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The Schedule 1 By-Law that the Executive Committee’s (E/C) relying upon is #17 which states that “the Owner or Occupier of a lot must not, without the written consent of the Owners Corporation, maintain within the lot anything visible from outside the lot that, viewed from outside the lot, is not in keeping with the rest of the building”.
The intent of By-Law 17 (in 1996) was to manage situations such as where residents hung brightly coloured curtains or where Property Agents placed signage in windows, and the fact that it was omitted from the Model By-Laws contained in the 2010 Regulation is perhaps evidence of its limited relevance then and now, and particularly in your situation.
So whilst the bi-folds that you prefer may indeed be not “in keeping” with some of those windows in place elsewhere in the building, and even if By-Law 17 is relied upon it still permits a consent to be granted by the E/C on behalf of the Owners Corporation (O/C). The phrase “on behalf of” is important, because the E/C shouldn’t be expressing its opinion about what’s “in keeping” but rather those of the O/C, of which YOU are a member!
The overarching principle is that the E/C must behave reasonably in matters such as this and they’ll come unstuck if they don’t, but that said, the O/C does have an obligation to preserve, as far as is practicable, the “look” of the building as viewed from the outside.
Provided you also behave reasonably, and point out the matters that you’ve mentioned as your “defence”, and additionally that even though the windows are not technically “within the lot” (as curtains are) you’re willing to compromise, but that the E/C should also compromise on that as under the proposed Special By-Law you’ll be responsible for the maintenance of whatever windows are installed (that’s pretty standard unless the O/C wants to do that), so surely your preference must have some sway.
SlapShot – Sorry, but I can’t help thinking that you have a personal interest in the insurance claim and/or the individual/s concerned, and whilst I’m not suggesting that’s improper (because I don’t know the details), I must say that even a person as dogmatic as me would now let it go! After all, the claim’s been accepted and paid (and it’s not big $), and both the Owners Corporation (O/C) and its Insurers have resolved improperly or otherwise that the matter is closed.
That said, I can understand why you’re annoyed at the underhanded and deceptive way in which your Executive Committee has behaved, and the only way that I know of to handle that in NSW is to seek the intervention of the Strata Division of the Consumer Trader and Tenancy Tribunal (CTTT) by way of Orders under S156 of the Strata Schemes Management Act (1996) for the O/C to supply all documentation to do with the Insurance Claim.
That process involves mediation as a mandatory first step, and if unsuccessful the process escalates as you’ll see HERE, but it should result in Orders for the O/C to provide you with the documentation that you seek.
Once you have that documentation, and if it’s as damning as you suggest, then you could use it to yourself lobby other Owners in an effort to seek sufficient support to then requisition a General Meeting to censure the members of the Executive Committee, and to elect a new one that will better represent the Owners.
Other posts may assist you further, but good luck with whatever you decide to do.
YES you’re right, Schedule 1 does apply without any resolution by the O/C if the Plan was in existence prior to 16/12/1996; my mistake!
The model By-Laws contained in Schedule 1 need to be formally adopted by Owners Corporations (O/C), and it follows that any of those By-Laws that an O/C doesn’t think it requires are not adopted, and that any additionally required are Specially Resolved at a General Meeting of the O/C and registered as ‘Special By-Laws’.
So if like many others your O/C regards Model By-Law 13 as unadministrable then it either shouldn’t adopt it, or amend it to perhaps substitute the “Strata Manager” for the “Executive Committee” and then Register the amended version.
Perhaps the fact that the Model By-Law 13 was omitted from the reworked list of By-Laws for residential plans in Sch 2 of the Strata Schemes Management Regulation (2010) provided a clue to to the difficulties with its administration.
With regard to damage to Common Property caused during relocation activities, if nobody is supervising on the O/C’s behalf, how would it know who to hold to account?
AmazedOwner – firstly, I’m amazed too!
alley cat’s advice is correct, in that the Executive Committee (E/C) cannot overrule a decision of the Owners Corporation (O/C) who, no matter what the circumstances, remains the “principal manager”.
It would appear from the information you’ve provided that the E/C has been half-smart, by convening a Meeting to consider and then approve a slightly changed tender.
