Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Darryl Pearson v Owners Corporation SP 8600 [2015] NSWCATCD 83 Hearing dates: 2 July 2015 Decision date: 13 July 2015 Jurisdiction: Consumer and Commercial Division Before: Jeffery Smith, Senior Member Decision: 1. By consent, Wayne James Lawrence is removed as an appellant in these proceedings. 2. The decision of the adjudicator made on 13 November 2014 on application SCS 14/40660 is revoked and the following orders are made in substitution for it. 3. The appellant may use lot 9 for the storage of one or more cars, treated pine logs, masonry blocks and other items of a domestic rather than commercial or industrial nature provided all stored items are stored in a neat and tidy manner and appropriately covered with a tarpaulin or other suitable material and the lot is otherwise kept free of waste vegetation, vermin and rubbish. 4. Waste vegetation currently on lot 9 shall be removed by the appellant within 14 days of the date of these orders. Legislation Cited: Civil and Administrative Tribunal Act 2013, Strata Schemes Management Act 1996 (the Management Act), Strata Schemes Freehold Development Act 1973. Category: Principal judgment Parties: Darryl Pearson (Appellant) Owners Corporation SP 8600 (Respondent) Representation: Mr Wayne Lawrence represented the appellant Mr Allan Robinson represented the respondent File Number(s): SCS 14/59254 Publication restriction: Nil REASONS FOR DECISION INTRODUCTION 1. This is an appeal made pursuant to the provisions of the Management Act s 177 against the orders of the Adjudicator on application SCS 14/40660 made on 13 November 2014. 2. The appeal initially named Wayne Lawrence and Darryl Pearson as appellants. However, as Mr Pearson and his wife are the owners of the lot within the strata scheme in respect of which orders were made by the adjudicator (lot 9) I am satisfied that Mr Lawrence (a previous owner of the lot and now the representative of the appellant) should be removed as an appellant. 3. The parties agreed to that course of action. 4. Mr Lawrence, father of the appellant Mr Darryl Pearson, was granted leave to represent the appellant and Mr Allan Robinson, chairman of the executive committee of the Owners Corporation, was granted leave to represent the respondent. JURISDICTION 1. There was no dispute that the Tribunal has jurisdiction to hear the appeal pursuant to the provisions of the Civil and Administrative Tribunal Act 2013 Part 3 and the Management Act Part 4, Division 12. 2. I am satisfied the appeal was filed within the time provided by the Management Act s 177(3). APPELLANT'S CASE 1. It was the appellant's submission that the Adjudicator was in error in determining that the storage of vehicles within lot 9 was not in keeping with the appearance of lot 9 rather than determining whether the storage of vehicles was in keeping with "the rest of the building". In that way the adjudicator had applied an incorrect interpretation of by-law 17 which amounted to an error of law. 2. Furthermore the appellant argued that the by-law was intended to relate to the use of the lots that are developed. Lot 9 was always intended for development as a strata scheme of sub-division and therefore by-law 17 has no application to it. RESPONDENT'S CASE 1. It was the respondent's position that lot 9 was always intended for use as a development lot and accordingly lot 9 must remain as vacant land as it was at the time of registration of the strata scheme until such time as a Development Application is approved by council. Thereafter it would be acceptable that building materials be stored on the lot. CONSIDERATION 1. The history of disputation in regard to the usage of lot 9 is generally of little relevance to determination of this appeal. 2. It was agreed by the parties that aside from some new waste vegetation generated by the appellant's pruning of bushes on the subject lot since the adjudicator's orders were made, the orders have been complied with and the items ordered to be removed have now been removed. 3. However, it was the appellant's submission that there remained some utility in the appeal because some of the items removed (namely one car, the masonry blocks and the treated pine logs) are now stored elsewhere but would be returned to the lot if the appeal was successful. 4. The parties agreed at the commencement of the hearing that the only issue for determination was whether the adjudicator was in error in determining that the storage of old cars, the pine logs and the masonry blocks was in breach of by-law 17. Neither party otherwise disputed the adjudicator's determination. 5. By-law 17 relevantly provides The owner or occupier of a lot must not, without the written consent of the owners corporation, maintain within the lot anything visible from outside the lot that, viewed from outside the lot, is not in keeping with the rest of the building. 1. I am satisfied that the appellant's submission that the by-laws should not be applied to the proposed development lot cannot be maintained. It is acknowledged that lot 9 was intended to eventually be developed as a strata plan of sub-division. However, until that is done, the by-laws for Strata Plan 8600 apply to every lot within that strata scheme, whether they be developed residential lots or intended for further development at some un-specified time in the future. The authority for this proposition is to be found in the Management Act s 44 which is in the following terms. 