The Owners �e" Strata Plan No. 85119 v Patel [2026] NSWCATCD 5;

1. The application was lodged with the Tribunal on 25 February 2025. At directions hearing is that were held on 26 March 7 May 2025 of the Tribunal made directions for the parties to prepare the dispute for hearing, including directions that the parties lodged with the Tribunal and give to each other copies of the documents that they relied on. Both parties lodged and served documents in support of their respective positions.
2. I heard the dispute in Penrith on 24 June 2025 and in Sydney on 5 September 2025. The owners corporation was represented by Ms Wyatt from its strata managing agents, Ace Body Corporate at Baulkham Hills. Mr Patel, one of the respondents, represented both respondents. He was assisted by a Gujarati interpreter arranged by the Tribunal.
3. The hearing proceeded in the usual manner for a dispute of this nature. After making brief opening submissions outlining their respective cases, the parties had opportunities to: (a) adduce the evidence that they relied on in support of their respective positions; (b) cross-examine the other party's witnesses on the matters at issue in the proceeding; (c) present their arguments in support of their respective cases; and (d) respond to the arguments made by the other party. I am satisfied that both parties have had a reasonable opportunity to be heard and to have their submissions considered.

1. I am satisfied that the Tribunal has jurisdiction to hear and determine the owners' corporation's application in this proceeding, and to make the orders sought in the proceedings.
2. Section 232 of the SSM Act gives the Tribunal jurisdiction to make orders to resolve a dispute between (amongst others) an owners corporation for a strata scheme and the owner(s) of a lot within the scheme about (amongst other things) the operation, administration or management of the strata scheme. Section 241 of the SSM Act also gives the Tribunal power to order any person the subject of an application to do or refrain from doing a specified act in relation to a strata scheme.
3. The powers of the Tribunal under sections 232 and 241 are broad: Vickery v The Owners-Strata Plan No 80412 [2020] NSWCA 284 (Vickery) at [26] (per Basten JA). While the authorities dealing with the breadth of the Tribunal's remedial powers under section 232 of the SSM Act do not delineate in a simple way the ambit of the Tribunal's powers, it is clear that the power to make a remedial order to "settle a complaint or dispute" is limited to "complaints" or "disputes" that fall within section 232(1)(a)-(f) of the SSM Act. It is also clear that the Tribunal must exercise its powers in a manner that is proportionate to the nature and extent of the dispute or the complaint, and do no more than is reasonably necessary to resolve the dispute and enforce compliance with the Act and the scheme's by-laws.
4. It was not in dispute between the parties that the respondents are the owners and/or occupiers of a lot in the strata scheme. The parties also agree that the owners corporation is the owners corporation for that strata scheme. There is no evidence to the contrary. The owners corporation is therefore an interested person within the meaning of section 232 of the SSM Act and has standing to bring the application against the respondents under section 232.
5. The dispute also engages provisions of the SSM Act and the by-laws of the strata scheme which concern the operation, administration or management of the strata scheme. It also concerns an exercise of, or failure to exercise, a function conferred or imposed by or under that Act or the by-laws, insofar as it raises issues about whether the carport was properly approved by the owners corporation before it was installed.

1. The owners corporation argued that the respondents should be ordered to take down the carport constructed over their car space, as:
   • The respondents did not comply with the strata scheme's by-law 28, relating to carports and carport proposals, before building the carport.
   • The carport, which is constructed in and on common property, has no approval from the owners corporation.
   • The carport does not meet the requirements for exempt development under the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (NSW) (the Codes SEPP).
   • The carport has no approval from Blacktown Council and has no complying development certificate.

Accordingly, the owners corporation submits, the Tribunal should order that the respondents must remove the carport structure (making good any damage caused to the common property by its construction or its removal) and go through proper processes if they wish to construct a carport over their car space.

1. The respondents argued in defence of the application, that:
   • The carport structure was an extension of a roof structure that the previous owner(s) of the respondents' lot had constructed in the courtyard of the respondents' lot. It covers only the car space of the applicants' lot.
   • The respondents had applied for the owners corporation's approval of the proposed carport structure after by-law 28 was passed (in August 2022) and before the structure was built.
   • By-law 28 was never registered.
   • Blacktown Council had told the respondent that he didn't need Council approval if the carport met certain criteria.
   • The carport meets that criteria and was built according to law.

As a consequence, they argue, the proceeding should be dismissed.

1. Having regard to the issues identified by the parties in the application form, in their bundles of documents and in their arguments at the hearing, the Tribunal must determine:

(1) whether the installation of the respondents' carport was authorised under the SSM Act, including the by-laws of the strata scheme, including (to the extent relevant) under applicable planning laws; and

(2) if not, then what orders (if any) should be made under section 232 and/or 241 of the SSM Act.

