The following is a brief rundown on four interesting property and strata law cases determined in New South Wales in 2018:
- In Plimpton Park Developments Pty Ltd v SAS Trustee Corporation [2018] NSWSC 461, the NSW Supreme Court held that:
- where a lot (Lot A) is burdened by a right of carriageway benefiting another lot (Lot B), and
- Lot B is consolidated with another lot (Lot C) to form one larger lot (Lot B + Lot C = Lot D),
- Lot D has the benefit of the right of carriageway burdening Lot A only to the extent of that part of Lot D being the former Lot B – the benefit of the right of carriageway did not transfer to the entirety of Lot D upon the consolidation of Lots B and C.
- In Stolyar v Towers [2018] NSWCA 6, the NSW Court of Appeal held that an easement for vehicle parking and garaging burdening the applicant’s land and benefiting the respondent’s land was valid as the applicant did not sufficiently establish that the easement substantially deprived it of its rights or proprietorship or possession in respect of the easement area. Further:
- the easement did not amount to joint occupation of the easement area;
- the easement did not give exclusive use of the easement area to the respondent, and
- the applicant retained reasonable use of the easement area in its entirely, despite the rights of the respondent under the easement.
- In The Owners – Strata Plan 30198 v Barnes [2018] NSWCATCD 8, the NSW Civil and Administrative Tribunal held that unapproved work undertaken by the respondent to a courtyard area of her lot involving an installation of an entertainment area, deck and retaining wall was not contrary to a by-law prohibiting an owner from “maintain[ing] within [its] lot anything visible from outside the lot that, viewed from the outside of the lot, is not keeping with the rest of the building”. The Tribunal considered the words “in keeping with the rest of the building” and:
- observed that the Strata Schemes Management Act 2015 (NSW) includes a lot in a strata scheme in the definition of “building”; and
- held that “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” – in this case, the Tribunal observed photographs of other lot courtyards, considered their visual differences and concluded that, despite these differences, there was a uniformity of appearance between the lots based on the construction materials and garden plants.
- In Yardy v Owners Corporation SP 57237 [2018] NSWCATCD 19, the NSW Civil and Administrative Tribunal held that a by-law imposing a blanket prohibition on pet ownership was invalid. While the Tribunal held that such a by-law was within the power of an owners corporation under section 136 of the Strata Schemes Management Act 2015 (NSW) in that it was a by-law in relation to the “management of control of the lots” in the scheme, it failed the requirements in section 139(1) of the Act that a by-law not be unjust. The Tribunal made the following observations about the by-law in relation to section 139(1):
- “unjust” – The submission of the applicant that “contemporary community standards” would judge such a prohibitive by-law as “contrary to lot owners’ basic habitation rights” was accepted by the Tribunal.
- “harsh” – The Tribunal held that the by-law was a “blunt instrument” that, in addition to the prohibition, “provide[d] no means by which the special circumstances of particular lot owners might be considered”.
- “unconscionable” – The Tribunal held that the by-law “quite unreasonably and unnecessarily precludes the exercise of a right of habitation…considere[d] part of contemporary community standards associated with the rights of owners and occupiers…in strata schemes”, and “provide[d] no opportunity for consideration to be given to the rights and needs of individual owners.
- “oppressive” – The Tribunal held that the by-law “[did] not involve or permit a balanced consideration of the interests and needs of all lot owners or occupiers and operate[d] only in the interest of lot owners…opposed to pet ownership”.