Gregory v Community Association DP No 270127

NCAT Consumer and Commercial|2023-11-27|Before: Community Association DP

regory (Applicant) Community Association DP No 270127 (Respondent) Representation: Counsel: S Thomson (Applicant) T Davie (Respondent)

Solicitors: Vobis Equity Attorneys (Applicant) Dixons Lawyers (Respondent) File Number(s): 2023/00394204 (formerly CL 23/23565) Publication restriction: Nil

Relevant legislation and instruments

The respondent was established pursuant to the Community Land Development Act 1989 (NSW) (CLDA 1989). That legislation was repealed in 2021 and replaced by the Community Land Development Act 2021 (NSW) (CLDA 2021). Pursuant to schedule 4 of the CLDA 2021, the constitution of the respondent under the CLDA 1989 continues to have effect under the CLDA 2021.
The respondent is regulated pursuant to the Community Land Management Act 2021 (NSW) (CLMA). That act replaced the Community Land Management Act 1989 (NSW).
Part 7 of the CLMA relevantly provides: Part 7 Management statements and by-laws for associations Division 1 Interpretation 126 Definitions In this Part - change a by-law means amend or repeal a by-law contained in a management statement. make a by-law means amend a management statement to include a new by-law. Division 2 Management statements 127 Binding effect of management statement (1) A management statement for a scheme applies to the scheme and each subsidiary scheme and is binding on - (a) the association for the scheme, and (b) each subsidiary body for the scheme, and (c) each person who is the owner, lessee or occupier, or the mortgagee or covenant chargee in possession, of a development lot, neighbourhood lot or strata lot within the scheme or a subsidiary scheme. (2) A management statement has effect as if - (a) it includes mutual covenants by each person on whom it is binding to observe and perform its provisions, and (b) the persons so bound had signed and sealed the management statement. 128 By-laws that may be included in management statements (1) By-laws may relate to the management, administration, control, use or enjoyment of the lots in an association scheme or the association property. (2) By-laws for a scheme may relate to the control or preservation of the essence or theme of the development under the scheme by - (a) limiting occupancy under the scheme to persons of a particular description, or (b) fixing the architectural, building or landscaping styles to be permitted, or (c) limiting the kind of materials that may be used in buildings and other structures, or (d) requiring that specified association property be used only for particular purposes, or (e) imposing any other kind of restriction. (3) A management statement has no force or effect to the extent that it is inconsistent with this or any other Act or law. … 130 Restrictions on by-laws for association schemes (1) By-law cannot be unjust A by-law for an association scheme must not be harsh, unconscionable or oppressive. Note - The by-law may be invalidated by the Tribunal (see section 140). (2) By-law cannot prevent dealing relating to lot No by-law of an association scheme is capable of operating to prohibit or restrict the devolution of a lot or a transfer, lease, mortgage or other dealing relating to a lot. (3) By-law resulting from order cannot be changed If an order made by the Tribunal under this Act has effect as if its terms were a by-law of an association scheme, that by-law is not capable of being amended or repealed except by a by-law made in accordance with a unanimous resolution. (4) By-law cannot restrict children A by-law of an association scheme has no force or effect to the extent to which it purports to prohibit or restrict persons under 18 years of age occupying a residential lot. (5) Subsection (4) does not apply to a by-law for a scheme for a retirement village (within the meaning of the Retirement Villages Act 1999) or housing exclusively for aged persons.
Section 193 of the CLMA provides: 193 Orders to settle disputes or rectify complaints (1) Orders relating to complaints and disputes The Tribunal may, on application by an interested person, make an order to settle a complaint or dispute about any of the following - (a) the operation, administration or management of a scheme under this Act, (b) an agreement authorised or required to be entered into under this Act, (c) an agreement appointing a managing agent or a facilities manager, (d) an agreement between the association or strata corporation and an owner, mortgagee or covenant chargee of a lot in a scheme that relates to the scheme or a matter arising under the scheme, (e) an exercise of, or failure to exercise, a function conferred or imposed by or under this Act or the by-laws of a scheme, (f) an exercise of, or failure to exercise, a function conferred or imposed on an association or strata corporation under another Act. (2) Failure to exercise a function For the purposes of this section, an association, strata corporation or association committee is taken not to have exercised a function if - (a) it decides not to exercise the function, or (b) application is made to it to exercise the function and it fails for 2 months after the making of the application to exercise the function in accordance with the application or to inform the applicant that it has decided not to exercise the function in accordance with the application. (3) Other proceedings and remedies A person is not entitled - (a) to commence other proceedings in connection with the settlement of a dispute or complaint the subject of a current application by the person for an order under this section, or (b) to make an application for an order under this section if the person has commenced, and not discontinued, proceedings in connection with the settlement of a dispute or complaint the subject of the application. (4) Disputes relating to consent to development applications The Tribunal must consider the interests of all the owners of lots in a scheme in the use and enjoyment of their lots and the association property or common property in determining whether to make an order relating to a dispute concerning the failure of an association or strata corporation to consent to the making of a development application under the Environmental Planning and Assessment Act 1979 relating to association property or common property. (5) Excluded complaints and disputes This section does not apply to a complaint or dispute relating to an agreement that is not an agreement entered into under this Act, or the exercise of, or failure to exercise, a function conferred or imposed by or under any other Act, if another Act confers jurisdiction on another court or tribunal with respect to the subject-matter of the complaint or dispute and the Tribunal has no jurisdiction under a law (other than this Act) with respect to that subject-matter. (6) This section does not apply to a complaint or dispute relating to a function of, or a failure to exercise a function by, an association or strata corporation if the function may be exercised only in accordance with a unanimous resolution or a special resolution (other than a special resolution relating to association property or common property).
The community management statement for the respondent, as initially enacted, included by-laws 4(7) and 4(8) as follows: "SCREENS, ETC. (7) The proprietor or occupier of a lot must not except with the approval of the community association: - (i) Fix shutters, blinds, canopies or awnings to the outside of the building on a lot or the outside of a building containing a lot; (ii) Fix bars, screens securities doors or other securities devices to the outside of the building on a lot or the outside of a building containing a lot; (iii) Fix fly screens to windows or fly screens doors to doorways of a building on a lot or a building containing lot. (iv) Fix signs, including real estate sale or lease signs, other than those of the developer, to any building or construction contained in or on a lot or in or on the community property. ALTERATIONS (8) No owner or occupier shall make any external alteration or attach any external decoration or other thing to the external walls of building or to any wall or fence which may be capable of being seen from the community property unless consent of the Community Association has been applied for and obtained."
By law 4(8) was replaced in 2004, pursuant to a special resolution of the respondent passed on 30 September 2004, with the following: "No owner or occupier shall make any external alteration, attach any external decoration or other thing to the external walls of the building or to any wall or fence or place upon the garden, lawn or landscaped area any decoration or other thing which may be capable of being seen from the Community Property and is considered by the Community Association not to be in keeping with the theme of Abbotsford Cove, unless written consent of the Community Association has been applied for and obtained in writing."
The parties' submissions proceeded on the basis that by-law 4(8) remained in its original form. The only reference in the parties' submissions to the amended by-law 4(8) is in paragraph [8] of the Respondent's outline submissions which says: "Reference might also be made for completeness to the added by law "F" to be found at AB 398 which is not invoked by the respondent."
The reference to "added by law 'F'" appears to be a reference to the section of the standard NSW Land and Property Information form for the registration of amendments to management statements where the text of the relevant amendment is to be inserted.
I will proceed on the basis that neither party suggests the amendment of clause 4(8) has any relevance to the issues for determination in the proceedings.

