Melbourne Strata Building Must Use the Fire Stairs

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

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] were 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.

Implications

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.
A range of considerations are relevant to what is ‘necessary’ for an implied easement.

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Full Report & Case Details

This decision by the Victorian Court of Appeal is about a strata building’s right to enter strata lots to access common property.

It involved a 16-storey residential apartment building in the Melbourne CBD where a strata owner’s apartment occupied the entire 14th and part of the 15th floor where a dispute arose about whether the strata building could access the roof [that contained air conditioning, lift, emergency and similar plant and equipment] from that apartment. The only alternative access to the roof required walking up 16 levels of fire stairs from the ground floor.

The strata building wanted a permanent right [as an easement] to the top floor strata lot to permit it to take the lift to level 14, pass through living areas to access the fire stairs on that level to reach the roof and argued that it had or should have that right as an implied easement under s 12(2) of the Subdivision Act 1988.

The strata owner opposed that right and access arguing that it would detrimentally affect their use of the strata lot and was not essential for the strata building’s use and management of the common property and strata building.

In making its decision the Victorian Court of Appeal reviewed the earlier decision of Judge Pagone in this dispute, parts of the Subdivision Act 1988 and the decision in Gordon and Anor v Body Corporate Strata Plan 3023 & Anor [2004] 15 VR 557.

In refusing to give the strata building easement rights over the strata lot, the Victorian Court of Appeal concluded.

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Keywords

#VIC #VICCourtofAppeal #easament #access #2008 #SBCR2001 #s12