"that the property referred to in that order be designated as restricted property for the use of any lot owner, its agents, employees and invitees".

1. There was no objection raised by either of the respondents, and the Tribunal allowed the amendment. At the conclusion of the hearing the Tribunal reserved its decision.

1. Section 54 of the Community Land Management Act, 1989 provides (relevantly):

(1) A by-law in a community management statement may restrict the use of part of the community property:

(a) to the proprietor or proprietors of one or more development lots, neighbourhood lots or strata lots, or

(b) to one or more precinct associations, neighbourhood associations or strata corporations,

(7) A by-law made for the purposes of this section must include:

(a) a description of the property to which it applies, and

(b) details of the persons entitled to use the property, and

(c) the terms and conditions on which those persons may use the property, and

(d) particulars relating to access to the property and the provision and keeping of any key necessary, and

(e) particulars of the hours during which the property may be used, and

(f) provisions relating to the maintenance of the property, and

(g) matters relating to the determination, imposition and collection of levies on those entitled to use the property.

1. Section 79 of the Community Land Management Act, 1989 provides:

(1) If an association, or a strata corporation, decides to create, or to refuse to create, restricted property, or if a necessary consent to the creation, or to a refusal to create, restricted property has not been given, the Tribunal may, by order, amend:

(a) the management statement for the association, or

(2) Without limiting the operation of subsection (1), an amendment made under that subsection may have the effect of revoking so much of a management statement or by-laws as creates restricted property.

(3) The order must be made on the basis of what the Tribunal considers to be the best interests of all the members of the association or strata corporation.

(4) Application for an order under this section may be made by:

(b) the proprietor of a lot within the scheme under which the association or strata corporation is constituted."

1. On 6 July 2010 the community association refused the applicant's request to create restricted property. The applicant is the owner of lot 1 SP 76975 and is a person entitled under s 79(4) to bring the application.

2. Accordingly the Tribunal has jurisdiction to determine the application.

1. The management statement contains a number of by-laws relevant to the Tribunal's consideration of the application. They are by-law 9, providing that there is no restricted property, by-law 10.2 - 10.4 dealing with the open access ways within the development and empowering the Community association to make by-laws "for the management of the open access way, its use by owners of the community lots and members of the public and its maintenance from time to time" and by-law 22 which provides for restrictions on parking on the community property otherwise than in areas designated for that purpose. By- law 19.1 makes the proprietor, lessee or occupier of the lot responsible not to interfere with the quiet enjoyment of another lot, or the community association, or of any person lawfully using the common property.

The applicant's case comprised the evidence of a director of the applicant company and a valuer. The valuation evidence went to the compensation payable to the community association if the application was successful, and was not contested. Accordingly there is agreement between the parties that an amount of $25,000.00 be paid to the community association as compensation if the application succeeds.

Otherwise the applicant gave evidence that it had purchased the property with the benefit of 13 car parks, 10 along the side of the building and 3 in front. It had made development application to council which included the construction of a mezzanine level comprising 270 square meters in additional area. Council's car parking code required an additional car park for every 40 square meters of additional floor space. For this reason, the three car parks at the front of lot 1 had been reconfigured on the plan lodged with council into 7 car parking spaces, increasing by 4 the number of spaces in the immediate vicinity of lot 1. The developer, who at the time owned both lot 1 and lot 2, consented to the development application and the creation of the additional car parking. When council raised a query about the effect of the additional car parking on the turning area for the loading bay for lot 2, the developer wrote to council, assuring it that he was supportive of the car parking reconfiguration.

In due course, on 6 March 2008, the application had been approved by council and the car parking spaces were constructed in about July 2008, partly within lot 1's designated car parking spaces, and partly on community land, within the open access ways referred to in by-laws 10.2 - 10.4 and in breach of by-law 22.

The applicant gave evidence that it would be disadvantaged and would suffer loss and detriment if the application was not approved. It said that the car parking spaces were required for use by its staff and clients.

The applicant conceded that it had not conducted a parking survey. It had also not applied to council to vary the conditions of the development consent to remove the additional car parks. The applicant's evidence was that it would be expensive to remove the additional spaces and return the property to its original state.

The applicant relied upon the view conducted on the morning of the hearing. At that view a truck said to be 9.0 m long demonstrated a number of turns into the loading bay of the first respondent's property. On the first attempt, the applicant stated that the truck took approximately 3 turns to manoeuvre into position, but crossed the car parking lines in doing so. On the second occasion, it took the same number of turns and according to the applicant did not cross the lines in doing so. However it did not come entirely square to the loading bay.

The applicant's case was that the Tribunal would find in its favour and would be satisfied that the making of the order was in the best interest of all the members of the association, "because the detriment to the applicant in not making the orders is real, the detriment to the respondent is hypothetical or otherwise not proved, no other owner objects and the community association will be compensated." The applicant argued that it would suffer detriment because it is a condition of its development consent that it provide the car parking spaces, and even if the development consent could be varied, the loss of the car parks (said to be 7 rather that 4) "will have an appreciable effect on the applicant's clients and tradespersons and thus on its business".

