Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Ozslam Pty Ltd v The Owners Strata Plan No. 1436 [2018] NSWCATCD 48 Hearing dates: 15 August 2018 Date of orders: 20 August 2018 Decision date: 20 August 2018 Jurisdiction: Consumer and Commercial Division Before: S Westgarth, Deputy President Decision: (1) That, within 28 days after the date of this order, pursuant to the Tribunal's power under sections 232(1)(a) and section 232(1)(e) of the Strata Schemes Management Act 2015 (NSW), the Respondent, at its cost, is to line mark the exclusive use parking areas of common property marked "A" (Exclusive Use Area A) and "B" (Exclusive Use Area B) in accordance with the plan annexed to Special By-Law 30, with the correct position and boundaries of the Exclusive Sue Area A and Exclusive Use Area B and do whatever other works are required to ensure that the Exclusive Use Area A and Exclusive Work Area B are made suitable for parking a motor vehicle. Catchwords: Exclusive use by-law – use of common property Legislation Cited: Civil and Administrative Tribunal Act 2013 Strata Schemes Management Act 2015 Category: Principal judgment Parties: Ozslam Pty Ltd (Applicant) The Owners Strata Plan No. 1436 (Respondent) Representation: T Beck (director for the Applicant) M Green (Respondent) File Number(s): SC 18/21583 Publication restriction: Unrestricted REASONS FOR DECISION Background 1. The applicant is the owner of lot 4 in a strata scheme in Rose Bay and the application concerns difficulties which the applicant has in relation to accessing and exiting from the car space allocated to lot 4. 2. The applicant was represented by a director, Ms T Beck. The Respondent was represented by Mr M Green, the Chair of the Strata Committee (and a lot owner). 3. The application sought the following four orders: (1) That, within 14 days after the date of this order, pursuant to the Tribunal's power under sections 232(1)(a) and section 232(1)(e) of the Strata Schemes Management Act 2015 (NSW), an order that the Respondent, at its cost, line mark the exclusive use parking areas of common property marked "A" (Exclusive Use Area A) and "B" (Exclusive Use Area B) in accordance with the plan annexed to Special By-Law 30, with the correct position and boundaries of the Exclusive Sue Area A and Exclusive Use Area B and do whatever other works are required to ensure that the Exclusive Use Area A and Exclusive Work Area B are made suitable for parking a motor vehicle. (2) That within 7 days after the date of this order, pursuant to the Tribunal's power under section 232(1)(e) of the Strata Schemes Management Act 2015 (NSW), an order that the Respondent pay the Applicant the amount of $4,239.47, being the costs for the damage caused to the Applicant's motor vehicle as a result of the Respondent failing to take enforcement action against the owners of Lot 1 and Lot 3 for a breach of By-Law 3 and Special By-Law 30. (3) That, within 14 days after the date of this order, pursuant to the Tribunal's power under section 232(1)(e) of the Strata Schemes Management Act 2015 (NSW), an order that the Respondent serve a notice to comply with By-Law 2, By-Law 3 and Special By-Law 30 on the owners of Lot 3 and Lot 1, and if necessary, subsequently make application to the Tribunal for the imposition of a civil penalty in circumstances where the breach is repeated. (4)That, pursuant to the Tribunal's powers under section 60(2) of the Civil and Administrative Tribunal Act 2013 (NSW), the Respondent pays the Applicant's costs of, or incidental to, proceedings before the Tribunal (including the Applicant's costs incurred in preparing and filing an application for mediation under section 218 of the Strata Schemes Management Act 2015 (NSW)). 1. The applicant relied upon the following evidence: 1. The affidavit of T Beck dated 7 June 2018 (marked Exhibit A); and 2. Ms Beck's oral evidence given at the hearing. 1. The respondent relied upon the following evidence: 1. The oral evidence of Mr Green given at the hearing and the folder of material and submissions filed with the Tribunal on 21 June 2018 in accordance with prior directions; and 2. The oral evidence of Ms M Loutsopoulos (the owner of lot 3) given at the hearing. 1. All witnesses were sworn in. The Applicant's Case 1. The applicant has difficulties entering and exiting car space 4 because of the limited space available and these difficulties exist notwithstanding the fact that she owns a relatively small car (a 3 door Mini Cooper). Ms Beck's evidence is that in order to enter her car space, she must turn off Old South Head road onto common property, turn across the face of car spaces for lots 2, 6 and 7, then reverse turning right down the driveway (which leads to the back of the building), and then reverse into her car space. She cannot "nose in" to her car space because she could not then open the car door (by reason of the existence of a half wall). By reversing into the car space, she is able to exit the car as the space for the door is sufficient. On exiting the car space, she cannot turn left into the driveway because there is insufficient space having regard to the wall of the building and the narrow nature of the driveway. However, she can turn right and thus drive down the driveway to the rear of the building. At the rear, there is common property space and car parking space for lots 1 and 3. There are also two Hills Hoists. At that point, the applicant must undertake a turning manoeuvre on the common property so that the vehicle is then in the driveway facing towards Old South Head road. She is then able to drive along the driveway and onto Old South Head road. The alternative form of exiting the car space would be to exit the car space by turning right into the driveway and then reverse out the driveway. This involves reversing onto Old South Head road. Ms Beck says that reversing onto Old South Head road is dangerous. Hence her preference to drive down to the rear of the building, turn around on common property near car spaces 1 and 3 and then drive back down the driveway. 