An Owners Corporation
cannot restrict access to a car space in a strata scheme
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  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
The Owners Corporation's
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
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
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
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
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
This right of access needed to be balanced with the rights
of the other owners to use the common property under section
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.