1. As the party seeking relief, the owners corporation carries the burden of satisfying the Tribunal on the civil standard (which is the balance of probabilities) of the facts and legal elements that - in the absence of other facts being proved - would justify the grant of the relief it seeks. The respondents carry a similar burden in respect of any affirmative defences that they raise. For a party to satisfy that burden of proof, the Tribunal must feel an actual persuasion of the occurrence or existence of that fact before it can be found. Actual persuasion is achieved where the allegation is made out to the reasonable satisfaction of the Tribunal. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, and the gravity of the consequences flowing from a particular finding are all considerations that must affect whether the fact has been proved to the reasonable satisfaction of the Tribunal. Reasonable satisfaction should therefore not be produced by inexact proofs, indefinite testimony or indirect inferences: Warner v Hung (No 2) (2011) 297 ALR 56; [2011] FCA 1123 at [48].

1. The owners corporation relied on the bundle of documents that it had lodged with the Tribunal on 15 April and 16 June 2025 (exhibits "A" and "B", respectively), which included: (a) witness statements from past and present strata committee members, including Mr Kedar Vyas and Mr Samuel Imbaraj (also referred to at the hearing as "Mr Melvin"); (b) the by-laws for the strata scheme; (c) minutes of meetings; (d) various items of correspondence, and (e) extracts of planning legislation and other rules; and (e) a building surveyor's report. While the owners corporation had initially served two other witness statements (being statements from Ms Ila Purohit and Mr Anendra Nath), those statements were ultimately not relied on at the hearing as those witnesses were not available for cross-examination on their evidence.
2. Mr Vyas and Mr Imbaraj gave sworn oral evidence at the hearing, in which they verified the contents of their witness statements and were extensively cross-examined by Mr Patel. I found both witnesses to be truthful and have accepted their evidence in full on that basis.

1. The respondents relied on the bundle of documents that they had lodged with the Tribunal on 22 April 2025 (exhibit "1"), which included: (a) various statements made by Mr Patel in response to the documents in exhibit "A", (b) extracted pages from the strata plan; (c) various items of correspondence; (d) bundles of various photographs of the carport and the respondents' lot, and on Mr Patel's written submissions (exhibit "2"), which was taken to be his witness statement in the matter.
2. Mr Patel also gave sworn oral testimony at the hearing, with the assistance of the interpreter, in which he adopted the contents of his written submissions and was extensively cross-examined by Mr Vyas. I found Mr Patel's oral evidence to be evasive at times and failing to address the central questions asked of him. I therefore give Mr Patel's evidence only medium weight in relation to the issues to be determined, except where his evidence is corroborated from other sources or is against his interests in the proceeding.

1. The strata scheme, which was registered in April 2012, contains 31 residential townhouses. The respondents' lot in the strata scheme consists of a two-storey townhouse with a rear/side courtyard area and a car space on the same side as the courtyard, in the gap between the respondents' townhouse and the townhouse next-door. The respondents' lot occupies a total of 313 square metres, with the townhouse itself occupying 233 square metres and the car space occupying 16 square metres (being 5.4 m long and 2.97 m wide). The remaining 64 square metres is occupied by the courtyard. As was identified in the notes on the strata plan for the strata scheme, the car space occupied an envelope of air 2.5 metres tall, immediately above the uncovered concrete floor of the car space.
2. The rest of the airspace above that envelope, together with the concrete floor of the car space, the walls of the townhouse buildings and the whole of the driveway area immediately in front of each townhouse is common property. The owners corporation holds that common property on behalf of all owners in the strata scheme, in proportion to their respective unit entitlements. The respondents' proportionate entitlement in the common property of the scheme is 15 out of an aggregate 500 units, or 3%.
3. Sometime before the respondents purchased their lot in the scheme (which was in or about 2020), a previous owner had constructed a polycarbonate (or similar) and metal roof over the part of the courtyard that was along the side of the respondents' townhouse. The evidence establishes that the roof was about 3.4 m tall at the edge closest to the car space - which was about a metre inside the boundary of the courtyard from the car space.
4. After buying the respondents' lot, Mr Patel wrote to the owners corporation on 23 February 2022, seeking permission to construct an open carport over the car space belonging to the respondent's lot, as an extension of that roofed area. His proposal estimated that the carport would be built within the respondent's lot and would be 6.9 m long, 2.9 m wide and 2.7 m high. Mr Patel's email noted that Mr Patel had spoken to three committee members, reporting that they had no issues regarding the proposal, and Mr Patel has produced various emails from strata committee members from about this time, to similar effect. The builder's quote that was included with Mr Patel's email gave different dimensions for the proposed structure, stating that the carport would be 8.5 m long. This allowed about 1 m for the carport to join up to the roof that was above the courtyard, in the vicinity of the car space.
5. Mr Patel also wrote to Blacktown Council at about this time, requesting the Council's permission to build the carport within the area of the respondents' lot. The Council's building surveyor advised Mr Patel to lodge a development application through the Council's planning portal if he wanted Council approval for the carport. In a subsequent email, dated 11 April 2022, the same building surveyor added that any carport that was constructed without Council approval would need to comply with the requirements for exempt and complying development under Part 2, Subdivision 10 of the Codes SEPP, and that Mr Patel would also need to discuss the matter with the strata manager if he went down that path.
6. The owners corporation held its Annual General Meeting on 21 August 2022, electing a 9-member strata committee that included Mr Vyas, Mr Imbaraj, Mr Nath and Mr Patel. Amongst other business, the owners corporation also passed two unanimous resolutions, establishing by-laws for carport installation (by-law 28) and minor renovations (by-law 29), which were subsequently registered with the Registrar-General.
7. In brief terms, by-law 28 required an owner who wished to obtain approval from the owners corporation to install a carport to lodge an application to the owners corporation, with detailed plans and specifications of the works and information about whether the proposed carport may affect the common property in any way, or whether it was likely to impact on the structural integrity of the building. The by-law then delegated the authority to approve or deny carport applications to the strata committee with a direction that the strata committee may not withhold approval for installation of a carport unreasonably. Where the committee did withhold approval, the owner was then entitled to refer the carport application to a general meeting, for determination by the owners corporation.
8. By-law 28 also prescribed a series of conditions on the installation of a carport structure, which included (my underlining):

