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Yes, I agree, I will take it to NCAT for a ruling. The phrase “external appearance of a lot” needs more clarity. Anyway, thanks for your warm and engaging responses to my posts. I hope other members of your forum may have gained an insight into the complexity of this issue.
Section 109 5c: “work that changes the external appearance of a lot, including
the installation of an external access ramp”
So, it comes down to the meaning of “external”
Oxford dictionary: (external) belonging to or forming the outer surface of something
So, we are talking about the appearance of the outer surface of my lot.
i.e. the appearance of the external walls of my lot (the walls that face the laneway and my neighbour), not the internal walls of my lot.
Interesting point, JimmyT. This is not the first opportunity for the OC to correctly/incorrectly to assert its current approach. After the building was painted its present colour, the OC paid to re-waterproof the garden bed of our courtyard. The OC then paid for the previous owner to repaint the affected courtyard wall in the colour of her choice. That colour remains today.
Thanks Jimmy. I am not worried about wasting $ on paint because the OC have agreed not to paint my walls until the matter is decided at NCAT. You might also be interested in my further advice:
1. Painting is a non-invasive cosmetic work.
2. The painting in question was carried out 10 years ago, by the previous owner.
3. This is not a request for re-painting the walls.
4. The re-painting is necessitated by the rectification works the owners corporation is carrying out.
5. My preference is that the walls to my lot be repainted as part of the rectification works in the same colours as they are now painted.
6. There is to be no change in the current external appearance of my lot because the same colour is used.
7. For these reasons no consent is required is required from the owners corporation to keep the walls of the same colour.
I have now taken legal advice on this matter. Here it is:
The external walls are part of the building, and therefore are common property owned by the owners corporation. The Strata Law permits the walls to be touched.
The Strata Law permits cosmetic renovations. In particular, section 109 of the Strata Schemes Management Act 2015 permits cosmetic work, which is defined to include painting (Section 109(2)(c)).
SECTION 109 COSMETIC WORK BY OWNERS
(1) The owner of a lot in a strata scheme may carry out cosmetic work to common property in connection with the owner’s lot without the approval of the owners corporation.Note: the only limitations are as set out in Section 109(3):
(3) An owner of a lot must ensure that:
(a) any damage caused to any part of the common property by the carrying out of cosmetic work by or on behalf of the owner is repaired, and
(b) the cosmetic work and any repairs are carried out in a competent and proper manner.Note: There is no limitation on colour or on what surfaces are to be painted or how the surfaces are to be painted.
Turning to the By-Law, I assume that it is along the lines of Standard By-Law 12 –
12 Appearance of lot
(1) The owner or occupier of a lot must not, without the prior written approval of the owners corporation, maintain within the lot anything visible from outside the lot that, viewed from outside the lot, is not in keeping with the rest of the building.
(2) This by-law does not apply to the hanging of any clothing, towel, bedding or other article of a similar type in accordance with by-law 14.That by-law does not apply to painting. It applies to window coverings and applications, signs, etc.
Even if it did apply to internal painting, or if your strata scheme’s by-law applied to internal painting, it would be invalid because it conflicts with the owner’s rights under section 109.
Thanks for the responses so far. Here’s a further hypothetical: would it make a difference if the colours of the internal courtyard walls are different to the colour of the facade of the building BUT the existing colours have been there for 10 years and no-one has objected until now? The current colours actually precede the changing of the colour of the facade and the OC did not insist on uniformity 8 years ago when they repainted the facade. Surely the length of time must count as tacit acceptance of these colours. Therefore, I would argue that the OC is being unreasonable in now demanding that the colours conform to the facade of the building.
BTW the internal walls of my courtyard are not visible from the street.
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