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In my opinion this by-law is largely unnecessary. These issues are mostly already covered in SSMA 2015 and SSMR 2016:
NSW SSMA 2015 Section 118: Window Safety Devices
NSW SSMA 2015 Schedule 3: Part 13 – Window Safety Devices Installation Deadline
SSMR 2016 Regulation 30: Window Safety Devices
SSMR 2010 Regulation 31: Notification by owners of Window Safety Devices
An occupant cannot change the common property i.e. the common property window locks without authorisation from the OC.
https://www.austlii.edu.au/au/legis/nsw/consol_act/ssma2015242/s108.html
An occupant cannot damage common property. This rule is generally covered in the By-laws.
The refusal by the Body Corporate of a request for the installation of plantation shutters has been deemed to be unreasonable by QCAT in QLD. The Body Corporate claim was rejected as being “frivolous, vexatious, misconceived and without substance”.
QLD is clearly more laid back about these types of internal decorating decisions, and rightly so.
I am just wondering whether the SM Contract lists these fees or whether they are ‘made up’ by the SM to suit both the occasion and their opinions of the person seeking the access. Not all SMs charge a fee for this type of access. There is no requirement under the Act to charge a fee.
https://www.austlii.edu.au/au/legis/wa/consol_act/sta1985173/s43.html
If there is nothing in the Contract then perhaps your OC can ask the SM to justify the fees that they are charging and make this transparent via a Motion at a General Meeting.
I personally can’t see why extra fees are being charged for extra time spent looking over the records? It is your time – not theirs.
Whenever I have searched records the records have all been dumped on a desk somewhere by a member of staff and it was up to me to sort through them all, without any assistance being provided by the SM staff. Whether a person spends a long time or a short time looking at the records should not matter at all to the SM.
If the SM becomes belligerent about this access then there might be a case for removing them at the next General Meeting and seeking out a friendlier company to deal with.
Rather than writing copious notes at the SM’s office perhaps you can take a photo of the docs with your smart phone and do the bulk of your work at home.
Your Chairperson should not be dictating either the actions or lack of actions that are taken by your Committee, or your OC. Perhaps the Chairperson does not deserve to keep his/her position at the next general meeting!
Here is some information based on material provided on the Office of Fair Trading web site:
If an owner or resident breaches a by-law, the strata committee can first contact the resident to advise of the breach, and ask that they stop the conduct that is causing the breach. Your committee appears to have complied with this step.
If it continues, the owners corporation can serve a ‘Notice to Comply with a By-Law’ on the person who is breaching it. This notice advises the resident of the breach and asks for the conduct to cease immediately. The notice can be a letter or email and must include the details of the by-law that has allegedly been breached. A copy of a Notice to Comply with a By-Law is linked below.
The notice can’t be given without a majority vote at a meeting of the owners (i.e. a general meeting). However, the owners corporation can delegate their responsibility for issuing notices to comply to the strata committee or the strata managing agent. A notice must be issued before any further action can be taken to enforce the by-laws.
https://www.fairtrading.nsw.gov.au/biz_res/ftweb/pdfs/About_us/Forms/Notice_to_comply.pdf
Some questions for you:
1. Has the power to issue a Notice to Comply with a By-Law been delegated to the strata committee or the strata manager? If not then you can raise a Motion at the next general meeting proposing that a Notice to Comply be issues to the owner who is parking illegally on the common property and causing a nuisance.
2. Is the owner parking in a visitor car space or are they parking in an area that is not designated for parking?
The answer to these questions will determine (a) how you proceed with this issue, and (b) what reasons are written on the Notice to Comply.
The owners corporation may apply to the NSW Civil and Administrative Tribunal (Tribunal) if a notice to comply has been issued and the conduct continues. If the Tribunal is satisfied that there has been a breach of a by-law and the notice was given validly they can issue a penalty of up to $1,100 .
Dingo – I am making the assumption that you are planning to install plantation shutters internally in your apartment. Is this correct?
What do your by-laws say about window coverings and the colour of window coverings? If they say nothing then do not ask for approval to put them up.
Just do it.
Take a look around your scheme. Do other owners have slatted blinds or plantation shutters? A plantation shutter is similar in external appearance to a slatted blind so if a slatted blind is OK then so should a plantation shutter be OK.
clement – Have any other owners placed an a/c on their balcony? If so you may be able to copy their common property by-law.
I haven’t personally seen this type of by-law as I live in QLD and these types of by-laws are not required.
I don’t think that you would need to specify how the work is to be carried out, except to say that it will be carried out by a qualified a/c installer.
You may need to include the following information in your Special Resolution Motion and/or your common property rights by-law:
- Location of split-system or inverter split-system
unit. - Specific manufacturer, model, size and colour.
- Your agreement not to produce unreasonable level of noise.
- Your agreement that the a/c must be of an appearance in keeping with the rest of the scheme.
- Location of air conditioning compressor and dripper.
- Installed by a qualified installer.
- Your consent to maintain that part of the common property wall to which the a/c is attached, and the a/c unit itself.
