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26/03/2018 at 1:10 pm #11652
We fitted child safety nets to our high rise balcony 10 months ago, using a licensed builder to install them, who was recommended by the supplier. We understood that as this was a child safety devise we did not have to seek permission to install them, although we did send an email to the strata manager beforehand stating our intention and the relevant by-law ( in our case 7b- usually 5b: Our building has the new strata laws and is a new building) This email was acknowledged by the strata manager, as was the bylaw. Now with no other mediation or discussion we have been given a failure to comply stating we have damaged common property. (penetration through membranes and structure of the building) and breached the architectual code. According to the supplier this is the first time a failure to comply notice has been issued in NSW since they began supplying nets in 2011.
At no stage has anyone seen or inspected the safety nets in any way. The child safety nets can only been seen if the sun is strong and the netting shimmers. I have taken photos in all light and angles and cannot see the nets from the street in these photos.
We offered many times to provide photos of where it is attached, installation drawings and offered to have a building inspector look at it as we are sure they are attached with minimum surface damage that can easily be returned to pristine condition when the nets are removed finally. The supplier has assured us the nets have been designed to create no permanent damage. The supplier also provided a letter explaining the product, the installation process, the installers qualifications and the number of nets fitted so far in NSW with no damage and with no long term strata issues. . We were also given advise that the strata law regarding fitting a child safety devise overrules the other strata laws regarding common property, appearance and damage.
However we still have our failure to comply notice.
What are our rights? Should we just take this to the tribunal or wait until the Strata committee does so or should we continue to try to mediate with the strata manager. Has anyone had similar experiences?
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26/03/2018 at 1:57 pm #29429
If I was in your position I would sit back and wait until the Strata Committee escalates this further. In the meantime arm yourself with as much data as possible to support your case.
If you provide a statement at mediation that outlines that: the safety net is not permanent and that it will be removed when your children have reached an age when such a device will not be necessary; and that you will guarantee that you will repair any damage to the common property should it be proven that damage has occurred, then this may assist you in rebutting some of the arguments that have been raised against you.
Incidentally, do you know which architect designed your building? If you do then perhaps you could contact them to ascertain whether they have an issue with you installing this temporary child safety netting. If they have no objection then this may add weight to your case.
26/03/2018 at 3:06 pm #29432Great. I have already stated many times that the nets are not permanent and that I will repair any damage should it be required when I take the nets down. I take note of your use of the word proven..Good point. I have just now emailed for evidence of the damage they say I have caused by installing the nets. I am new to strata living so I am not sure about what happens next. So i have some questions
1. If i don’t comply will they then take me to the tribunal
2. Will the tribunal fine me if they find me in the wrong ( which I don’t think they will)
3. Should I apply for mediation or do they do it.
4. What happens if they go straight to the tribunal without mediation?
5. I was told that you can’t apply for mediation with fair trading if you’ve already been issued with a failure to comply. Is that right is has the fair trading wedsite been misinterpreted?
Thanks for your help
ps. the architects are an international company so don’t like my chances there.
26/03/2018 at 3:18 pm #29433They say it’s against the architectual code as well…They say that I have damaged the common property but have not seen it. I feel very bullied actually. I have just now received an email saying the chairman of the committee is prepared to meet me. I have replied asking if this is an attempt at mediation and asked what the purpose of the meeting will be. This has been going on for a few months now. When I noticed the failure to comply on the strata committee meeting agenda, I emailed Dr Cathy Sherry who gave me a lot of help…. I passed on her academic opinion to the strata manager re the by-laws …he( or the committee) ignored it and organised the failure to comply at the strata committee meeting due that night.
26/03/2018 at 3:37 pm #29434If the Notice To Comply wasn’t on the agenda for the committee meeting issued before the meeting, then it has no standing and the Notice To Comply (NTC) will be kicked out at the Tribunal (NCAT), for that reason if no other.
If this is an argument about the safety of children versus the look of a building, tell them to take you to NCAT and let a member decide on the basis of photographs that you are happy to provide.
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.
26/03/2018 at 3:57 pm #29436I would relax …… wait it out and see what the committee do from here. They may just be bluffing or posturing.
Whether this matter goes to mediation first or whether it goes to the Tribunal first … it doesn’t particularly matter. You would not automatically have to pay a fine.
It first must be determined by NCAT that you have breached a by-law and the Act. This is definitely not clear cut! There is clearly a significant degree of doubt that you are actually in breach, given the circumstances of child safety.
“The Department of Fair Trading said safety netting would fall within the category of product – child safety devices – that the model strata by-laws generally allowed owners to install on windows and balconies without the permission of the owners’ corporation.”
What is the architectural code that the Committee are referring to? You are entitled to see it. Ask the Strata Manager for a copy of it.
