Apartment parking rights sorted out in court decision. Photo: Andrew Woodhouse

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By Andrew Woodhouse

When is a car parking spot not your own?

In crowded Elizabeth Bay with its high-rise apartment towers until recently this was a vexed question and, until last week, it was also a legal issue involving two barristers and three NSW Court of Appeal judges.

Cars are not generally welcomed by the City of Sydney Council.

“Get on yer bike” is their mantra.

However, many Sydney residents do need a vehicle for emergencies, to visit relatives, do kids’ sport drop offs, get to hospital or go away for the weekends.

So, if a car owners purchases a parking spot not otherwise used and bought independently of their apartment purchase then wouldn’t, or shouldn’t, this sharing or “repurposing” seem ideal? It’s a win-win.

Even if the car spot is in the building next door?
Well apparently not, if some strata committees are involved it seems.

But yes if the New South Wales Supreme Court of Appeal judges are involved.

Last week Their Honours, Justices Arthur Emmett (Acting Justice), Anthony Payne and Ruth McColl handed down their joint, unanimous decision on an interesting urban law case, now a precedent.

Law-abiding residents in the apartments opposite a fifteen-storey apartment building, Elizabeth Bay Gardens 15-19 Onslow Avenue had purchased at great expense, car spots for their own use.

The car spots were within Elizabeth Bay Gardens although those who purchased them did not live there.

The site was originally subject of a 1968 DA to Sydney City Council.

The DA consent contained a provision for “free parking one hundred and four (104) cars by the occupants of the proposed building on the lower ground, ground and upper ground floors and fifteen (15) cars by visitors at the rear of the site.”

Last week’s court decision hinged on the meaning on the key word, “occupants”.

The building was completed in 1970 and the strata subdivision approval was granted by council.

Strata Plan No. 4983 was registered as a strata plan but with only 87 parking lots.

From 1970 until 2014, parking lots were bought, sold and used by residents and non-residents of Elizabeth Bay Gardens.

These car spots were valuable assets, with some changing hands for $220,000.

The Owners’ Corporation of Strata Plan No. 4983, was aware throughout this period that some of the parking lots had been purchased by non-residents, yet raised no concern.

The Owners’ Corporation levied non-resident parking lot owners for strata levies which were paid by non-resident owners.

These events confirmed acceptance of the status of the car spots and owners.

However, in 2014, the Owners Corporation passed a resolution creating a new by-law which  excluded the non-resident owners of parking lots from using their own car spaces.

They enforced this new by-law by installing a security access point and issuing new security swipe cards to “residential” lot owners only. Non-residential car spot owners were locked out.

So a group of non-resident car space owners commenced legal action. They said the new by-law was invalid. The primary judge, amongst other declarations and orders, held that the new by-law was invalid and of no legal force and effect.

The Owners Corporation was not satisfied and appealed to the Court of Appeal. The Court of Appeal noted, “At no time prior to 2014 did the Owners’ Corporation tell any non-resident parking lot owners that there was any impediment to them using the parking lots to park their cars.”

The Owners’ Corporation have now lost the appeal.

The court was also critical of Sydney Council saying, “The [council] development consent fails to specify accurately or in detail precisely what council consented to … The development consent permitted use of parking spaces by “occupants” of the building.”

Council’s planner had previously and erroneously stated that “parking spaces within the building should only be used by occupants of that building and not by someone who resides elsewhere”.

As it turned out, he was spectacularly wrong.

The court decided that “Occupants include persons whose presence has some element of regularity and continuity and permanence. The development consent refers to “occupants” of the building, rather than occupants of the residential floors. The lack of clarity in the development consent about the identity of “occupants” permitted to use the car spaces should be resolved in favour of the respondents [the non-residential car spot owners].”

As is often the case, even though the case is over, arguments about who pays whose legal costs rage on.

However, the Judges state “The Court Orders that the appellant [Owners’ Corporation} pay the respondents for the costs of the appeal and the cross-appeal as agreed or assessed … such costs be paid from a levy raised from the owners of lots in Strata Plan No. 4983 other than the respondents or any of them.”

So after six years of concern, locals can now use what they paid for, a car spot.

The ancient Chinese strategist, Sun Tzu (circa 512 BC) and author of “The Art of War”, said: “The wheels of justice grind slow but grind fine”