Question: My other duplex owner agreed to a council-approved garage renovation but is now refusing to proceed. What are the options?
We live in an equal dual occupancy apartment. The other owner agreed and signed the submission to council to renovate the common property garage. They now say that they don’t want to go ahead with the renovation even though it has been approved by council. We desperately want it done as parking is extremely difficult.
Are they obliged to complete the renovation of the garage? They won’t discuss the situation at all and say no. What are our options?
Answer: Council sign-off is not strata approval, but a truly unreasonable refusal can be tested at NCAT.
Council approval and strata approval are two different things
You’re dealing with two separate approvals, and only one has happened. A development application signed by both owners and consented to by council is planning approval. Because the owners corporation (OC) owns the common property, council will usually require it to sign off before a DA affecting common property can be lodged. That signature is an administrative planning step. It is not the approval strata law requires, and it does not commit your co-owner to proceed with, fund, or complete the works.
What strata law requires
Renovating a common property garage is a change to common property. Under section 108 of the Strata Schemes Management Act 2015, an owner or the OC may alter or add to common property to improve or enhance it, but only if a special resolution has first been passed specifically authorising the particular action proposed. If the renovated garage is for one lot’s exclusive use, you also need a common property rights by-law (sections 142–143), passed by special resolution and registered with NSW Land Registry Services.
So first, check your scheme’s records: has a special resolution been passed, and, if exclusive use is involved, has a by-law been made and registered? If yes, the works are authorised, and this becomes a question of carrying them out. If no, read on.
Don’t assume the vote is locked
Voting on a special resolution is counted by unit entitlement, not by the number of owners. The resolution fails only if owners holding more than 25% of the aggregate unit entitlements vote against it. Before assuming you’re stuck, check the schedule of unit entitlements on your registered strata plan. If your lot carries more than 75% of entitlements, you may be able to pass the resolution without her supportive vote. If entitlements are equal, you can’t, and that’s where the Tribunal comes in.
A refusal is not necessarily the end of the road
Where consent is refused, that refusal can be tested at NCAT. Two pathways apply, depending on how the works are characterised:
- If the works grant you exclusive use of, or special privileges over, the common property garage, and the OC unreasonably refuses to make the by-law, you can apply under section 149. NCAT may make an order that takes effect as though it were the by-law.
- If the works are better described as a minor renovation, alteration or repair to common property directly affecting your lot, and consent is unreasonably refused, you can apply under section 126 for an order requiring the OC to consent.
Both turn on a single question: was the refusal unreasonable? The Tribunal must weigh the interests of all owners, and “unreasonable” carries its ordinary meaning, shaped by established case law. A refusal backed by no genuine, articulated reason, simply “no, I won’t discuss it”, is the kind a tribunal may well find unreasonable. But it is not automatic: the Tribunal will also weigh any legitimate concerns your co-owner holds, such as cost, disruption, or future maintenance liability, and refusals have been upheld as reasonable on their particular facts.
What are the other owner’s obligations?
They are under no positive obligation to build or complete anything, and signing the council DA created none. But their power to block is not absolute. If their refusal of consent is unreasonable, you can ask NCAT to authorise the works over her objection under section 126 or 149, and the Tribunal can also specify who carries the ongoing maintenance of the renovated garage.
Practical next steps
- Check your registered by-laws and meeting records, confirm whether the works are already authorised.
- Check the schedule of unit entitlements, establish whether you can pass the resolution yourself.
- Put the motion properly at a general meeting (special resolution, and a by-law if exclusive use is involved), so her position is formally recorded. You need that refusal on the record before you can run a section 126 or 149 application.
- Attempt mediation through NSW Fair Trading, which is a prerequisite for most NCAT applications.
- If it remains unresolved, take advice on an NCAT application under section 126 or 149, focused on whether her refusal is likely to be found unreasonable.
As always, work from your scheme’s own registered by-laws rather than the model by-laws, and given the two-lot dynamic, get advice specific to your scheme before lodging anything.
This post appears in the August 2026 edition of The NSW Strata Magazine.
Tim Sara Sara Strata E: tim@sarastrata.com.au P: 04 8500 7960