If and when you agree to meet the Chairperson you might like to have the installer also attend the meeting (if possible) to better explain how the safety mesh was installed. Also, you might like to ask if you can tape the conversation.
26/03/2018 at 4:12 pm #29437To answer your specific questions:
1. If i don’t comply will they then take me to the tribunal
That’s their prerogative but if they are found to be “vexatious” then they may have costs awarded against them.
2. Will the tribunal fine me if they find me in the wrong (which I don’t think they will)
Theoretically, yes. But I very much doubt it in this case (even if they do rule against you). It’s not like you are a nuisance neighbour having parties every night. You’re a parent trying to do the right thing within the parameters of strata law.
3. Should I apply for mediation or do they do it.
Mediation leading potentially to an NCAT order would have been the civilised way for them to have done this. You could apply for mediation to stop the harassment
4. What happens if they go straight to the tribunal without mediation?
Notices to Comply do not require mediation. You will be judged on whether or not you have breached the by-law. The architectural thing is not a by-law (as far as I can see) so any reasonable member would toss that as a matter of course.
5. I was told that you can’t apply for mediation with fair trading if you’ve already been issued with a failure to comply. Is that right is has the fair trading website been misinterpreted?
I’ve never heard of this but that doesn’t mean it’s not true. Who told you this?
Also, I’m curious about your use of the phrase “failure to comply” and I wonder if the committee has issues the NTC correctly. If they haven’t, you should feel free to ignore it.
The correct form should contain the by-law (and only one by-law) that you have allegedly breached with details of how you have breached it.
I could be wrong but I think the committee has decided that mediation and NCAT orders won’t get them the result they desire and therefore have decided to go with an NTC in the hope it scares you into submission.
The architectural stuff should have been dealt with through mediation and orders (if at all).
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.
26/03/2018 at 4:54 pm #29439The notice is hand written onto a typed form. It just states Bylaw 7 (which I think is the same as bylaw 5 in the new strata laws) It states “Installing unapproved netting to the balcony of unit 401 causing damage to the common property” Our building is a new building. We moved in last April.
Any more information I have supplied is only from the ( somewhat surly) emails from the strata manager as replies to my many emails since then.
here is what the strata manager has since supplied:
in February:
7:1 An owner or occupier must not drive nails screws etc etc
and 7:2 an approval given by the owners corporation under 7:1 cannot authorise any additions to the common property
You have breached by-law 7 –
And you have also breached the Architectural Code for the Building as set out in the Strata Management Statement.
And you have breached Section 108 of the Strata Schemes Management Act 2015.
and last friday:
- I understand that it is the Committee’s position that the Balconies comply with the relevant BCA as to balustrade heights and the is no need for the netting to have been installed. Similarly, it was the Council that raised concern regarding the installation as it breaches the Architectural Code for the Building. Lastly, the main concern of the Committee is the penetration through membranes and the structure of the building, which in accordance with the Strata Act, requires a prior special resolution and by-law to permit this type of work, detailing the obligations for the ongoing responsibility for maintenance. The last instructions we had received on the matter was to seek the removal of the netting.
26/03/2018 at 4:57 pm #29442I assure you Jimmy, that the Committee has been far from vexatious and that there have been numerous efforts made to seek for Nettie to be a little more holistic thinking in relation to the Total Building.
The apartment is in a BMC and there is a Building Management Statement that governs the building.
It is interesting that Nettie does not recognise that the fixings penetrate the balcony waterproofing on a brand new building.
There have been lengthy efforts made to communicate with Nettie on this matter to seek an appropriate resolution only met with a one sided non acceptance of normal considerations.
The balcony is already partly enclosed with louvers and the netting is very visible to the naked eye from the street (hence Council making a complaint as to its installation).
There is a reason we have a BCA in Australian and minimum standards for new Buildings.
It is a shame when individuals choose not to head professional advice
26/03/2018 at 5:34 pm #29444OK, we are now getting conflicting information here. It seems building is not pre-1996 but is in fact brand new (if we are talking about the same building as Mr Strata, above).
In that case, the by-laws will be different. Also there has apparently been a complaint by council about altering the appearance of the building.
It’s very hard for us to give good advice when we are only getting half the information.
Right now, I’m thinking this would be best left to an NCAT Member to adjudicate, when both parties will have to present all the information, not just the parts that support their case.
And Nettie, unless you can show us your actual by-law that mentions installations for child safety, then you may be on a stickier wicket than we had been led to believe.
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.
26/03/2018 at 5:40 pm #29445This is simply not true.
I have offered to have a building inspection to check if has been installed in a way that causes damage to the water proofing…or not.
I have offered photos of the installation on many occasions. The temporary child safety netting was attached to the ledge not the floor as the strata manager suggests.
It had also been attached by the suppler’s recommended licensed builder who has experience in strata developments who has been the main installer of these nets over many years. He has not once replied to my offer of photos or of an inspection.
