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[Flatchatty]

An owner installed a new SECOND AC unit without authorisation in driveway-visible façade. There is nothing in the by-laws about Air Conditioning unit installations. However, I heard that lots are usually only allowed to install maximum one AC unit. In addition, installation on a driveway-visible façade is possibly in conflict with council planning restrictions concerning visible external AC units. In fact, it looks ugly from the street.

We contacted the strata manager about this installation who confirmed that no authorisation was requested or given for that installation. However, when we replied that is breaching strata law (for lack of authorisation), the by-laws (lack of authorisation) and possibly in conflict with the council planning restrictions concerning visible external AC units, and it should be removed, she replied that she is not a lawyer! But she will contact the offending owner.

What are your thoughts about this situation? What should happen? What does usually happen? and can this owner keep this AC unit installation?

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[Flatchatty]

Some more info:
The building is a 12-lot strata scheme in NSW (Cumberland council). The offending owner is a committee member that only has 3 members in total.

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[Jimmy-T]

If it’s on a balcony, it’s on common property and needs permission to be there.  And how is it ducted?  It has almost certainly cut through common property – either a wall or a window – and that should have been permitted via a common property by-law (which sheets responsibility for the work done to the owner).

This is pretty basic stuff and even if your strata manager isn’t a lawyer, she should know this.  Also, an extra air-con compressor could be a significant drain on a small block’s power supply.

In your shoes I would send a letter to the strata committee asking how and when permission for this was granted, what work was done on common property to install it, when the necessry by-laws were registered and what the committee plans to do to rectify the situation. If they refuse to do anything, apply for mediation at Fair Trading with a view to taking action under section 232(2)  failure to fulfill duties.

Oh, and I’m not a lawyer either – maybe ask your strata manager if they are aware of any of this and if not, why not.

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Flatchatty

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[Flatchatty]

Jimmy-T wrote:

This is pretty basic stuff and even if your strata manager isn’t a lawyer, she should know this.

It is on an external wall (common property) in the front driveway and you can see it from the street. Not a single building in the whole street has a visible AC unit. In the Cumberland council DCP part B, it states: “Where an air conditioning unit is to be installed, the motor unit shall be located at the rear or side of the dwelling house and shall be appropriately noise attenuated and appropriately screened.”

I agree with you, this is basic stuff, owners cannot affix anything to common external walls without authorisation from the OC, and if they did then there is a breach of Strata law and by-laws. So I don’t understand the attitude of this strata manager who needs a lawyer to see that there is a breach. I thought knowing strata law and how to read legislation is a requirement to become a strata manager.

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[Jimmy-T]

A phone call to the council should do it.  The strata manager may just be reluctant to give the bad news to a committee member that they are in breach, in case they are sacked.  Which, ironically, is good reason for sacking them.  Call the council or email them with pictures.  Then call the strata management company’s senior managers and ask them to explain the facts of strata life to their employee.

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Flatchatty

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[Flatchatty]

The strata manager circulated a “notice of work completed” letter from the offending owner. The work was completed over a month ago. The offender claims that they had verbal permission from the previous strata manager and asking for formal written authorisation. Does this make any sense?

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[Jimmy-T]

Flatchatty wrote:

The offender claims that they had verbal permission from the previous strata manager

As legendary Hollywood producer Sam Goldwyn famously said, a verbal contract isn’t worth the paper it’s written on. Ask the committee to politely invite the offending owner to submit an application for approval, including the necessary by-laws, or remove the air con, or have it removed by a contractor at their expense. If the refuse then consider taking action at Fair Trading and NCAT under section 232(2) of the act for failure to fulfil a statutory duty.

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Flatchatty

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[Flatchatty]

The strata manger has now informed the committee that they are considering this letter as a formal retrospective approval application. And although the unauthorised  AC unit is on a common façade and visible form the public street, the SM has not given the option to the committee to skip retrospective action altogether.

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[VicRes]

The strata manger has now informed the committee that they are considering this letter as a formal retrospective approval application.

 

Does the SM actually have the authority to issue such a letter? And why would they do this without committee approval. As was noted earlier the SM works for the OC and must follow the law. Since the SM obviously needs ‘guidance‘ on how to do their well paid job it’s time they were instructed in writing to get this matter resolved. I.e. issue a notice to comply and get the AC removed.

Since the SM has allowed the matter to get to this stage they shouldn’t be paid anything additional to their standard fee. Once resolved the SM should be removed, like the errant AC.

If the SM is working for a larger organisation go to the management and insist on someone competent.

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Flatchatty

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[Flatchatty]

Hi VicRes,

Thank you for your input although i didn’t fully understand it.

The SM didn’t issue the letter, they received it from the offender and circulate it to the committee. When the SM was asked what is required from the committee to do with this letter, they replied with a short message that this letter is the offender’s retrospective approval application! The SM was asked again if this letter can be considered as a valid retrospective approval application that legally triggers the retrospective approval process. But they just ignored that question altogether.

My research yielded two points:

1. Under the SSMA 2015 framework, retrospective approval is a formal, procedural mechanism, not merely a notification. The “notice of work completed” is not defined in the SSMA 2015 as a valid application type. For this reason, it MAY fail to trigger the OC’s statutory obligation to initiate the retrospective approval process.
2. Even if the request is garbage and incomplete, it still has to be considered by the SM and the committee because owners have the right to request and be considered.

