The applicant submits that the respondents' storage of their e-bike and pram on the common property on level 6 of the building in the Strata Scheme constitutes a nuisance and a hazard, and an unreasonable interference, for the purposes of s. 153 of the Act. The e-bike and the pram obstruct or interfere with access to the fire stairs on level 6 and obstruct or interfere with the free passage of occupiers to the lift and the fire-stairs. The applicant's written submissions cite a passage from the Supreme Court's decision in The Owners - Strata Plan No. 2245 v Veney[2020] NSWSC 134 as explaining the test that is to be applied in determining whether an actionable nuisance has been committed.
The respondents' storage of their e-bike and pram on the common property on level 6 gives rise to a real risk that the applicant will not be able to obtain an Annual Fire Safety Statement.
The applicant submits that the respondents have received numerous requests to remove their e-bike and pram on the common property on level 6, including a request from a solicitor on behalf of the applicant but the respondents have consistently refused and failed to agree to the requests. The respondents have shown "". Mr. Davis pointed to complaints made by other lot owners about access difficulties caused to them by the respondents' e-bike and pram. He mentioned the complaints in the evidence, and also suggested, as I understood the submission, that the owner of lot 23, an elderly lady who used a walking frame to assist her with mobility, faced difficulties with access caused by the respondents.
what is bordering on a contumacious attitude to the appropriate use of common property
Mr. Davis for the applicant agreed that the doors to the lots on level 6 were heavy. Mr. Davis said that fire safety regulations had led to those doors being needed. He pointed out that other owners and occupiers managed with the doors, including when bringing groceries into their respective lots. Mr. Davis explained that he had a sincere fear of what might happen in an emergency if residents had to leave their lots to escape level six and were obstructed from reaching the fire exit by the respondents' pram and e-bike.
The Tribunal should make orders, it was submitted, in relation to the e-bike and the pram. The applicant did not press for orders (see 1.(iii) at p. 1 in exbibit 1) in relation to the respondents' camera that had been added to common property without permission.
For their part, the respondents accept that the pram and the e-bike have been situated on common property "on a continuous basis" since April 2022 and June 2022 respectively, as depicted in the photographs at annexure H in their document that amounts to their written submissions.
The respondents submitted that "purely practical reasons" support the respondents being able to park their e-bike and the pram on the common property permanently. They say it is "impossible" for the second respondent to push the pram or the e-bike through the door to their lot and hold onto her young son in the process. They submit that there are no bicycle racks installed on common property in the Strata Scheme.
They submit that it is "common practice in New South Wales, particularly in buildings where young children reside" for bicycles and prams to be stored outside the front door of apartment buildings.
They submit that occupiers of lots 21 and 22 can use the fire exit on the landing near these two lots without being impeded by the pram because one can go directly from the doors to these lots to the fire exit. They submit that the occupiers of lots 23 and 24, on the western side of the building in the Strata Scheme, can use the fire exit and lifts on their side of the building.
They submit that the e-bike is never parked by the second respondent in the middle of breezeway, and someone must have moved the e-bike into the middle of the breezeway before taking the photograph which depicts that positioning of the e-bike. There is no ongoing need for anyone to access the breezeway because owners and occupiers can use the lifts on the western side and the eastern side of the building, to reach the ground floor.
The respondents submit that the Tribunal should discount Ms. Campbell's evidence about complaints. They say there were no complaints between April 2022 and April 2023. They say no direct evidence of complaints has been provided and Ms. Campbell's evidence is expressed in entirely vague and non-specific terms. They submit that complaints were actuated by issues entirely unrelated to the storage of the bicycle and pram on level 6 and the only time complaints were made was when they arose after an unrelated altercation between the respondents and other lot owners.
They cite passages from some of the legal authorities and then submit that their storage of the e-bike and pram on common property is a reasonable and convenient use of the common property, does not harm the other occupiers in their enjoyment of the common property and even if there is some harm, the harm does not rise to the level of a substantial degree of harm.
They submit that Profire had no concerns about the e-bike and pram in 2022 and 2023 and that the 2024 Annual Fire Safety Statement was issued and thus, there must be no concern that the pram and e-bike are non-compliant with the relevant fire safety regulations. They submit that Ms. Campbell and the applicant have been dishonest in their statements and submissions about the annual fire safety statements and have intentionally sought to mislead the Tribunal.
[2]
Jurisdiction - The Tribunal interprets the applicant's case against the respondent as one that involves the claim that the respondents have contravened s. 153(1)(a) of the Act (see "Orders sought 1.(ii)" on page 1 of exhibit 1) and s. 153(1)(b) of the Act (see "Orders sought 1.(i)" on page 1 of exhibit 1). None of the parties, nor any of the evidence, raised s. 153(1)(c) of the Act so the Tribunal will not consider that legislative provision.
The Tribunal is satisfied that it has jurisdiction to determine this claim under s. 232 of the Act (see The Owners - Strata Plan No. 2245 v Veney[2020] NSWSC 134 at [64]) and also under s. 241 of the Act.
Onus of proof - It is the applicant who bears the onus of proving its claim. It must discharge that onus on the balance of probabilities standard.
