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. APPLICATION 9The initial application was filed on 5 February 2013 seeking; (1)a finding that the respondents had performed unauthorised works on the common property planter box walls; (2)an order that the respondents reinstall the common property to its original state at their own cost within 4 weeks of the date of any orders. (3)an order that the respondents keep the designated turning area in the basement car park free from obstruction at all times. (4)an order that the respondents provide a key to the Strata Manager of the scheme for the purposes of providing access to service contractors and individual lot owners to the schemes' water, gas and air-conditioning services at reasonable hours as required. 10An amended application dated 8 April 2013 sought an additional order that the respondents be held responsible for future issues arising from their modifications to the common property after the reinstallation of the planter boxes. The previous order was also amended to seek the provision of a gate key to owners of benefitted lots and prescribed authorities for the purposes of enabling access to the area affected by the easement. 11On 10 April 2013 an interim order was granted by Adjudicator Howe (SCS 13/18947) requiring the respondents to immediately remove all possessions from the designated turning area in the car park of SP 80431 and to keep the area free from obstruction until further order. 12On 16 April 2013 an application for a penalty order (SCS 13/21164) was filed by the applicants herein on the basis that the respondents had breached the interim order. 13On 3 May 2013 an appeal (SCS 13/25361) was filed against the interim orders made on 10 April 2013. 14The interim order was stayed in May and on 12 September 2013 the Deputy Chairperson directed that all matters including the present application be referred to the Tribunal under section 164 of the Strata Schemes Management Act 1996 and that all matters be listed and heard at the one time. All matters were then heard together on 5 December 2013 when it was noted that the determination of the present proceedings may necessitate further argument in the related matters or in the alternative enable the appeal and the penalty application to be immediately determined. ISSUES 15The issues in the present proceedings are; (a)the status of the concrete retaining walls within the garden areas of lot 1 and whether the concrete garden retaining walls are common property or lot property. (b)whether the applicants are entitled to an order requiring the respondents to allow them to use the designated turning area within lot 1 for the purposes of parking their motor vehicle into the second car space allocated to lot 3. (c)whether the respondents can deny or otherwise restrict access to the 1.6m wide services easement which traverses part of lot 1 and whether the applicants are entitled to obtain a key from the respondents to enable access to be provided as required. APPLICANT'S EVIDENCE 16Oral evidence was provided on behalf of the applicants by Mr Gibson, registered surveyor, Mr Saxon, registered surveyor, and by the second respondent Lyna Cannell. Documentary evidence was produced in the form of further witness statements, photographs and copies of documents relevant to the strata plan including the easement for services and the restrictions on user imposed by the Council. Demolition of retaining walls 17Mr Bacon, solicitor, referred to evidence that in January 2013 the respondents took steps to remove the common property garden structure retaining walls and associated plants and shrubs located in the front of lot 1 despite the fact that; (a)no by-law under section 52 of the Act had granted the respondents special privileges to remove the common property retaining wall. (b)the respondents had never put forward a motion to make a by-law for consideration at a general meeting by the Owners Corporation (as required by section 52 of the Act). (c)the respondents commenced work without first obtaining approval from the Owners Corporation. (d)the Owners Corporation had not been afforded the opportunity to consider the scope of works and in particular the effect which the works may have on the rights of other residents. 18The applicants provided evidence that the water damage was now occurring through the common property slab into the Cannell's basement storeroom directly beneath the garden area. It was claimed that this had only occurred since the concrete retaining walls and garden had been removed. It was sought to draw the inference that the removal of the garden and retaining wall had resulted in the damage to the applicants' property. 19The applicant referred to the expert opinions of four registered surveyors, namely (a) Mr G.I. Gibson (b) Mr Jonathon D. Saxon (c) Mr Peter Bentley and (d) Mr Roger Boxall and observed that each of these surveyors had expressed their independent view that the notation on the strata plan established the concrete garden retaining walls as common property. 20It was submitted that the plan for the strata scheme was the definitive authority as to what formed part of the common property and what formed part of the lot property. It was noted that the strata plan reflected a surveyors drawing of the scheme in accordance with the requirements under the Strata Schemes (Freehold Development) Act 1973, and in accordance with the Registrar General's direction. Reference was made to the decision of the Supreme Court in Rochester Investments Pty Limited v Couchman (1969) 90 WN(Pt 1) (NSW) 371 where the Court noted that the relevant source documents to be used for ascertaining the lot boundary were the strata plans, a Certificate of Title issued on registration, the Freehold Development Act and the Real Property Act 1900. Mr Bacon observed that if a surveyor had included a notation on the strata plan stating that, despite the standard interpretation guidelines for determining the lot and common property, part of the property is to form a part of the common property, then the terms of the notation would prevail (see sections 5(2)(a) and 5(2)(b) of the Strata Schemes (Freehold Development) Act 1973. He referred