the common property roof "will not be disposed of by the Owners Corporation but will be safely stored such that the Owner will reinstate those at his own cost after completion of the OC Works and the existing terrace tiles will be removed and safely stored by the Owners Corporation and reinstated by the Owner at his own cost after completion of the OC Works" (condition 6 (a)). 2. The owners corporation acknowledged that the contractors engaged to do the works will undertake some of the works under warranty due to previous waterproofing works being found to be defective (condition 6 (b)). 3. The Lot owner agreed to give the owners corporation "full, free, unfettered, unobstructed and uninterrupted access" to the parts of the exclusive use area referred to in the By-law as the terrace and the sunroom, and agrees not to access those parts of the exclusive use area until the earlier of 4 months from the commencement of the works, or upon notification by the owners corporation the works are complete (condition 6 (c)). 4. The Lot owner agreed to give the owners corporation's contractors reasonable access to the internal parts of the exclusive use area for the necessary and proper conduct of the works on 24 hours prior notice (condition 6 (d)). 5. The Lot owner "must at his own cost and as soon as practicable after the registration of the By-law and prior to the owners corporation's works remove any personal property (including, but not limited to, pot plants and any other furniture or items) such that the OC works can be undertaken" (condition 6 (e)). 6. The owners corporation "must reinstate on a "like for like" basis all property that is the subject of the rights granted under clause 3 of this by-law that is damaged, destroyed or altered as a result of the OC Works except for the Future Works which the Owner is authorised to carry out. The Owners Corporation will ensure that the terrace tiles and the railing and glass balustrading are carefully removed and safely stored at the commencement of the OC works. For the avoidance of doubt, the Owners Corporation must at their cost replace all tiles, railing and glass balustrading that are damaged or destroyed prior to completion of the OC Works. For the further avoidance of doubt, the Owners Corporation's obligation to reinstate does not extend to any of the structures or items that are part of the Future Works on the understanding that the Owner is to reinstate those items at his own cost in accordance with the terms of this by-law" (condition 6 (f)). 7. If the Lot owner obstructs the works, the owner is liable for costs incurred by the owners corporation (condition 6 (g)). 8. If the owners corporation requires access to the exclusive use are "to determine if any work is required" to comply with its obligation to keep common property in a state of good repair; or the owners corporation's obligations under the SSM Act or the by-law, the Lot owner "must not obstruct, hinder, interfere with, disrupt or disturb the Owners Corporation's contractor(s) from carrying out the investigations or works; and remove at his own cost any personal property of the Owner (or occupier) (including, but not limited to, pot plants and any other furniture or items) so as to facilitate the carrying out of such investigations and/or works" (condition 6 (h)). 9. The obligations of the Lot owner under clauses 4 (i), (m) and (n) of the common property rights by-law do not apply unless the owners corporation has completed the works and reinstated all property in accordance with clause 6 (f) of the by-law (condition 6 (i)). 1. In mid-May 2022, the owners corporation's contractors removed the metal balcony balustrade; the glass panels for the balcony balustrades; and the terrace tiles so that rooftop waterproofing membrane repair works could be performed. 2. According to the affidavit of the Lot owner dated 11 April 2023 (at [28]), those items were stored: …in their current location on the roof, as required (sic) to do so under by-law 31. There has been no issue raised with the location on (sic) these common property items on the roof or any suggestion that they were our would become my responsibility for over 6 months until just prior to the commencement of these proceedings… 1. In May 2022, the owners corporation's contractors also removed and demolished the sunroom in the penthouse in order to perform the repair works to the rooftop common property waterproofing membrane. 2. The Lot owner asserts that it was the owners corporation's contractors who decided to store the balustrade, tiles and glass panels on the roof rather than removing them to another area, and he was not involved in this decision. The Lot owner states that he has moved or interfered with the items. 3. The Lot owner also asserts that "5 tiles" were broken when removed, and the owners corporation will have to replace those tiles when the reinstatement works occur at the conclusion of the repair works to the rooftop waterproofing membrane. 4. On 22 December 2022, the owners corporation commenced these proceedings in the Tribunal; and also sought interim orders. 