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Topic
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Appreciate the assistance in advance!
We are the owners of a 2nd floor unit that is positioned where it has isolated views into the unit.
We are looking at enclosing our balcony. The two walls currently have a raill with glass below to the floor of the unit and are otherwise open. We would like to remove these and replace with a set that is both solid at the base and has bifold windows at the top. Basically creating an enclosure that can be ‘sealed’.All will be regulation glass and in line with building colours etc.
EC has in the past approved two other balcony enclosure with differing specifications. No by laws were passed for those.
Subsequently a new committee and chairman have come to run the EC. My application was lodged with the EC (researching State Exempt and Complying Development Codes is believe this to be exempt from approval under subdivision 27).
It has been 3 weeks since the committee meeting and the next is only due in 3 weeks time. Already however i am being told their would be a by-law required and that expenses related to this would be mine.
My questions are:
- If a precendent has been set with 2 previous enclosures being approved – without a by-law inclusion – and, with my enclosure complying to council regulations, is there any reason for the EC to object my application?
- If i it is insisted that a by law is passed prior to approval, why should the costs related to this be solely mine if a) it is in the benefit of all owners b)neither of the two who enclosed theirs paid for a by-law.
- Lastly, how long is fair for an application to be considered?
With thanks!
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KP, I’ve had a look at the CTTT case you quoted because I suspected there was a reason that the only example that you could find quoting precedent was a pet ruling. I guessed that the key phrase “must not be unreasonably refused” would come into play here. Sure enough, the adjudicator quoted the by-law:
… the Owners Corporation’s alleged desire to maintain a “no pets” policy, also cannot simply be applied without question. The by-law at issue, states:
“16. Keeping of animals
(1) Subject to section 49(4), an owner or occupier of a lot must not, without the approval in writing to the Owners Corporation, keep any animal on the lot or the common property.
(2) The Owners Corporation must not unreasonably withhold its approval of the keeping of an animal on a lot or the common property.”
Thus the by-law provides for the owners to seek approval to keep an animal, and the Owners Corporation must not unreasonably withhold or refuse its approval.So, in a case like this, it’s obvious that previous decisions would be brought into play because the key was to establish what was reasonable, rather than what was legally right or wrong.
As far as I know there is no other aspect of strata law where the concept of what is considered reasonable takes precedence over what is legally allowed. I’ve never liked the phrase “the exception that proves the rule” but I think this is precisely one of those cases.
I stand 100 percent behind what I said below and I think Adammark would be very, very unwise to proceed with work on the basis that others have got away with less scrutiny in the past.
If you want to be alerted when anyone replies to your posts or responds to this topic, please register and login, then you will be able to subscribe to the topic. The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers. NB: Longer threads may spill over to additional pages - look for the numbers on the bottom right, under the last post.
I don’t give up easily here is a quote from a ruling in QLD which quotes the relevant bylaw and this has the same the same proviso.
A proprietor or occupier of a lot shall not effect any alteration or addition to the internal walls or structural feature of a lot without the prior approval in writing of the Body Corporate provided that such approval shall not be unreasonably withheld.
https://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/qld/QBCCMCmr/2008/71.html
I know it’s QLD and it’s totally difference rules but we don’t know what adammark actual bylaws say in regard to this issue.
Also QLD has 8,000 online ruling whereas NSW has 1,000. I find reading the ruling gives a good understanding of how adjudicators make their decisions.
Yes, KP, it gives an indication as to how rulings are made in Queensland. As far as I can tell Adammark is in NSW and if NSW adjudicators aren’t going to use local decisions as precedents, they certainly aren’t going to use Queensland decisions. Your quoting of a Queensland by-law has absolutely no relevance to anywhere except Queensland (and only then if that by-law, as worded, is what’s operative in that specific strata plan).
Adammark has been offered a sensible way forward that doesn’t involve the highly unreliable route of taking bits and bobs of by-laws from hither and thither and presenting them to a CTTT that is notoriously unpredictable at the best of times.
Time to let it go, my friend.If you want to be alerted when anyone replies to your posts or responds to this topic, please register and login, then you will be able to subscribe to the topic. The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers. NB: Longer threads may spill over to additional pages - look for the numbers on the bottom right, under the last post.
The Schedule 1 By-Law that the Executive Committee’s (E/C) relying upon is #17 which states that “the Owner or Occupier of a lot must not, without the written consent of the Owners Corporation, maintain within the lot anything visible from outside the lot that, viewed from outside the lot, is not in keeping with the rest of the building”.
The intent of By-Law 17 (in 1996) was to manage situations such as where residents hung brightly coloured curtains or where Property Agents placed signage in windows, and the fact that it was omitted from the Model By-Laws contained in the 2010 Regulation is perhaps evidence of its limited relevance then and now, and particularly in your situation.
So whilst the bi-folds that you prefer may indeed be not “in keeping” with some of those windows in place elsewhere in the building, and even if By-Law 17 is relied upon it still permits a consent to be granted by the E/C on behalf of the Owners Corporation (O/C). The phrase “on behalf of” is important, because the E/C shouldn’t be expressing its opinion about what’s “in keeping” but rather those of the O/C, of which YOU are a member!
The overarching principle is that the E/C must behave reasonably in matters such as this and they’ll come unstuck if they don’t, but that said, the O/C does have an obligation to preserve, as far as is practicable, the “look” of the building as viewed from the outside.
Provided you also behave reasonably, and point out the matters that you’ve mentioned as your “defence”, and additionally that even though the windows are not technically “within the lot” (as curtains are) you’re willing to compromise, but that the E/C should also compromise on that as under the proposed Special By-Law you’ll be responsible for the maintenance of whatever windows are installed (that’s pretty standard unless the O/C wants to do that), so surely your preference must have some sway.