This Q&A article is from a NSW unit owner asking whether they need owners corporation approval to build a deck and carry out other landscaping work in their courtyard.
Question: Can I carry out improvements to our duplex courtyard? Do I need approval from the owners corporation to build a deck and put up a screen?
I live in a self-managed strata duplex. Our lot has a courtyard on title, i.e. it is not exclusive use or a common area. The space borders the next-door neighbours courtyard.
I’d like to build a deck for an outdoor table and chairs over a section of the lawn, add screening to the fence for privacy from our neighbours, and update the old fence that borders the courtyard and the common property of our strata complex.
Do I need owners corporation approval to carry out these works?
Answer: Any proposed works must be informed by the strata plan and by-laws of the scheme, and at the same time reference the Act where those documents are silent or deficient.
There are many, many elements to this question, but let’s start with some basics which help to tease out owner responsibilities in such situations.
First and foremost, any proposed works must be informed by the strata plan and by-laws of the scheme, and at the same time reference the Strata Schemes Management Act 2015 (SSMA) where those documents are silent or deficient.
Common and lot property are defined via the strata plan, and its drawings and annotations will help to determine where lot property starts, and common property ends.
Heavy lines on the strata plan indicate common property boundaries. Annotations may give details on specific areas, such as the lower boundary of an area of lot property.
Such lower boundary annotations are common on strata plans with courtyards, as they specify to which depth lot property extends (and usually to what height).
A special note here – a reference level used for an upper bound of a lot area (e.g. “The lot extends 2.5m above the level 1 slab”) does not set that reference level as the lower bound (in my example, the “level 1 slab” cannot be assumed to be the lower bound of the lot property area in question). Bounds must be explicitly defined, or default definitions using structural or geographic levels likely apply.
A courtyard annotation may state something along the lines of “The lot property extends 50cm below the upper surface of the ground level slab” (such annotations are usually specified in relation to some horizontal part of the building/s of the scheme to avoid confusion over terms such as “ground surface level” in landscaped areas, or when excavation or infill changes ground level).
So, a deck and its footings may, or may not, extend into common property based on such lower bounds definitions in the strata plan.
The provisions of the Dividing Fences Act 1991 may also come into play if the boundary between the two lots is not common property, or on the boundaries with properties adjoining the scheme (the strata plan should indicate if that external boundary is a common property boundary or a lot property/adjoining property boundary).
There are also planning requirements around fence heights and whether they are exempt or complying developments, see Fences: Rules for exempt and complying development.
Under Part 6, Division 1 (“Common Property”) of the SSMA, any amendments to, additions affixed to, removal of structures on, etc. common property boundaries are considered changes to common property and would require a special resolution by the owners corporation (no more than 25% voting against by unit entitlement of those exercising their vote).
Replacing the old fence between your courtyard and the common property would almost certainly fall into this category of works.
Additionally, to ensure the owner undertaking such works is responsible for the repair and maintenance of the works, a common property rights by-law should be specially resolved (at the same time the works are approved) and registered (within 6 months of it being specially resolved) before works commence. As the owner undertaking the works, you will need to sign a consent form before the by-law is considered at the meeting, which confirms you consent to be responsible to the repair and maintenance of the works moving forward.
In your situation, that would mean if both lots are present and voting at a general meeting to approve such changes, both lots would need to vote for the changes (unless the other owner has 25% or less of unit entitlements).
An additional consideration is the standard “appearance of lot” by-law (by-law 12 in the model by-laws), which usually states something along the lines of “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.”
Privacy screens will likely fall under these provisions, while the actual construction of the deck may make any deck constructed subject to this by-law, even if considered to not affect common property. Is the deck visible from outside the lot? Is there an awning? Is there a balustrade?
With the extent of interpretation across instruments, seeking owners corporation approval via special resolution at a general meeting is likely the most prudent path to ensure all works are performed appropriately while ongoing repair and maintenance is defined for the benefit of present and future owners.
Interpreting the specifics of your strata plan and by-laws to properly prepare such a by-law in light of the SSMA and other Acts and requirements above means expert strata legal advice should be sought before proceeding. Such advice would also include which works could be considered cosmetic or minor works under the SSMA (see Sections 109 and 110).
Approval of these by-laws cannot be unreasonably withheld by the owners corporation, and NCAT can make orders to prescribe changing the by-laws to create such a by-law (Section 149 of the SSMA) if approval is not given and refusal is found to be unreasonable.
Sean McNamara
Strata, Meet Data
E: [email protected]
P: 0414 920 726
This post appears in Strata News #706.
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Read next:
- NSW: How to Enforce Against Unauthorised Works
- NSW: Q&A Renovations, Design or Building Works to Strata Buildings
The information contained in this article is general information only and not legal advice. The currency, accuracy and completeness of this article (and its contents) should be checked by obtaining independent legal advice before you take any action or otherwise rely upon its contents in any way.
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