44 Who is required to comply with the by-laws? (1) The by-laws for a strata scheme bind the owners corporation and the owners and any mortgagee or covenant chargee in possession (whether in person or not), or lessee or occupier, of a lot to the same extent as if the by-laws: (a) had been signed and sealed by the owners corporation and each owner and each such mortgagee, covenant chargee, lessee and occupier, and (b) contained mutual covenants to observe and perform all the provisions of the by-laws. (2) There is an implied covenant by the lessee in a lease of a lot or common property to comply with the by-laws for the strata scheme. (3) In this section, "lessee" means, in relation to a lot in a strata leasehold scheme, a sublessee of the lot. 1. It should be noted that by-law 17 refers to whether the item visible from outside the lot is "in keeping with the rest of the building" and does not use words such as "in keeping with the neighbourhood" or the "street-scape". 2. I am satisfied the appellant's submission that the adjudicator made an error of law is correct. From the written reasons of the adjudicator (par (11) it is clear that the adjudicator did in fact apply an incorrect test in considering breach of by-law 17 by reference to whether the storage of vehicles is in keeping with the appearance of the lot rather than the appearance of the rest of the building. It follows therefore that the adjudicator's orders must be set-aside and consideration given to whether other orders should be made in substitution for them. 3. It is not disputed by the appellant that the storage of "rubbish" on the lot is in breach of by-law 17. The orders made by the adjudicator included orders for removal of tree branches, leaves, clippings and accumulated rubbish. Whilst the appellant initially complied with that order, it is not disputed that there has been further accumulation of waste vegetation arising from trimming of a tree or bush on the lot. 4. As the appellant does not dispute that the accumulation of that "rubbish" amounts to a breach of by-law 17, an order is made for its immediate removal. 5. It remains then for determination whether the storage of old cars, pine logs and masonry and potentially other items would be in breach of by-law 17 because, when viewed from outside the lot, it would not in keeping with the rest of the building. 6. In this case the "building" consists of a two storey brick building with open, uncovered parking for lot owners behind the building. Those car parking spaces are within designated areas on the strata plan. Behind the car parking area for the residents is lot 9 which is a large open paved area that may eventually be developed into a strata plan of sub-division but is currently otherwise not used. 7. "Lot" property is defined by the Strata Schemes Freehold Development Act 1973, s 5 as lot means one or more cubic spaces forming part of the parcel to which a strata scheme relates, the base of each such cubic space being designated as one lot or part of one lot on the floor plan forming part of the strata plan, a strata plan of subdivision or a strata plan of consolidation to which that strata scheme relates, being in each case cubic space the base of whose vertical boundaries is as delineated on a sheet of that floor plan and which has horizontal boundaries as ascertained under subsection (2), but does not include any structural cubic space unless that structural cubic space has boundaries described as prescribed and is described in that floor plan as part of a lot. 1. Until lot 9 is developed there does not seem any valid reason for the lot owner to be prevented from using the lot (subject to any by-law or other law) for another purpose including storage of items that would normally be associated with occupation as a residence. 2. The real issue here is the nature of the stored items and their appearance and whether that appearance is in keeping with the rest of the building. From the photographs provided by the parties depicting damaged, vandalised and largely derelict cars I am satisfied that, if they were to be returned to the site, they would amount to a breach of by-law 17. 3. However, on the whole I am satisfied that provided the appellant satisfactorily covers any stored items and keeps the lot neat and tidy and free of rubbish , there would be no breach of by-law 17. The building and the parking area immediately behind it and lot 9 form part of a continuum of fairly "informal" or even "casual" residential accommodation and surrounds. 4. Hence, should the appellant choose to return items to lot 9 for storage or introduce other items of storage the obligation to comply with by-law 17 will remain. The orders made are intended to provide some guidance to assist the parties in that regard. Jeffery Smith Senior Member Civil and Administrative Tribunal of New South Wales 13 July 2015 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 2015