Hi scotlandx,
I’ve actually had this discussion with a High Court Judge and some very well established Strata Lawyers who dated the Trespass laws all the way back to Old Blighty. The reasons for my discussion with my learned colleagues does not need to be displayed on a public website, but think about it… enforcement of s65 is established by ‘being aware’ the common property is not functioning correctly. An order is for access is to ‘initiate’ repairs in breach of s62 of the act, or to ascertain the extent of the damage… but it has to be established first.
If there is no evidence and the OC want access, for whatever reason, it is not enough to satisfy an Adjudicator ‘ordering’ an owner to give access. As in ‘newbies’ response, they could access the defective common property in another manner, why should the Owner be disturbed because the OC failed to maintain the common property vested in the Scheme?
If the adjudicator ‘orders’ the owner to provide access (not consent) the OC are indemnified from this trespass, but the persons entering the property are still accountable (liability insurance is a must for these contractors).
What’s to stop an OC entering anyone’s property whenever they feel like it, or ‘plant’ evidence against owners who may have litigious action afoot? The over-riding laws, which are civil and common, are all enforceable and punishable if they are committed.
The main principle at play is ‘consent’ and even if consent is unreasonably withheld, it is expressly up to the Lot Owner as to whom and who not to allow entry onto their private property. Strata Schemes Management Act is a guideline for the Owners Corporation and many, many other ‘Acts’ are applicable that override this legislation. Look at any of the recent court cases and you will see this.
It’s worth noting that Adjudicators are not held to personal account (and rightly so) and that this is the magic of CTTT where they can find in whatever manner they wish… hence the ‘Clown Factory’ comments. The main ‘phrase’ the judge told me was that there is no legal excuse for ‘trespass’ and that the manner in which it is dealt with is applicable to what the seriousness of the trespass is. If the Owner outright refuses to offer consent, it is entirely their right to do so. But in doing so, I would expect there to be good reason as in my case it was committed flagrantly and with unconscionable disrespect.