5. On 27 January 2023, the Tribunal made interim orders that relevantly stated as follows: …on the applicant, by its chairman, secretary, giving the usual undertaking as to damages, the Tribunal makes the following orders and notations: 1. ORDER that the respondent is to forthwith remove the items stored on the level 9 open roof area including the pavers, balustrades and glass panels, and pot plants. 2. ORDER that order 1 above remain in force until the earlier of 27 April 2023 or any further order. 1. On or about 14 February 2023, a representative of the local Council attended the rooftop of the strata building and performed an inspection. 2. On 9 March 2023, the owners corporation's Solicitors wrote to the Lot owners Solicitors relevantly stating as follows: … Your client has now remove the pots, pot plants and plantar boxes from the roof, however is now storing those on the common property without authority of the OC. The loose tiles and balustrade railing and glass remain on the common property open roof and are a safety hazard and your client is in breach of the interim orders of the Tribunal requiring him to remove those from the open roof of the building. The owners corporation's waterproofing works reached practical completion on or about 8 December 2022 and the temporary barrier around the perimeter of the roof that had been installed by Assetmark was removed on or about that date. Therefore, from on or about that date, it was no longer the owners corporation's obligation to safely store them, and it was no longer safe to store them on the open roof because the perimeter barrier had been removed. … 1. The letter of 9 March 2023 stated the owners corporation intended to proceed with the application, that it also sought to amend the orders it sought; and further it sought an extension of time to complete the filing and serving of its documentary evidence. 2. In March 2023 there was further extensive correspondence between the Lot owner and the owners corporation regarding the owners corporation providing its consent to the lodgement of a Development Application by the Lot owner. In that correspondence, it is asserted on or on behalf of the Lot owner that a further Development Consent is required to "reinstate" the "terrace and sunroom on a like for like basis." The Lot owner asserts in his affidavit of 11 April 2023 that the owners corporation has continued to unreasonably withhold consent to the lodgement of a Development Application, despite the provisions of Amended By-law 31. 3. However, these proceedings do not involve any separate proceedings pertaining to the allegation that the owners corporation continues to unreasonably refuse consent to the lodgement of a Development Application and it is unnecessary to explore that issue in the context of the orders sought by the owners corporation. THE CLAIM AND THE AMENDED CLAIM 1. When the proceedings were filed with the Tribunal on 22 December 2022, the owners corporation sought the following orders: 232 Orders to prevent the lot owner storing loose materials on the common property including rooftop area and exclusive use area pursuant to Section 232 of the Act. Pursuant to s 132 of the Act to require the owner or occupier to repair damage or compensate for damage. 1. The application filed on 22 December 2022 contains various submissions and documents on behalf of the owners corporation. 2. The owners corporation asserts that "on the original plans" the roof of the strata building "was going to be a common property laundry/baggage room." As discussed previously, the Lot owner does not agree with that assertion. 3. The owners corporation further asserts that when the building became a strata building "the bricked rooftop area was given to lot 105 as exclusive use at that time (sic)" and "at some point several years ago alterations were made and it was turned into a living space". 4. The owners corporation asserts the rooftop structure/enclosed area "has been approved" by the local Council for residential use. A Development Consent dated 7 December 2022 is attached to the application. That Development Consent provides consent to the residential use of the exclusive use area, but relevantly states as follows: …Nothing in this consent authorises the construction works and/or use of the following: (a) Sunroom and timber deck to the east of the proposed studio; and (b) Garden bed/planters on the roof level with associated planting removed. 1. The owners corporation states in the application that: 1. The Lot owner has "stored on the roof areas pot plants, dismantled glass balustrades, tiles and other building materials without the approval of the owners corporation." 2. The storing of those materials will potentially damage the recently laid waterproofing membrane and glass sheets could be blown off the rooftop constituting a safety hazard. 3. The waterproofing membrane is "non-trafficable" and no items should be stored on it pursuant to a report from Gleeson Engineers and the terms of the Development Consent issued by the local Council in respect of the rooftop repair works by the owners corporation. 1. The owners corporation sought to amend the orders sought pursuant to proposed "Amended Orders" dated 9 March 2023. 2. Those orders sought the following: 1. Orders pursuant to ss 232 and/or 241 of the SSM Act that the Lot owner "at his cost remove forthwith from the open are roof of the building…and keep off the open air roof of the building all loose tiles and metal balustrade railing and glass balustrade sheets (unless those items are reinstalled in accordance with the requirements of by-law 31), pots, pot plants and planter boxes." 