I use the term “half-smart” as whilst any Motion placed on the Agenda for a General Meeting can be amended by those present at the Meeting prior to a vote being taken provided the prime intent and/or the objective of the original Motion is not changed, your E/C acted illegally when it alone considered and approved a Motion on a slightly altered tender having the same intent and/or objective as the original Motion that the O/C had itself already resolved not to approve.
So in summary, NO the E/C definitely cannot overrule a decision of the O/C and in my opinion it cannot circumvent that decision by determining a Motion differently at its level, that has the same intent and/or objective as the original Motion.
Mine’s a lay person’s opinion, so I’d strongly suggest that you quickly obtain some professional advice from a Specialist Strata Law Firm such as the one who advertises on this Forum’s Homepage, particularly about what can be done to rescind the Building Management Contract.
Whatever that advice recommends, I’d also suggest that at the next General Meeting of the O/C it resolves to invoke the Provision of the Legislation that limits the power of the E/C, in this instance to appoint a Building Manager; in NSW that’s Sh2 Cl 34(g) of the Strata Schemes Management Act (1996).
Nibbles55 – you’ve raised one of my most frustrating issues, and in addition to the post on this subject that’s almost 12 months old ( 2 below) here’s my most recent one.
I’m not a landlord, but after first-hand experience in dealing with the Property Managers who oversee the rental properties in my Plan, I’ve concluded that they’re mostly the ones in the Agency who can’t answer telephones, who keep breaking pens, who can’t settle, and who can’t sell properties — and so they get the job to manage them as they regularly migrate from one Agency to another!
A couple of my Owners have had similar experiences to yours, and I’ve suggested that they look for Real Estate Agencies that are owned and operated by the Principal, because generally their staff members are better managed and are not on the revolving door (to the Agency next door).
That’s worked for those Owners, so just maybe it’s a way forward for you in that place that’s 7 Miles from Sydney and 1000 miles from care!
@Seek said:
To answer what I want from this, I would like to understand whether the residential block is built to the acoustic standard as per the relevant legislation.My preliminary testing suggests it potentially does not by a great deal.
Even though I’m sure you won’t like it, the fact is that on the basis of a private certification the habitable areas of the building complied with the relevant noise standards prior to Council issuing the Certificate of Occupancy, and that is (as I said before) IT.
If the current noise levels in your Unit exceed those standards now (i.e. after completion) that could be due to an incorrect certification, or increased traffic volumes, or changes to the types of vehicles using the roadway, or the design of nearby developments, or a myriad of other factors – none of which I believe you can do anything about now.
As I said before, if the windows of concern aren’t Common Property or if the Owners Corporation (O/C) doesn’t consider that insulating those is a maintenance issue, then you should to seek its consent to undertake those works yourself; at least you’ll get some sleep!
You probably haven’t received any other replies (as yet) because like me, some readers may be confused about how it became necessary for you to take the matter to the Financial Ombudsman Service (FOS) in the first place (?).
How was it that the Owners Corporation’s (O/C) Insurers accepted the Claim of an individual when its Clients resolved at an AGM to regard the incident as a private matter, particularly as the Strata Manager who would customarily be the Insurers “Agent” was a party to that resolution? Who signed for the Insured Party on the Claim?
Unlikely as it may be, the O/C may have wished to settle the Claim itself, so again I’m confused about how it eventuated that the O/C’s Insurers accepted the Claim without any prior discussions with its Client or with its “Agent”.
What is the progress of the Claim at this point, because even though the authority of the FOS doesn’t assist, it has stated that it disagrees with the Insurers decision to indemnify the Claimant?
Sorry for more questions as opposed to answers, but as I said to begin with, I’m confused about how the Claim was accepted in the first place.
Austman – Clearly, you know your building, but the point I was making is that a performance-based assessment of air quality may reveal that the existing ventilation system is over-doing it, and that you may be able to reduce the frequency of its operation and/or slow the rpm of the fan/s in order to reduce the noise and operational costs. I expect that adjustments of that type (as opposed to changes) to the ventilation system wouldn’t affect existing approvals.
Anyway, it’s something to keep in your back pocket if the acoustics assessment doesn’t lead to improvements that resolve the complainant’s issues, which if it helps at all, he/she is contributing to by 1/12.
