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Am currently in dispute over addition of a sun screen (shutter) to the left elevation of our balcony that has been approved by the scheme architects for our community. Unfortunately my neighbour who is on the executive has raised an objection saying it will partially impede his water view through my balcony and that he has legal advice that indicates that his objection would override any proxies or consensus by other members of our strata plan. There are 30 lot owners in our SP. Can one individual block another lot owner regardless of precedence , compliance with architectural standards etc ??
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I would personally buy a strongly built room divider & insert the two ends firmly into two very large & heavy pots. Chosen carefully, it would look good, serve Tony’s purpose & because it is not a fixture, does not require permission from anyone. So there.
@daphne diaphanous said:
I would personally buy a strongly built room divider & insert the two ends firmly into two very large & heavy pots. Chosen carefully, it would look good, serve Tony’s purpose & because it is not a fixture, does not require permission from anyone. So there.Funny, I was just thinking what effect a large bushy plant would have … unless there are by-laws banning plants on balconies, you’d get the same effect and chummy next door would have a permanent view blocker.
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.
A large trellis with a sun loving climber & secured in a rectangular pot on wheels would do just as well. When the sunshine is required, it would be a simple matter of moving the pot out of the way. I’m assuming the sun block thus formed would not need to reach all the way to the balcony ceiling.
@Tony said:
I have also been informed by the owners corp that they will seek orders to make me remove the shutters if I go ahead without permissions and that I am unlikely to win the case if I try to get adjudicators orders as there is now a very detailed document trail explaining due process .You have previous stated that others have fitted shuttered to their lots, so check the bylaws and ensure they have a SR registered for their alterations and if it is a generic bylaw that you can use.
If this is NO SR then all these owners could be liable to have their shutteres removed as well which might make these owners sit up and take notice.
I say again they cannot apply bylaws in a discriminanator manner and expect to win at CTTT.
These are all great suggestions and excellent advice thank you all so so much it really has given us some encouragement to keep persevering … We have over the weekend put up a free standing “bright orange” umbrella temporarily as we thought it would make an excellent contrast to the more architecturally appropriate white shutters we actually have requested .
We now await advice from the Community Association Executive before actioning next steps. If they approve it in principle we still have to get it through the next hurdle at our own Owners Corporation.
Needless to say I will follow the Jimmy T’s advice to the letter writing both to all lot owners and taking it to CTTT if necessary – as mentioned by KP there is no general by law in relation to shutters at this complex but interestingly there is in other Owner Corps across the Estate.
There seems to be no consistency in relation to this issue ,however i agree with KP that existing owners in this complex who have previously installed shutters without a by law will be put on notice if we take the issue to the CTTT and fail.
Will keep you posted
Hi ,
As promised here is the latest update :
The Community Association met last week and a fly on the wall has informed me that all ongoing shutter applications including mine continue to be deferred. It is some of the executives belief that they will be held liable if say a shutter happens to fall off a balcony and hit a car for example (funny how there is no history of a single issue over the past ten years to instigate this concern ), needless to say a new procedure is supposedly being drafted that includes the requirement for owners to submit a Development Application to Council from now on. Apparently we ( current applicants ) are to be informed of this sudden piece of genius in writing at some stage.
Question is —
Will I have to comply with this new procedure and hence have to wait till I am informed in writing by the Community Association or should i simply act on my previous letter and commence action at CTTT ?
Can these bodies simply change the rules whenever it suits without resident input or actual evidence underpinning it ?
Thanks to everyone for their continued interest and advice to date .
Regards Tony
How ridiculous – what kind of crappy insurance does your building have that it doesn’t cover the old “shutter landing on car load of American lawyers” clause?
Regarding their referral to a DA, your shutters would almost certainly come under a “compliant development” and therefore would require no D.A. I would get your shutter installer to investigate this immediately.
Your EC and Community Association are being ridiculous and I think it’s time to rattle their cage and give this new NCAT bunch a spin round the block.
You’ll need to go to Fair trading for mediation first but you can then pursue an order under section 158 which says:
158 Order with respect to by-laws conferring exclusive rights or privileges over common property
(1) An Adjudicator may make an order prescribing the making, amendment or repeal, in terms of the order, of a by-law if the Adjudicator finds:
(a) on application made by an owner, that the owners corporation has unreasonably refused to make a by-law of the kind referred to in section 51.
Sections 51-55 cover special resolution by-laws and how they operate. So put together a by-law saying that you are given permission to install shutters attached to common property (as per your attached designs) and that you take responsibility for their upkeep and maintenance and to the area of common property immediately affected by their installation.
At the same time, jump through whatever hoops are required to make this a complying development at council and you’re sorted.
OR, just install the things, make the EC do all the legal and NCAT work and hope that you get the same result.
I would never recommend that anyone takes the law into their own hands … but it’s probably what i would do.
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.
Thanks again for the heads up JimmyT you’re the ‘Stephen Hawkins’ of Strata Management – will give our next steps some further thought as our patience has been sorely tested. Meanwhile I’ll get onto Council immediately and initiate a clause in respect to a special by-law as suggested .
Interestingly ,I’ve also been advised recently by our own Body Corporate that they are hamstrung until further advice regarding our application is forwarded by the Community Association. Needless to say , they have strongly urged me not to action its installation without approvals , as they will have no option but to get orders to have it removed and they are confident given their legal advice that they will win at a considerable financial cost to us !
Our decision to sell our family home for an apartment and more community based lifestyle has been shattered !