The legislationand its application - Section 153(1) of the Act provides:
[3]
"(1) An owner, mortgagee or covenant chargee in possession, tenant or occupier of a lot in a strata scheme must not--
(a) use or enjoy the lot, or permit the lot to be used or enjoyed, in a manner or for a purpose that causes a nuisance or hazard to the occupier of any other lot (whether that person is an owner or not), or
(b) use or enjoy the common property in a manner or for a purpose that interferes unreasonably with the use or enjoyment of the common property by the occupier of any other lot (whether that person is an owner or not) or by any other person entitled to the use and enjoyment of the common property, or
(c) use or enjoy the common property in a manner or for a purpose that interferes unreasonably with the use or enjoyment of any other lot by the occupier of the lot (whether that person is an owner or not) or by any other person entitled to the use and enjoyment of the lot."
[4]
The respondents are owners of a lot in the Strata Scheme such that the obligations provided for in s. 153(1)(a) and (b) of the Act are applicable to them.
Section 153(1)(a) of the Act is potentially enlivened here. That is because the respondents are using or enjoying their lot in a manner that involves them parking their e-bike and their pram on common property in close vicinity to their lot on a continuous basis, because, they say, it is "impossible" for them to move the pram and e-bike inside their lot, arising from the weight of the door to their lot, preventing the second respondent from using either the e-bike or the pram to transport the respondents' two-year old son into, and out of, the respondents' lot on his visits to and from daycare.
Section 153(1)(b) of the Act is potentially enlivened here. That is because the respondents are using or enjoying parts of the Strata Scheme common property on level 6 of the relevant building, to park their e-bike and pram on a continuous basis.
Darke J in Veney, supra, at [46] and [47], when considering a claim that a lot owner was contravening s. 153(1)(a) of the Act, accepted that "nuisance" in s. 153(1)(a) of the Act should be interpreted in accordance with the common law meaning of an actionable nuisance, in circumstances where "nuisance" is not defined for the purposes of s. 153 in the Act, and having had regard to the language of s. 153 and the context in which it appears.
The Tribunal has considered the elements of a claim in nuisance at common law in reaching its decision about whether or not the respondents have contravened s. 153(1)(a) of the Act. Albeit, in doing so, it is necessary to appreciate that the statutory context of the application in these proceedings, does differ from the context in which the elements of the tort of nuisance are often typically considered. Unlike a typical claim in nuisance which might arise between the proprietor of a freehold estate and the occupier or proprietor of an adjoining freehold estate, an important factor which needs to be considered here is that the conduct of the respondents that is sought to be impugned by the applicant involves conduct that is taking place on common property. "Common property" is of course defined in s. 4 of the Strata Schemes Development Act2015, an owners corporation has particular statutory responsibilities in relation to common property (see e.g. s. 9(2)(a) and (3)(c) of the Act) and lot owners themselves have certain rights in relation to common property. As the following explanation for the orders that the Tribunal will make should show, that statutory context needs to be, and is, considered when evaluating the evidence in this case.
A) the pram
The Tribunal turns first to consider the respondents' parking of the pram on level 6 of the relevant building, on a permanent or continuous basis (except when it is used to ferry the respondents' son to or from daycare).
In reaching its conclusion on whether the respondents have caused a nuisance for the purposes of s. 153 of the Act, the principal matters that have weighed on the Tribunal's reasoning are the following:
Where interference with enjoyment of land is relied upon in the context of nuisance, the inconvenience to be considered is to be "more than fanciful, more than one of mere delicacy or fastidiousness, as an inconvenience materially interfering with the ordinary comfort physically of human existence, not merely according to elegant or dainty modes and habits of living, but according to plan and sober and simple notions among the English people?": Walter v Selfe[1851] EngR 335; (1851) 4 De G & Sm 315 at 322 per Knight-Bruce V-C, adopted in Don Brass Foundry Pty Ltd v Stead[1948] NSWStRp 47; (1948) 48 SR (NSW) 482 at 486 per Jordan CJ.
In assessing the standard of comfort to which the complainant might be entitled, the Tribunal takes into account the character of the neighbourhood where the respondents' conduct that is the subject of these proceedings is taking place: Gales Holdings v Tweed Shire Council[2013] NSWCA 382; (2013) 85 NSWLR 514 at [138] per Emmett JA, with whom Leeming JA and Sackville AJA agreed. The impugned conduct here is taking place in a residential strata development which includes 58 lots. Thus, owners and occupiers of the 58 lots are using the lots at all times of day and night rather than, say, just during ordinary working hours. The owners and occupiers of the lots within the Strata Scheme are likely to reflect the Australian community and the different range of functional abilities of people within the Australian community. There may be elderly people who might need a walking frame to assist themselves with mobility. There might be people who need to use a wheelchair or crutches to assist them with their mobility. There may be occupiers, who are ordinarily nimble on their two legs, but who might be burdened at a particular instance, with, for example, the carrying of a new microwave into their lot, a sleeping child from a car, or a large volume of grocery bags. There may be parents, carers or grandparents who are moving a young child in a pram around level 6 of the building in the Strata Scheme.
