Carrigan v McMorrow [2025] NSWCATCD 211;

(1) a determination of whether the owners corporation's consent was required for the Works, and an order that the works cannot proceed.

(2) an order that any works to lot 2 should not include box gutters; and

(3) an order that any works to lot 2 should not impact on the visual amenity from Lot 1 to the Lot 1 garden.

1. The respondents oppose the orders on the basis that the works are proposed to occur entirely within their lot, and as such they submit they do not require owners corporation's approval. In the alternative, refusal to approve the works is unreasonable.

1. At the hearing the applicant relied on bundles of documents filed on 12/9/2025, 29/7/2025, 29/7/2025 in relation to the interim application, 5/2/2024, 2/1/2024 and a bundle of photographs handed up at the hearing. The respondents relied on bundles of documents filed on 20/8/2025, 7/8/2025, 19/2/2025, 5/1/2024 and a bundle of photographs handed up at the hearing. All documents were entered into evidence subject to weight and relevance.
2. At the hearing, the applicant and the first respondent gave oral evidence. The parties were given the opportunity to ask questions of the witnesses and both parties made oral submissions.

1. The Tribunal is satisfied that the applicant is the owner of lot 1 and the respondents are the owners of lot 2 of a duly registered strata scheme under s 8 of the SSMA. The scheme is a 2 lot strata scheme. The Tribunal is satisfied it has jurisdiction to hear and determine the application.

1. Under the SSMA, work to the common property is required to be approved by the owners corporation unless the work authorised under s 109 or s 110 of the SSMA.
2. Section 109 of the SSMA permits lot owners to undertake cosmetic work to common property without the approval of the owners corporation. Section 109(2) defines cosmetic work, and s 109(5) lists work that are excluded from the definition of cosmetic work. Section 109(5) of the SSMA relevantly states:

"(5) This section does not apply to the following work -

(a) work that consists of minor renovations for the purposes of section 110,

(b) work involving structural changes,

(c) work that changes the external appearance of a lot, including the installation of an external access ramp,

(d) work that detrimentally affects the safety of a lot or common property, including fire safety systems,

(e) work involving waterproofing or the plumbing or exhaust system of a building in a strata scheme,

(f) work involving reconfiguring walls,

(g) work for which consent or another approval is required under any other Act,

(h) any other work prescribed by the regulations for the purposes of this subsection."

1. Section 110 of the SSMA provides for lot owners to undertake minor renovations to common property without the owners corporation's approval. It relevantly states:

"110 Minor renovations by owners

(1) The owner of a lot in a strata scheme may carry out work for the purposes of minor renovations to common property in connection with the owner's lot with the approval of the owners corporation given by resolution at a general meeting. A special resolution authorising the work is not required.

(2) The approval may be subject to reasonable conditions imposed by the owners corporation and cannot be unreasonably withheld by the owners corporation.

(3) Minor renovations include but are not limited to work for the purposes of the following -

(a) renovating a kitchen,

(b) changing recessed light fittings,

(c) installing or replacing wood or other hard floors,

(d) installing or replacing wiring or cabling or power or access points,

(e) work involving reconfiguring walls,

(f) any other work prescribed by the regulations for the purposes of this subsection.

(4) Before obtaining the approval of the owners corporation, an owner of a lot must give written notice of proposed minor renovations to the owners corporation, including the following -

(a) details of the work, including copies of any plans,

(b) duration and times of the work,

(c) details of the persons carrying out the work, including qualifications to carry out the work,

(d) arrangements to manage any resulting rubbish or debris.

(5) An owner of a lot must ensure that -

(a) any damage caused to any part of the common property by the carrying out of minor renovations by or on behalf of the owner is repaired, and

(b) the minor renovations and any repairs are carried out in a competent and proper manner.

....

(7) This section does not apply to the following work -

(a) work that consists of cosmetic work for the purposes of section 109,

(b) work involving structural changes,

(c) work that changes the external appearance of a lot, including the installation of an external access ramp,

(d) work involving waterproofing,

(e) work for which consent or another approval is required under any other Act,

(f) work that is authorised by a by-law made under this Part or a common property rights by-law,

(g) any other work prescribed by the regulations for the purposes of this subsection."

1. Common property is defined in s 4 of the SSMA to be as set out in the Strata Schemes Development Act 2015 (NSW) ("SSDA"). Section 4 of the SSDA defines common property as "...part of a parcel that is not comprised in a lot (including any common infrastructure that is not part of a lot)."

