The Owners - Strata Plan No 63491 v Matt Early Pty Ltd

[2025] NSWCATCD 27

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

The Owners – Strata Plan No 63491 v Matt Early Pty Ltd [2025] NSWCATCD 27

Hearing dates:

6 November 2024

Date of orders:

02 May 2025

Decision date:

02 May 2025

Jurisdiction:

Consumer and Commercial Division

Before:

D Robertson, Principal Member

Decision:

(1)      Direct the respondent to allow access to Lot 3 in Strata Plan No 63491 to the applicant’s agents and contractors for the purpose of undertaking an investigation of the condition of the wall between Lots 2 and 3 in Strata Plan No 63491 and to enable the preparation of a scope of works for any repairs to the wall found to be necessary. In undertaking such access the applicant may take such steps as may be requested by its expert advisers to ensure that the advisers can undertake any necessary investigation to assess the state of the wall and, if necessary, prepare a scope of works for repair.

(2)      The respondent must ensure that, at all times while the applicant’s agents and contractors have access to Lot 3, the space between the trommel holding pile and the wall remains clear, and that safe access to the wall behind the pile is maintained.

(3)      The applicant must give 72 hours notice before each exercise of the access granted by order (1) above and must give at least 7 days notice before taking any steps which may involve the relocation of any goods or equipment of the respondent, including waste products stored temporarily in any location within Lot 3.

(4)      The application is otherwise dismissed.

(5)      Within 14 days of the date of publication of these orders either party may file and serve upon the other party an application for an order in relation to the costs of the proceedings, with submissions in support, not exceeding 5 pages, and any further evidence relevant to the question of costs.

(6)      If either party files an application in accordance with order (5), the other party may within a further 14 days file and serve upon the party which filed the application submissions in response, not exceeding five pages, and any further evidence relevant to the question of costs.

(7)      Unless a party files an application in accordance with order (5) above, there will be no order in relation to the costs of the proceedings.

Catchwords:

LAND LAW – Strata Title – Strata Schemes Management Act 2015 (NSW) ss 106, 122, 124 - Right of owners corporation to access to a lot for the purpose of investigating the need for repair and maintenance of common property or to carry out the repair and maintenance of common property – Circumstances in which Tribunal will make order for access

LAND LAW – Strata Title – Strata Schemes Management Act 2015 (NSW) s 122(6) – Liability of owners corporation to make good damage caused by exercise of power of entry or arising out of the carrying out of work following entry

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW)

Civil and Administrative Tribunal Rules 2014 (NSW)

Strata Schemes Management Act 2015 (NSW) ss 122, 124, 153

Cases Cited:

Glenquarry Park Investments Pty Ltd v Hegyesi [2019] NSWSC 425

Stolfa v Hempton [2010] NSWCA 218

Stolfa v Owners Strata Plan 4366 [2009] NSWSC 589

The Owners – Strata Plan No 63341 v Malachite Holdings Pty Ltd [2018] NSWCATAP 256

Category:

Principal judgment

Parties:

The Owners – Strata Plan No 63491(applicant)
Matt Early Pty Ltd (respondent)

Representation:

Counsel: M Gunning (respondent)

Solicitors: Grace Lawyers (applicant)
Joseph Grassi + Associates (respondent)

File Number(s):

2024/00216906

REASONS FOR DECISION

Introduction

1. The applicant is the owners corporation of Strata Plan No 63491, a strata scheme of seven one storey industrial units in St Marys, New South Wales. The seven units are in one building, arranged in a U shape open to the south. There is a concrete apron covering the area in front of the building and within the U. There are 24 parking spaces in two ranks running the length of the U, leaving an 8.53m wide driveway on either side. The two parking spaces at the southern end, furthest from the building, are visitor spaces. The driveways and the visitor spaces are common property. The remaining car spaces are each allocated to and form part of one of the Lots.

2. Lot 3 is at the north-west corner of the building. Five parking spaces directly adjacent to the southern wall of Lot 3 form part of Lot 3. Lot 2 is on the south side of the Western end of lot 3. The respondent is the occupier of Lot 3 pursuant to a commercial lease which commenced in June 2020.

