› Flat Chat Strata Forum › Living in strata › ROUNDUP: Tying myself in knots over NCAT loophole › Current Page
It makes sense. I wonder if the NSW has been brought into line with the ACT law, or, more likely, both have been brought into line with somewhere else.
Here in the ACT the Tribunal also does not do the enforcing of its orders. That goes to the Magistrates Court which has the power to make enforcement orders for both Tribunal and Magistrates Court orders.
Our recent matter described above is similar to your pergola on common property example. Rather than just seeking a fine, we sought an order that the unit owner must remove her unapproved structure. We could have also sought a fine but the committee decided that we would look better for focussing just on the end-game, which was to remove a frankly ridiculous, unapproved and unapprovable structure that demonstrably failed to serve the purpose that it was purported to have.
Our Tribunal member did suggest that if we just applied for a fine and the fine was paid but the structure was not removed, we could just keep issuing infringement notices and the owner could keep paying the fines. The clear suggestion being made to the owner was that this would get expensive for her before the EC gave up.
Later in the process, we asked, ‘What if we get the orders we are seeking but the unit owner does not remove the structure? Could we also have an order that the OC is authorised to enter the unit and remove the structure and bill the unit owner?’ The Tribunal’s Decision and Reasons document set out a legal argument for why it would be within the Tribunal’s powers to give such an order but also why she declined to do so. Her reason was that it was not necessary when a process for enforcing orders already exists. She then set out very clearly and helpfully what the process would be to obtain an enforcement order of the Tribunal’s orders from the Magistrates Court.
In your pergola example, since it is on common property, the OC has no access restriction. In that case, I would apply for:
1) an order that the lot owner remove the pergola from the common property and restore the common property to its original condition by some reasonable date,
2) if order one is not complied with, an order that the fine for the by-law breach be imposed,
3) if order one is not complied with, an order that the Owners Corporation may remove and dispose of the pergola as it sees fit,
4) if the Owners Corporation removes and disposes of the pergola in accordance with order three, an order that the unit owner must reimburse the OC’s reasonable costs not exceeding $X00* and its Tribunal application fee ($XXX).
*Include a quote from a tradesperson for removal and disposal of the pergola in the application and round it up to get $X00.