Sorrenson v Versluis

Evidence

1. The applicant had filed a bundle of documents on 19 July 2023. The respondent had filed a bundle of documents on 10 August 2023. Each of those bundles was accepted into evidence without objection.
2. The respondent sought to file at the hearing a statutory declaration from the chairperson of the Community Association dated 28 August 2023. The applicant had not been provided with a copy of that document prior to the hearing and the deponent was not available for cross examination. The applicant objected to the Tribunal receiving that document in evidence.
3. The respondent indicated that the evidence in the statutory declaration was relevant to establishing whether the Community Association had approved the installation of the structure. The reason proffered by the respondent why the document had not been provided earlier was that it had not been available earlier as the evidence concerned the outcome of a review by the officeholders of the Community Association of the issues surrounding the structure the subject of these proceedings. The respondent provided no reason why the document could not have been provided when it became available, ie 28 August 2023.
4. It was clear that it would not be fair to the applicant to permit the respondent to rely upon that further evidence if the hearing were to proceed on the allocated day. The question then arose whether the hearing should be adjourned to permit the respondent to rely upon the document.
5. The respondent acknowledged that no meeting of the executive committee of the Community Association had been held since 16 April 2023. It was therefore clear that the Community Association had not passed any resolution approving the installation of the structure since 16 April 2023. The minutes of the meeting of 16 April 2023 were included in the evidence filed by the parties. In those circumstances, I was not persuaded that the statutory declaration was of sufficient relevance to the application that an adjournment would be appropriate.
6. Accordingly, I declined to permit the respondent to rely upon the statutory declaration and the hearing proceeded.
7. Each of the applicant and the respondent took an oath and verified the statements of fact contained in their respective bundles. Each answered questions from the other and from the Tribunal.

Standing

1. Section 193(1) of the Act provides that the Tribunal may, "on application by an interested person", make an order "to settle a complaint or dispute about … (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".
2. Section 187 of the Act identifies who are interested persons for the purposes of s 193 of the Act. Paragraph (d) of that section provides that an owner of a development lot, neighbourhood lot or strata lot is an interested person.
3. The applicant gave evidence that he was the owner of a development lot in Community Association DP 270312. The respondent did not suggest that that evidence was not correct. I accept that the applicant has standing to bring these proceedings.
4. I am also satisfied that the Tribunal has jurisdiction to determine the application pursuant to s 193(1)(e) of the Act.

Is the structure prohibited by the by-laws?