The owners and occupiers of the lots within the Strata Scheme are also likely to reflect the Australian community and the different range of mental faculties and reasoning processes of people within the Australian community. For example, there may be young children who will, from time to time, run and play games on level 6 of the relevant building in the Strata Scheme. The law recognises that dangers that may be apparent to adults, may not be apprehended by children, or children may be impervious to some dangers in the midst of a game: Phipps v Rochester Corp[1955] 1 QB 450 at 458. Common, contemporary human experience also suggests some of the occupiers of the 58 lots in the residential strata scheme the subject of these proceedings might be distracted by the use of a mobile telephone when moving around the building in the Strata Scheme.
For the purposes of s. 153(1)(a) and (b) of the Act, the occupiers "of any other lot" referred to in s. 153(1)(a) and the "occupier" or "any other person entitled" referred to in s. 153(1)(b), in my view, are terms which comprehend and include any of the persons, or categories of persons, which I have referred to in [105] and [106] above in these reasons.
In establishing nuisance, a complainant does not need to establish that an actual injury or interference has taken place, rather the question is whether the respondent was responsible for a condition of affairs on the relevant land which threatens damage: Bolton v Stone[1950] 1 KB 201 at 208 per Jenkins LJ and Challen v McLeod Country Golf Club (2004) Aust Torts Reports 81- 760 at [35] per Mullins J. Nor does the nuisance need to be constant or frequently occurring; a temporary interference with one's enjoyment of land can give rise to an actionable nuisance (Wherry v KB Hutcherson Pty Ltd(1987) Aust Torts Reports 80-107), so long as it meets the other requirements of the tort such as being a substantial and unreasonable interference with one's enjoyment of property.
The Tribunal finds that the right hand side, rear wheel of the respondent's pram impedes access between the breezeway on level 6 of the relevant building and the landing area outside the respondents' lot, because the right hand side rear wheel of the pram is cutting off something less than one-third of the access from the landing to the breezeway, and as a corollary thereto, the right hand side rear wheel of the pram is cutting off something less than one-third of the access from the breezeway to the landing area and the fire exit reached from the landing area.
Owners of lots in the Strata Scheme have rights to use the common property of the Strata Scheme in order to obtain reasonable access to their lots. The right to use common property reasonably is fundamental and cannot be taken away: see EB 9 & 10 Pty Ltd v The Owners - Strata Plan No 934[2018] NSWSC 464; (2018) 97 NSWLR 227 at [26] (the Bryson AJ decision quoted there) and [33] - [34] per Kunc J. By parking the pram so that the right hand side rear wheel of the respondents' pram impedes access between the breezeway and the landing area outside the respondents' lot, occupiers of lots in the Strata Scheme who might need access to the fire exit in the vicinity of the respondents' lot (for example because of a fire or some impediment preventing access to the fire exit near lots 23 and 24) face the risk that they might trip over the pram's wheel or be caught by the wheel (for instance if a pram is being pushed, a wheelchair used or a crutch used), and be impeded or blocked in their reasonable access to the fire exit in the vicinity of the respondents' lot. A person nimble on his/her own two legs faces the risk of tripping over the right-hand side rear wheel of the respondents' pram. The frequency by which such an eventuality may be realised may be low, but the gravity of the harm and the potentially catastrophic consequences of the respondents' pram impeding access to the fire exit, in such a scenario, is a circumstance to which the Tribunal affords significant weight. The Tribunal is satisfied, applying an objective test (Adams v New South Wales Land & Housing Corporation[2016] NSWCATAP 31 at [64]), that the interference with access to common property caused by the respondents using their lot by parking their pram on the common property in the place where they park it, giving rise to the potentially catastrophic consequences described in this paragraph of these reasons, is substantial, involves material interference, and is not trivial or idiosyncratic.
The existence of another fire exit on level 6 on the western side of the building in the Strata Scheme does not provide, in my view, a satisfactory reason for the respondents to impede in part access to the fire exit on level 6 on the eastern side of the building in the Strata Scheme by the respondents parking their pram in the place they leave it on a continuous basis. There may be, as mentioned, a fire or emergency or some impediment preventing occupiers from accessing the fire exit near lots 23 and 24.
Further, the evidence before the Tribunal (see the 31 January 2024 email transmission set out above where a lot owner noted that "lift 2 was out of order") does show that lifts in the building in the Strata Scheme do not operate from time to time. Thus, by parking the pram so that the right hand side rear wheel of the respondent's pram impedes access between the breezeway and the landing area outside the respondents' lot, the respondents are interfering with the enjoyment of the occupiers of lot 22 by (1) potentially impairing the ability of the occupiers of lot 22 to invite people who might have reduced personal mobility, or who need assistance with their personal mobility, to visit them in their lot and (2) the parking of the pram may at some point even impair the mobility of occupiers of lot 22 themselves. The manner in which the right hand side rear wheel of the respondent's pram sits partly across the threshold between the breezeway and the landing area, seems to me to pose a risk of catching a wheel of a wheelchair or pram or the crutch of someone using crutches, and thus potentially impeding access or causing physical injury. For the reasons mentioned above, the occupiers of the lots in the Strata Scheme are likely, in my view, to reflect the Australian community and the fact that said community is likely to be made up of people with a range of different functional abilities. The Tribunal is satisfied, applying an objective test, that the interference with common property caused by the respondents using their lot by parking their pram on the level 6 common property, is for the additional reason described in this paragraph, substantial, involves material interference and is not trivial or idiosyncratic.
