Civil and Administrative Tribunal New South Wales Medium Neutral Citation: The Owners – Strata Plan 30198 v Barnes [2018] NSWCATCD 8 Hearing dates: 19 February 2018 Date of orders: 11 April 2018 Decision date: 11 April 2018 Jurisdiction: Consumer and Commercial Division Before: J Smith, Senior Member Decision: 1. The application is dismissed. 2. If any party seeks an order for costs, leave is granted to file and serve a short written submission on that issue only within 14 days of the date of these orders. 3. Leave is granted for the other party to file and serve a short written submission in reply within a further 14 days. 4. Submissions are to include a statement on whether the party seeks a further hearing on costs or are content to have the issue dealt with "on the papers" Catchwords: By-law interpretation, "in keeping with the rest of the building", whether garden area included in "building". Legislation Cited: Civil and Administrative Tribunal Act 2013 Cases Cited: Owners Strata Plan No 54411 & Ors v Cameron North Sydney Investments [2003]NSWCA 5, The Owners Corporation No 3 PS419703E v Bell [2017]VCAT 494 The Owners Corporation Strata Plan No 37762 v Dinh Phuong Pham [2006]NSWSC 1287, The Owners-Strata Plan 22784 v Jones [2001]NSWSSB19 The Owners-Strata Plan 50442 v Chalik [2005]NSWCTTT294, The Owners-Strata Plan 60612 v Lloyd [2005]NSWCTTT206, The Owners-Strata Plan 73943 v Gazebo Penthouse Pty Ltd [2014]NSWSC 1536 Texts Cited: Nil Category: Principal judgment Parties: The Owners – Strata Plan 30198, applicant Julie Anne Barnes, respondent Representation: The applicant was represented by Mr Bryan Jenkins, by leave of the Tribunal The respondent was represented by Mr Peter Fairfield, solicitor, by leave of the Tribunal File Number(s): SC 17/ 29021 REASONS FOR DECISION Background and Jurisdiction 1. This is an application made by the Owners Corporation for SP 30198 seeking orders pursuant to the provisions of the Strata Schemes Management Act 2015 s 232 for the removal by the respondent of allegedly unauthorised works comprising an entertainment area, deck and retaining wall installed by the respondent in the rear courtyard of her lot (lot 8) in the strata scheme. The orders sought were specific in regard to the actual work/reinstatement to be done and requested that it be completed within an eight week period. 2. The parties agreed at the commencement of the hearing that the compass of the orders sought did not extend to a retaining wall and steps built at the rear of lot 8 by a previous owner of the lot. 3. I am satisfied, and it is not in dispute, that the Tribunal has jurisdiction pursuant to the Civil and Administrative Tribunal Act Part 3 and the Strata Schemes Management Act 2015 s 232 to make the orders sought. 4. It is noted that at the commencement of the hearing the applicant's representative complained that a bundle of documents filed by the respondent on 14 February 2018 had not previously been provided to the applicant. After an adjournment of half an hour the applicant's representative was able to confirm that he was satisfied that the consolidated bundle provided by the respondent did not include new material and that despite some differences in referencing the material he was able to proceed. Facts 1. The principle facts giving rise to the dispute were not contested and were to the following effect. 1. The respondent is the owner of lot 8 in the strata scheme, 2. From about June 2014 to October 2014 the respondent, without the written consent of the Owners Corporation, began construction of a deck and entertainment area in the rear garden of lot 8. 3. The deck and entertaining area as constructed are visible from outside the lot. Although there was some disagreement as to the places from which the subject works are visible it was conceded for the respondent that the works are visible from lots 7 and 9. 4. It was conceded by the applicant's expert under cross-examination that all of the subject works are constructed within lot 8 and that they do not have any impact on the common property. Applicant's Case 1. The applicant's submission was that the works as constructed by the respondent are in breach of by-law 17 because the deck and entertaining area are visible from outside the lot and when viewed from outside the lot are not in keeping with the rest of the building. 2. By-law 17, on which the applicant relied, was in the following terms 17 Appearance of the lot (1) 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. The applicant relied on a bundle of documents filed in the proceedings which included Points of Claim, a chronology, written submissions, photographs and a report from Mr Charles Hill, town planner, dated 14 December 2017. In addition there were a large number of relevant documents including the registered strata plan for SP 30198, original DA for the building, etc. A model, not to scale, was relied on by the applicant to demonstrate the juxtaposition of the rear garden areas of the affected lots. 2. The applicant's submission was that the subject works are visible from the rear of lots 7, 9 and 10 and from the upstairs of the property adjacent in Cammeray Avenue. To establish that the subject works are "not in keeping" with the rest of the building the applicant relied on the report of Mr Charles Hill date 14 December 2017. 3. Mr Charles Hill adopted his report on affirmation and was cross examined on his report. 4. In his opening submissions the applicant's representative stated that the concern of other lot owners that is at the heart of this dispute related to privacy and security of neighbouring lots. 5. The legislation and regulations, it was submitted, must be interpreted purposively and with regard to the applicant's duties, responsibilities and obligations in the interests of all lot owners. The purpose of the by-laws must be to ensure consistency, harmony and conduct which does not impact on other lot owners or detract from the use and appearance of the building as a whole. 