In The Owners—Strata Plan 85044 v Murrell; Murrell v The Owners—Strata Plan 85044  NSWSC 20 His Honour Justice Williams was asked to determine 19 issues arising from a dispute between neighbours, including nuisance.
The plaintiff Owners Corporation (OC) owned the common property in a four-level four-unit strata scheme at 95 Wentworth Road, Vaucluse and airspace above part of the adjoining land at 97 Wentworth Road (Airspace).
No 97 had been in existence since at least 1960. The apartments were built more recently, each with two terraces, and the strata plan registered in 2011.
No 95 overlooks no 97 and a slightly sloping roof on part of 97 (Roof). The Roof is in close proximity to one of the terraces of apartment 2. It was agreed that the Roof was up to 16cm below the lower horizontal boundary of the Airspace.
In 2018 the Murrells purchased no 97 and commenced an extensive redevelopment but retaining the Roof. During the redevelopment, disputes arose between the parties due to the Murrells accessing the Roof and the Airspace to inspect, and carry out, work to the Roof.
19 issues, in five categories, came before Williams J for determination. Of particular interest to my readers will likely be the preliminary issue of whether the OC had standing to bring a claim for nuisance when the actual loss asserted is to one unit holder.
The OC’s case in trespass and nuisance was pleaded as a claim for loss and damage said to be suffered by it as a result of the alleged nuisance but the particulars of the loss and damage were said to be the loss of privacy occasioned by the proximity of the workmen carrying out work and the loss of amenity occasioned by noise and disturbance and obstruction of views by the works.
His Honour determined that the nature of the loss of privacy and loss of amenity particularised meant that it could only have been suffered by certain Unit Owners and not by the OC being the representatives of the Unit Owners as a whole.
The OC accepted that the interference was to the unit owners’ use and enjoyment of their land but submitted its’ prosecution of the action was as an agent. Williams J reviewed the statutory scheme established under the 1996 and 2015 Strata Schemes legislation and the characterisation of the unitholders and OC’s interests and held that the OC did not have the standing to bring a claim in nuisance because the OC was only the legal owner of the Airspace and had no estate or interest in the apartments and was neither trustee nor agent of the unit owners’ estate or interest in the Units.
His Honour acknowledged that s254 of the 2015 Act entitled the OC to take proceedings in relation to the common property but said this right applied if the lot owners were jointly entitled to take such proceedings and all lot owners were affected.
The Court decided that the lot owners were not ‘jointly entitled’ because this referred to a right that lot owners have in common, and in respect of which there is one remedy to which they are entitled jointly. The impact on each of the no 95 lot owners’ enjoyment of their property rights varied according to the location of the apartments.
Hence no one remedy for all unitholders, no joint entitlement and no nuisance to the OC.
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Clare Peacock is an experienced construction lawyer working on Sydney’s Northern Beaches. Clare provides practical, cost-effective building approval advice to property owners, builders and strata managers. Services include residential building disputes, body corporate issues and strata building problems.