3. Lots 2 and 3 are separated by a brick wall.

4. The wall between Lots 2 and 3 has been the subject of reports: by a builder, Colin Drinkwater of Report Master Inspections; and by a structural engineer, Daniel Hugo of Imparta Engineers.

5. Mr Drinkwater’s report, dated 12 October 2022, was apparently obtained by a potential purchaser of Lot 2. Mr Drinkwater identified that:

“The northern wall area requires demolition and rebuilding as a matter of urgency due to impact damage. This area is dangerous requires cordoning off as a matter of safety.”

6. Mr Drinkwater recommended that:

“A licensed bricklayer should be called to make a further evaluation and repairs or rectification as needed.”

7. It is apparent that, following receipt of Mr Drinkwater’s report, the applicant’s strata manager lodged an insurance claim with the applicant’s insurer. The insurer retained Mr Hugo to provide a structural engineering report.

8. Mr Hugo’s report, dated 25 October 2022, describes the wall as “a 270mm double leaf cavity wall, … approximately 6.5m high at its peak x 15m long.” Mr Hugo described the wall as “display[ing] a substantial bulge towards unit 2.” Mr Hugo recorded:

“On the other side of the wall [ie within Unit 3] there is a stockpile of loose ‘rubbish’ materials piled up against the wall to about 5m high.”

9. Mr Hugo recorded that the roof of the building is independently supported by steel portal frames which also provide lateral stability to the building and the brick walls. Mr Hugo stated that damage appeared to be restricted to the brick wall and that there was no evidence that the steel framework had sustained any damage.

10. Mr Hugo concluded:

“The wall is currently deemed stable on the following conditions:

•   the 3 x skip bins and the concrete blocks up against the wall in Unit 2 remain in place

•   the continued static presence of the concrete blocks supposedly placed within Unit 3

(largely obscured by the rubbish pile)

•   reduction of the rubbish pile in Unit 3 to maximum 3.5m height (the location of the pile directly in line with concrete blocks should also not be altered)

•   Disturbance/reduction of the pile in Unit 3 shall be done with care and minimum effect onto the wall

We propose that a no-go seclusion zone be demarcated up to 4m away from the wall in Unit 2. Use of the stair and offices can be excluded from this zone, but used with care.

If any further movements or changes in cracks are observed, the wall should immediately be considered unsafe, and the owners shall seek professional advice.”

11. Mr Hugo recommended:

“Ultimate make-safe will involve stepped demolition and the construction of a new wall. We believe any intermediate make-safe methods will be impractical, hence our suggestion of complete reconstruction as the most beneficial make-safe method.

Construction of a replacement wall should be considered a priority.”

12. Although there are suggestions in the reports that the damage to the wall is a consequence of impact from the Lot 3 side of the wall, it is not suggested that the respondent was responsible for the damage, which it seems the experts accept existed before the respondent commenced occupation of Lot 3.

13. The respondent was also previously a tenant of Lot 2 but is no longer in occupation of that lot.

14. There is evidence that there was at one time an opening in the wall, permitting passage between Units 2 and 3, that has been bricked up. There is no suggestion that the whole of the wall, including the section that has been bricked up, is not common property of the strata scheme in respect of which the applicant has responsibilities of repair and maintenance pursuant to s 106 of the Strata Schemes Management Act 2015 (NSW) (SSMA).

15. The respondent utilises Lot 3 for the carrying on of a waste disposal/transfer business. In the course of that business the respondent receives at the premises delivery of skip bins filled by customers with rubbish. As described by Mr Mathew Early, the director of the respondent, large items of rubbish are sorted into categories directly from the skip bin and the remaining contents is placed onto a pile located adjacent to the wall between Lots 2 and 3. Mr Early describes this pile as the “trommel holding stockpile”. Mr Early stated that the holding stockpile “is progressively fed through the trommel for sorting”.

16. A trommel is a substantial piece of machinery which sorts material by size through a sieving process. Mr Early stated that, once sorted through the trommel, the rubbish is “split again into the various categories of rubbish” and that “anything that cannot be recycled is put in the landfill pile and disposed of accordingly.”

