Thomson v The Owners -Strata Plan No 87812

Relevant provisions of the Act

1. It is necessary to set out relevant provisions of the Act which provide context to the power of the Tribunal to make orders under section 126.
2. Division 1 of Part 6 of the Act deals with common property. Section 108 relevantly provides: 1. Procedure for authorising changes to common property An owners corporation or an owner of a lot in a strata scheme may add to the common property, alter the common property or erect a new structure on common property for the purpose of improving or enhancing the common property. 2. Any such action may be taken by the owners corporation or owner only if a special resolution has first been passed by the owners corporation that specifically authorises the taking of the particular action proposed.
3. Section 109 of the Act carves out an exception to section 108. Section 109 (1) provides that the owner of a lot in the strata scheme may carry out "cosmetic work" to common property in connection with the owner's lot without the approval of the owners corporation. Section 109 (2) provides an inclusive definition of cosmetic work. It includes, among other things, installing or replacing handrails, painting and laying carpet. Section 109 (5) identifies work which is not cosmetic work. It includes, among other things, work involving structural changes, work that changes the external appearance of a lot and work that consists of minor renovations for the purposes of section 110 of the Act.
4. Section 110 of the Act sets out a further exception to section 108.The section relevantly provides: (1) The owner of a lot in a strata scheme may carry out work for the purposes of minor renovations to common property in connection with the owner's lot with the approval of the owners corporation given by resolution at a general meeting. A special resolution authorising the work is not required. (2) The approval may be subject to reasonable conditions imposed by the owners corporation and cannot be unreasonably withheld by the owners corporation. (3) "Minor renovations" include but are not limited to work for the purposes of the following - a) renovating a kitchen, b) changing recessed light fittings, c) installing or replacing wood or other hard floors, d) installing replacing wiring or cabling or power or access points, e) working involving reconfiguring walls, f) any other work prescribed by the regulations for the purposes of this subsection.
5. Section 110 (7) provides that section 110 does not apply to certain work including: a) work that consists of cosmetic work for the purposes of section 109, b) work involving structural changes, c) work that changes the external appearance of a lot, including the installation of an external access ramp.
6. Section 111 provides that a lot owner in a strata scheme must not carry out work on the common property unless authorised to do so under Part 6 of the Act; under a by-law made under Part 6 or a common property rights by-law; or by an approval of the owners corporation given by special resolution or in any other manner authorised by the by-laws.
7. Division 6 of Part 6 of the Act deals with the orders about property which may be made by the Tribunal. Section 126 relevantly provides: (1) Order requiring owners corporation to carry out work on common property The Tribunal may, on application by a lessor of a leasehold strata scheme or an owner of a lot in a strata scheme, order the owners corporation to consent to work proposed to be carried out by an owner of a lot if the Tribunal considers that the owners corporation has unreasonably refused its consent and the work relates to any of the following - a) minor renovations or other alterations to common property directly affecting the owner's lot, b) carrying out repairs to common property or any other property of the owners corporation directly affecting the owner's lot. (2) Order consenting to owners work on owners corporation property The Tribunal may, on application by a lessor of a leasehold strata scheme or an owner of a lot in a strata scheme, make an order (a "work approval order") approving of minor renovations or alterations or repairs already made by an owner to common property or any other property of the owners corporation directly affecting the owner's lot if the Tribunal considers that the owners corporation unreasonably refused its consent to the minor renovations or alterations or repairs.

Tribunal decision

1. At the hearing before the Tribunal Member, Ms Thomson contended that the installation of the gate was a minor renovation within the meaning of section 110 of the Act and that the Owners had unreasonably refused their consent to its installation. It was on this basis that Ms Thomson sought an order in her favour under section 126 (1)( a) of the Act.
2. At [11] of the reasons, the Tribunal Member identified the issues as being: 1. whether the installation of the gate was a minor renovation pursuant to section 126 of the Act; 2. if so, whether the Owners unreasonably refused their consent.
3. The Tribunal Member found that the installation of the gate did change the external appearance of the lot and was accordingly not a minor renovation having regard to the terms of subsection 110 (7) (c). The Tribunal Member concluded that as the gate was not a minor renovation, it was not necessary to consider whether the Owners had unreasonably refused their consent. For that reason the Tribunal Member did not make any findings of fact in relation to the issue of whether consent had been refused unreasonably. The Tribunal Member dismissed the application.

