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Incorrect by-law which has been unnoticed since 80's. Now being taken to NCAT
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strataforlife
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30/05/2018 - 3:50 pm
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We have a block where 2 units have parking via exclusive use of a parking spot each at the rear of the property. The by-law was created in the 80’s. There is grass and paved concrete at the back with two clear parking spots.

Another unit who has parking at the front of the property (on title) claims that they need the rear of the property to turn around when the exit and enter the property as there parking spot is quite difficult to enter and exit. That unit who has been in the block for over 10 years has only now brought this up because they recently discovered that the by-law has the one parking at the back on a slightly different angle to the actual angle of the concreted area. If the person at the back parked per the angle marked in the bylaw they would be parking partially on grass. The unit with the parking at the front claims that if the person at the rear parks per the exact angle then they would have room to turn around. This is not completely true and they are relying on the fact that we would pave extra area so that the unit with the parking at the rear would not be parking on grass.

 

The OC is now getting taken to NCAT for sending breach notices (we have notified the unit however we told them to keep parking on the paved area instead of damaging frass). They are also requesting an order for us to line-mark the parking. Obviously we can’t line mark the parking without paving extra area. Would this require a special resolution as it is a change in the use of common property?

 

The OC is reluctant to pave the rear as the angle per the by-law does not make sense and it was clearly was an unfortunate error. Do we have to provide people the ability to turn around if their parking (on title) is hard to get into? How do we deal with the issue of the unit with the parking at the rear being technically in breach of the by-law. The by-law requires a unanimous resolution, is there any way it can be changed/corrected? How will NCAT rule on this?

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Lady Penelope
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31/05/2018 - 5:31 am
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The following article re a NSW Supreme Court decision: EB 9 & 10 Pty Ltd v The Owners SP 934 [2018] NSWSC 464, regarding parking access and common property may have some relevance to your issue:

http://turnbullbowles.com.au/keep-out-no-an-owners-corporation-cannot-block-access-to-a-lot/

From reading the Judgement it appears that you do not have to provide access to turn around. Access to a parking position that it only ‘front in’ and ‘rear out’ appears to be permissible.

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strataforlife
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31/05/2018 - 1:38 pm
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Thanks!

I read the lexology summary and the OC did ‘lose’ however the Judge only ordered them to give reasonable access for reverse in / forward out parking manoeuvre. They did not have to provide forward in / reverse out parking.

The applicant is trying to lump in 2 issues into 1. The by-law passed the 80’s is a rough sketch and the allotted spaces do not align with what area is actually paved. We obviously need to fix this, however will the judge see this as a big issue? 

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Bn
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10/06/2018 - 6:32 pm
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strataforlife said
Thanks!
I read the lexology summary and the OC did ‘lose’ however the Judge only ordered them to give reasonable access for reverse in / forward out parking manoeuvre. They did not have to provide forward in / reverse out parking.

The applicant is trying to lump in 2 issues into 1. The by-law passed the 80’s is a rough sketch and the allotted spaces do not align with what area is actually paved. We obviously need to fix this, however will the judge see this as a big issue?   

Why don’t you just do the paving? 

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strataforlife
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11/06/2018 - 9:31 am
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Bn said

Why don’t you just do the paving?   

We would be changing the use of common property. Currently part of that area is grass and has a hills hoist. From what I under stand we would require a special resolution and need to weigh up the needs of all lot owners. The OC would be happy to discuss this at a meeting with all lot owners however the low owner went straight to the NCAT option with a lawyer. 

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JimmyT
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You might also need planning permission as this is a change of use. Could be your trump card.

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