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Newly moved into an apartment building. I installed a Vegepod on my balcony, on a trolley-stand & it has a bird-netting type of cover (very securely held in place with clips, etc. so no risk of it being blown by wind, etc.) Prior to me moving it to its intended position out of the line of sight of other residents, someone took a photo of it & complained to the building committee. Building committee recently met to discuss. Told me it was “ugly” (how dare they!!!) & not in keeping with the appearance of the building, etc. etc. as per the standard By-Law. I tried to convince them it’s a standard item, highly reputable brand & award-winning item, specifically designed for balconies, the cover is purely protection from falling leaves, birds, pests, etc. to no avail. Where to next??
I notice that in a recent update to the Strata Schemes Management Act 2015 SSMA , “A further new duty (of committee members) is that committee members must not behave in a way that “unreasonably affects a person’s lawful use or enjoyment” of a lot or the common property.”
Any thoughts or advice would be greatly appreciated. Thank you
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I’m not going to take sides on this, but here is advice for you.
Did they issue a notice to comply? A notice to comply is an official notice to another owner of a breach of a by law. It must tell you which by law you breached.
Any other notice you can ignore with impunity.
Once you get a notice to comply, you can choose either to act on it ie reduce the by law breach, or if you don’t agree with it do nothing. The owners corporation , without an order can’t touch you.
It’s then upto the owners corporation to take the matter further. First through mediation and then to NCAT.
If it gets to NCAT it’s up to the owners corporation to prove the breach. The lot owner can stay silent.
If you are found to be in breach of the by law, in the case you quote, the worst I expect is the tribunal would just tell you to comply by a certain date.
I mention the pets issue in my intro to the Forum wrap-up because that changed thinking about strata by-laws that had been held sacrosanct for decades. The building concerned had a no-pets by-law which was assiduously enforced by the strata committee until one owner challenged it under section 139 of the Act: “A by-law must not be harsh, unconscionable or oppressive.”
Now the ultimate result in this case was that the NSW Court of Appeal ruled that the by-law was invalid as it was harsh and oppressive because it didn’t allow any exceptions under any circumstances.
Some people have interpreted this to mean that all by-laws are invalid, which is obviously not the case. However, it’s worth looking then at this roundup from our sponsors Bannermans lawyers which lists other by-laws that have been declared invalid for similar reasons, including bans on smoking and demands that floors could only be carpeted.
So, getting back to the Vegepod ban, our OP might do well to explain to their committee that if they push this too far, their whole by-law could be challenged and possibly invalidated by the Tribunal because it doesn’t allow for any variations under any circumstances and is therefore harsh and oppressive.
I would imagine any NCAT Member worth their salt would ask the strata scheme’s representatives what their definition of “in keeping with the look of the building” is. And if that’s not clearly defined in the by-laws, then the by-law could be seen to be harsh.
In the meantime, I’d be taking Kaindub’s advice, which is basically to ignore the committee’s demands, wait until they get a Notice to Comply and then ignore that too on the grounds that the by-law quoted in the NTC is invalid. In other words “bring it on”.
Meanwhile, they could write to the committee to have it put on record that they believe the by-law, or at least its enforcement, to be harsh and oppressive and to alert owners to the possibility that their committee is about to spend a lot of money fighting a legal case that is really just a coin-toss and even if they win will be to the detriment of the community.
A sensible committee will then just let it go through to the keeper. But then you will always have the bullies and martinets who can’t compromise, let alone see anyone else’s point of view.
The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.
Kaindub’s advice is excellent, and enlightening – I will note this for future issues. It sounds like this committee needs a shakeup.
I have a Vegepod on my balcony, also a couple of FoodCubes which I have at times netted against birds. Another resident had one for a while too. Absolutely no problem in our building, in fact our body corporate supports community vegie beds on our rooftop, and one of these sports a netting enclosure. We encourage residents to “grow their own’ and add greenery to the environment.
Not sure if that’s an “official” Notice to Comply.
It probably wasn’t. A Notice to Comply has to come on a specific form, as issued by Fair Trading, and there has to be a decision at a committee meeting to issue one or it’s not valid (unless it’s issued by the strata manager).
I would let it be known to the committee, probably via a friendly member, that just blindly issuing NTCs to you will have consequences, in that they will ultimately have to go to the Tribunal and prove that your Vegepod is an eyesore – and their success is by no means guaranteed. Quiet diplomacy and ignoring the threats will probably get the job done.
The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.
“… Prior to me moving it to its intended position out of the line of sight of other residents, someone took a photo of it & complained to the building committee…”
Sounds like you could easily ignore this and if the committee pursues the matter you could innocently say that the complainant’s photo was from before you had moved it to its final position out of sight and that you had assumed that moving it had addressed the matter.
If it can still be seen, then argue that it is a very normal and reasonable thing for people to have on balconies (just like drying washing 😉 ) and they should stop being so precious.
As I write this, I can see my vegepod out my window. It is sitting on a low retaining wall and, strictly speaking, overlapping my courtyard boundary making a minor incursion onto common property but nobody has ever complained about it.
PS. My wife just mentioned that a Sydney friend’s vegepod is doing well on her apartment balcony, where it would be visible to other residents.
I recorded a webinar today with strata lawyer David Bannerman (one of our sponsors) and he said that depending on the wording of the relevant by-law, the Owners Corp might well have trouble convincing a Tribunal member that banning your Vegepod was not “unreasonable” and there for invalid. He, like me, says do nothing and enjoy your herbs and veges.
But for the record, what does the by-law actually say?
The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.
anything … that is not in keeping with the appearance of the Building
And there’s your leverage for defending your case, if it comes to it. Who’s to say it’s not exactly what people would expect to see in a modern apartment block.
But I would put money on them just letting it slide because it’s not worth the hassle.
The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.
I’m just thinking a judiciously parked planter pot with a leafy bush might be an attractive compromise (in so many ways).
The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.
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