Challenging By-Laws including Exclusive Use, Building works

29/02/2016

Watson & Watson have received many enquiries as to challenging by-laws more particularly by-laws which have not been approved by an Owners Corporation. 

Division 8 of the Strata Schemes Management Act provides a procedure for an appropriate applicant to challenge the making or the refusal to repeal a by-law (Section 157) or more particularly as referred to in this article an order with respect to by-laws conferring exclusive rights or privileges over common property. 

An Adjudicator may make an order prescribing the making amendment or repeal in the terms of the order of a by-law if the Owners Corporation has in effect unreasonably refused to make a by-law of the kind referred to in Section 51.  Section 51 provides for special provision for by-laws conferring certain rights or privileges relating to right of exclusive use of part of the common property or special privileges, for example, a licence to use part of the common property. 

The Strata Schemes Management Act provides the mechanism for making such by-laws.

An Adjudicator appointed under the Strata Schemes Management Act sitting in the NSW Civil and Administrative Tribunal (NCAT) has the power to deal with the application for a reconsideration of the by-law. 

Pursuant to Section 158(2) of the Strata Schemes Management Act in considering whether to make an order the Adjudicator must have regard to:

1. Interest of all owners in the use and enjoyment of their lots and common property; and
2. Rights and reasonable expectation of an owner deriving or anticipating a benefit under a by-law of the kind referred to in Section 51.

The common property is all that part of the building and land which does not form part of a lot or one or other of the lot owners.  There are clear examples of common property which would be utilised in a renovation, for example, the removal of an external wall or part of the wall, replace a window with a door, or to connect with the common property, for example, the plumbing.

One needs to properly consider whether the works being undertaking or sought to be undertaken are primarily internal works or building works that requires the consent of the Owners Corporation. 

As we have indicated if an application is made under Section 65A of the Act the Owners Corporation may make or authorise changes to the common property.  Some recent examples of cases in the NCAT illustrates the situation for example:

In the Article:

1.         A case involving a request by a lot owner to build a new balcony in her apartment in Sydney.  The owner wanted to change the wall in her lounge room and to install a balcony which would allow her to spend some time in the open air.  The Owners Corporation did not approve the works nor a by-law.  The lot owner made an application to NCAT seeking an order that the Owners Corporation consent to her carrying out that work.  In that case the Tribunal refused to make the order because it would have caused too much inconvenience to other owners in the complex.

2.         A case by an owner who wished to replace a brush fence dividing her townhouse from another with a glass panel.  There were objections to the replacement of the brush fence with a glass panel from the other owners.  NCAT refused to order the Owners Corporation to consent to the alteration to the dividing fence.

3.         A case in which Watson & Watson acted for the owner who sought approval for works which were mainly (but not exclusively) internal works for her unit which works were originally rejected by the Owners Corporation.  However, the Adjudicator in the Adjudication approved those works. 

Watson & Watson including Richard Watson and Nicholas Hufton are experienced in dealing with such applications in all jurisdictions relating to strata issues and building and construction issues.

As we have indicated, it is imperative that all cases be prepared fully with the appropriate concise evidence required to establish your position.

The outcome of an application is much more likely to be successful if it is prepared properly. 

Watson & Watson are experienced in preparation of such applications and have a record of success in achieving the outcome sought by our clients.

If you have any queries and wish to discuss your difficulties we ask that you telephone Richard Watson to discuss the matter so that we can provide you with the assistance necessary.