Stagg v Strudwick and Duncan-White

[2021] NSWCATCD 140

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Stagg v Strudwick & Duncan-White [2021] NSWCATCD 140

Hearing dates:

5 August 2021

Date of orders:

11 October 2021

Decision date:

07 October 2021

Jurisdiction:

Consumer and Commercial Division

Before:

Senior Member K Ross

Decision:

1 Maureen Strudwick and Fiona Duncan-White must, on or before 24 December 2021, at their own cost and in a proper and workmanlike manner, reinstate the common property garden, using plants:

(1) which are consistent with plants in the streetscape in the vicinity of the property, and

(2) which have non invasive roots so as not to interfere with the sewer, and

(3) which do not present a risk of fall to users of the adjacent footpath.

2 Maureen Strudwick and Fiona Duncan-White must not cause the common seal of SP 66508 unless pursuant to a valid resolution of the Owners – SP 66508.

Catchwords:

LAND LAW — Strata title — Unapproved work to common property garden — Order for reinstatement, unapproved use of common seal

Legislation Cited:

Strata Schemes Management Act 2015 (NSW)

Cases Cited:

Nil

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Ross Stagg (First Applicant)
Lynette Stagg (Second Applicant)
Maureen Strudwick (First Respondent)
Fiona Duncan-White (Second Respondent)

Representation:

First and Second Applicant (Self-represented)
First and Second Respondent (Self-represented)

File Number(s):

SC21/18557 & SC21/23535

Publication restriction:

Nil

REASONS FOR DECISION

Application

1. Mr and Mrs Stagg are the owners of lot 1 (townhouse 3) in a 3 lot strata scheme in East Gosford. Ms Duncan-White is the owner of lot 2 (townhouse 2) and Ms Strudwick is the owner of lot 3 (townhouse 1). Mr and Mrs Stagg complain that Ms Duncan–White and Ms Strudwick engaged a gardener to remove plants from the common property garden without authority. Mr and Mrs Stagg also say that the common seal of the Owners Corporation was affixed to an application to the Council in respect of the removal of the trees/ bushes, without a resolution of the Owners Corporation. They seek to have the plants replaced by Ms Duncan–White and Ms Strudwick at their expense.

2. Ms Duncan–White and Ms Strudwick concede that they had the plants removed, but say that there were good reasons for them to do so. These included that there is a breakdown in communication between them and Mr and Mrs Stagg, and that the trees were interfering with the sewer, required maintenance, and were causing mould in their townhouses.

3. Mr and Mrs Stagg dispute the reasons advanced by Ms Duncan–White and Ms Strudwick.

4. On 1 June 2021 the Tribunal made an interim order that the respondents not remove or trim trees or bushes on common property, pending further order of the Tribunal (“the interim order”). The interim order was extended on 21 June 2021 and 5 August 2021, pending the determination of this dispute.

The evidence

5. Whilst the relationship between the applicants and the respondents is strained, much of the relevant evidence was not disputed. I make the following findings of fact:

1. The unit entitlements in the scheme are as follows: Lot 1 - 28, lot 2 - 36, lot 3 – 36.

2. There have been ongoing disagreements in respect of gardening maintenance between Ms Duncan–White and Ms Strudwick on the one hand and Mr and Mrs Stagg on the other since at least 2019.

3. In early 2021, without any resolution of the Owners Corporation, Ms Duncan–White and Ms Strudwick engaged a contractor to clear the common property garden of trees and bushes.

4. On 21 April 2021 the contractor employed by Ms Duncan–White and Ms Strudwick attended and removed a number of shrubs and trees from the common property garden.

5. Ms Duncan–White and Ms Strudwick state that they intended that the removed plants be replaced with a low maintenance garden, after the soli had been mulched and conditioned.

6. Without any resolution of the Owners Corporation the common seal was affixed by Ms Duncan–White to a Central Coast Council Exempt Tree Works statement, purporting to evidence the consent of the Owners Corporation to the removal of the trees. The applicants attribute to the respondents an intention to mislead the Council. The respondents refute that intention.

7. The respondents provide statements from 3 neighbours expressing gratitude for the removal and pruning of the trees and bushes.

The law

6. The following provisions of the Strata Schemes Management Act 2015 are relevant to the resolution of this dispute:

106 DUTY OF OWNERS CORPORATION TO MAINTAIN AND REPAIR PROPERTY

(1) An owners corporation for a strata scheme must properly maintain and keep in a state of good and serviceable repair the common property and any personal property vested in the owners corporation.

(2) An owners corporation must renew or replace any fixtures or fittings comprised in the common property and any personal property vested in the owners corporation.

(3) This section does not apply to a particular item of property if the owners corporation determines by special resolution that--

(a) it is inappropriate to maintain, renew, replace or repair the property, and

(b) its decision will not affect the safety of any building, structure or common property in the strata scheme or detract from the appearance of any property in the strata scheme.

(4) If an owners corporation has taken action against an owner or other person in respect of damage to the common property, it may defer compliance with subsection (1) or (2) in relation to the damage to the property until the completion of the action if the failure to comply will not affect the safety of any building, structure or common property in the strata scheme.

(5) An owner of a lot in a strata scheme may recover from the owners corporation, as damages for breach of statutory duty, any reasonably foreseeable loss suffered by the owner as a result of a contravention of this section by the owners corporation.

(6) An owner may not bring an action under this section for breach of a statutory duty more than 2 years after the owner first becomes aware of the loss.