Ms. Campbell's evidence during cross-examination drew attention to children playing on level 6 of the relevant building and the complaints she had received from residents about children having to work their way around the respondents' pram and e-bike. Thus, by parking the pram so that the right hand side rear wheel of the respondent's pram impedes access between the breezeway and the landing area outside the respondents' lot, the respondents have created a potential trip hazard for children, who might be playing games on level 6 of the relevant building, leading to the potential risk of a child falling over the wheel of the pram and sustaining, for example, a fracture of a bone or a concussion or head injury. Additionally therefore, the Tribunal is satisfied, applying an objective test, that the interference described in this paragraph is substantial, involves material interference and is not trivial or idiosyncratic.
Next, the Tribunal observes that the legal authorities explaining the tort of negligence recognise that a balancing exercise needs to be undertaken and that some weight is also given to the purpose or motive underlying the particular manner in which the respondent to the complaint is using or enjoying his or her property: see for example, Harrison v Southwark Water Co[1891] UKLawRpCh 87; [1891] 2 Ch 409 at 414 per Vaughan Willliams J.
When considering this issue here, three particular matters arise on the facts of this case.
First, all of the lot owners in the Strata Scheme have an interest in the common property located on level 6 of the relevant building, an interest that has been described as an equitable interest as a tenant in common with the other lot owners: Houghton v Immer (No 155) Pty Ltd[1997] NSWSC 608; (1997) 44 NSWLR 46 at 56. In relation to co-ownership, there is a unity of possession. An equitable tenant in common with another, is entitled, concurrently with the other, to possession of the property, and neither is entitled to turn the other out: Luke v Luke[1936] NSWStRp 16; (1936) 36 SR (NSW) 310 at 313-314.
By the applicants using their lot in a manner that involves them parking the pram permanently on common property (except for the periods when the pram is being used to transport their son to and from daycare), when doing so they are, in effect, obtaining exclusive use and possession of part of the common property, to the exclusion of the other lot owners in the Strata Scheme. In doing so, they are asserting a possessory interest in common property to which they are not legally entitled. Thus, by parking their pram on the common property permanently (except when it is use) the Tribunal finds that the respondents' use of the common property is not a reasonable use.
Secondly, the Tribunal accepts that there are valid reasons why the respondents may park the pram on level 6 of the relevant building temporarily. The Tribunal accepts the second respondent's evidence that when she tries to move the pram (or the e-bike) into the respondents' lot that the heavy door slams shut onto her and the pram (or the e-bike) and the second respondent becomes concerned for the safety of the respondents' son, if he were to be conveyed on the pram (or the e-bike) through the front door to the respondents' lot.
However, this case involves the respondents parking their pram on common property "on a continuous basis since 2022". The respondents' explanations about their "practical purposes" in parking the pram where it is parked, do not assist them in their submission that they have not, and are not causing an unreasonable interference with the rights of other lot owners. While the second respondent's evidence (as referred to in the preceding paragraph of these reasons) might explain why the pram needs to be parked temporarily outside the respondents' lot, while the second respondent carries her son into or out of the respondents' lot, that evidence by the second respondent, in no way explains why the pram is being parked permanently on the common property.
The respondents' evidence about the "purely practical reasons" why they say they need to park the pram on the common property raises many questions. Once the child has been secured inside the respondents' lot, why can't the pram be brought inside the respondents' lot? The evidence suggests that the respondents' lot is relatively spacious and that there is also a balcony appurtenant to the lot. Alternatively, why couldn't the respondents have purchased a pram that could be folded down compactly, and one that doesn't need to be left outside the fire exit and breezeway threshold? Why have the respondents purchased a pram that (presumably) cannot be folded down but rather, needs to be parked permanently on the common property in a wide and upright stance?
Moreover, the respondents' documents submitted to the Tribunal included their statement that the first respondent keeps a home office in the respondent's lot and "works from that home office 4-5 days a week since 2020." When the first respondent has a break from his work, why can't he assist with bringing the pram (or the e-bike) inside the respondents' lot? He could surely hold the entry door to the lot open while the respondents' son is wheeled into or out of the lot by the second respondent? Why can't the first respondent ask his employer for permission to leave his home office and assist the first respondent with bringing their son into, or out, of their lot?
The respondents' explanation for why they need to park their pram permanently on the common property of level 6 raises many unanswered questions for the Tribunal. The respondents' explanation for their parking of the pram is an inadequate rationalisation, in the Tribunal's view, as it does not explain why the pram needs to be parked permanently on common property. The Tribunal finds that the respondents' explanation does not explain why the pram needs to be parked permanently in close vicinity to the fire exit and in a way that impairs access between the breezeway and the landing outside lots 21 and 22. Thus, again, by parking their pram on the common property permanently (except when it is use) the Tribunal finds that the respondents' use of the common property is not a reasonable use.
Thirdly, as for the respondents' submission that it is "common practice in New South Wales, particularly in buildings where young children reside" for bicycles and prams to be stored outside the front door of apartment buildings, the Tribunal does not accept that submission. There was no evidence adduced from the respondents to establish the common practice so asserted. Thus, again, by parking their pram on the common property permanently (except when it is use) the Tribunal finds that the respondents' use of the common property is not a reasonable use.
