In the recent case of Franklin v The Owners—Strata Plan No. 87497  NSWCATCD 210, the applicant was an owner of a lot in the scheme. The scheme had 87 residential lots and 13 utility lots, and the scheme was previously an aged care facility.
The by-law in contention was by-law 25 which provided as follows:
25 Cooking within any lot
(1) Cooking of any nature including toasting bread will not be permitted in any lot unless the lot has cooking facilities installed by the original Owners of the strata.
(2) The use of a kettle will be permitted.
(3) Should any lot owner or occupant engage in cooking within the lot, which then causes a smoke alarm to be triggered resulting in the Fire Brigade attending at the building, then the lot owner will be responsible for reimbursement to the Owners Corporation for any charge levied against the Owners Corporation by New South Wales Fire Brigade.
The applicant sought an order that the Tribunal declare paragraphs (1) and (2) of by-law 25 to be invalid pursuant to section 150 of the Strata Schemes Management Act 2015 (SSMA 2015).
The Tribunal referred to the discussion of the Appeal Panel in Coscuez International Pty Ltd v The Owners-Strata Plan No 46433  NSWCATAP 147, which referred to the leading case on section 150 of SSMA 2015 that is Cooper v The Owners-Strata Plan No 58068  NSWCA 250, relating to a by-law that prohibited the keeping of certain pets. In Cooper, the Court of Appeal held that a by-law “that limits the property rights of Lot owners is only valid if it protects from adverse affection the use and enjoyment by other occupants of their own Lots, or the common property”.
The Tribunal was satisfied that paragraph (1) of by-law 25 was harsh, unconscionable or oppressive and made an order declaring it to be invalid due to its effect on the use of an owner’s lot. The respondent agreed if paragraph (1) was declared invalid, then paragraph (2) should also be declared invalid as it was not meaningful without paragraph (1). The Tribunal was further satisfied that paragraph (3) could meaningfully stand on its own.
Among the reasons given by the Tribunal in making the order were:
- The width of by-law 25 effectively imposed a blanket ban on cooking in all lots other than the four with cooking facilities originally installed.
- Cooking in a lot is a feature of property ownership. Even though there were common area cooking facilities available, the Tribunal accepted that an owner may not want to use those facilities. Applying Cooper, this blanket ban on cooking would not be valid unless it were to protect against unreasonable interference with another occupant’s use and enjoyment of the occupant’s lot or the common property.
- There was no evidence before it which demonstrated that cooking in a lot would cause a fire risk that could not be sufficiently managed.
- Although cooking may occasionally set off a fire alarm or cause a smell which may disturb other occupants, a window could be opened, or exhaust fan in the bathroom used to reduce the risk of this occurring. The cost of any fire alarm being triggered is covered by paragraph (3) of by-law 25.
- By-law 25 prohibits all cooking, including the use of a toaster. The issue of the small size of the lot did not need to be determined as a toaster could be used in a small space and, on the evidence before the Tribunal, it was not satisfied that the size of the lots in itself was a reason to justify the blanket prohibition on cooking.
- paragraph (1) of by-law 25 imposes a blanket prohibition on cooking without any consideration of whether the cooking would impact on any other occupant’s use and enjoyment of their lot or common property.
- cooking in a person’s home is a right connected with property.
This case further demonstrates (following the decision in Cooper) that Owners Corporation’s should be careful to ensure that its by-laws do not interfere with a person’s right to use and enjoy their property, where such a right does not impact on any other occupant’s use and enjoyment of their lot or common property.
Jasmin H.Singh & Allison Benson