The Community Association DP No 270193 v Dib

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

2. 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.

3. 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.

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

5. 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…