Conditions to install the carport.

• The carport structure should be installed without touching any exterior walls. It should be stand-alone. A minimum of 10cm gap should be left on each side of the wall.

• The carport cannot exceed the parking space allocated to the lot. The length cannot exceed the car park marking lines.

• The carport should not exceed 3mtr in height

• The carport should be installed with the guttering system to avoid water falling directly into the next door wall.

• If the owners corporation contractor requires to access the walls of the units, there should not be any objection from the owner of the carport to permit the contractor to remove the roof. The contractor should ensure the roofing is installed back.

• The roofing material should be colour bond or skylight and the pole and roof colour should match the aesthetic of the existing building.

• No household material or any other material can be stored in the carport.

...

Terms and Conditions that will apply to all approvals

• Anything installed as a result of the carport shall not be, or become, or in any way be construed to be common property and shall always remain the sole property of the owner of the lot which they service, including successors in title;

• The owners of any lot undertaking the installation of the carport must obtain all necessary permits, licenses or consents required by local authority or other statutory or lawful authority for such installation

• the installation of any devices must be effected in a workmanlike manner by licensed and insured tradespersons

• any damage to common property that occurs during, or results from, the installation or subsequent removal or replacement of, or use of, the carport must be forthwith made good by the owners of the lot from which the damage results at no cost to the Owners Corporation;

• the carport must be maintained in good working order and condition by the owner without claim on the owners corporation in respect of such maintenance

• In the event that an owner or occupier of a lot to which the carport has been completed, after notice, fails to comply with any matters set out here of then the Owners Corporation may terminate the right of the owner or occupier to install.

• The Strata Committee or Owners Corporation may impose additional terms and conditions to the granting of approval for carport, including but not limited to; ○ Conditions surrounding noise hand proposed times of work, ○ Provisions for cleaning and removal of debris, ○ Conditions surrounding access to common property for trades, equipment and vehicles. ○ Any other matter relevant to the application.