to the particular notation as being in the following terms; "the structure of the concrete retaining walls within the garden areas are common property" 21It was submitted that the Owners Corporation had a statutory obligation under section 62 of the Strata Schemes Management Act to properly maintain and keep in a state of good and serviceable repair the concrete walls in the garden of lot 1 and accordingly an owner could not carry out any alterations or additions to the concrete retaining walls without first being authorised to do so under a registered Special Privilege by-law in accordance with section 52 of the Act. 22The applicants contend that the respondents had removed areas of the concrete retaining walls in order to increase the accessible area of their front garden and had performed work to replace parts of the walls with glass balustrades. The installation of the glass balustrades involved drilling or otherwise penetrating areas of common property in the scheme and it was claimed that works undertaken had led to water ingress through the common property slab into the applicant's basement storeroom. It was observed that, with no by-law in place, the Owners Corporation was not indemnified against damage being caused by the respondents and it was suggested that this situation would continue unabated unless or until the respondents were ordered to reinstate the common property. 23The applicants submitted that they were entitled to; (a)a finding that the respondents had performed unauthorised works to the common property concrete retaining walls. (b)an order that the respondents reinstate the common property to its original state at their own cost within 4 weeks of the making of the order. (c)an order that the respondents be responsible for any future issues arising from their modifications to common property after reinstatement of the garden structure concrete retaining walls. Obstruction of turning area in the garage 24Mrs Cannell gave evidence that lot 3 had the benefit of 2 parking spaces which were unrestricted. It was pointed out that lot 2 had the benefit of 2 parking spaces which were designated for small cars only whilst lot 1 had the benefit of 1 parking space together with an additional area over which a restriction on user had been imposed by the Randwick City Council. 25Her statutory declaration dated 11 June 2013 outlined various interferences with parking and detailed the inconvenience she suffered as a result of being required to park on the street. She also attached medical evidence to the effect that her back injury was aggravated as a result of a requirement to carry her child for additional distances when she was unable to park her car in the allocated space. The restriction on use was registered on the Certificate of Title for lot 1 in the following terms; "The owner of the servient tenement agrees with Randwick Council that the part of the servient tenement as shown, having an area of 13m² and being located on the basement level shown in strata plan 80431 which forms part of the servient tenement (the affected area) will not be used for parking at any time, and that no items will be stored or kept on the affected area or any activities undertaken on the affected area which would preclude or restrict the affected area being used as a turning area for motor vehicles and the like..." 26The applicants attached copies of the Council's development engineering and traffic engineering divisional report concerning this issue which resulted in amendment of the original development application for the building to reduce the number of parking spaces from 6 to 5 and to impose a restriction on the 13m² space in lot 1 so that it could be used for a turning area only. 27A copy of a facsimile and diagram sent to the Council by the developer and the original owners traffic engineer, PDS Parking design specialists, on 24 January 2008 showed space number 1 designated as "no parking allowed in this space. This is a "turning area" which will be used by car number 5 when reversing out of space number 5". It is noted that the space number 5 is the second space allocated to the owners of lot 3. 28Restrictions were imposed in February 2008 and recorded on the common property Certificate of Title and on lot 1 Certificate of Title in May 2009. It is claimed that the respondents purchased their lot in June 2009 and accordingly had or should have had notice that the restriction was in place. 29Mr Bacon noted that section 88E of the Conveyancing Act 1919 provided the relevant power of the Randwick Council (as a local authority) to impose the restrictions on the Certificate of Title. He submitted that the Tribunal had no jurisdiction to strike down the restriction or read it down or do anything but decide whether the restriction was enforceable having regard to sections 117 and 138 of the Strata Schemes Management Act 1996. 30It was submitted that the Tribunal ought to be satisfied on the evidence that the owners of lot 1 were using their lot in such a manner as to cause nuisance or hazard to the owners or occupiers of lot 3. It was pointed out that the tort of nuisance involved the unreasonable interference with the use or enjoyment of property and the damage resulting from nuisance did not need to be physical but could arise through an intangible interference with the enjoyment of the property. Rights to enter land where the owner has the benefit of an easement for services involving access for inspection, repair and maintenance of utility services 31It was noted that on 27 March 2008 upon the registration of the strata plan an easement for services 1.6m wide was registered on the common property Certificate of Title and on the Certificate of Title for lot 1. The respondents did not purchase the unit until June 2009 and it is alleged they had notice of these restrictions. Under the Conveyancing Act 1919, Schedule 1B and the Strata Scheme (Freehold Development) Act 1973, the Owners Corporation and any lot owner has at all times a right to carry out an inspection of the services in the easement area for maintenance of those services. 