Recently, the NSW Civil and Administrative Tribunal (the “Tribunal”) dismissed an appeal (the “Appeal”) of a previous Tribunal decision (the “Decision”) made by two lot owners (the “Lot Owners”) who wanted to install reverse cycle air-conditioning units installed in each of their respective lots.

In the matter of Hunt v The Owners – Strata Plan No. 1158 [2024] NSWCATAP 65, the Lot Owners applied to have reverse cycle air-conditioning unit installed in each of their lots in accordance with “Special By-Law 5”. At an extraordinary general meeting, the motion to approve the works lost. The Lot Owners filed proceedings in the Tribunal on the grounds that the owners corporation had unreasonably refused its consent to pass the motion approving the works.

The Decision

The Tribunal held that on its proper construction, Special By-Law 5 required that any air-conditioning unit placed on balconies must be both out of sight from other apartments and housed in a cover in accordance with the diagram provided in Special By-Law 5.

The Tribunal rejected the Appellants’ submission that the requirements of Special By-Law 5 could be satisfied by the air-conditioning unit being either “out of sight from other apartments” or “housed in a cover”.

The Appeal

The Lot Owners sought leave to appeal the Decision. The Appeal was filed on the grounds that the Tribunal misinterpreted Special By-Law 5 because of the Tribunal’s failure to have regard to the context in which Special By-Law 5 was made.

The Lot Owners submitted that Special By-Law 5 had been made for the purpose of giving effect to the in-principle consent, that the Lot Owners had been given at an earlier annual general meeting in 2014, to install the condensers on their balconies, provided they were concealed from view of other apartments by a housing unit that covered the condensers. The Tribunal rejected this, stating that this was not the intention of Special By-Law 5, which provided a single set of diagrams that the Lot Owners were seeking approval to carry out.

Conclusion

The Appeal was dismissed on several grounds. Primarily, the Appeal was dismissed on the basis that the owners corporation’s refusal of the motion did not prevent the Lot Owners from submitting other locations for the air-conditioning units to be installed. The Appeal Panel held that the owners corporation’s refusal was reasonable and the Lot Owner’s proposal would not have complied with Special By-Law 5.

If you are unsure about your renovation application and need some advice, please feel free to contact Bannermans Lawyers, enquiries@bannermans.com.au.