Grounds of appeal and submissions

1. In her Notice of Appeal, as amplified in oral submissions, Ms Thomson submitted that the Tribunal Member had made an error of law by failing to frame the correct issue for consideration under section 126(1)(a). In particular, Ms Thomson submitted that the Tribunal Member had failed to consider the second limb of section 126(1)(a), namely whether the installation of the gate was an "other alteration" to common property directly affecting her lot. Ms Thomson also challenged, though somewhat faintly, the Tribunal Member's conclusion that the installation of the gate was not a minor renovation.
2. In support of her submission Ms Thomson referred us to the decision of the Appeal Panel in Endre v The Owners -Strata Plan No. 17771 [2019] NSWCATAP 93.
3. Ms Thomson submitted that the installation of the gate was an "other alteration" to common property directly affecting her lot. Ms Thomson submitted that the fence was not a boundary fence but a privacy screen and that a gate in the fence bordering her lot directly affected it within the meaning of section 126 (1) (a).
4. Ms Thomson submitted that the Owners had unreasonably refused to consent to the installation of the gate. In that regard, Ms Thompson relied, among other things, on the fact that: 1. the Owners gave no reasons to justify their refusal; and 2. a neighbouring lot owner had been given approval to build a similar gate in the fence in front of that lot.
5. The Owners submitted that Ms Thomson had put her case to the Tribunal Member on the basis that the gate was a minor renovation within the meaning of section 110 of the Act and that the Tribunal Member was correct in deciding that it was not a minor renovation. However Mr Bacon, for the Owners, properly drew our attention to portions of the transcript in which the Tribunal Member stated during argument that the issue was whether the installation of the gate was a minor renovation or other alteration (our emphasis).
6. The Owners also submitted that: 1. there was no error of law by the Tribunal Member; leave to appeal was required and should be refused; 2. the work sought to be carried out by Ms Thomson did not fall within s126(1)(a) of the Act because it did not solely affect Ms Thomson's lot; 3. in any event the Owners acted reasonably in refusing to consent to the work; and 4. the application by Ms Thomson was misconceived because the work which she sought to carry out affected the external appearance of the lot and therefore required a special resolution and a by-law under section 108 of the Act.
7. In relation to the question of whether the refusal to consent was unreasonable, among other things, the Owners submitted that Ms Thomson had previously been fined by the Tribunal for dumping rubbish in the bin areas and not in the bins in breach of the strata by-laws and that if the gate was approved Ms Thomson would dump rubbish in the bin areas without detection in breach of the strata by-laws The Owners submitted that if the Appeal Panel concluded that the Tribunal Member had erred in dealing with the application and it became necessary to determine whether the Owners had acted unreasonably, then as the Tribunal Member had made no findings of fact on that issue, the matter should be remitted to the Tribunal for re-hearing on that issue, so that the necessary findings would be made after hearing oral evidence tested by cross-examination.