1. The applicant pointed to a number of provisions of the by-laws and Housing Design Guidelines in support of his submission that the acoustic panels installed by the respondent were not permitted under the by-laws and the design guidelines.
2. The by-laws of Community Association DP 270312 are set out in the Community Management Statement for DP 270312 registered on 24 September 2002. The by-laws include the following: "3. GENERAL OBLIGATIONS REGARDING THE GUIDELINES 3.1 Purpose The obligation to comply with the Landscape Design Guidelines and Housing Design Guidelines is designed to protect the integity [sic] of The Lanes and to ensure that the same high standard of building design is maintained throughout the development. 3.2 Compliance with the Guidelines You must comply with the Housing Design Guidelines and the Community Association must comply with the Landscape Design Guidelines and the Housing Design Guidelines. 4. HOW TO CHANGE THE GUIDELINES 4.1 Unanimous resolution of Community Association The Community Association may change or add to the Guidelines only by unanimous resolution. … 5. LANDSCAPING 5.1 Compliance with the Guidelines Landscaping on a Lot must be carried out in accordance with the I-lousing Design Guidelines. Landscaping on Open Space or other Community Property must be carried out in accordance with the Guidelines. 6. NEW WORKS 6.1 Alteration to existing landscaping You may make alterations to the existing landscaping or carry out new landscaping, so long as those alterations are consistent with the Housing Design Guidelines and any Tree Preservation Order issued by the Council. 6.2 Changing external appearance of an house You must have the Executive Committee's consent to: (1) Change the external appearance of an existing building; and/or (2) Build a new structure. … 6.4 Application to vary external appearance of an house You must make a written application to the Executive Committee … for consent under By Law 6.2. Plans and specifications must be submitted with the application. The plans and specifications must be in the forrn and to the standard prescribed from time to time by the Executive Committee …. 6.5 Plans and specifications for variation Plans and specifications for building changes and new structures must: (1) Demonstrate the suitability of design to the existing and surrounding structures and topography; (2) Show the dimensions of the structure; (3) Disclose the type, colour and quality of the materials; (4) Show the location relative to existing and surrounding structures and topography; and (5) Include a landscape proposal that is in harmony with the existing landscape. 6.6 Consideration of application by Executive Committee For applications under this by-law, the Executive Committee must consider the information in the application and: (1) The suitability and quality of the proposed works; (2) The harmony of the proposed works with existing structures, landscaping and land uses; (3) This Management Statement; (4) Rules; and (5) The Guidelines."
3. The Housing Design Guidelines are also dated August 2002. The introduction states: "'The Lanes' development at Kirkham will provide a unique opportunity to create a semi rural setting in the Sydney area. The land sits within the historic Kirkham precinct and this provides an appropriate theme for the houses to be built within the precinct. These building design guidelines have therefore been prepared to ensure that the final outcome in built form respects the high quality nature of the development as well as its historic setting."
4. Under the heading "House Siting" the guidelines state: "House siting shall be in accordance with one of the following three alternatives to meet the design requirements: An exterior zone which is the area for pools, patios and structures such as garages, out buildings, gazebos etc. A semi- rural zone which is to be kept largely open, but may contain gardens, orchards, lawns etc. A tennis court [is the only allowable construction in the zone which should be kept for small scale activities (excluding commercial use) and rural use]."
5. There follow three alternative arrangements for the siting of a house and garage on a lot. In each case an area 15 metres deep at the rear of each lot is identified as the "semi-rural zone".
6. The words in parentheses in the above extract were struck through on the copy of the Guidelines included in the applicant's evidence bundle. The applicant drew my attention to resolutions passed at a meeting of the Community Association on 13 August 2005 which included resolutions to amend the guidelines to permit pools, tennis courts and "non walled gazebo[s]" in the "15 metre open space zone", which the parties agreed was the "semi-rural zone" referred to in the House Siting section of the guidelines.
