Question: Approval was given for an owner to update plants and mulch in a common property garden bed. The owner then ordered masonry blocks and pavers. The owners corporation stepped in, and now the owner wants to go to meditation. Can the OC revoke the initial approval?
Last year, an owner in our 17 villa complex requested approval to change a common garden bed outside their villa. The owners corporation approved the renewal of plants and mulch in the garden.
A few months later, despite not having approval for further work, the owner ordered besser blocks to build a small retaining wall and pavers to place in front of their lot.
The owners corporation refused to approve the use of these materials and has suggested an alternative material that is in keeping with the appearance of the common property.
The owner wants to go to mediation. Can we revoke the original approval? The owners corporation would like to complete the garden using the appropriate materials.
Answer: Review the registered by-laws for any special by-laws which may be relevant, and especially consider the by-law which relates to the appearance of lots.
My suggestion is to review the registered by-laws for any special by-laws that may be relevant and especially consider the by-law relating to the appearance of lots. This is by-law 12 of the model by-laws in the Strata Schemes Management Regulation 2016, the model by-law states:
12 Appearance of lot
- 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.
- 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.
The strata committee should form a view on whether the plants, besser blocks, pavers, etc., are visible from outside the lot and not in keeping with the rest of the buildings.
For example, it may be that the besser blocks are not in keeping because they are not used anywhere else within the property. It may be that the pavers are in keeping but not in the colour grey. As you have indicated in your question, changing the materials may change whether something is in keeping with the rest of the buildings.
In relation to revoking the approval, based on your question, my understanding is that the approval was limited to renewing the plants. The strata committee should consider whether the approval involved replacing the plants with the same or similar species or if approval was given to change the plants entirely to a different species.
Revoking the approval may raise the question of why the approval was granted in the first place. If the approval was granted with knowledge of what was going to be planted, there could be an inference that the owners corporation had accepted the new plants were in keeping and it is now seeking to change its position for other reasons.
If the approval did not cover the besser blocks and pavers, the owners corporation may consider prohibiting the installation of these materials by refusing to grant written approval. Reasons should be provided if the approval is refused.
As the property is lot property, as opposed to common property, the owners corporation cannot complete the garden without permission from the lot owner.
The owners corporation should consider attending mediation with the owner with the aim of reaching an agreement. The mediation itself is confidential. However, the Tribunal has the power to make orders to give effect to any agreement arising out of mediation.
Please note that as the facts and details provided are very limited, my answer is not intended to be legal advice and does not address the legal issues and your legal rights and obligations. To obtain legal advice, I recommend speaking with a legal practitioner who specialises in strata law.
This post appears in the August 2023 edition of The NSW Strata Magazine.
Shane Williamson
Williamson Lawyers Pty Ltd
E: shane@williamsonlawyers.com.au
P: 0404 045 605
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