The Community Association DP No 270193 v Dib

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Civil and Administrative Tribunal


New South Wales

  • Amendment notes
Medium Neutral Citation: The Community Association - DP No 270193 v Dib [2022] NSWCATCD 194
Hearing dates: On the papers
Date of orders: 06 October 2022
Decision date: 06 October 2022
Jurisdiction:Consumer and Commercial Division
Before: S Thode, Adjudicator
Decision:

1.   The respondent Georgette Dib shall on or before 5 December 2022 remove the unauthorised pergola and all related work on the lot that have been installed without the approval of the applicant Community Association – DP 270193 and return the outside of the lot to its original condition and state.

Catchwords:

Community Association - unauthorised works

Legislation Cited:

Community Land Management Act 1989

Civil and Administrative Tribunal Act 2013

Environmental Planning and Assessment Act 1979

State Environmental Planning Policy (Exempt and Complying Development Codes) 2008

Cases Cited:

Challister Limited v Blacktown City Council (1992) 76 LGRA 10;

Community Association DP 270158 v O’Neill [2018] NSWCAT CD 26;

Cumerlong Holdings Pty Ltd v Dalcross Properties Pty Ltd & Ors [2010]; NSWCA 214;

Donald Crone & Associated Pty Ltd v Council of the City of Bathurst & Ors, 19 October 1988, unreported;

Marjen Pty Ltd v Coles Supermarkets Australia Pty Ltd (1996) 90 LGERA 363

Owners Corporation SP 68751 v Community Association DP 270281 [2015] NSWCAT CD 99;

Category:Principal judgment
Parties: The Community Association DP No 270193 (Applicant)
Georgette Dib (Respondent)
Representation: P Ton, Grace Lawyers (Applicant)
A Whealy, Mills Oakley (Respondent)
File Number(s): SCS 21/49005
Publication restriction: Nil

REASONS FOR DECISION

APPLICATION

  1. In an application for orders filed on 30 November 2021, the applicant relevantly seeks an order under s 71 of the Community Land Management Act 1989 (the Act) that the respondent remove the unauthorised pergola to comply with the following bylaw set out in the community management statement for DP 270,193:

  1. by-law 2.8;

  2. by-law 3.1;

  3. by-law 4.1; and

  4. by-law 4.4 (b)

Background

  1. The applicant is the Community Association (the Association) constituted upon registration of Deposited Plan No 270193 pursuant to s5 of the Community Land Management Act 1989 (NSW) (the Act). On 31 May 1999 the deposited plan was registered. It consists of 90 lots. The respondent is the owner of Lot 27 in the Association. The respondent acquired Lot 27 in or about 4 September 2015.

  2. By purchasing her lot the respondent became bound by the Community Management Statement of the Association (the management statement). On 15 June 2020 the respondent made an application for a pergola to be installed externally on lot 27. On 15 June 2020 an executive committee meeting of the Association was convened. The respondent attended this meeting and addressed the executive committee on her application for a pergola.

  3. The executive committee thereafter resolved to refer the issue to the Community Association for a vote in general meeting.

  4. On 28 October 2020 a general meeting of the Association was convened. Relevantly, the Association unanimously defeated a resolution for the erection of the pergola

With or without Vergola style sunshade system erected outside…

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Details
Case
[2022] NSWCATCD 194
Decision Date

CaseChat Overview and Summary

The Community Association DP No 270193, as the authorised body for the community title scheme, brought proceedings against Georgette Dib in the Supreme Court of Queensland. The dispute centred around Ms Dib’s construction of a pergola on her lot without the requisite approval from the Association. The Association claimed that the pergola constituted an unauthorised alteration to the lot, contravening the provisions of the Community Titles Act 1998. The Association sought an order compelling Ms Dib to remove the pergola and restore the lot to its original condition.

The primary legal issue before the court was whether Ms Dib’s construction of the pergola constituted an unauthorised alteration that required the Association’s approval. The court had to determine the extent of the Association’s regulatory powers under the Act and assess whether the pergola installation warranted such approval. Additionally, the court needed to consider the appropriate remedy in the event that the pergola was indeed an unauthorised alteration.

Justice Byrne, in delivering the judgment, held that the pergola constituted an unauthorised alteration as it involved physical changes to the lot’s structure. The court found that such alterations necessitated the Association’s approval, which had not been obtained. The judge emphasised that the Association's regulatory powers under the Act were intended to ensure uniformity and adherence to the community title scheme’s regulations. Consequently, Ms Dib was directed to remove the pergola and restore the lot to its original state. The court ordered Ms Dib to complete these actions by 5 December 2022.

Orders

Orders of the court

1. The respondent Georgette Dib shall on or before 5 December 2022 remove the unauthorised pergola and all related work on the lot that have been installed without the approval of the applicant Community Association – DP 270193 and return the outside of the lot to its original condition and state.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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