David John Malcolm and Nancy Roslyn Malcolm v OC SP 81674
[2014] NSWCATCD 130
•04 February 2014
NSW Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: David John Malcolm and Nancy Roslyn Malcolm v OC SP 81674 [2014] NSWCATCD 130 Hearing dates: 15 October 2013 Decision date: 04 February 2014 Before: R Buckley, Senior Member Decision: 1.The order made in SCS 12/64808 is revoked.
2.Pursuant to s 153(1) of the Strata Schemes Management Act 1996 (the SSMA") the resolution recorded in the minutes of an Extraordinary General Meeting of Owners Corporation Strata Plan 81674 held on 7 September 2011 and dated 9 September 2011 is invalidated.
3.Pursuant to s 169(2) of the SSMA, the Owners Corporation Strata Plan 81674 is ordered to refrain from taking any step, action, or decision that in any way approves any common property parking proposal, plan or procedure that is inconsistent with the requirements and directions set out and marked on the plan of Domicile Drafting and Design for Proposed Unit Development lot 14 Section 1 DP 2029, 33 Martindale Street, Wallsend dated 19 June 2008 and bearing endorsement of Newcastle City Council's consent dated 26 June 2008 as "Visitor Parking 1" and "Visitor Parking 2" so as to comply with the requirements of development application approval DA 08/0133 made pursuant to s 81 of the Environmental Planning Assessment Act 1979.
4.The Owners Corporation Strata Plan 81674 is ordered by not later than 22 February 2014 pursuant to s 169(2) of the SSMA to paint or otherwise permanently treat, mark or differentiate the concrete parking area of the strata scheme, as is marked on the plan of Domicile Drafting and Design for Proposed Unit Development lot 14 Section 1 DP 2029, 33 Martindale Street, Wallsend dated 19 June 2008 and bearing endorsement of Newcastle City Council's consent dated 26 June 2008 as "Visitor Parking 1" and "Visitor Parking 2", so as to comply with the requirements of development application approval DA 08/0133 made pursuant to s 81 of the Environmental Planning Assessment Act 1979.
Catchwords: Invalid resolution, resolution made in contravention of law Legislation Cited: Strata Schemes Management Act 1996
Environmental Planning and Assessment Act 1979Cases Cited: Gooden v Owners Corporation SP 2629 (Strata and Community Schemes) [2011] NSW CTTT 345
Owners SP 56911 v Stricke (Strata and Community Schemes) [2012] NSW CTTT 392
Owners Corporation Strata Plan 7596 v Risidore & Ors [2003] NSWSC 966
Zouk v The Owners Corporation Strata Plan 4521 and Anor [2005] NSWSC 845Category: Principal judgment Parties: David John Malcolm and Nancy Roslyn Malcolm (Applicants)
OC SP 81674 (Respondents)File Number(s): SCS 13/28071
reasons for decision
BACKGROUND
The applicants appeal against the order of an Adjudicator made on 2 May 2013 in SCS 12/64808 dismissing their application for orders.
The orders sought in the adjudication are now sought in the appeal are in the following terms:
"(i) That the resolution recorded in the Minutes of an Extraordinary General Meeting of the Owners Corporation held on 7 September 2011 and dated 9 September 2011 is invalid by virtue of section 153 of the Strata Schemes Management Act 1996 ("Act").
(ii) That in addition or in alternative to order 1, and pursuant to the adjudicator's general powers contained in section 138(1) of the Act, the resolution recorded in the Minutes of an Extraordinary General Meeting of the Owners Corporation held on 7 September 2011 and dated 9 September 2011 is invalid.
(iii) That, pursuant to the adjudicator's powers under s.169 of the Act to make ancillary orders, the Owners Corporation be restrained from granting a licence or licences to or otherwise allow an owner or occupant of, or visitor to, a lot to park or stand a vehicle on the Common Property except to permit a vehicle to be loaded or unloaded or washed and cleaned, but only for so long as is reasonably necessary for those activities to be carried out.
(iv) That, pursuant to the Adjudicator's general powers contained in s.138(1) or the Adjudicator's powers to make ancillary orders under section 169 of the Act, the Owners Corporation paint or otherwise permanently treat, mark or differentiate the concrete in the area marked on the plan of Domicile Drafting and Design for Proposed Unit Development Lot 14 Section 1 DP 2029, 33 Martindale Street, Wallsend dated 19 June 2008 and bearing endorsement of Newcastle City Council's consent dated 26 June 2008 ("the Plan") as "Visitor Parking 1" and Visitor Parking 2" so as to comply with the Development Consent DA 08/0133.
(v) Such other orders as are necessary or appropriate to give effect to Orders 1 - 4 if and as made. "
The appeal is lodged pursuant to s 177 of the SSMA. The appellants have lodged and seek to rely upon new evidence pursuant to s 181(2) of the SSMA. In exercise of the Tribunal's discretion, the following new evidence was admitted:
i. Statement of David John Malcolm dated 23 August 2013, with five attachments respectively marked "A" - "E".
ii.Statement of Nancy Roslyn Malcolm dated 23 August 2013 to which is attached four annexures respectively marked "A" - "D".