I have asked for some sort of evidence of damage but received a ‘you cease writing such comments in your emails as this is not being received well by your fellow owners/The Committee Members.’ This was a the reply from a list of questions i sent….not comments. The supplier has assured me that at no stage since these nets began to be installed has there been any reports of damage to the fabric or structure of the building.
I have supplied a long letter from the supplier about the product, the installation and other addresses locally it has been installed.
I have requested mediation and discussion but get few responses. I have requested that I want to talk to the committee and seek mediation.
I don’t know what else I can do to facilitate a good settlement to suit all.
26/03/2018 at 5:44 pm #29446Cathy Sherry sent my a copy of the bylaws which referred to the child safety bylaw you spoke of. I will find it tonight and send it to you. She specifically looked up my bylaws and the architectual code and was of the opinion ( academically) that I was in the right.
Please note that I said in the beginning it was a new building.
26/03/2018 at 5:44 pm #29447Mr Strata – Being that you have not yet looked at the safety netting how is it possible for you to claim categorically that the water proof membrane has been breached?
Why is it not feasible for the Committee to allow Nettie to retain this netting on a temporary basis until her children have reached an appropriate age?
This is a novel case, the type of case which has not been adjudicated previously by NCAT. There is no precedent for which your Committee can rely upon to guarantee success.
It has been proven time and time again that Committee decisions are not always correct decisions.
If you are confident in your position then your Committee is entitled to take this matter further. There is no guarantee however that your Committee will win this dispute at NCAT. Nettie may be successful. Nettie also appears to have ‘professional advice’ on her side.
You claim that Nettie is not heeding your professional advice. However, Nettie’s ‘professional advice’ that she has provided to the Committee is apparently not being heeded by the Committee.
BCA balcony heights are a minimum height requirement. They can always be made higher. The new window regulations require that windows less than 1.7m above the internal floor level require locks. Clearly there is a difference between the safety regulations for balcony heights and safety regulations for windows. Isn’t it better to be “safe than sorry”?
If this case progresses to NCAT then this case will be on the record for ever more for all future owners of Lots within your building, (and all the world), to peruse when undertaking their due diligence.
Are you quite certain that you would want your names attached to a proposal that would see child safety given a lower priority than a somewhat subjective claim of ‘visibility’. Is this really how you and the other committee members would like to be remembered?
26/03/2018 at 5:50 pm #29448@Nettie said:
The notice is hand written onto a typed form. It just states Bylaw 7 (which I think is the same as bylaw 5 in the new strata laws)The Notice To Comply has to contain the details of the by-law, including, one would think, any exceptions or exclusions
It states “Installing unapproved netting to the balcony of unit xxx causing damage to the common property” Our building is a new building. We moved in last April.
OK, so this is clearly not an older building with lower balustrades (or the pre 1996 by-laws). Why do you think you need netting?
You have breached Section 108 of the Strata Schemes Management Act 2015.
Anything that attaches to common property shouldn’t be installed without a special resolution by-law that passes ongoing responsibility to the lot owner (you). That is basic strata law, hence the reference to section 108. That doesn’t prevent you from doing this – but you have to follow procedures.
I might add that just because a significant number of owners don’t want to pass the special resolution by-law doesn’t mean that it can’t be done. But you would need to get NCAT to issue an order compelling them to pass the resolution if they declined to do so by normal means.
I would just let this run its course. Let them take you to NCAT and tell the Member there that you received conflicting and contradictory advice and you require a ruling by which you are happy to abide.
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.
26/03/2018 at 5:57 pm #29449@Nettie said:
Cathy Sherry sent my a copy of the bylaws which referred to the child safety bylaw you spoke of. She specifically looked up my bylaws and the architectual code and was of the opinion (academically) that I was in the right.Every strata scheme has (potentially) different by-laws. Do you have a copy of your building’s by-laws? You’ll find them at the back of your contract of sale and possibly attached to the minutes of your last AGM.
Please note that I said in the beginning it was a new building.
My mistake. If I’d seen that I would not have cited the pre-1996 by-laws.
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.
26/03/2018 at 6:14 pm #29441@JimmyT said:
OK, we are now getting conflicting information here and there has apparently been a complaint by council about altering the appearance of the building.Right now, I’m thinking this would be best left to an NCAT Member to adjudicate, when both parties will have to present all the information, not just the parts that support their case.
Or you could sit down with a neutral but well-informed mediator (maybe not Fair Trading) and try to reach an acceptable compromise.
That said, Nettie, unless you can show us your actual by-law that mentions installations for child safety, then you may be on a stickier wicket than we had thought.
By the way, I have had to edit some of my previous posts, based on new information and, especially, my own prior misconceptions. I did so for the benefit of anyone in a similar situation, but apologies anyway.
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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