17. Mr Early’s evidence was that the cost of disposing of waste to landfill was substantially greater than the cost of sending recyclable items for recycling and that, if it was not able to use the area occupied by the trommel holding stockpile for that purpose, it would incur substantially higher costs in disposing of unsorted waste to landfill.

18. Mr Early also gave evidence that the holding stockpile had been reduced in height since Mr Hugo’s inspection and that the pile was not directly in contact with the wall between Lots 2 and 3. He stated that the pile was bounded by a wall of concrete blocks about 1.8m high. Mr Early further stated that the pile was:

“Stacked using a process called ‘feathering’. This means that the rubbish is not pushed towards the wall in question. This is to ensure that there is no pressure placed against the wall in question. Rather, the Pile is scraped towards the excavator … to ensure that the pressure of the Pile is away from the wall in question and borne by the concrete blocks closest to the excavator.”

The Application

19. By application filed in the Tribunal on 12 June 2024, the applicant seeks orders:

“1. An order pursuant to Sections 124(1)(a) and/or 232(1) of the Strata Schemes Management Act 2015 (NSW) that the First Respondent is to provide unhindered access to Lot 3 in Strata Plan No 63491 on the giving of 72 hours’ notice to:

o Remove the stockpiled material placed against the common property wall;

o Reinstate any damaged common property.

2.   Access pursuant to order 1 is to be provided until the date of the applicant providing written notice that the common property repairs are complete.

3. Pursuant to Section 132(1)(b) of the Strata Schemes Management Act 2015 (NSW) the respondent is to pay the applicant for the cost of conducting the works required by the order 1 within 28 days.

4. An order pursuant to Sections 153(1)(b), 241 and/or 232(1) of the Strata Schemes Management Act 2015 (NSW) that the First Respondent is to remove the personal property stored on the common property;

5. An order pursuant to Section 241 and/or 232(1) of the Strata Schemes Management Act 2015 (NSW) that the First Respondent is prohibited from storing skip bins on the common property;

6.   Such ancillary or further orders as the Tribunal sees fit;

7.   Costs.”

20. In submissions filed and served two days before the hearing, the applicant identified the basis for order 4 as:

1. Breach of s 153 of the SSMA; and

2. Breach of three specific by-laws being:

1. by-law 6, which prohibits the depositing on common property of any material without the approval of the owners corporation;

2. by-law 8 which requires any garbage, recyclable material or waste to be kept within a lot; and

3. by-law 12 which prohibits the doing of anything on a lot or common property that is likely to create a hazard or danger.

21. Mr Gunning of counsel, who appeared for the respondent, objected to the applicant’s reliance upon the by-laws. He maintained that the respondent had not been given fair notice that the applicant would be relying upon alleged breach of the by-laws. Mr Gunning submitted that the respondent was prejudiced as it had not sought to obtain evidence upon which the respondent might have relied in defence of the allegations of breach of the by-laws.

22. In circumstances where the claim in respect of skip bins stored on common property might have needed to be adjourned if the applicant was permitted to rely upon allegations of breach of the by-laws, Mr Ton, solicitor, who appeared for the applicant, elected to withdraw any allegation regarding non-compliance with the by-laws. The applicant limited its case regarding the storage of skip bins on common property to allegations of breach of s 153 of the SSMA.

The Hearing

23. The hearing took place on 6 November 2024. Mr Ton appeared for the applicant. Mr Gunning appeared for the respondent.

24. Each party had filed evidence in advance of the hearing.

25. The parties provided a hearing book containing:

1. The Application, with Points of Claim attached;

2. Points of Defence dated 31 October 2024;

3. Statement of Christine Kelly dated 18 September 2024, with annexures OC1 to OC43, filed on behalf of the applicant;

4. Affidavit of Mathew Shaun Early dated 30 October 2024, with annexures A to EE, filed on behalf all the respondent;

5. Statement in reply of Christine Kelly dated 4 November 2024, with annexures CK1 to CK8, filed on behalf the applicant;

6. Applicant’s outline of submissions, dated 4 November 2024:

7. Respondent’s submissions, dated 5 November 2024.

26. Ms Kelly’s first statement was admitted without objection as was Mr Early’s affidavit. The annexures to Ms Kelly’s first statement included Mr Drinkwater’s and Mr Hugo’s reports. I do not understand the contents of those reports to be controversial.