1. By-law 29 delegated to the Strata Committee the function of approving minor works under s 110 of the SSM Act. The by-law defined "minor works" for those purposes and established standard terms and conditions on the for the application and approval process, and on the conduct of those minor works. The by-law did not state that a carport was covered within the scope of "minor works".
2. In his evidence, Mr Patel stated that he had asked the then-strata manager in August 2022, after by-law 28 had been passed, whether he could now construct his carport. Three months later, he said, he believed that the owners corporation had approved the carport and began to install it. I do not accept that evidence. Even if it were true, Mr Patel's belief that the carport had been approved does not equate to an actual approval from the owners corporation, which was ultimately never given to him.
3. In November 2022, Mr Patel visited Mr Vyas, together with the owner of another lot in the strata scheme and a carport builder, to discuss Mr Patel's plan to install a carport at the respondents' lot. Mr Vyas mentioned at the meeting that Mr Patel would need to lodge a development application with Blacktown Council and obtain approval from the owners corporation for the installation of the carport.
4. Despite that advice, Mr Patel's building contractor began installing a carport over the car space of the respondents' lot on 3 December 2022, without giving notice to the then-managing agent (Mr Salot), the Strata Committee or Blacktown Council of his intention to do so. Mr Vyas and Mr Inbaraj noticed the carport being constructed and inquired with the builder whether Council approval had been obtained; with the builder telling them that it had not. After consulting with the strata manager by telephone, Mr Vyas and Mr Inbaraj asked the builder to stop the installation immediately, which the builder did. However Mr Patel then arranged for the builder to return and complete the carport later that month.
5. Since then, the parties have been in dispute about (a) whether the carport was constructed with approval under by-law 28, and in accordance with the conditions of that by-law; (b) whether it was necessary for the carport to comply with the requirements of the Codes SEPP; and (c) whether it was necessary for the respondents to have obtained development approval from Blacktown Council to construct the carport.
6. On 17 March 2023, a building surveyor at Blacktown Council informed Mr Vyas that he could find no approval for the respondents' carport structure, speculating that it was likely the carport had been erected as an unauthorised development. This advice appears to have been communicated to the respondents, as Mr Patel subsequently wrote to Mr Salot on 26 May, requesting a "no objection" certificate from the owners corporation that he could submit to Blacktown Council "and get required documentation".
7. Mr Salot's office replied to Mr Patel the same day stating that, "taking into account the specifications outlined in the bylaws of the scheme", the strata managers were unable to provide the certificate Mr Patel had requested. In a separate email exchange - the date of which is unknown - Mr Patel asserted that the carport had been built according to strata guidelines and requested a statement from the strata managers that the carport "meets all guidelines and bylaws of STRATA". Mr Salot's Compliance Coordinator replied to Mr Patel by email, stating "We believe that the carport you have constructed aligns with the bylaw specifications".
8. The owners corporation held its next annual general meeting a few months later, on 11 September. Mr Vyas, Mr Inbaraj and Mr Nath were re-elected to the strata committee, but Mr Patel was not. The meeting also amended by-law 28 to withdraw the authority of the strata committee to grant approvals for carport installation requests, requiring instead that owners' applications for carport installations be determined by the owners corporation itself, at a general meeting. Lastly, the meeting considered whether to approve the respondents' carport or to issue a notice to comply to the respondents for the installation of their carport, resolving (as recorded in the minutes of the meeting):

... [the respondents are] to submit approval for DA submission within 30 days of the AGM date and submit the confirmation to the Strata manager. [Upon] Failure to submit DA application to council, Owners corporation to issue Notice to Comply.

1. The respondents did not submit any development application to the Council over the following six months. Consequently, Mr Salot issued a notice to comply to Mr Patel under s 146 of the SSM Act on 6 May 2024, serving the notice on Mr Patel the same day. The notice asserted that Mr Patel had breached by-law 28 by installing his carport without obtaining the necessary permits, licenses or consents required by the Council, as the local authority. The notice then required Mr Patel to comply with the by-law immediately, by submitting a council approval/permit for the carport to the strata, although it required this to be done "by 30 March 2024". That date appears to be an error.
2. At its subsequent meeting on 25 May, the strata committee determined that it would require the respondents to provide a council approval or a compliance certificate for the carport to the strata committee "as soon as possible". The minutes recorded that Mr Patel (who was present at the meeting) was also given a copy of the notice to comply at the meeting, which he acknowledged.
3. In June 2024, the strata committee selected Ace Body Corporate to act as the strata managing agents for the scheme, replacing Mr Salot's firm. The parties subsequently attempted to mediate the dispute through NSW Fair Trading in September 2024, albeit without success.
4. At its meeting on 2 November, the strata committee noted that the respondents had agreed to send the new managing agents, within 7 days, documentation showing that they had permission to build the carport from the previous managing agents and from Blacktown Council. The strata committee also agreed to abstain on bringing action in the Tribunal for the time being.
5. Following that meeting, and at the respondents' request, the managing agents arranged for a licensed builder to examine the carport structure, to determine if a certificate of compliance could be issued for the structure. The builder (Advance Property Services Group Pty Ltd) subsequently issued a report to the managing agents advising that the carport could not be certified, stating:

I went out site yesterday Thursday 14th to inspect to see if we could certify the existing carport to [the respondents' lot].

After looking at carport I found several problems that don't meet Council regulations that would allow me to certify this carport.

1. The maximum size of the carport for a townhouse of 300m2 or less is only 20m2. The carport has been installed is 8.5m x 2.9m which is 24.65m2, so doesn't comply with maximum size as per council regulations.

2. The maximum height for a carport can be no larger than 3m. The carport is 2.6m to front but is 3.37m at the rear, so doesn't comply with maximum height as per council regulations.

3. The front setback of a carport is required to be 1m back from front of building line. This carport is actually 2.5m in [front] of building line, so is 3.5m out of where front setback should be.