32It was noted that the original gate access of the services area was via a low level gate. When access was required it was always arranged with lot 1 however the gate was not always unlocked. As permission had been given to access the easement for service at the time when the gate was not left unlocked as pre-arranged, access was able to be gained over the top of the gate. The gate has now been replaced with a higher one and no other arrangements had been made in the event of a need to inspect or maintain the air conditioning services. 33The applicants claim that the respondents were not entitled to restrict or withhold access to the space occupied by the easement as to do so would be a breach of section 88B of the Conveyancing Act 1919. 34In submissions Mr Bacon contended that the rights under the easement could be enforced under section 160 of the Strata Schemes Management Act on the basis that it was a positive covenant. RESPONDENT'S EVIDENCE 35The respondents relied on a number of statements of Stuart Barton although much of these statements constitutes submissions rather than evidence. A number of photographs were produced along with a statement of Barry Brignell contained in an email sent 23 October 2013. The email simply read; "I was the surveyor who drew Strata Plan SP 80431. I must stress that I am now retired and no longer registered under the Surveying Spatial Information Act 2002 and I am unable to give advice. In my memory and looking at a copy of the plan, the boundary of the garden area at the front of the Lot was along the northern face of the brick wall, as shown on the strata plan, and to which glass panels are attached, as shown on your photograph (photograph of planter box area October 2013). The brick planter box was within the cubic space of the garden area of Lot 1." 36Mr Brignell was not called to give evidence and in cross-examination Mr Barton (who was legally represented) simply stated that he did not think he needed to call Mr Brignell as he was retired. 37The respondents also relied upon two documents from New South Wales Land and Property Information with a notation which suggested that any further information would be available by contacting a Mr John Arthur - Strata Plan Title Advisor. Those two documents were respectively dated 15 August 2013 and 29 October 2013. They appear to be emails in response to an enquiry or enquiries made by the respondents. Each of the replies commenced with the words "I refer to your enquiry of (date) and advise that the opinion of this office is as follows and is provided as information only". The opinions were apparently given based on a copy of the registered strata plan, a copy of the Certificate of Title and one photograph supplied by the respondents depicting the site of the concrete planter box shown in the air space of lot 1. There is no evidence of the qualifications or experience of Mr Arthur nor does he give any basis for his assertions that; "it is a common that a planter box can be constructed of concrete brick within a strata scheme. The rectangular purple structure noted in the photograph that was provided is a planter box. It has not been designated on the plan as common property fixture. Therefore the structure is clearly within the air space of the Lot and is part of the Lot. The planter box is not a retaining wall and the note on the plan referring to retaining walls being common property does not relate to this planter box." Response to allegations of unauthorised common property works - removal of planter boxes 38The respondents note that the issues in relation to the first matter involve consideration of; (a)whether the planter box was common property. (b)if the planter box was common property whether it was removed without proper authority. (c)whether authorisation was required for the respondents to install glass balustrades attached to the common property. 39It was submitted that the strata plan must be interpreted as drawn and the boundaries of each lot must be determined from the strata plan, the Certificate of Title, The Act and Regulations and the Real Property Act. The respondents referred to sheet 3 of the strata plan depicting the garden area with the vertical boundaries shown by thin black lines indicating the absence of common property structures and thick black lines at the junction identifying common property structures or areas on the eastern side of the main building. It is claimed that planter boxes within the garden area were a series of low lying (less than a metre in height) planter boxes which had been depicted in photographs. It was argued that these structures were low level and their only purpose was to form garden beds for landscaping beautification. It was noted that there were no lines of any kind on the strata plan to indicate any kind of concrete retaining walls or planter boxes present inside the boundaries of the garden area. 40The respondents argued that the only purpose of the retaining wall notation was to exclude concrete retaining walls from the lot by deeming them to be common property structures. 41It was pointed out that the term "retaining wall" was not defined on the strata plan or within the Act. Relying on the Oxford English Dictionary definition the respondents submitted that the retaining walls were required to "keep in place, hold fixed, (including wall supporting and confining a mass of earth or water)". Other definitions contained in dictionaries and Wikipedia also referred to all relating to a wall built to support or prevent the advance of a mass of earth or water. 42The respondents then referred to a definition of planter box described as; "a permanent ornamental structure to receive planted pots or boxes often non moveable and in keeping with the finish of a building". 43The respondents argued that when one has regard to the provisions of section 5 of the Strata Schemes (Freehold Development) Act 1973 then subsection (2) provides that the common property does not include any structural cubic space unless that structural cubic space has boundaries prescribed and described on that floor plan as part of the lot. 44The respondents accordingly submitted that the walls of the planter boxes which were demolished did not constitute common property and accordingly consent was not required. 