Development Application

I can understand why the Owners Corp wants to make sure your renovations don’t impact on other properties – placing a bathroom over or adjacent to the bedroom of another unit could have unfortunate consequences if it isn’t insulated for sound correctly (just for example).

But I can also understand your frustration at the apparent dithering of people who want to exercise their right to control elements of the process but seem incapable of making decisions about what it is that they want to control.

This death by indecision can be incredibly frustrating but there are ways to get things moving under strata law.

For example, you could raise this as a dispute at Fair Trading (who will set up the compulsory mediation) then apply for a section 144 ruling to order the Owners Corp to agree to reasonable changes to common property.  I have reproduced the relevant section below.

To avoid becoming the EC’s enemy, I would present this to the Strata Manager and EC as an effort to clear the log jam rather than force the issue and reassure them that you are prepared to listen to their concerns – but you can only do that if they let you know in writing what they are.

Now, this may never get past the mediation stage because once the dialogue starts, you might actually be able to resolve the issues.  But, in case that doesn’t happen, at least you have moved things forward. 

The critical clause is 2(b) which says the Adjudicator must be satisfied that the Owners Corp has refused to allow you to use common property in a way that would otherwise mean you can’t make use of your lot.

In your case, that’s exactly what’s going on here.  You might also double up with a Section 62 claim against the Owners Corp, requiring them to maintain and repair common property.  Section 62c is also reproduced below.

Now, before everybody starts firing lawyers at each other, a competent and professional strata manager will sit down with you and work out how your demands can be met while still keeping the building happy.  But if your SM isn’t up to scratch then you are perfectly entitled to drive the issue to get the result you require.

Now, that’s just my reading of the issue and other Flatchatters may have their own views but I reckon a chat with the Strata Manager that you are thinking of taking this to Fair Trading and then NCAT (formerly the CTTT) might stop the wheelspin.  

144Order granting certain licences

(1)  An Adjudicator may order that the applicant for the order, and any occupier of the lot of which the applicant is the owner, may use specified common property in the manner, for the purposes, and on the terms and conditions (if any), that are specified in the order.

(2)  An Adjudicator must not make an order under this section unless satisfied:

(a)  that the lot of which the applicant is owner would otherwise be incapable of reasonable use and enjoyment by the current owner or occupier of the lot or generally by an owner or occupier of the lot, and

(b)  that the owners corporation has refused to grant a licence to use common property in a manner, for purposes, and on terms and conditions as would enable the current owner or occupier, or generally any owner or occupier, reasonably to use and enjoy that lot …

(3)  An order under this section, when recorded under section 209, has effect as if its terms were a by-law (but subject to any relevant order made by a superior court).

(4)  An application for an order under this section may be made only by an owner.

62What are the duties of an owners corporation to maintain and repair property?

(1)  An owners corporation must properly maintain and keep in a state of good and serviceable repair the common property and any personal property vested in the owners corporation.

(2)  An owners corporation must renew or replace any fixtures or fittings comprised in the common property and any personal property vested in the owners corporation.

(3)  This clause does not apply to a particular item of property if the owners corporation determines by special resolution that:

(a)  it is inappropriate to maintain, renew, replace or repair the property, and

(b)  its decision will not affect the safety of any building, structure or common property in the strata scheme or detract from the appearance of any property in the strata scheme.

 

eurojim – what you’re proposing could be considered as erecting a new structure on the Common Property (roof and walls), and if that’s the position adopted by your Owners Corporation (O/C) then unless your Plan has a Registered Special By-Law covering that type of construction, then it’s not a matter for consideration by the Executive or Building Management Committees, but rather by all Owners present personally and by proxy at a General Meeting, where ≥75% would need to vote in favour.

The fact that the proposed pergola is on a terrace that’s part of your Lot may confuse how your O/C considers it, but instead of pre-empting how your O/C may or may not react, why not discuss everything with your neighbours prior to finalising your design.

Early discussions will give you the opportunity to explain your plans and to perhaps resolve any issues such as those that you raise with appearance etc, thus reducing the likelihood of opposing votes at the General Meeting if it comes to that, and/or of adverse submissions if consent is refused and you decide to take the matter to Mediation.

You seem inclined to approach this issue sensibly, and in that regard going ahead with your proposed pergola without the prior written consent of your O/C would be ill-advised in my opinion, particularly as your O/C could seek Interim Orders to halt construction, but moreso because IF you do approach things as I’ve suggested you would, again in my opinion, have excellent prospects to successfully overturn any refusal of consent by the O/C under Sect 140 of the NSW Strata Schemes Management Act which amongst other things states at Cl:1 that “an Adjudicator may order an owners corporation to consent to work proposed to be carried out by an owner if the Adjudicator considers that the owners corporation has unreasonably refused its consent and the work relates to any of the following:

(a)  alterations to common property directly affecting the owner’s lot”

That sounds very much like your situation to me!

Council involvement depends upon a number of factors, including the size of the pergola where structures <25m2 and <3m high are usually considered Complying Developments, but as your proposed location may be atypical you should personally make, or have your Architect make some discrete inquires with your local Council. Remember though, if Council requires a DA they won’t consider it without a letter of consent or of no objection (as applicable) from your O/C.