NSW: Q&A Strata approval for renovations – What is the process?

Lot owners from NSW are wondering about the correct process for strata approval for renovations.

Table of Contents:

• QUESTION: An owner enclosed his balcony to create any additional liveable space. Retrospective approval included a motion that the owners corporation accepts the structure as built. The owners corporation has accepted this. What risk does this expose us to?


• QUESTION: We have a by-law for every renovation, some with multiple pages. We’ve ended up with a large number of by-laws. Many of the by-laws have no relevance for current residents. What is the answer to this dilemma?


• QUESTION: I paid a $500 bond for renovations 18 months ago. The work is now complete and has been signed off. I’ve requested a refund of the bond. Our strata manager says it cannot be repaid till the next AGM in a few months. Is this correct?


• QUESTION: How is the lot owner’s consent to the major renovation bylaw usually presented to the OC? For this transfer of responsibility to be effective, should we receive the written consent of all the owners of that lot?


• QUESTION: Should a Special Resolution for a by-law include the full by-law, which runs to two pages, or reference it as an attachment?


• QUESTION: We provided all relevant documentation for approval to install hardwood flooring to our strata manager. If we aren’t given approval despite meeting all requirements, is this reasonable?


• QUESTION: How do we know if an alteration is a minor or a major renovation?


• QUESTION: Our renovation has been approved but we have been told to cease work until the bylaw has been registered. As approval has been granted, is it reasonable to withhold consent to commence?


• QUESTION: An owner in our 46 unit strata scheme wishes to add a room to his lot. Work involving reconfiguring internal walls is classified as minor works in the scheme’s by-laws, but is planning or additional permission required in respect of the strata plan or from local council?


• QUESTION: Minor Renovations in NSW can involve interfering with common property without the need for a special resolution. If damage occurs, who repairs the common property?


• QUESTION: I’m seeking approval for new floorboards, but the committee insists upon a specific and expensive underlay. Can the owners corporation determine what underlay I use if I’m able to meet their requirements with a product I have chosen?


• QUESTION: If a generic by-law for waterproofing is approved by the Owners Corporation, must subsequent requests for renovations requiring waterproofing still need to be approved by a special resolution?


• QUESTION: I’d like to carry out minor renovations to my unit’s bathroom and kitchen. What is a reasonable amount of time for the committee to approve minor renovations once all plan documents have been provided?


• QUESTION: I’d like to change my apartment flooring from carpet to tiles. Do I need a bylaw before beginning renovations in a strata property?


• QUESTION: I live on the ground floor of an apartment and we have a patio and garden area. I would like to build a roof over the patio area. What do I need to consider? What approval do I need to seek?


• QUESTION: What would the consequences be if we approved a lot owner’s request for a bathroom renovation (including the waterproofing) by Special Resolution rather than a By-Law?


• QUESTION: As Council requires the owners corporation to sign off on a development application before it can be considered, how much detail is the owners corporation justified in asking the lot owner?


• QUESTION: Do we need permission from the owners corporation to install an entertaining area, including a sink and lighting, in our villa’s backyard?


• QUESTION: Can we combine 2 strata lots to create one large lot? What do we need to consider when planning out the renovation?


• QUESTION: Who pays for a dilapidation report if the downstairs neighbour wants to remove load bearing walls?


• QUESTION: If there is an existing renovations bylaw in place, does the lot owner need to get a new bylaw if additional renovations fit the original scope of works.


• QUESTION: If I replace my old window and the owners corporation decides to replace all windows in the future, will I be liable for the special levy?


• QUESTION: Kitchen renovations resulted in a burst water pipe causing damage to the unit below. No bond or bylaw was submitted for the renovation. Who is responsible for the cost of the repairs?


• QUESTION: One of our lot owners wants to erect a cage in his on title garage space. Is a bylaw required for this? If so he fears the costs involved will be much more than the cage installation.


• QUESTION: Do we need permission to tile over the top of tiles in our townhouse bathroom and laundry? We will not be disturbing the waterproofing or original tiles?


• QUESTION: Our strata manager wants to charge us a $200 an hour fee to host a general meeting. We need approval for renovations and for a cat. Is this normal?


• QUESTION: Our committee has a bylaw which empowers the Committee to approve minor renovations. Our Strata Manager insists we still need an EGM for the strata committee to vote. Is this correct?


• QUESTION: We are looking to install insulation in the roof of our apartment. What is involved in having a bylaw drawn up by a solicitor?


• QUESTION: My balcony cannot be viewed from any common property. Can I retile my balcony as long as the finish is in keeping with the building without OC approval for the renovations being asked?


• QUESTION: My townhouse has a compact garden with a tiled patio and lawn (within my lot). Can I take up the patio and reconfigure my outdoor landscaping to better suit my taste? Do I need approval?


