The Owners - Strata Plan No 47561 v Nowland

EX TEMPORE Judgment (REVISED) 1The plaintiff is an Owners Corporation in respect of the property known as XX Darlinghurst Road, Potts Point ("the Property"). The defendant (Mr Nowland) is the owner of Lot 11 at the Property. 2On 20 December 2013, the plaintiff commenced these proceedings seeking various orders against the defendant including: "4. An order that the Defendant, within 42 days, take all steps necessary, (using only qualified tradespersons working in a proper and workmanlike manner,) to ensure compliance with Special By-Laws 1 and 2 of Strata Plan 47561, by altering the following structures in the rooftop area of the plaintiff's common property and by reinstating the common property and Lot 11 as follows: a. On the eastern and western (end) walls of the semi-enclosed outside area, remove the fully enclosed solid timber clad construction and replace it with an acoustic timber screen to approximately 2.1 metres high as shown in the Plan to Special By-Law 2 registered number AE361240 ("Special By- Law 2"). b. On the northern (front) wall of the same area, remove a timber clad section extending from each end approximately one metre in length, which includes a louvre window. c. Remove the kitchen appliances and fixed furnishing at the eastern end of the same area and reinstate the kitchen to the interior of Lot 11. d. Relocate that air conditioner and two hot water units mounted on a common property wall on the southern side of the building in compliance with the list of the Works included in Special By-Law 2 which requires the external section of the air conditioning unit to be mounted on the exclusive use area of Lot 11. e. Remove the timber deck to the extent that it extends out beyond the verandah roof shown in the Plan to Special By-Law 2. f. Remove the artificial grass and the steel mesh laid on the exclusive use area. g. Remove the fixed bench seat that extends the full length of the western wall outside of Lot 11. h. Remove the glass sliding doors enclosing an area of common property and do not replace them with any kind of curtain or blinds." 3The plaintiff sought and was granted expedition and the proceedings were listed for hearing before me today. 4The Property comprises 11 lots of a strata scheme, each being a residential unit, plus three non-strata lots, being commercial premises at ground level. 5Lot 11, which is situated on the roof of the Property, is the former caretaker's apartment. Attached to Lot 11 are certain exclusive use rights over that part of the common property as is on the northern side of the roof area ("the Exclusive Use Area") pursuant to Special By-Law 1 and Special By-Law 2. 6The essential terms of Special By-Law 1 are: "Notwithstanding any other by-law, the Registered Proprietor of Lot 11...is entitled to the exclusive use and enjoyment of [the Exclusive Use Area] on the following conditions: (a) The Registered Proprietor...is responsible for the maintenance and keeping in a good state of cleanliness and repair [sic] the Exclusive Use Area. (b) The Registered Proprietor must reimburse the body corporate for the cost of any repairs required by reason of the use of the Exclusive Use Area by the Registered Proprietor. (c) The Registered Proprietor will not use the Exclusive Use Area in any manner which may be or become a nuisance or annoyance to any other Registered Proprietor... (d) The Registered Proprietor will not erect any structure on the Exclusive Use Area nor overload nor in any other way use the Exclusive Use Area so as to cause damage to the Exclusive Use Area or the common property...". 7Special By-Law 2 gave the owner of Lot 11 the "special privilege" to carry out certain "works" on the Exclusive Use Area, being the installation of a "butterfly roof structure", some box guttering, "privacy/acoustic screens" and a split system air conditioning unit, "as set out" in plans to which I refer below. 8On 23 September 2008, the then owner of Lot 11, Mr James Voss, made a Development Application to the City of Sydney ("the Council"). In response to that Development Application the Council made a Development Application Assessment in which it described Mr Voss's proposal as follows: "[T]he erection of a metal awning above part of the existing balcony, two timber screens to the east and west of the balcony and the replacement of the existing deteriorated metal roof". 9The assessment also stated: "[Lot 11] has exclusive use rights to the existing timber deck area [on the roof of the Property]...[T]he addition of a metal veranda roof will make the space more usable...The timber acoustic privacy screens to the east and west of the balcony are considered appropriate to attenuate any additional noise or privacy impacts generated from the use of the deck...". 10On 29 October 2008, the Council issued Development Approval D/2008/1607 ("the Development Approval") which described the approved development as: "Work to include the erection of a metal awning above part of the existing balcony, two timber screens to the east and west of the balcony and the replacement of existing deteriorated metal roof". 11On 29 January 2009, the Council approved a Construction Certificate for work described as "proposed roof terrace" and which attached plans including a "roof terrace plan" which showed what was described as the "existing timber deck". 12On the application of the plaintiff, and with the defendant's consent, I made an order earlier today pursuant to Uniform Civil Procedure Rules r 23.8 that there be an inspection of the Property. That inspection revealed the "existing timber deck", described in the Construction Certificate issued by the Council, is there to this day. 13In those circumstances I find that the existing timber deck, which covers somewhat more than half of the Exclusive Use Area on the roof of the Property was, to the Council's knowledge, present at all times during its assessment of Mr Voss's Development Application. 14Sometime after January 2009, Mr Voss caused the approved work to be done. However, he also caused further work to be done, including the enclosure of the eastern and western walls of the Exclusive Use Area, the installation of a kitchen and other matters more fully described in the prayers for relief in the Summons that I have set out above. 