When an Owners Corporation’s Right to Develop Common Property Conflicts with an Owner’s Right of Access

In EB 9 & 10 Pty Ltd v The Owners SP 934, the Supreme Court of New South Wales considered whether it should make a declaration to effectively determine a lot owner’s right to have access over a portion of common property and therefore prevent the Owners Corporation from developing that part of the common property in a way that would inhibit the lot owner’s right of access.

The plaintiff owned a car space.  Space in the car park was “tight” and it was necessary for anybody attempting to use the car space in a “standard size car” to have some limited passage over an adjacent area of common property.  The plaintiff provided expert evidence that it was not possible for a standard size car to get into and out of the car space without making some incursion over the adjacent common property area.

The court made the following findings:

  1. A lot owner has a right of access over common property that must be exercised reasonably;
  2. It is inherent in section 28 of the Strata Schemes Development Act, section 106 of the Strata Schemes Management Act and section 153 at the Strata Schemes Management Act that one of the fundamental purposes of common property is to provide owners with reasonable access to their lots;
  3. Although an Owners Corporation is not subject to section 153 of the Strata Schemes Management Act (which makes it clear that an owner cannot use the common property in a way that unreasonably interferes with another owner’s use or enjoyment of his or her lot), it would be a strange result if an Owners Corporation could act in relation to the common property in a way that individual lot owners cannot;
  4. An Owners Corporation cannot exercise its rights over the common property in a way which derogates from any owner’s right to use the common property to have reasonable access to, or use, his or her lot.

The court made the declaration, thus forcing the Owners Corporation to keep part of the common property clear to enable the lot owner to have reasonable access to the car space.

This decision obviously has broader ramifications and could apply to any situation where an Owners Corporation’s use of common property could interfere with a lot owner’s use of his or her lot.