Some of the legal authorities that explain the tort of nuisance have consistently recognised the need to balance a certain amount of annoyance from one's neighbours and the need for a measure of give and take (Kennaway v Thompson[1980] EWCA Civ 1; [1981] QB 88 at 94), or to balance the rights of one person to do as he or she pleases, and the right of a neighbour not to be interfered with (Sedleigh-Denfield v O'Callaghan[1940] UKHL 2; [1940] AC 880 at 903). Such a balancing exercise is especially apposite in cases where the rights of different lot owners in a strata development might need to be balanced against each other. When undertaking the balancing exercise here, the Tribunal is left with, on the one hand, the respondents' evidence which provides an inadequate rationalisation for why their pram must be left permanently on the common property (except for the periods when the pram is being used to transport their son to and from daycare) but on the other hand, the evidence which points to the respondents creating a state of affairs which to a substantial degree, creates risks, and harms other lot owners in the enjoyment of their lots, for the reasons explained above.
The Tribunal recognises the competing interests of the respondents and other lot owners who use or might use the level 6 landing area outside lots 21 and 22, and weighing and evaluating those competing interests, it is the Tribunal's judgment (see Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation and Land Management[2012] WASCA 79; (2012) 42 WAR 287 at [118]), because of the matters referred to in [124] above, that the Tribunal finds that the interference caused by the respondents parking of their pram permanently on the level 6 landing area outside lots 21 and 22, amounts to an unreasonable interference with the occupiers of other Strata Scheme lots who use, or might have cause to use, the level 6 landing area outside lots 21 and 22. Because of the matters which have been set out in [104] - [124] above, the Tribunal is satisfied that the parking of the respondents' pram is not only a substantial interference with the enjoyment of the other lots situated on level 6 of the relevant building, but is an unreasonable one.
The Tribunal finds that the respondents' permanent parking of the pram (except for the periods when the pram is being used to transport their son to and from daycare) on level 6 of the building within the Strata Scheme, involves the respondents using or enjoying their lot, in a manner that causes a nuisance to the occupier of another lot, in contravention of s. 153(1)(a) of the Act.
"Hazard" is not defined for the purposes of s. 153 of the Act. As for its ordinary, English language meaning, "hazard" is defined in the Macquarie Dictionary, 9th edition, to mean "1. A risk; exposure to danger or harm. 2. The cause of such a risk: a potential source of harm, injury, difficulty etc ..." That ordinary meaning of the term hazard is consistent with the language used in s. 153 of the Act and in the context and meaning of the Act, reading the Act as a whole.
By the respondents' parking of their pram, such that the right hand side, rear wheel of the respondent's pram impedes access between the breezeway on level 6 of the relevant building and the landing area outside the respondents' lot, because the right hand side rear wheel of the pram is cutting off something less than one-third of the access from the landing to the breezeway, the Tribunal finds that by impeding that access by parking the pram in that location, the respondents have caused a hazard to the occupier of other lots in the Strata Scheme in contravention of s. 153(1)(a) of the Act. The reason the Tribunal comes to that conclusion is because the parking of the pram: (a) may impede access to the fire exit and potentially lead to catastrophic consequences (as explained in [110] above); (b) has the potential to cause physical injury to occupiers who have reduced personal mobility or may need assistance with their personal mobility (as explained in [112] above); or (c) may constitute a trip hazard for children (as explained in [113] above). Thus, the Tribunal finds that the respondents' chosen permanent parking spot on the level 6 common property for their pram creates risk, and an exposure to danger or harm, to the occupiers of other lots in the Strata Scheme.
The Tribunal finds that the respondents' permanent parking of the pram (except for the periods when the pram is being used to transport their son to and from daycare) on level 6 of the building within the Strata Scheme, involves the respondents using or enjoying their lot, in a manner that causes a hazard to the occupier of another lot, in contravention of s. 153(1)(a) of the Act.
B) The e-bike
The Tribunal turns next to consider the respondents' parking of the e-bike on level 6 of the relevant building, on a permanent basis (except when it is used to ferry the respondents' son to or from daycare).
With respect to the e-bike, the Tribunal accepts the second respondents' evidence that when she parks the e-bike on the level 6 breezeway, she leans it against the brick wall which runs down one side of the breezeway. The Tribunal also accepts Ms. Campbell's evidence that of the about 12 times she saw the e-bike, it was leaning against the balustrade which runs down the other side of the breezeway on about 9 occasions. The Tribunal has no reason to doubt either the second respondent's evidence, or Ms. Campbell's evidence, on this issue. As to how that evidence is reconciled, the inference that the Tribunal draws from the evidence is that after the second respondent parks the e-bike, that it is moved by other users of the level 6 breezeway. The inference is drawn from the following matters: a) the photographic evidence showing that the e-bike has large panniers on each side of its rear wheel, b) the 31 January 2024 email transmission and the 17 February 2024 email transmission, both referred to above, showing that some other lot owners in the Strata Scheme have found the e-bike to be an item of personal property that blocks their access or constitutes an obstacle on the level 6 breezeway, c) Ms. Campbell's evidence showing that the e-bike's positioning has caused issues for those residents in the Strata Scheme who were elderly and have mobility issues, and d) Ms. Campbell's evidence showing that she received verbal complaints about children having to get around the respondents' e-bike and the pram. On the basis of that evidence, the Tribunal draws the inference that the e-bike, even though it is initially parked by the second respondent against the brick wall, is sufficiently wide that it causes an obstacle to other occupiers in the Strata Scheme who are using the breezeway, and it is then moved by other occupiers in the Strata Scheme who are using the breezeway, such that the e-bike is then left leaning against the balustrade, where it has been seen by Ms. Campbell on about 9 of the 12 occasions that she saw the e-bike.
