The Owners - Strata Plan 30198 v Barnes

The Owners - Strata Plan 30198, as the body corporate for a strata scheme, brought proceedings against Mr. Barnes, a lot owner, to seek a declaration that a garden area, which Mr. Barnes had developed, was not in keeping with the rest of the building and was therefore in breach of a by-law. The dispute was heard and determined by the NSW Civil and Administrative Tribunal (NCAT).

The primary legal issue before the Tribunal was whether the garden area developed by Mr. Barnes was to be considered part of the building for the purposes of the relevant by-law. The by-law stipulated that any garden, patio, verandah, or other improvement must be in keeping with the rest of the building. The Owners argued that the garden area was not in keeping with the rest of the building, and that its development by Mr. Barnes constituted a breach of the by-law. Mr. Barnes contended that the garden area was not part of the building and therefore not subject to the by-law.

In determining the issue, the Tribunal noted that the term “building” was not defined in the relevant by-law, and thus it was necessary to consider the ordinary meaning of the word. The Tribunal found that the garden area was not part of the physical structure of the building and was therefore not part of the building for the purposes of the by-law. Consequently, the development of the garden area did not constitute a breach of the by-law.

The application by The Owners was dismissed. The Tribunal also made orders for the parties to file and serve written submissions on the issue of costs, with an opportunity for the other party to reply. The submissions were to include a statement on whether a further hearing on costs was sought or whether the parties were content to have the issue dealt with on the papers.