Janet – the short answer is NO, your Owners Corporation cannot enforce a Special By-Law (SBL) of the type proposed unless they have your prior written consent; the relevant section of the NSW Strata Schemes Management Act is 65A(4)which states:
A special resolution under this section that allows an owner of a lot to take action in relation to certain common property and provides that the ongoing maintenance of that common property after the action is taken is the responsibility of the owner has no effect unless:
(a) the owners corporation obtains the written consent of the owner to the making of a by-law to provide for the maintenance of the common property by the owner, and
(b) the owners corporation makes such a by-law.
OK, there’s a subtlety there around allowing an Owner to “take action” when those in your Villa have already been “taken”, but it sounds to me like it’s this Clause that your O/C is trying to use to legitimise their proposed Special Resolution (at the EGM) and subsequent SBL.
As the Secretary and Treasurer of a self-managed Plan I can appreciate what your Owners Corporation (O/C) is trying to achieve and why, but it’s a bit of a stretch for it to assert that it had no prior knowledge of the stairs (legal or otherwise), and that it could not have introduced the proposed SBL when the Villa was owned by the original Owner, or even made a suitable notation on the S109 Certificate that would have been requested by your Solicitor / Conveyancer at the time of your purchase.
So in my opinion, and on the face of it, your O/C is required to properly maintain its Common Property, and if that means repairing the upper level of your Villa so that it’s suitable for its intended use, then so be it!
I say “on the face of it” because we’re so far unaware of any extenuating circumstances such as whether the upper level of your Villa is a habitable area (or not), if you may have in some way contributed to the “sagging” (e.g. by storing excessively heavy items), but whilst any of these things may mitigate the O/C’s liability to maintain the area, none would negate it.
So far as the holding of the EGM is concerned, without knowing the nature of your Application to the NCAT and why it was dismissed I can’t comment on what effect an Appeal would have, but I’d continue to decline any requests by your O/C to consent to the making of their SBL and let the Meeting proceed.
I (and no doubt others here) would be interested to know what if anything has occurred with the stairs / ladders to the other five Villas, and if your O/C is attempting a similar approach with those Owners, and what consequences are being suggested under Strata Legislation by the O/C’s Solicitor if you withhold consent to the SBL.