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If I was in your shoes … Before you take formal possession of your apartment you should obtain an independent professional assessment of the quality and fitness-for-purpose of building workmanship and materials. I would make sure that this assessment also includes the common property. Owners should act before the developer has totally left the scene.
Roger – Can you ask the Strata manager how much money is in the Sinking Fund, don’t just take their word for it that they do not have sufficient funds? Also, ask how much the repairs will cost?
In my interpretation the OC has a strict duty to maintain and repair the common property. The OC should make the repairs FIRST and then chase the responsibility for fault costs after that. It is unreasonable to expect that maintenance is delayed until responsibility or fault is determined as this could take months. If money needs to be raised by the OC then a Special Levy is an option.
In my opinion the SC has done the correct thing, though I am sure that some may disagree. The fact that the cats have been at the scheme for several years, albeit without approval but possibly with knowledge of the SC could indicate “tacit acquiescence” on the part of the SC. It would be unreasonable to request the removal of the cats after this length of time.
Pet owners generally fight hard to keep their pets and the SC decision may have been an attempt to avoid fighting a time consuming losing battle.
I my opinion there is nothing that you could do or possibly should do. There is a difference between public and private places.
My reasons for the above comment:
(1) This may be a phurffy designed to dissuade the developer from continuing with the development.
(2) Is the naturist an owner or a tenant? In any case, the naturist will not be living next door forever i.e. the bricks and mortar of the development will outlast the naturist.
(3) A non naturist neighbour may at any time be replaced by a naturist i.e. you cannot guarantee that you will forever have neighbours of your choosing.
(4) If a buyer does not approve of the view of the naturist then they can install curtains.
(5) Being a naturist in their own back yard is not a criminal offence but if they can be seen by neighbours then the neighbours can complain and request an order from the court that they stop.
(6) There are laws against indecency but the naturist would have to cross the line to be deemed to be have acted indecently.
https://www.austlii.edu.au/au/legis/nsw/consol_act/ca190082/s61n.html
and
https://www.austlii.edu.au/au/legis/nsw/consol_act/soa1988189/s5.html
fred11 – As far as I can tell there is no such thing as a Code of Conduct in the NSW legislation. The following may be of some assistance.
SSMA 2015
37 Duty of members of strata committee
It is the duty of each member of a strata committee of an owners corporation to carry out his or her functions for the benefit, so far as practicable, of the owners corporation and with due care and diligence.
Note : Section 260 provides protection from personal liability for members of strata committees who act in good faith.
The functions of the Secretary under this Act include the following:
(a) investigating and carrying out research into matters relating to or affecting strata schemes,
(b) investigating and attempting to resolve complaints and disputes relating to strata schemes and taking any action that the Secretary thinks appropriate,
(c) prosecuting any offence established by or under this Act,
(d) providing information to owners or occupiers of lots in strata schemes, owners corporations, lessors of leasehold strata schemes, strata managing agents and the public about this Act and the services provided by the Secretary and the Tribunal,
(e) investigating and reporting on any matters, or making inquiries in relation to any matters, referred to the Secretary by the Minister in connection with this Act.
There is a Code of Conduct for Committees in QLD. See here:
https://www.mystrata.com/doc-store/Code_of_Conduct_for_Committees_Aug_07.pdf
and here:
https://www.austlii.edu.au/au/legis/qld/consol_act/bcacma1997388/sch1a.html
I can understand your concerns JT but these two videos contain a locking mechanism for sliding windows that appears to be similar in type to those being installed in FNL’s scheme. They too can be removed and ‘thrown in drawer’ after removal with an Allen key. These types of window limiters appear to be sanctioned by Fair Trading as the videos are on their web site.
I may be wrong but I think that the Office of Fair Trading are more concerned that a child cannot easily remove the lock once it is installed, hence the need for a key or Allen key to remove or override the lock.
https://youtu.be/xLlINRKbnVY?list=UU8O15SNsdBG_suQ0M3oAQkQ
https://youtu.be/5yTUUWp4n3o?list=UU8O15SNsdBG_suQ0M3oAQkQ
It is a bit confusing though.
I would probably think that the erection of signs and advertising material on public or private land for the primary purpose of advertising or promotion, would constitute development activity under the Environment Planning and Assessment Act 1979. Development consent for this activity should be sought. If not then fairly hefty fines can be imposed.
Contact your local council. If you state your concerns …. the signs are a nuisance, a hazard, a hazardous distraction to drivers, an obstruction, are blocking access etc etc and take photos of the signs then the Council should be able to issue infringement notices to those businesses.
I concur with JT that the NSWFB do not recommend the installation of security screen doors, and that the purpose of the security screen door that VW proposes i.e. ventilation, would be deemed to be a non compliant purpose for local Councils.
However, if VW was to assure the OC that he/she would follow the information guide from NSWFB and not leave the door open for ventilation purposes and install a single locking door then the OC should not reasonably be able to refuse the request.
It appears that precedents have been set in the building if other security doors are already in existence in the apartment buildings. If the issue of security doors and fire safety was of great concern to the OC then I would have thought that it would be mandatory for all other security doors to be removed.
All that being said, fire safety should be a top priority, as JT has alluded to.
It is my understanding that single locking security screen doors are OK. Please read the following document and pass it on to your OC.
What do your by-laws say about front door locks? Some strata schemes have by-laws which make it an owner’s responsibility to maintain and repair, but this is generally uncommon.
Usually the original lock installed on the front door at the date of registration of the strata plan is common property.