• QUESTION: We have a clause in a common property rights by-law where specific parts of the common property are not named. Is this bylaw valid?


• QUESTION: To undertake major and minor renovations, do we need a separate bylaw submitted for each item or can it all be included in one special renovation by-law?


• QUESTION: We’ve never received approval for an air conditioner. We’ve recently been told to move the exterior unit as it is not keeping with the appearance of the lot.


• QUESTION: We’ve submitted a bylaw for the renovation of our unit. A lot Owner and the Strata Manager want us to pay for the review of the bylaw by a strata lawyer. Where do we stand?


• QUESTION: Do I need strata approval for the renovations of my bathroom if I am simply replacing like for like and retiling over the existing floor tiles? Is this work considered a minor cosmetic renovation?


• QUESTION: I’m concerned about the correct process of strata approval for renovations in our scheme. Renovations involving waterproofing isn’t being considered a major work under the new legislation, and therefore not being considered by the Owners Corporation as a special resolution.


• QUESTION: We are looking to renovate our bathroom, toilet and laundry in the single story townhouse we purchased last year. The renovation includes installing a waterproof membrane. What is the strata approval for renovations process and what approvals do we need from the owners corporation?


• QUESTION: Are there any templates available of renovation bylaws?


• QUESTION: Is it possible to have generic renovation bylaws for major works set up by the Committee so that everyone can use them without having to go to the trouble and the cost of setting up their own?


• QUESTION: Strata approval for renovations – Do I need to get our strata or Owners Corporation approval for installing a sliding door between our dining room and kitchen in our apartment?


• QUESTION: We wish to renovate our strata unit in Sydney. What are the steps involved to obtain strata approval for renovations?


• QUESTION: During the process of strata approval for renovations are there circumstances where you may be exempt from registering strata bylaws?

Question: An owner enclosed his balcony to create any additional liveable space. Retrospective approval included a motion that the owners corporation accepts the structure as built. The owners corporation has accepted this. What risk does this expose us to?

Without correct approvals, an owner in our ten lot strata scheme has enclosed his balcony with glass panels/doors to create an additional liveable space. This work changes the outside appearance of the building.

He completed the work without council approval or complying with the Design and Builders Practitioners Act or owners corporation approval which he subsequently obtained eight months later.

His motion to seek approval was subsequently changed at the meeting to include that the owners corporation accepts the structure as built. In other words, the owners accept an illegal non complying structure on the building. This potentially affects the building insurance and the value of the building and individual units. I objected that the change in the motion materially changed the intent of the original motion, which was to approve the enclosure off the balcony, not the enclosure on the balcony.

The owners corporation now does not wish to request compliance. Does this expose us to any risk? As an owner, what can I do?

Answer: Seek to have this motion brought up at the next general meeting.

This owner who has enclosed his balcony should submit a special by-law to the owners corporation for approval to ensure he remains responsible and liable for the ongoing maintenance. You could seek to have this motion brought up at the next general meeting. The difficulty here is that the lot owner can seek to obtain retrospective approval from the owners corporation.

At the meeting, you may wish to raise that the owner completed the work without compliance with the Strata Schemes Management Act 2015 and requirements of the Design and Builders Practitioners Act. The Owners Corporation could consider escalating this matter to the Tribunal to enforce the breach of the by-laws. I would be happy to advise further with you directly in this regard.

Pierrette Khoury Khoury Lawyers E: pierrette@khourylawyers.com.au P: 0415 459 486

This post appears in the September 2023 edition of The NSW Strata Magazine.

Question: We have a by-law for every renovation, some with multiple pages. We’ve ended up with a large number of by-laws. Many of the by-laws have no relevance for current residents. What is the answer to this dilemma?

Answer: you may wish to engage the services of a strata solicitor to draft you a “generic” by-law for all major and minor renovations.

It will be difficult to condense your by-laws as any amendments to those by-laws passed require the written consent of each owner benefited (unless you think such consent will be forthcoming from all owners).

Moving forward, you may wish to engage the services of a strata solicitor to draft you a “generic” by-law for all major and minor renovations, which includes the wording of a short form by-law to be passed for a specific renovation for a specific owner. That will reduce the volume of pages in future.

Leanne Habib Premium Strata E: info@premiumstrata.com.au P: 02 9281 6440

This post appears in Strata News #649.

Question: I paid a $500 bond for renovations 18 months ago. The work is now complete and has been signed off. I’ve requested a refund of the bond. Our strata manager says it cannot be repaid till the next AGM in a few months. Is this correct?

Answer: Review the precise terms of your by-law.

