Exclusive use of common property- rooftop

The first thing that you should do is to obtain a copy of your Plan’s Special By-Law (SBL) that grants exclusive use privileges to the penthouse Owner, and look for any provision that requires that Owner to maintain any or all of the roof-top.

If the SBL is silent on the subject of maintenance responsibility, then your Owners Corporation (O/C) retains responsibility for that activity, including on the balustrades, and I’m afraid that unless some procedural requirement of NSW Strata Schemes Management Act (the Act) was not properly followed when the exclusive use privilege was originally granted, there’s nothing that your O/C can do about that privilege, of any other provision of the SBL, or to even seek to amend or repeal that SBL, without the prior written consent of the penthouse Owner.

On the basis of the information in your post that consent won’t be forthcoming, so the only avenue that your O/C then has to at least have the penthouse Owner make Levy Contributions that better reflect the increased “value” (incl. market value) of their Lot consequent to their exclusive use of the roof-top is to have a Registered Valuer determine a Revised Schedule of Unit Entitlements for your Plan (and for the penthouse Lot specifically).

The means to do that is relatively easy if the Plan has been Registered for <2 years, but as yours is an “older block”, I’m afraid (again) that the only feasible option is for your O/C to seek Orders under Sect 183 of the Act, which again should be supported by a Valuation of the penthouse Lot.

The situation that you describe is but one reason why the granting of exclusive use privileges needs to be very carefully considered before a vote is taken. 

Sect 183 provides Owners Corporations with an ability to seek Orders to reallocate / revise its Plan’s Schedule of Unit Entitlements (UOE) only under specific circumstances, and the one of those that I’m suggesting may be appropriate in your situation is Clause 2(b), which states that a reallocation may be granted (by Orders) where those UOE existing at the time of a Plan’s Registration:

(b) became unreasonable because of a change in the permitted land use, being a change (for example, because of a rezoning) in the ways in which the whole or any part of the parcel could lawfully be used, whether with or without development consent.

It’s a bit of a stretch, but in my opinion an argument could be mounted that the UOE originally allocated to the penthouse Lot became unreasonable when that part of the parcel that comprises the roof area (common property) was effectively made part of that Lot by virtue of an exclusive use by-law, with no adjustment then being made to that Lot’s UOE to reflect the consequent increase in “value”.

In order for an application to the NCAT to stand any chance of success, your O/C would need to have had the valuation undertaken, have approached the Owner of the penthouse Lot about agreeing to the new UOE applicable, and whether or not that agreement was given to have specially resolved by way of a Motion before a General Meeting to accept the Revised Schedule of UOE – even though only that for the penthouse may be different from those existing.

Your O/C’s Application for Orders should be on THIS form, and if that is granted, then THIS form needs to be submitted to NSW Land & Property Information.

Again, your O/C’s chance of success would be a bit of an unknown just like for all others who go down that path, as like the former CTTT, the NCAT does not involve itself in precedents or case law, and too often outcomes depend entirely on the allocated Adjudicator, how well Applicants prepare (e.g. past records), how they present their arguments, and how well they’ve ticked all the boxes – in your case those include the valuation, attempted negotiation with the other party, the opinions of that party, and the documented special resolution.

I’d like to be of more assistance, but frankly it’s now up to your O/C to do cost (of the valuation) vs benefit (more relevant levies to the penthouse Lot) analysis.

mini – divergent opinions are always welcome, but in fairness I did say that a case mounted under Sect 183 would be a bit of a stretch, as might I add would one under Sect 158 1(c) in circumstances where hornyhombre‘s issue is that the Plan’s exclusive use by-law doesn’t include maintenance conditions; unjust or otherwise.

Point taken with the Application Form; I should have linked THIS one.

In conclusion, I come back to my original observation that Owners Corporations should always think long and hard before considering any Motion to grant exclusive-use privileges!