The applicant's opening submissions dated 23 November 2023

The applicant submitted that, as an application had been made for permission to install the Vergola on 18 June 2022 and the application had been resubmitted on 6 July 2023, more than two months had passed since the respondent had been requested to exercise the power to give consent to the installation of the Vergola. The applicant maintained that the function of giving consent under the by-laws, in particular by-laws 4(7) and (8), was a function conferred or imposed upon the respondent and, since application had been made to the respondent to exercise that function and the respondent had not given that consent within two months of the request, there was a failure on the part of the respondent to exercise the function and, pursuant to s 193(1)(e) of the CLMA the Tribunal has power to make an order to settle the dispute.
The applicant submitted that, in exercising that power to determine the dispute, the Tribunal must reach the "correct or preferable decision" (citing Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 589).
The applicant accepted that s 193(4) is not directly applicable in this case, but submitted that: "[B]y analogy … When considering an application relating to a failure to give consent to proposed development in relation to Mrs Gregory's private property, the Tribunal should consider the interests of all the owners of lots in the scheme in the use and enjoyment of the lots and the community property."
The applicant submitted that the Tribunal should also be guided by the purpose of the by-law making power arising under s 128 of the CLMA, said relevantly to be "to regulate the use or enjoyment of the lots in an association scheme or the association property."
The applicant submitted: "16. The evidence in this case, considered below, supports a determination that the interests of all of the owners of the lots in the scheme in the use and enjoyment of their lots and the community property are best served by the Tribunal making an order to resolve the dispute by making an order providing consent for Mrs Gregory to install the vergola on her Property. That is because the vergola stands to greatly benefit Mrs Gregory's interests in the enjoyment of her lot (by providing adequate shade, particularly in summer months) while not materially interfering with the enjoyment of the other lot owners."
The evidence to which the applicant referred was: 1. Mr Black's report of 17 August 2023, in which Mr Black confirmed: "[T]hat the [Statement of Environmental Effects submitted to the council in support of the applicant's development application] addresses the visibility of the approved vergola structure and is based upon commonly used development application assessment criteria which considers the visibility of a proposal to the 'casual observer'"; and 1. The Development Assessment Report in relation to the applicant's proposal, prepared for the City of Canada Bay Council by its planning consultant.
In respect of Mr Black's report, the applicant submitted: "17. Mrs Gregory's successful application for DA approval was supported by a Statement of Environmental Effects dated 27 May 2022 (SEE), prepared by Benjamin Black, a planning expert from Avenue Planning Pty Ltd. Mr Black has agreed to be bound by the NCAT Procedural Directions for providing Expert Evidence. Mr Black's conclusion is that the vergola would be 'largely imperceptible to the casual observer', that is, to how a lay person would view the vergola in its broader context and without specifically focusing on the vergola. Mr Black's opinion is that. 'The proposal will not give rise to any unacceptable impacts on the natural and built environment and will improve the amenity achieved for the unit occupants through the creation of operable weather protection to suit different weather conditions. The proposal is suitable for the site and in the interest of the public'. 18. The only way that the vergola impacts other lot owners is in its appearance. The vergola will not infringe any other lot owner's rights to use and enjoy their own lots or the community property in any way. Mr Black opines that the proposed vergola will have only a minimal visual impact, because: 'to the untrained eye or layman using the adjacent public spaces, the vergola would, by virtue of its thin profile, location 5 storeys above ground level, finish (being a similar colour to the external treatment of the existing building) and scale of surrounding development, blend in with the existing building and not be a visually notable addition to the building.' 19. Mr Black further opines: 'When viewed externally, the proposed vergola will be largely imperceptible to the casual observer. The structure has a thin profile and will be attached to a portion of the building that is well above ground level and the existing building will remain as the dominant visual feature when viewed from the Parramatta River, the adjacent foreshore and from nearby properties. The vergola will not have any material impact on streetscape appearance of the building. As indicated on the submitted architectural plans, proposed building materials include surf mist [i.e. white] for the vergola roof and the vergola frame is to be painted to match the existing external building walls. When viewed in conjunction with the existing building, the proposal will be complementary to its appearance, whilst offering enhanced amenity for the building occupants via controlled exposure to the weather.'"
In relation to the Development Assessment Report, the applicant submitted: "20 …The Council determined that the 'development is deemed consistent with the public interest', finding that the installation would have a minimal impact on the built environment. 'The built form remains relatively unchanged, with the minor addition of a pergola over an existing outdoor entertainment area. As the outdoor entertaining area is located over the lower level of the penthouse apartment and is open on all three sides, when viewed from the foreshore it would still read as being a recessed element upon the upper floors of the development. In addition, the structure does not protrude above the existing height of the main roof line or exceed the width of the existing unit and those behind. The pergola columns will match the existing facade colour of the development, with the pergola louvres finished in the Colourbond colour surf mist [i.e. white], which is considered to be complementary to the existing colour scheme of the development.' 21. Further, the Council found that found the vergola installation proposal is compliant with the relevant provisions of the Canada Bay Development Control Plan 2017, making findings that: (a) 'The structure is open in design and does not enclose floor area or create the impression of additional height'; (b) 'The pergola maintains a flat roof profile, which is considered to integrate into the existing architectural style of the building'; (c) 'The pergola columns will match the existing facade colour of the development, with the pergola louvres finished in the Colourbond colour surf mist [i.e. white], which is considered to be complementary to the existing colour scheme of the development'; and (d) 'No alteration is proposed to the existing topography of the site, with the building form as viewed from Parramatta River largely unaltered, with the exception of the new pergola over an existing balcony area. The pergola does not penetrate over the main roofline of the residential flat building development and would be largely unseen beyond the backdrop of the northern facade. In addition, no vegetation is impacted'."
The applicant noted that the respondent's refusal of consent in November 2022 was not supported by any expert opinion.
The applicant criticised the report prepared by Mr Fortunato of Corona Projects, noting that Mr Fortunato had not agreed to be bound by the Tribunal's Procedural Direction in relation to expert evidence. The applicant also suggested that the Mr Fortunato's independence was called into question by the fact that an alternative design incorporated in Mr Fortunato's report bore "a suspicious resemblance" to a design proposed by Mr Osborne at the special general meeting in June 2023. I note that both Mr Osborne and Mr Fortunato acknowledged in their oral evidence that Mr Osborne's proposal had been communicated to Mr Fortunato. The alternative design involved a smaller Vergola limited to the central section of the applicant's balcony with retractable blinds providing shade to the areas on either side.
In respect of the alternative design, the applicant also pointed to a report from the applicant's structural engineer which identified the maximum wind pressures on the proposed Vergola and specified a minimum beam size. The report then states "anything less than the specified members may result in excessive deflections". I understand the applicant to be submitting that that is inconsistent with Mr Fortunato's suggestion that a smaller Vergola installed on the applicant's deck could have "operable awnings", that is awnings which can be retracted in high winds.
I note immediately that I do not understand that to be what the structural engineer is saying. It is clear to me that the structural engineer is suggesting that, given the 9.56 m maximum span of the Vergola beams on the applicant's proposal, the beam was required to be at least "a 250 UC 72 with 150 x 150 steel posts" and that anything less than that, installed on the applicant's proposed Vergola, may result in excessive deflections. I do not understand the engineer to say that a smaller Vergola would experience excessive deflections. I note that the engineer's report does state that, in his opinion, a retractable awning "is not a suitable solution considering the high winds". No further elucidation of this opinion was provided, and the engineer did not give evidence at the hearing.
The applicant pointed out that Mr Fortunato: 1. Concurred with the statement in the development approval that "the flat roof profile and white finish is complimentary to the existing architectural style of the building"; 2. Stated that "save for 'bulk and scale concerns, the proposal is found to be largely compliant with' applicable planning instruments"; and 3. Acknowledged that generally "the reasoning within [Mr Black's] statement of environmental effects and Council's internal assessment report [were] well-founded and overall reasonable".

