Question: Should approval for a balcony garden installation include liability clauses to protect against future water damage?
The top-floor owners wish to establish a garden on their balcony, which is above the rooms of the apartment below. A new waterproof membrane would be installed.
The concern from the owner below is the risk of damage from water penetration in the future. Should this be approved with liability clauses on the garden owners?
Answer: Yes, approval should always be conditional on a properly drafted by-law that transfers liability and maintenance responsibility to the lot owner.
Balcony gardens, waterproofing and future liability
If a lot owner wishes to establish a garden on a balcony, particularly where the balcony sits above another lot, the approval should be carefully documented and supported by a by-law containing appropriate liability and maintenance provisions.
A balcony garden introduces additional risks that would not ordinarily exist on a standard balcony. These risks can include water penetration, membrane failure, drainage issues, excess weight loading, root intrusion, and damage to common property or neighbouring lots.
While installing a new waterproof membrane may reduce the risk, it does not eliminate it. Waterproofing systems deteriorate over time and may fail due to poor installation, inadequate maintenance, or changes to the garden arrangement in the future.
For this reason, any approval should be conditional upon a properly drafted by-law prepared by a strata solicitor. The by-law should be registered on the common property title and bind current and future owners of the lot.
Why this issue matters
Balconies are one of the most common sources of water ingress disputes in strata schemes. Even relatively minor modifications can create significant liability where water penetrates the lot below.
Without clear documentation, disputes can quickly arise regarding who is responsible for investigation costs, repairs, waterproofing failures, and consequential damage.
A well-drafted by-law protects not only the owners corporation (OC) and neighbouring owners, but also the owner installing the garden by clearly setting out rights, responsibilities, and expectations from the outset.
The purpose of the by-law
The by-law serves two important purposes. First, it acts as the formal approval mechanism for the proposed works. Second, and perhaps more importantly, it is the primary mechanism by which responsibility for alterations to common property can be transferred from the OC to the lot owner carrying out the works.
In most strata schemes, depending on when the strata plan was registered, the balcony structure and waterproofing membrane will form part of the common property. This is because the balcony often serves not only as the floor of one lot but also as the ceiling or roof structure of the lot below. Where a lot owner wishes to alter common property by installing a balcony garden, it is common practice for the by-law to make that owner, and all future owners of the lot, responsible for the ongoing maintenance, repair and replacement of the alteration. Because the by-law is registered against the common property title and linked to the lot, those obligations continue to bind future owners.
What should the by-law cover?
Every proposal will differ, but the by-law should generally address:
- Responsibility for all installation, maintenance, repair, replacement, and removal costs associated with the garden and waterproofing system.
- Liability for any damage caused to common property or neighbouring lots arising from the garden, irrigation system, drainage, or waterproofing failure.
- Requirements to maintain adequate drainage and prevent water overflow, ponding, or runoff.
- Rights for the OC to inspect the area periodically to ensure compliance and identify potential issues early.
- Requirements to remove the installation and reinstate the balcony if necessary.
- Ongoing responsibility that transfers to future owners of the lot.
In addition, the by-law should contain broader approval conditions dealing with the carrying out of the works themselves. These commonly include requirements that the works be undertaken by appropriately licensed and qualified contractors, comply with all applicable Building Code of Australia requirements, Design and Building Practitioners Act 2020 obligations, local council requirements and any other statutory approvals. The by-law should also address matters such as permitted working hours, site management, protection of common property during construction and the ongoing transfer of responsibility to future owners of the lot.
What your next practical steps should be
If your scheme is considering a balcony garden proposal, the OC should request detailed plans before approving. These should show the proposed garden layout, planter boxes, drainage arrangements, irrigation system, waterproofing specifications and any expected additional load on the balcony. Given the risk of future water penetration and structural impacts, it is prudent to obtain advice from a suitably qualified waterproofing consultant, engineer or building professional to ensure the proposed works comply with applicable building standards, waterproofing requirements and any Design and Building Practitioners Act 2020 obligations.
A strata solicitor should then prepare a by-law that clearly records the approval conditions, ongoing maintenance obligations, liability for damage and responsibility for all current and future costs associated with the installation. A proactive approach at the approval stage is far easier and less costly than trying to resolve a water ingress dispute years later. Where waterproofing gardens and neighbouring lots are involved, clear documentation, expert advice and properly drafted liability provisions are essential to protect the owner below, the OC and future owners of the lot.
This post appears in the September 2026 edition of The NSW Strata Magazine.
Leanne Habib
Premium Strata
E: info@premiumstrata.com.au
P: 02 9281 6440
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