In considering whether the respondents' parking of the e-bike causes a nuisance, the Tribunal has considered the legal authorities referred to above in these reasons, between [100] and [125] and the elements of the common law tort of nuisance and all of the evidence before the Tribunal.
The Tribunal is satisfied that the parking of the e-bike on level 6 of the relevant building causes a nuisance to the occupiers of other lots in the Strata Scheme who use level 6 from time to time, in contravention of s. 106(1)(a) of the Act. The Tribunal is so satisfied, because of the evidence comprising:
[5]
a) the photographic evidence showing the size of the e-bike and the fact that the e-bike has large panniers on each side of its rear wheel,
[6]
b) the 31 January 2024 email transmission and the 17 February 2024 email transmission, both referred to above, showing that other lot owners in the Strata Scheme find the e-bike to be an item of personal property that blocks their access or constitutes an obstacle on the level 6 breezeway,
[7]
c) Ms. Campbell's evidence that the e-bike's positioning causes issues for those residents in the Strata Scheme who were elderly and had mobility issues, and
[8]
d) Ms. Campbell's evidence that she has received verbal complaints about children having to get around the respondents' e-bike and the pram.
[9]
On the basis of that evidence, the Tribunal is satisfied that respondents' e-bike impedes access for elderly lot owners or occupiers with mobility issues, and children, who use the level 6 breezeway. As for Strata Scheme occupiers who may not fall into the categories of elderly persons with mobility issues or children, the Tribunal is satisfied that the respondents' e-bike impedes access on the level 6 breezeway for those occupiers.
As an incident or aspect of Strata Scheme lot owners' enjoyment of their lots, there might of course be any number of reasons why the occupiers of other lots in the Strata Scheme might want to use the level 6 breezeway. It could be, say, to meet and discuss with another occupier an issue that might arise at a forthcoming annual general meeting or some other meeting of the applicant, to visit a friend or neighbour, to take some exercise, or take into some sunlight from the atrium which is positioned along one side of the breezeway, or as an area for children/grandchildren to play. Taking into account the character of the neighbourhood where the respondents' conduct impugned by the applicant is taking place (being a residential strata development with 58 lots), the reasons why the occupiers of other lots in the Strata Scheme might want to use the level 6 breezeway, the inadequate rationalisation given by the respondents for why they need to park the e-bike permanently on common property (except for when the e-bike is in use), the nature of the respondents' interest in the level 6 common property as an equitable interest as a tenant in common, the Tribunal is satisfied that the respondents' parking of their e-bike on the level 6 breezeway, "on a continuous basis since 2022" is substantial, involves a material interference for lot owners or occupiers in the Strata Scheme who use the level 6 breezeway, and cannot fairly be characterised in my view, as a trivial or idiosyncratic complaint.
The Tribunal recognises the competing interests of the respondents and other lot owners who use or might use the level 6 breezeway, and weighing and evaluating those competing interests, it is the Tribunal's judgment (see Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation and Land Management[2012] WASCA 79; (2012) 42 WAR 287 at [118]), because of the matters referred to in [135] above, and the Tribunal finds, that the interference caused by the respondents permanently parking their e-bike on the level 6 breezeway, amounts to an unreasonable interference with the occupiers of other Strata Scheme lots who use the level 6 breezeway.
The Tribunal finds that the respondents' permanent parking of the e-bike (except for the periods when the e-bike is being used to transport their son to and from daycare) on level 6 of the building within the Strata Scheme, involves the respondents using or enjoying their lot, in a manner that causes a nuisance to the occupier of another lot, in contravention of s. 153(1)(a) of the Act.
The Tribunal is not persuaded that the applicant has discharged its onus of proving that the respondents parking of the e-bike on the level 6 breezeway causes a "hazard" for the purposes of s. 153(1)(a) of the Act. Doing the best I can with the photographs in evidence, the level 6 breezeway seems to me to be wider than the threshold between the breezeway and the landing area outside the doors to lots 21 and lots 22 in the Strata Scheme, and I am not satisfied that the respondents parking of the e-bike on the level 6 breezeway goes as far as causing 'a risk, exposure to danger or harm.'
The Tribunal will next, try succinctly to record its findings and reasons in relation to the applicant's claim that the respondents have used or enjoyed the common property in a manner or for a purpose that interferes unreasonably with the use or enjoyment of the common property by the persons identified in s. 153(1)(b) of the Act.
