LawoftheLand – Any replacement gate or fence must only meet the standard of a “sufficient dividing fence”. The OC can opt to replace these items in as cost effective way as it sees fit. The OC does not need to replace with a more costly or fancier version. Any upgrade to the original would be seen to be an improvement rather than a repair and would require a special resolution.
I am having difficulty understanding your picket gate issue …. why are the gates being replaced – do they require replacement or is a repair an option? Were gates originally installed on all 5 or 6 Lots and if so why have some gates been removed? Any removal of a common property gate would be deemed to be damage to common property and would be the responsibility of the Lot owner to replace.
As for the planter boxes – did the OC pay to remove them and did the OC pass a Motion to allow the Lot owners to remove them. Was it only some planter boxes that were removed, why were only those planter boxes removed and not all planter boxes removed? Were the planter boxes within the fence line or did the planter boxes form part of the fence?
The way I see it is that you have two arguments in your favour: The previous legislation (Section 65A of the Strata Schemes Management Act 1996) https://legislation.nsw.gov.au/inforce/58c71653-c48b-c300-b4c4-ef01a29d7327/1996-138.pdf required certain common property changes to be authorised by the owners corporation, not the executive committee. If the EC authorised this change then it was not following proper procedure. If the planter boxes were removed by the Lot owners without permission from the OC then this could be deemed to be damage to common property and could be the Lot owner’s responsibility to replace.
The second argument in your favour is acquiescence. If the OC needs to pay for the Common Property fence replacement (after a Special Resolution has been passed) then the OC should only put the fence back to its original position. The planter box does not need to be replaced at the OC’s expense. If the planter box was removed several years ago then the only requirement is the installation of a “sufficient dividing fence”. Over a period of time the OC has acquiesced to the change in appearance of the Common Property and accepted the changed appearance with the planter boxes removed and therefore there is no requirement to make it the same as it was before the planter boxes were removed. Acquiescence is subjective. There is obviously no strict enforcement of uniformity of appearance in your Scheme if some Lots have front gates and others do not. Therefore if the Lot owner wants his planter box reinstated then it could be suggested that the Lot owner can install it himself at his own expense.
The AGM from 2 years ago has not properly or legally addressed this issue so nothing should be done about the fence or planter boxes until the proper process has been carried out. Nor did the AGM of 7 years ago properly address the issue.