- Your consent to the by-law.
It is my understanding that the common property by-laws for the renovation of a specific Lot (including all of its conditions) runs with the property and binds all of the subsequent owners of that Lot. SSMA 2015 states:
135 Requirement to comply with by-laws
(1) The by-laws for a strata scheme bind the owners corporation and the owners of lots in the strata scheme and any mortgagee or covenant chargee in possession, or tenant or occupier, of a lot to the same extent as if the by-laws:
(a) had been signed and sealed by the owners corporation and each owner and each such mortgagee, covenant chargee, tenant and occupier, and
(b) contained mutual covenants to observe and perform all the provisions of the by-laws.
(2) There is an implied covenant by the tenant of a lot or common property to comply with the by-laws for the strata scheme.
Note : The effect of having been taken to have signed and sealed a by-law is that the person is always taken to have known about it.
Your floating floor installer will have a better idea on how to prevent noise transference through the walls so it would be best to ask them. I would have thought that an adequate gap between the flooring and the wall should be enough to prevent sound from the floor being transferred through the wall.
Whether a floor will create a lateral noise nuisance can only be properly assessed after the flooring has been laid.
Your SM is being unreasonably overly prescriptive in my opinion. It is not the responsibility of the SM to set the rules in your building. If the floating floor is laid by a competent trades person then lateral noise transference should not be a problem.
In your application you could add this statement: that should it become apparent that the floating flooring unreasonably interferes with the ‘peaceful enjoyment of any other lot’, that you will pay for the complete removal of the hard floor and the installation of carpet or a satisfactorily insulated hard floor.
The onus would then be upon the person who is affected by the issue to prove that the interference from your floating floor is ‘unreasonable’, but only after the flooring has been laid.
Dingo – The OC cannot unreasonably reject your request for the waterproofing of your bathroom. You may appeal to the Tribunal (NCAT) if the owners corporation unreasonably refuses to approve the work or imposes unreasonable conditions.
I wouldn’t concern yourself too much about the OC refusing your request for waterproofing. This is unlikely to happen if you fulfill your obligations under the Act , in particular that you would comply with conditions suggested in
The new rules for renovations to a strata property #3 – Major work
for waterproofing, which are contained in the following link:
dingo – The magnesite coating installed in buildings in the 1960s and 1970s was mainly used as a levelling compound to provide an adequate level surface to the floor. It is a cork type material which is soft and provides a softer finish to the floor. Magnesite was superseded by the more recent improved carpet underlays.
Magnesite is a type of acoustic material.
If NCAT was to receive a request from another Lot owner for an Order for the removal of your floating flooring due to unreasonable interference with the quiet enjoyment of their Lot then this would be difficult for the person seeking the Order to prove.
Multi-storey noise testing generally involves the site testing of a flooring system in situ. It involves a measurement of noise transfer from an upper floor to a lower floor (receiving room). A standardised “tapping” machine is installed in the upper room, and sensitive listening equipment is used on the receiving room to measure the effective noise reduction.
A ‘tap’ test would not be relevant to your situation as you are on the ground floor with no one living below you.
Dingo – I understand and empathize with you and your point about acoustic underlay and a ground floor apartment. I too have a ground floor apartment which I have approval to renovate with a timber flooring. My scheme’s by laws are sensible. They have relaxed the flooring by-law conditions for only the ground floor apartment flooring due to there being no apartments underneath. All other apartments except ground floor apartments floors must have carpet in bedrooms and must conduct acoustic tests on their flooring.
My ceilings are ‘popcorn’ ceilings. What are yours?
Perhaps your scheme too can also see the sense in not requiring the same level of acoustic underlay for the ground floor apartments as those on the floors above the ground floor. It would be difficult for anyone to mount an argument that your flooring is causing a nuisance or is interfering unreasonably with the enjoyment of their apartment if you have no one living below you.
In your situation, if there is no by law about acoustic underlay, and the Act does not specify a particular type of acoustic underlay, then I would not feel compelled to use the ‘gold standard’ underlay. I wouldn’t use the cheapest underlay either but would use a mid priced underlay. A good acoustic underlay rather than the best acoustic underlay should suffice in your situation.
You could argue that being a ground floor apartment with no apartments underneath makes it unreasonable for you to be compelled to use ‘gold standard’ underlay.
Just because there are no by-laws does not mean that you have no obligations. These obligations are contained within the SSMA 2015, mostly contained within [s109 – 110].
https://www.austlii.edu.au/au/legis/nsw/consol_act/ssma2015242/index.html#s108
The committee can only approve certain types of renovations if they have been delegated this power by the OC under a by-law. Ask your SM whether the committee have been delegated this power.
Some of your scope of work will not be able to be approved by the Committee regardless of whether or not the committee has been delegated this power. The items not permitted to be approved via the delegated power must be approved at a General Meeting.
It would be unreasonable for the OC to demand an extremely particularised scope of work i.e. types of fixtures and fittings, except for the flooring and the acoustic underlay.