45In relation to the installation of glass balustrades the respondents referred to by-law 5 which provides; 5 damage to property (1) an owner or occupier of a Lot must not mark, paint, drive nails or screws or the like into, or otherwise damage or deface any structure that forms part of the common property except with the prior written approval of the Owners Corporation. (2) the approval given by the Owners Corporation under clause (1) cannot authorise any additions to the common property. (3)this by-law does not prevent an owner or person authorised by an owner from installing; (a) any locking or other safety device for protection of the owners Lot against intruders or to improve safety within the owners Lot or, (b) any screen others device to prevent entry of animals or insects into the Lot or, (c) any structural device to prevent harm to children... It is claimed that the respondents' two young children are aged 2 and 5 and that they were concerned about their children climbing over low lying walls and falling on the concrete below sustaining serious injury. As a result of these concerns they installed the glass balustrades primarily for safety reasons as permitted by by-law 5. 46In addressing the applicants supplementary submissions the respondents noted that the walls and gardens had been removed from the property and accordingly no breach of by-law 17 could be established. It was argued that by-law 17 requires lot owners or occupiers to not keep objects within their lot which when viewed from the outside are not in keeping with the rest of the building. 47In relation to the applicants claim that the removal of the garden areas have allowed water ingress and water damage the respondents submitted that the claims are unsubstantiated assertions from unqualified persons and that there was no evidence that water ingress has occurred through the concrete slab or that this ingress was due to the removal of the garden or planter boxes structures. These supplementary submissions are not supported by evidence and it would appear that the issue in relation to water damage has not been addressed properly by either party. 48Emails exchanged between the parties in September 2012 have also been annexed. Although they are incomplete they suggest that by 11 September 2012 Mr Barton had reviewed the strata plan and concluded that the property of lot 1 actually owned the front garden and that it was not common property. He raised with the proprietors of the other two lots a question of reimbursing the Owners Corporation for costs of work undertaken on the front garden. The exchange of emails also suggested that there was drainage for the building under the garden area which may be affected by items planted within the garden. Response to the applicants' submission relating to obstruction of the designated car park turning area 49The respondents asserted that an Adjudicator or in this case the Tribunal is limited in jurisdiction to those matters prescribed by Chapters 5 - 7 in the Strata Schemes Management Act 1996. It was submitted that the question of property rights under the Conveyancing Act 1919 and the Real Property Act 1900 are associated common law matters which are outside the jurisdiction of an Adjudicator or the Tribunal under the Strata Schemes Management Act. 50The respondents referred to the restriction on the use of land by a prescribed authority which is registered as instrument AE684101. That restriction is in favour of the Randwick City Council as a public authority and they contended that it is thereby enforceable only by the Council and not by the Owners Corporation for the scheme. 51The respondents argued that the restriction is not a positive covenant within the meaning of section 160 of the Act nor is it a restriction on the use of a utility lot within the meaning of section 161. 52It was conceded that the restriction precludes parking on the area and also precludes storage or keeping of items on the affected area or the undertaking of any activities which would preclude or restrict the affected area being used as a turning area for motor vehicles and the like. The respondents noted that Randwick City Council was empowered to release, vary or modify the restriction at its complete discretion and that it did not specifically afford rights in favour of lot 3. 53Correspondence now annexed to the submissions produced by the respondents indicate that in 2013 the solicitors for the respondents wrote to the Owners Corporation requesting signage be installed on the property and claimed that until that time the respondents were unaware of the full extent of the restrictions. It is noted that the respondents had the benefit of solicitors when they purchased the property in 2009 and it is difficult to understand how they could not have appreciated the nature or extent of the restrictions at the time of purchase and for any time thereafter. 54The respondents contended that since 10 April 2013 when an interim order was made by the Tribunal they had restricted their use of the area so that the use complied with the restrictions. Although it was submitted that the Council inspected the area and suggested that the restrictions had been complied with there was no evidence to support that assertion presently before the Tribunal. It was accepted that Randwick Council wrote to the Owners Corporation on the 25 June 2013 alleging breaches of the development consent conditions. Reference was made to a letter from the respondents' solicitors to the Owners Corporation on the 29 July 2013 requesting the installation of the car park signage. Response to applicants' submission concerning the provision of a key to access an easement for services 55The respondent submitted that an Adjudicator, and in this case the Tribunal had no jurisdiction to make an order requiring the provision of a key to lot 3 which enabled the owners thereof to access an easement for services. 