The respondent's outline submissions

The respondent noted that the applicant had identified in her initial application three bases for making the orders sought.
That is that the respondent, in voting against the proposal: 1. Did not follow due process; 2. Has not expressed any reasonable basis for doing so; and 3. Did not engage any experts in considering the request.
The respondent noted that those bases were not the subject of submissions. The respondent submitted that there was nowhere identified evidence to support the assertion that the respondent did not follow due process. The respondent submitted that there is "nothing in the legislation or the by-law to the effect that an approval or consent required by the by-laws must have an expressed reasonable basis."
The respondent noted that, by contrast, the Strata Schemes Management Act 2015 (NSW) (SSMA) expressly confers, by s 149, a power on the Tribunal to make an order where it finds that an owners corporation has unreasonably refused to make a common property rights by-law.
The respondent submitted that there is no requirement in the legislation or the by-laws that the respondent engage an expert before approving or consenting to the erection of an awning or external alteration.
The respondent further objected that there was nothing in the originating application to suggest that the Tribunal would be asked to enter into a "merits review" of the application for consent to construct the Vergola or that the respondent would be required to meet such a case.
The respondent characterised the approach adopted by the applicant in the evidence and submissions filed as approaching the application on the basis that: 1. The respondent had failed to exercise a function conferred by the by-laws, and therefore 2. The Tribunal must reach the correct and preferable decision in relation to the applicant's application.
The respondent submitted that the function the respondent was tasked with exercising was to consider the applicant's application to erect a Vergola. The respondent submitted that that function had been discharged at the meeting on 10 November 2022 and again in relation to the further application at the meeting on 27 July 2023.
The respondent pointed out that Mr Gregory, who represented his mother the applicant in relation to the proposal to install the Vergola, including in dealing with the respondent, had not attended the meeting on 27 July 2023. The respondent submitted: "[I]t would… be startling to submit that [the respondent] had failed to exercise a function by deferring consideration of whether to consent or approve in the absence of the proponent or a representative of the proponent."
The respondent submitted that the decision of the full Federal Court in Drake v Minister for Immigration and Ethnic Affairs was distinguishable, as that case arose under the Administrative Appeals Tribunal Act 1975 (Cth) which provided that, for the purpose of reviewing a decision "the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision". As the respondent submitted, no such power is conferred on upon the Tribunal under the CLMA.
The respondent acknowledged that: "The extent of the power conferred upon the Tribunal by s 193 is not clear."
The respondent referred to authorities dealing with s 232 of the SSMA, which is in similar terms to s 193 of the CLMA, and its predecessor in the Strata Schemes Management Act 1996 (NSW), s 138.
The respondent acknowledged that in Vickery v The Owners - Strata Plan No 80412 (2020) 103 NSWLR 352; [2020] NSWCA 284 (Vickery) Basten and White JJA had taken a broad view of the power conferred by s 232, but submitted: "The power conferred by s 193 does not entitle the Tribunal to order an owners corporation to do things just because the Tribunal considers it desirable to do so."
The respondent cited the decision of Parker J in Glenquarry Park Investments Pty Ltd v Hegyesi [2019] NSWSC 425 (Glenquarry Park) at [108] - [111]: "[108] An adjudicator has a general power to make orders to settle disputes or rectify complaints (s 138). This extends to disputes or complaints arising under s 62. The adjudicator's decision may then, under s 207, be included in an order which takes effect as a resolution of the owners' corporation which is binding and enforceable by the courts: see Thoo at [211]. [109] The power under s 138 may be exercised where there is a dispute or complaint about, among other things, "a failure to exercise" a function conferred or imposed by or under the Act, or the operation, administration or management of a strata scheme under the Act. But sub-section (2) provides that for the purposes of sub-section (1) the owners' corporation is taken to have failed to exercise a function if it decides not to exercise the function where application is made to it to exercise the function and it fails for two months after the making of the application to exercise the function. This suggests that the proposal must be put before the owners' corporation in some sort of formal and concrete way. [110] Although in a general sense the minority owners had been pressing for repairs to be done, the orders made do not reflect any specific proposals. It is thus doubtful whether there was a "failure" sufficient to enliven the power under sub-section (1). But this is not the only problem. [111] Senior Member Ross appears to have considered that the majority owners are responsible for the impasse about repairing the building. But on 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, then the Tribunal's order could go no further than the minimum necessary to comply with that obligation."
The respondent emphasised the last sentence of [111].
The respondent also cited the decision of Rothman J in The Owners - Strata Plan No 37762 v Pham [2006] NSWSC 1287 (Pham) at [62] - [65]: "[62] It is clear from the ex tempore reasons of the Tribunal and, in particular, the references therein to the exercise of "the function required of them" (see [29], infra) that the Tribunal was purporting to exercise jurisdiction under s 138(1)(a) of the Act. The Tribunal is not given a general supervisory function to oversee the Owners' Corporation. Nor is the Tribunal given ancillary jurisdiction in relation to matters that come before it. [63] By s 21 of the Consumer Trader and Tenancy Tribunal Act 2001 the Tribunal only has such jurisdiction to decide matters and such powers to make orders as is conferred on it by that Act or any other Act. Section 138(1)(a) of the Strata Schemes Management Act 1996 does not allow an Adjudicator, or, in this case the Tribunal, to make any order to settle any dispute or complaint. The words in para (a) and (b) confine the subject matter of the dispute and complaint and are words of limitation. … [65] … for the jurisdiction under s 138(1)(a) of the Act to be enlivened one must point to a function conferred by the Act or under the by-laws for a strata scheme."
The respondent noted that that decision had been applied in relation to s 232 of the SSMA by the Appeal Panel in Walsh v The Owners - Strata Plan No 10349 [2017] NSWCATAP 230 at [32].
The respondent referred to my decision in The Owners - Strata Plan Number 68255 v Downs; Downs v The Owners - Strata Plan No 68255 [2021] NSWCATCD 34 (Downs) at [194] in support of the proposition that nothing said by the Court of Appeal in Vickery overruled the propositions set out by Rothman J in Pham and Parker J in Glenquarry Park.
The respondent submitted: "42 Consistent with Glenquarry, if it is found that the respondent failed to exercise a function, the Tribunal is empowered to order it to exercise that function. To order more, and to specify how that function should be exercised, would be to go further than the minimum necessary to comply with the obligation. 43 The applicant's request that the Tribunal come to a 'correct and preferable' decision assumes that the Tribunal has the power to exercise a general supervisory jurisdiction to supervise the decision of the Community Association which, it is submitted, the Tribunal does not have."
The respondent submitted that there were four further reasons "why an order simply to exercise the function would be the appropriate order, if it is found that the [respondent] has, as contended, failed to exercise a function." 1. First, the respondent submitted that there are no express words in the CLMA imposing an obligation on a community association in relation to applications under the by-laws. The respondent cited The Owners of the Ship "Shin Kobe Maru" v Empire Shipping Company Inc (1994) 181 CLR 404 at 421; [1994] HCA 54 at [29]: "It is quite inappropriate to read provisions conferring jurisdiction or granting powers to a court by making implications or imposing limitations which are not found in the express words". 1. Secondly, the respondent submitted that it was prejudiced by the attempt by the applicant to pursue a "merits review" which was not foreshadowed in the application. The respondent submitted that the prejudice was "evidenced by the applicant's submissions as to the weight that should be attached to Mr Fortunato's report." 2. Thirdly, the respondent submitted that, even if it was satisfied that it was appropriate to conduct a "merits review", the Tribunal would "seek to uphold the power conferred in the by-law". The respondent submitted: "51 It is submitted that the intention behind the by-law is that the power to consent to or approve external alterations and the installation of awnings be approved be reserved to the Community Association. 52 It may, it is submitted, readily be inferred that this power was conferred because of the uniform architectural external appearance of the development as a whole, and a concern that, unless regulated, external alterations and the installation of awnings would diminish the development and the amenity of its occupants. 53 There is no identified suggestion that the respondent has approached its task in a manner that has no basis, or is capricious or arbitrary. In the absence of a clear indication that the Tribunal was entitled to step into the shoes of the respondent and make the decision that the by-law said should be made by the respondent, the Tribunal would, it is submitted, be hesitant to, in effect, usurp the function of the respondent." 1. Fourthly, the respondent indicated that it was prepared to support the modified proposal contained in Mr Fortunato's report. The respondent submitted that: "The issue of wind pressure does not arise where the awnings are operable and can be retracted when not in use."

