The recent Appeal Panel (“Appeal Panel”) decision from the New South Wales Civil & Administrative Tribunal (the “Tribunal”) of Lane v The Owners Strata Plan No 2404 [2026] NSWCATAP 73 considered the circumstances where a common property exclusive use by-law was amended without the consent of the lot owner who was conferred rights or special privileges.

In short, the Appeal Panel allowed the Appellant’s appeal and set aside the Tribunal orders at first instance, where the Tribunal had found in favour of the owners corporation.

The Appellant commenced the Appeal on two grounds. First, that the Tribunal erred on a question of law by determining that the owners corporation did not require the consent of the Appellant to amend by-law 28 (“By-Law-28”), a by-law conferring exclusive use of car spaces. The Tribunal found in favour of this ground. However, the Appeal Panel was not satisfied that the second ground constituted an error, being that the Tribunal erred in law by declining to revoke the amendment. Accordingly, the Appellant was successful on one of the two grounds.

The proceedings were commenced by lot owners whose exclusive rights to a car space (“Car Space 9”) in by-law 28 were amended without their consent. The Appellants purchased their Lot (“Lot 1”) in 2016 on the basis they had exclusive use of Car Space 9. The owners corporation’s position was that it had been incorrectly transferred to Lot 1 in 2015 and instead belonged to Lot 2. From 2017 to 2023, the parties disputed which lot had the benefit of Car Space 9.

The owners corporation submitted that section 143 of the Strata Schemes Management Act 2015 (NSW) (“SSMA”) only referred to making a by-law, not changing one. Despite this, the Appeal Panel found that section 143(1) required the Appellants’ consent to amend by-law 28.

Even if the exclusive use had been incorrectly provided, the owners corporation required Lot 1’s consent, as it had been conferred a special right or privilege. The key takeaway is that when amending exclusive use by-laws, the correct lot owner must be included and consent must be obtained.

The process of obtaining the proper approval for construction works can be very difficult to navigate. If you require any assistance in obtaining the necessary approvals for works that would like to carry out, feel free to reach to out to enquiries@bannermans.com.au or on 02 9929 0226.

Prepared by Bannermans Lawyers

24 April 2026