4. The side set back of the carport is required to be 900 mm from the lot boundary. This carport actually touches the boundary wall of townhouse [...] with design spaces of the carport that is 100 mm of [off] the wall so does not comply with council regulations.

5. At least 2 sides and one-third of the carport's total perimeter must be open. This carport only has the front open so does not comply with council regulations.

Seeing there are so many areas this carport doesn't comply with Blacktown carport regulations, we cannot certify this carport

Each of the problems identified by the builder was illustrated by annotated photographs that were included in the report. One of those photographs also showed that the front of the carport was supported by a post that had been installed into the ground in driveway, and that the carport overhung the driveway area in front of the respondents' car space.

1. The strata committee considered the report at its meeting on 2 December, resolving to send the respondents a letter to ask them to comply with the council requirements (as noted in the builder's report and set out in the minutes) by Monday, 6 January 2025. The resolution continued:

... once the alterations have been made and Council approved the carport the owners corporation will provide approval of the carport.

... should [the respondents] not adhere to the above requirements and make the appropriate alterations by Monday 6th January 2025 the committee agreed on the next step to authorise and instruct [the managing agents] to lodge an application with NCAT to have [the respondents] remove the structure being the car port.

Despite that resolution, the respondents made no alterations to the carport structure. Consequently, the owners corporation lodged its application with the Tribunal on 25 February 2025.

1. As matters stood at the hearing, the respondents still had not obtained approval from the owners corporation or from Blacktown Council or an approved certifier for the construction of the carport.

1. Section 135(1) of the SSM Act provides that, every owner of a lot in a strata scheme and every occupier of a lot in the scheme must comply with the by-laws of the strata scheme (relevantly):

... as if the by-laws--

(a) had been signed and sealed by the owners corporation and each owner and each such ... occupier, and

(b) contained mutual covenants to observe and perform all the provisions of the by-laws.

1. As noted immediately below that section, the legal effect of having been taken to have signed and sealed a by-law is that the person is always taken to have known about it. Consequently, the respondents were required by s 135 to comply with by-law 28, as it existed from time to time, in their dealings with the carport.

1. Section 23 of the Strata Schemes Development Act 2015 (NSW) (the SSD Act) provides that common property may only be dealt with in accordance with the SSD Act and the SSM Act. Section 111 of the SSM Act further provides that an owner of a lot in a strata scheme must not "carry out work" on the common property unless the owner is authorised to do so: (a) under Part 6 of the SSM Act (specifically, ss 108 to 110), or (b) under a by-law made under that Part, or a "common property rights by-law" made under Part 7 of the SSM Act, or (c) by an approval of the owners corporation given by special resolution or in any other manner authorised by the by-laws.
2. The carport that was constructed by respondents' contractor protrudes out of the airspace of the respondents' lot, and into the common property in several ways:
   • The footings of the carport are embedded into or attached to the ground (including the driveway area in front of the respondents' car space and the concrete slab underneath the car space), which is common property.
   • The roof of the carport is over 2.5 metres tall, and extends into the common property airspace above the respondents' car space.
   • The roof of the carport overhangs into the common property airspace surrounding the car space, including the driveway immediately in front of the respondents' car space.

These are all physical alterations to the common property, even if the car space itself is part of the respondents' lot. Further, the construction of the carport involved ongoing exclusive use of parts of the common property by the carport structure whilst the carport occupied those parts of the common property.

1. As a result, the installation of the carport made changes to the common property, and the use of that common property, that required authorisation through a by-law made by the owners corporation under both Parts 6 and 7 - as the construction of the carport involved the making of alterations to the common property (Part 6) and because the structure occupies and uses common property airspace and ground after its installation (Part 7).
2. Within Part 6, ss 109 and 110 apply to alterations that constitute cosmetic works (s 109) and minor works (s 110). Neither of those provisions apply in this case. Consequently, the main focus is on s 108. That section sets out the rules for making changes to common property that are not cosmetic work or minor works, providing that:

(1) Either the owners corporation or an owner of a lot in the strata scheme may add to, alter, or erect a new structure on, common property for the purpose of improving or enhancing the common property, but only if a special resolution has first been passed by the owners corporation that specifically authorises the taking of the particular action proposed: s 108(1) and (2).

(2) A special resolution that authorises the action to be taken in relation to the common property by an owner of a lot must specify whether the ongoing maintenance of the common property once the action has been taken is the responsibility of the owners corporation or the owner. If the special resolution does not specify who has the ongoing maintenance of the common property concerned, the owners corporation has the responsibility for the ongoing maintenance: s 108(3) and (4).

(3) A special resolution that allows an owner of a lot to take action in relation to certain common property and provides that the ongoing maintenance of that common property after the action is taken is the responsibility of the owner has no effect unless--

(a) the owners corporation obtains the written consent of the owner to the making of a by-law to provide for the maintenance of the common property by the owner, and

(b) the owners corporation makes the by-law: s 108(5).