You should review the precise terms of your by-law as that will set out the procedure for having your bond (or part thereof) refunded. The by-law may state that the owners corporation must be satisfied you have complied with your works by-law but usually the by-law will state that the strata committee can authorise its release (provided it is satisfied you’ve complied with the by-law).

Despite the above, it seems an inordinate delay for you to have waited almost 2 years and you should press the strata manager/strata committee for reimbursement.

Leanne Habib Premium Strata E: info@premiumstrata.com.au P: 02 9281 6440

This post appears in Strata News #631.

Question: How is the lot owner’s consent to the major renovation bylaw usually presented to the OC? For this transfer of responsibility to be effective, should we receive the written consent of all the owners of that lot?

I understand that section 108 of the SSMA states that a registered major renovations bylaw makes a lot owner responsible for ongoing maintenance of common property affected by the major renovations. For this transfer of responsibility to be effective, should we receive the written consent of all the owners of that lot? Neither our strata manager nor the lot owner has mentioned this. Our strata manager is intending to use a ‘recycled’ bylaw that has been used for similar major renovations previously.

Is there some form of written consent that must be undertaken? Can we request a letter from the owners of the lot agreeing to pass the bylaw that is included with the General Meeting agenda at the same time the bylaw is put to the meeting for a vote? Are there examples of this type of acceptance?

How is the lot owner’s consent to the major renovation bylaw under section 108 of the SSMA usually presented to the OC?

Answer: Most lawyers who prepare such by-laws provide a generic form of consent which is attached to the by-law.

There is no prescribed form or specific format for the required consent.

As you correctly state, Section 108 (5) of the Strata Schemes Management Act, 2015 (NSW) requires the written consent to the making of the by-law from the owner benefited and their consent to fulfil the repair and maintenance responsibilities set out therein.

Most lawyers who prepare such by-laws provide a generic form of consent which is attached to the by-law. It usually takes the form of a letter setting out the terms of their consent with the names of the owner(s), the subject lot, the date, signature panel and agreement to pay all the Owners Corporation’s costs in the preparation and making of the by-law (ie drafting and registration/consolidation).

There is no requirement to register or lodge the consent though the strata manager or strata committee will normally file the consent for their records.

See below relevant extract of the Strata Schemes Management Act 2015, Section 108 (5).

5. A special resolution under this section that allows an owner of a lot to take action in relation to certain common property and provides that the ongoing maintenance of that common property after the action is taken is the responsibility of the owner has no effect unless—
   
   1. the owners corporation obtains the written consent of the owner to the making of a by-law to provide for the maintenance of the common property by the owner, and
   
   
   2. the owners corporation makes the by-law.

Leanne Habib Premium Strata E: info@premiumstrata.com.au P: 02 9281 6440

This post appears in Strata News #620.

Question: Should a Special Resolution for a by-law include the full by-law, which runs to two pages, or reference it as an attachment?

We are looking to renovate our bathroom. Should a Special Resolution for the by-law include the full by-law, which runs to two pages, or reference it as an attachment?

There is an Attachment A to the by-law which is includes builder’s details and a description of the work to be carried out.

Answer: We recommend that all particulars/details of the works be included within the text of the by-law itself.

For abundance of caution, we recommend that all particulars/details of the works be included within the text of the by-law itself as this is the document (once passed) which is registered on the folio of the common property with the Registrar General’s Office (NSW Land Registry Services) and becomes the permanent record of the approvals passed by the Owners Corporation.

However, your strata managing agent may keep on file this “Attachment A” together with the lot owner’s written consent both of which would be cross-referenced in the by-law and be available for production should a dispute arise.

Leanne Habib Premium Strata E: info@premiumstrata.com.au P: 02 9281 6440

This post appears in Strata News #595.

Question: We provided all relevant documentation for approval to install hardwood flooring to our strata manager. If we aren’t given approval despite meeting all requirements, is this reasonable?

We are looking to remove existing carpets in our unit and replace them with hybrid flooring. This is currently determined to be a minor renovation according to our by-laws. We provided all of the relevant documentation to the strata manager, including acoustic reports, insurances and quotes for the chosen AAAC 6 Star rated floor finish over a month ago to put to the committee to vote.

We are not sure if the strata manager has even put forward the request to the committee at this point and avoids answering every time I have asked. If he has put forward the flooring for consideration and the committee has cast a no-vote regardless of the fact that we have met all requirements, would this be considered unreasonable? The strata manager keeps referring to a previous instance of a resident installing flooring that was not to standard as a reason as to why he doesn’t ‘think’ that the committee will approve.

Answer: If your application is unreasonably refused, you can seek orders from NCAT.