56It was conceded that the terms of the easement as set out in Part 11 of Schedule 8 of the Conveyancing Act 1919 created rights for the proprietors of lots having the benefit of the easement to enter the land in circumstances provided under the terms of the easement. It was submitted that they did not impose any express restrictions on the servient tenement or impose any requirement in relation of the provision of keys. 57The respondents claimed that they had two small children aged 2 and 5 years and that the lot is on the bottom floor of the building and that they had been subject to several instances of public trespass and on one occasion an instance of burglary. They claimed to be concerned about having multiple keys to the property in circulation and had provided a key to the managing agent of the scheme to facilitate access when necessary. They also alleged that they had allowed access when required. 58It was submitted that if the Tribunal considered it had jurisdiction to make a determination in this matter by the access arrangements proposed by the respondents would be adequate. The Tribunal was invited to make further investigations or inquiries pursuant to section 167 of the Strata Schemes Management Act 1996 to satisfy itself that the keys had been provided to the managing agent and that these arrangements were satisfactory. Although the Tribunal has power to inform itself of these matters it is noted that the respondents are represented by solicitors and no evidence in this regard had been produced on their behalf. DECISION 59The Owners Strata Plan 80431 is an Owners Corporation comprised under the Strata Schemes (Freehold Development) Act 1973 which holds the common property of the land and the building comprised at 454 Maroubra Road, Maroubra for the benefit of the three individual residential unit owners comprising the Owners Corporation. 60Unit 3 is on the top floor of the building and is presently owned by the applicants. It has the benefit of two allocated parking spaces shown on the title. 61Lot 1 is the unit on the ground floor of the building and is presently owned by the respondents. There is one allocated parking space on the Certificate of Title for lot 1. On 28 May 2009 an interest known as a restriction on user of the land comprising part of lot 1 was registered on the Certificate Title for lot 1 by the Randwick City Council. 62On 27 March 2008 the developer registered the Strata Plan and the common property Certificate of Title with the Land and Property Information Authority. On the same date an easement for services 1.6m wide was registered on the common property Certificate of Title and on the Certificate of Title related to lot 1. The easement showed lots 2 and 3 in strata plan 80431 to be the lots benefited as easement for services. 63The respondents became the registered proprietors of lot 1 in strata plan 80431 on 9 June 2009 and at the time they had or should have had notice of both the easement for services created upon registration of the strata plan and of the restrictions on user affecting part of the land and registered with instrument AE684101. 64The present application which was filed as an application for adjudication has been referred to the Tribunal in accordance with the provisions of section 164 of the Strata Schemes Management Act and it has been listed with related matters namely SCS 13/21164 (application for a penalty for breaches of the interim order made against the respondents on 10 April 2013) and SCS 13/25361 (an appeal against the determination made by the Adjudicator on an interim basis). Decisions on the appeal and the penalty application are to be handed down under a separate cover and it should be noted that in relation to the present application the jurisdiction of the Tribunal is limited by the operation of section 184 of the Act to that of an Adjudicator initially considering such an application. Applicants claim related to unauthorised common property works 65Amended particulars of claim filed by the applicants on 8 April 2013 seek the following orders in relation to this claim; (1)a finding that the respondents have performed unauthorised works to the common property concrete planter box walls. In the alternative a finding that the respondents are not to perform unauthorised works to the common property planter box walls and, (2)an order that the respondents reinstate the common property to its original state at their own cost, within 4 weeks of the making of the Order and, (3)an order that the respondents are responsible for any future issues arising from their modifications of the common property after reinstating the planter box. 66Although there were some communications in relation to the status of the garden area in September 2012 the applicants first became aware that the respondents were taking steps to remove the planter box located at the front of lot 1 in January 2013. It is not disputed that the respondents never applied to the Owners Corporation for permission to commence such works nor did they take steps to procure a by-law under section 52 of the Act to enable them to carry out works in respect of the garden area. 67The respondents answer the claim in relation to the demolition of "planter boxes" with an assertion that the walls and gardens which were removed comprised part of lot 1 and no consent was required either under the Act or the by-laws. They dispute the applicants claim that the walls were retaining walls within the meaning of notations on the strata plan. 68The strata plan for the scheme is the definitive authority on what forms part of the common property and what forms part of the lot property. The strata plan reflects a surveyors drawing of the scheme in accordance with the requirements under the Strata Schemes (Freehold Development) Act 1973 and the Registrar Generals' directions. In Rochester Investments Pty Limited v Couchman (1969) 90 WN (Pt 1) (NSW) 371 the Court held that a Court or Tribunal must interpret the plan as drawn. 69The relevant parts of strata plan 80431 include the plan of the ground floor which shows a designated garden area of 148m² at the front of the lot. The plan includes a notation in the following terms; "the structure of the concrete retaining walls within the garden area is common property". 