1. This decision is based on consideration of all the evidence before the Tribunal. It may not refer to each piece of evidence, but has considered all evidence when making the decision. This decision will now address the lot owner's claims separately.
2. The critical question is whether the proposed Works will include work to the common property. If it does include work to the common property, then the Tribunal must determine if the works fall within the exceptions within s 109 or 110 of the SSMA. If the Works do not fall within these or any other exceptions, then owners corporation approval is required.
3. It is common ground that:

(1) the strata scheme is a two lot scheme. The boundaries of each lot are described in the survey report of Bee and Lethbridge dated 13 November 2023. In summary, Lot 1 is the larger lot, on the first and second floor. Lot 2 is on the first floor only. Each lot also has a garden as a part of the lot. The lot 2 garden is located to the rear of lot 2 interior. The lot 1 garden is larger than the lot 2 garden, and is located behind the lot 2 garden, which forms a part of lot 1. The lot 1 garden is accessed via a stretch of common property garden located adjacent to lot 2's interior, extension and garden. There is also a common property laundry accessed from the common property garden, and adjacent to the lot 2 interior.

(2) Lot 2 contains an extension to the building, into the lot 2 garden area. The extension contains an internal area and a deck. The extension is affixed to the main building by way of wall bolts, below the lot 1 windows. The lot 2 extension was constructed in approximately 1996.

(3) There is a doorway from the Lot 2 extension into the common garden area, with two timber stairs leading from the extension doorway to the common garden.

(4) Lot 2 seek to undertake works to the lot 2 extension, which includes increasing the footprint of the extension, removing the timber stairs into the common property and relocating the doorway from the extension into the common garden. The current plan for these works is as depicted in the bundle of drawings, each dated 12/2023 ("the Works").

(5) there is development approval in place for the Works to the lot 2 extension dated 14 September 2023.

(4) the owners corporation has not given consent to the lot 2 owners to perform the Works.

1. The Tribunal is satisfied that there is a small layer of common property on the exterior wall, from the elevation level with the underside of the Lot 2 ceiling to the top of the flooring of Lot 1's upstairs level. The height of the common property section is 0.21m.
2. The Tribunal finds that upper limit to the lot property of Lot 2 is the underside of the ceiling within the brick portion of building, and 3m above the level of the concrete floor in the brick building for all Lot 2 areas outside of the brick building. This includes the Lot 2 extension and lot 2 garden area.
3. The Tribunal has considered the bundle of plans for the proposed works, dated 12/2023. The Tribunal finds that these plans depict the current proposed works to Lot 2, and the current lot 2 extension.
4. The Tribunal finds that the current Lot 2 extension is affixed to the main brick building by way of bolts into the brick, in a portion of the wall that is part of Lot 1. The bolts currently encroach into Lot 1.
5. The Tribunal finds that removing these bolts to replace the roof, and construct the proposed new roof in accordance with the Works, will involve work to the Lot 1 property. The Tribunal finds that such work requires the consent of the Lot 1 owner. The Tribunal is satisfied that the Lot 1 owner has not provided consent.
6. The Tribunal is not satisfied, based solely on the letter from the respondent's builder, that the existing extension roof can be removed without affecting the Lot 1 property. This letter does not acknowledge the Tribunal's expert witness code of conduct, nor state how such removal of the roof without affecting the bolts to the Lot 1 property would be implemented, except by way of a broad statement. This is insufficient evidence to establish that the Works would not include work to the lot 1 property.
7. Whilst the Tribunal notes the drawings are marked "all works are to be located within the boundaries of lot 2 SP 47360", the Tribunal is not satisfied that this statement is determinative of the Works impact to the common property.
8. The Tribunal finds that there are currently stairs from the Lot 2 extension onto the grass common property. The top of the stairs are affixed into the lot 2 extension, within Lot 2 property. The majority of the stairs are located on the common property. The Tribunal finds that the base of the stairs are affixed to a brick pad embedded in the common property soil. The Tribunal finds the proposed Works will remove these stairs. The Tribunal finds that the removal of these stairs is work to common property.
9. The Tribunal is therefore satisfied that the Works involve work to common property, and to Lot 1 property. Accordingly, the owners corporation's consent is required unless an exception to the works applies within ss 108-110 of the SSMA.

1. No.
2. The Tribunal finds that the current lot 2 extension is visible from the common property garden. The proposed Works extend the lot 2 extension along the lot 2 boundary with the common property garden. The proposed Works change the shape of the deck from a and move its location. The shape of the current deck will change from a protruding shape to a rectangular shape. The roof line of the extension will change.
3. The Tribunal finds that the proposed Works will be visible from the common property garden.
4. The Tribunal finds that the proposed Works will involve structural change, by way of demolition of the existing extension and erection of a new extension. The Tribunal further finds that the changes to the size, heigh, roofline, deck location and deck shape amount to work that will change the external appearance of Lot 2.
5. The Tribunal therefore finds the works are not cosmetic works under s 109 or minor works under s 110 of the SSMA. Accordingly the works require the approval of the owners corporation, or an order of the Tribunal.