Approval of minor renovations by a strata committee

Section 110(6)(b) of the Strata Schemes Management Act (‘the Act’) allows an owners corporation to delegate the function of considering minor renovations (such as “installing or replacing wood or other hard floors”) to its strata committee. To do so, the owners corporation must have registered a by-law that expressly provides the delegation. In the absence of a by-law, minor renovations can only be approved by ordinary resolution at a general meeting of the owners corporation.

How long does the owners corporation or strata committee have to consider the application?

There is no law that specifies a time frame in which the owners corporation or its strata committee must consider an application.

Section 43(f) of the Act grants the Secretary the power to convene strata committee meetings, general meetings and annual general meetings.

Section 18 of the Act requires the annual general meeting to be held once each financial year. For strata committee meetings and general meetings, there is no requirement for the Secretary to convene them (unless they’ve been forced to do so, which is explained in the article linked further below in this article).

If an owner has submitted a motion under Schedule 1, clause 4 of the Act, it must be included in the agenda of the next general meeting (whenever that is convened).

How do I make it happen if the Secretary refuses to convene a meeting?

The Strata Managing Agent may have been delegated functions of the Secretary under section 51 of the Act, by way of their appointment and under the terms of their agreement. However, the Secretary’s powers supersede the delegation (in other words, if the Secretary invokes their rights, duties and obligations, the Strata Managing Agent cannot overrule them).

Otherwise, there are other mechanisms to force a meeting to be held – check out the response to the question “Question: At our AGM, a special levy was approved to replace aged windows. An owner has since challenged the decision and is seeking to have it overturned. What are the chances the decision will be overturned and if so, how do we fix the damaged windows?” on the “NSW Overruling Strata Committee Decisions” page of LookUpStrata.

What is the Strata Managing Agent’s role in all of this?

The Strata Managing Agent would assist in communicating between the Strata Committee and the applicant. It is not unusual for a Strata Committee to review an application for works simply to provide feedback on its prospects, but ultimately the decision to approve or deny the application must be made at a formal meeting. The Strata Managing Agent’s role is to give advice but not to make decisions or pass judgement on the application.

What if my application is taken to a meeting and is then unreasonably refused?

Section 126 of the Act allows an owner to seek orders from the NSW Civil & Administrative Tribunal, ordering an owners corporation to give consent to minor renovations or other alterations to common property directly affecting the owner’s lot. The Tribunal would need to be satisfied that the owners corporation has unreasonably withheld its approval.

How else can I move this forward?

Whilst the strata committee and owners corporation may not be obligated to hold a meeting (unless for the reasons mentioned in the linked article), it is not uncommon for an owner to want to renovate. It is most common for those leasing their property to want to renovate in-between leases. Here are a few tips:

• Allow plenty of time and apply early. The approval process can take weeks or months. Once you know you want to renovate, start the dialogue with the Strata Managing Agent or Strata Committee. It is always worthwhile getting approval well before wanting to carry out the works. Approvals don’t have a time limit on them either.


• Offer to cover the owners corporation’s costs. Meetings do cost money to run, and often applications will be left for a future meeting in order to minimise costs. Offering to cover those costs could remove any financial concerns by the owners or committee members.


• Communicate and understand any concerns. Sometimes the concerns may be legitimate. Other times, they could be misconceived or unreasonable. Speaking to experts will guide you on what is unreasonable. By-laws can be unreasonable, and just because one is registered, does not guarantee it is not unreasonable.


• Seek legal advice if you must. It is the last resort, but a lawyer specialising in strata law will be able to advise you and the owners corporation on the law and any cases relevant to the circumstances.

Tim Sara Strata Choice E: tsara@stratachoice.com.au P: 1300 322 213

This post appears in Strata News #592.

Question: How do we know if an alteration is a minor or a major renovation?

How do we determine if an alteration falls within the minor or major renovation category?

We have had a request from a lot owner to move their hot water system onto the balcony so they can replace it with a larger unit. It will involve drilling holes into the external wall and re-configuring plumbing.

Answer: Refer to these sections of the act.

Minor renovations are defined in S110 of the SSMA and S28 of the SSMA Regulations.

I don’t believe that work proposed is minor in nature as it involves external common property walls and maintaining a HW tank permanently outside on the balcony.

STRATA SCHEMES MANAGEMENT ACT 2015 – SECT 110

Minor renovations by owners

1. The owner of a lot in a strata scheme may carry out work for the purposes of minor renovations to common property in connection with the owner’s lot with the approval of the owners corporation given by resolution at a general meeting. A special resolution authorising the work is not required.


2. The approval may be subject to reasonable conditions imposed by the owners corporation and cannot be unreasonably withheld by the owners corporation.


