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Planning approval is one thing. Anyone can pay the application fee and tick the boxes which inform the council that they either own the property or have informed the owner of the property (even if they haven’t).
You’ve just reminded me of a story from years ago about a bloke who, as a joke, when his mate was abroad on an extended holiday, put in a planning application to turn the friend’s house into a pub. Hilarious … until the neighbours got notices from the council about the intended change of use and went collectively ballistic.
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Well, well, well! The city of Chicago has just released 1000 neutered, vaccinated and microchipped feral cats on to its streets, in an effort to deal with major league rat infestation, according to this story.
And here’s the kicker – the cats don’t need to be hungry to be effective. Just having them around scares the rats away. Apparently these untamable street cats faced years in compounds or euthenasia until somebody had the brilliant idea of releasing “working cats”.
Just as well our cities don’t have rat problems … oh, wait a minute!!!
A line in the Crooked Media “What A Day” newsletter that the city is now rounding up coyotes in case of a future cat infestation was a joke, OK?
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Unless the law has changed … the owner of a lot in a registered strata plan who applies to a consent authority for consent to carry out development wholly within the boundaries of that lot is not obliged to obtain and evidence the consent of the body corporate to the lodging of that application.
Well, that was back in 2003, and we know that strata law has changed a lot since then (although those changes may not have affected cases like this one).
Reading the case findings online, I’m struck by the fact that the trial judge chose to dismiss the findings of a previous case in a superior court, Halpin v Sydney City Council (2000).
In the preamble, it is noted:
In Halpin v Sydney City Council, Cowdroy J held that the owners corporation for a strata scheme is the owner which, pursuant to cl 49 of the EPA Regulation, must make or consent to a development application in relation to a lot in the strata plan, and that in the absence of the consent of the owners corporation a development application made by the registered proprietor of a lot in the strata plan does not comply with s 78A(1) of the EPA Act.
Now, I’m no lawyer but it seems to me that the judge in this case decided that there was an error in judgement in the Halpin case and therefore its findings didn’t stand as an effective precedent in this case. Interestingly, lawyers from both sides went into the case saying they stood by the Halpin findings – it was the judge who had a problem with them.
And ultimately, as the Hood reported, it was decided that the applicant did not need to provide permission from the owners corporation when they were applying for a DA to change their lot. It also seemed to establish that OCs should approve any “lawful” applications.
However, there is a big difference between “must” and “should”. The ruling didn’t say that councils should ignore the wishes of an owners corporation when it came to the DA.
Most councils have planning laws specific to their areas. City of Sydney, which has the highest concentration of apartments in Australia says on its Planning Portal website: “A development application is a formal request to build or modify your home or business site. Most development in the City of Sydney’s area requires approval.”
The website goes on to say:
When assessing an application, we consider: relevant planning controls and conditions; likely impacts of the development; suitability of the site; any comments and objections; the public interest.
Elsewhere on the website it explains that most small developments are assessed by its planning department employees. It’s only the really major or significant ones that go to the planning committee.
What this all means is that, even if approval by the strata committee is not essential it could be critical if the council planning department is made aware of it.
Take, for instance, a plan to renovate an apartment and change the room configuration which would result in the bathroom shifting so that it was above and below other apartments’ bedrooms. Most apartment reconfigurations require Development Approval from their local councils.
Let’s assume that the renovator had complied with all the common property bylaws in terms of waterproofing and structure, so it was basically “lawful”.
However, the strata committee might require a guarantee of improved soundproofing in the relocated bathroom to reduce noise disturbance at night. The renovator refuses and toddles off to the council with a DA application which, on the face of it, has ticked all the boxes but failed to get OC approval.
Alerted by the committee to their concerns, you’d like to think a savvy council employee would insist on that being addressed before they approved the DA (which would be required if the rooms were being reconfigured).
However, the problem seems to be that not all councils are good at letting apartment owners and committees know about applications that have been made for changes in their buildings.
On several occasions in the past few years, I have been notified of proposed changes to a cafe or bar several streets away but heard nothing from the council about very substantial changes to apartments in my own block. It’s all about communication or the lack of it.
So both The Hood and Scotland X are right. If the law hasn’t changed, then “lawful” renovations within the bounds of an apartment, which don’t affect common property, possibly don’t require OC approval.
However, if a strata committee refuses approval on reasonable grounds – and the planning department is made aware of it – it could make all the difference between a DA being approved or denied.
There is another aspect to this. If a judge in a lower court can choose to reject the ruling of a superior body, then everything is open to interpretation. Also, councils can choose which of their own by-laws they want to enforce.
For example, I believe most short-term lets in most apartment buildings in Sydney are still in breach of planning laws – the new short-term letting laws are still on hold – but try getting your local council to enforce them and you could spend a long and frustrating time getting nowhere.
Once again, I am not a lawyer so if you are wrestling with these issues, you should approach someone who is.
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Reading this thread, just remembered myself being in the same situation 3 years ago. I also tried to fix the issue with the insurance company but just wasted time. All the same, I had to solve the problem by my means.
So please tell us how you fixed it the last time … assuming you did.
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I’d suggest, with my limited knowledge that if you are not up to date, you cannot vote… that’s it.
Except, as I explain below, on the rare occasions when a unanimous vote is required, such as when the owners corporation wants to return excess funds to owners.
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The problem is, he manages several apartments in our building, so he has security swipes for them, and uses them to conduct his business, personal or otherwise. Is it possible to restrict him in any way?