The applicant's further submissions dated 4 December 2023.

As noted above, at the conclusion of the hearing the applicant was given leave to file submissions "in response to paragraphs 33 to 47 of the respondent's outline submissions" and in accordance with that leave filed submissions, dated 4 December 2023, on 5 December 2023.
In respect of the respondent's reliance upon Glenquarry, Pham and Walsh, the applicant submitted: "(a) First, as a matter of stare decisis, the Tribunal is not bound by any decision pursuant to the Act [ie the CLMA]. In any event, while it is accepted that the Act is, to some extent, in pari materia with the 1996 and 2015 SSM Acts, the decisions made under those Acts relate to applications that are relevantly distinguishable from Mrs Gregory's present application. There are also differences between those statutes and the Act which mean that it is inappropriate to read down the Tribunal's s 193 power to prevent it from resolving the dispute. (b) Secondly, the Tribunal still has power to settle Mrs Gregory's complaint in this case, because Mrs Gregory's complaint concerns specific errors made by [the respondent], first in its exercise of its power under the By Laws (the November 2022 Refusal) and, later, by its present and continuing failure to exercise a specific power under the By Laws."
The applicant submitted that each of Pham, Walsh, Glenquarry and Downs could be distinguished because none of those cases involved the failure to exercise a power to grant consent.
The applicant submitted: "(i) First, Parker J held that there had been no "failure to exercise" a function, because the lot owner had not made a "formal and concrete" application to the Owners Corporation requiring it to comply with its obligation to repair and maintain the common property pursuant to s 62 of SSM Act 1996. By contrast, Mrs Gregory has made two formal and concrete applications for [the respondent] to exercise its discretion pursuant to the By-Laws. [The respondent] does not contend otherwise. (ii) Second, the Tribunal's wide mandatory injunctions were not the "minimum necessary" to comply with its s 62 obligation. Parker J held that The 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 [the Applicant]'. In contrast, Mrs Gregory asks for a concrete and defined order from the Tribunal: An order that will take effect as if it were a resolution of [the respondent] to the effect that Mrs Gregory's Application is granted consent under the By-Laws. The Tribunal has the power to make such an order pursuant to s 193. This can be inferred from s 204(1) of the Act, which limits an association's ability to amend or revoke such an order: 204 Resolution purporting to alter effect of order (1) If an order by the Tribunal under this Act has effect as if it were a resolution, the order may be amended or revoked only by a unanimous resolution or as provided by subsection (3)."
The applicant submitted: "12 None of the cases cited by [the respondent] deal with whether the Tribunal has jurisdiction to settle a dispute or complaint regarding the exercise of a function conferred by a scheme's by-laws. Research has not identified any decisions under the SSM Act 1996 or 2015 applying Pham or Glenquarry Park to the effect that the Tribunal cannot make an order to settle a complaint or dispute about the exercise of a function conferred under a strata scheme's by-laws (rather than a failure to exercise a function). In particular, no cases have been identified concerning the Tribunal's dispute resolution jurisdiction where an Owners Corporation has exercised a power under a by-law to withhold consent in response to a concrete and defined request by an applicant."
The applicant also relied upon the High Court decision in The Owners of the Ship "Shin Kobe Maru" v Empire Shipping Company Inc. She submitted that: "… [H]ere, [the respondent] seeks to impose limitations on the Tribunal's jurisdiction pursuant to s 193 of the Act which are not found in its express words. Section 193(1)(e) provides that the Tribunal has jurisdiction "to settle a complaint or dispute about ... an exercise of, or failure to exercise, a function conferred ... under 'the by-laws of a scheme'. [The respondent] submits that because there are no 'express words in the CLMA, there is 'no basis for interpreting s 232 [sic] as conferring a power to determine' the manner in which [the respondent] should exercise its discretion pursuant to its By-Laws. But that is impermissibly to read down the conferral of power in s 193(1)(e), as it expressly relates to the settlement of disputes about an exercise of a function conferred under a scheme's bylaws."
The applicant further submitted: "14 Parliament has conferred that dispute resolution power on the Tribunal. It has circumscribed that power in only one potentially relevant circumstance. Section 193(6) provides that s 193 does not apply: "to a complaint or dispute relating to a function of, or a failure to exercise a function by, an association or strata corporation if the function may be exercised only in accordance with a unanimous resolution or a special resolution (other than a special resolution relating to association property or common property)." Section 232 of the SSM Act 2015 does not contain an equivalent section to s 193(6). Section 193(6) does not apply here: the November 2022 Refusal was a determination to exercise [the respondent's] power under the By-Laws passed by ordinary resolution, with the support of 60 per cent of the votes cast. Section 193 therefore does apply, and the Tribunal has jurisdiction to settle Mrs Gregory's dispute. 15 It is accepted that the Act does not express all of the specific examples of jurisdiction to resolve disputes that are found in the SSM Act 2015, such as ss 126 ("Orders relating to alterations and repairs to common property and other property") and 149 ("Order with respect to common property rights by-laws"). However, to reason from the absence of such specific expressions of jurisdiction in the Act to impose a limitation on the general jurisdiction granted by s 193(1) would infringe on the High Court's prohibition on "imposing limitations which are not found in the express words" when considering statutory jurisdiction. In light of that prohibition, it would be dangerous for the Tribunal to apply the maxim specialia generalibus derogant [sic], when the Act provides a general jurisdiction to settle disputes regarding the exercise of a function under a scheme's by-laws, and there are no relevant, specific provisions confining that jurisdiction in the Act. 16 To limit the Tribunal's dispute-resolution power in that way would contradict the approach taken by the majority of the Court of Appeal in Vickery v The Owners Strata Plan 80412 (2020) 103 NSWLR 352, in relation to s 232 of the SSM Act 2015. The majority in that case gave full effect to the width of the grant of jurisdiction conferred by s 232(1), which is in relevantly similar terms to s 193(1) of the Act. See the judgments of White JA: '167 It is true that if full amplitude is given to the words of s 232(1), then the provision would cover some of the more specific powers conferred on the Tribunal by other sections of the Act. But the Act is not structured in such a way that the conferral of specific powers on the Tribunal should be seen as limiting the conferral of the general power under s 232(1). The specific powers conferred