3. “Minor renovations” include but are not limited to work for the purposes of the following–
   
   1. renovating a kitchen,
   
   
   2. changing recessed light fittings,
   
   
   3. installing or replacing wood or other hard floors,
   
   
   4. installing or replacing wiring or cabling or power or access points,
   
   
   5. work involving reconfiguring walls,
   
   
   6. any other work prescribed by the regulations for the purposes of this subsection.


4. Before obtaining the approval of the owners corporation, an owner of a lot must give written notice of proposed minor renovations to the owners corporation, including the following–
   
   1. details of the work, including copies of any plans,
   
   
   2. duration and times of the work,
   
   
   3. details of the persons carrying out the work, including qualifications to carry out the work,
   
   
   4. arrangements to manage any resulting rubbish or debris.


5. An owner of a lot must ensure that–
   
   1. any damage caused to any part of the common property by the carrying out of minor renovations by or on behalf of the owner is repaired, and
   
   
   2. the minor renovations and any repairs are carried out in a competent and proper manner.


6. The by-laws of a strata scheme may provide for the following–
   
   
   
   1. additional work that is to be a minor renovation for the purposes of this section,
   
   
   2. permitting the owners corporation to delegate its functions under this section to the strata committee.


7. This section does not apply to the following work–
   
   1. work that consists of cosmetic work for the purposes of section 109,
   
   
   2. work involving structural changes,
   
   
   3. work that changes the external appearance of a lot, including the installation of an external access ramp,
   
   
   4. work involving waterproofing,
   
   
   5. work for which consent or another approval is required under any other Act,
   
   
   6. work that is authorised by a by-law made under this Part or a common property rights by-law,
   
   
   7. any other work prescribed by the regulations for the purposes of this subsection.


8. Section 108 does not apply to minor renovations carried out in accordance with this section.

28 Minor renovations by owners

Work for the following purposes is prescribed as minor renovations for the purposes of section 110(3) of the Act–

1. removing carpet or other soft floor coverings to expose underlying wooden or other hard floors,


2. installing a rainwater tank,


3. installing a clothesline,


4. installing a reverse cycle split system air conditioner,


5. installing double or triple glazed windows,


6. installing a heat pump,


7. installing ceiling insulation.

Andrew Terrell Bright & Duggan E: Andrew.Terrell@bright-duggan.com.au P: 02 9902 7100

This post appears in Strata News #588.

Question: Our renovation has been approved but we have been told to cease work until the bylaw has been registered. As approval has been granted, is it reasonable to withhold consent to commence?

We are looking to renovate our kitchen and bathroom. Strata has approved the renovation however the Strata Manager says we can’t start any work until the bylaw is registered. They state this could potentially take up to 3 weeks.

Given the works have been approved by the owners corporation and it will be the strata’s Solicitors attending to the registration process, is it reasonable to withhold consent to commence?

Answer: It is reasonable to demand that you wait until the by-law has been registered

A by-law has no force or effect until it is registered or recorded at the office of the Registrar-General (NSW Land Registry Services) on the common property certificate of title.

Therefore, yes, it is reasonable to demand that you wait until the by-law has been registered (presumably at your sole cost and expense), however, 3 weeks seems a bit of a long wait given that PEXA electronic registration takes 1 – 2 business days (once all the necessary documentation has been executed and lodged).

Leanne Habib Premium Strata E: info@premiumstrata.com.au P: 02 9281 6440

This post appears in Strata News #584.

Question: An owner in our 46 unit strata scheme wishes to add a room to his lot. Work involving reconfiguring internal walls is classified as minor works in the scheme’s by-laws, but is planning or additional permission required in respect of the strata plan or from the local council?

Answer: The proposed changes are effectively a change in use. Council approval will be required as well as approval of the Owners Corporation. A by-law would also need to be prepared and submitted for approval by the Owners Corporation. Approval may include development consent or complying development consent to proceed depending on the scope of works.

The proposed changes are effectively a change in use. Council approval will be required as well as approval of the Owners Corporation. A by-law would also need to be prepared and submitted for approval by the Owners Corporation. Approval may include development consent or complying development consent to proceed depending on the scope of works.

Pierrette Khoury Khoury Lawyers E: pierrette@khourylawyers.com.au P: 0415 459 486

This post appears in Strata News #568.

Question: Minor Renovations in NSW can involve interfering with common property without the need for a special resolution. If damage occurs, who repairs the common property?

Minor Renovations in NSW can involve interfering with common property without the need for a special resolution. For example: Unit X’s owner replaces the unit block-standard single-glazed windows with double-glazed windows in Unit X only. In the event of damage to Unit X’s windows or to the wall around them (e.g. from water ingress):

1. does the owners corporation have to pay only the cost of replacing the unit block-standard single-glazed windows, with Unit X’s owner paying the difference since he wants double-glazing?