2. Orders pursuant to ss 232 and/or 241 of the SSM Act that the Lot owner "at his costs, forthwith remove the pots, pot plants, and planter boxes from the common property on the ground floor of the strata scheme". 3. Orders pursuant to ss 232 and/or 241 of the SSM Act that the Lot owner, and/or his servants and agents "do not park any motor vehicle on the common property, including the corner of Clark Road and High Streets, without written approval of the owners corporation". 4. Orders pursuant to ss 132 (1) (a) and/or 241 of the SSM Act that the Lot owner at his cost and using suitably licenced and insured contractors perform the following works: 1. Remove the CCTV cameras installed on the common property walls/ceilings on the ground floor; 2. Remove the CCTV signage installed on the common property wall; 3. Remove the burglar alarm sounder/strobe installed on the common property wall; 4. Remove the carport at the corner of Clark Road and High Street; 5. Remove all other loose items stored on the common property on the ground floor; and 6. Restore the common property as close as possible to its original condition. 1. An order for costs. 2. Such further or other orders as the Tribunal deems appropriate. 1. On 15 March 2023, the Tribunal made an order granting the owners corporation leave to amend its application to seek the orders identified in its proposed amended application dated 9 March 2023. 2. The substantive proceedings in Matter SC 22/56548 was listed for a directions hearing at the Tribunal on 27 January 2023. Procedural directions were made for the filing and serving of documentary evidence and submissions. 3. That procedural timetable was extended on various occasions. CONDUCT OF THE HEARING 1. The matter was listed for hearing at the Tribunal on 1 June 2023. 2. Mr Young of Counsel appeared for the owners corporation. Ms Saw, Solicitor, appeared for the Lot owner. 3. Neither party sought an adjournment of the hearing. 4. Both parties informed the Tribunal that neither party sought to cross examine the other party's witnesses. 5. The hearing proceeded on the basis of oral submissions with each party referring to the documentary evidence of the parties that was admitted into evidence at the hearing, subject to submissions on evidentiary weight to be attributed to such documents, and submissions on relevance. DOCUMENTARY EVIDENCE OF THE PARTIES 1. The documentary evidence of the parties was as follows: The Owners Corporation 1. Documents attached to the application filed in the Tribunal. 2. Statement and affidavits of Mr Condon dated 11 January 2023; 9 March 2023 and 30 May 2023 (evidence in reply) and documents attached to those statements. 3. Copy of interim orders made by the Tribunal in January 2023. The Lot Owner 1. Affidavit of the Lot owner dated 11 April 2023 and 31 May 2023 and documents attached to those affidavits. 2. The affidavit of the Lot owner dated 31 May 2023 focusses upon the further Development Application the Lot owner asserts was served on the owners corporation on 3 April 2023 and the documents that pertain to that further Development Application. As discussed previously, the Lot owner asserts that the owners corporation has not provided consent to the lodging of that Development Application with the local Council. 3. As these proceedings do not involve any application for orders by the Lot owner that directly involve the owners corporation failing to consent to the lodging of the Development Application, the affidavit of 31 May 2023 and its documents have very limited relevance to the issues in dispute in these proceedings. CONSIDERATION Order That the Lot Owner Remove Materials Being Stored on the Rooftop to Reconstruct Tiles; Railings and Glass Balustrades 1. The owners corporation bears the onus of proving, on the balance of probabilities, the applicable factual matters and persuading the Tribunal to make the orders sought. 2. For the owners corporation to succeed, it must prove that: 1. The Lot owner is in breach of a By-law or provision of the SSM Act; and 2. If so, the Tribunal should exercise its discretion under s 232 and/or 241 of the SSM Act to make the orders sought. 1. Mr Condon states in his witness statement of 11 January 2023 that: 1. Following reports of new water leaks from occupants on Level 8 of the building in early 2022, the owners corporation engaged Assetmark to perform repair under warranty to the rooftop waterproofing membrane. The works were completed in December 2022 and "some additional remedial work was carried out to address damage caused by earlier unapproved works by exclusive use occupants (i.e. window replacement, plumbing and electrical works)." 2. The owners corporation engaged Gleeson Consulting Pty Ltd to supervise and certify the works. 