7. Each of the alternative house siting options included the following: "The setback zones between houses allows a 'view slot' between houses down to the semi-rural zone thereby emphasising the semi-rural nature of the development. These side setbacks are as nominated on the attached plan labeled 'Setback Requirements'."
8. Under the heading "Fencing" the guidelines prescribed fencing for the semi-rural zone as "1200 mm timber posts, top and bottom rails and wire mesh inset".
9. Under the heading "Lot fencing plan" the guidelines specify that the fencing for the "15 m Open Space Zone" shall be: "1200 mm Post & Rail to extend along boundary and rear of lot. Where lot fronts onto pond no rear boundary fencing is allowed, except where shown 'Optional by Owner' on attached diagram."
10. The Guidelines specify that the fencing must be stained a particular colour from a specified range of products and provide "Owners may use a mesh insert if they require more privacy or /security."
11. The applicant's evidence, which the respondent did not contradict, was that the respondent had submitted an application in March 2021 for the construction of a swimming pool and open pergola at the rear of the respondent's property. The plans accompanying the application included the construction of "1.8m high boundary fencing" along the northern boundary and part of the eastern and north-western boundaries of the respondent's lot. The association committee determined that the boundary fence did not comply with the Design Guidelines and the respondent submitted the plans again without the boundary fence. The plans, as resubmitted, were approved by the Community Association and subsequently submitted to Camden Council for development approval.
12. The committee subsequently became aware that the respondent had installed the acoustic panels on the boundary of his lot without having obtained consent from the executive committee of the Community Association.
13. The applicant states that approximately 36 metres of the structure is within the semi-rural zone of the property. The entire structure is approximately 60 metres long. The applicant did not suggest that his application for removal of the structure extended to those parts of the structure which were not within the semi-rural zone.
14. The executive committee forwarded correspondence to the respondent on 12 June 2022 directing the respondent to remove the structure. The respondent did not do so and the Community Association commenced its own proceedings against the respondent on 19 January 2023 seeking orders for the removal of the structure, where constructed within the semi-rural zone.
15. Those proceedings were dismissed for want of appearance when the Community Association failed to attend a directions hearing on 17 February 2023. The Community Association sought the reinstatement of those proceedings pursuant to s 55(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). That application was refused.
16. At a meeting of the committee of the Community Association held on 16 April 2023, apparently following a general meeting at which a differently constituted committee had been elected, the committee resolved "To withdraw the current NCAT application lodged by previous executive committee pertaining to lot 8".
17. The minutes of that meeting also record: "Recommendation - Review the lot 8 fencing by the elected 2023 Executive Committee. Recommendation - Review with adjoining to the neighbours to Lot 8."
18. The respondent gave evidence that he and the applicant had absented themselves from that meeting on the basis that they had a perceived interest in the subject matter of the resolution.
19. Clause 6.2 of the by-laws requires that the consent of the executive committee is necessary for building a new structure whether within or outside the semi-rural zone. It is clear, in my view, that the structure which the respondent has installed on the boundary of the semi-rural zone of his property has been constructed in breach of by-law 6.2 in that the respondent had not obtained the consent of the Community Association for that construction.
20. Although the respondent did not concede that the acoustic panels constituted a "structure" within the meaning of by-law 6.2, the panels are permanently fixed in position and clearly do constitute a "structure" in the ordinary meaning of that word, that is "a thing which is built or constructed": The New Shorter Oxford Dictionary; or "something built or constructed; a building, bridge, dam, framework etc": The Macquarie Dictionary; see also O'Brien v Shire of Rosedale [1969] VR 112 at 116-117; Gawler & Barossa Jockey Club v Gawler Town Corporation (1995) 64 SASR 598. I am satisfied that the acoustic panels are a "structure" within the meaning of by-law 6.2.