The hearing proceeded on 15 October 2013. The applicants were legally represented. There was no appearance on behalf of the Owners Corporation nor had any documents, statement or submission been lodged on its behalf. The owner of lot 3, a Mrs Heather Henry, appeared. Her two submissions and the statement of her daughter were accepted and read in evidence. Mrs Henry did not have the authority to act on behalf of the Owners Corporation and was not a party to the appeal.
The appeal proceeded subsequent to an investigation being carried as prescribed set out in s 186(1) of the SSMA. The appeal was conducted as a hearing de novo in accordance with the principles comprehensively set out in the decision of Member Meadows in Owners SP 56911 v Stricke (Strata and Community Schemes [2012] NSW CTTT 392. This decision and the reasoning reconciles any perceived inconsistencies in approach arising from the decisions of Zouk v The Owners Corporation of Strata Plan 4521 and Anor [2005] NSW SC 845 and the previous decision of Owners Corporation Strata Plan 7596 v Risidore & Ors [2003] NSW SC 966.
THE EVIDENCE
In addition to the documentary evidence submitted at the adjudication, and the further evidence lodged and served in accordance with s 181(2) of the SSMA by the applicants, the applicant, David John Malcolm, was called to give oral evidence.
It is submitted by the applicants that the resolution adopted by the Owners Corporation at an Extraordinary General Meeting conducted on 7 September 2011, the subject of minutes of that meeting dated 9 September 2011 (Ex. 3 to the adjudication submissions of the applicants), detail the resolution of a proposal, ostensibly discussed by the owners present at the meeting. The motion related to the use of the common property, namely the parking areas of the strata scheme. The proposals represented a significant alteration in how and where visitors and the owners of the various lots could park. The terms of the proposed resolution and the ultimate passage of the resolution can properly be described as falling within the powers that can be exercised by an Owners Corporation pursuant to s 65B of the SSMA. This section is in the following terms:
65B Owners corporation may grant licence to use common property
(1) An owners corporation may grant a licence to an owner of a lot to use common property in a particular manner or for particular purposes if the owners corporation has approved the granting of the licence by special resolution passed at a general meeting of the owners corporation.
(2) A licence may be granted subject to terms and conditions.
Note: Division 4 of Part 5 of Chapter 2 enables owners corporations to make by-laws granting exclusive use rights and special privileges (including licences) in relation to common property.
The section clearly requires that any such direction or grant of a licence or other usage can only be made pursuant to a special resolution. The provisions relevant to the passage of a special resolution have not, reliant on the evidence of Mr and Mrs Malcolm and evidenced by the minutes of the EGM, been adhered to. The resolution is invalid.
The relevant strata scheme is relatively small, with four units each having a designated undercover garage. In the course of the construction of the strata scheme a design plan was prepared for parking and vehicular passage arrangements on a concreted parking area on the western side of the strata scheme. The relevant Development Application which is in evidence, at Clause 3.16, clearly established specific parking requirements, including compliance with Element 4.1 of the Council's Newcastle DCP 2005 and the requirement to comply with Australian Standards 2890.1 - 2004 "Parking facilities - Part 1 off street car parking". The plan prepared by Domicile Drafting and Design was an essential component of the DA approval process. I have considered the evidence, and note the steps taken by the Owners Corporation pursuant to the resolution of 7 September 2011, overturn the previously endorsed planning approval, and are certainly not compliant with any of Clause 3.16 of the Development Application, the Domicile Drafting and Design parking plan, or the relevant Australian Standard.
The design plan, incorporated into the development approval, provides at clause 4.1.5(c)(v) of Element 4.1 that "access ways and structures are to be designed so that vehicles are able to enter or exit in a single turning movement in a forward direction".
AS 2890 provides at Clause 3.2.2 that "[reversing] movements to public roads shall be prohibited wherever possible."
The plans endorsed by the Owners Corporation on 7 September 2011, apart from being generally non-compliant [9], specifically failed to comply with these two requirements [10] and [11].
This is not a case where as decided by the adjudicator that the Tribunal lacked jurisdiction because any enforcement of a development application entitlement would need to be pursued in the Land and Environment Court. I respectfully disagree with that position. It was essential for the Owners Corporation to comply with a law, that being the relevant provisions of the Environmental Planning and Assessment Act. If it lawfully had acted so as to incorporate a new plan into the parking arrangements, the only way it could do so, was not by arbitrarily passing an invalid resolution, but by making an application under s 96(2) of the Environmental Planning and Assessment Act 1979. I accept and adopt the submissions made on behalf of the applicants at [20] and [21].