The phrase "interferes unreasonably", used in s. 153(1)(b) of the Act, is not defined in the Act for the purposes of s. 153(1)(b) of the Act. In my view, the verb interfere and the adverb unreasonably should be afforded their ordinary, natural, English language meaning. There is nothing in the statutory context of s. 153(1)(b), nor upon construing the Act as a whole, that suggests otherwise.
With respect to the pram: the Tribunal finds that the respondents have used and are using the part of the common property on level 6 of the building in the Strata Scheme where they park their pram permanently (except when it is used to ferry the respondents' son to and from daycare) in a manner that interferes unreasonably with the use or enjoyment of that part of the common property by the occupiers of other lots in the Strata Scheme, being those occupiers who use level 6 of the building in the Strata Scheme. The Tribunal makes that finding because that parking of the pram: (a) interferes with the use or enjoyment of that part of the common property by the occupiers of other lots in the Strata Scheme by impeding access between the breezeway on level 6 and the landing area outside the parts lots 21 and 22 located on level 6 (see [109] above), and in so doing is (b) inconsistent with the fundamental right of other lot owners and occupiers to use common property reasonably (see [110] above), (c) gives rise to the risks referred to in [110] above, (d) gives rise to the risks referred to in [112] above, (e) adversely impacts and has the potential to impact adversely on the use and enjoyment of the occupiers of lot 22 as explained in [112] above, (f) gives rise to the potential trip hazard referred to in [113] above; and such interference by the respondents has been effected by them unreasonably because (i) it involves them asserting a possessory interest in common property to which they are not entitled (see [116] - [117] above), (ii) is not supported by any adequate rationalisation from the respondents (see [118] - [122] above), and (iii) creates risks of physical injury and involves the creation of a trip hazard, for the occupiers of other lots, for the reasons explained above, as well as constituting a hazard for other occupiers (see [128] above).
If it is the case that the interference contemplated by s. 153(1)(b) of the Act needs to be substantial - on the basis that the interpretation of the word 'interference' in said provision should be informed by or akin to the approach taken in the common law of nuisance in the authorities which have considered the nature of the interference with the enjoyment of land which gives rise to an actionable nuisance - then the Tribunal is satisfied that the interference is substantial for the reasons already explained above in this decision.
With respect to the e-bike: the Tribunal finds that the respondents have used and are using the part of the common property on level 6 of the building in the Strata Scheme where they park their e-bike permanently (except when it is used to ferry the respondents' son to and from daycare) in a manner that interferes unreasonably with the use or enjoyment of that part of the common property by the occupiers of other lots in the Strata Scheme, being those occupiers who use level 6 of the building in the Strata Scheme. The Tribunal makes that finding because that parking of the e-bike: (a) interferes with the use or enjoyment of that part of the common property by the occupiers of other lots in the Strata Scheme by impeding and obstructing access along the level 6 breezeway of the occupiers and other persons referred to in [134], and such interference by the respondents has been effected by them unreasonably because (i) it is inconsistent with the fundamental right of other lot owners and occupiers to use common property reasonably (see [110] above); (ii) it involves the respondents asserting a possessory interest in common property to which they are not entitled (see [116] - [117] above), and (iii) is not supported by any adequate rationalisation from the respondents (see [118] - [122] above).
If it is the case that the interference contemplated by s. 153(1)(b) of the Act needs to be substantial - on the basis that the interpretation of the word 'interference' in said provision should be informed by or akin to the approach taken in the common law of nuisance in the authorities which have considered the nature of the interference with the enjoyment of land which gives rise to an actionable nuisance - then the Tribunal is satisfied that the interference is substantial for the reasons already explained at [135] above in this decision.
The Tribunal finds that the respondents' permanent parking of the pram, and further or alternatively, the e-bike (except for the periods when the e-bike is being used to transport their son to and from daycare) on the parts of the common property of level 6 of the building within the Strata Scheme where the said items are respectively parked, involves the respondents using or enjoying their lot, in a manner that interferes unreasonably with the use or enjoyment of the common property by the occupier of any other lot, and any other person entitled to the use and enjoyment of the common property, in contravention of s. 153(1)(b) of the Act.
D) other submissions of the respondents
Before reaching the conclusions about the respondents' contravention of s. 153(1)(a) and (b) of the Act, the Tribunal has considered the respondents' submissions about discounting Ms. Campbell's evidence about complaints.
The Tribunal does not accept the respondents' submission that Ms. Campbell's evidence about complaints should be discounted.
First, the text message which the first respondent sent to Mr. Storey, and later to Mrs. Storey, by its terms suggests that the first respondent was in fact well-aware that complaints had been made about the respondents' storing their personal property on common property ("Knowing the two of you, you likely haven't thought this through. So I've done it for you. First, you will complain to the Building Manager, or perhaps even the Chairman. You'll then realise that you're the fourth person to make a complaint about us, and just like you, are storing items on common property, and everyone before you has failed ...").
Secondly, there is evidence of actual, written complaints by identifiable individuals in the evidence (see the 31 January 2024 and 17 February 2024 email transmissions quoted above) about the respondents parking their pram and e-bike on common property on level 6 of the relevant building.
Thirdly, the Tribunal found Ms. Campbell to be a credible and accurate historian when she gave her evidence to the Tribunal. The Tribunal accepts her evidence that she did receive verbal complaints about the respondents but lot owners were not prepared to put their complaints in writing.