70The respondents accept that the relevant notation appears upon the plan but submit that the garden area is shown by thin black lines designating property boundaries and thick black lines identifying the common property structures or areas on the eastern side of the main building. It is asserted that the structure which they describe as "planter boxes" within the garden area are lower level and only for the purposes of forming garden beds for landscaping beautification. It is argued that the retaining wall notification makes no mention of planter boxes and therefore it is clear that the surveyor's intention was that the notification would apply only to the actual retaining walls and not to planter boxes. The respondents refer to definitions of retaining walls and planter boxes and contend that the retaining wall notation was relevant for the purpose of sections 5(2)(a) and 5(2)(b) of the Strata Schemes (Freehold Development) Act 1973. They argue that the absence of specific notation on the plan is a complete answer to the assertion that the walls demolished were in fact common property. 71The applicants rely upon the evidence of four licensed and registered surveyors, two of whom were called to give evidence and were cross-examined. 72In a report dated 11 October 2013 Mr G. Gibson expressed the opinion that all concrete retaining walls that were in existence and constructed within the garden area at the date when the surveyor carried out the survey for the registration of the Strata Plan would be the responsibility of the Body Corporate. Having viewed the photographs of the garden bed and the retaining walls from the south side of unit 1 he was of the opinion that the surveyor intended to make all internal concrete walls common property. He noted that it was not a requirement to show the position of all retaining walls in a garden area for the purpose of defining common property. The notation on the plan was sufficient. He noted in this respect that all balustrades were also defined as common property as noted on the strata plan. 73In a report dated 14 October 2013 Mr David Bentley expressed the opinion that the notation was intended to apply to any retaining walls which existed at the date of the registration of the strata plan whether or not such walls were shown on the plan. He observed that it was a requirement of the Registrar General to show common property lines only if they formed part of the boundary of a lot. He noted that it was common practise for surveyors to not show other retaining walls which lay within the boundaries of the lot and to simply add a notation to the affect that all such walls were either common property or part of the lot. 74He concluded in this particular case from the photographing evidence that the retaining walls which had been demolished were intended to be part of the common property and not part of the lot. 75Mr Jonathon Saxon prepared a detailed report dated the 11 October 2013. He set out his qualifications and noted that he was a former President of the Institute of Surveyors Australia and the Surveying and Spatial Sciences Institute. Having considered the strata plan, along with a number of photographs which showed partial demolition of the two walls, he concluded that the strata plan was clear and that all concrete retaining walls within such garden area formed part of the common property. Mr Saxon gave detailed reasons for his opinion and was not persuaded to change his view in cross-examination. He also agreed that he was bound by the experts Code of Conduct. 76Mr Roger Boxall also gave an independent opinion that the notation on the plan meant that the concrete retaining walls were common property. 77It must be borne in mind that although the respondents provided submissions to the contrary those submissions were not supported by any expert opinion in relation to the manner in which the plans ought to be interpreted under the Act. 78Mr John Arthur from the Property and Information Services does not detail his qualifications or experience specifically describes his letters as "information only". He was not called to give evidence. The email from Mr Bignell stressed that he was a retired surveyor no longer registered under the Act and unable to give advice. He simply observed that from memory the boundary of the lot was the area to which glass panels had subsequently been attached and a brick planter box was within the cubic space of lot 1. His observation that the notation referred to retaining walls does little to assist the respondents' assertions in the present case. 79In all the circumstances I am satisfied that the demolition of the garden walls constituted a demolition of structures designated common property and, in the absence of authority to undertake the demolition work it is appropriate to order that the walls be reconstructed at the cost of the respondent. I am however further satisfied that it is appropriate to allow the respondent an opportunity to apply for a special us by-law which would, if granted, would render compliance with this order unnecessary but at the same time protect the interests of the other lot owners. I have accordingly extended the time for compliance with this order to enable this option to be pursued if the respondents wish to do so. If however the respondents procure an exclusive by-law or a special privileges by-law that grants them the necessary rights to retain the alterations made by demolishing and removing the concrete garden retaining walls then compliance with this order shall be unnecessary and this order, to the extent that it requires reinstatement, shall cease to have effect. 80In relation to that part of the application it refers to the fixing of glass panels to the exterior walls, I am satisfied that the rights to undertake that work is authorised under the by-laws for the safety of the infant children and accordingly no further orders are required in that regard. Alleged obstruction of the designated car park turning area 81The applicants seek an order that the respondents keep the designated turning area in the basement car park free from obstruction at all times. 