The Community Association - DP No 270193 v Dib [2022] NSWCATCD 194

The Community Association - DP No 270193 v Dib [2022] NSWCATCD 194

The management statement and its by-laws are contractually and statutorily binding and require approval for works such as erection of a pergola. Planning legislation does not override these obligations. The respondent failed to obtain approval as mandated, and the works are therefore unauthorised and must be removed. The application of section 71 under the Act was appropriate, and orders for removal should be made.

Jurisdiction
Australia
Judgment Date
06 October 2022
Procedural Posture
Application for Adjudicator's Orders Under Community Land Management Act 1989 / Decision
Outcome
Application granted. Orders made for removal of the unauthorised pergola.
Legal Topics
['community Association by Laws' 'unauthorised Works' 'exempt Developments' 'planning Law Overrides' "adjudicator's Jurisdiction"]
['strata and Community Title' 'property Law' 'planning and Environment'] ['community Association by Laws' 'unauthorised Works' 'exempt Developments' 'planning Law Overrides' "adjudicator's Jurisdiction"]

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Procedural Posture

Application for Adjudicator's Orders Under Community Land Management Act 1989 / Decision

Legal Issues

  1. 1 ["Whether the respondent's erection of a pergola on Lot 27 constituted unauthorised works under the community management statement and by-laws" 'Whether New South Wales planning legislation overrides the management statement and by-laws, thereby excusing compliance with private restrictions' 'Jurisdiction and powers of the adjudicator to grant the orders sought']

Ratio Decidendi

The management statement and its by-laws are contractually and statutorily binding and require approval for works such as erection of a pergola. Planning legislation does not override these obligations. The respondent failed to obtain approval as mandated, and the works are therefore unauthorised and must be removed. The application of section 71 under the Act was appropriate, and orders for removal should be made.

Court Disposition

Application granted. Orders made for removal of the unauthorised pergola.

Orders

  • ['The respondent Georgette Dib shall on or before 5 December 2022 remove the unauthorised pergola and all related work on the lot that have been installed without the approval of the applicant Community Association – DP 270193 and return the outside of the lot to its original condition and state.' "The respondent's...