The evidence of Ms. Campbell on this issue is corroborated by other evidence. The last paragraph of Mrs. Storey's 12 March 2024 email transmission to the strata managing agents expressly adverts to the fear of that lot owner at incurring "retaliation and animosity" from the respondents. Indeed, the respondents' own communications, as set out above in these reasons, strongly tend to corroborate Ms. Campbell's evidence about lot owners not being prepared to put their complaints about the respondents in writing, as the respondents' communications show why other lot owners or occupiers in the Strata Scheme would be likely to be reticent to make complaints in writing about the respondents. When one has regard to the respondents' communications - see in particular the text message sent first to Mr. Storey, and later to Mrs. Storey, and the 22 October 2023 email transmission sent to Ms. Campbell, copied to a number of other addressees (strata committee members the Tribunal infers), and then later re-sent by the second respondent to Mrs. Storey - one cannot help but be struck by the supercilious, sarcastic and condescending tone used by the respondents, the threats to use the legal process to punish the addressee and the disrespectful insults to the addressees' intelligence and competency. The text message sent to the Storeys, which included "... we will start to look at every possible angle to enforce our legal rights against you. Whether it be under State or Federal legislation, regulation or SP3407 by-laws. The months will go by and the stress of always having to look over your shoulder to make sure you are doing 100% everything by the book will start to take its toll. Eventually after many sleepless nights, one of you will want to say 'enough is enough' and want to put it all behind you. You'll ask for a truce, and we won't accept. This uneasy tension you feel now will drag on for years and years ..." shows the first respondent wanted to communicate to the Storeys that the respondents would respond to complaints about them in a pitiless, vengeful fashion and that the respondents would not be open to reconciliation, notwithstanding the "stress" and "many sleepless nights" which the respondents avowed to inflict upon the Storeys.
It ill-behoves the respondents to make submissions about the quality of the complaint evidence against them, in circumstances where the evidence shows that the respondents responded to complaints about themselves in an insulting and intimidatory manner, and the contents and tone of the respondents' very own communications to other Strata Scheme lot owners, explains why, in the Tribunal's view, complainants were reticent to put their complaints about the respondents in writing.
Next, before reaching the conclusions about the respondents' contravention of s. 153(1)(a) of the Act, the Tribunal has considered both the respondents' submissions about the Annual Fire Safety Statements and the applicant's submissions about the pram creating a risk that the applicant will not be able to obtain a final Annual Fire Safety Statement for the most recent year.
The Tribunal has received no evidence from either of the parties to the proceedings about the nature and effect of the Annual Fire Safety Statements, the qualifications and expertise of the person who prepares them, and what has or has not been taken into account in preparing them. In that circumstance, the Tribunal has been unable to place evidentiary weight upon the Annual Fire Safety Statements either in favour of the applicants' case or against it.
The Tribunal does not accept the respondents' submissions about Ms. Campbell and the applicant being dishonest in their statements and submissions about the Annual Fire Safety Statements and intentionally seeking to mislead the Tribunal. The Tribunal struggles to see that the respondents have a proper basis for that submission on the evidence before it and given the submissions made by the applicant. And for the avoidance of doubt, the Tribunal formed the view that Ms. Campbell and Mr. Davis, when they were before the Tribunal, were at all times acting in good faith, were seeking to be balanced and reasoned in their respective evidence and submissions to the Tribunal, and neither of them engaged in any dishonesty or intentionally misleading conduct before the Tribunal.
As for the 26 July 2024 email transmission from Ms. Karl of Profire, to the extent that it stated: "It is crucial to the safe evacuation of residents in the case of emergency, that there be no materials obstructing the Paths of Travel to a Fire Exit", the Tribunal accepts that proposition but the Tribunal has, for the reasons explained above, reached the conclusion that the respondents' pram causes a nuisance and a hazard, for the purposes of s. 153 of the Act, independently of that part of the 26 July 2024 email transmission.
[10]
Sections 232 and 241 of the Act confer a discretion on the Tribunal. There has been a contravention by the respondents of s. 153(1)(a) and (b) of the Act. The respondents were given multiple opportunities to re-consider the way they were using Strata Scheme common property by parking their e-bike and pram on the common property "on a continuous basis" since dates in 2022. Ms. Campbell's, Mr. Sala's and Mr. McKnight's communications to the respondents did not lead to the respondents taking any action, while noting of course that some of those communications relied on a claim, not considered here, that the respondents' parking their e-bike and pram on the common property "on a continuous basis" since 2022 involved an alleged breach of a Strata Scheme by-law. Even at the hearing, the Tribunal strongly encouraged the parties to see if they could settle their dispute, pointing out that it may not necessarily be in the parties' overall interests to have the history of this dispute set out in writing and conduct considered by the Tribunal, but that encouragement was to no avail. I am satisfied in this case that it is necessary and appropriate to make orders under ss. 232 and 241 of the Act, including orders to resolve the dispute between the respondent lot owners and the applicant about matters falling within s. 232(1)(a) and (e) of the Act that the application has raised.
The Tribunal will make orders accordingly.
[11]
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.