Consideration

1. In Endre v The Owners -Strata Plan No.17771 [2019] NSWCATAP 93, the appellant carried out work to the roof and in the roof space above her lot, which was common property. The appellant sought orders under section 126 (2) of the Act to approve the works which had been carried out. The respondent submitted that s126(2) only operated in respect of "minor repairs" and that the work which had been done did not meet that criterion.
2. The Appeal Panel in Endre did not accept the respondent's submission. The Appeal Panel pointed out at [26] and at [40]- [41] that sections 108 - 110 of the Act draw a distinction in relation to work on common property between cosmetic work (which is defined in section 109 (2) and which is permitted without the consent of the owners corporation), minor renovations (which is defined in section 110 (3) and which is permitted if the owners corporation consents by ordinary resolution ) and other repairs, alterations and additions which do not fit within the definitions of cosmetic work or minor renovations (which fall within section 108 and which require the owners corporation to consent by special resolution). The Appeal Panel added at [27] that the use of the disjunctive "or" in section 126 (2) in the expression "minor renovations or alterations or repairs" made clear that the legislature was not intending to limit the operation of section 126(2) to minor repairs only, an expression not used or defined in the Act.
3. In Endre the respondent also submitted that the work in question did not directly affect the appellant's lot. The Appeal Panel did not accept the submission. The Appeal Panel pointed out at [84] that the roof area was immediately above attic space for which the appellant had an exclusive use by - law and that the adequacy of the work on the roof directly affected water ingress to the attic space and therefore had a direct impact on the appellant's lot. Importantly, the Appeal Panel added at [86]: It seems to us that the expression "directly affecting" is not limited to work that has an immediate physical connection with the Lot in question. Lot and common property are separate parts of the building or its services, delineated in the manner prescribed by the legislation. Common property can have a direct effect on a particular Lot even if not physically adjacent to that Lot. For example, air - conditioning units and other common property which fall into a state of disrepair can directly affect a Lot even if not adjacent to that Lot.
4. This appeal concerns s126 (1) of the Act rather than s126(2) but the principles stated in Endre provide guidance in resolving the issues in this appeal. Section 126(1)(a) refers to "minor renovations or other alterations to common property directly affecting the owner's lot". The words "or other alterations" must be given some meaning and effect: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 382.The use of the disjunctive "or" before the words "other alterations" indicates that the legislature intended "other alterations" to refer to work which was not "minor renovations". The expression "minor alterations" is not used or defined in the Act and there is no basis to read down the words "other alterations" as meaning "other minor alterations".
5. An "other alteration" in section 126 (1)(a) is not referring to "cosmetic work" under section 109 because cosmetic work does not require the approval of the owners corporation and accordingly an order that the owners corporation consent under section 126 is not required for cosmetic work.
6. As an "other alteration" is neither a "minor renovation" under section 110 nor "cosmetic work" under section 109, we consider that despite the unusual syntax, an " other alteration" must be intended to refer to work which requires a special resolution under section 108 of the Act.
7. The statutory language is, however, not free from difficulty. To "alter" common property is one of the three categories of changes to common property contemplated by section 108(1) of the Act, the others being to "add to" common property and to "erect a new structure" on common property. There is an assumption, which, however, readily yields to the context, that where a word is used consistently in legislation it should be given the same meaning consistently: Murphy v Farmer (1988) 165 CLR 19 at 26-27. It Is not clear if "alteration " in section 126 (1) is intended to have a consistent meaning with "alter" in section 108 and, if so, why the legislature would confer jurisdiction on the Tribunal to review a refusal by an owners corporation to consent to an alteration to common property but not confer jurisdiction to review a refusal to consent to an addition to, or the erection of a new structure on, common property. It may be that "alteration" in section 126 is intended to include all of the categories of changes to common property contemplated by section 108.
8. It is not necessary for us to resolve this difficulty because, even if "alteration" in section 126 does not include an addition or the erection of a new structure, we consider that the work proposed by Ms Thomson to install an access gate into the fence at the front of her lot is most aptly characterised as an alteration.
9. We consider that the Tribunal Member was correct, for the reasons given, in concluding that the proposed work by Ms Thomson was not a minor renovation. However, in our opinion, the Tribunal Member erred in framing the primary issue solely as whether or not the proposed installation of the gate was a minor renovation and by failing to consider whether, if the work was not a minor renovation, it was nevertheless an "other alteration" within the meaning of section 126 (1) of the Act. In our opinion if the issue had been properly framed, the Tribunal Member should have concluded that the installation of the gate was an "other alteration" in the meaning of section 126 (1).
10. Furthermore, in our opinion the proposed installation of the gate was "an other alteration to common property directly affecting the owner's lot". The decision in Endre also provides guidance in this respect. The statutory question is not whether the gate solely affected Ms Thomson's lot directly, as the Owners submitted. The statutory question is whether the gate affected Ms Thomson's lot directly, even if it may also have affected other lots directly. We have no doubt, applying the test enunciated in Endre, that the proposed gate affected Ms Thomson's lot directly.
11. It follows that we consider that if the issue had been properly characterised the Tribunal Member should have held that the Tribunal had power to make an order under section 126 (1) of the Act. In our opinion, the error by the Tribunal Member was an error of law in identifying the wrong issue and Ms Thomson does not require leave to appeal.
12. So far as we can discern from a review of the transcript, Ms Thomson did not expressly rely at the hearing before the Tribunal Member on the second limb of section 126 (1) (a), namely that even if the installation of the gate was not a minor renovation, it was nevertheless an "other alteration" to common property directly affecting the owner's lot. However we have referred to the fact that during the course of argument the Tribunal Member identified the relevant question to be whether the work was a minor renovation or other alteration. Furthermore, particularly in circumstances where there is a self - represented party in a hearing before the Tribunal, it is appropriate for the Tribunal, whilst acting fairly and impartially, to endeavour to ensure that the real issues for resolution are identified. This approach is emphasised by the guiding principle identified in 36 (1) of the NCAT Act to facilitate the just, quick and cheap resolution of the real issues in the proceedings. A mandate for this approach is also provided by section 38 (4) of the NCAT Act, which requires the Tribunal to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms: see, for example on a related issue in connection with internal appeals, Cominos v Di Rico [2016] NSWCATAP 5 at [12]-[13].
13. There remains the issue for determination under section 126 (1) of the Act whether the Owners unreasonably refused to consent to the proposed work. There are a number of matters to be considered in relation to this issue. We have adverted to some of them. We are satisfied that it is appropriate to accede to the approach requested by the Owners, that this issue be remitted to the Tribunal for determination. The Tribunal did not make any findings of fact on this issue and it seems to us that there is a prospect that the determination of the issue may involve questions of credit.

Orders

1. We make the following orders: 1. Appeal allowed. 2. The order made on 13 February 2020 dismissing the application is set aside. 3. The proceedings are remitted to the Consumer and Commercial Division for reconsideration on the issue of whether the respondent unreasonably refused its consent to the work proposed to be carried out by the appellant on the common property( Remitted Issue). 4. At the remitted hearing in the Consumer and Commercial Division, the parties have leave to present further evidence on the Remitted Issue.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 July 2020