(4) Sections 143 (2), 144 (2) and (3) and 145 apply to that by-law in the same way as they apply to a common property rights by-law: s 108(7).

1. Part 7 (specifically, ss 141-145) similarly sets out the rules for granting a lot owner exclusive use of, special privileges in respect of, or special rights to use a part of the common property, chiefly through the making of a "common property rights by-law". By s 141, any change in the by-laws must be made by a special resolution of the owners corporation at a properly convened general meeting.
2. Section 142 defines a "common property rights by-law" as:

a by-law that confers on the owner or owners of a specified lot or lots in the strata scheme--

(a) a right of exclusive use and enjoyment of the whole or any specified part of the common property, or

(b) special privileges in respect of the whole or any specified part of the common property (including, for example, a licence to use the whole or any specified part of the common property in a particular manner or for particular purposes),

or that changes such a by-law.

That is the only provision in the SSM Act that authorises a lot owner to have exclusive use of common property, or special privileges in respect of common property, or special rights of use of common property. Consequently, and given the restriction contained in s 23 of the SSD Act, a lot owner who wishes to have that use or those privileges in respect of a part of the common property (including for the construction and use of a carport) must obtain a common property rights by-law for that use or those privileges.

1. Section 143 sets out the requirements and legal effect of a common property rights by-law. It provides that such a by-law can only be made, amended, or repealed with the written consent of each owner who receives the exclusive use or special privilege: s 143(1), and that the by-law may impose conditions, including payment obligations, on the benefiting owner: s 143(2). It also confirms that a by-law may validly confer rights even if the owner already informally enjoyed them before the by-law was made: s 143(3), and that after two years, it is conclusively presumed that all procedural requirements for making the by-law were properly complied with, preventing later challenges to its validity: s 143(4).
2. Section 144 requires that every common property rights by-law made under section 142 must impose an obligation on the benefiting lot owner to properly maintain and keep in a state of good and serviceable repair the part of the common property to which the exclusive use or special privilege relates, unless the by-law expressly states that the owners corporation will retain that responsibility: s 144(1). This provision ensures that when a lot owner gains exclusive use or special rights over common property, the financial and practical burden of maintaining that area does not fall on all owners by default, and that the by-law clearly allocates responsibility for upkeep.
3. Section 145 deals with the variation or repeal of a common property rights by-law. It provides that such a by-law cannot be changed or revoked without the written consent of the owner whose lot benefits from it, unless an order of the Tribunal authorises the change.

1. Overlapping with the requirements of the SSD Act and the SSM Act for the construction on or use of common property is the question of whether the construction of the carport required planning approval (development consent) from Blacktown Council.
2. The primary legislation that determines whether a structure, such as a carport, requires development consent from Blacktown Council is the Environmental Planning and Assessment Act 1979 (NSW) (the EPA Act), which is supported by the Environmental Planning and Assessment Regulation 2000 (NSW) and the Blacktown Local Environmental Plan 2015 (BLEP 2015).
3. Part 4 of the EPA Act establishes a default position that all "development" (which is defined in section 1.1 of the Act to include (amongst other things) the use of land and the erection of a building on land) unless an environmental planning instrument (EPI) - such as a state environmental planning policy or a local environmental plan - says otherwise: ss 4.1 and 4.3.
4. Sections 1.6(2) and 4.2 of the EPA Act allow an EPI to specify development that does not require development consent ( known as "exempt development"). Section 1.6(1) provides that exempt development does not require (amongst other things) development consent under Part 4 of the EPA Act. Under clause 1.15 of the Codes SEPP described above, a development is exempt development if the development: (a) is specified in an exempt development code, and (b) meets the standards specified for the development, and (c) complies with the requirements of the Codes SEPP for exempt development.
5. Schedule 2 of the BLEP 2015 notes that the Codes SEPP specifies exempt development under that Policy, and has State-wide application.
6. There is no definition of "carport" in the Codes SEPP. The term has therefore taken its ordinary meaning of "a roofed structure for parking a vehicle", which has been adopted by courts and certifiers alike. That definition is subject to the functional criteria set out in the Codes SEPP, such as Clause 3C.26, which provides that:

"A carport must have 2 or more sides open and have not less than one-third of its perimeter open".

1. Clause 2.19 of the Codes SEPP provides that the construction or installation of a carport is exempt development if it is not constructed or installed on or in a heritage item or a draft heritage item or on land in a foreshore area. Clause 2.20 of the Codes SEPP then sets out the standards that are specified for a carport to be exempt development, stating (relevantly, my underlining):

2.20 Development standards

(1) The standards specified ... are that the development must-

(a) not result in a building classified under the Building Code of Australia

(b) not have a floor area more than-

(i)-(ii) ...