6. The very purpose of by-law 17 is to ensure consistency between lots. 7. The words, "in keeping with" as contained in the by-law should be given their ordinary English meaning such as "consistent with", "in harmony with", "in accordance with" or "in conformity with". 8. Just from viewing the photographs it is clear that the respondent's lot with its raised timber structure when it is contrasted with the adjoining lots which do not have such a structure is not in keeping with the rest of the building. 9. The respondent has in fact constructed something that has the appearance of an outdoor entertaining area. It is possible to place seats, table and BBQ on the timber deck. The Tribunal should not accept that this is simply a form of landscaping which has no purpose other than an aesthetic one. 10. In response to the respondent's reliance on the decision of the Court of Appeal in Cameron North, it was the applicant's submission that the decision was of no relevance to this matter because it dealt with the issue of whether a development application could only be pursued by a lot owner with the consent of the Owners Corporation and not with the application of a by-law. 11. Further, it was submitted, if the respondent was ordered to remove the structure the respondent would not be deprived of an area to conduct outdoor living and entertaining in a manner in harmony with the rest of the building. Respondent's Case 1. The respondent, due to time constraints, agreed that it was not necessary to address the issues relating to planning laws, privacy of neighbours and visibility from places outside lot 8 other than from lots 7 and 9 but did make reference to those matters in the written submissions subsequently filed. 2. The respondent's submission was that there was no evidence to demonstrate that the subject works are not in keeping with the rest of the building and further that the consent of the Owners Corporation is not required for works carried out wholly within a lot. Reliance was placed on the decisions of the Court of Appeal in Owners Strata Plan No 54411 & Ors v Cameron North Sydney Investments [2003]NSWCA5 (Cameron North) and the Supreme Court in The Owners Corporation Strata Plan No 37762 v Dinh Phuong Pham [2006]NSWSC 1287 (Dinh Phuong Pham) in regard to the latter proposition although no specific passage from the decisions was referenced. 3. Other reported cases referred to by the respondent dealt with the placement of a "for sale" sign on a lot, installation of blinds, curtains and awnings on a lot and covering of a pergola on a lot. 4. Mention was also made of a recent decision of VCAT which dealt with a dispute in which there was a finding that the subject work was not visible from outside the lot. 5. It was the respondent's submission that the purpose of by-law 17 is to regulate the appearance of the lot so that it is "in keeping with the rest of the building" and not, as submitted by the applicant, to ensure consistency between lots. 6. Issues of privacy, use and noise are not issues relevant to the consideration of by-law 17. Further, there is no requirement of any kind that mandates building materials, plantings or structures that may be used by a lot owner to ensure compliance with by-law 17. 7. The respondent relied on a bundle of documents including Points of Defence, written submissions, a chronology, photographs and the report of Mr Kevin Quelch, landscape designer, of "Inovasis design" dated 30 January 2018. 8. The respondent's submission focussed on examination of the various photographs provided to the Tribunal to demonstrate the diversity in shape, size and building materials used and the consistency in plantings of the gardens behind lots 3, 6, 7, 9 and 10 when compared with the subject works in lot 8. That comparison, it was submitted, demonstrated that the subject works in lot 8, when viewed from outside the lot, were in keeping with the rest of the building. 9. Mr Quelch adopted his report on affirmation and was cross examined on his report. 10. In addition, the respondent argued that the words "not in keeping with the rest of the building" have not been the subject of interpretation by the Supreme Court. Accordingly they should be given their ordinary meaning. "Building" is defined in the SSMA as being "a building containing a lot or proposed lot or part of a lot or proposed lot in the scheme or proposed scheme". The courtyard at the rear of the respondent's lot does not come within that meaning and the area is therefore outside the ambit of the "rest of the building" and not subject to by-law 17. Consideration 1. There is no dispute that the subject works in the rear garden area of lot 8 were constructed without the written consent of the Owners Corporation and there is no dispute that the works as constructed are visible from lots 7 and 9. The issue of when the Owners Corporation became aware of the structures and whether or not the work was done "against the wishes" of the Owners Corporation is not a relevant consideration. 2. The respondent's submission was that because the entire works the subject of the application are within the boundary of lot 8 the consent of the Owners Corporation to the works was unnecessary. 3. In reliance on that proposition the respondent referred to Cameron North and Dinh Phuong Pham. However the respondent's submission failed to elaborate on what aspect of those cases was authority for the proposition put and further failed to explain, even if the submission was correct, how that fact excused the respondent from compliance with by-law 17. I have read the cases to which I have been referred and I do not accept that either of them is authority for the proposition that just because work that is carried out by a lot owner is totally within the confines of the lot and does not affect the common property the lot owner is excused from compliance with by-law 17. 