First of all I would check whether your courtyard is on your Title and/or whether it is has been granted to you as Exclusive Use, or as a Special Privilege e.g. a lease etc. You should have been made aware of this when you purchased your Lot.
An Exclusive Use By-Law gives the lot the right to exclusive use and enjoyment of specified parts of the common property. ie – The lot is allowed to exclusively use the courtyard. That would mean the whole of the specified part.
Then check the Exclusive Use By-law for any conditions being imposed upon you within that By-law.
If all looks OK then if I was in your shoes I would wait until the OC took you to NCAT rather than the other way around. This will ‘test their mettle’.
The onus will then be on the OC to prove that you have breached something, rather than on you having to prove that you haven’t.
From your comment is could be that the OC are relying on the ‘appearance of a Lot’ provision – but could be taking this to the extreme (i.e. not acting in accordance with what is just or reasonable), given the situation that you have outlined.
If you wait for the OC to make the move first then (a) you save money, and (b) you get to know their reasons and some of them will probably be ‘loopy’, and (c) they do most of the hard work in establishing their case against you, and (d) you can then argue the OC are acting in a harsh, unconscionable or oppressive manner.
Section 139 (1) states:
“By-laws cannot be unjust. A by-law must not be harsh, unconscionable or oppressive.”
The Macquarie Dictionary (Fourth Ed) gives the following definitions:
- harsh adjective 1. Ungentle and unpleasant in action or effect: harsh treatment. 2. Rough to the touch or to any of the senses: a hard surface; a harsh voice. 3. Jarring upon the aesthetic senses; inartistic: his painting was full of harsh lines or clashing colours.
- oppressive adjective 1. Burdensome, unjustly harsh, or tyrannical, as a king, taxes, measures, etc. 2. Causing discomfort because uncomfortably great, intense, elaborate, etc.: oppressive heat. 3. distressing or grievous, as sorrows.
- unconscionable adjective 1. Unreasonably excessive. 2. Not in accordance with what is just or reasonable: unconscionable behaviour 3. Not guided by conscience; unscrupulous.
In the meantime, write the OC Committee an email stating that you do not believe that you are in breach of any by-laws and that you will continue to maintain the status quo, including retaining the lock on the gate, until proven otherwise.
Also advise the OC that you will deem any unauthorised access to your Exclusive Use Area (unless in a genuine emergency) to be a Trespass and that should the OC wish to enter your Lot or take photographs of your Lot from within your Lot boundary that they must first seek your permission to do so.