The following information may be applicable for your renovation:
A kitchen renovations with appliances remaining in the same location now only requires an Ordinary resolution at a General Meeting and no by-law (and can be decided by strata committee if power delegated (s110(6)(b)) under a by-law).
A kitchen renovation with exhaust or plumbing changing requires an Ordinary resolution at a General Meeting and cannot be approved by the committee.
A bathroom renovation with no change to waterproofing e.g. changing vanity and shower screen requires an Ordinary resolution only at a General Meeting. A Special resolution and by-law is required if there is a change to waterproofing.
Installation or replacing wood or other hard floors requires an Ordinary resolution only (and can be decided by strata committee if power has been delegated under by-laws (s110(6)).
NB: A bead of silicone is not the only way to prevent lateral noise transference. There are other options worth exploring. A good acoustic underlay will prevent the possibility of you being ordered to rip up your flooring at a future time if it is causing a nuisance to your neighbours and is unreasonably interfering with the quiet enjoyment of their Lots.
Work involving reconfiguring of walls requires an Ordinary resolution only (and can be decided by strata committee if power delegated under by-laws (s110(6)) (except if structural walls).
Installation of bathroom exhaust fan requires an Ordinary resolution only (and can be decided by strata committee if power delegated under by-laws (s110(6)) (except if structural walls).
The following work requires a Special resolution at a general Meeting under [s108(2)]:
- structural work (internal walls and making openings in structural walls for exhaust fans and air conditioning);
- work changing the external appearance (pergolas, awnings and possibly solar panels and skylights);
- work involving waterproofing (most likely in waterproofing of bathrooms)
https://dealawyers.com.au/works-works-by-laws-under-the-the-strata-schemes-management-act-2015/
Am I missing something? Why is the SM making this decision? I would have thought that this type of decision and opinion is outside of his job description.
A draft by law is not a resolved by law, is it?
Surely it would be the responsibility of the insurance company to decide whether they will provide cover for short term letting within the original contract. If an extra premium is required then it would be the responsibility of the OC to decide whether to pay the extra premium or not. This decision would be made at a General Meeting. None of these actions are the SM’s responsibility to undertake or to determine.
clement – Not all by-laws that have been correctly made are actually legal. There are sections in the Act which enable these types of by-laws to be overturned by a Tribunal Order.
The OC can pass a by-law delegating approval power to a strata committee under [s110(1)] for minor renovations. However some items are excluded from this delegated power.
Certain types of works that cannot be delegated to the strata committee to approve are:
“(a) work that consists of cosmetic work for the purposes of section 109,
(b) work involving structural changes,
(c) work that changes the external appearance of a lot, including the installation of an external access ramp,
(d) work involving waterproofing,
(e) work for which consent or another approval is required under any other Act,
(f) work that is authorised by a by-law made under this Part or a common property rights by-law,
(g) any other work prescribed by the regulations for the purposes of this subsection.”
The above renovations still require OC approval rather than strata committee approval.
In my opinion if an air conditioner is to be installed in a structural wall or on common property then it would require OC approval rather than committee approval.
The Owner should be contacted about the names of the Tenants. The Owner has certain obligations under [s258] to notify the OC about the identity of the Tenants and any sub leases. The Owner may be fined if these obligations are not met.
The meaning of “lessor” of a leasehold strata scheme means the person who holds the fee simple in the lots and common property in the scheme.
258 Tenancy notice to be given to owners corporation of leases or subleases
(1) If a lot is leased, the lessor must give notice of the lease, in accordance with this section, to the owners corporation not later than 14 days after the commencement of the lease.
Maximum penalty: 5 penalty units.
(2) If a lot is subleased, the sub-lessor must give notice of the sublease, in accordance with this section, to the owners corporation not later than 14 days after the commencement of the sublease.
Maximum penalty: 5 penalty units.
(3) If a lease or sublease of a lot is assigned, the assignor must give notice of the assignment, in accordance with this section, to the owners corporation not later than 14 days after the execution of the assignment.
Maximum penalty: 5 penalty units.
(4) The notice must be in writing and specify:
(a) the name of the tenant and an address for service of the tenant, and
(b) the date of commencement or assignment of the lease or sublease, as the case requires, and
(c) the name of any agent acting for the owner in respect of the lease or sublease.
Note : An address for service of notices may be an Australian postal address or other electronic address, including an email address (see section 261).
(5) This section does not apply to the lease of a lot by the lessor of a strata leasehold scheme to a lessee who is the owner of a lot.
(6) A notice under this section is to be given to the original owner if it is given during the initial period of the owners corporation for a strata scheme.
I agree with JT. I wouldn’t recommend that the OC pay for the Tenant’s damage to Common Property. Would this be setting a precedent? It will be on the Record as it will need approval at a General Meeting.
What is going to happen next time that a Tenant causes damage – will the OC continue to wear the cost?
If the Owners like the Tenant and want to help the Tenant then they could each perhaps contribute personally to the Tenant rather than have this be an OC decision. That will avoid any expectation that the OC will continue to pay for future Tenant damages.
- Location of split-system or inverter split-system