3. During the course of the works "it was evident that a large amount of demolished material, personal effects and heavy pot plans were being stored on the open area roof membrane, outside the brick enclosed area." 4. On 21 November 2022 Mr Condon, Mr Gleeson of Gleeson Consulting Pty Ltd, and Mr Nam of Assetmark inspected the roof. They had a conversation with the respondent about heavy items being stored on the common property roof and potentially damaging the membrane or falling from the roof. The respondent allegedly replied: "take me to NCAT." 1. In his affidavit of 9 March 2023, Mr Condon states (at para [6]-[7]) that Assetmark's work was completed on 8 December 2022 (as certified by Mr Gleeson) other than the installation of a sliding door structure that had previously let to the sunroom/pergola. A new sliding door (including angles and sealing around the door) was installed on about 16 February 2023. 2. Mr Condon (at para [8] of the affidavit) clearly states that Assetmark "removed and safely stored on the roof (emphasis added) the terrace tiles, railing and glass balustrades for the duration of the works". Mr Condon asserts that as soon as the works were completed by Assetmark, it became the respondent's obligation to "safely store those items until they were reinstalled by him at his cost after receiving approval to do so from an Authority in accordance with by-law 31". 3. Mr Condon attaches a series of photographs of the roof, which he asserts were taken by Assetmark and emailed to him by Mr Nam on 24 February 2023. According to Mr Condon, the photographs show tiles, sheets of glass and "loose items" on common property outside the area of the exclusive use by-law, including items placed on, or leaning against, air-conditioning duct work. 4. The respondent asserts in his affidavit of 11 April 2023 that he did not place the items on the roof; that on 14 February 2023 a representative of North Sydney Council attended for an inspection at the request of the owners corporation, and told the respondent the Council had no issue with the items stored on the roof and would take no action against the respondent; that the owners corporation should have stored the items pursuant to special by-law 31 until they needed to be restored; and the owners corporation continues to refuse to consent to a Development Application by the respondent, meaning he cannot restore the tiles, balustrades and railings. 5. For the sake of brevity, the Tribunal refers to the tiles, balustrades, railings and glass panels located on the roof as "the building materials." 6. The Tribunal is satisfied that the building materials were placed in their current position on the roof by Assetmark. Assetmark was engaged by the owners corporation, not the respondent. 7. There is insufficient evidence to establish the building materials have been stored in a manner that is unsafe or dangerous. On the contrary, Mr Condon states that the materials were placed in a 'safe' manner. There is no evidence by way of a witness statement or affidavit from Mr Gleeson or Mr Nan that the building materials have been placed in a manner that it unsafe or dangerous or in a manner causing damage to the common property. 8. Further, despite the assertion of Mr Condon that the building materials are damaging common property and Mr Gleeson or Mr Nan conveyed that opinion to the respondent , the evidence does not establish this. At most, there is some photographic evidence that some of the materials are being stored upon, or leaning against, air-conditioning ducting. That is not sufficient to establish damage to common property. 9. Even if the Tribunal was satisfied the building materials were causing damage, it is the owners corporation's contractor who would have caused that damage, not the respondent. 10. The Tribunal is satisfied, from assessment of the evidence (including the photographs and the strata plan) that the building materials are being stored on common property rather than in the exclusive use area. However, the Tribunal is not satisfied that the building materials have been stored in an unsafe manner; nor a dangerous manner; nor are damaging common property. 11. The owners corporation submits that, pursuant to cl. 6 (f) of special by-law 31 the owners corporation was only liable to "carefully remove and safely store" the building materials "at the commencement" of the owners corporation's waterproofing works, and that reinstatement of the tiles, balustrades and railings was ultimately the responsibility of the respondent after obtaining appropriate Development Consent. 12. However, that submission misses the salient point. It was the owners corporation, by its contractor, who chose to "safely store" the building materials on common property. There is no requirement under special by-law 31 for the respondent to move the building materials from where they have been positioned by the owners corporation at the end of the rooftop waterproofing works. 13. As the respondent did not cause or direct the building materials to be stored on the common property to which they have been stored and is not under a specific obligation under the terms of By-law 31 to move the building materials, the Lot owner is not in breach of any obligation under special by-law 31. 14. The storage of the building materials on the roof by the contractor of the owners corporation does not constitute any breach of any by-law of the strata scheme (including by-law 3 (obstruction of common property); by-law 5 (damage to common property)). 