1. There is no application before the Tribunal seeking approval of the Works under s 126 of the SSMA or any other basis. The sole application is by the Lot 1 owner seeking an order to prevent the Works proceeding, and orders in respect of excluding the box gutter design and visual impact of the proposed roof to the Works.
2. The Tribunal is satisfied that the order sought is an order that a party from refraining from doing a specified act. Accordingly the Tribunal is satisfied that has jurisdiction to make an order under s 241 of the SSMA that the respondents are not to undertake the Works until owners corporation or Tribunal consent is obtained.
3. The applicant also seeks an order that any works already performed by the respondents be rectified and the property returned to its original state.
4. The Tribunal finds no work affecting the common property has been commenced. The Tribunal dismisses the application for this order.

1. The applicant seeks an order prohibiting the use of a box gutter design in the proposed extension. The Tribunal has considered the evidence before it in relation to the box gutter. The Tribunal is satisfied that the box gutter will be located entirely on the lot 2 property. The Tribunal is not satisfied that there is sufficient evidence before the Tribunal to order that the Works should not include a box gutter. The Tribunal dismisses this order.
2. The applicant also seeks an order that the works be prohibited from proceeding based on the current visual impact to lot 1's view to the lot 1 garden. The applicant relies on submissions and photographs prepared by the applicant's representative.
3. There is no independent expert evidence before the Tribunal in relation to the visual impact of the proposed Works to the lot 1 view of the lot 1 garden.
4. The Tribunal is satisfied that there will be a change to the sight lines to the applicant's garden from the applicant's upstairs windows if the Works are constructed in accordance with the plans.
5. The Tribunal is not satisfied, based on the evidence before it, of what specific change to the roof design of the Works is proposed. The Tribunal is not satisfied in consideration of all the evidence, that an order requiring a change to the proposed roofline is established. The Tribunal dismisses this order.

1. The applicant seeks an order that the respondent pay the applicants costs in the proceedings. Section 60 of the Civil and Administrative Tribunal Act 2013 (NSW) ("NCAT Act") states that "Each party to proceedings in the Tribunal is to pay the party's own costs", however "The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs".
2. Section 60(3) states the following non-exhaustive list of considerations as to whether special circumstances are established:

"(a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings,

(b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings,

(c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law,

(d) the nature and complexity of the proceedings,

(e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance,

(f) whether a party has refused or failed to comply with the duty imposed by section 36(3),

(g) any other matter the Tribunal considers relevant."

1. The Tribunal is required to make a global assessment of whether there are special circumstances, having regard to the matters set out in subsection 60(3).
2. It is well-established that the adjective "special" requires circumstances that are out of the ordinary but do not need to be extraordinary or exceptional (Megerditchian v Kumond Homes Pty Ltd [2014] NSWCATAP 120).
3. The Tribunal has a discretion which must be exercised. It is necessary to consider first, whether there are special circumstances and if so, whether those circumstances warrant an award of costs.
4. In these proceedings, the applicant seeks an award of costs on the basis that the respondents have not complied with the orders of the Tribunal on 4 March 2024, and that their ongoing non compliance amounts to a special circumstance.
5. The Tribunal has considered the orders of 4 March 2025. These required both parties to "resolve all issues between them as discussed in the hearing by 14 March 2024."
6. The applicants submit that the issues discussed included agreement to a by law, which was not written at the date of the orders, and amendments to the design.
7. Whilst the applicant's representative drafted a set of by laws, these by laws went beyond the issues in dispute in these proceedings. It is common ground that the respondents have not agreed to these by laws. The Tribunal finds that failing to agree to these by laws did not amount to a breach of the 4 March 2024 order by the respondents.
8. As stated above, the Tribunal considers that the 4 March 2024 order was non specific and not a final order in these proceedings. The tribunal is not satisfied that a purported failure to comply with the unspecific order is a special circumstance.
9. Turning to the factors set out in s 60(3) of the NCAT Act, the Tribunal is also not satisfied that the respondent has unnecessarily disadvantaged the other party. The respondent has provided documents broadly in compliance with procedural directions. The respondent complied with the Tribunal's interim order dated 23 July 2025. The Tribunal is not satisfied that the respondent has unreasonably prolonged the proceedings.
10. Most of the factual basis for the decision was based on agreed facts. There was a genuine issue to be determined as to whether the works were works to the common property.
11. The Tribunal is not satisfied that, in a global assessment of all the circumstances, there are special circumstances in these proceedings. The Tribunal considers it appropriate that there is no departure from the position in s 60(1) of the NCAT Act each party bears its own costs.
12. However, if either party seeks a different order as to costs they may apply to the Tribunal within 14 days of the date of these orders.

(1) The respondents must not carry out the works set out in drawings date 12/2023 without authorisation under the Strata Schemes Management Act 2015 (NSW).

(2) The application s otherwise dismissed.

(3) Each party is to pay its own costs.

(4) If either party seeks a different order in relation to costs as set out in Order 3, they must lodge their application for a different costs order with supporting submissions of no longer than two pages, within 14 days of the date of these orders.

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.