Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Ashbee v The Owners - Strata Plan No 11761 [2018] NSWCATCD 80 Hearing dates: 11 September 2018 Date of orders: 04 December 2018 Decision date: 04 December 2018 Jurisdiction: Consumer and Commercial Division Before: P Boyce, Senior Member Decision: (1) Pursuant to s 127 of the Strata Schemes Management Act 2015 declares that the applicant, Kimberley-Ann Ashton Ashbee's, proposed air-conditioning installation for Lot 141 Strata Plan 11761 is a minor renovation for the purposes of s 110 of the Act; (2) Pursuant to s 126(1) of the Strata Schemes Management Act 2015 orders that on or before 22 December 2018, The Owners - Strata Plan No 11761 consent to the air-conditioning installation for Lot 141 work proposed by the applicant, Kimberley-Ann Ashton Ashbee, in her terms of motion put to the general meeting of the owners corporation on 16 November 2017, including the minor renovations to the common property directly affecting the owner's Lot 141 on the terms set out in the explanatory note prepared by the applicant. (3) Pursuant to s 126(5) of the Strata Schemes Management Act 2015 orders that the applicant, Kimberley-Ann Ashton Ashbee, is to be responsible for the ongoing repair and maintenance of the additional property arising from the minor renovation approved under these orders. Catchwords: LAND LAW-strata scheme-declaration of minor alterations-minor alterations unreasonably refused by owners corporation- order that owners corporation approve the works Legislation Cited: Strata Schemes Management Act 2015 (NSW) Strata Schemes Management Regulation 2016 (NSW) Cases Cited: Curragh Coal Sales Co Pty Ltd v Wilcox (1984) FCR 46 Category: Principal judgment Parties: Kimberley-Ann Ashton Ashbee (Applicant) The Owners - Strata Plan No 11761 (Respondent) Representation: Solicitors: Spiers Ryan (Applicant) Kerin Benson Lawyers (Respondent) Counsel: A Blank (Applicant) A Benson-Solicitor (Respondent) File Number(s): SC18/09525 Publication restriction: Unrestricted REASONS FOR DECISION Application 1. This is an application filed with the Tribunal on 22 February 2018 by a lot owner in a strata scheme for an order pursuant to section 126 and 127 of the Strata Schemes Management Act 2015 (NSW) ("SSMA") for orders to consent to the applicant's proposed air-conditioning installation, unreasonably refused by the respondent and a declaration that the proposed air-conditioning installation is a "minor renovation" under s 110 of the SSMA and reg 28(d) of the Strata Schemes Management Regulation 2016 (NSW) (SSMR). 2. The applicant is the registered proprietor of Lot 141 in Strata Plan 14189. 3. The respondent is The Owners, Strata Plan No 14189. 4. The strata scheme of Strata Plan 14189 comprises thirty lots and is located at Willoughby New South Wales. Strata Plan 14189 is part of a larger strata Legislation and jurisdiction 1. Section 126 of the SSMA provides that the Tribunal may make an order relating to alterations to common property, with the relevant provisions as follows: 126 Orders relating to alterations and repairs to common property and other property (1) Order requiring owners corporation to carry out work on common property The Tribunal may, on application by a lessor of a leasehold strata scheme or an owner of a lot in a strata scheme, order the owners corporation to consent to work proposed to be carried out by an owner of a lot if the Tribunal considers that the owners corporation has unreasonably refused its consent and the work relates to any of the following: (a) minor renovations or other alterations to common property directly affecting the owner's lot, (b) carrying out repairs to common property or any other property of the owners corporation directly affecting the owner's lot. (2) … (3) A work approval order is taken to be the consent of the owners corporation to the renovations, alterations or repairs and may provide that it has effect from a day specified in the order that occurred before the order was made. (4) In deciding whether to grant a work approval order or to provide for the order to have effect from a day that occurred before the date of the order, the Tribunal may take into account the conduct of the parties in the proceedings, for example, if an owner did not first seek the consent of the owners corporation before carrying out the renovations, alterations or repairs. (5) Responsibility for ongoing repair and maintenance of affected property The Tribunal may specify in an order under this section whether the owners corporation or the owner of the lot has the ongoing responsibility for the repair and maintenance of any additional property arising out of a minor renovation or alteration or repair to common property approved under the order. (6) If an order provides for the owner of a lot to have the ongoing responsibility for the repair and maintenance of any such additional property, the order also has effect in relation to any subsequent owner of the lot. 1. S 127 of the SSMA provides that the Tribunal can make an order relating to minor renovations, as follows: 127 Order relating to cosmetic work or minor renovations The Tribunal may, on application by an owner of a lot in a strata scheme, make an order declaring that specified work is cosmetic work for the purposes of section 109 or a minor renovation for the purposes of section 110. 