15. Further, there is no evidence to establish that the storage of the building materials on the roof constitutes nuisance by the respondent in breach of s 153 of the SSM Act. 16. As discussed previously, if the materials are causing damage to the common property, that damage is caused by the actions of the owners corporation's contractor, not the applicant. Order that the Lot Owner Remove Pots; Pot Plants; and Plantar Boxes From the Ground Floor 1. The witness statement of Mr Condon dated 11 January 2023 makes no reference to the Lot owner having moved pots; pot plants and plantar boxes to the ground floor. The only reference to such items is that Mr Gleeson is asserted to have told the Lot owner that they may damage the roof because they were "too heavy for the slab." 2. There is also a reference to the "level 9 roof slab is not designed to carry heavy point loads and the applied bituminous membrane is vulnerable to impact damage". Mr Condon is not an engineer of building consultant, and the weight to be given to his opinion about loads the slab can carry and membrane being vulnerable to "impact damage" is minimal. 3. On 5 December 2022, the strata manager wrote to the Lot owner stating that the "pot plants extend well beyond your exclusive use area and need to be removed". 4. On 8 December 2022, the strata manager in an email to the Lot owner referred to Mr Gleeson stating in his final inspection report that pot plants on the roof "are in protentional danger of rolling from high winds and then possibly falling from the building" and "the plants are of heavy weight are in a dangerous situation…" 5. On 16 December 2022 Mr Gleeson wrote to the owners corporation referring to the building materials and pot plants on the roof. It relevantly states as follows: … I have recently been provided a copy of North Sydney Council's consent 105/22 and in particular whereby Council have required that the sunroom be non-trafficable and only for maintenance. Furthermore it is noted that the proposed sunroom has been declined in this approval. These building materials and pot plants must be removed immediately from the roof due to safety concerns to the public. The current situation places danger to the public below at ground level and is contrary to the Council's conditions of the consent. … 1. There is no reference in this correspondence to the pot plants causing damage to the waterproofing membrane of the roof (or other damage to common property) due to their weight. There is also no reference to plantar boxes. 2. There is also no reference to the building materials being stored on the roof damaging common property, beyond the reference to the roof being "non-trafficable and only for maintenance." 3. There is also no reference in the certification for the works of Assetmark given by Mr Gleeson that pot plants (or building materials) must be removed as a condition of certification. 4. On 19 December 2022, the Lot owner emailed the strata manager stating that most of the pot plants had been removed; the ones that remained were safely secured; the pots were not heavy (and weighed less than the bags of cement that had been position on the roof by the owners corporation's builder); and the pots that remained on the roof were not damaging the waterproofing membrane. 5. In his affidavit of 9 March 2023, Mr Condon states as follows (at para [20]): The pot plants belonging to Joseph Georghy that were previously on the roof have now been relocated by or on his behalf to the ground floor and are on common property. The OC has not approved the pot plants being stored on common property. 1. Attached to the affidavit are two photographs (that are relied upon by the owners corporation in respect of removal of all the various items on the ground floor, including the pot plants and the issues of parking on common property and removal of the 'carport') at pp 23-24 of the affidavit. 2. There is also an extract of the strata plan with comments by Mr Condon which provide his opinion as to where the dividing line is between an exclusive use area given to the Lot owner pursuant to an exclusive use by-law for the ground floor area outside the Lot; and common property. Mr Condon asserts all of the pots; items; and cars depicted in the photograph are being stored (or parked) on common property. The issue of the ground area and the storage of items will be discussed later in this decision. 3. In his affidavit of 11 April 2023, the Lot owner asserts that the pot plants and other items depicted in the photographs are being stored in the area to which the Lot owner has the right to use under an exclusive use by-law (By-law 32). 4. By-law 32 states as follows: By-Law 32 Lot 105 exclusive use The proprietor for the time being of lot 105 to the exclusion of all other proprietors shall have the right free of any charge or occupation fee whatsoever to the exclusive use and enjoyment of that part of the common property shown hatched designated on the plan annexed hereto and marked "X" and shall have the right from time to enter leases or licences of the whole or any parts thereof and to retain any monies received pursuant to any such leases or licenses. No by-law shall be made amending, adding to or repealing this by-law except pursuant to a unanimous resolution as defined by the Strata Titles Act 1973, as amended, in favour of which the proprietor of Lot 105 shall cast his vote. 1. The by-law attaches an extract of the strata plan showing the "hatched" area on the ground floor. There is no clear dimensions on the plan. It appears that an area underneath the carport structure and the slab of the first floor of the building is the hatched area, but it without clear dimensions it is very difficult to identify the 'dividing line' between the exclusive use area and the common property area. 2. From the photographic evidence, it appears many (if not most) of the pots (and one plantar box) is within the hatched area. Accordingly, those items can be stored in the area by the Lot owner. 