2. Importantly, how would you formalise (a) above, given that no special resolution is required?


3. who pays to fix the wall damaged by water ingress through Unit X’s new, double-glazed windows?

I am relying here on:

Section 28 of the Strata Schemes Management Regulation 2016; and

Section 110 of the Strata Schemes Management Act 2015.

Answer: It would be prudent for the owners corporation to make a by-law even though it is not required to.

Section 110 (minor renovations by owners) of the Strata Schemes Management Act (‘the Act’) does contain two key subsections relevant to the circumstances:

Minor renovations by owners

• Section 110(2) – “The approval may be subject to reasonable conditions imposed by the owners corporation and cannot be unreasonably withheld by the owners corporation.”


• Section 110(5) – “An owner of a lot must ensure that: (a) any damage caused to any part of the common property by the carrying out of minor renovations by or on behalf of the owner is repaired, and (b) the minor renovations and any repairs are carried out in a competent and proper manner.”

However, in my opinion it does not specifically transfer the ongoing obligation of repair and maintenance for the affected common property to the lot owner in the same way that a special resolution and by-law under section 108 of the Act would do.

Therefore, one of the “reasonable conditions” the owners corporation may want to impose is that the owner of the lot, from time to time, is responsible for the ongoing repair and maintenance of the common property and furthermore any damage caused to the common property as a result of the works. These should be included in the motion.

One challenge with this approach is that an owners corporation is only required to keep certain records (such as the meeting minutes that contain these conditions) for 7 years, and so the conditions could be lost over time.

For that reason, it would be prudent, in my opinion, for the owners corporation to make a by-law even though it is not required to. This will ensure that the obligations are recorded on title, forever.

It would therefore allow the owners corporation to clarify the answer to the questions you raise long after the decision was made.

Tim Sara Strata Choice E: tsara@stratachoice.com.au P: 1300 322 213

This post appears in the May 2022 edition of The NSW Strata Magazine.

Questions: I’m seeking approval for new floorboards, but the committee insists upon a specific and expensive underlay. Can the owners corporation determine what underlay I use if I’m able to meet their requirements with a product I have chosen?

I’m seeking permission from the Exec Committee to update my old floating floorboards to new hybrid flooring.

The committee only approves flooring if you commit to either using a very specific, made to order and expensive underlay or pay for your own acoustic testing report.

I have provided evidence that the underlay I propose exceeds the acoustic report recommendations the committee has provided.

Can the owners corporation determine what underlay I use if I’m able to meet their requirements with a product I have chosen?

Answer: If you have provided probative evidence that your choice of underlay meets or exceeds the strata committee’s specifications, their demands may be construed as being “unreasonable”.

Your works are categorised as “minor renovations” under the Strata Schemes Management Act, 2015 (NSW) (“Act”) provided they do not involve waterproofing and other exceptions.

If your strata committee is imposing these requirements, it appears that they have been delegated the power to approve “minor renovations” under the Act.

The Owners Corporation/strata committee may only impose reasonable conditions and approval cannot be unreasonably withheld by the Owners Corporation/strata committee as stated in the Act.

In our view, if you have provided probative evidence that your choice of underlay meets or exceeds the strata committee’s specifications, their demands may be construed as being “unreasonable”.

Leanne Habib Premium Strata E: info@premiumstrata.com.au P: 02 9281 6440

This post appears in the May 2022 edition of The NSW Strata Magazine.

Question: If a generic by-law for waterproofing is approved by the Owners Corporation, must subsequent requests for renovations requiring waterproofing still need to be approved by a special resolution?

I am secretary of a strata committee grappling with bathroom renovations.

If a generic by-law for waterproofing is approved by the Owners Corporation, must subsequent requests for renovations requiring waterproofing still need to be approved by a special resolution of the Owners Corporation or can this approval be provided by the Strata Committee?

My confusion arises because the NSW Fair Trading website says approval for waterproofing cannot be delegated to a Strata Committee (as opposed to Minor renovations, which can). I have heard conflicting options on this point.

Answer: Under the by-law the strata committee may be delegated the responsibility to obtain all relevant specifications, certifications, insurances, dilapidation report.

Once a generic by-law is passed which regulates all bathroom renovations in your scheme, under the by-law the strata committee may be delegated the responsibility to obtain all relevant specifications, certifications, insurances, dilapidation report etc. in accordance with the terms and conditions of the by-law.

Leanne Habib Premium Strata E: info@premiumstrata.com.au P: 02 9281 6440

This post appears in Strata News #558.

Question: I’d like to carry out minor renovations to my unit’s bathroom and kitchen. What is a reasonable amount of time for the committee to approve minor renovations once all plan documents have been provided?