27. Mr Gunning objected to Ms Kelly’s second statement as not being in reply and on grounds of relevance. I rejected the tender of Ms Kelly’s second statement, which, accordingly, does not form part of the evidence before the Tribunal.

28. I also received in evidence, as Exhibit A, a copy of the terms and conditions of the lease between the owners of Lot 3 and the respondent.

29. Mr Gunning did not seek to cross-examine Ms Kelly. Mr Early was cross-examined by Mr Ton.

30. In the course of that cross-examination Mr Early gave evidence that he could not recall what enquiries he had made about the requirements of the development approval which he understood applied to Lot 3 and authorised its use for the respondent’s waste disposal/transfer business.

31. Mr Early also indicated that the trommel holding stockpile adjacent to the wall was currently approximately 3.5 m high and contained within substantial block walls on all four sides. The walls around the stockpile were said to be 1.8 m high, consisting of three rows of 60cm blocks. Mr Early also stated that there was about 30cm between the wall and the blocks on the south side of the pile.

32. Mr Early indicated that, on occasions, the blocks would be removed at a particular point in the wall to enable a machine to access the pile more effectively at that point.

33. It is convenient to deal with the application for access before addressing the question of storage of skip bins on common property.

Application for access

34. There are two issues raised by the application in respect of access to Lot 3. The first issue is whether the respondent should be required to provide access and for what purpose. The second issue is whether, if it is necessary to move the trommel holding stockpile, the respondent should be required to do so or be liable for the cost of doing so.

Should the respondent be required to allow access and for what purpose?

35. Sections 122 and 124 of the SSMA relevantly provide:

122   Power of owners corporation to enter property in order to carry out work

(1)  An owners corporation for a strata scheme may, by its agents, employees or contractors, enter on any part of the parcel of the scheme for the purpose of carrying out the following work—

(a)  work required or authorised to be carried out by the owners corporation in accordance with this Act (including work relating to window safety devices and rectification work carried out under Part 11),

(b)  work required to be carried out by the owners corporation by a notice given to it by a public authority,

(c)  work required or authorised to be carried out by the owners corporation by an order under this Act.

(2)  An owners corporation for a strata scheme may, by its agents, employees or contractors, enter on any part of the parcel for the purpose of determining whether any work is required to be carried out by the owners corporation in accordance with this Act.

(3)  In an emergency, the owners corporation may enter any part of the parcel for those purposes at any time.

(4)  In a case that is not an emergency, the owners corporation may enter any part of the parcel for those purposes with the consent of any occupier of that part of the parcel or, if the occupier does not consent, in accordance with an order of the Tribunal under this Division.

(5)  A person must not obstruct or hinder an owners corporation in the exercise of its functions under this section.

Maximum penalty—5 penalty units.

(6)  An owners corporation is liable for any damage to a lot or any of its contents caused by or arising out of the carrying out of any work, or the exercise of a power of entry, referred to in this section unless the damage arose because the owners corporation was obstructed or hindered.

124 Orders by Tribunal relating to entry to carry out work or inspections

(1) The Tribunal may, on application by an owners corporation for a strata scheme, make an order requiring the occupier of a lot or part of a lot in the scheme to allow access to the lot for any of the following purposes—

(a) to enable the owners corporation to carry out work referred to in section 118, 119, 120 or 122 or to determine whether such work needs to be carried out,

(b) to enable an entry or inspection referred to in section 122 or 123 or Part 11 to be carried out.

(2) This section does not limit the power of an owners corporation to enter a lot under this Division in an emergency without applying for an order.

36. Mr Gunning did not dispute that the Tribunal had the power to make an order for access but submitted that the Tribunal had discretion (arising from the use of the word “may” in s 124(1)) and, in circumstances where, as Mr Early’s evidence indicated, the respondent would be vacating the premises by May at the latest, the Tribunal could exercise its discretion not to make orders which would have the effect of forcing the respondent to shut down its business.

