David and Lyna Cannell v Stuart and Gloria Barton [2014] NSWCATCD 103

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: David and Lyna Cannell v Stuart and Gloria Barton [2014] NSWCATCD 103 Hearing dates: 5 December 2013 Decision date: 24 January 2014 Before: J Ringrose, General Member Decision: 1. On or before 21 June 2014 the respondents are, at their own expense, required to reinstate the concrete garden retaining walls which were demolished and removed without the consent of the Owners Corporation or the grant of a special privileges by-law to permit removal of the walls. 2. The respondents are to provide a key to the applicants to enable them to unlock the gate to the area of lot 1 in strata plan 80431 affected by an easement for services 1.6m wide benefiting lot 3. Legislation Cited: Strata Schemes Management Act 1996 sections 117, 138 and 160 Conveyancing Act 1919 sections 88E, 196L and Schedule 8B Cases Cited: Rochester Investments Pty Limited v Couchman (1969) 90 WN(Pt 1) (NSW) 371. Stolfa v Owners Strata Plan 4366 and Ors (2010) NSWSC 1507. Faddy and Houtzager v Payn (2011) NSWCTTT 336. Gohl v Hender (1930) SASR 158. Petty v Parson (1914) 2 Ch 653. Category: Principal judgment Parties: David and Lyna Cannell (Applicant) Representation: Mr Bacon, solicitor appeared for the applicants Mr Bannerman, solicitor appeared for the respondents File Number(s): SCS 13/7670

reasons for decision

BACKGROUND 1Strata Plan 80431 comprises 3 lots together with common property situated at [...] Maroubra. The Owners Corporation holds the common property for the benefit of the three individual residential unit owners. 2The applicants herein are the registered owners of lot 3 which comprises the unit on the top floor of the building. Two allocated parking spaces designated as spaces 5 and 6 are also shown on the Certificate of Title for that lot. 3Lot 1 is presently owned by the respondents herein and that lot has the benefit of 1 parking area together with another space which is subject to a restriction on the use of land imposed by the Randwick City Council. 4Lot 2 comprises the unit situated above lot 1 and below lot 3 in the building. The proprietors of lot 2, who are not party to the present proceedings, have the benefit of 2 parking spaces designated as suitable for small vehicles only. 5On 27 March 2008 the developer registered the strata plan and the common property Certificate of Title with Land and Property Information Authority. On the same date an easement for services 1.6m wide was also registered on the common property Certificate of Title and on the title of the servient tenement, namely lot 1. 6On 28 May 2009 a restriction on use of land was registered on the Certificate of Title relating to lot 1 by the Randwick City Council designating part of lot 1 as an area which was not to be used for parking or for storage or for any other activity that may preclude the area from being used as a motor vehicle turning area. 7On 5 June 2009 the respondents purchased lot 1 and it is claimed by the applicants that they had or ought to have had notice of the registered strata plan, the easement for services and the restriction of the use of land for a turning area. The applicants herein purchased lot 3 in July of 2009. 8In January 2013 the respondents took steps to remove the garden retaining wall structures and associated plants and shrubs located in the front of lot 1 without having obtained a by-law under section 52 of the Act granting special privileges to remove the wall and without having sought the consent of the Owners Corporation to do so.