Older buildings need no longer fear the demands of tech-savvy owners insisting on upgrades to the latest you-beaut infrastructure, thanks to a landmark NSW Appeals Court ruling.

It is now accepted law that owners corps’ responsibility to maintain and repair common property doesn’t mean they have to improve it to meet increased demands.

And in another aspect of the same decision, individual owners can no longer claim damages against their owners corporations for not fulfilling their legal obligations to look after common property.

Also, while this was a NSW ruling, it will almost certainly have an effect on other states in Australia where it can be cited as a precedent.

Its immediate effect in NSW  is that Executive Committees can reject individual owners’ calls for, say, increased electrical capacity for air conditioning or improved plumbing to deal with additional bathrooms.

It may even have an impact on the roll-out of the NBN as owners corps will be able to argue that it’s an optional improvement rather than a compulsory replacement.

This complex and far-reaching decision all started in a dispute over some fast food outlets underneath Sydney’s  George St at Wynyard Station.

Two weeks ago the NSW Appeals Court overturned a 2006 Supreme Court ruling that the owners of the Hunter Connection, a commercial strata complex attached to the tunnel leading to the station, had to upgrade the complex’s air conditioning system to accommodate three new food outlets.

The Supreme Court had found that the owner of the three shops was entitled to demand that the work be done so that his shops could comply with City of Sydney ventilation requirements.  The existing system – improved because of a previous Supreme Court ruling in 2004 – was already working at capacity.

The initial ruling was made under Section 62 of the Strata Schemes Management Act which says owners corporations must properly maintain and repair common property and must repair and renew fixtures and fittings that are part of it.

However, Appeal Court judge Reginald Barrett said that “replacement connotes no more than the installation of one thing in the place of another to achieve functional equivalence, ” adding, “anything amounting to alteration or addition for the purpose of improving or enhancing the common property is beyond the concept of renewal or replacement.”

So it’s now settled law that common property in good repair and operating as intended does not have to be renewed or replaced, says leading strata lawyer Beverley Hoskinson-Green.

“The Owners Corporation does not have to deal with any future eventuality to meet a demand the instant a lot owner might make it,” she adds.

With the Appeals Court being the highest civil court in NSW, this decision will have far-reaching effects elsewhere in Australia under the principle of ‘persuasive precedent’ whereby the decisions of a superior court in a different  jurisdiction can be used in legal arguments.

Back in NSW, it may even prevent the rich and powerful from avoiding taking complaints to the CTTT.  Until now, cashed up strata owners with a sense of entitlement and a team of lawyers could take their issues directly to the Supreme Court on the grounds that they wanted damages but the  CTTT doesn’t award them.

But if the Supreme Court can’t do so either, it could be back to the basic one-size-fits-all, low-cost process that the rest of us mere mortals have to pursue.

You can read Beverley’s detailed report on the case HERE.