Has the respondent subsequently obtained the consent of the executive committee of the Community Association?

1. The respondent submitted that the structure had been approved at the meeting on 16 April 2023. That is manifestly not the case
2. Clauses 6.4 and 6.5 of the by-laws lay down requirements for an application for consent. It is clear that the respondent has not complied with those requirements, in that he has not submitted an application containing the necessary specifications of the proposed construction. Moreover, it is also clear that no resolution of the executive committee of the Community Association approving the structure has been passed. The recommendations recorded in the minutes of the meeting of 16 April 2023 do not, on any argument, amount to approval.
3. The respondent acknowledged that there had been no meeting of the executive committee of the Community Association since 16 April 2023.
4. Accordingly, I find that the acoustic panels constructed by the respondent along the boundary of his lot, at least insofar as they fall within the semi-rural zone, have been constructed in breach of the by-laws and should be removed.

Are the by-laws harsh, unconscionable or oppressive?

1. The respondent maintained that, to the extent the by-laws prevented him from building the acoustic panel structure they were harsh, unconscionable and oppressive. The submission the respondent made in support of that proposition was that the acoustic panels were necessary to enable the quiet enjoyment of his lot. The respondent justified that proposition by reference to what he alleged was a substantial increase in the traffic passing along the road at the rear of his allotment.
2. The respondent asserted in his bundle of documents that the increased traffic had arisen by reason of the closure of the Cobbitty Bridge and the opening of new housing allotments in the area. The respondent acknowledged in response to questions from the applicant that the Cobbitty Bridge had reopened since the installation of the acoustic panels but he maintained that the increased traffic continued by reason of the increase in population in the surrounding area.
3. The respondent did not put before the Tribunal any objective evidence of the extent of noise to which his property was subject, either at the inception of the Community Association or in the present.
4. Section 130(1) of the Act provides that a by-law must not be harsh, unconscionable or oppressive. The Tribunal has jurisdiction, pursuant to s 140 of the Act, to revoke "so much of a management statement as the Tribunal considers to be invalid". Section 140(2) expressly provides that "the Tribunal may revoke part of a management statement if the Tribunal is of the opinion that it contains a by-law that is harsh, unconscionable or oppressive".
5. Although the respondent has not brought an application in the Tribunal seeking to have any part of the management statement revoked, it would not be consistent with the Tribunal's obligation pursuant to s 36 of the NCAT Act, to seek to facilitate the just, quick and cheap resolution of the real issues in the proceedings, to make orders enforcing provisions of the management statement and by-laws which are harsh, unconscionable and oppressive and hence invalid. Section 199 of the Act specifically authorises the Tribunal to deal with an application for an order under a specific provision of the Act by making an order under a different provision if it considers it appropriate to do so.
6. The respondent referred to the judgment of Basten JA in Cooper v The Owners - Strata Plan No 58068 [2020] NSWCA 250; 103 NSWLR 160 (Cooper) and quoted two passages: "a by-law which limited the property rights of lot owners was only lawful (valid) if it protected from adverse affection the use and enjoyment by other occupants of their own lots, or the common property" and "In other words, the underlying purpose of bylaws is to facilitate and protect the interests of lot owners in the use and enjoyment of their own lots and common property. By-laws ought not be used simply to impose rules and enforce philosophies about how other lot owners should use and enjoy their lots."
7. Those quotations, from [49] and [32] respectively, repeat or paraphrase submissions made on behalf of the appellants in those proceedings. A proper understanding of the ratio of the decision in Cooper requires attention to the statements by their Honours of the basis upon which the by-law held to be invalid in that case was found to be harsh, unconscionable and oppressive (or, per Fagan J, oppressive).
8. Cooper involved an application to have declared invalid under s 150 of the Strata Schemes Management Act 2015 (NSW) a by-law which prohibited the keeping of any pet within the relevant strata scheme. The Court of Appeal held that the by-law should be declared invalid. The critical factor was that the by-law did not distinguish between animals the keeping of which would impinge upon the enjoyment by other lot owners of their lots and the common property and animals which could not, in any conceivable circumstance, do so.
9. At [61] Basten JA held that: "there is no sound basis to construe the by-law making power as permitting a by-law which is not for the benefit of the owners of lots in the strata scheme. … a by-law which restricts the lawful use of each lot, but on a basis which lacks a rational connection with the enjoyment of other lots and the common property, is beyond the power to make by-laws"
10. Macfarlan JA held, at [78]: "For a by-law to restrict a lot owner in the enjoyment or exercise of his or her rights incident to ownership would in my view be "harsh, unconscionable or oppressive" at least where the restriction could not on any rational view enhance or be needed to preserve the other lot owners' enjoyment of their lots and the scheme common property."
