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If the shrubs have been planted on the scheme’s land then I would consider undertaking the following steps. Please note that I am not a lawyer. I live in QLD so my advice is from a QLD perspective.
There is no common law right to a view. However, this position may be varied by a by-law to the contrary.
If I was in your position I would submit a Motion to be included on the Agenda of the next General Meeting that when approved will create a by-law, along with an Explanation to accompany the Motion.
The wording could perhaps go something like this:
Motion
That, in recognition of the value of XXXXX views to the owners of xxxxxxxxx, that plants in the common property garden and lawn areas, and/or plants in any Exclusive Use areas must not interfere with the view of the XXXXX from the window or balcony of any lot or restrict light entering lots. If this Motion is approved then this Motion is to be registered as a by-law for the scheme.
Explanatory Material
The effect of this Motion and subsequent by-law is to ensure that lot owners in the strata scheme xxxxxxxxx do not obstruct the view from, or light to, another lot.
xxxxxxxxx enjoys a view of the XXXXXX that is many cases is uninterrupted by other improvements. One of the attractions of xxxxxxxxxxx is its view, no doubt factored into a lot owner’s decision to purchase here, and the values of the views are, in turn, reflected in the purchase price.
These factors are the rationale for this by-law: to protect the view and market value of the scheme.
A potential purchaser of a lot in xxxxxxxxx would be attracted by the XXXXX view. When undertaking searches before settlement, the purchaser would be comforted in the knowledge that the view is protected by this by-law.
It is not the intention to remove the shrubs but instead, to have them pruned and maintained in such a manner as to not obstruct the views and/or the light.
NB: You would need insert your own scheme’s name into the appropriate xxxxxxxxx and also insert what view you are trying to protect e.g. river, sea, harbour etc in XXXXXXX.
Wim Jansen – Are the native plants that are blocking ocean views growing on the property belonging to the strata scheme or are they growing on a neighbouring property?
Madame_Chaire: The Strata Manager would not be an ‘expert’ on either fire safety or on what the council would require. I would not take the SM’s ‘advice’ as ‘gospel’.
I would have thought that if you are installing an attic conversion in your Lot that any additional fire security measures would probably be for the internals of the Lot and therefore should not be a cost that the OC or their insurance should be responsible for. A smoke alarm, at the very least, will need to be installed on the new level that you are creating.
Perhaps you could contact a structural engineer (which you will probably need for your renovation, in any case) or your building inspector or your council first to ask their opinion on what additional fire safety measures will need to be taken (if any), rather than relying on the ‘advice’ provided by the SM.
Is your attic conversion for use as a storage room or as a living space?
In NSW the regulations are:
- for a storage room with access via a ladder you do not need council approval.
- for a living space with a fixed staircase you will need council approval.
The conversion of attic space in an existing house into a room may be carried out as complying development if the proposal meets the relevant standards set out in the State Policy.
All attic rooms must be contained within the existing roof space and the pitch of the existing roof cannot be changed.
Austman – I understand your comment.
SSMA 2015 states:
153 Owners, occupiers and other persons not to create nuisance(1) An owner, mortgagee or covenant chargee in possession, tenant or occupier of a lot in a strata scheme must not:
(a) use or enjoy the lot, or permit the lot to be used or enjoyed, in a manner or for a purpose that causes a nuisance or hazard to the occupier of any other lot (whether that person is an owner or not), or
The Lot owner located above WMB has clearly breached their statutory duty by causing a nuisance or hazard to WMB from their Lot’s hot water system leak. The Court’s decisions provide authority that occupiers may have a private cause of action to seek damages or other compensation from lot owners who breach the statutory duty in section 153(1)(a) of the Act.
Plumbing is always a tricky issue to deal with with regard to responsibility. The first thing to check is the OC’s insurance policy. Many have comprehensive insurance policies that cover damage to fixtures occurring within units, others do not.
However, the elements of reasonable forseeability and causation are issues that need considering, don’t they? Shouldn’t we also consider whether the Lot owner’s actions, or lack of actions, materially contributed to the outcome?
The owners lack of attention to the maintenance and repair of items that they are responsible for should not be so easily absolved.
There is also the issue of contributory negligence where the owner could bear a proportion of the cost to repair the property.
How is a strata scheme able to ensure that their owners are maintaining those items that the owner’s themselves are responsible for if a claim can be made on the OC’s policy for all damage that results? An owner may not then undertake the correct vigilance.
If that was to be the case then why does the legislation include a HWS as an owner responsibility? Why not have the OC own all of the HWS systems and have the OC check them on a regular basis? Clearly there is some responsibility envisaged for the owner of the Lot.
If an owner failed to replace a battery in a Mildred valve, or failed to check the condition of the HWS that is located in the kitchen cupboard (e.g. a rusted HWS base), or constructed their kitchen in such a manner that made checking the HWS system impossible, then surely the owner should bear all or at least some of the costs of the repair, shouldn’t they?