on the Tribunal do not form a class or a genus by reference to which the general power under s 232(1) is to be read down. [applicant's emphasis]' and Basten JA: '28 If the reasoning in these respects is sound, the only basis for denying jurisdiction in the Tribunal to consider an application relating to a failure on the part of the owners corporation to pay damages with respect to a reasonably foreseeable loss suffered by the lot owner, is that an order to pay damages would not involve making "an order to settle" a complaint or dispute. However, it is difficult to understand why this language should be read down to that extent. The statutory scheme must be read as a whole. The terminology adopted in s 232 should be understood to cover claims and disputes with respect to any of the matters identified in subs (1), which are themselves in terms clearly intended to cover the full range of an owners corporation's functions in operating, administering and managing the strata scheme, and exercising or failing to exercise any function under the Act, or the by-laws of the strata scheme. [applicant's emphasis]'"
In response to the submission made by the respondent that the applicant is asking the Tribunal to exercise a general supervisory jurisdiction over the respondent's decisions, the applicant submitted: "(a) The Tribunal clearly has some form of supervisory jurisdiction over [the respondent's] decision: so much is made clear by the words of s 193(1)(e) which must not be read down. (b) Mrs Gregory's primary position is that Pham and Glenquarry Park are not judgments decided under the Act, nor judgments in relation to an entity's exercise of a discretion under a by-law. In those circumstances, the Tribunal is not bound to find that there is no general supervisory jurisdiction of such an exercise of discretion. The Act makes clear the evaluative criteria by which the Tribunal should reach a decision. (c) Mrs Gregory's secondary position is that, if the Tribunal finds that it does not have a general supervisory jurisdiction over [the respondent]'s decision, s 193(1)(e) nevertheless provides it with a specific supervisory jurisdiction: to ensure that [the respondent] makes its decision according to law."
The applicant submitted that the respondent's decision to withhold or provide consent was not subject to an unfettered discretion. The applicant submitted that s 128 of the CLMA, which is the source of the power to make by-laws, limits the reasons for which a by-law may be passed.
The applicant specifically stated that she did not challenge the validity of the by-laws, however she submitted that the discretion conferred by a valid by-law "may still be exercised invalidly if it is not exercised for the purpose of the by-law". The applicant cited the judgment of Dawson J in Foley v Padley (1984) 154 CLR 349 at 383: "Clearly it would have been an abuse of the discretion in question if it were exercised for purposes not comprehended by the by-law. Purposes which had no regard to 'the public's use and enjoyment of the park' would plainly have been beyond its scope and objects. The second thing is that the possibility of the abuse of a discretion leads to no necessary conclusion that the discretion is invalidly conferred. In pointing to the limits imposed upon a discretion by the scope and object of the instrument conferring it, Dixon J acknowledged the difficulty in establishing a wrongful exercise of the discretion where no reason need be given for it. But that was to affirm that if the exercise of a discretion conferred by a by-law is not exercised bona fide or is actuated by motives or reasons which fall outside the scope and purpose of the by-law, the law offers a remedy. That remedy is based upon the invalid exercise of the discretion and not the invalidity of the instrument conferring the discretion. [applicant's emphasis]"
The applicant also referred to the judgment of Basten JA in Cooper v Owners - Strata Plan No 58068 (2020) 103 NSWLR 160; [2020] NSWCA 250 (Cooper) at [57]: "The courts have long held that a conferral of power, whether under an instrument executed by individuals, or by statute, can only be exercised for the purpose for which it was created. The exercise of a power in particular circumstances may, without more, demonstrate that the real purpose and object of the power has been exceeded; in other cases the subjective intention of the donee of the power may reveal its exercise for an improper purpose. Both cases fall within the concept of "fraud on a power", as understood in both public and private law, although in relation to public law it is usually referred to as an improper purpose. [applicant's emphasis]"
The applicant submitted that because a by-law may only be created for a proper purpose, "it stands to reason that the exercise of the discretion provided pursuant to the same bylaw must also be exercised only for a proper purpose."
The applicant further submitted: "21. As Basten JA made clear in Cooper at [57], the exercise of a power may in some circumstances, without the need for evidence of the subjective purpose of a decision maker, demonstrate that the real purpose and object of the power has been exceeded. It is submitted that in this case, it is not necessary to inquire as to the mens rea of each lot owner or holder of a unit entitlement who voted in the November 2022 Refusal to reach a finding that [the respondent] unreasonably refused to provide consent under the by-law, in the sense of refusing consent for an improper purpose. That is because: (a) all of the evidence before [the respondent], as at November 2022, was that as a matter of planning law the vergola was only a minor development that would not interfere with the essence or theme of the development; (b) there was no evidence before [the respondent] that the vergola would negatively interfere with the use or enjoyment of any of the lots in the association scheme or the association property. On the other hand, as was accepted by [the respondent's] expert at the hearing, Mrs Gregory stood to benefit greatly from her use or enjoyment of her lot if [the respondent] provided consent; and (c) [the respondent's] Executive Committee had provided [the respondent's] membership with reasons for not providing consent under the By-Law, which implied that it disagreed with how Mrs Gregory had gone about the application process, however that was not a relevant factor that could have influenced [the respondent's] decision to exercise its discretion under the By-Law. 22 For the same reasons, no reasonable community association in the position of [the respondent] could have reached the position [the respondent] apparently arrived at in November 2022. Another way of putting the unreasonableness is that there was no "intelligent and intelligible justification" for a community association, assessing the material then before it and applying its mind to the relevant statutory purposes of balancing the use or enjoyment of the lots in the scheme and preserving the essence or theme of the development, to refuse to provide consent. 23 It is submitted that it is not necessary for this purpose for the Tribunal to find that the members of [the respondent] did not act bona fide in refusing consent. It is sufficient, for the Tribunal to exercise its jurisdiction under s 193(1) to resolve the dispute, if [the respondent] acted unreasonably or not with a proper purpose."

