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Application for Penalty Orders - Advice
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29/05/2015 - 1:18 pm
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The NSW strata scheme that I chair has had issues with one utility lot owner regarding a storage shed built on his lot that absorbed about 10m2 of common property under a previous EC quite some time ago.

The area which he absorbed provides entrance to a mechanical ventilation area which we are required to refurbish through a local council fire order. As there is no written by-law granting exclusive use to the lot owner, we started negotiating with him to remove the storage shed in December 2013, with mediation and arbitration taking place over 2014. The Arbitrator decided to rule in our favour, and issued a Notice of Order instructing him to immediately remove the storage unit, which he did not.

He took a motion for an exclusive use by-law (with a small cash compensation) to the AGM in March this year, which was defeated, but the OC elected that a second fire engineer review the area to see if there was some way around the fire orders requirements. We undertook the second fire engineer to report, as well as got the council guy back to take a look but the ventilation system is still required.

The EC wrote to the lot owner requesting the sheds removal in 14 days. After receiving various threats about breaches of WHS and other compliance issues we put in a notice to NCAT to issue a Penalty Orders. 

With the hearing date approaching in about 2 weeks, are there any tips that people have for taking a penalty orders case through NCAT? What was there experience like? Most of the information I’ve found relates to presenting a case, not an application for penalty orders over a contravention of a Notice of Order. 

Sir Humphrey

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30/05/2015 - 10:45 am
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Boy, it sounds like you are being way too nice. You have done everything by the book. There are orders for the shed to be removed. It is unequivocally established as necessary to comply with the OC’s safety obligations. Keeping the shed has been put to the OC at a general meeting and the motion was lost.

In your letter, I would have reiterated all that and said that the EC had an absolute obligation to remove the shed without delay and that if he did not do so within the 14 days, the EC would arrange for it to be removed and the unit owner would be charged for the costs involved. 

With the benefit of hindsight, it would have been good to have asked for orders that the OC could remove the shed and charge costs to the owner if the owner did not remove the shed within some reasonable period. 

I think the main thing now is to have clear protection for the OC if it removes the shed. I would be looking for the order to include that you can do that. However, if you did just remove the shed, I don’t think the lot owner would have much of a case against you given two lots of fire safety and council advice, a tribunal order that it be removed, and the failure of an OC resolution to grant exclusive use to the lot owner. 

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30/05/2015 - 6:27 pm
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I recall a similar long-running dispute with an owner who had erected a cage around her parking spot, making it difficult for the owners on either side to get in and out of their cars.  Despite numerous CTTT orders to remove it, she declined to do anything … until she came home one day to find the cage dismantled and piled neatly in the middle of her car space with a note attached asking her to remove the remains.

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30/05/2015 - 9:38 pm
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I think you have been more than reasonable with this person and he is just giving you the run around wasting your time and money.

It’s common property which they have no right to so get in somebody to remove the shed (the OC will have to pay the cost initially) but then invoice the owner for the cost of the removal (I believe you must leave the dismantled shed on his property but advise him that if it is an eyesore and he doesn’t remove it within x days then you will engage a tradesman to remove it and again bill him the cost).

If they refuse to pay the invoice they are then non financial and so ineligible to vote at a GM. Even if the owner then tries to take you to NCAT you have a ruling against them and 2 fire safety orders which I don’t believe even the most incompetent adjudicator would overturn.

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