Car parking underneath a strata building can be difficult if the turning circle is tight. But parking a car is close to impossible if the Owners Corporation places a physical barrier on the perimeter of an open car space, as it did in the following case.

In EB 9 & 10 Pty Ltd v The Owners SP 934 [2018] NSWSC 464 Justice Kunc in the Supreme Court of New South Wales was asked to adjudicate upon a car space dispute between the owner of a car space (Lot 89) and the Owners Corporation of Strata Plan 934 (which owned the common property at 45 Macleay Street, Potts Point).

At issue was the Owners Corporation's proposal to place a barrier alongside one boundary of the car space. The owner objected to the barrier because it restricted the turning circle for parking a car, and rendered the car space almost unusable. 

The Owners Corporation's proposals

In July 2015, the owner purchased the car space (Lot 89) for a price of $264,000. It had a separate title (which was permitted in strata schemes registered before 1 July 1974). It was a single car space. It was relatively narrow at 2425 millimetres, and has a concrete column halfway along which restricts the turning circle.

In November 2015, the Owners Corporation erected a chain along the boundary between Lot 89 one side and an open area which was common property on the other side. This made car access impossible without removing the chain because the turning circle was too tight. The owner commenced proceedings for removal of the chain.

In July 2016, a special resolution was passed: The Building Proposal - to create three new car spaces in the area, with a wall built parallel to and 575 millimetres away from the boundary with Lot 89. The creation of new car spaces was a money making venture, given that car parking spaces sell at premium prices in Potts Point.

In November 2016, another special resolution was passed: The Garden Proposal - to enhance the area for bicycle storage, and to plant, install garden materials and recreation items as a communal recreation area and garden, to within 300 millimetres of the boundary with Lot 89.

The owner amended its summons to seek a declaration that the proposals not be implemented.

The expert evidence

The owner argued that the Owners Corporation's proposals to restrict the use of the car space by installing a barrier so close to the boundary were unreasonable and unlawful.

Expert evidence was given by a civil and structural engineer. 

Choosing a "standard size car" and based on the requirements of AS2890.1, which is the Australian Standard for off-street car parking, he calculated that a car needed to cross into the common property alongside the car space by 870 mm to perform a reverse in / forward out manoeuvre with 300 mm of clearance on either side. The forward in / reverse out manoeuvre needed more space - 1175 mm. Drawings prepared are attached to the judgment

The Court's analysis and conclusion 

The Court's analysis was as follows: 

While section 153(1)(b) of the Strata Schemes Management Act 2015 "makes 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", there is no provision in the Act which prevents the Owners Corporation from using the common property in a way that unreasonably interferes with an owner's use or enjoyment of their lot.

The Court therefore turned to the basic principles for guidance. That is, the Owners Corporation "holds the common property for the benefit of all owners and cannot derogate from its fiduciary duties" such as by excluding the lot owner from using the common property.

As a result, the Court was prepared to find that: 

"A fundamental (if not the fundamental) use of common property is to provide access to lots. The right reasonably to use the common property for that purpose cannot be taken away"

The Court concluded that the Owners Corporation "could not lawfully use its powers to deprive the owner of access to parts of the common property which were needed to gain access to Lot 89 to use it for its intended purpose as a car space".

This right of access needed to be balanced with the rights of the other owners to use the common property under section 153(1)(b).

The Court therefore proposed to make a declaration that the owner of lot 89 be entitled to use a strip of land 870 mm wide as a "cordon sanitaire" over the common property area along the entire boundary with lot 89 so as to give the owner reasonable access for the reverse in / forward out parking manoeuvre. It was not prepared to make the strip wider to allow forward in / reverse out parking. 

What value does the decision have as a precedent? 

The decision sets a precedent that an Owners Corporation must allow reasonable intrusions into the common property by owners to park in their car spaces. Not only to allow, but to not plant natural barriers or place physical barriers which unreasonably interfere with car access and parking.

The decision may have broader value as a precedent that lot owners and occupiers are entitled to prevent unreasonable interference with the use of their lot by the Owners Corporation, whether the interference takes the form of proposals for building on the common property or by planting or allowing trees and vegetation to grow on the common property. Time will tell how far this will extend.