You Can Park on our Common Property, But we Can’t

Brydall v The Owners of Strata Plan 66794 [2009] NSWSC 819

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 2009 NSW Supreme Court decision is about a parking easement [a registered right over land] over part of a Girraween strata building’s common property and whether the parking rights were exclusive to the adjoining owner or shared with the strata building occupiers.  So, the primary issue was interpreting the easement wording and applying it to the circumstances at the two properties. After doing that and referring to other relevant cases, the NSW Supreme Court decided that the applicable ‘proportionality’ principle and the easement wording were in terms that excluded shared use so that the parking rights were exclusive.  The decision clarifies the principles Courts will apply when considering easements and confirms that the wording of easements will be strictly applied.

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Implications

The key implications of this strata case are as follows.

• Whether or not a parking easement is exclusive depends on the facts and circumstances applying to it as well as the wording.

• The ‘proportionality test’ described in Weigall v Toman applies.

• Proportionality involves balancing the importance or significance of the easement site to the whole land.

• Convenience to either of the affected landowners isn’t relevant.