NCAT: You Can’t Talk Your Way Out of By-laws

A recent decision from the NSW Civil and Administrative Appeal Panel has emphasised the importance of having a basic understanding of how the law impacts your strata scheme.

Eadie v Harvey [2017] NSWCATAP 201 (18 October 2017) concerned a two lot strata scheme and the use of a driveway which was partly common property, partly the property of Lot 2.

The appellants, the owners of Lot 1, had reached a verbal agreement with the previous owners of Lot 2, which they thought gave them exclusive use of the common property part of the driveway which connected their house to the road. The owners of Lot 2 used a back entrance way off a laneway for vehicular access.

This arrangement continued after the respondent purchased Lot 2, and until relations between the two lot owners turned sour.

The respondent informed the appellants that they should no longer park their cars on the common property except on a temporary basis. The appellant went to the Tribunal seeking an order for the creation of a by-law making the common property available for the appellant’s use, to be shared with the respondent as a thoroughfare for purposes of collecting mail, taking out the bins, and the like.

Both parties assumed there were no official by-laws for the scheme, and none were put into evidence. The Tribunal noted that this was incorrect, but in the absence of any relevant evidence, the Tribunal could not refer to them to affect the decision in the case.

Under the Strata Schemes Management Act 2015 (“the Act”), the Tribunal may make an order granting a licence to use common property (s131) or an order prescribing a by-law change relating to common property rights (s149). However to make either order, an applicant must have previously applied to the Owners Corporation for either such a licence or by-law change, and been ‘unreasonably refused’.

At first instance the Tribunal found that such applications had not been made, and thus they had no power to make either such order.

The appellant did not appeal these findings, and on this basis alone the Appeal Panel held that the appeal must fail. Where these pre-conditions were not fulfilled, there was nothing the Tribunal could do

Additionally, the verbal agreement had no force as an amended or added by-law, nor could it effect a repeal of a by-law, as it was not notified to the Registrar-General as required by s141 of the Act.

The appeal grounds that the appellant did rely on were criticised by the Appeal Panel as largely questions of fact which were either unsubstantiated or irrelevant.

In response to ground 5 which was intriguingly phrased as ‘This case was not a black and white strata ruling decision’, the Appeal Panel responded simply with ‘This is not a ground of appeal.’

Overall, the applicant’s case was hampered by their incomplete information about their by-laws and their lack of understanding of the necessary procedures to change them. Had they registered a by-law giving Lot 1 special rights over the common property driveway when they enjoyed harmonious relations with the owners of Lot 2, they may have avoided the dispute.

The information contained in this article is not legal advice. This article is intended to provide general information in summary form only. You should not rely on the content of this article as legal advice. If you would like advice specific to you and your situation, please contact us.

Posted in LCOR