3. There may be a relatively small number of pots (approximately 5-7) that are being stored on common property. 4. However, even if some pots are being stored on common property, the Tribunal is not satisfied the owners corporation has established that the Tribunal should make an order that the Lot owner remove pot plants, pots and plantar that are currently stored on common property. 5. Firstly, the mere fact that an item is on common property without the consent of the owners corporation is not, of itself, sufficient. The owners corporation must establish that the Lot owner is breaching a by-law or a provision of the SSM Act, or another cause of action that falls within the ambit of ss 232 of the SSM Act (Coscuez International Pty Ltd v The Owners-Strata Plan No 46433 [2022] NSWCATAP 147 at [117]-[134]). Remedial powers under s 241 of the SSM Act only arise to supplement the remedial powers in s 232, and s 241 still requires a type of "complaint or dispute" that falls within s 232. 6. The owners corporation has failed to establish, on the balance of probabilities, that the Lot owner storing a small number of pot plants on common property (to the extent that they are outside the exclusive use area) is obstructing the lawful use of common property by any person (By-law 3); or damaging common property (By-law 5); or depositing material likely to interfere with the peaceful enjoyment of the owner or occupier of another lot or any person lawfully using the common property (By-law 9); or maintaining within the Lot anything visible that, viewed from outside the Lot is not in keeping from the rest of the building (By-law 17). 7. The owners corporation has also failed to establish that the storage of a small number of pot plants on common property (to the extent that they are outside the exclusive use area) constitutes nuisance in breach of s 153 of the SSM Act. 8. Secondly, even if a breach of by-laws or a provision of the SSM Act is established, the Tribunal has a discretion whether or not to make the remedial orders sought under ss 232 and/or 241 of the SSM Act. 9. Making an order compelling a Lot owner do something requires close consideration, not only because as with any order analogous to a mandatory injunction it involves assessment of the utility of the order sought; but because orders need to be sufficiently clear that there can be no doubt whether or not they have been complied with; and failure to comply with an order has consequences (e.g. a penalty application under s 247A of the SSM Act). 10. Any pot plants on common property are clearly being stored on the ground area on a temporary basis with a view to relocating them to the exclusive use area in the future. There is no evidence they are obstructing any other Lot owner in the lawful use of common property. There is no evidence of any complaints by any other Lot owner to the owners corporation regarding the position of the pot plants. As discussed previously, to the extent there are pot plants on common property they are small in number. The owners corporation has never issued any breach of by-law notice under s 146 of the SSM Act that the Lot owner is not complying with any by-laws. 11. Taking those considerations into account, even if the Tribunal was satisfied on the balance of convenience that the pot plants have been stored in a manner in breach of by-laws or in a manner that breaches s 153 of the SSM Act, it would not exercise its discretion to make the order sought. Order that the Lot owner, and/or his servants and agents "do not park any motor vehicle on the common property, including the corner of Clark Road and High Streets, without written approval of the owners corporation." 1. The evidence that the Lot owner (or is "servants or agents") is parking on common property is minimal. 2. One of the photographs attached to Mr Condon's affidavit of 9 March 2023 shows one vehicle parked under the carport; and another vehicle that may be parked partially on common property and partially in the exclusive use area. 3. Mr Condon's affidavit of 9 March 2023 states as follows: The two motor vehicles depicted in the photographs are parked on the common property, without authority of the OC. The while vehicle belongs to Joseph Georghy and I have observed him numerous times parking that vehicle in the same location or where the silver vehicle is parked. The silver vehicle belongs to Xiowei (Shirley) Shi, Joseph Georghy's life partner and also the owner of lot 92 in the strata scheme. I have observed Shirly Shi numerous times parking that vehicle in the same or similar location. 