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Is the same the case for a retaining wall?
The Dividing Fences Act does not apply to retaining walls, although it may have the same effect.
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If it’s a wall, it should be wholly on the higher land and in your case that is the responsibility of your OC. If it’s on the border, then it’s a fence and I’d guess it’s common property and again the responsibility of the OC.
Not sure about the above statements and would like to see a reference to the relevant regs. Meanwhile have a read of THIS and THIS
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Also, if anyone is in Sydney CBD, I’d love to find a way to work with other Strata committees to help understand other’s costs and plans but also, potentially come together to work with the same suppliers and perhaps negotiate bigger discounts for all using the same people.
The OCN (ocn.org.au) would be a good place to start.
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Here are my non-legal thoughts: gather your evidence, get stat decs from friends who have heard the noise themselves, write a diary of noise events, record any noise that you can, and then go to NCAT for the imposition of fines.
Meanwhile, explain to your “not my problem” neighbours that if you take the OC to NCAT for failing to fulfil their duties, they will be in legal trouble anyway. And if the OC loses, they will all have to pay their share of the OC’s legal costs and you won’t, and they might have to pay your costs too.
That might sharpen their thinking into offering you some support.
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The developer next door can’t or shouldn’t do anything to the wall without your written permission (under the Dividing Fences Act) as your OC and they are joint owners with equal responsibility. Get a strata or property lawyer to send a “Cease and desist” letter ASAP. There is a compromise to be had, obviously, but that won’t happen if you just let them do as they please from the get-go.
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Download a cheap or free voice/noise activated recording app for your phone or computer and send the people upstairs a note telling them that you will be having guests at such and such a time and you would appreciate them keeping the noise down. When they don’t it will be recorded and time-stamped. That should be all the evidence you need for a tribunal. There are a few apps around that will do this for you – one of them is called Snooper but I can’t get on to its website.
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Do you happen to know a great strata manager that works for the owners and not for the chairman? As well as a good strata lawyer?
Our sponsors Strata Choice are our kind of strata manager. As for lawyers, I’d choose Sachs Gerache if you want to negotiate a resolution and David Bannerman if you want a fight. Both are our sponsors, again, but we choose the sponsors because we know and trust them.
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it doesn’t matter if the landlords have a studio or 1 to 3 bedrooms units, it still one vote per unit?
I believe it is but the proxy votes’ unit entitlements still count in a poll vote.
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The limit on proxies has been around for a few years but it was recently extended to include powers of attorney.
Basically any owner can hold a maximum of 1 additional vote for every 20 units in the building. In your case, the chair is entitled to carry only six votes plus their own, making 7.
We had a case reported recently where a strata manager rounded up a bunch of ring-ins who had nothing to do with the scheme and came clutching 42 votes. Luckily the other owners had organised themselves and had one vote more.
If I were you, I might try to blindside this autocrat by quietly organising as many votes as you can without telling them what you are planning. Thenat the meeting have a lawyer or even the strata manager declare the excess proxies invalid under sections 25, 25A and 26 of Schedule 1, Part 4 of the Act. You could also ensure that all proxies were on valid proxy forms and that owners providing them were “financial”.
You can guarantee it will turn nasty so be prepared to tough it out and have your own candidates for the committee ready to take over.
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With little support in the building I have been advised that a tribunal hearing would likely be unsuccessful
By whom? The same strata manager who said theNotice to Comply would stick?
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Praise indeed. Hold the framer – I just tidied up a few minor elements.
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You may find that, having informed the OC, and that august body having decided not to do anything, then tacit permission has been given and, not only that, the default position is that the current OC is responsible for any repairs that may be required on common property. In other words, forget about it.
However, for future reference, here is a compilation of renovation regulations that I put together for ny investment property’s committee.
Minor and Major Renovation Approvals (NSW)
As owners of a unit you may feel that you can make any changes to your property that you wish: this is not the case.
There are areas of your unit that are common property – or adjoin common property – or which have elements, notably waterproofing, that have implications for your neighbours or the whole scheme and therefore have restriction and regulations applied to them.
To complicate matters even further there are three levels of renovation defined in the NSW strata Act each of which requires different levels of approval: cosmetic changes, minor renovations and major renovations affecting common property.
For instance, changes to waterproofed areas are generally considered major renovations and as such require a common property by-law that can only be passed by a super-majority of 75% of owners voting at a general meeting.