(iii) for a lot 300m2 or less in any zone - 20m2, and

(c) be not higher than 3m above ground level (existing) and, if attached to an existing single storey dwelling, be not higher than the roof gutter line, and

(d) be located at least 1m behind the building line of any road frontage, and

(e) be located at a distance from each lot boundary of at least-

(i) ...

(ii) for development carried out in any other zone - 900mm, and

(g) to the extent it is comprised of metal components-be constructed of low reflective, factory pre-coloured materials, and

(h) not involve the construction of a new driveway or gutter crossing unless the consent of the relevant road authority for each opening of a public road required for the development has been obtained under the Roads Act 1993

(i) be constructed or installed so that any roofwater is disposed of into the existing stormwater drainage system, and

(j) if it is connected to a fascia-be connected in accordance with a professional engineer's specifications, and

(l) if it is located on bush fire prone land and is less than 5m from a dwelling-be constructed of non-combustible material, and

(m) if it is constructed or installed in a heritage conservation area or a draft heritage conservation area-be located in the rear yard, and

(n) be located so that it does not reduce vehicular access to, or parking or loading or unloading on, or from, the lot.

Note : ...

(2) The roof of the development must be located at least 500mm from each lot boundary.

(3) There must not be more than 1 development-

(a) per lot if there is a dwelling on the lot, or

(b) per lot or per each separate occupation of premises on the lot, whichever is the greater, in any other case.

1. Lastly, the notes to the Codes SEPP also identify that "In addition to the requirements specified for development under this code, adjoining owners' property rights, the applicable common law and other legislative requirements for approvals, licences, permits and authorities still apply." The result of this is that for a carport to be exempt development, it must be constructed by the relevant lot owner, and wholly within that lot owner's lot.

1. The case was conducted by both parties primarily on the basis of whether the respondents had obtained approval from the strata committee and/or the owners corporation under by-law 28. However it must be noted at the start that:

(1) The approval regime set out in by-law 28 does not reflect the requirements of Parts 6 and 7 of the SSM Act, described above, concerning the conduct of works by a lot owner within common property areas that are vested in the owners corporation, and the granting of common property use rights in respect of common property areas used exclusively by a lot owner, or over which a lot owner is to have special privileges, which are more stringent than the requirements set out in the by-law.

(2) The design requirements of by-law 28 are generally less stringent than the applicable planning law requirements for exempt development (save for the overall height requirement, which is the same): the floor area and setback requirements of the Codes SEPP are all more restrictive than by-law 28 provides. Consequently, the design requirements in by-law 28 largely do not affect the outcome of this case. The Codes SEPP takes priority in most cases. I will come to those requirements shortly.

1. The four parts of by-law 28 that affect the outcome of this case are:

(1) The simple fact that the respondents were required to obtain the approval of the owners corporation before constructing the carport (which overlaps with the requirements of Parts 6 and 7, discussed below).

(2) The requirement that the carport cannot exceed the parking space allocated to the lot, and that its length cannot exceed the car park marking lines.

(3) The requirement that the carport cannot exceed 3 metres in height.

(4) The requirement that a lot owner who is installing a carport must also obtain all necessary permits, licenses or consents required by the statutory authorities for installation of a carport, which includes development consent from the Council under the EPA Act.

The respondents' carport breaches each of those elements, and was therefore constructed in breach of by-law 28.

1. The evidence demonstrates that the respondents did not have the approval of the owners corporation (or, to the extent relevant, its strata committee on its behalf) before constructing the carport, or at any time since then. Mr Patel's asserted belief that he had obtained that approval is not enough. No actual approval was given at any time.
2. The respondents' carport exceeded the parking space allocated to the respondents' lot. It extended outwards, beyond the car park marking lines shown in the photographs produced to the Tribunal, overlapping onto the common property driveway at the front of that car space. It was also more than 3 metres in height, as measured at the back of the carport structure. Thirdly, the carport was constructed without obtaining the necessary consents or approvals to enable the carport to be constructed, including development consent from Blacktown Council or a complying development certificate under the EPA Act.
3. The respondents did not obtain all necessary permits, licenses or consents required by the statutory authorities for the installation of their carport. Development consent was required from Blacktown Council, as the carport did not comply with the requirements for the carport to be considered "exempt development" under the Codes SEPP:

(1) The roof and the posts of the carport structure extended outside the bounds of the applicants' lot, and protruded into the common property that is held by the owners corporation.

(2) As set out in the report from Advance Property Services Pty Ltd:

(a) The total area of the carport was 24.65 m2, which exceeded the maximum size allowed for of the carport for a townhouse of 300m2, which was only 20 m2.