11. Fagan J held, at [88]: "By-law 14.1 is 'oppressive' contrary to s 139(1) because it prohibits an aspect of the use of lots in the strata plan that is an ordinary incident of the ownership of real property, namely, keeping a pet animal, and the prohibition provides no material benefit to other occupiers of the building in their use or enjoyment of their own lots or of the common property. In an apartment building such as that to which Strata Plan 58068 applies, an animal could be kept within a lot without creating the least interference with other lot owners. The by-law is oppressive because it prohibits the keeping of animals across the board, without qualification or exception for animals that would create no hazard, nuisance or material annoyance to others. By-law 14.1 thus interferes with lot holders' use of their real property in a respect and to an extent that is unjustified by any legitimate concern of others in the building."
12. The respondent also submitted: "The Lanes is a premier housing estate designed to maintain a rural feeling blending the local heritage and using Laneways and open areas to create a rural village setting. In that context Housing Guidelines and Landscape Guidelines were affected by the original developers, Vinegar Hill, in 2000-2002. These Guidelines included statements about fencing, house colours, plantings, driveways, pools, and tennis courts. Such Guidelines were established with a RUI Primary Production zoning in mind, however it is more accurate to consider The Lanes typical of E4 Environment Living Zone given its established large residential character. It is fair to consider the changes in living styles since 2000 - changes which have a direct impact on a Lot owners' enjoyment of their own Lot. At the same time every Lot owner has a responsibility to ensure the visual amenity and unique rural feel of the Estate is maintained. This would preclude a Lot owner from building a "high rise shed" or driveways across Lot 1 or painting their house bright pink or fully enclosing their front yard. However, it does not preclude a Lot owner from improving their own amenity. One might argue that strict adherence to Guidelines developed in the late 1990's would be somewhat anachronistic. Modern house colours are an example --- as is newer and commonly accepted plantings. Indeed "Guidelines" are exactly that --- Guidelines. See photo at Addendum 5 showing two house colours not in the original guidelines. Neither detracts from the rural feel of the estate!"
13. Sections 127 and 128 of the Act are as follows: 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.
14. Section 128 clearly indicates and contemplates that the by-laws of a community association may lay down detailed requirements governing the aesthetic elements permitted to be constructed within the community association with the objective of the preservation of the atmosphere and ambience of the development. In this case the by-laws require the executive committee's consent to the erection of any structure on a lot within the community. In so requiring, the by-laws cannot be said to be harsh, unconscionable or oppressive. In Cooper, the Court accepted that a by-law which subjected the keeping of pets to the approval of the owners corporation or strata committee would be valid: See Basten JA at [46] - [54]; Macfarlan JA at [82]; Fagan J at [89] and [96].
15. To the extent that the Guidelines are incorporated within the by-laws, I do not consider that the respondent has shown that the Guidelines are themselves harsh, unconscionable or oppressive.
16. The Guidelines are directed to preserving the "semi-rural setting" of the Community Association. The evidence included photographs of the acoustic panels erected by the respondent. It does not require an aesthetic judgment for the Tribunal to conclude that the structure erected by the respondent is not consistent with the semi-rural setting sought to be preserved by the Guidelines.
17. The respondent pointed to the fact that, to soften the appearance of the acoustic panels, he had attached a type of artificial hedge over much of their length. The respondent stated that the artificial hedge is made of "a composite of recycled materials". It is designed to resemble a living hedge but is not itself a growing organism.
18. The respondent included in his evidence photographs of other hedges within the development. He submitted that his artificial hedge provided better visual amenity than the hedges on other lots, which he submitted were unkempt and untidy.
19. Whatever the visual aesthetics of the artificial hedge panels installed by the respondent, it cannot be said that they are in any way the equivalent of a living hedge. It is doubtful that the planting of a hedge would require the approval of the Community Association. It is clear that the construction of the acoustic panels, with or without the artificial hedging camouflage, did require the consent of the executive committee.
20. The decision in Cooper is clearly distinguishable from the circumstances of this case. A by-law which prohibits the keeping of pets without regard to the extent to which the presence of those pets will impinge upon any other lot owner's enjoyment of their property is clearly distinguishable from a by-law which seeks to maintain the visual appearance of a section of a community association for the benefit of all lot owners. The respondent did not suggest that the panels he has erected within the semi-rural zone are not visible from other lots or that they do not in any way impinge upon the visual amenity of any other lot owner's property.
