Building on Common Property, Obstruction and a Fire Order

Hi All – long time lurker here

I am on the Executive Committee for my NSW Strata Scheme. We are currently finalising a fire order. In this process we have gotten advice that we need to refurbish our carpark ventilation pumps.

The area where the pumps are located is currently inaccessable; blocked off by another owner who has built a garage in his parking spot. On review of this structure, the committee discovered that it is substantially (about 10 sqm) outside the lot boundary of his parking space. We have contacted the owner who, while offering to ‘put in a door and provide access’ was not willing to remove his structure from Common Property, stating that no-one was using the area when he built the structure (in the 90’s), that prevented the area from further damage (because you can’t get to the ventilation pumps now) and that he had approval from the EC at the time (who were dodgy as). We haven’t been able to find any record of this, and all he has presented us was that he was given verbal permission and that it would be apparently be recorded in the minutes somewhere. There definately was no special resolution recorded anywhere.

Our committee has written him letters and met with him at an EC meeting to discuss. He has refused to move the garage, but offered to provide us access through by installing a door.

We are currently looking at mediation as the option to pursue. 

What I’m after from this forum is some advice on how to proceed, including whether we can just take the structure down. I’m concerned that we are unable to finalise the fire order until this is completed. I’m also concerned that this may be costly to our Strata Scheme to pursue. As it is substantially on common property, can we charge him rent for the space he is occupying? If we are successful in asking him to remove his garage, can we be reimbursed for the costs involved in doing so?