82When strata plan 80431 was first registered in 2008 an area of 13m² comprising part of lot 1 was described on the plan as denoting no parking (turning area) the applicants submit that this notation in itself gives rights to the owners or occupiers of other lots within the scheme to use the area as a vehicle turning bay. On 15 May 2009 a restriction on user within the meaning of section 88E of the Conveyancing Act 1919 was lodged for registration upon the title of lot 1 in strata plan 80431. The restriction in favour of Randwick City Council was in the following terms; "The owner of the servient tenement agrees with Randwick City Council that the part of the servient tenement shown as having an area of 13m² and being located on the basement level shown on Strata Plan 80431 which forms part of the servient tenement (the affected lot) will not be used for parking at any time, and that no items will be stored or kept on the affected area or any activities undertaken on the affected area which would preclude or restrict the affected area being used as a turning area for motor vehicles and the like. Randwick City Council is empowered to release, vary or modify this restriction at its complete discretion." 83The restriction registered as number AE684101X was apparently lodged and registered in order to clarify a requirement of the development approval in relation to parking. The applicants claim that the turning area was specifically provided to enable the owners or occupiers of lot 3 to reverse park into the second parking area allocated to that unit. 84It is clear that between 2009 and either late 2012 or early 2013 the applicants did not take any specific steps to prevent the designated turning area from being used by the respondents but it would appear that after Mrs Cannell had her first child she decided to purchase a larger vehicle which she claims could not be parked in her designated parking space without using the designated turning area. 85The respondents submit that any restrictions imposed upon the use of the area of 13m² forming park of lot 1 can only be enforced by the Randwick City Council and an Adjudicator or the Tribunal has no jurisdiction to make the order sought by the applicants. 86The interim order was made on 10 April 2013 by Adjudicator Howe and on the basis of alleged breach of that order the applicants filed an application for a penalty to be ordered against the respondents. Shortly thereafter the respondents filed an application seeking to appeal against the interim order. These matters are to be dealt with together. 87The applicants submit that the restriction can be enforced as a positive covenant by virtue of the operation of section 160 of the Strata Schemes Management Act 1996 and the Tribunal has been referred to some passages contained in Halsburys Laws of Australia relevant to positive covenants. The respondents contend that the restriction imposed by the Council cannot amount to a positive covenant capable of being enforced by section 160 of the Act. 88Positive covenant is defined in the dictionary of the Strata Schemes Management Act 1996 as follows; "positive covenant" means a positive covenant imposed on land under section 88D or 88E of the Conveyancing Act 1919". 89Section 88E of the Conveyancing Act relates to regulation of the use of land not held by a prescribed authority under which subsection (2) enables a prescribed authority in accordance with the section to impose restrictions on the use or impose public positive covenants on any land not invested in the authority so the restriction or public positive covenant is enforceable by the authority whether or not the benefit of the restriction or public positive covenant is annexed to other land. It is clear that the benefit of a restriction on user in the present case is not specifically annexed to other land but it seeks to enforce what was apparently a condition of the Development Approval. 90Section 87A of the Conveyancing Act 1919 defines a positive covenant in the following terms; "positive covenant" means a covenant for maintenance or repair imposed under section 88BA, a public positive covenant or a forestry covenant". 91I am not satisfied that the restrictions imposed upon parking of vehicles or storage of goods constitutes a positive covenant within the meaning of section 160 of the Strata Schemes Management Act 1996 and I am accordingly not satisfied that the Orders sought by the applicants can be made on that basis. 92The applicants further rely on the provisions of section 117 of the Strata Schemes Management Act which, so far as it is relevant, provides; 117 Owners, Occupiers and other persons not to create nuisance (i) an owner, mortgagee or covenant chargee in possession (whether in person or not), lessee or occupier of a Lot must not; (a) use or enjoy the Lot or permit the Lots to be used or enjoyed, in such a manner or for such a purpose as to cause a nuisance or hazard to the occupier of any other Lot (whether that person is an owner or not) or, (b)... (c)... Subsections 1(b) and 1(c) relate to use or enjoyment of the common property which may cause interference to the use or enjoyment of another person of the common property or of their lot. It is necessary therefore to consider whether on the evidence provided the applicants have made out a claim for order under section 117 of the Strata Schemes Management Act. 93The provisions of section 117(1)(a) were considered by the Court in Stolfa v Owners Strata Plan 4366 and ors (2010) NSWSC 1507 where His Honour Mr Justice Brereton found that section 117(1)(a) imposed a duty on owners not to use their lots in such a manner as to cause a nuisance or hazard to other lot owners notwithstanding that the nuisance or hazard arose from damage to common property impinging on the lot of the other owners affected. His Honour found in that case that the offending lot owners were liable to compensate the affected lot owners in respect of damage to their lot. 94It is clear on the evidence available that it was intended in the Development Approval that owners or occupiers of other lots and in particular the owners or occupiers of lot 3, should have the benefit of a turning area within the area provided for parking. Notwithstanding that there is no annexation of the restrictive benefit in favour of lot 3, it is clear that the failure to comply with the restrictions imposed by the Council can potentially create a nuisance within the meaning