1. The affidavit of Mr Condon does not contain any details of the times or dates he asserts that he has seen the Lot owner parked on common property, or any photographic evidence other than one photograph, that at its highest, may show the Lot owner's vehicle parked on common property on one occasion. 2. There is also no evidence that the owners corporation has ever issued a Notice to Comply with By-laws under s 146 of the SSM Act on the Lot owner. 3. By-law 2 of the by-laws states: An owner or occupier of a lot must not park or stand any motor vehicle on common property except with the written consent of the owners corporation. 1. There is no evidence that Ms Shi is the "servant or agent" of the Lot owner. By-law 2 does not refer to "servants or agents" in any event. The current proceedings do not involve the owners corporation seeking any orders on Ms Shi. 2. The Tribunal has previously set out in detail the relevant discretionary considerations for making an order. The Tribunal is not satisfied based on the very limited evidence of the owners corporation that the Lot owner is "parking" or "standing" his vehicle on common property beyond the exclusive use area such that an order under s 232 and/or 241 of the SSM Act should be made. Order that the Lot owner Remove Other Items (Loose Items); Remove CCTV Cameras and Signs; Remove Carport; and Restore Common Property. 1. The "loose items" referred to are, from the photograph evidence in comparison to the strata plan and extract attached to By-law 32, being stored or placed within the exclusive use ground area that the Lot owner has the benefit of. 2. Mr Condon asserts they are being stored on common property. The Lot owner asserts they are being stored within the exclusive use area. 3. The owners corporation has failed to establish on the balance of probabilities that they are being stored on common property; nor, even if they were, is the discretionary basis for making an order under s 232 and/or 241 of the SSM Act established. 4. In respect of the carport, the only reference to this in the evidence is the assertion of Mr Condon in his affidavit of 9 March 2023 that "a carport has been erected on common property under which the white vehicle is parked without the authority of the OC". There is no reference to the carport in the witness statement of Mr Condon dated 11 January 2023; nor his affidavit in reply dated 30 May 2023. 5. Mr Condon does not state that the Lot owner erected the carport. Rather, there a statement that a carport has been erected on common property without the consent of the owners corporation. The Tribunal cannot conclude that the carport was not part of the building when the strata plan was registered. If it was not part of the building, there is no evidence to make findings as to when it was constructed or who constructed it. 6. There was little reference in the submissions of the owners corporation at the hearing regarding the factual or legal basis any order should be made regarding the carport structure. 7. "Common property" is defined in the Strata Schemes Development Act 2015 (NSW) (SSD Act) as "any part of a parcel that is not comprised in a lot (including any common infrastructure that is not part of a lot)". 8. "Lot property" is defined in the SSD Act as "one or more cubic spaces show as a lot on a floor plan relating to the scheme, but does not include any common infrastructure, unless the common infrastructure is described on the plan, in the way prescribed by the regulations, as part of the lot." 9. Section 6 of the SSD Act defines "boundaries of a lot" as either (a) the default boundaries defined in accordance with the section; or (b) the boundaries determined with reference to the strata plan (having been defined on the plan in accordance with the regulations). The default boundaries are (a) for a vertical boundary in which the base of the wall corresponds with a base line (i.e. an unbroken, usually heavy black line) shown on the plan-the inner surface of the wall; and (b) for a horizontal boundary of the lot-the upper surface of the floor or under the surface of the ceiling. 10. The strata plan (in particular, the extract of the plan forming the attachment to special By-law 32) also shows a black line where the carport appears to be located. There is not clear evidence that the carport structure does not form part of the original common property. Further, it is likely within the hatched area shown in the plan which is the subject the exclusive use by-law under By-law 32. 11. Accordingly there is insufficient evidence to establish that the carport is an unauthorised structure altering the common property to which the provisions of ss 108 and 111 of the SSM Act apply and to which the Tribunal should make an order the Lot owner remove and restore common property under s 132 of the SSM Act. 12. In respect of the CCTV cameras and signage installed on the building in the area that is proximate to the entrance to the Lot, Mr Condon states in his affidavit of 9 March 2023 that "a burglar alarm and CCTV cameras and signage have been affixed to the exterior of the building which is common property and without consent of the OC". 13. In his affidavit of 11 April 2023, the Lot owner states in respect of the CCTV cameras, burglar alarm, and signage: The CCTV camera, CCTV signage and burglar alarm were installed with the full knowledge, consent and at the cost of the Owners Corporation. A copy of the relevant minutes and photographs is at pages 225 to 229 of Exhibit JG-1. 