In Keeping With The Rest of the Building

In the recent NSW Civil and Administrative Tribunal decision of The Owners – Strata Plan 30198 v Barnes [2018] NSWCATCD 8 the Tribunal was required to determine the meaning of the words “in keeping with the rest of the building” in by-law 17 (Appearance of the lot) and whether the rear garden area of the lot was included in the definition of “building” within the Strata Schemes Management Act 2015 (“SSMA”).

Background

The applicant was the owners corporation. The respondent was the owner of lot 8 in the strata scheme. The respondent, without the written consent of the owners corporation, began construction of a deck and entertainment area in the rear garden of their lot. The deck and entertaining area as constructed are visible from outside the lot.

The applicant’s submission was that the works as constructed by the respondent were in breach of by-law 17 because the deck and entertaining area were visible from outside the lot and when viewed from outside the lot were not in keeping with the rest of the building.  By-law 17 was in the following terms:

17 Appearance of the lot

(1) The owner or occupier of a lot must not, without the written consent of the owners corporation, maintain within the lot anything visible from outside the lot that, viewed from outside the lot is not in keeping with the rest of the building.

The issue for determination before the Tribunal was whether the works, the subject of the application, were “when viewed from outside the lot, in keeping with the rest of the building”. The respondent’s submission was that because the words “not in keeping with the rest of the building” have not been the subject of interpretation by a Superior Court the Tribunal, in ascribing a meaning to them, must give them their ordinary meaning. While the Tribunal accepted that proposition, the Tribunal had to deal with the respondent’s further submission that the Tribunal must apply the definition of building contained in the SSMA and that the definition precludes the garden areas from the physical structure of the building.  Section 4 of the SSMA states:

building”, in relation to a strata scheme or a proposed strata scheme, means a building containing a lot or a proposed lot, in the scheme or proposed scheme.

The Tribunal concluded that by reference to the strata plan it was clear from the placement of the vinculum that the courtyard and garden area in each case forms part of each lot and was satisfied therefore that the garden area in question at the rear of the lot was in fact part of the lot and by definition part of the building comprising the strata plan.

The next question for determination by the Tribunal was whether the subject works in question, when viewed from lots 7 and 9, were or were not “in keeping” with the rest of the building. Both parties relied heavily on their respective experts in attempting to justify their respective positions.

Decision

The Tribunal stated that the issue for determination requires consideration of the meaning of the words adopted in by-law 17 and their objective application to the circumstances of the case.  In dismissing the application, the Tribunal held:

  • the by-law, specifically refers to viewing something from outside the lot and that therefore that it is about visual comparisons between the lot in which the “thing” is situated and the remainder of the building;
  • it is necessary therefore to also consider what the ordinary meaning is of the words “in keeping with” and in doing so it is a legitimate exercise to apply to the extent necessary in order to understand those words relevant dictionary definitions;
  • clearly the words “in keeping with” impart a meaning of something being harmonious with whatever it is being compared to without imparting any intention of the two things being exactly the same and in this case the harmony or similarity is of a visual nature; and
  • over-all the Tribunal has no hesitation in finding a visual and aesthetic harmony between all of the photographs examined; and
  • it was not satisfied that the applicant has discharged its burden of proving that the respondent, in installing the subject works without the consent of the applicant, now maintains within the lot anything that, when viewed from outside the lot, is not in keeping with the rest of the building.

Conclusion 

It is not always an easy task to interpret some strata plans. Therefore, it is recommended that you obtain legal advice sooner rather than later.

Pobi Lawyers

Michael Pobi has been a specialist strata lawyer for 10 years. His firm Pobi Lawyers provides specialist strata and community title law legal advice and legal representation in the NSW Civil and Administrative Tribunal and the Courts in relation to strata disputes and building defect claims.

Please note that the information contained in this article is for information purposes only. It is not legal advice and should not be relied upon. You should obtain legal advice before you take any action or otherwise rely upon the contents of this article.

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