(b) The overall height of the carport, which was 3.37 m at the rear of the structure, exceeded the maximum height allowed for a carport, which was only 3m above existing ground level.

(c) The front of the carport was 2.5m in front of the building line of the respondents' lot, and was not set back 1 m back from the building line.

(d) The "spacer" elements along the side of the carport structure touched the boundary wall of the respondents' townhouse. The sides of the structure were otherwise only set back 100 mm from the boundary of the adjoining lot, which was less than the required setback of 500 mm.

(e) Because of the position of the carport between the two townhouses and the fence that marked the edge of the respondents' courtyard, only the (narrow) front of the carport was open. This contravened the requirement in the Codes SEPP, that at least 2 sides and one-third of the carport's total perimeter must be open.

1. The respondents did not obtain that development approval before constructing the carport. On the evidence they have not obtained any such approval at any time since then.
2. Separately, the respondents did not obtain the necessary approval from the owners corporation under Parts 6 and 7 of the SSM Act, to permit them to construct the carport in the common property of the strata scheme:

(1) No special resolution was passed by the owners corporation in a general meeting, and no by-law was made by the owners corporation under s 108 of the SSM Act (or, it follows, consented to in writing by the respondents), to permit the respondents to make alterations to the common property areas around the respondents car space that were vested in the owners corporation, by installing the footings and the structural parts of the carport in those common property areas.

(2) No special resolution was passed by the owners corporation in a general meeting, and no common property rights by-law was made by the owners corporation under ss 141-145 of the SSM Act, to permit the respondents to use those same parts of the common property for the purposes of their carport structure.

1. The respondents have sought to point to other lot owners who have had carport projects approved by members of the strata committee, to support an argument that the owners corporation and its strata committee have been unfairly selective in choosing to bring this application against the respondents. This argument does not assist their case. Firstly, the circumstances in which those approvals were considered by the owners corporation and/or the strata committee are not known. Whether those other lot owners have obtained development consent from the Council is also not known. Lastly, the argument made by the respondents has no bearing on the question before the Tribunal, which is whether this particular carport has been constructed in accordance with the applicable legal requirements and, if not, whether it should be removed. The Tribunal therefore gives no weight to that argument in reaching this decision.

1. The owners corporation has therefore established that the respondents' carport has been constructed without the necessary approvals and authorisations. The parties presented the Tribunal with a binary choice to either order that the carport be removed, or to leave it in situ without undertaking any other steps to prevent it from breaching applicable laws, including the SSM Act and the relevant parts of the EPA Act. No party argued that any breach of those provisions by the carport could be remediated or ameliorated by undertaking any action short of removing the carport. This gulf between the two parties' positions significantly limits what the Tribunal can consider in exercising its remedial powers under sections 232 and 241 of the SSM Act.
2. The fact that the carport was installed without obtaining the formal the approval of the owners corporation and the Council becomes relevant in this circumstance, as the Tribunal is not able to apply the terms of any relevant approval in considering the matter. Drawing together the facts and the provisions of the Act, it is clear that:

(1) The effect of sections 108 and 141-145 of the SSM Act is that the owners corporation - not the strata manager, or individual committee members informally - was the proper decision‑maker for any application to install the carport in the common property areas and to give the respondents exclusive use or special privileges (etc) in respect of it.

(2) Informal email consultation with the strata managers acting at the time, and with some committee members, does not amount to an approval by the owners corporation. The respondents therefore did not obtain a proper resolution under the SSM Act before installing the carport. The installation was therefore unauthorised and in breach of the SSM Act.

(3) The respondents did not obtain a proper development approval for the carport under the EPA Act before installing the carport. The installation of the carport was therefore also in breach of the EPA Act.

1. In all of these circumstances, it is proportionate to order removal of the carport. As the installation and removal of the carport both involve works to common property, it is appropriate to require the respondents to repair any damage caused to common property by those works.
2. To ensure the owners corporation is not left without further recourse if the respondents fail to remove the carport and to make good any damage caused by the installation or removal of the carport, the Tribunal will also grant leave under Schedule 4 of the Civil and Administrative Tribunal Act 2013 (NSW) to renew these proceedings within 12 months of the date these orders are made.
3. The Tribunal therefore makes the following orders:

(1) The respondents must remove the carport constructed in and around the car space of the respondents' lot and the common property of the strata scheme, including all associated pipework, cabling and conduits, within 28 days of the date these orders are made. The respondents must also repair, at their own cost, all damage caused to the common property by the installation or removal of the carport and those associated elements.

(2) The owners corporation is granted leave pursuant to Schedule 4 of the Civil and Administrative Tribunal Act 2013 (NSW), to renew these proceedings within 12 months of the date these orders are made.

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.