21. It is clear in my view that the intention of ss 127 and 128 of the Act is that stringent restrictions may be imposed upon the extent to which what lot owners in a community association may utilise their property in the interests of preserving the ambience and amenity of the community association. I am not persuaded that the by-laws of Community Association DP 270312, including the Design Guidelines with which the by-laws require lot owners to comply, are harsh, unconscionable or oppressive.
22. I note that, in Cooper, at [37], Basten JA referred to the provisions of the Model By-Laws contained in Schedule 3 to the Strata Schemes Management Regulation 2016 (NSW), including clause 12, which provides: (1) The owner or occupier of a lot must not, without the prior written approval of the owners corporation, maintain within the lot anything visible from outside the lot that, viewed from outside the lot, is not in keeping with the rest of the building. (2) This by-law does not apply to the hanging of any clothing, towel, bedding or other article of a similar type in accordance with by-law 14.
23. His Honour stated: "Each of these provisions is expressly designed to deal with activities which may adversely affect the amenity of other lots, including the use of common property and the external appearance of the building."
24. That is, in my view, direct acknowledgement that by-laws may control the actions of lot owners within their lots in order to preserve the external appearance of a strata scheme. In light of the explicit authorisation in s 128 of the Act of by-laws "regulating the architectural, building or landscaping styles to be permitted" and "limiting the kind of materials that may be used in buildings and other structures", it is clear that by laws under the Act may regulate the installation of structures on a lot within a community association which will be visible from outside the lot.
25. It is not strictly necessary for the purposes of this decision to consider whether the Community Association can, consistently with the requirements of clause 6.6 of the by-laws, approve the construction of the acoustic panels. However, the requirement of clauses 5.1 and 6.1, that landscaping on a lot must be carried out in accordance with the Housing Design Guidelines and may only be altered consistently with the Housing Design Guidelines, would appear to prevent construction contrary to the Housing Design Guidelines, regardless of whether or not consent to the construction is purportedly granted by the executive committee.
26. The respondent did not, as I understood his submissions, seriously suggest that the construction of the acoustic panels was consistent with the Design Guidelines. His argument rather appeared to be that the Design Guidelines were out of date. Whether or not that is the case, it is not relevant to the determination of the question whether the installation of the acoustic panels could be consistent with the Guidelines. The by-laws of a community association do not evolve over time to conform to contemporary standards. The by-laws may be amended by special resolution pursuant to s 131 of the Act. Clause 4.1 of the By-Laws purports to require a unanimous resolution to change the Guidelines. Whether or not that is consistent with the provisions of the Act [1] , that provision does not apply to clause 4.1 itself, which could presumably be amended by special resolution.
27. I have found that the acoustic panels, to the extent they have been constructed within the semi-rural zone of Lot 8, also referred to as the Open space zone, have been constructed contrary to the by-laws and Management Statement for Community Association DP 270312. The applicant seeks an order requiring the respondent to comply with the by-laws. The applicant is entitled to that relief.
28. It is appropriate to allow the respondent time to carry out the removal of the acoustic panels in order to comply with the orders I propose to make. I consider that two months would be ample time to complete that task.
29. Accordingly, I will make an order that the respondent remove the structure comprised of acoustic panels constructed on Lot 8 in Community Association DP 270312, to the extent that it is constructed within the semi-rural or open space zone of Lot 8, within two months from the publication of these reasons for decision.

ORDERS 1. The respondent shall remove the structure comprised of acoustic panels constructed on Lot 8 in Community Association DP 270312, to the extent that it is constructed within the semi-rural or open space zone of Lot 8, within two months from the publication of these reasons for decision.

Endnote

1. I note that the Community Association was originally regulated under the provisions of the Community Land Management Act 1989 (NSW). Section 17 of that Act provided that by-laws identified "as relating to the control and preservation of the essence or theme of the scheme" could be amended only by unanimous resolution. Clause 4(1) of Schedule 3 to the Act provides that a management statement in force immediately before the commencement of s 127 "continues in force and is taken to have been made in accordance with this Act". Clause 4(2) provides: "Despite any other provision of this Act, a by-law continued in force by this Act is taken to be a valid by-law if it was a valid by-law immediately before the commencement of section 128." It is not necessary to consider whether the effect of these provisions is to preserve the validity of the guidelines even if inconsistent with the provisions of the Act. 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: 03 January 2024