15By contract dated 14 May 2013, Mr Nowland contracted to buy Lot 11 from Mr Voss for $435,000. Completion of that sale took place on 14 June 2013. It appears that although Mr Nowland conducted the usual inquiries in relation to the records of the plaintiff, he was not aware of the unauthorised work that Mr Voss had carried out until sometime after he became the proprietor of Lot 11. 16On 8 April 2014, (that is, just a few weeks ago) well after the commencement of these proceedings, the Council made an order ("the Order") under the Environmental Planning and Assessment Act 1979 "to demolish the building, being all work not approved under Development Consent D/2008/1667". The Order is directed to the plaintiff and requires compliance within 21 days, that is by 29 April 2014 (next Tuesday). 17The Order is somewhat opaque in that it does not specify what is to be done but merely requires demolition of all work "not approved" by the development consent. 18As I construe the Order, it requires demolition of all work done since the Development Approval but which was not authorised by that approval. 19An issue arose in the proceedings before me as to whether the Order required demolition of the existing timber deck. In order to clarify that matter, on 17 April 2014 the solicitor for the plaintiff sent the following e-mail to the Council: "The common property affected by the Order is part of an exclusive use area enjoyed by the owner of Lot 11. The owner of Lot 11 has sought to retain all that part of the timber decking on the roof which is beneath the approved awning. We are not aware of Council approval for this decking although it is possible that it was laid down prior to the awning works being approved. This letter is to ask, by way of clarification, whether compliance with the Council's Order requires the removal of the timber decking (apart from the narrow passageway between the fire stairs and Unit 11 which was part of the original structure and appears on the Strata Plan)". 20On the same day, the Council responded, somewhat delphically, in the following terms: "The terms of the Order require the owner 'To demolish the building, being all work not approved under Development Consent D/2008/1667'. This therefore requires all work not associated with this DA or which was not previously approved another consent (and is therefore unauthorised) to also be demolished. If approval for the timber decking cannot be demonstrated then Council would require its removal/demolition also." 21The issues between the parties narrowed considerably on 16 April 2014 when the defendant made an offer to carry out the work referred to in the paragraph of the Summons referred to at [2] above within 42 days. That offer was expressed to be without prejudice subject to costs but has been tendered, without objection, by the defendant in these proceedings. In effect the defendant offered to do precisely what the plaintiff had, in its Summons, asked him to do. 22Before me, there was some debate as to the precise ambit of sub-clause (e) of the paragraph of the Summons referred to at [2] above, which refers to the removal of the timber deck "to the extent it extends out beyond the verandah roof shown in the Plan to Special By-Law 2". However, it is now common ground that the defendant has offered to remove that part of the deck as is identified in Exhibit 1. 23Notwithstanding that offer, the plaintiff by Amended Summons filed in Court today, seeks an order that it be given access to the Exclusive Use Area so that it can carry out the work that it contends is the subject of the Order. So far as concerns the timber deck, the plaintiff's position is that the Order requires removal all of the timber deck apart from a relatively small part of the deck between the entrance way of Lot 11 and the entrance to the fire stair. 24Mr Moore, who appeared for the plaintiff, submitted, without elaboration, that as the plaintiff is faced with the Order, the Court has "inherent jurisdiction" to order that the plaintiff be given the access it seeks to the Exclusive Use Area so that it may comply with the Order. In the absence of any reference to authority, whether statutory or otherwise, for that startling proposition, I am not prepared to act on that basis. 25As I have said, the defendant has offered to do precisely what the plaintiff originally sought of him in the Summons. I see no reason to make any orders beyond those offered by the defendant. 26I am not persuaded that compliance with the Order requires any more to be done. In particular, I am not satisfied that the Order requires removal of the timber deck. It is plain from the documents to which I have referred that the Council has, at all relevant times during the process of considering Mr Voss' Development Approval, not only been aware of the timber deck but content for it to remain. Further, as I have said, as I read the Order, it only requires removal of any unauthorised work done since the Development Approval. 27Further, the Council's communication of 17 April 2014 makes clear that it does not presently assert that the deck is unauthorised or require its removal. 28Nor am I satisfied that the retention of the timber deck (beyond that part that the defendant has agreed to remove) would render the defendant in breach of either By-Law 1 or By-Law 2. By-Law 2 authorised the owner of Lot 11 (then Mr Voss) to carry out work "as set out" in identified plans annexed to the by-law. Those plans clearly show the timber deck. That reveals, in my opinion, that the plaintiff, at the time of making By-Law 2, knew of and was content for the continued presence of the deck. 29I make the orders offered by the defendant, being those referred to at [2] above. 30I otherwise order that the Summons be dismissed. 31I also order: (1)That the defendant pay the plaintiff's costs up to and including 16 April 2014 and the plaintiff pay the defendant's costs thereafter on an indemnity basis. (2)In respect of the costs payable by the plaintiff to the defendant, order pursuant to s 229(2) of the Strata Schemes Management Act 1996 that those costs to be paid by the plaintiff must be paid from contributions levied only in relation to those lots in the Strata Plan other than Lot 11.