Melbourne Strata Building Must Use the Fire Stairs

Body Corporate No 413424R v Sheppard and Another [2008] VSCA 118

GoStrata’s CaseWatch is a short, sharp and easy-to-understand review of important and interesting Court and Tribunal decisions affecting Australian strata title stakeholders.

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Quick Read

This 2008 Victorian Court of Appeal decision is about whether a Melbourne CBD strata building could access a top-floor strata lot to get to the roof [rather than having to use the fire stairs] and if an implied easement to do so existed.  The primary issues were whether the access [and easement] was necessary, what ‘necessary’ meant, and whether the impacts on the strata lot were too significant and inconsistent with its reasonable use and enjoyment. After reviewing the alternative access options, the impacts on the strata building and lot, and how the Subdivision Act 1988 operates, the Court decided that the easement was not necessary as there was an alternative [although inconvenient and more costly] and the impacts on a private residence were too severe. It’s a clear authority that ‘right-of-way’ implied easements are unlikely to exist in many strata buildings.

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Implications

The key implications of this strata case are as follows.

• Access rights [as implied easements] can exist in Victorian strata buildings under the Subdivision Act 1988.

• Two things must be established for an implied easement: that it is ‘necessary’ for the strata building and that it is ‘consistent’ with the use of the affected strata lot.

• ‘Necessary’ means ‘essential’ and applies to the easement itself, not the desired access.