1. The Tribunal is satisfied that the applicant as a lot owner in the strata scheme is a person able to bring proceedings in the Tribunal under ss 126 and 127 of the SSMA. 2. S 110 of the SSMA provides that lot owners may carry out minor renovations with the approval of a resolution at a general meeting of the owners corporation, as follows: 110 Minor renovations by owners (1) The owner of a lot in a strata scheme may carry out work for the purposes of minor renovations to common property in connection with the owner's lot with the approval of the owners corporation given by resolution at a general meeting. A special resolution authorising the work is not required. (2) The approval may be subject to reasonable conditions imposed by the owners corporation and cannot be unreasonably withheld by the owners corporation. (3) Minor renovations include but are not limited to work for the purposes of the following: (a) …. (f) any other work prescribed by the regulations for the purposes of this subsection. (4) Before obtaining the approval of the owners corporation, an owner of a lot must give written notice of proposed minor renovations to the owners corporation, including the following: (a) details of the work, including copies of any plans, (b) duration and times of the work, (c) details of the persons carrying out the work, including qualifications to carry out the work, (d) arrangements to manage any resulting rubbish or debris. (5) An owner of a lot must ensure that: (a) any damage caused to any part of the common property by the carrying out of minor renovations by or on behalf of the owner is repaired, and (b) the minor renovations and any repairs are carried out in a competent and proper manner. (6) The by-laws of a strata scheme may provide for the following: (a) additional work that is to be a minor renovation for the purposes of this section, (b) permitting the owners corporation to delegate its functions under this section to the strata committee. (7) This section does not apply to the following work: (a) work that consists of cosmetic work for the purposes of section 109, (b) work involving structural changes, (c) work that changes the external appearance of a lot, including the installation of an external access ramp, (d) work involving waterproofing, (e) work for which consent or another approval is required under any other Act, (f) work that is authorised by a by-law made under this Part or a common property rights by-law, (g) any other work prescribed by the regulations for the purposes of this subsection. (8) Section 108 does not apply to minor renovations carried out in accordance with this section. 1. The SSMR provides that installing a reverse cycle split system air conditioner is prescribed by reg 28(3)(d) as a minor renovation subject to s 110(7). 2. Section 227 of the SSMA provides that the Registrar of the Tribunal cannot accept an application unless mediation has been attempted, a party has refused mediation or the registrar considers mediation is unnecessary or inappropriate in the circumstance, as follows: (1) A registrar must not accept an application made to the Tribunal under this Act unless: (a) mediation by the Secretary under Division 2 or otherwise has been attempted but was not successful, or (b) a party refused to participate in the mediation, or (c) the registrar considers that mediation is unnecessary or inappropriate in the circumstances. (2) The registrar must inform an applicant that the applicant should arrange for mediation if the registrar rejects an application under this section. (3) The applicant may arrange for mediation under Division 2 or otherwise. (4) This section does not apply to applications for the following orders: (a) an order to appoint, or requiring the appointment of, a strata managing agent, (b) an order varying or revoking an order that varies or revokes another order by the Tribunal, (c) an order with respect to waiving, varying or extinguishing a restriction relating to the initial period, (d) an order allocating unit entitlements, (e) an order with respect to access to a lot by the owners corporation to inspect or repair common property, (f) an order seeking provision of records to an owners corporation by a former strata managing agent for the strata scheme, (g) an order with respect to the inspection of records of an owners corporation, (h) an order imposing a monetary penalty and any associated order as to the payment of costs. 1. Attached to the application a copy of a letter dated 17 January 2018 from NSW Fair Trading to the applicant confirming that mediation of the dispute had been not been successful. The Tribunal is satisfied that the requirements of s237(1) of the SSMA have been complied with. 2. The Tribunal is satisfied that it has jurisdiction to hear and determine the application. Procedural 1. In the application, the applicant also sought orders under s 232 and 106(5) of the SSMA. During the hearing the parties reached agreement to settle that part of the application and consent orders were made by the Tribunal. 