Respondent's reply submissions

In response to the applicant's submissions concerning the relevance of cases dealing with the Strata Schemes Management Acts, both the 1996 and the 2015 enactments, the respondent submitted: "3. The issue is not whether the Tribunal is bound to follow the decisions in relation to the equivalent provisions of the Strata Schemes Management Act. The issue is whether the provisions are similar acts intended to address the same mischief. If so, then as a matter of the law relating to statutory interpretation, it will be presumed that Parliament intended to give the words the same meaning: see, eg AQO v Minister for Finance and Services [2016] NSWCA 248 per McColl JA (dissenting) at [76]."
In response to the applicant's submissions concerning the decision in Pham, the respondent submitted: "5 The relevant 'function' is not in dispute in the instant case: it is to consent or approval under the by-laws. There is no express reference to withholding consent. Presumably it has exercised the function if it has considered giving consent or approval. 6 There was an application for consent or approval and it was withheld. The same application was made and consent has been deferred for reasons which are not alleged to be unreasonable, being because the applicant's representative was not there and to give the applicant time to consider a varied option for the balcony. 7 There does not appear to be any dispute that the respondent has withheld its consent or approval, after due consideration. 8 There is, it is submitted, a distinction between the exercise of a discretion and the manner in which a discretion is exercised. Neither the Act nor the by-laws impose an obligation to exercise the function of giving or not giving consent in a particular manner."
In response to the applicant's submissions concerning the decision in Glenquarry Park, the respondent submitted: "9 It is not disputed that the applicant is seeking a concrete and defined order from the Tribunal. What is disputed is whether the Tribunal has jurisdiction to review the exercise of the function and if so whether the giving of consent or approval to the applicant is the minimum necessary to comply with its obligation to do so. 10 It is submitted that in the absence of any statutory provision or by-law to the contrary, the minimum necessary to comply with an obligation to exercise the function assuming that it has not been exercised, is an order that the function be exercised."
The respondent submitted that the applicant was seeking in its further submissions to advance a new argument, that is that the respondent did not exercise its functions in accordance with the law rather than that the Tribunal should impose the "correct and preferable decision". In response to that argument, the respondent submitted: "15 There is no express provision governing the manner in which functions imposed by the by-law in question should be exercised. It may be accepted that the function must be exercised bona fides, but there is no allegation that it was not. 16 The decision in Cooper v The Owners-Strata Plan 58068 (2020) 103 NSWLR 160 was concerned with the power under the Strata Schemes Management Act 2015 (the SSMA) to make by-laws, not with the manner in which they should be exercised, and it was concerned with the express power under Part 7 of Division 4 of the SSMA to revoke, revive, repeal or invalidate a by-law having regard to the interests of all the owners. 17 There is no such power conferred under the Community Land Management Act 2021. The references to 'fraud on a power' and similar concepts in the decision of the Court of Appeal were in the context of the exercise by the Tribunal of an undoubted express power to review by-laws. 18 It does not follow that the Tribunal has power [to] … review the exercise of a function under a by-law and provide consent or approval where a by-law requires that the consent or approval be made by the respondent."
The respondent further submitted that the applicant's submission that the respondent's failure to give consent or approval to the applicant's proposal was contrary to law is misconceived. The respondent submitted: "20 The applicant says … that the respondent 'unreasonably refused to provide consent under the by-law, in the sense of refusing consent for an improper purpose' and that, for the same reasons, it is said … that no reasonable community association could have reached the decision reached by it in November 2022. The allegation … would appear to be an allegation of Wednesbury [Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223] unreasonableness."
The respondent referred to the judgment of Tobias JA in Marrickville Metro Shopping Centre Pty Ltd v Marrickville Council [2010] NSWCA 145; (2010) 174 LGERA 67 at [104] - [106] as setting out an appropriate formulation of the Wednesbury unreasonableness test.
In those paragraphs, "his Honour noted the distinction between what the Court considered was unreasonable and a decision that the Court considered was so unreasonable that no reasonable body could have come to it, concluding that the relevant unreasonableness in the decision must be something shown to be irrational, absurd or implausible." New South Wales v Beck [2013] NSWCA 437 per Ward JA.
The respondent submitted: "22 It is submitted that the onus is on the applicant to show that the decision was unreasonable in the Wednesbury sense or that it was exercised for an improper purpose. 23 There is no evidentiary basis to support an allegation of Wednesbury unreasonableness the evidence is, it is submitted, to the contrary. There is no evidentiary basis to support an allegation that consent was withheld for an improper purpose. No such improper purpose has been identified. 24 The decision on 22 November 2022 was based on a majority vote of those present at the meeting. What in fact motivated the voters can only be based on inference. The facts from which it can be inferred that the decision was not for an improper purpose and not one that no community association could reasonably have made include, it is submitted, the following: - the issues that were raised or discussed at the Special General Meeting are set out at [35] of Mr O'Rourke's statement [365] and there has been no articulated suggestion that any of those issues (at least insofar as they were not raised on behalf of the applicant) are in any sense unreasonable; - Mr O'Rourke said in cross-examination that he was concerned that consenting or approving the application would constitute a precedent that might have an effect upon the entirety of the development; - it was indicated that the respondent would be prepared to accept a varied application which would still have the effect of providing shade to the balcony; - a town planner (Mr Fortunato) whose bona fides and expertise was not impeached has given his expert opinion that if the application was varied as indicated then he would be prepared to support it."
The evidence at of Mr O'Rourke at Hearing Book p 365 referred to in those submissions was as follows: "34 Prior to the SGM the [the respondent's] Committee provided a background document to representatives of the schemes to explain why an extraordinary SGM had been called. A copy is provided under Tab 4 Document 4 in Exhibit ACCA-1. This document also explains the reasons why the Committee did not approve the vergola. ... I also corresponded with other members of my neighbourhood lot to seek their opinion on which way I should vote on the motion. 35 At the specifically convened SGM on 10th November a number of issues were raised or discussed which included: (a) Richard Osborne asked whether a smaller structure that did not wrap around or did not extend to the property boundary could be considered. Mr Gregory's answer was "No" (b) Discussion occurred around the provision of a visual image. Mr Gregory stated that the cost of $10,000 was quoted to obtain this. Given modern technology a view was expressed was that an adequate image could have provided or photo-shopped for much lesser cost. (c) Mr Gregory cited the precedent on the Greenway building. The general view expressed in responses was that this was a different structure. (d) With respect to precedents I spoke to the Committee objective of consistency with past decisions and practice. (e) Discussion occurred on the Statement of Environmental Effects submitted for the DA approval. Mr Gregory questioned the capability of the attendees to make a decision. I clearly remember Mr Gregory stating his planner's report was an "independent" report. I felt this was not correct. Mr Gregory also queried the "authority" the attendees had to make a decision. (f) Mr Gregory was asked at the meeting if approval was not granted what he would do. His response were words to the effect that he would take the matter to the Land and Environment Court. (g) I asked Mr Gregory whether "moral rights" associated with the design had been considered. Mr Gregory was not familiar with the term and I explained this related to the possible rights of the original designer. … 37 In summary the reasons, which should have been evident to Mr Gregory, from the responses in the meeting, and also the earlier correspondence, for not approving the structure included: a) That the structure was large and would change the external appearance the of the building b) High visibility from the community property c) Lack of a visual image as requested d) No other structures of this type exist within Abbotsford Cove."
The background document referred to in that evidence as having been provided to the meeting to representatives of the member schemes of the respondent included the following: 1. Under the heading "Background for the Special General Meeting 10th November 2022": "The [respondent's] Executive Committee has referred the application for approval to install a Vergola at [the applicant's address] to a Special General Meeting for decision, as the proposal in its opinion represents a significant addition to the external part of the Elizabeth building. The change will be highly visible and different in form to any previous attachments. The approval will inevitably be viewed as a precedent which may rnore broadly impact the appearance of all buildings within Abbotsford Cove." 1. Under the heading "ACCA Executive Committee Reasons for not Approving": "The Executive has the following concerns: The Statement of Environmental Effects contained within the Development Application (DA) (circulated with the Notice of Meeting) states that Vergola will be largely imperceptible. As is evident from the Minutes below the Executive Committee disagrees with this statement and considers the Vergola will be highly visible as the Vergola is metal structure that will wrap around the full balcony level, and when closed present an effect akin to a ceiling/floor. The Vergola will be very different from any other attachment installed to date within Abbotsford Cove. An artist's impression or other image of the installation would have allowed a better understanding of this but the owner has advised they are unable to provide this. Despite the Canada Bay Council approval of the DA clearly stating on the first page that Community approval must be obtained, prior to commencing construction, and before the issue of a construction certificate, the owner has proceeded with the purchase of the Vergola and is making preparations for the installation."
In so far as the respondent (or its executive committee) raised as the third of its expressed reasons the concern that the applicant had proceeded to make preparations for the installation of the pergola without approval, the respondent submitted: "26 First, concern (3) is but one of three concerns and these were concerns and, it is submitted, there is no basis for assuming that they represented the fixed opinions on the part of those who voted against the proposal.

27 Second, the concern at (3), as explained by Mr O'Rourke in cross-examination, was for the applicant, and that she might have acted prematurely in proceedings without approval, which might have been assumed in any event.

28 The third point is that there is no suggestion that the expression of the concerns at (1) and (2) on the same page were concerns that would have the effect that the decision made had to be characterised as unreasonable in the Wednesbury sense or meant that the decision to withhold consent or approval was made for an improper purpose."

As noted above, the respondent's addendum submissions in reply were concerned with procedural issues which have no bearing on the substantive matters requiring determination.

