Question: Structural work on our large older building required scaffolding to be erected. Access to all ramp or lift entrances into the building is blocked for 6-8 months. Should the committee provide alternate access?
We large complex of 162 units it is an older building. I have a new baby and there are only two ways to get to the front entrance of the building with a pram. All other ways involve stairs that I can’t navigate on my own.
Structural work has required scaffolding and a small site office to be erected. These will be in place for 6-8 months. This temporary structure has blocked access to a ramp into the garage and a door to a lift. I am no longer able to easily leave the complex.
Is there legislation I can quote to the strata committee that would require them to make provisions for another access point?
Our building manager said the strata were aware this could potentially cause issues and still signed off on the restricted access. “[T]hey would deal with any issues on a reactive basis”.
Answer: If you consider there is a safety issue, it may be best to first raise this with the strata manager or building manager and enquire whether they will discuss the issue with the contractor before you make a complaint.
Before we consider the inconvenience of the situation it is important to consider safety, in particular safety in the event that there is a fire in the building and occupants need to exit the building in an emergency. It is an offence to obstruct a fire exit and if you have reason to believe a fire exit has been obstructed it would be best to bring this to the attention of the strata manager. Obstruction of a fire safety exit would be a matter the council would likely look into and it may constitute a breach of the development consent conditions.
Additionally, if the scaffolding and location of the office affects safety at the work site, a SafeWork NSW Inspector (also referred to as WorkCover Inspector) may inspect the work site and issue a notice on the contractor. If you consider there is a safety issue, again it may be best to first raise this with the strata manager or building manager and enquire whether they will discuss the issue with the contractor before you make a complaint.
There was a case the Supreme Court decided in 2018 (EB 9 & 10 Pty Ltd v The Owners SP 934) where an owners corporation was obstructing access to an owners car space. Some of the comments made in this decision may support your position, in particular the judge made the following comments:
I accept the plaintiff’s submission that inherent in the sections to which I have just referred and the scheme of the strata title scheme registration generally, is the fact that one of the fundamental (if not the fundamental) purpose of common property is to provide owners with reasonable access to their lots. Section 153(1)(c) of the Management Act makes clear that an owner (amongst others) cannot use the common property in a way that unreasonably interferes with another owner’s use or enjoyment of his or her lot.
Although an owners corporation is not subject to s 153, it would be a strange result if an owners corporation (which, after all, is only the body corporate comprising the owners of the lots from time to time: see s 8 of the Management Act) could act in relation to the common property in a way that individual lot owners cannot. In making that observation, I immediately acknowledge that the rights and obligations of the owners corporation are in the first instance those set out in the legislation. Nevertheless, I am satisfied on the basis of the authorities to which Ms Peden has referred, that an owners corporation cannot exercise its rights in relation to the common property which it holds as agent for the owners (see s 28 of the Development Act) in a way which derogates from any owner’s right to use the common property for reasonable access to his or her lot.
Following is a link to the decision: Supreme Court New South Wales: EB 9 & 10 Pty Ltd v The Owners SP 934 [2018] NSWSC 464
You could quote the case above however the issue may come down to what is reasonable in the circumstances and this could be open to interpretation. In the case referred to above the owner had an expert report to support his position. I do suggest taking legal action until after you have legal advice from a solicitor that there are good prospects of success. If you consider legal action may be necessary you should obtain advice from a solicitor who specialises in strata law.
Shane Williamson
Williamson Lawyers Pty Ltd
E: shane@williamsonlawyers.com.au
P: 0404 045 605
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