37. Mr Early’s evidence was that:

1. The trommel holding stockpile is essential to enable the respondent to separate out the recyclable elements of the rubbish received in the skip bins;

2. There was no other location within Lot 3 away from the wall to which the trommel holding stockpile could be moved where it would still be able to be used for that purpose.

3. Without the capacity to separate out recyclable material, the respondent would be compelled to send the bulk of the rubbish to landfill, which would render the business uneconomic;

4. The respondent had located a new site for its business and was in the process of obtaining development approval to carry on a waste transfer business at the new site;

5. The respondent expected to be able to move to commence business from the new site in May 2025;

6. If the respondent was required to remove the trommel holding pile before the new site was operating, the respondent would be required to close down its business.

38. Although Mr Early conceded in cross-examination that he had not made enquiries to ensure that the respondent could comply with terms of the lease of the premises which required the respondent to comply with all laws relating to the use of the premises, the applicant did not lead evidence to suggest that the respondent’s use of the premises does contravene any law.

38. The applicant did tender evidence as part of Ms Kelly’s second statement which the applicant submitted cast doubt upon the respondent’s entitlement to conduct a waste transfer business on the premises. However, that evidence was objected to and rejected and is not before the Tribunal. It is neither necessary or appropriate to consider whether, had that evidence been admitted, it would have established that the respondent’s business is not authorised under the relevant planning laws.

39. I note immediately that the evidence that, if the respondent is required to permit the access the applicant seeks, its business will be forced to close, did not include sufficient detail of the cost or other financial consequences of alternative options to persuade me that I should accept that the access sought by the applicant would necessarily require the respondent’s business to close or cost the respondent the amounts which Mr Early asserted it would.

40. However, the difficulty which the Tribunal faces in assessing the applicant’s application for access is that the applicant has not specified precisely what access it seeks.

41. It may be acknowledged that Mr Hugo’s report suggests that he could not assess the wall because the pile was over 5 m high and placed directly against the wall. However, Mr Early’s evidence, as noted above, which I accept, was that that is no longer the case. The applicant did not lead evidence to establish what was necessary in the present state of the respondent’s premises to enable an assessment of the wall and the formulation of a scope of works for its rectification. It would not be appropriate to make an order granting the applicant access to carry out whatever works it sees fit.

42. The work for the carrying out of which ss 122(1)(a) and 124 empower the Tribunal to require an occupier to allow access is work “required or authorised to be carried out by the owners corporation in accordance with” the SSMA. Relevantly, in this case, the work in question is that required in order to repair and maintain the common property pursuant to s 106.

43. As Parker J held in Glenquarry Park Investments Pty Ltd v Hegyesi [2019] NSWSC 425 at [111] – [114]:

“111 … [O]n any view the Tribunal is not entitled to order an owners’ corporation to do things just because the Tribunal considers it desirable to do so. If, as seems to have been assumed, the justification for the order was that the Strata Corporation had not complied with its obligations under s 62 [of the Strata Schemes Management Act 1996 (NSW) the equivalent of s 106 of the SSMA], then the Tribunal’s order could go no further than the minimum necessary to comply with that obligation.

112 In the present case, the Tribunal did not ask itself what needed to be done so as to order to achieve a minimal compliance with s 62(1) and then frame orders accordingly. In my view this means that there was no proper statutory foundation for the orders.

113   Furthermore, the orders are in the nature of mandatory injunctions. Such orders can be enforced (indirectly, under NCAT: Civil and Administrative Tribunal Act, s 73) by way of contempt. It is unacceptable that the recipient of the order should be in any doubt as to what is required. In my view, for the Tribunal to make an order giving rise to such a doubt is itself an error of law.

114 … [T]he Tribunal, may have power to make an order that an owners’ corporation carry out a defined repair in order to comply with its obligation under SSMA s 62. But the orders made in this case have been made in a form which takes them outside the limits of any such power. In truth, the orders are nothing more than a vague ‘wish list’ from Ms Hegyesi. They should not have been made and must be set aside.”

45. An occupier in a lot in a strata scheme, asked to allow the owners corporation access to carry out work for the repair or maintenance of common property is entitled to know what work the owners corporation proposes to carry out.