The OC’s insurance premiums may rise or their excess may rise as a result of a claim, depending upon the insurance cover that has been taken out. This is not a good scenario.
I speak from a Qld perspective and recognise that NSW may be different, but in Qld the body corporate may recover the costs (of the maintenance/repairs), as a debt, from an owner or occupier whose actions cause or contribute to damage or deterioration of the part of the lot.
It is my understanding that in NSW recovery of costs by an OC from a Lot owner can only occur via an order of a Strata Schemes Adjudicator.
Jimmy T wrote an article on 13 AUG 2015 along similar lines to the scenario that we are currently commenting on:
The Lot Owner is responsible for the Hot water service that is exclusive to a lot and is inside a lot. The Lot Owner is responsible for any damage caused by a leaking HWS.
I can’t understand why the strata insurance paid for the repairs to the Lot? Was the Lot owner on the Committee by any chance?
I would question why the OC paid for the repairs to the water affected apartment(s).
FYI – Some internal HWS with a drip tray also have Mildred Valve to help prevent flooding. The Mildred Valves
is a leak-sensing automated shut-Off valve for internally installed hot water systems. The batteries need to be changed to ensure that the valve will be activated when water starts to pool in the tray. Perhaps the Lot owner had not changed the battery. The batteries should be changed once a year.spmanager – Stalking is a criminal offence so be careful how you use this term.
Sending an email to a committee member about the condition of the common property does not satisfy the definition of ‘stalking’ unless it is worded in such a way as to cause a person to fear for their safety. Sending an email to the Committee about the condition of the common property would be a legitimate reason for sending an email.
Just because the recipient may not like or agree with the content of the email does not mean that the content has caused a person to fear for their safety. Lets not become too ‘fragile’ here.
As for when the recipient chooses to open the email and whether this caused an inconvenience …. the opening of emails or texts can be done at a person’s leisure – and does not have to occur when the email is received into the inbox.
FYI
Behaviours that constitute stalking or intimidation
The legislation in NSW has a broad definition of what behaviour may constitute stalking or intimidation, which includes the following:
- Following a person;
- Approaching, watching or frequenting a person’s residence, work, business or a place that a person frequents for a social or leisure activity;
- Conduct that amounts to molestation or harassment of a person;
- Any conduct that causes a reasonable apprehension of injury to a person or to a person with whom he or she has a domestic relationship;
- Trying to contact the person by any means (which includes using text messaging, email, social media, telephone, or other technologically assisted means) which causes the person to fear for their safety; or
- Any conduct that causes a reasonable apprehension of violence or damage to any person or property.
Miranda – Are you able to encourage more owners who share your view to become committee members? This may require you contacting the other owners personally.
All you require is another two owners, who believe in similar things that you do, to become committee members and then your shared and similar views become the majority view on the committee.
Ziggy – How long has the a/c been in place?
If the a/c was placed on common property many years ago, and was known about, and yet nothing was ever done by the body corporate to remedy the situation then the body corporate could now face the issue of acquiescence.
You may need to check the records to make sure that no letters were ever sent to the owner who installed the a/c requesting that the a/c be removed.
The principle of acquiescence essentially denies a person (or body corporate) the right to later object to something that has in fact been in place for some time without any action or complaint having been taken by them, giving rise to an inference of assent.
It could be argued that the Body Corporate did not take steps in a reasonable time to require the removal of the air conditioning.
If this argument is able to be sustained, it may be harsh and unfair to subsequently require the removal. Reasonableness is decided objectively, based on the circumstances.
Miranda – Are the other two committee members valid members? Do both the boyfriend and the girlfriend own separate Lots in your building?
Ziggy – If you are being left off the list when official documents, correspondence etc are circulated then that is a matter of concern. Send an email to the Secretary and the BCM and remind them that you need to be included on their official contact list.
However, if its just committee members privately contacting each other to discuss an issue then there is nothing that you can do about that. It is not unreasonable to have an informal chat via email, just as it is not unreasonable to have an informal chat in the hallway of your building.
Flametree – Bodies Corporate and Committees in QLD do not have a statutory immunity from defamation proceedings and Committee Members do not have a statutory immunity from civil proceedings generally. Therefore, Bodies Corporate and Committees may be liable for defamation.
See below for an explanation of defamation and the committee.
http://www.hbcm.co/defamation-and-personal-liability-of-committee-members/
Who originally installed the glass panels that added extra height to your balustrade – was it you or was it the OC?
The insurance should cover the damage whether it was done by a tenant or an owner.
Any excess could be sheeted home to the landlord lot owner, particularly if his tenants have caused previous insurance claims.
As SH advises, if it all gets nasty and you need to go to the tribunal it is wise to document and photograph as much as you can.
All other damage done by the tenants should be the responsibility of the landlord lot owner. The landlord lot owner is responsible for the damage caused by his tenants, visitors, invitees etc.
There is no ‘contract’ between the OC and the tenant therefore the OC cannot chase the tenant for any damages.
It is the landlord lot owner who has contracted with the OC to abide by the by-laws when he purchased his lot including the responsibility for his tenants, visitors invitees etc.