(7) This section is subject to the provisions of any common property memorandum adopted by the by-laws for the strata scheme under this Division, any common property rights by-law or any by-law made under section 108.

(8) This section does not affect any duty or right of the owners corporation under any other law.

Changes to common property

108 CHANGES TO COMMON PROPERTY

(1) Procedure for authorising changes to common property An owners corporation or an owner of a lot in a strata scheme may add to the common property, alter the common property or erect a new structure on common property for the purpose of improving or enhancing the common property.

(2) Any such action may be taken by the owners corporation or owner only if a special resolution has first been passed by the owners corporation that specifically authorises the taking of the particular action proposed.

Note : If the special resolution is a sustainability infrastructure resolution fewer votes may be needed to pass it. See section 5(1)(b).

(3) Ongoing maintenance A special resolution under this section that authorises action to be taken in relation to the common property by an owner of a lot may specify whether the ongoing maintenance of the common property once the action has been taken is the responsibility of the owners corporation or the owner.

(4) If a special resolution under this section does not specify who has the ongoing maintenance of the common property concerned, the owners corporation has the responsibility for the ongoing maintenance.

(5) A special resolution under this section that allows an owner of a lot to take action in relation to certain common property and provides that the ongoing maintenance of that common property after the action is taken is the responsibility of the owner has no effect unless--

(a) the owners corporation obtains the written consent of the owner to the making of a by-law to provide for the maintenance of the common property by the owner, and

(b) the owners corporation makes the by-law.

(6) The by-law--

(a) may require, for the maintenance of the common property, the payment of money by the owner at specified times or as determined by the owners corporation, and

(b) must not be amended or repealed unless the owners corporation has obtained the written consent of the owner concerned.

(7) Sections 143 (2), 144 (2) and (3) and 145 apply to a by-law made for the purposes of this section in the same way as they apply to a common property rights by-law.

Note : A new by-law or other changes to the by-laws for a strata scheme must be approved by a special resolution of the owners corporation (see section 141).

Consideration

The unauthorised removal of plants and trees from the garden

7. It is apparent from an examination of the photographs provided by both parties that the work carried out by the contractor engaged by the respondents included both maintenance work, and work which resulted in changes to the common property. The Owners Corporation has an obligation to maintain the common property garden (s106). However, the removal of trees, or changes to the style of plants, requires a special resolution of the Owners Corporation (s108).

8. There are a number of aspects of this dispute where there is no agreement between the parties. The respondents point out that the Council has attended several times in respect of complaints of a blocked sewer. However, there is no evidence to support a finding, on any definitive basis, that the roots of the cheese tree were causing the sewer blockage. On the other hand, it is possible that they were. There is simply no evidence either way (by way of a camera inspection for example).

9. The respondents allege that the garden was overgrown and causing safety concerns for persons using the footpath. The applicants dispute that there were any safety issues, and say that they have expertise in assessing occupational health and safety risks. The respondents’ views appear to be shared by the three neighbours who provided letters supporting the work done at the respondents’ direction. I am satisfied that maintenance was required to ensure the safety of users of the footpath.

10. These issues are not relevant to a determination as to whether the work was carried out with the consent of the Owners Corporation. It clearly wasn’t. However these issues are relevant to the exercise of the Tribunal’s discretion in respect of the orders which should be made to resolve this dispute.

11. I am satisfied that the work which was carried out was not authorised by the Owners Corporation. I am satisfied that it is appropriate to order the respondents, at their cost, to replace the removed plants. I am satisfied that the replacement plants should be similar to other plants in the locality and the consistent with the streetscape of the property, and should be chosen to ensure that they do not present an occupational health and safety risk (eg by dropping flowers which would be slippery on the footpath), or have intrusive root systems likely to cause blockage of the sewer. However, in recognition that maintenance of the garden was required, and that the Owners Corporation will have the benefit of the work to be paid for by the respondents, there is no requirement for mature trees to be used.

The common seal

12. I am satisfied that the common seal was affixed to the Central Coast Council Exempt Tree Works statement without a resolution of the Owners Corporation. The respondents should ensure that in future the common seal of the Owners Corporation is not affixed to any document unless pursuant to a resolution of the Owners Corporation.

Compulsory appointment of strata managing agent

13. In their submission, the respondents request that the Tribunal make an order appointing a compulsory strata managing agent. I have given careful consideration to whether I should do so. Such an order can be made by the Tribunal on its own motion. I have genuine concerns that the evidence indicates that the strata scheme is not functioning satisfactorily. However as this matter was not discussed at the hearing, and as a matter of procedural fairness, I do not propose to make the order sought by the respondents. If the parties cannot put their differences aside, temper their communications and work together to ensure the proper functioning of the scheme in accordance with the Act, there is a real possibility that an application for the appointment of a compulsory strata manager would be successful.

Orders

1. Maureen Strudwick and Fiona Duncan-White must, on or before 24 December 2021, at their own cost and in a proper and workmanlike manner, reinstate the common property garden, using plants:

1. which are consistent with plants in the streetscape in the vicinity of the property, and

2. which have non invasive roots so as not to interfere with the sewer, and

3. which do not present a risk of fall to users of the adjacent footpath.

2. Maureen Strudwick and Fiona Duncan-White must not cause the common seal of SP 66508 unless pursuant to a valid resolution of the Owners – SP 66508.

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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: 15 February 2022