In a recent decision of The Owners Strata Plan No 2245 v Veney [2020] NSWSC 134 (Veney Case), the Supreme Court of NSW was asked to consider:
- whether they could make a declaration implying an additional term into an exclusive use by-law, being a by-law which gave the relevant owner the exclusive use of a common property car space, that whilst ever the owner kept their exclusive use rights that they were prohibited from their own car space
- whether they could find that the owner of the lot was committing a nuisance by parking in their own car space.
The facts
Mr Veney was the owner of residential Lot 33 and parking Lot 51 in strata scheme No 2245 that was established in 1966.
It appeared, for historical reasons, that there was a design deficiency in the parking lots in the scheme. The parking lots were constructed in a way that it would be difficult for the owners of the neighbouring parking lots to access and egress from their parking lots when Lot 51 was occupied by a vehicle.
In 1998, the Owners Corporation passed a special by-law (Special By-law) providing the owner of Lot 51 from time to time the right of exclusive use and enjoyment of a designated area of the common property for the purpose of parking a car. Special By-law stated that the owner of Lot 51’s such right would be conditional upon the Lot 51 owner mainlining the exclusive use area and indemnifying the Owners Corporations from any claims.
Mr Veney acquired Lot 33 and Lot 51 in 2006 and he was not the owner of either Lots when the Special By-Law was made. After purchasing a car in 2013, Mr Veney occasionally parked on Lot 51 and at other times he parked on the exclusive use area.
It appeared from evidence put forward during the hearing that Mr Veney’s use of Lot 51 caused significant frustration to adjoining car owners who had to undertake numerous manoeuvres to egress from their adjoining garages. Lot owners that had held their properties since 1998 were also frustrated as it was their understanding that the owner of Lot 51 was given the rights under the Special By-Law on the basis that they ceased parking in Lot 51, although this condition was never referenced into the terms of the Special By-Law when it was adopted and registered.
Frustrated by the limited vehicular access, the Owners Corporation sought:
- declaratory relief in relation to the proper construction of the Special By-Law
- injunctive relief to prevent Mr Veney from parking a vehicle in his parking Lot 51 on the grounds that his parking created a nuisance to the occupiers of other lots and that such action is a contravention of section 153 of the Strata Schemes Management Act 2015.
Mr Veney submitted that the Court should adopt a plain reading of the Special By-Law and that the Court should not be able to take into account the circumstances that existed at the time the by-law was made.
In respect to the claim for nuisance, Mr Veney submitted that the relief sought should be refused because the Owners Corporation had an alternative way to deal with the parking problem, principally by removing a rockery which was located on common property and, once removed, would also allow garage owners the ability to more easily access and egress from their garages.
The construction of Special By-law
The Court accepted Mr Veney’s argument and held that:
- the Special By-law should be constructed objectively by paying due regard to the statutory context in which it was made, namely, Division 4 of Chapter 2 of the Strata Schemes Management Act 1996 (Act)
- the terms of the Special By-law would not convey to a reasonable person that they specifically restricted the Lot 51 owner’s right to use Lot 51
- the Owners Corporation did not specify any conditions in this respect notwithstanding the fact that it was permitted to do so under section 53 of the Act
- caution needs to be exercised in going beyond the language of the by-law and its statutory context
- when interpreting the Special By-law, its unwritten intention and surrounding circumstances cannot be regarded given that they were not available to Mr Veney before acquiring Lot 51.
The Court reaffirmed the principles set out in The Owners of Strata Plan No 3397 v Tate that when interpreting the meaning of an exclusive use by-law, the language of the by-law should be considered in the context of the relevant legislation, and that caution needs to be taken when having recourse to surrounding circumstances.
These propositions were also adopted by the NSW Civil and Administrative Tribunal (Tribunal) in the recent case of The Owners – Strata Plan No 91157 v Yoolee Holdings Pty Limited and Yoolee Holdings Pty Limited v The Owners – Strata Plan No 91157 [2020] NSWCATAP 6. More details of this Tribunal decision can be found from our previous article here.
Nuisance
The Court also held that Mr Veney’s use of Lot 51 did not amount to a nuisance, because:
- the mere causing of inconvenience was not necessarily an actionable nuisance. Instead, the reasonable and ordinary use of land may be a good indicator of whether a nuisance within section 153(1)(a) of the Act has been created
- use of Lot 51 for parking a vehicle was reasonable given that the dimensions, location and design of Lot 51
- Lot 51 was the property of Mr Veney and it was not designed to serve the purpose of a vehicle turning bay. Accordingly, other lot owners had no right to use Lot 51 in such way, therefore Mr Veney’s substantial interference with another owner was not established
- Mr Veney’s parking on Lot 51 was not a sole cause of the inconvenience. The vehicular access issue may be rectified by removing other factors, such as the rockery garden and some portion of the common property. The Owners Corporation’s contention that such removal works were impractical was not accepted as it was not supported by any analysis of actual measurements
- the proper construction of Special By-law would mean that it conferred on Mr Veney the right to use an alternative parking space in addition to Lot 51. Therefore, Special By-law did not make his parking on Lot 51 unreasonable.
Jurisdiction
It was also alluded to in the decision that the matter may have been more appropriately brought before the Tribunal instead of the Court.
The Tribunal has wide jurisdiction when it comes to strata disputes and enjoys powers under the Strata Scheme Management Act 2015 (NSW) which the Court does not.
The Tribunal is also seen as a cheaper and, as a result, more cost effective way to manage strata disputes.
Whilst the Owners Corporation was ultimately unsuccessful, one question which is unclear is whether, even if they had been successful, they would have been asked to contribute to Mr Veney’s cost of defending himself in the proceedings – given that they commenced action in the Court rather than in the Tribunal.
Takeaways
The Veney Case is a useful decision as it:
- reaffirms the importance of being clear in the drafting of by-laws – noting that they will be interpreted with very limited regard to extrinsic circumstances
- illustrates that it will be difficult for an Owners Corporation to obtain an injunction against a lot owner for nuisance when it can be shown that the nuisance is caused by circumstances other than the lot owners’ conduct.
The Veney Case also suggests that, when making a claim for a strata dispute, plaintiffs or applicants need to consider which remedy will be appropriate, bearing in mind the different remedies available to the Court and Tribunal.
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This post was authored by Elly Ashley & Olivia Eum at Holding Redlich. Visit the original publication here. Do you have a question relating to your property or development? Contact us!
Please note that this article is provided for information purposes only and is not a substitute for professional legal advice.