Consideration

The application raises two broad questions: 1. What is the extent of the Tribunal's power/jurisdiction to review the respondent's refusal or failure to approve the applicant's proposal? 2. If the Tribunal does have power to review the respondent's refusal or failure to approve the proposal, should the Tribunal exercise that power?
I do not consider that I need to be concerned with the question whether the respondent is deemed to have refused the applicant's proposal submitted in July 2023 by deferring consideration at the meetings in July, September and November 2023, or by failing to inform the applicant that it had decided to refuse the application. The applicant's proposal was refused in November 2022. For the reasons which appear below, I do not consider that the later application raises substantially different issues.
The first question, concerning the extent of the Tribunal's power, hinges on the interpretation of s 193 of the CLMA.
Neither party suggested that the Tribunal might derive power to make the orders sought by the applicant from any other provision of the CLMA.
The researches of counsel for the parties did not identify any decision considering the interpretation of s 193.
However, as the parties noted in their submissions, s 193 is in very similar terms to s 232 of the SSMA and the authorities concerning the interpretation of s 232 may be of assistance in determining the proper construction of s 193.
As is stated in Pearce, Statutory Interpretation in Australia (Ninth edition 2019) at [3.42]: "[R]eference may be made to similar statutes within the jurisdiction in ascertaining the meaning of an Act before the court. This is often referred to as the in pari materia (literally: in an analogous case) principle. For example, in Lennon v Gibson and Howes Ltd [1919] AC 709 at 711-12; (1919) 26 CLR 285 at 287 the Privy Council, on appeal from the High Court, said: In the absence of any context indicating a contrary intention, it may be presumed that the Legislature intended to attach the same meaning to the words when used in a subsequent statute in a similar connection. This principle was reiterated more recently in Harrison v Melhem [2008] NSWCA 67; (2008) 72 NSWLR 380 where Mason P at [131] stated: There is a principle of statutory interpretation supporting a presumption that a legislature intends to attach the same meaning to the same words when used in a subsequent statute in a similar connection. This statement was expressly applied in Norrie v New South Wales Registrar of Births, Deaths and Marriages [2013] NSWCA 145; (2013) 84 NSWLR 697 at [117] per Beazley ACJ."
Notwithstanding the similar wording of the provisions, it is necessary to note the differences between them and between their statutory contexts.
One potentially significant difference between s 193 and s 232 is subs 193(6) which explicitly denies the Tribunal power to make orders to settle a dispute or rectify a complaint "relating to a function of or a failure to exercise a function by, an association… if the function may be exercised only in accordance with a unanimous resolution or a special resolution (other than a special resolution relating to association property…)." There is no equivalent provision in s 232 of the SSMA.
A further potentially significant distinction between the CLMA and the SSMA is that the CLMA contains no equivalent to s 126 of the SSMA. Section 126 of the SSMA confers upon the Tribunal power to order an owners corporation to consent to work proposed to be carried out by the owner of a lot - being minor renovations or other alterations to common property directly affecting the owner's lot, or repairs to such property - if the Tribunal considers that the owners corporation has unreasonably refused its consent. The section also empowers the Tribunal to approve minor renovations or alterations or repairs already made, if the Tribunal considers that the owners corporation unreasonably refused its consent to that work.
By contrast, s 195 of the CLMA does provide: 195 Order with respect to restricted property (1) The Tribunal may, on application, make an order prescribing a change to an association property rights by-law or amending the management statement for an association in relation to restricted property if - (a) an association or a strata corporation decides to create, or refuses to create, restricted property, or (b) a consent that is required to the creation of, or a refusal to create, restricted property is not given. (2) In determining an application, the Tribunal is to make an order on the basis of what it considers to be the best interests of all the members of the association or strata corporation. (3) Without limiting subsection (1), an order may have the effect of revoking so much of a management statement or by-laws as creates restricted property. (4) An application for an order under this section may be made by any of the following - (a) the association or strata corporation, (b) the owner of a lot within the scheme under which the association or strata corporation is constituted.
This provision is similar to s 149 of the SSMA. However, significantly, the standard laid down in s 195, governing when the Tribunal should exercise the power conferred by the section, is what the Tribunal "considers to be the best interests of all members of the association or strata corporation."
The standard laid down in s 149 of the SSMA is that the owners corporation or the owner of a lot has "unreasonably refused" to make a common property rights by law or consent to the terms of a proposed common property rights by law.
The absence from the CLMA of any provision equivalent or comparable to s 126 of the SSMA suggests, in my view, that s 193 of the CLMA is not intended to confer upon the Tribunal power to review decisions of a community association to refuse consent to the alteration of the external appearance of a lot.
I have set out above, in the course of summarising the parties', respective submissions, relevant passages from the Court of Appeal decisions in Vickery and Cooper and the Supreme Court decisions in Pham and Glenquarry Park. As noted by the respondent, the decision in Pham, which related to s 138 of the SSMA 1996, had been applied in relation to s 232 of the SSMA by the Appeal Panel in Walsh v The Owners - Strata Plan No 10349.
It is also appropriate to note that each of those decisions was published before the final passage of the Community Land Management Bill 2021 (NSW) on 16 March 2021. The Parliament may be taken to have adopted the wording of s 193, in comparable terms to s 232 of the SSMA, with knowledge of the construction which the Courts had given to that section.
I maintain the view I expressed in Downs, that nothing said by the Court of Appeal in Vickery overruled the principles set out by Rothman J in Pham and Parker J in Glenquarry Park. I also note that the Appeal Panel in Quo Warranto Pty Ltd v Goodman [2022] NSWCATAP 315 held, at [71]: "71 While the Tribunal's power to make orders to settle disputes or complaints under s 232(1) is broad and should not be construed in a limited way, this does not mean that the power is limitless. The authorities concerning s 232(1) - including the majority decision of the Court of Appeal in Vickery - do not support a conclusion that the Tribunal can make any order it wants to settle a dispute or complaint - even in respect of a matter that falls within s 232(1)(a) to s 232(1)(f) - in the absence of a cause of action arising from a substantive legal right or obligation. In our view, …, s 232(1) empowers the Tribunal to make orders in circumstances where substantive rights and obligations exist. A cause of action that enlivens the Tribunal's power to make orders under s 232(1) may be found elsewhere in the SSMA Act, in the strata scheme's by-laws, in other statute law or in the general law."
Although s 193(6) appears to contemplate that the Tribunal does have the power to review, and substitute its own decision for, decisions of a community association in relation to the exercise of powers that do not require a unanimous or special resolution, I consider that that power cannot be a power to substitute any decision which the Tribunal may consider expedient. It is appropriate to interpret s 193 of the CLMA in light of the decisions of the Supreme Court and Court of Appeal regarding s 232 of the SSMA.
The Tribunal is not entitled to order a community association to do things just because the Tribunal considers it desirable to do so.
If the Tribunal were to be found to have the power to review, and substitute its own decision for, decisions of a community association concerning applications under the association's by-laws for consent to undertake work that will alter the external appearance of a building within the community scheme, the CLMA does not specify any standard for such review. It cannot be the case that the Tribunal is empowered simply to substitute its own decision for that of the community association. In my view, before the Tribunal might have the power to set aside a decision of a community association to refuse consent to an application for approval under its by-laws, there must be some basis for the challenge to the decision beyond the proposition that the Tribunal would not itself make the same decision.
I accept the applicant's submission that the Tribunal does have jurisdiction to set aside or overrule a decision of a community association which can be shown to have been made for an improper purpose or not in good faith or where the decision was unreasonable in the Wednesbury sense, but, for reasons which I will expand upon below, I do not consider that there is any basis for such a finding in this case.
The applicant maintained that the respondent had taken into account "planning law considerations", which the applicant submitted were the province of the relevant council under the Environmental Planning and Assessment Act 1979 (NSW).
I do not accept that proposition. Section 128 of the CLMA, which specifies the nature of the by-laws that may be included in management statements, is clearly intended to empower community associations to exercise substantial control over the external appearance of buildings within the scheme so as to preserve the "essence or theme of the development under the scheme". The applicant's submissions referred to subs 128(1) but omitted to refer to subs 128(2) which specifically provides that: (2) By-laws for a scheme may relate to the control or preservation of the essence or theme of the development under the scheme by - … (b) fixing the architectural, building or landscaping styles to be permitted, or (c) limiting the kind of materials that may be used in buildings and other structures, or … or (e) imposing any other kind of restriction.