The tenant then contracts with the landlord to abide by the by-laws when they sign their lease.
If the landlord lot owner has a problem with that after he has paid the OC for the tenant’s damages, then he can always chase the tenants to collect the money that he has paid to the OC on the tenant’s behalf. That is what a bond is for, and that is why there are tenant ‘blacklists’.
In Qld the body corporate has a strict statutory obligation to repair and maintain common property.
From Flametrees’s description of the shared HWS on the common property, the HWS and the pipes appear to be common property.
There is a correct process to go through to get this matter resolved.
It is best to do things correctly from the ‘get go’ as if this matter eventually ends up at QCAT you don’t want it to fail due to a procedure that was not correctly followed.
The Lot owner has an obligation to notify the body corp in writing of any common property and common services that need repairing. It appears that the lot owner has done this. Was the lot owner’s request rejected at a formal committee meeting via a resolution, or in an informal situation?
It is unclear whether the plumber has written a report on the issue or has merely given a verbal assurance that the problem can be fixed.
If nothing has been written then get it all down in writing, including the plumber’s report and quote, and submit it to the body corporate committee ASAP. This is a matter that needs to be approved at a committee meeting or a general meeting.
The committee and the body corporate have a statutory duty to act reasonably in all of the decisions that they make, or do not make.
If a committee meeting has not been scheduled for a few months then the lot owner may need to suggest that a vote outside of a committee meeting be utilised by the committee. Give them a reasonable time frame to have the problem sorted out.
A committee can only authorise a repair up to their allocated spending limit. This spending limit depends upon the number of lots in the scheme.
If the repair costs are over this amount then the spending will need to be authorised by the body corporate at a general meeting. This may take a little time to organise – it is a process that takes a legally mandated amount of time.
The body corporate should probably employ their own expert advice from an independent plumber to verify the advice from the lot owner’s plumber and to verify the quote. It would be reasonable for them to do this.
Depending on the cost of the quote, there may be a cheaper option for the body corp – to pay to have thermostatic mixing valves placed on the individual bathroom taps including showers and baths. This is similar to what is used in retirement villages and schools etc. It is my understanding that is not necessary on kitchen or laundry taps.
If the committee and/or the body corp don’t sort it out within a reasonable amount of time I would advise taking this matter to QCAT.
The following link may help explain what is and what isn’t owner responsibility with regard to hot and cold water:
https://www.qld.gov.au/law/housing-and-neighbours/body-corporate/maintenance/utility#
In my experience most Lots in Qld have an independent hot water system. The HWS is generally located under the kitchen bench, in a laundry, or on a balcony. All of these would be owner responsibility to maintain. These should include a tempering valve, particularly in a newly renovated Lot.
Tempering valve information for Qld:
Tempering valves
In hot water storage systems for residential buildings, hot water must be heated to a minimum of 60° Celsius to prevent the growth of bacteria such as Legionella.
A tempering device ensures that hot water is delivered to taps at a maximum 50° Celsius. This temperature is considered sufficient for domestic hygiene purposes and effectively reduces the risk of scalding-related injuries from hot water use.
A tempering device is required to be fitted to all new and replacement hot water systems. They can be identified by a blue, green, orange (solar systems) or black plastic cap fitted as part of the system’s piping.
A quick internet search on the topic of inconsistent flows of hot and cold water reveals this: One of the most common plumbing configurations, is a trunk and branch system. This is where a larger diameter pipe runs from one end of the building to the other, and smaller diameter pipes branch off to supply rooms or individual fixtures. If any of the branches demands water (you flush the toilet), there is less water available to all the other branches.
I am not a plumber but the following information may assist: Installing a new mixing valve in the shower, can reduce or eliminate the temperature fluctuations. Thermostatic mixing valves automatically balance the amount of hot and cold water being mixed, which will prevent drastic fluctuations in shower temperature. If the cold water flow is reduced (due to a toilet flush), the valve automatically adjusts the amount of hot water being mixed. This keeps the shower temperature more consistent, even when other fixtures are using water.
The lot owner could try installing a new thermostatic mixing valve.
Difference between a tempering valve and a thermostatic mixing valve:
* A tempering valve is a 3-way mixing valve that is temperature actuated and is used to temper a heated water supply by mixing the heated water with cold water to provide heated water at a lower temperature, normally 50deg Celsius at one or more outlet fixtures.
* A thermostatic mixing valve (TMV) is a mixing valve in which the temperature of the water from the mixed water outlet is automatically controlled by a thermostatic element or sensor to a preselected temperature that is suitable for direct contact with the skin.
TMV’s are used to prevent scalding which can be caused by incorrect adjustment or inability to manipulate conventional taps. They are available as built in or exposed wall mounted units and have controls for adjusting the temperature and/or the volume of the water passing through the units.
TMV’s are designed to deliver warm or mixed water, to an even, preset temperature and to compensate for any disturbance of pressure and/or temperature on the hot and cold water inlet services.