2. The only issue for determination is the application for orders in respect of the applicant's proposed air conditioning installation. Evidence 1. The applicant relies on: 1. The bundle of documents filed and served on the respondent on 26 April 2018 and 3 May 2018 with the Tribunal and admitted without objection as Exhibit A1; 2. The bundle of documents filed and served on the respondent on 6 June 2018 with the Tribunal in reply to the respondents documents and admitted without objections as Exhibit A2. 1. The respondent relies on: 1. The bundle of documents filed and served on the respondent on 23 May 2018 with the Tribunal and admitted without objection as Exhibit R1. Facts and findings 1. On 16 May 2016 the applicant sought approval of the strata committee for the scheme to install a reverse cycle air conditioner in her lot. 2. On 18 May 2016 the then secretary of the owners' corporation requested further information about the installation of the proposed air conditioning. 3. On 22 May 2016 the applicant amended her application for consent to install an air conditioner in her lot. 4. The applicant withdrew her application for consent to install the air conditioner. 5. On or about 20 May 2017 the applicant renewed her application for consent to install an air conditioner. On 1 June 2017 the strata committee the application and the minutes of the meeting record: "The owner responded to questions from the Committee about her options recommended by and diagrams drawn by the installer; advised that the bylaws allow either option; understood responsibilities under the bylaws about common property; that applications are on a case by case" and "The Strata Committee advised the owner to investigate further options for the installation of the reverse cycle air-conditioning system to avoid the use of common property and table at the next strata committee meeting for discussion. Motion deferred until further information is relayed to the committee to advise if approval is given." 1. On 29 June 2017 further considered the renewed application and the minutes of the meeting record: "It was noted that an owner cannot alter or add to common property nor can the Strata Committee authorise this action. The owner was advised to alter the location of the external unit of the air conditioning unit within their lot space for the Committee to consider the application, or submit the current application to the Owners' Corporation at the next General Meeting for consideration by special resolution as per s 108 do the Strata Schemes Management Act 2015". 1. The applicant put forward a motion before a general meeting of the owners' corporation which was considered at a meeting on 16 November 2017 for consent to install a reverse cycle split system air conditioner. The owners corporation refused the application. 2. The motion was supported by an explanatory note which included the applicant's statement that: * Installation would be by Jaicrest Air, in accordance with its quotation of 19 May 2017 (option 1) and plan attached to the application to the owners' corporation. That is, the air conditioning condenser was proposed to be placed on a pre-cast slab and feet or brackets and positioned on anti-vibration mounts on the external side boundary wall of Lot 141; * The system to be installed is "the most quiet domestic system currently supplied by Jaicrest Air" and that it was rated at 48dBA and operate at 45dBA when programmed; * The external condenser unit and cable were proposed to be in keeping with the rest of the strata scheme and other air-conditioning units in the scheme and colour matched to the external walls of the scheme to reduce the visibility of the condenser; * The impact on penetration to the common property walls would be minimal with minor fixings to the wall and the applicant accepting responsibility for any damage to the common property; * The installation works would be carried out by experienced contractor who had previously installed air conditioners for other lot owners in the scheme, only taking a day for installation with work to be undertaken between 9am and 4pm on a Monday to Friday; * The applicant agreed to adhere to existing special by-law 5 (air conditioning) to the extent that it does not conflict with the SSMA; * The applicant proposed that she would be responsible for the repairs and maintenance of all parts of the air conditioning system including those parts on common property. 1. The evidence of the Rachel Keech, a member of the owners' corporation committee and previously the secretary of the strata committee, in her statutory declaration made 23 May 2018 is that she has considered "a number of applications for the installation of air-conditioning units in lots". Without providing particulars of those units Ms Keech makes a bold statement that " all of those units have had external units and all pipework, ducting and cabling installed in the cubic space of the lot". Ms Keech then gives evidence of some particular lots where air conditioning has been installed which she has visited on 4 and 6 May 2018. 