It could be argued by an OC that if an owner or occupier decided to replace a fully functional lock because they wanted a safer lock then the new lock would become the owner’s responsibility and the owner’s personal property and form part of their lot. You could make this quite clear when you apply to have the door hardware changed.
I would be careful not to change the lock to something that is too radically different in appearance from the existing hardware or you may breach the Appearance of a Lot by-law if you have one.
In the interim I don’t believe that it would be unreasonable for the Committee to have the lock changed on the Plant Room. The Lot Owners do not have an automatic right to a key to this room. A sign could be placed on the door stating ‘Plant Room – Authorised Acess Only’.
The gym owner will then need to approach the Committee to gain access to his gear. The Committee could then state that due to safety concerns, breaches of the Act, breaches of building codes, and breaches of by-laws (nuisance, damage to common property etc etc) that the gym equipment must be removed immediately. This could be done under the supervision of one or more of the Committee members.
My interpretation is that the Plant Room is common property however that does not mean that all Lot owners have access to it. Your building plan would probably have this area designated as a Plant Room. To change the use of this area to a gym would probably breach the development consent, building regulations and the planning regulations. Have you sought advice from your local Council?
It is not unreasonable to place restrictions on access to some common property if that area of the common property contains services. Clearly your safety audit has deemed the use of this space for a gym to be a hazard.
The Motion that the gym equipment owner has proposed can be ruled Out of Order if it breaches regulations.
In addition to breaches of the NSW planning regulations in my opinion the gym equipment owner has breached SSMA 2015 [s108(2)].
108 Changes to common property
(1) Procedure for authorising changes to common property An owners corporation or an owner of a lot in a strata scheme may add to the common property, alter the common property or erect a new structure on common property for the purpose of improving or enhancing the common property.
(2) Any such action may be taken by the owners corporation or owner only if a special resolution has first been passed by the owners corporation that specifically authorises the taking of the particular action proposed.
I must admit that at first I too thought that the new window laws would permanently mandate a 12.5 mm opening. I am very pleased that this is not the case.
Perhaps the window installers that you have approached also had the same interpretation and have bulk bought these permanent locks which they are now trying to off load on to schemes that are not so knowledgeable.
Would it be worth your scheme buying good quality locks that suit your purpose and then pay a certified trades person to install the locks that your scheme has purchased? Or you could just keep on looking for a company that has actually understood the ramifications of the new laws.
Chomleychum – It is difficult to assess whether the time taken has been unreasonably long without knowing all of the facts.
How was your first pet approval obtained – was it by a Committee meeting or was it by a General Meeting? Sometimes these matters are dealt with at a Committee meeting and not a General Meeting. The Committee has the authority to act on behalf of the OC in various types of matters. A Committee meeting may not have occurred within the 19 day time frame.To my knowledge there is no ability in the NSW Legislation to permit voting outside of a Committee meeting, as there is in QLD Legislation – but I may be wrong.
How long did your previous pet approval take?
If I was in your position I would send an email to the Secretary of the OC via the Strata Manager outlining your need for a hasty decision and specify a date that you expect a written reply by. Follow this up with a letter. Each request is treated on a case by case basis. Note that I wrote “reply” not “decision”. Include in this letter that you intend to exercise your right to take this issue to Mediation if necessary.
This may be your only option if you cannot wait for 4 months for a decision. You have applied for a pet under the existing By-laws therefore it is my assessment that your matter should be dealt with under the existing By-laws. To refuse a pet based on assumption that a By-law will possibly change does not seem reasonable to me.
Lawof the Land – In my opinion the short answer is ‘Yes’. The change of material is an improvement rather than a repair.
If it is not already too late for you to do this and the additional expense of the colour bond slatted material is particularly concerning to you then you can submit a Motion yourself at the next AGM with quotes for repair of the existing material, repaint, and re-installation of the wooden lattice fencing back to its original position. This is assuming that the existing fencing material has not fallen into such disrepair that it is irreparable.
You could ask your Strata Manager to help you draft such a Motion. There are tips to writing Motions available on the internet if the Strata manager is unhelpful.
Usually the EC obtains quotes for Common Property repairs but being that they are probably on the side of the ‘fence replacer’ then they would probably not be interested in obtaining quotes for a simple repair. But there is nothing preventing you from obtaining quotes for this work.
Anyone who is entitled to vote at a general meeting can ask for a motion to be put to a general meeting. Written notice must be given to the secretary who must put the motion on the agenda for the next general meeting. The written notice must:
(1) set out the motion, and (2) name the owner who made it, and (3) have an explanatory note of up to 300 words.
The OC can decide your Motion by a simple majority at the next AGM.
The same suggested process to obtain quotes could be worked through for the front gates. I would probably treat the rear courtyard and the front gates as two separate Motion items to enable each to ‘stand’ or ‘fall’ independently.
Your Motions may be defeated at the AGM and the OC may decide to proceed with the more expensive ‘improvement’ but at least you would have tried.
If you are too late to submit a Motion and the Agenda has already been set then the chairperson can rule a motion as “out of order” at the General Meeting itself if the motion conflicts with the Act, is unlawful or unenforceable. A Motion that does not clearly state that a special resolution is required would probably be unlawful. You can raise your concerns at the AGM itself or prior to it.
See here for a summary of The Owners Strata Plan 50276 v Thoo [2013] NSWCA 270 that you might find helpful and interesting. A full reading of the actual case would be even more so:
https://www.cbp.com.au/insights/2013/october/owners-corporation-has-duty-to-maintain-and-repair