46. It may be acknowledged, as Parker J held in Glenquarry Park at [71]:

“practicality requires allowing a degree of judgment and latitude to an owners’ corporation in determining how far to go with repair and replacement work in a maintenance context.”

47. Nevertheless, the occupier must be entitled to defend an application for access on the basis that what the owners corporation proposes is excessive or unduly destructive and not in fact necessary for the repair and maintenance of the common property.

48. In the absence of a scope of works and a clear statement of what access is required, any order for access to undertake repairs would be at large. Mr Ton’s submissions did not explain why, in circumstances where the premises are being used for a commercial operation, an order should be made giving the applicant access to undertake repairs of an undefined scope for an undefined period.

49. It may be acknowledged that the disruption to the respondent’s business may be lessened if the rectification work was scheduled to occur immediately following the engineer’s inspection and the preparation of a scope of works. However, the respondent opposes the order for access for rectification and, in the absence of a scope of works for the rectification, I am not persuaded that such an order should be made.

50. I decline to make orders permitting the applicant to undertake repairs to the wall between Lots 2 and 3.

51. However, I consider that there is no obstacle to the Tribunal giving the applicant access for the purpose of determining whether any work is required to be carried out and determining a scope of works for the carrying out of such work and I will make an order requiring the respondent to allow access for that purpose. Since Mr Early states that the trommel holding stockpile has been reduced and that there is room to pass between the pile and the wall, it would also be appropriate to order that the respondent ensure that the space between the trommel holding stockpile and the wall remains clear and that safe access to the wall behind the pile is maintained.

52. The order will be in the following terms:

“(1)   Direct the respondent to allow access to Lot 3 in Strata Plan No 63491 to the applicant’s agents and contractors for the purpose of undertaking an investigation of the condition of the wall between Lots 2 and 3 in Strata Plan No 63491 and to enable the preparation of a scope of works for any repairs to the wall found to be necessary. In undertaking such access the applicant may take such steps as may be requested by its expert advisers to ensure that the advisers can undertake any necessary investigation to assess the state of the wall and, if necessary, prepare a scope of works for repair.

(2)   The respondent must ensure that, at all times while the applicant’s agents and contractors have access to Lot 3, the space between the trommel holding stockpile and the wall remains clear, and that safe access to the wall behind the pile is maintained.”

53. I consider that 72 hours notice would be appropriate for any access which would not involve the moving of the respondent’s goods (including waste awaiting sorting or shipment) or equipment. If the moving of goods or equipment is necessary to enable testing to be conducted or the wall to be assessed, a clear 7 days notice should be given.

54. It may be hoped that, if the respondent remains in occupation after a scope of works has been determined, the parties can resolve the question of access for the carrying out of those works by consent. If that cannot be accomplished, a fresh application may be necessary.

Responsibility for moving the trommel holding stockpile, if required

55. Mr Ton’s submissions did not explain why:

1. The respondent could be required to remove the pile; or

2. If the applicant found it necessary to remove the pile, the respondent should be liable to pay the cost of removal.

56. Section 132 of the SSMA, referred to by the applicant in the application and submissions as the source of power to make the order requiring the respondent to pay for the removal, provides:

132 Rectification where work done by owner

(1)    The Tribunal may, on application by an owners corporation for a strata scheme, make either of the following orders if the Tribunal is satisfied that work carried out by or for an owner or occupier on any part of the parcel of the scheme has caused damage to common property or another lot—

(a)    an order that the owner or occupier performs the work or takes other steps as specified in the order to repair the damage,

(b)    an order that the owner or occupier pay to the owners corporation or the owner of the lot a specified amount for the cost of repairs of the damage and any associated costs, including insurance and legal costs.

(2)    An amount payable by an owner or occupier to an owners corporation under this section is payable, and may be recovered, under this Act as if it were an amount of unpaid contributions.

57. The applicant did not seek to establish that the respondent was responsible for the damage to the wall. Accordingly, s 132 has no relevance in these proceedings.

58. Section 124(6), set out above, imposes liability upon an owners corporation:

“for any damage to a lot or any of its contents caused by or arising out of the carrying out of any work, or the exercise of a power of entry, referred to in this section unless the damage arose because the owners corporation was obstructed or hindered.”