1. Those Minutes involve meetings of the strata committee. 2. The first meeting is on 24 August 2016. The Minutes relevantly state: 14. Camera Installation: Rebekah Johnson to investigate cameras in the common areas and will provide the Executive Committee with options at the next Executive Committee meeting. 1. The second meeting is on 1 August 2017. The Minutes relevantly state: 11. CCTV: Strata Choice is to obtain the annual maintenance cost for the system once installed and these costs are to be tabled at the Annual General Meeting for approval. 1. The third meeting is on 27 February 2018. The Minutes relevantly state: 8. CCTV: Dr Georghy to contact the CCTV contractor and request a revised quotation be sent to Strata Choice for the CCTV. Strata Choice to circulate to the Strata Committee once received. 1. At p 229, the Lot owner attaches photographs and makes comments. In summary, the Lot owner states that a "corner CCTV Camera and Signage" was installed. The "corner CCTV camera" was installed by "ADT contractor engaged by the OC" and the sign was "installed by Strata Choice, under Michael Condon instruction." 2. There is other correspondence in the Lot owner's affidavit where the Lot owner alleges that his letterbox has been vandalised, and seeks CCTV footage be produced which the owners corporation has in its possession. 3. In his affidavit in reply dated 30 May 2023, Mr Condon relevantly states at para [12]: 1. The CCTV system was installed when Mr Georghy was elected to the strata committee and when it was later discovered that Mr Georghy had access to all the camera footage to the building his access was removed "some years ago;" 2. The owners corporation does not have access to the CCTV cameras on the walls adjoining or adjacent to the respondent's Lots and "therefore if those are the OC's property as Mr Georghy asserts the OC will take steps to have the cameras removed from the common property." 3. Mr Condon had searched the OC's records in relation to a burglar alarm for either Lot 105 or 106 and "I cannot find any records that the OC installed and paid for a burglar alarm to service those Lots". 1. Mr Condon does not state that the CCTV cameras were not paid for by the owners corporation. 2. In respect of the CCTV Cameras and sign, the evidence does not establish that the installation is an alteration of common property by the Lot owner inconsistent with the provisions of the SSM Act. 3. In any event, even it was, the Tribunal is not satisfied that there are sufficient discretionary reasons to order the Lot owner remove cameras and one sign, when Mr Condon states the CCTV system was installed with the knowledge and consent of the strata committee. 4. In respect of the "burglar alarm" there is no clear evidence of where that purported burglar alarm is located. The photographs at pp 23-24 of Mr Condon's affidavit show two cameras and a sign (which states "surveillance cameras in use"), but do not clearly show a burglar alarm. For the same reasons as discussed previously in respect of, the evidence also does not clearly establish that that any purported "burglar alarm" does not fall within the terms of By-law 31. 5. It is arguable that, if a burglar alarm was installed by the Lot owner (as distinct from the CCTV cameras and signs which were installed by, or on behalf of the owners corporation with the knowledge of the strata committee) and there was drilling into a common property wall, this would fall within the "minor renovations" provisions of s 110 of the SSM Act. However, there is insufficient evidence and discretionary reasons established to make the orders sought by the owners corporation. CONCLUSION 1. For the reasons previously expressed, the owners corporation has failed to make its case. Accordingly, the application is dismissed. THE ISSUE OF COSTS 1. Both parties are legally represented and a costs application is anticipated. The Tribunal has made procedural directions to dispose of any costs application if it is made. If no costs application is made, each party will bear its own costs in accordance with s 60 (1) of the NCAT Act. ORDERS 1. The application is dismissed. 2. The issue of costs is to be determined as follows: 1. The costs applicant is to file with the Tribunal and serve on the costs respondent all costs submissions and documents by 16 January 2024. 2. The costs respondent is to file with the Tribunal and serve on the costs applicant all costs submissions and documents by 30 January 2024. 3. The costs applicant is to file with the Tribunal and serve on the costs respondent all costs submissions in reply by 6 February 2024 4. Costs submissions are to include whether the parties consent to the issue of costs being determined without a further oral hearing under s 50 (2) of the Civil and Administrative Tribunal Act 2013 (NSW), and if not, why not. 5. The parties may apply in writing to the Tribunal and the other party to vary or extend the timetable for costs submissions and documents. Any application for an extension of time is to be made prior to the date of the relevant timetable obligation. ********** 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: 05 August 2024