So what the committee should do in this case?

PS. The letter only lists the date of the work (in the past), the brand of the AC unit, the location as “Kitchen” (Not external wall/façade), the installer’s name, a note that permission was verbally given by the previous SM, and a request for written approval. It does not even acknowledge a breach or a mistake.

IMHO, and I’m not a solicitor, it seems unreasonable that a letter like this can trigger the retrospective approval process, waste time and delay action.

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[Jimmy-T]

I think the committee should ask the strata manager to send a letter to the owner asking them to, within 30 days, either submit an application for retrospective approval via a common property by-law, with an agreement to pay for the by-law and the cost of the meeting at which the application will be considered. Failing that, within the same time frame they should remove the air conditioning unit and repair any damage done.

The CP by-law must contain agreement to maintain the common property to which the air-con unit is attached. If the retrospective by-law is refused, the owner can take action at NCAT to try to have the decision overturned. They will get the chance to present evidence of prior approval at either the EGM or NCAT hearing, if there is one.

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[Flatchatty]

Thank you Jimmy.

This new AC unit affects the external appearance of the building since it is on a façade. Two other owners (not committee members), who know that the installation was unauthorised, are not happy about it, and want it removed, but they avoid to get involved since the offender is a neighbour.

Also, it is already confirmed that there was no prior approval, and the offender’s only defence is that they got verbal permission from the previous SM.

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[Flatchatty]

The AC unit is on a street-visible façade, clearly impacts the aesthetics of the building and sets a bad precedent. Also the offender is a committee member who are required to upheld the by-law, not breach it.

So how offering a CP-by-law option (slow) is a reasonable option? And is there any statutory obligation for the OC to invite a by-law application?

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[Jimmy-T]

Flatchatty wrote:

… the offender is a committee member who are required to upheld the by-law, not breach it.

You have the option to apply to Fair Trading and NCAT for orders under section 238 (a) removing a person from a strata committee or (c) removing one or more of the officers of an owners corporation from office and from the strata committee.

So how offering a CP-by-law option (slow) is a reasonable option?

When you are challenging someone for not following correct procedure, it helps if you follow procedure yourself. I believe the correct procedure is to invite them to either apply for a CP by-law, stressing that approval is not guaranteed, or remove the air-con.

And is there any statutory obligation for the OC to invite a by-law application?

The OC has a statutory obligation to maintain common property. There is a reasonable expectation that they will do this in the most efficient way available. If you know of a quicker, cleaner, less disruptive and less costly way of doing this, by all means suggest it.

In fact, rather than trying to remove the committee member, I would seek mediation at Fair Trading with a view to taking your committee to NCAT under section 232(2) for failure to fulfil their statutory duties.  Either way, the mandatory first step is mediation (which costs nothing) and that is often enough to get things moving but at least is the first step to getting orders at NCAT.

One other thing, reverse cycle air-con is considered a sustainability issue and as such special resolution approval would only require a simple majority at a general meeting.

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Flatchatty

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[Jimmy-T]

Flatchatty wrote:

The SC is not responsible for educating an owner. If the strata manager has advised the offender to submit a retrospective approval application and he decides that his letter is sufficient, then the committee should proceed to vote, refuse the request, and instruct the strata manager to issue a Notice to Comply. If he still refuses to comply, the matter would move to mediation and then NCAT. This would be the fastest path, and it is difficult to see how NCAT would support his position.

I agree.  So is the problem that the committee members are dragging their feet? If so, I reckon a mediation application will get them moving. The committee tells the strata manager what to do, not the other way round, so the committee should issue a notice to comply now and get it over with.

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Flatchatty

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[Flatchatty]

Thank you, Jimmy, for the detailed reply.

Strata committee members must act honestly, fairly, and in compliance with the SSMA 2015 and the scheme’s by-laws. While the offending committee member has clearly failed to meet those obligations, there is no intention to remove him from the committee.

All owners follow the by-laws and seek approval or guidance from the strata manager when required. This new owner joined the committee and acted as though membership allowed him to bypass the rules. When questioned, he provided a minimal explanation and attempted to shift responsibility to a former SM. Given he previously lived in another strata scheme, it’s difficult to accept that he was unaware written approval was required.

Allowing this AC unit to remain would send the wrong message to other owners. It would raise questions about the committee’s integrity and fairness, and suggest that joining the committee gives someone a free pass to ignore strata law and the by-laws.

I understand that reverse-cycle air-conditioning can fall under sustainability items, but in this case the issue isn’t the type of AC unit – it’s the location. The unit was installed on the primary building façade and is clearly visible from the street, which has a significant impact on the external appearance of the building.

The sustainability rule does not protect a bad location or an unauthorised installation. Even with sustainability provisions, installations still need to be in a reasonable and appropriate position. A primary façade installation generally isn’t considered acceptable, so I think that the sustainability rule wouldn’t change how this one is dealt with.

The SC is not responsible for educating an owner. If the strata manager has advised the offender to submit a retrospective approval application and he decides that his letter is sufficient, then the committee should proceed to vote, refuse the request, and instruct the strata manager to issue a Notice to Comply. If he still refuses to comply, the matter would move to mediation and then NCAT. This would be the fastest path, and it is difficult to see how NCAT would support his position.

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