Franklin v The Owners—Strata Plan No. 87497

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

Franklin v The Owners—Strata Plan No. 87497 [2022] NSWCATCD 210

Hearing dates:

23 November 2022

Date of orders:

20 December 2022

Decision date:

20 December 2022

Jurisdiction:

Consumer and Commercial Division

Before:

S Hanstein, General Member

Decision:

Pursuant to s 150(1) of the Strata Schemes Management Act 2015, paragraphs (1) and (2) of by-law 25 are declared to be invalid.

Catchwords:

LAND LAW — Strata title — By-laws — requirement that by-law not be harsh, unconscionable or oppressive — where by-law prohibits cooking — whether by-law harsh, unconscionable or oppressive

Legislation Cited:

Strata Schemes Management Act 2015

Cases Cited:

Cooper v The Owners-Strata Plan No 58068 [2020] NSWCA 250

Coscuez International Pty Ltd v The Owners-Strata Plan No 46433 [2022] NSWCATAP 147

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Lewis Elliot Franklin (Applicant)
The Owners—Strata Plan No. 87497 (Respondent)

Representation:

W Franklin (Applicant)
Lake Group Strata, Mr Graham (Respondent)

File Number(s):

SC22/35101

Publication restriction:

Nil

REASONS FOR DECISION

1. The applicant is an owner of a lot in the strata scheme, and the respondent is the Owners Corporation.

2. The strata scheme comprises 87 residential lots and 13 utility lots. The building was previously an aged care facility.

3. A number of issues were resolved between the parties prior to the commencement of the formal hearing. Subsequently the parties also reached agreement in respect of use of a door to the building and the Tribunal notes, by consent, the Owners Corporation will provide to the applicant a swipe card to unlock the exit door on the second floor, to enable him to use that door to facilitate the use and enjoyment of his lot in his personal circumstances. The Tribunal notes also that there may not presently be a swipe card reader on the outside of the door and that the Owners Corporation may install one if the applicant were to pay for that to occur.

4. The issue remaining for determination is whether the Tribunal should, pursuant to section 150 of the Strata Schemes Management Act 2015 (“Act”), declare paragraphs (a) and (b) of by-law 25 to be invalid.

5. By-law 25 states:

25 Cooking within any lot

(1) Cooking of any nature including toasting bread will not be permitted in any lot unless the lot has cooking facilities installed by the original Owners of the strata.

(2) The use of a kettle will be permitted.

(3) Should any lot owner or occupant engage in cooking within the lot, which then causes a smoke alarm to be triggered resulting in the Fire Brigade attending at the building, then the lot owner will be responsible for reimbursement to the Owners Corporation for any charge levied against the Owners Corporation by New South Wales Fire Brigade.

Applicant’s case

6. The applicant’s evidence and submissions included the following.

7. The building was originally an aged care facility and has a commercial kitchen for shared use by the building’s occupants. The building is now a residential building…