of section 117 which affects the use or enjoyment of unit 3. It is however, necessary to examine the evidence provided by the applicants in relation to this issue. Mrs Cannell refers to difficulties in parking her larger vehicle and as a result of being compelled to park her vehicle in the street and carry her young son from a parking area outside of the strata complex back to her unit. This may well, in my view, be capable of interpretation as a nuisance but I am not satisfied that the evidence provided establishes that claim. In cross-examination Mrs Cannell stated that the turning circle of her vehicle was too large but it is clear that she had not made any attempt to park her vehicle in the alternate parking space and allow her husband to use the space that she was attempting to use. She claims to be nervous in reversing her car but it is clear that she had not attempted to move her vehicle into the available space and reverse it back into car parking space number 5. In my view the evidence stops well short of establishing nuisance in the present case because the various options to overcome the problem have not been fully explored and it would appear from the length of her new vehicle is such that it may require many attempts to park it in space 5 even if that space was completely clear. There is insufficient evidence to establish nuisance or hazard at the present time. 95The provisions of section 117(1)(a) of the Strata Schemes Management Act and a by-law 17 were considered by the Tribunal in Faddy and Houtzager v Payn (2011) NSWCTTT 336. In that case Member Cappe observed that "nuisance" was not defined in the Act but that in practise Adjudicators took the view that the word "nuisance" assumed its legal meaning in this context rather than a dictionary definition. He determined that "nuisance" was defined as; "an act causing physical injury to land or substantially interfering with the use and enjoyment of land or of an interest in land where, in the light of all the surrounding circumstances, the injury or interference was held to be unreasonable." I am not satisfied in the present case that the evidence produced by the applicants has made out a claim for an order as sought in relation to this issue. The applicants claim for a key to access the site of an easement for services 96The applicants seek an order that they be provided with a key for the purposes of gaining access to by service contractors and lot owners to the schemes services within reasonable hours as required. An easement for services 1.6m wide was registered over part of lot 1 for the benefit of lots 2 and 3 in strata plan 80431 at the time when the strata plan was registered. Terms of an easement of services are set out in Part 11 of Schedule 8 of the Conveyancing Act 1919 as follows; Part 11 easement for services 1.The owner of the Lot benefitted may; (a) use each Lot burdened, but only within the site of this easement, to provide domestic services to or from each Lot benefitted, and (b) do anything reasonably necessary for that purpose, including; ● entering the Lot burdened ●taking anything onto the Lot burdened ●carrying out work such as constructing, placing, repairing or maintaining pipes, poles, wires, cables, conduits, constructors and equipment 2. In exercising those powers the owner of the Lot benefitted must; (a) ensure all work is done properly and (b) cause as little inconvenience as possible to the owner and any occupier of the Lot burdened and, (c) cause as little damage as practicable to the Lot burdened and any improvement on it and, (d) restore the Lot burdened as nearly as practicable to its former condition and, (e) make good any collateral damage 3. For the purposes of this easement domestic services include supply of water, gas, electricity, telephone and television and discharge of sewage, sullage and other fluid wastes" 97The respondents concede the terms of the easement for services and state that they have provided a key for the locked gate to managing agents for the scheme for the purposes of facilitating access. No evidence was produced beyond this assertion but the Tribunal was invited to make its own enquiries pursuant to section 167(1) of the Strata Schemes Management Act 1996. The respondents contend that an Adjudicator or the Tribunal is not vested with jurisdiction to enforce the removal of an obstruction or the handing over of a key to facilitate access over a right of way. In Gohl v Hender (1930) SASR 158 an issue arose where the owner of land subject to a right of way sought to erect a gate across that right of way. Napier J held the gate could be erected provided it was left unlocked and did not substantially obstruct the right of way which in that case related to grazing land. In Petty v Parson (1914) 2 Ch 653 the English Court of Appeal held that a gate across a right of way did not amount to an actionable obstruction provided that it was never locked and was kept open during business hours. 98It is clear that the owners or occupiers of lots 2 and 3 have a right to unimpeded access limited to the purposes prescribed under the easement. The benefit of the easement is attached to each lot and I am satisfied that upon evidence that the gate is locked this could and would constitute a nuisance within the meaning of section 117 of the Strata Schemes Management Act. In the circumstances it is appropriate that the respondents be directed to provide an access key to enable them to exercise their rights in accordance with the easement for services which benefits their lot. I am not satisfied that these rights are sufficiently achieved by handing a key to the Strata Manager who is a delegate of the Owners Corporation and not of the individual lot owners. It is appropriate to make the orders sought by the applicants in the circumstances. COSTS 99Although this matter has been referred to the Tribunal it was initially filed as an application for an adjudication and in the circumstances it is appropriate that no order be made for costs of either party. John A Ringrose General Member Civil and Administrative Tribunal of New South Wales (Amended) 31 March 2014 I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 September 2014