4. By-law 17 provides 17 Appearance of the lot (1)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. Even if the respondent's proposition that work carried out totally within a lot and which does not affect the common property does not require Owners Corporation approval was shown to be correct, we would still need to consider whether the respondent is maintaining something within the lot that viewed from outside the lot is "not in keeping with the rest of the building". 2. I therefore reject the respondent's submission that the cases of Cameron North and/or Dinh Phuong Pham are any authority for the proposition that the respondent is excused from the requirement to comply with by-law 17. 3. It is important before considering the matter further that the "works" for which orders are sought is clearly defined. The orders sought by the applicant are set out at paragraph 11 of the applicant's Points of Claim. Clarification provided at the commencement of the hearing made it clear that no orders were sought for removal of a retaining wall and steps constructed by a previous owner of lot 8. 4. Hence the application is limited to orders necessary for removal of the raised deck described as the "entertaining area" and of necessity the furniture and barbeque placed in that area, the built in seating, imported landfill and plantings and a small retaining wall some 50cm in height that were constructed by the current owner of lot 8 and for the reinstatement of the original levels and plantings. 5. The issue for determination as correctly submitted by the parties is whether the works, the subject of the application, are "when viewed from outside the lot, in keeping with the rest of the building" and the burden of proof in establishing a breach of the subject by-law falls on the applicant. 6. The first issue to put to rest is whether or not the subject works form part of "the building". 7. The respondent's submission was that because the words "not in keeping with the rest of the building" have not been the subject of interpretation by a Superior Court the Tribunal, in ascribing a meaning to them, must give them their ordinary meaning. 8. I accept that proposition. However, the respondent's further submission was that in doing so the Tribunal must apply the definition of building contained in the SSMA and that the definition precludes the garden areas from the physical structure of the building. 9. The SSMA s 4 relevantly provides: "building", in relation to a strata scheme or a proposed strata scheme, means a building containing a lot or a proposed lot, in the scheme or proposed scheme. 1. The difficulty with the respondent's reliance on this definition is that the word "building" is defined to include a lot in a strata scheme. By reference to the strata plan at page 85 of the respondent's consolidated bundle it is clear from the placement of the vinculum that the courtyard and garden area in each case forms part of each lot. 2. I am satisfied therefore that the garden area in question at the rear of lot 8 is in fact part of lot 8 and by definition part of the building comprising Strata Plan 30198. 3. The next question for determination is whether the subject works in question, when viewed from lots 7 and 9, from where it is agreed they are visible, is or is not "in keeping" with the rest of the building. 4. Naturally, both parties have relied heavily on their respective experts in attempting to justify their respective positions. 5. Mr Charles Hill provided an expert opinion on behalf of the applicants. Mr Hill adopted his report on affirmation and was cross-examined on it. Mr Hill's report makes clear that he has the qualifications and experience necessary to provide an expert opinion in relation to town planning. He acknowledged the Tribunal's Code of Conduct for expert witnesses but did not explain the methodology he adopted in preparing his report. 6. Mr Hill's report focused on privacy issues both in regard to the potential for the subject area in lot 8 to overlook other lots and in regard to acoustic privacy. Under cross examination Mr Hill conceded that his initial assessment that the area in question was not intended to be a "trafficable" area was incorrect. 7. At no place in his report did Mr Hill explain what his criteria was for determining whether or not the subject works are in keeping with the rest of the building and at no place in his report did Mr Hill conclude that the works were not in keeping with the rest of the building. Under cross-examination Mr Hill explained, when asked what objective standards he had applied to the issue responded that he had simply compared the rear of lot 8 to the courtyards of other lots. 8. Mr Kevin Quelch prepared an expert report dated 30 January 2018 that was relied on by the respondent. Mr Quelch adopted his report on affirmation and was cross-examined on it. Mr Quelch explained his qualifications and experience and acknowledged that he had read the Tribunal's Code of Conduct for expert witnesses. 9. Mr Quelch explained under cross-examination that his report was based on the aesthetics of the area in question and that he had considered that issue in the context of the whole of the strata scheme including other courtyards and landscaping. 10. The Tribunal's Code of Conduct for expert witnesses is set out in NCAT Procedural Direction 3 made by the President and is readily available on the Tribunal's web-site. The introduction to that code notes that "the Tribunal may rely on evidence from experts to reach a conclusion about a technical matter". It is therefore important that expert opinions are soundly based, complete and reliable. 