Waterproofed areas include but are not limited to:
- All slabs above the basement
- Retaining walls
- Bathrooms floors & walls
- Laundries floors & walls
- Balconies floors, walls & hobs/masonry balustrades
- Lobbies
- Paths
- Stairs
- External podium
To be clear, whenever any part of the building is to be disturbed – even if it is just to drill holes to fix something you wish to add to your property – it is best to check to see if there are waterproofing or common property elements involved.
In the first instance, you can check with your Strata Committee Secretary, the strata manager or a committee member with specific knowledge of the building to see what level of approvals are required.
Major or Minor?
Minor renovations, as defined by NSW strata law (Strata Schemes Management and Strata Regulations Acts) can be approved by the Strata Committee but you still have to submit detailed plans before they can give approval. Approval may be subject to reasonable conditions but may not be unreasonably refused.
Major renovations come under much more stringent rules – not only related to waterproofing – and will require professional certification and warranties, as well as your agreement to take responsibility for ongoing maintenance.
Deciding whether your proposed renovations are minor or major is not a decision you can make for yourself. The strata committee and/or strata manager can offer advice but the latter can’t approve changes without reference to the strata committee or the owners’ corporation in a general meeting.
Requirements for renovation approval (from a building perspective only) include:
- The proposed structure should be, wherever possible, freestanding, and self-supporting without relying on any existing structure and certified by an engineer as such.
- Where the above is unattainable, engineering design and certification must be provided for the fixings and the structure.
- Engineering Certification must be provided for the existing building structure/s being relied upon to support the new structure.
- Waterproofing Application, certification, guarantee, and warranty must be provided for any element of the new structure and/or its fixings, which penetrate a waterproof membrane.
- All works must be carried out by qualified and licenced trades. Details of professional insurances must be provided. Installation Certification to Australian Standards and Building Codes are to be provided upon completion.
All above information should be provided to Strata Manager/Committee to pass onto the Insurer of the Complex so that a record is maintained.
Finally, renovations in any strata scheme are not an area where it’s easier to ask for forgiveness than it is to seek permission. Undertaking renovations without the appropriate approvals could lead to you having to reinstate common property at your own expense – and nobody wants that.
DEFINITIONS (extracted from the NSW Strata Schemes Management Act):
Cosmetic Changes
The Act says owners may carry out cosmetic work to common property without the approval of the owners corporation, including but not limited to:
- installing or replacing hooks, nails or screws for hanging paintings and other things on walls,
- installing or replacing handrails,
- painting,
- filling minor holes and cracks in internal walls,
- laying carpet,
- installing or replacing built-in wardrobes,
- installing or replacing internal blinds and curtains,
- any other work prescribed by NSW regulations.
Minor renovations
The owner of a lot may carry out minor renovations to common property in their lot with the approval of the owners corporation given by resolution at a general meeting. A special resolution authorising the work is not required if the Strata Committee has been delegated to make these decisions on behalf of the Owners Corporation.
The approval may be subject to reasonable conditions imposed by the owners corporation and cannot be unreasonably withheld by the owners corporation.
Minor renovations include but are not limited to:
- renovating a kitchen,
- changing recessed light fittings,
- installing or replacing wood or other hard floors,
- installing or replacing wiring or cabling or power or access points,
- work involving reconfiguring walls,
- any other work prescribed by NSW laws
Before obtaining approval, owners must give written notice of proposed minor renovations to the strata committee, including the following—
- details of the work, including copies of any plans,
- duration and times of the work,
- details of the persons carrying out the work, including qualifications to carry out the work and relevant insurances,
- arrangements to manage any resulting rubbish or debris.
The owner of a lot must ensure that—
- any damage caused to any part of the common property is repaired, and
- the minor renovations and any repairs are carried out in a competent and proper manner.
Minor renovation rules do NOT apply to:
- cosmetic work,
- work involving structural changes,
- work that changes the external appearance of a lot, including the installation of an external access ramp,
- work involving waterproofing,
- work for which consent or another approval is required under any other Act,
- work that is authorised by a by-law made under this Part or a common property rights by-law,
- any other work prescribed by NSW regulations.
Work by owners of lots affecting common property
An owner must not carry out work on the common property unless the owner is authorised to do so—
- under a by-law made under this Part or a common property rights by-law, or
- by an approval of the owners corporation given by special resolution or in any other manner authorised by the by-laws.
UPDATE (July 2025): In NSW changes to common property that involve sustainability measures can be approved by a special by-law requiring only a 51 per cent majority. These would include installation of reverse cycle air-conditioning, double-glazed windows, EV charging and solar panels. Also, applications for common property by-laws that involve sustainability measures can’t be refused on the grounds that they would change the appearance of the building.
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