"[20] The Resolution, by permitting the occupants of units 2, 3 and 4 to park motor vehicles "behind" the garage door of their respective units, prevents the Concrete Turn Apron from being used for its intended purpose, that is, to allow the occupants of the units to manoeuvre their motor vehicles into a position to enable egress from the Strata Scheme in a forward direction. Accordingly,whilstever vehicles are parked on the Concrete Turn Apron, the ability of one or more occupiers of units 2, 3 or 4 to so manoeuvre their vehicles is restricted and they will be required to reverse their motor vehicle along the length of the concrete drive either when entering or exiting the Strata Scheme with the inherent risk to other occupiers and visitors to the Strata Scheme. Exhibited to these submissions as Ex. 7 and 8 are photographs showing the Concrete Turn Apron with vehicles parked in front of the garages of unit 4 and unit 3 respectively.
[21] In addition to the safety of the residents, visitors and other persons on the common property, the Strata Scheme is within a School Zone being directly opposite Wallsend Public School. The reversing of vehicles in either exiting or entering the Strata Scheme across a footpath and in part on or onto a public road where school children may be traversing the same poses a risk to the pupils of the school and pedestrians generally, and one which compliance with the intent of the Development Consent would ameliorate".
As part of the further evidence, annexure "E", to the statement of Mr Malcolm is a letter of 9 July 2013 from the Newcastle City Council addressed to The Proprietors of Strata Plan 81674.
The third paragraph of that letter is in the following terms:
"The alleged formalisation of alternate parking arrangements by strata resolutions not only remove the required visitor parking but also interfere with turning circles within the common driveway, requiring vehicles to exit the premises in a reverse direction. This creates not only a potential danger, but is a breach of the conditions of the development consent, an offence under the Environmental Planning and Assessment Act 1979."
It finally must be noted that as part of the additional evidence, the applicants have submitted a copy of the strata schemes all risks insurance policy. The terms of the policy are strict and ostensibly not been complied with. As a consequence of the actions of the Owners Corporation in passing the subject resolution and taking steps pursuant thereto to alter the parking and driving arrangements, it is probable, in the event of a future claim made in accordance with the policy arising out of a parking or traffic incident related to the new arrangements, that indemnity under the policy would be denied. At page 4 of the policy under the heading of "certain things you must do" at paragraphs 2, 4 and 5, the following requirements are set out:
"2. Make sure that anyone doing anything on your behalf obeys all laws.
4. Take reasonable precautions to prevent anything which could result in a claim under the insurance policy.
5. Tell us as soon as possible of anything that changes the facts or circumstances relating to your insurance."
Whereas it can be appreciated that parking arrangements for both lot owners and visitors within a relatively contained parking area in a small strata scheme may, from time to time, cause problems, it is neither within the power of an Owners Corporation, nor is it advisable to take steps which are in contravention of both the SSMA and the Environmental Planning and Assessment Act 1979, and which also increase the risk of personal injury to not only visitors but also lot owners, and thereby may also expose each of the lot owners to a possibly quite considerable financial penalty resulting from a hypothetical denial of insurance indemnity.
ORDERS
The order made in SCS 12/64808 is revoked.
Pursuant to s 153(1) of the Strata Schemes Management Act 1996 (the SSMA") the resolution recorded in the minutes of an Extraordinary General Meeting of Owners Corporation Strata Plan 81674 held on 7 September 2011 and dated 9 September 2011 is invalidated.
Pursuant to s 169(2) of the SSMA, the Owners Corporation Strata Plan 81674 is ordered to refrain from taking any step, action, or decision that in any way approves any common property parking proposal, plan or procedure that is inconsistent with the requirements and directions set out and marked on the plan of Domicile Drafting and Design for Proposed Unit Development lot 14 Section 1 DP 2029, 33 Martindale Street, Wallsend dated 19 June 2008 and bearing endorsement of Newcastle City Council's consent dated 26 June 2008 as "Visitor Parking 1" and "Visitor Parking 2" so as to comply with the requirements of development application approval DA 08/0133 made pursuant to s 81 of the Environmental Planning Assessment Act 1979.
The Owners Corporation Strata Plan 81674 is ordered by not later than 22 February 2014 pursuant to s 169(2) of the SSMA to paint or otherwise permanently treat, mark or differentiate the concrete parking area of the strata scheme, as is marked on the plan of Domicile Drafting and Design for Proposed Unit Development lot 14 Section 1 DP 2029, 33 Martindale Street, Wallsend dated 19 June 2008 and bearing endorsement of Newcastle City Council's consent dated 26 June 2008 as "Visitor Parking 1" and "Visitor Parking 2", so as to comply with the requirements of development application approval DA 08/0133 made pursuant to s 81 of the Environmental Planning Assessment Act 1979.
For the reasons enunciated the appeal is upheld and orders are made as set out above.
(Signed)
Richard F Buckley
Senior Member
New South Wales Civil and Administrative Tribunal
4 February 2014
I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.
Registrar
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
Decision last updated: 11 September 2014
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