2. The problem which has caused the parties to be in dispute is that the cars parked on car spaces 1 and 3 are not actually parked on the area designated as the exclusive use area for those two car spaces. Indeed, the concrete area marking out those car spaces is also not on the correct boundaries by reference to the exclusive use area. 3. The evidence provided by the applicant includes a copy of special by-law 30 which appears to have been registered in 1986. That by-law provides for the proprietors for the time being of lots 3 and 1 to have the right to exclusive use and enjoyment of those areas of common property marked A and B on the plan annexed to the notification of the change of by-law. The by-law includes the right to "ingress thereto and egress therefrom". The by-law may only be amended, added to or repealed by unanimous resolution. The plan depicts the two car spaces. The common property has been laid with concrete which includes the shape of two car spaces. However, the concrete showing the position of the two car spaces does not correctly align with spaces A and B on the plan. The result, according to the applicant, is that the two cars when parked in those spaces intrude onto common property making it very difficult (arguably impossible) to turn a vehicle around. In other words, the applicant having decided that she must exit her car space by driving down to the rear of the building cannot then effect a turning manoeuvre so that she then can drive back along the driveway. 4. The applicant's evidence included evidence that on 2 May 2018 she damaged her vehicle while trying to exit the car space. On that occasion, she decided that she could not turn right down the driveway because of the existence of a car in the space for lot 3 and thus decided to turn left out of the car space into the driveway. That manoeuvre resulted in the car scraping against the brick wall of the building. The applicant claims damages from the Owners Corporation in the sum of $4,239.47. 5. The applicant has owned the lot for approximately 20 years but Ms Beck has only lived there since 2016. Prior to that, either her children or tenants lived in lot 4. On those occasions, there was no need to complain about cars being parked in spaces 1 and 3 because, according to the evidence of Ms Beck, the lot 3 car was not present during most of the day, or because her daughter had a large car and did not park in the car space (for lot 4) in any event, or because the tenants did not use the car space. However, circumstances have changed in more recent times in that Ms Beck has wanted to use her car space and the car in lot 3 has been parked in the car space for lengthy periods, thus creating a barrier, according to Ms Beck, in her being able to conduct a turning manoeuvre at the rear of the building. The Respondent's Case 1. Mr Green's evidence was that the Strata Committee was not aware of the issues concerning parking until February of this year. Although he only moved in to the block of apartments in 2017, he has made enquiries and he was unable to find any reports of parking incidents occurring prior to this year. 2. Mr Green expressed the opinion that Ms Beck was being unreasonable in not wishing to reverse out of the driveway onto Old South Head road. He claimed that lot owners coming out of lots 2, 6 and 7 reverse onto that road. However, Mr Green acknowledged that it was very difficult for Ms Beck to "nose in" to her car space and agreed it was very tight for her to exit the car space by turning left into the common property driveway. 3. Mr Green acknowledged that the cars in lots 1 and 3 do not park correctly on the space allocated by special by-law 30. His written submission said it was not practical for the vehicles to park at the angle identified in special by-law 30 and that the by-law was "not created correctly". He said it was the Owners Corporation intention to rectify the issue. He also said that if the car parked in lot 3's space was required to park in accordance with the by-law, then access to the Hills Hoist would be obstructed and the grass area would also be damaged. He referred to by-laws which require care and maintenance to lawns and common property. 4. Ms Loutsopoulos (the owner of lot 3) gave evidence to the effect that she purchased her lot in 2011 and that at that time, the issues concerning the placement of lots 1 and 3 car spaces were not mentioned to her. She also expressed the opinion that the cars cannot be parked in the manner indicated by special by-law 30. Further, she stated that the removal of a Hills Hoist would be detrimental as two are needed. Further, there is a sewerage drain behind one of the car spaces and it would not be possible to cause the use of space for parking to intrude over the sewerage/drainage outlet. 5. The Owners Corporation relied upon by-law 4 which states that an owner or occupier of a lot must not damage any lawn, garden, tree, shrub, plant or flower being part of or situated on common property. Mr Green submitted that if lot 3 was required to park in accordance with special by-law 30, it would result in damage to lawn. The Owners Corporation also relied upon by-law 2 which states that an owner or occupier must not park or stand any motor or other vehicle on common property except with the written approval of the Owners Corporation. Mr Green submitted that the Owners Corporation can provide written approval for owners to park on common property. Decision 1. The current dispute arises out of the apparent unfortunate mismanagement of common property in the past. By that statement, I mean that it is unfortunate that the plan indicating the place for car spaces 1 and 3 was not identified by concreting over the correct boundaries of those car spaces. The consequence has been that for many years the persons entitled to park in spaces 1 and 3 have parked on common property (or at least partially on common property). 