Endre v The Owners - Strata Plan No. 17771 [2019] NSWCATAP 93

Endre v The Owners - Strata Plan No. 17771 [2019] NSWCATAP 93

The refusal by the Owners Corporation to grant retrospective consent to the installation of the skylights was unreasonable in the circumstances, including the existence of an exclusive use by-law for the attic, the lack of timely objections or evidence of detriment, the location and history of the skylights'...

Source-derived case information.

Parties
Appellant: Gyongver Entre; Respondent: The Owners - Strata Plan No. 17771
Jurisdiction
Australia
Judgment Date
17 April 2019
Procedural Posture
Appeal / Final Decision on Appeal
Outcome
Appeal allowed; orders below set aside; work approval order granted for the skylights subject to conditions.
Legal Topics
Work Approval Order, Retrospective Approval of Strata Works, Reasonableness of Owners Corporation Decisions, Exclusive Use by Laws, Adequacy of Reasons for Decision
Strata Law Administrative Law Work Approval Order Retrospective Approval of Strata Works Reasonableness of Owners Corporation Decisions Exclusive Use by Laws Adequacy of Reasons for Decision

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Parties

Gyongver Entre

Appellant

The Owners - Strata Plan No. 17771

Respondent

Procedural Posture

Appeal / Final Decision on Appeal

Legal Issues

  1. 1 Whether the Owners Corporation unreasonably refused consent for installation of skylights under s 126 of the Strata Schemes Management Act 2015 (NSW)
  2. 2 Whether the work approval order should be made for the skylights
  3. 3 Whether the reasons provided by the Tribunal were adequate

Ratio Decidendi

The refusal by the Owners Corporation to grant retrospective consent to the installation of the skylights was unreasonable in the circumstances, including the existence of an exclusive use by-law for the attic, the lack of timely objections or evidence of detriment, the location and history of the skylights' installation, and the appellant's willingness to assume maintenance responsibility. Adequate reasons were not provided by the Tribunal at first instance; the appellate Tribunal re-exercised power to grant the work approval order with appropriate conditions.

Court Disposition

Appeal allowed; orders below set aside; work approval order granted for the skylights subject to conditions.

Orders

  • The appeal is allowed and orders 2.3 and 2.4 made in application SC 18/33509 on 14 November 2018 are set aside.
  • A work approval order is made in respect of the 6 skylights previously installed above Lot 2 in SP 17771, effective from 30 June 2014.