59. In my view, provided an occupier is not in breach of the by-laws, the SSMA, or any other law governing the use of the premises, an owners corporation seeking access to premises either for purposes of investigation or for purposes of repair and maintenance, must take the occupier as they find them. If, in order to carry out repairs, it is necessary to remove fittings or goods held on the property, the owners corporation is responsible for the reinstatement or replacement of those fittings and goods.

60. Apart from s 132 of the SSMA, the only basis upon which the applicant submitted that the respondent should be responsible for the cost of moving the stockpile was that:

“The respondent is not entitled to and should not be stockpiling waste in Lot 3.”

61. The evidence before the Tribunal does not suggest that there is any impediment to the respondent carrying out its business in the manner described by Mr Early. To the extent the applicant suggests, by describing the utilisation of the trommel holding pile as “stockpiling waste”, that the respondent is accumulating waste on the site without any immediate intention of removing or utilising it, the evidence does not support that submission. Mr Early’s evidence indicates that waste is placed in the trommel holding stockpile as part of the processing of that waste.

Placement of skips on the common property

62. Section 153 of the SSMA relevantly provides:

153   Owners, occupiers and other persons not to create nuisance

(1)  An owner, mortgagee or covenant chargee in possession, tenant or occupier of a lot in a strata scheme must not—

(a)  use or enjoy the lot, or permit the lot to be used or enjoyed, in a manner or for a purpose that causes a nuisance or hazard to the occupier of any other lot (whether that person is an owner or not), or

(b)  use or enjoy the common property in a manner or for a purpose that interferes unreasonably with the use or enjoyment of the common property by the occupier of any other lot (whether that person is an owner or not) or by any other person entitled to the use and enjoyment of the common property, or

(c)  use or enjoy the common property in a manner or for a purpose that interferes unreasonably with the use or enjoyment of any other lot by the occupier of the lot (whether that person is an owner or not) or by any other person entitled to the use and enjoyment of the lot.

63. The applicant did not lead in chief any evidence to establish that the respondent is acting in breach of section 153. The only evidence before the Tribunal concerning the respondent’s use of the common property in front of Lot 3 are photographs annexed to Mr Early’s affidavit. Those photographs do show a substantial number of what appear to be empty skips placed on the common property area outside the door to Lot 3. Two skips full of rubbish shown in one photograph would appear to be located on the car parking spaces which form part of Lot 3.

64. Mr Early agreed in cross examination by Mr Ton that, since the respondent had ceased leasing Lot 2, the respondent kept empty bins on the common property in the corner in front of Lots 2 and 3. Although the evidence is limited, I am prepared to infer that there are at practically all times some skips standing on the common property adjacent to Lot 3. However, it is not clear that the extent to which the respondent has been doing so amounts to a breach of s 153.

65. I accept that the use by the respondent of the common property as a permanent storage area does involve de facto exclusive use of that area.

66. The applicant submitted that:

“The skip bins pose a hazard to other owners and occupiers within the scheme and restrict access to other lots and the common property.”

67. I do not accept that the evidence establishes either that the skip bins pose any hazard or that they restrict access to other lots.

68. The skip bins appear to be stored in the north-west corner of the U formed by the building, between the doors to Lots 2 and 3. It is not self-evident that in that location they restrict access to any other lot. Neither the strata plan nor any photograph discloses the precise location of the door to Lot 2 or whether access to that door is inhibited by the skip bins. No other lot could utilise that area for access. The applicant did not identify any evidence to support the submission that the skip bins pose a safety hazard.

69. The respondent submitted that the applicant had permitted the respondent to store skip bins on the common property since the respondent first commenced occupation of Lot 3 in June 2020. The respondent submitted:

“18    The respondent has acted upon the applicant’s permission by conducting its business in the manner it has for the duration of its tenancy.”

70. The respondent further submitted that:

“19 The applicant has waived any right to rely upon, and/or is estopped from relying upon, s 153 of the Strata Schemes Management Act 2015 (NSW). In this respect the respondent’s use of the common property has not unreasonably interfered with the use or enjoyment of the common property by the occupier of any other lot. There is no evidence from the applicant to establish otherwise.”