@struggler said:
I admire you for keeping on top of things, or at least attempting to. Because of your wealth of knowledge gained by self management, the rest of us here at flat chant get to benefit from your first hand knowledge of the Act, CTTT. It is because of yourself, and Jimmy of course, that I became aware of much of the act to the extent that I can now quote sections whilst attempting to assist friends in their strata enquiries.What can I say? Thanks
@JimmyT said:
Whale – You’re not just a “godsend type” – you’re a national treasure!Thanks Mate
You certainly have done a lot of research on the noise problem, but it’s not clear to me what you are expecting to be done, and by whom.
So far a I’m aware the purpose of the Legislation is to provide building design / construction guidelines to permit the habitable areas of new residential developments (and others) to meet target noise levels given their proximity to certain noise sources, such as arterial roads in your case.
I’m not familiar with all the provisions of the Legislation that you’ve referenced, but I know that such provisions are generally reflected at the development planning level by a State Environmental Planning Policy (SEPP) and at the development consent level by a Local Environment Plan (LEP).
Based on your research, your building’s compliance with the Local Council’s LEP with regard to road noise impacts upon habitable areas was met by way of a private certification prior to the sale and occupation of the Units therein, so that is as they say “it”.
If traffic movements on the nearby arterial roadway have increased or if the original assessments were in error such that you and a few other residents are now adversely affected, I don’t expect that either the Council or NSW Roads & Maritime Services will do anything at this stage to ameliorate those impacts; and really you shouldn’t expect them to.
So what’s the solution?
Well the external windows of the building are almost always Common Property (unless they’re facing a balcony or similar area that’s part of the “Lot”), and therefore the Owners Corporation (O/C) is responsible for the maintenance and repair of those.
So IF you’re an Owner your best option would be to speak with the Secretary of your Executive Committee or the Strata Manager about whether the windows of concern are Common Property, and if they are, about the possibility of then including a suitably worded Motion on the Agenda of the next General Meeting of the O/C to consider that fitting double-glazed windows (at some locations) or the retrofitting of a membrane to some existing windows are indeed maintenance items.
If they go for it, maybe have your window/s “maintained” by the method preferred by those at the General Meeting in the first instance to assess the results.
If the windows of concern aren’t Common Property or if the O/C doesn’t consider that insulating those is a maintenance issue, then you would need to seek the O’C’s consent to undertake those works yourself, and perhaps ask (nicely) for a O/C contribution.
If you’re a tenant and the noise levels are really that bad, then I’d be looking to terminate your Lease on the basis that the Unit’s not habitable.
I guess that covers all the options; good luck.
Just a thought…..
Acoustic Engineers who sometimes aren’t Chartered Engineers (sorry for the bias) assess car park ventilation systems on the basis of noise levels against the occupational health standards applicable to workplaces, and that can be subjective depending upon the workplace classification selected.
It’s often better to adopt a performance-based assessment against air quality standards, where natural air-flow is taken into account and possibly optimised to reduce forced ventilation frequencies, and to thereby reduce the noise and energy impacts of that.
I’d suggest you ‘google’ Air Quality Monitoring and get some quotes. I’m sure you’ll find more interest for a lower cost and possibly a better outcome all ’round.
As Secretary, Treasurer and all round dog’s body in our self-managed Plan, and a RBP on a fixed income (no money from Julia here), I think I’m offended; but wait, just maybe I’m the godsend type – whew!
Seriously though, I can appreciate the point that you’re ranting and hope that such activities aren’t widespread, but if Minister Roberts is even contemplating training for Executive Committees in the same model as the ‘continuing professional development’ program that his Department administers (but doesn’t audit) for Real Estate and Strata Agents, then that will be a similar disaster; guaranteed.
I fear that compulsory training won’t make for better Executive Committees, but rather individuals who will just think they’re better because they’ve passed a course (that nobody can fail). That’s my rant!!
Yes, in my opinion it best describes the operational relationships in a Strata Plan, particularly the one between the Owners and the Owners Corporation that many people posting here regard as being exclusive from one another.
You can indeed learn a lot from posters, but always note Jimmy T’s advice that nothing posted is a substitute for good professional advice.