The committee should conduct an electronic swipe audit (which all apartment blocks should do periodically) then cancel the swipes for everyone except bona fide residents. The law demands that real estate agents make arrangements with tenants before they visit occupied properties so he really doesn’t need to have multiple swipes. If he objects tell him that having so many swipes in the possession of one person undermines security in the building.
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The cat-feeder is not a resident. A gang of strangers organized over a private Facebook group to take turns dropping-off cat-food at pre-selected spots in several suburbs. They listen to nobody and are very aggressive.
A “gang”? Really? Trust me, immoderate language undermines your argument.
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I also wonder what the local council might say about cheap windows being installed in an old building.
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I understand the need to obtain permission, but the passing of the bylaw is permission. It would then be the owners responsibility to ensure that the same permission is obtained from their guests, I don’t see why the OC would require individual proof of permission from each guest or tenant etc.Passing a by-law is not the same as getting permission. Tenants aren’t part of the process of forming and passing by-laws so how can they be said to have given permission. There is no by-law in NSW allowing wheel clamping that will stand up to challenge at the Tribunal, for reasons stated previously – it would be superseded by a superior law.
And as far as the acceptance of the by-law being “permission”, I have heard of cases of by-law breaches being overturned at the Tribunal because the tenant said they hadn’t read the by-law even though the warning notice (Notice To Comply) had the by-law printed on it.I’m also really confused how this bylaw prevents any other from using any rental agency of their choice.
If the in-house rental agent insists that the Airbnb guests have to sign this, but (privately) his guests don’t, how do you think that would affect Airbnb trade? The rental agent has a lot more power and influence than individual hosts simply because they have access to the committe and building management.
If the OP is right, this is a deterrent to potential guests to force the owners to let their properties through the in-house agent.
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By-laws can’t operate if they contradict or contravene a superior law (and all laws are superior).
Section 651b of the NSW Local Government Act says this:
Immobilisation of vehicles(1) A person must not immobilise a vehicle owned by any other person by means of wheel clamps, or by means of any other device prescribed by the regulations, except with the consent of that other person. Maximum penalty—20 penalty units.
FYI, 20 penalty units is $2200 .So this is why the owners corp is trying to push through a by-law that requires lot owners to demand that their tenants sign an agreement that they will allow the OC to clamp their car. And it seems it is intended to restrict the opportunities for independent owners to let their properties without using the in-house agent.So, to backtrack slightly on my previous comment that owners corporations can set by-laws with reasonable conditions, this proposed by-law would seem to be “harsh, unconscionable and/or oppressive”.It would also seem to contravene the provision in the act that “no by-law is capable of operating to prohibit or restrict the devolution of a lot or a transfer, lease, mortgage or other dealing relating to a lot.”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.
Could you please assist me with a few questions that I have in relation to our building’s impending replacement of the metal window frames and metal slide doors.
Its a typical walk-in, walk-up building of 25 units. Built presumably in the very early ’70’s. It has the original window frames and balcony slide doors.
My first question is, in a building of that vintage, are you sure the windows and sliding doors are common property? That’s not normally the case, unless your block has passed a by-law assuming ownership of the widows and doors, some time in the past.
However, even they aren’t common property, there’s a lot to be said for as many owners as possible getting their windows fixed at the same time for uniformity of design and savings brought about by economies of scale and shared ancillary costs (like scaffolding).
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As to other by laws, earlier I wrote that I understood from a lawyer last year that an OC or SC is not compelled to enforce a by law or by laws if it so chooses.
But then you write:
The strata committee must enforce the by-laws if they “reasonably believe” there has been a breach. The committee or body corporate may have to demonstrate that it is reasonable in the circumstances of the alleged breach to not enforce the by-laws.
That confirms that the strata scheme is expected to enforce by-laws unless it believes no breach has occured, and confirms what I wrote earlier.
While there is no penalty for the strata committee failing to enforce by-laws, they are still expected to do so and can be ordered to do so by the Tribunal.
Of course strata committees aren’t expected to enforce by-laws when they don’t think breaches have occured, and no, there are no StrataKops who will arrest them for failure to enforce by-laws where breaches have occured.
But there is an expectation that they will pursue breaches of by-laws and clear avenues for owners to take the unwilling strata committees to the tribunal to seek orders when they don’t.
Furthermore, their failure to enforce by-laws would be prettty damning evidence in a case brough for removal of strata committee members or the appointment of a compulsory strata manager.
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This week I received an email from the managing agent informing me that the AGM would be held in July. I quickly wrote back asking “why in July when we had the last one in Nov”?
The law currently allowes for one AGM per financial year – it no longer had to aoccur on or near the last anniversary. In extreme circumstances, theoretically your next AGM (after this one) could feasibly be in June 2023.
But that’s hypothetical. It may be that your committee has some post-lockdown housekeeping to do or just wants to get the schedule more closely related to the financial year.
Or maybe the office-bearers want to take a holiday in the summer and reasonably assume that many other residents would prefer to do so too.
The most common complaints in this forum about the timing of AGMs is their infrequency.
At least you have been given plenty of advanced warning and unless there is something sinister in the offing, I can’t really see what the problem is, apart from the lack of a note from the strata manager or committee simply explaining why the change is being made.
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Thank you. How do I find out if I CAN actually ban him from floors he doesn’t live on (apart from floors where he manages apartments)?
Tha committee should instruct the strata manager to limit the floors to which he has access to those where he owns property. If he needs swipe keys to access the other floors he should apply and pay for them accordingly.
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