71. I do not consider that the evidence establishes that the respondent has acted in reliance upon any actual or ostensible permission received from the applicant in leaving empty skips on the common property. In any event, I do not consider that an owners corporation can waive a lot owner’s obligations under s 153 or be estopped from objecting to the exclusive use of common property by an occupier of premises within the strata scheme.

72. It may be that where an issue arises as to whether consent has been given for conduct to which an owners corporation, by its strata committee or managing agent, may give consent, the conduct of the owners corporation in that context may give rise to an estoppel: Stolfa v Owners Strata Plan 4366 [2009] NSWSC 589 at [75]; Stolfa v Hempton [2010] NSWCA 218 at [12].

73. Even if the applicant might be estopped from denying that consent to the respondent using the common property in front of Lot 3 for the storage of skip bins had been given by the applicant’s strata committee or managing agent, such consent must be revocable. A permanent right to use common property for storage or any other purpose to the exclusion of other lot owners may only be conferred through the enactment of a common property rights by-law pursuant to s 142 of the SSMA (or by order of the Tribunal pursuant to s 149 of the SSMA).

74. Because the applicant’s case in relation to the storage of skip bins on common property relied wholly on s 153 of the SSMA and I am not satisfied on the evidence that the respondent’s use of the common property for the storage of skip bins involved any contravention of s 153, I decline to make any order in relation to the storage of skip bins on common property.

75. My decision in that regard does not constitute authorisation for the respondent to store anything on the common property, it merely reflects the fact that the applicant has failed to establish the case it pursued at the hearing.

Costs

76. The applicant’s application sought an order for costs. The respondent did not explicitly in its Points of Defence or submissions at the hearing seek costs.

77. Because the application involved no quantifiable money claim, and the applicant did not lead any evidence of the cost of removing the trommel holding pile, it cannot be said that there was any amount in dispute in the proceedings within the meaning of rule 38 of the Civil and Administrative Tribunal Rules 2014 (NSW): The Owners – Strata Plan No 63341 v Malachite Holdings Pty Ltd [2018] NSWCATAP 256 at [86] – [93]. Accordingly, it would appear that questions of costs are regulated by s 60 of the Civil and Administrative Tribunal Act 2013 (NSW) and special circumstances must be established before I may make an order in respect of the costs of the proceedings.

78. As presently advised, I do not consider that there are likely to be shown to be special circumstances warranting an order for costs in favour of either party. Nevertheless, I will make orders providing for the filing of submissions concerning costs.

orders

79. My orders are:

1. Direct the respondent to allow access to Lot 3 in Strata Plan No 63491 to the applicant’s agents and contractors for the purpose of undertaking an investigation of the condition of the wall between Lots 2 and 3 in Strata Plan No 63491 and to enable the preparation of a scope of works for any repairs to the wall found to be necessary. In undertaking such access the applicant may take such steps as may be requested by its expert advisers to ensure that the advisers can undertake any necessary investigation to assess the state of the wall and, if necessary, prepare a scope of works for repair.

2. The respondent must ensure that, at all times while the applicant’s agents and contractors have access to Lot 3, the space between the trommel holding stockpile and the wall remains clear, and that safe access to the wall behind the pile is maintained.

3. The applicant must give 72 hours notice before each exercise of the access granted by order (1) above and must give at least 7 days notice before taking any steps which may involve the relocation of any goods or equipment of the respondent, including waste products stored temporarily in any location within Lot 3.

4. The application is otherwise dismissed.

5. Within 14 days of the date of publication of these orders either party may file and serve upon the other party an application for an order in relation to the costs of the proceedings, with submissions in support, not exceeding 5 pages, and any further evidence relevant to the question of costs.

6. If either party files an application in accordance with order (5), the other party may within a further 14 days file and serve upon the party which filed the application submissions in response, not exceeding five pages, and any further evidence relevant to the question of costs.

7. Unless a party files an application in accordance with order (5) above, there will be no order in relation to the costs of the proceedings.

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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: 27 June 2025