Answer: The owners corporation has failed to exercise its function if it does not exercise it within 2 months of the making of your application.

When considering what is reasonable, you must take into account notice provisions under the strata legislation (3 clear days of notice of meeting) and the postal rule (7 business days) if the strata committee agenda is being posted through Australia Post. You would also need to allow adequate time to convene the subject meeting ie it would be unreasonable to expect the strata manager to convene a meeting of the strata committee in a couple days just to consider your application.

The strata legislation generally states that the owners corporation has failed to exercise its function if it does not exercise it within 2 months of the making of your application.

Leanne Habib Premium Strata E: info@premiumstrata.com.au P: 02 9281 6440

This post appears in Strata News #558.

Question: I’d like to change my apartment flooring from carpet to tiles. Do I need a bylaw before beginning renovations in a strata property?

I own and live in an apartment building in NSW. I’d like to change my flooring from carpet to tiles. Our Strata Manager has said a bylaw may first be needed as the tiles will be attached to my floor which is common property.

Is a by-law required or is there any way I can carry out the renovation without needing a bylaw?

Answer: You need to look at the existing by-laws for your scheme and its process for approving minor renovations.

In short, you need to look at the existing by-laws for your scheme and its process for approving minor renovations. In particular, check if your scheme has a by-law relating to floor coverings and noise transmission, particularly to other lots.

Some schemes have made by-laws specifically related to hard flooring. Such by-laws may make allowance for hard floor surfaces like tiles to be installed, subject to the floor underneath being treated to ensure the noise transmitted is below a certain acoustic rating. Make sure you follow the correct approval process as this will help to avoid disputes with your neighbours and the cost of having to reinstate floor coverings later.

If your scheme was registered prior to 1996, its by-laws may contain the by-law relating to floor coverings (by-law 14) from Schedule 2 to the Strata Schemes Management Regulation 2016. This by-law provides that all floor space, other than that in a kitchen, laundry, lavatory or bathroom, must be treated so as to sufficiently prevent the transmission of noise that is likely to disturb the peaceful enjoyment of the owner or occupier of another lot. This does not mean that tiles cannot be installed but may mean that an acoustic underlay or other floor treatment may be needed to minimise the impact of the hard flooring on your neighbours.

Even if there is no by-law relating to floor coverings or hard flooring, you still have an obligation to not create noise that may interfere with another lot owner’s or occupier’s peaceful enjoyment of their lot. This obligation is usually set out in By-Law 1 for schemes registered prior to 30 November 2016 or by-law 6 in post 30 November 2016 schemes.

Your request to install tiles in your apartment would be considered “minor renovations” to common property, pursuant to s110 of the Strata Schemes Management Act 2015. One of the minor renovations specifically listed is “installing or replacing wood or other hard floors”.

Minor renovations require the approval of the owners corporation before you carry out the work. A motion regarding the work to be undertaken would be considered at a general meeting. A majority is required for the motion to be approved. Alternatively, the Committee can approve minor renovations, but only if they have been delegated the power to do so pursuant to a by-law.

When submitting your request, you may need to provide details of the work to be undertaken, such as:

• Any plans of the work


• When the work will be carried out


• Qualifications and details of the tradespeople who will do the work


• Specifications of any products being used to treat the floor to prevent noise transmission and any guarantees or warranties that may be given by the manufacturer or installer.

The owners corporation may grant approval subject to reasonable conditions and its consent cannot be unreasonably withheld. Conditions may include ensuring your flooring meets a certain acoustic standard or the requirement for documentation, such as an acoustic engineer’s report to be provided once the tiles have been installed.

On the face of it, you may not need a by-law to carry out this work if the proper approval process is followed. That said, it may be prudent and appropriate for the owners corporation to insist on a by-law. If they prefer you put a by-law in place before the work is carried out, they have the option of drafting it in a way that outlines a fair and reasonable approval process for not just you, but all owners that may wish to carry out this work in the future.

Our team would be happy to assist with the drafting of a by-law, if required. Alternatively, you can go online to By-Law Builder and order a Floor Coverings by-law for just $129 + GST.

Nancy Torry Bugden Allen Graham Lawyers E: nancy@bagl.com.au P: 02 9199 1055

DISCLAIMER: This answer, provided to a question on the LookUpStrata website, is not intended to be legal advice. You should seek independent legal advice tailored to your specific circumstances. The information in this article is of a general nature and is not intended to address the circumstances of your particular legal issue.

This post appears in the April 2022 edition of The NSW Strata Magazine.

Question: I live on the ground floor of an apartment and we have a patio and garden area. I would like to build a roof over the patio area. What do I need to consider? What approval do I need to seek?

