Sorrenson v Versluis

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Sorrenson v Versluis [2023] NSWCATCD 151

Hearing dates:

7 September 2023

Date of orders:

12 September 2023

Decision date:

12 September 2023

Jurisdiction:

Consumer and Commercial Division

Before:

D Robertson, Senior Member

Decision:

(1) The respondent shall remove the structure comprised of acoustic panels constructed on Lot 8 in Community Association DP 270312, to the extent that it is constructed within the semi-rural or open space zone of Lot 8, within two months from the publication of these reasons for decision.

Catchwords:

LAND LAW – Community title – Community Scheme Duties owed by proprietors – Compliance with by-laws - By-laws requiring consent to the erection of new structures – By-laws requiring landscaping and structures to comply with Design Guidelines – Respondent erected acoustic barrier on boundary of his lot without the consent of the Community Association – Whether barrier erected in breach of by-laws – Whether by-laws harsh, unconscionable or oppressive – Community Land Management Act 2021 s 128 contemplates that, in the interests of preserving the ambience and amenity of the community association, restrictions may be imposed by the by-laws of a community association upon the manner and extent to which lot owners in a community association may utilise their property.

Legislation Cited:

Community Land Management Act 1989 (NSW)

Community Land Management Act 2021 (NSW), ss 127, 128, 130, 131, 140

Strata Schemes Management Act 2015 (NSW)

Strata Schemes Management Regulation 2016 (NSW)

Cases Cited:

Cooper v The Owners – Strata Plan No 58068 [2020] NSWCA 250; 103 NSWLR 160

Gawler & Barossa Jockey Club v Gawler Town Corporation (1995) 64 SASR 598

O’Brien v Shire of Rosedale [1969] VR 112

Texts Cited:

The Macquarie Dictionary

The New Shorter Oxford Dictionary

Category:

Principal judgment

Parties:

Colin Sorrenson (Applicant)
Pieter Versluis (Respondent)
Community Association DP 270312 (Other Party)

Representation:

File Number(s):

CL 23/21655

Publication restriction:

NIL

REASONS FOR DECISION

Introduction

1. The applicant in these proceedings, Mr Sorrenson, is the owner of Lot 23 in Community Association DP 270312, also known as “The Lanes”, at Kirkham in New South Wales. The respondent, Mr Versluis, is the owner of Lot 8. The applicant seeks orders requiring the respondent to remove a structure installed by the respondent on part of his lot. The applicant relies upon section 193(1)(e) of the Community Land Management Act 2021 (NSW) (the Act).

2. The applicant alleges that the structure, which the respondent describes as sound abatement panels, has been constructed without consent and contrary to the Community Association’s Housing Design Guidelines, which the by-laws of the association require lot owners to comply with.

3. The respondent opposes the application on a number of bases.

1. That the applicant does not have standing to bring the proceedings;

2. That the structure is not prohibited by the guidelines or bylaws;

3. That the structure has the approval of the Community Association; and

4. That, if the by-laws do prevent the respondent from installing the structure, the by-laws are harsh, unconscionable and oppressive and therefore…