11. It is the party's responsibility who engages the expert to bring the Procedural Direction and Code of Conduct to their expert's attention (clause 8). 12. The rationale embodied in requiring an expert to acknowledge and adhere to the expert Code of Conduct is to maximise the Tribunal's ability to assess how it should resolve technical disputes between individuals and to reinforce the Tribunal's confidence on expert material placed before it. 13. In the instant case and without intending any disrespect to the two expert witnesses I am not satisfied that either of the expert reports is of great assistance to the Tribunal. 14. Firstly, Mr Hall's report was lacking in any clear reference to his opinion on the issue to be determined, that is whether or not the subject works on lot 8 are, when viewed from outside lot 8, "in keeping with the rest of the building". Also Mr Hill's report failed to explain in any way the methodology adopted for reaching the opinions expressed. 15. Mr Quelch at least acknowledged that the issue is an aesthetic one and gave an explanation of how he had looked into that issue. 16. However, the real problem for the experts is that the issue for determination is not a technical one requiring application of special technical expertise to assist the Tribunal in its determination. Mr Hall's approach therefore of simply visually comparing the backyard of lot 8 to the other backyards may well have been the only approach to the issue. It was essentially the same approach adopted by Mr Quelch but neither was one that required any special expertise. 17. The issue for determination requires consideration of the meaning of the words adopted in by-law 17 and their objective application to the circumstances of the case. 18. The applicant's submission, in attempting to ascribe the ordinary meaning to the words "in keeping with" suggested "consistent with", "in harmony with", "in accordance with" and "in conformity with" as being relevant synonyms for the phrase. 19. The respondent's submission on the other hand was that the purpose of the by-law is to regulate the appearance of a lot so that it remains "in keeping with the rest of the building" and is not to ensure consistency between lots. 20. I think that in trying to determine the meaning of by-law 17 and in applying it to the circumstances we have discussed there is merit in both those submissions. 21. Firstly, the by-law, specifically refers to viewing something from outside the lot. I am satisfied therefore that it is about visual comparisons between the lot in which the "thing" is situated and the remainder of the building. 22. It is necessary therefore to also consider what the ordinary meaning is of the words "in keeping with" and in doing so it is a legitimate exercise to apply to the extent necessary in order to understand those words relevant dictionary definitions. The applicant's submission did not make reference to the source of the synonyms suggested. Nevertheless they are all in accordance with common understanding of the term. 23. "In keeping with" is not expressly mentioned in the Macquarie Dictionary but that tome does usefully refer to "keep" and "keeping". The many meanings ascribed are consistent with the synonyms relied on by the applicant. 24. The Shorter Oxford English Dictionary also usefully uses words such as "agreement", "congruity" and "harmony". 25. Clearly the words "in keeping with" impart a meaning of something being harmonious with whatever it is being compared to without imparting any intention of the two things being exactly the same and in this case the harmony or similarity is of a visual nature. 26. The respondent's representative, in his oral submissions, referred the Tribunal to the photographs in the consolidated bundle. I have now had the opportunity for a careful examination of those photographs and particularly the photograph at page 102 depicting the lot 7 courtyard, page 107 depicting lot 10 courtyard, page 114 depicting lot 9 courtyard, page 115 depicting lot 3 courtyard and page 116 depicting lot 6 courtyard. 27. Further I have had the opportunity of comparing each of those photographs with photographs of lot 8 depicted on pages 94, 95 and 96 and pages 357, 358 and 359 of the consolidated bundle. 28. Having done so I am satisfied that there are a number of visual differences based principally on how the various lot owners have arranged to enjoy their respective areas. Some are more formal and have seating (lot 9), others are less given over to shrubbery and plants and are more heavily paved (lots 3 and 6), one has an exercise bike (lot 10) and all appear to be different shapes and sizes. However, there is a uniformity of appearance that is based principally on the timber and paving materials used in their construction and on the plants which are largely tropical in appearance. 29. Over-all I have no hesitation in finding a visual and aesthetic harmony between all of the photographs examined. 30. For the above reasons I am not satisfied the applicant has discharged its burden of proving that the respondent, in installing the subject works without the consent of the applicant, now maintains within the lot anything that, when viewed from outside the lot, is not in keeping with the rest of the building Conclusion 1. For the above reasons the application is dismissed. 2. The parties have expressed an interest in the issue of costs being dealt with. I encourage the parties to try to resolve that issue by agreement. If the parties are unable to agree I have made directions intended to deal with the issue. J.Smith Senior Member Civil and Administrative Tribunal of New South Wales 11 April 2018 ********** 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: 02 July 2018