The applicant argued that any detriment to the respondent is hypothetical and overstated. It argued that the valuation evidence relied upon by the respondent is not to be accepted, and thus any reduction in the value of the respondent's property has not been established. It relied upon a letter from the current tenant of the respondent's property as evidence that there are never any practical problems with the current arrangement. It argued that the demonstration showed that a 9.0m truck could manoeuvre into the respondent's parking bay without difficulty.

It accordingly argued that the change could be seen to be in the best interest of all the members of the association.

1. The first respondent relied upon evidence of a director of the first respondent company, a valuer and an engineer. It was the first respondent's case that the car parking impeded access to its loading bay, making it difficult for trucks to manoeuvre. It had a different recollection than the applicant of the demonstration by the applicant, recalling that the truck took 7 manoeuvres on the first occasion, crossing the lines in the process, and then fewer turns on the second attempt but without coming square to the loading bay.

2. The first respondent also relied upon the report of a transport planner to the effect that an 8.8m service vehicle would be required to negotiate a 6 point turn in order to reverse into the loading bay.

3. The valuer gave evidence that a "national tenant" would not be interested in the site because trucks of 11 - 12 m would be unable to access the loading bay. He then argued that there would be a diminution in value of the respondent's property by $480,000.00 adopting a difference in yield of 10% between a national and a secondary tenant.

4. For all these reasons the first respondent argued that it suffers detrimentally from construction of the car parking spaces and that it was not in its best interest for the orders sought by the applicant to be made by the Tribunal.

1. The issues for determination by the Tribunal are whether the making of the orders sought is in the best interest of all the members of the association. If the Tribunal finds that it is, what terms should be included in the by-law? The Tribunal notes that the application specified the matters required under s 54(7)(a) and (b), but did not address the matters referred to at s 54(7)(c), (d), (e), (f) or (g). These matters are mandatory in determining the terms of the by-law, under

1. The Tribunal finds, having considered the demonstration conducted by the applicant and the evidence of the first respondent's engineer, that access to the loading bay, whilst not impeded, is more difficult and time consuming than it would be if the car parks had not been constructed. This is a detriment to the first respondent which is not hypothetical but real. It should be noted that the first respondent's current tenant did not state that there was no detriment but rather that he had developed a working relationship with the applicant "if any problem arises during the day with the unloading of trucks and containers etc".

2. The Tribunal was not persuaded by the valuation evidence of the first respondent, which appeared to have been constructed without regard to the planning controls which themselves prevent 11 - 12 m trucks accessing the site. However the first respondent does not have to prove a diminution in value in its property for the proposal not to be in the best interest of the first respondent.

3. The Tribunal has considered the cost of removing the construction, which is clearly a detriment which will be suffered by the applicant if the Tribunal does not make the orders sought. However, that cost arises from the applicant's failure to get the requisite consent before construction. The Tribunal has also considered that a detriment may flow to the applicant from what will amount to a breach of its development consent. However there was no evidence that council would pursue any such breach or that council would not approve a request to vary the consent.

4. The Tribunal notes that the term "best interest" is not defined in the legislation. The Tribunal adopts the Macquarie definition of "best" and "interest" in order to provide some guidance as to how the term should be interpreted. In this regard "best" means "most advantageous, suitable or desirable" and interest means "the relationship of being affected by something in respect of advantage or detriment". "Advantage" means "benefit, gain or profit". The term "best interest" occurs frequently in areas such as family law and corporations' law. As discussed in Nuluma Village v Donald Francis Rannard & ors [2010] NSWDC 46, the Tribunal must also have regard to s 75B(2) which requires, inter alia:

"that the Tribunal act according to equity, good conscience and the substantial merits of the case, without regard to technicalities or legal forms."

1. It seems to the Tribunal that the term "best interest" cannot be replaced solely with a comparison of detriment, for to do so is to stand the concept on its head. The term "best interest" implies a positive benefit, not merely an absence of detriment. What interest does the first respondent have in having its access to its loading bay restricted, and how can this be seen as being in its best interest? There is no doubt that the construction of the car park is in the best interest of the applicant, and we can take it that other lot owners who did not intervene in the proceedings are not concerned about the proposal (although whether it can be said to be in their best interest is debatable). However the Tribunal is not satisfied that the proposal is in the best interest of the first respondent, and as the section requires the Tribunal to be satisfied that it is in the best interest of all lot owners, the application must fail.

2. It follows from this decision that the Tribunal is not called upon to determine the terms of the proposed by-law. The Tribunal notes that there may well have been some difficulty in it doing so, bearing in mind the mandatory nature of s 54.

1. The stay on the orders dated 8 July 2010 of the Adjudicator is lifted.

2. Order 1 of the Adjudicator is varied to require that the work be carried out on or before 1 March 2012.