2. There is no evidence as to the reasons adduced in evidence as to why the general meeting of the owners refused to consent to the applicant installing her air conditioning including locating it on the common property adjacent to the external wall. 3. Although on 27 January 2018 Mr Halpin, Chairperson of the Strata Scheme, to the applicant's solicitor expressed a view that consent ought to be given to the applicants proposal including the use of common property at the front of the building, these reasons for supporting the application suffer from the same difficulty that Ms Keech's submission opposing the application. Neither were the reasons given at the General Meeting in refusing the application and both post-date the meeting. Determination 1. The applicant seeks a declaration by the Tribunal that the works for the installation of the air conditioner are minor renovations for the purposes of reg 28(d) and s 110(3)(f). 2. If the Tribunal considers that the owners corporation has unreasonably refused its consent and the work relates to minor renovations it may order the owners corporation to consent to the work proposed. 3. The respondent submits that the proposed works are not minor works because: 1. The Tribunal must consider s 110(7)(c) that if the proposed works change the external appearance of a lot then they are excluded from the definition of minor alterations. 2. If so, then the applicant will need to obtain an exclusive use by-law to allow for the installation of the air-conditioning condenser on common property and a special resolution of the owners' corporation will need to be considered such a by-law. 1. The applicant argues that the proposed location of the condenser will be shielded by vegetation from street view and that the colour of the condenser and piping is intended to be colour coordinated with the building colour to camouflage to minimise visual impact. 2. Ross Halpin, the Chairperson in his email of 27 January 2018 confirms that "the vegetation covers the unit [condenser] if it is placed on the outside wall and plants can be added…with the 20mm conduit running to the power source in the courtyard would not be noticeable". 3. The Tribunal is satisfied that the installation of the condenser unit on the common property would not change the external appearance of the lot. The vegetation already exists and proposed location of the condenser is hidden by the vegetation, confirmed by Mr Halpin. 4. The Tribunal declares that the installation of the air-conditioning unit for Lot 141 is a minor renovation for the purpose of s 110 of the SSMA. Owners Corporation unreasonableness in refusing its consent to allow minor works to be carried out 1. In the absence of a definition of unreasonableness in the SSMA the Tribunal is guided by David J in Curragh Coal Sales Co Pty Ltd v Wilcox (1984) FCR 46, that the term should be given its everyday meaning. 2. The Tribunal has already noted that the respondent did not record any reason in any of the minutes for refusing the application. 3. It is reasonable and, indeed would be procedurally fair, for the reasons for refusal by the other lot owners to be recorded so that the applicant had knowledge of the reasons for refusal. 4. The applicant's explanatory note given by her before the general meeting on 16 November 2017 to the owners corporation in support of her application for approval satisfies the criteria required by s 110(4) and (5). 5. S 110(2) provides that the approval could not be unreasonably withheld by the owners corporation. The applicant has sought permission to obtain approval firstly in 2016, cooperated with the owners corporation, providing further information requested by the Secretary, then withdrawing the application, to have a renewed application on 20 May 2017 deferred at a meeting on 1 June 2017 and then no decision made but a request was made that the applicant to explore alternative locations for the condenser. Ultimately, on a further application refused on or about 16 November 2017, without the meeting recording reasons for refusal. On any consideration of how the owners corporation has dealt with the applications made by the applicant the only finding that can be made is that the respondent acted unreasonably in considering the applications. The purpose and intent of the provision of the SSMA for minor alterations was to facilitate the type of application made by the applicant. The respondent obstructed the application in contravention of the SSMA and has failed to properly articulate its reasons for doing so. The respondent has acted unreasonably and the applicant is entitled to the orders she seeks. Orders 1. The Tribunal: 1. Pursuant to s 127 of the SSMA declares that the applicant, Kimberley-Ann Ashton Ashbee's proposed air-conditioning installation for Lot 141 Strata Plan 11761 is a minor renovation for the purposes of s 110 of the SSMA; 2. Pursuant to s 126(1) of the SSMA orders that on or before 22 December 2018, The Owners- Strata Plan No 11761 consent to the air-conditioning installation for Lot 141 work proposed by the applicant, Kimberley-Ann Ashton Ashbee, in her motion put to the general meeting of the owners corporation on 16 November 2017, including the minor renovations to the common property directly affecting the owner's Lot 141 on the terms set out in the explanatory note prepared by the applicant. 3. Pursuant to s 126(5) of the SSMA orders that the applicant, Kimberley-Ann Ashton Ashbee, is to be responsible for the ongoing repair and maintenance of the additional property arising from the minor renovation approved under these orders. ********** 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: 28 March 2019