In my view, subs 128(2) clearly indicates that a community association's by-laws may regulate the external appearance of lots within the scheme and that the community association, in considering requests for consent to the alteration of the external appearance of lots in the scheme, in accordance with by-laws enacted for the scheme, is entitled to take into account aesthetic considerations, including what the applicant categorised as "planning law considerations"
The aesthetic considerations relevant to the applicant's proposal were set out in Mr Fortunato's report: "I concur with Councils statement that the flat roof profile and white finish is complementary to the existing architectural style of the building. However, notwithstanding roof typology and finish, the bulk of the vergola in its proposed location will further enlarge the established building envelope, disrupting the stepped character of the building when viewed from the public domain and nearby residential apartments. This can be attributed to the nil setbacks of the proposed vergola to the balconies edge and will seemingly result in a partial three story unarticulated vertical element on the north-eastern facade of the building, uncharacteristic of the architectural theme of the building. This effect could be remedied by further setting back the posts of the vergola to an extent where the 'stepped' character is preserved, as further detailed in the recommendations below. … With regard to physical impacts on surrounding development, as detailed above, the development creates concern with regard to bulk and scale. Whilst the 'surfmist' finish will aid to blend the proposed structure into the fabric of the existing building, it can be safely assumed that the structure will nevertheless be largely discernible from the surrounding area, particularly when the blades of the vergola are closed, given the prominent location of the subject unit, highly visible from the Paramatta River waterway, surrounding foreshore area and other units within the Abbotsford House curtilage. … It is noted that the submitted Statement of Environmental Effects states to the contrary of this, that the proposed vergola will be 'largely imperceptible to the casual observer' With regard to the harmony with surrounding buildings and overall character of the area it is noted that no other units feature a similar vergola development. The submitted 'Statement Report' prepared by Bechara Chan & Associates dated the 06.04.2023 states that 'there is an established and prominent built awning precedence within the complex', referencing the pergola which covers the third-floor balcony of [a unit in a different building within the scheme], located across the Abbotsford Cove Foreshore Park from Harbourview Crescent. … This existing pergola however is substantially different in form and appearance when compared to the proposed vergola. Specifically, the structure is largely open and inoperable, unlike the proposed vergo!a. As such the development in its current form is considered to be out of harmony with the surrounding buildings and character of the area, and would likely establish an undesirable precedent for new development within Abbotsford Cove."
I accept that Mr Fortunato is qualified to express that opinion and, despite the fact that Mr Fortunato did not in his report acknowledge and agree to be bound by the Expert Witness Code of Conduct, I accept that Mr Fortunato's opinion is genuinely held and entitled to weight. Mr Fortunato's opinions are not inherently implausible. In particular, I accept Mr Fortunato's opinion that the proposed Vergola "will seemingly result in a partial three story unarticulated vertical element on the north-eastern facade of the building, uncharacteristic of the architectural theme of the building".
I note that Mr Fortunato disagreed with the Statement of Environmental Effects prepared by Mr Black, which states that the proposed Vergola will be "largely imperceptible to the casual observer". In my view, the marked-up photographs included in the applicant's evidence contradict the view expressed by Mr Black and support the view expressed by Mr Fortunato.
There is, otherwise, nothing in the reports of the Council planning officer or Mr Black which might suggest that the decision by the respondent to refuse consent to the applicant's proposal was outside the respondent's legitimate area of discretion.
I do not consider it relevant that Mr Fortunato's report was not available to the members of the respondent at the meeting in November 2022. 1. First, the Tribunal is not, on any view of s 193, tasked with determining whether the respondent's decision at that meeting was unreasonable in the circumstances in which it was made. In this regard this case may be distinguished from applications pursuant to ss 126 and 149 of the SSMA. 2. Secondly, the applicant did not produce marked-up photographs showing how the proposed Vergola would look once constructed until after the meeting. 3. Thirdly, Mr O'Rourke explained the reasons which he understood, from discussion at the meeting and the documents made available at the meeting, were the reasons why the application had been refused on that occasion. Those reasons included the absence of "a visual image".
I do not accept the submissions made on behalf of the applicant: 1. That the provisions of s 193(4) have any operation, either by analogy or otherwise, to confine the scope of the respondent's discretion; or 2. That, even if the provisions of s 193(4) were applied by analogy, the question whether the respondent's decision should be set aside should be determined by reference to the balance of convenience, or a utilitarian assessment of benefit and disadvantage.
Neither the respondent nor the Tribunal is required to undertake a balancing of the impact upon the enjoyment of owners of other lots arising from the change in the visual aesthetic of the building against the disadvantage to the applicant if she is unable to shade her north-facing windows with the proposed Vergola.
As I have noted, the CLMA explicitly contemplates stringent controls over the external appearance of lots in a community scheme.
Any alteration of the external appearance of a building within the scheme affects all lot owners, even if only to a small degree in each case.
I do not accept the submission of the applicant that the decision to refuse consent was unreasonable in the Wednesbury sense. The applicant's proposal raised the legitimate aesthetic concerns identified by Mr Fortunato. A conclusion that those concerns justified the refusal of consent cannot be said to have been "irrational, absurd or implausible".
Nor do I find there was any basis to conclude that the respondent's decision to refuse consent was not reached in good faith. The CLMA permits by-laws which limit changes to the external appearance of lots in a community scheme. The validity of such by-laws in relation to strata schemes was explicitly acknowledged by Basten JA in Cooper at [37].
It is for the internal management of a community scheme to determine the extent to which changes to the external appearance of buildings within the scheme may be permitted.
Even if the Tribunal did have the power to make orders overriding the judgement of the respondent, the exercise of such a power must require a far greater disproportion between the adverse effect on the applicant and the benefit to other lot owners than could be said to have been present in this case.
I do not consider that subs 204(1) of the CLMA, which the applicant relied upon in her further submissions (see [62] above), has any relevance to the interpretation of s 193 or the assessment of the width of the power conferred upon the Tribunal by s 193.
The marked-up photographs included in the applicant's evidence clearly disclosed that the proposed Vergola would affect the external appearance of the lot and would alter the stepped appearance of the building, as Mr Fortunato has stated. It cannot be said that the respondent's objection to the Vergola arising from its effect on the external appearance of the building is irrational or without foundation.
It cannot be said that the applicant is left with no capacity to provide shade to the north facing windows on the lower level of her lot. The respondent has indicated that a smaller Vergola, allied with retractable awnings, would be likely to receive approval. I recognise, as noted above, that the applicant's structural engineer has expressed the opinion that retractable awnings were not "a suitable solution given the high winds". However, the engineer's report does not explain how high winds would be a problem for an awning which could be retracted. I also note that the applicant included in her evidence photographs which show that there are awnings installed on other units in the area, and, apparently, on the applicant's own lot.
It follows from my reasoning set out above that the application must be dismissed.
The parties have sought leave to file submissions on costs. I note that, as the application did not involve any claim to a monetary remedy, rule 38 of The Civil and Administrative Tribunal Rules is not obviously applicable, and special circumstances would be necessary before I could make an order for costs. As presently advised, I do not see that there are special circumstances warranting an order for costs, but I will allow the parties the opportunity to make submissions in relation to costs if so advised.

ORDERS

My orders are: 1. The application is dismissed. 2. Unless either party files submissions in accordance with order (3) below, there will be no order in relation to the costs of the proceedings. 3. If either party seeks an order in relation to the costs of the proceedings, they may file, and serve upon the other party, submissions of no more than five pages, with any evidence in support, within 14 days of the publication of these orders. 4. If a party files and serves submissions pursuant to Order (3) above, the other party may file and serve submissions in response of no more than five pages, with any evidence in support, within a further 14 days. 5. Submissions in reply to submissions filed and served pursuant to Order (4) above, of no more than three pages, may be filed and served within a further 7 days. 6. Any submissions filed pursuant to Orders (3) or (4) above must include submissions concerning whether an order should be made pursuant to s 50 of the Civil and Administrative Tribunal Act 2013 (NSW) dispensing with a hearing of the application for costs.

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 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 December 2024

Community Land Development Act 1989(NSW)

Community Land Management Act 1989(NSW)

Strata Schemes Management Act 1996(NSW)s 138

(2020) 103 NSWLR 160

(2020) 103 NSWLR 352

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