Kind Regards – Tony & Melinda
Hi
Spoke to Council today and it seems like I will need a DA for shutters given as I am on the third floor and it needs to comply with all the criteria in subdivision 35 of the State Environmental Planning Policy. I also commenced a request for mediation at Fair Trading as no action can commence at NCAT without undergoing mediation first. Further research on the Community Management Plan governing this estate also notes that any application is deemed to be rejected after three months and to date there has been no communication from them in over 4 months thanks guys , you really are conducting your roles for the greater good !
Tony
All that nonsense perhaps makes this previous post more attractive:
daphne diaphanous said: I would personally buy a strongly built room divider & insert the two ends firmly into two very large & heavy pots. Chosen carefully, it would look good, serve Tony’s purpose & because it is not a fixture, does not require permission from anyone. So there.
Thanks Whale – agree however given approx 30 per cent of our complex already had the same shutters we naively assumed that we would not have an issue getting approval and we paid 50per cent upfront for the shutters which are complete and waiting to be installed. At that time we were also having timber floors put in and our focus was meeting the by laws for this as it was contentious never imagining given the precedents that we would get no opposition to the floors and absolute whitewash on the shutter.
Nevertheless mediation is on its way , have commenced the DA process but now need to get the body corp to co sign the Da before the Council can accept its submission . It is a ridiculous situation and it doesn’t seem that the new draft laws will address similar situations in the future.
Thanks again for your input champ … best wishes Tony
Hi ,
The latest update :
1. Discussions with Department of Planning & Council Planner concluded that a DA application may be an avenue to assist provide weight to our case notwithstanding the additional costs and bother. Council advised that loss of a view would not be in itself sufficient objection if impact was approx less than 50%. Further a view corridor analysis would be conducted if above 50% determining the final outcome.
2. On initiating the process I realised approval was required by the owners corporation and Community Association before submission on writing to owners corp ( also informing them that i had taken action against the CA)they told me that they could not provide approval given the current situation with the CA. Interestingly , I received a letter from the CA the same day the first after 5 months noting that they had suspended all shutter instals due to inconsistencies with their own architects advice ( what these are were not explained ) and a new procedure was being written .. and thanked me for my cooperation REALLY !!!
3. I am disgusted with the politics being played here and look forward to my opportunity to ask them to explain there actions in a formal setting such as the NCAT.
As noted in our letter – we believe that our right to the full use of our balcony, reduction in energy costs , privacy and most significantly protection from the western sun far outweighs any argument to loss of a very partial view .
Nonsense continues :-
1. Mediation at Fair Trading on 4/03/14 provided insights into the obvious mal administration of all parties noting that the delay of 12 months was primarily due to the OC not following due process and we also now needed a DA to Council for any screen enclosure . Shame it took 12 months and formal mediation to inform me of that piece of brilliance.
2. And if that wasn’t frustrating enough one day after mediation we were sent a breach notice asking us to remove our pot plants from the balcony and the stand alone umbrella we had offering some sun protection , both were in breach apparently of the architectural and landscape standards of the estate.
3. We have submitted a completed DA to the OC requesting their common seal allowing us to submit it and are awaiting their response after their next meeting.
Question – must we have OC sign off to submit a DA to Council ?
– If approved from Council do we still need to get approval from >= 75% of lot owners ?
– should we just forget due process and simply force mediation and NCAT under section 144 2(b) ?
Tony – a recent post by SMO revealed that under the provisions of Sect 138 an Adjudicator can make Orders to settle disputes such as yours in circumstances where an Owners Corporation or Building Management Committee decides either to not make a decision, or if within a period of 2 months (from its receipt of an application such as yours) it doesn’t make a decision.
Must say… I can’t understand why Council would require a DA for an awning – one of your earlier posts suggested that was the O/C’s requirement, so who’s now advising you of that; the O/C or the Council?
IF a DA’s required, Council wouldn’t consider it unless the O/C’s Seal had been placed on your submitted plans, and that wouldn’t be in place unless the O/C’s consent had been given. Whether that consent would require a Special Resolution (75%) for changes / alterations / additions to the Common Property would depend upon whether or not an already registered Special By-Law of relevance exists (i.e. to shutter proposals).
I’m also unsure of how enforceable those architectural and landscape standards would be; if they’re not in the form of a Special By-Law or something that you legally agreed to at the time of your purchase, I doubt they would be.
Apologies in advance if I’m now about to further confuse the issue, but perhaps you should just wait patiently for the prescribed 2 months, and if your O/C is again unable to advise you either way, then it’s Orders under S138 that you should be seeking.
It’s this sort of nonsense that turns people away from Strata Living, and/or encourages them to simply ignore the BS and chest-beating that’s proffered by some E/C’s and to just do as they please and rely upon the NCAT’s process to see everything so delayed that one of the protagonists gives up!
This might be OT. But in Victoria it seems we have Planning Permits and then Building Permits.
In my OC, there have been 2 Planning Permits submitted to council without the OC even being informed, never mind with the OC’s Common Seal. The OC Act does state that the owner must inform the OC but in both cases they didn’t. And neither did the council.
OC Act 2006
133 Notice of planning and building applications and plans of subdivision
A lot owner must give notice to the owners corporation of any application by the lot owner for a building permit or planning permit or the certification of a plan of subdivision affecting the lot.One planning application was for a terrace enclosure and the other was for a change to terrace privacy screens. Both applications were approved by council!
Neither has actually been built yet, so I hope that when it comes to a Building Permit the OC’s permission will be needed by council! As both works affect common property, the owners would at some point need OC permission anyhow.
But it’s been interesting (alarming really!) to see how far an owner can go without getting the OC’s permission.
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