2. Section 9 of Strata Schemes Management Act 2015 (the Strata Act) provides that the Owners Corporation has the principal responsibility for the management of the scheme (s 9(1)). Section 9(2) provides that the Owners Corporation has, for the benefit of the owners of lots in the strata scheme, the management and control of the use of common property. Section 9(3) provides that the Owners Corporation has the responsibility for maintaining and repairing common property (s (9)(3)(c)). It is my view that the Owners Corporation has an obligation to ensure that common property is available for the benefit of the owners of all lots. To the extent that the owners of lots 1 and 3 park their vehicles in a manner which intrudes onto common property, the Owners Corporation has a responsibility to take appropriate steps to ensure compliance by those lot owners and, in this case, to comply with by-law 2 (which I will refer to again later in these reasons). 3. I do not think it is relevant to consider whether the applicant should adopt a method of exiting the lot 4 car space which does not involve using the common property area at the rear of the building. The basic facts are that there is an area of common property which may be used by vehicles (at the rear of the building) and the cars owned or used by lots 1 and 3 do not park entirely on the designated areas identified by special by-law 30. Rather, they park on common property or at least partially do so. That fact is conceded by the Owners Corporation. 4. Accordingly, in my view, the applicant's application for order 1 must be made because the applicant is merely asking for the Owners Corporation to ensure that the area of common property at the rear of the building is maintained for the use of all lot owners (and persons authorised by them) and, that the owners of lots 1 and 3 should park in the spaces identified in the plan annexed to special by-law 30. 5. It may be necessary for some fresh work to be done so that the owners of lots 1 and 3 are able to correctly park on the planned areas identified by special by-law 30. Precisely what needs to be done to ensure compliance was not addressed either by the applicant or the respondent. However, order 1 adequately addresses the issue and imposes an obligation on the Owners Corporation to mark the two areas and do such other work as to enable the areas to be made suitable for parking. The period of 14 days sought by the applicant is unreasonably short, and in my view, a longer period (I propose 28 days) ought to be provided. 6. I am not satisfied that the Owners Corporation has established that the sewer/drain inspection opening would be inaccessible if the relevant car spaces were correctly placed as per the plan annexed to special by-law 30. The evidence on that subject was not clear. However, assuming that if a car were parked on the correct space for lot 3 with the result that access to the sewer/drain was impossible, it may be necessary for the Owners Corporation to take some other steps to maintain accessibility to the sewer/drain. Insofar as the Owners Corporation relies upon by-laws 2 and 4, I make these findings: 1. As matters presently stand, by-law 2 prohibits an owner or occupier from parking or standing a motor vehicle on common property. There is no written approval to do so at present; and 2. By-law 4 imposes an obligation on an owner or occupier not to damage lawn. That by-law must be interpreted to be subject to the rights created by special by-law 30, namely that the owners of lots 1 and 3 have rights of ingress and egress over common property and to park on the spaces designated (whether or not the surface consists of lawn). 1. Accordingly, order 1 is made, subject to lengthening the number of days to 28. 2. I do not think that there is justification for the making of order 2. The applicant damaged her vehicle by her own attempts to get out of the car space. Although indirectly the need to do so has been occasioned by the circumstances involving the difficulties of exiting car space 4, the applicant nevertheless, on the particular occasion in question, chose to attempt to manoeuvre the vehicle out of the car space in a manner which she was aware was difficult. In that sense, it was her negligence and not any act or omission of the Owners Corporation which caused the damage to the vehicle. 3. I decline to make order three. The circumstances by which the owners of lots 1 and 3 have been acting in a fashion which does not comply with special by-law 30 or by-law 2 have been set out in these reasons and, for many years the occupants of lots in the strata scheme have tolerated that state of affairs. In my view, it would be inappropriate to make an order that the Owners Corporation now issue a notice to comply before the time allowed in order 1 has expired. 4. I also decline to make order 4. Section 60(2) of the Civil and Administrative Tribunal Act 2013 (NCAT Act) provides that the Tribunal may award costs in special circumstances. However, the general position is that each party pay their own costs. Special circumstances have not been identified to me and nor do I think that there are any. The Owners Corporation's inaction since the applicant first raised her complaints concerning car spaces in January 2018 is somewhat understandable given the long history of the use of car spaces 1 and 3 and adjoining common property. Although, the Strata Committee could be criticised for not taking up the invitation to engage in mediation, I do not think that that circumstance warrants a conclusion that there are special circumstances justifying a costs order. Orders 1. The Tribunal makes the following order: 1. That, within 28 days after the date of this order, pursuant to the Tribunal's power under sections 232(1)(a) and section 232(1)(e) of the Strata Schemes Management Act 2015 (NSW), the Respondent, at its cost, is to line mark the exclusive use parking areas of common property marked "A" (Exclusive Use Area A) and "B" (Exclusive Use Area B) in accordance with the plan annexed to Special By-Law 30, with the correct position and boundaries of the Exclusive Sue Area A and Exclusive Use Area B and do whatever other works are required to ensure that the Exclusive Use Area A and Exclusive Work Area B are made suitable for parking a motor vehicle. S Westgarth Deputy President Civil and Administrative Tribunal of New South Wales 20 August 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. 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