Answer: This would need approval at a General Meeting of all owners and a Special by-law to be put in place.

Owners Corporation approval for the enclosure of your patio is likely required for a number of reasons and it is suggested this would need approval at a General Meeting of all owners and a Special by-law to be put in place.

Consideration would need to be given on what is defined as your air space on the strata plan for your property. This will specify what is common property vs your lot property air space.

As the patio roof would likely affect the appearance of your lot and it is assumed it is going to be required to be attached to part of the common property (e.g. external walls) an application would have to be made as a renovation affecting common property under Section 108 and 111 of the Strata Schemes Management Act 2015.

This requires approval for the works by Special Resolution and a By-law adopted, both of which would need to be considered at a General Meeting.

Robert Fothergill Strata Life E: Robert@thestratalife.com.au P: 02 9456 9917

This post appears in the March 2022 edition of The NSW Strata Magazine.

Question: What would the consequences be if we approved a lot owner’s request for a bathroom renovation (including the waterproofing) by Special Resolution rather than a By-Law?

Answer: This may result in the Owners Corporation being responsible.

Because the works involve waterproofing and other changes to the common property, Section 108 (5) of the Strata Schemes Management Act, 2015 (NSW) applies. That section specifically states that:

Changes to common property

5. A special resolution under this section that allows an owner of a lot to take action in relation to certain common property and provides that the ongoing maintenance of that common property after the action is taken is the responsibility of the owner has no effect unless–
   
   
   1. the owners corporation obtains the written consent of the owner to the making of a by-law to provide for the maintenance of the common property by the owner, and
   
   
   2. the owners corporation makes the by-law.

If the proper process as per the above is not adhered to, the Owners Corporation may encounter difficulties in imposing on the owner the responsibility to repair and maintain the works carried out and may result in the Owners Corporation being responsible.

Leanne Habib Premium Strata E: info@premiumstrata.com.au P: 02 9281 6440

This post appears in the March 2022 edition of The NSW Strata Magazine.

Question: As Council requires the owners corporation to sign off on a development application before it can be considered, how much detail is the owners corporation justified in asking the lot owner?

An owner of a lot wishes to put in a DA for change of use of commercial premises in a strata complex that will involve some modifications such as additional toilets. As Council requires the owners corporation to sign off on the application before it can be considered, how much detail is the owners corporation justified in asking of the owner? Can the OC ask for finalised plans and details such as the precise nature of the works including who will perform the work?

Answer: The legislation doesn’t have any restriction on how much information the owners corporation can ask for.

The legislation doesn’t have any restriction on how much information you can ask for. The general rule of thumb is that you should be asking for everything that you need to satisfy yourself that the works are acceptable to you as an Owners Corporation or will have no detrimental impact on another law or the common property.

Generally speaking, we asked for all the plans (where relevant) whether they are plumbing, electrical, architectural, or structural, depending on the nature of works. We also ask for a detailed letter summarising the proposed changes so that we can then determine if a bylaw is required, and what other consents, as an Owners corporation, are required.

You can ask for any information that you need. There is no limit. That’s the short answer.

Leanne Habib Premium Strata E: info@premiumstrata.com.au P: 02 9281 6440

This post appears in the February 2022 edition of The NSW Strata Magazine.

Question: Do we need permission from the owners corporation to install an entertaining area, including a sink and lighting, in our villa’s backyard?

In a Villa complex can an owner build an entertainment area in their backyard?

The structure’s roof is attached from the facia board under the eaves of the back of the villa to the dividing fence, using the fence as walls for the entertainment area. The fence height has been raised to 2.2m. A sink has been installed, lighting & a fan.

Does any of this need strata approval or is this structure allowed?

Answer: Yes, strata approval (by way of a by-law as the structure changes the external appearance of the lot) is required from your description. Likely Council approval would be required too.

Leanne Habib Premium Strata E: info@premiumstrata.com.au P: 02 9281 6440

This post appears in Strata News #530.

Question: Can we combine 2 strata lots to create one large lot? What do we need to consider before planning the renovation?

We own a two-bedroom strata apartment and are considering buying the one-bedroom apartment next door to increase our overall space and give each of our daughters their own room, etc.

If no one else’s lots, building stability, etc. are affected and we engage a structural engineer to assess/advise on the work, then commit to make good repairs prior to our sale of either apartment downstream, could we install a doorway between the 2 lots?

Are there any existing precedents for this kind of thing in current strata law?

Answer: You will need a by-law to be passed by special resolution of the Owners Corporation to approve the creation of the doorway.

You will need a by-law to be passed by special resolution of the Owners Corporation to approve the creation of the doorway (together with structural engineering certifications/specifications etc) and the by-law can stipulate the reinstatement of the wall prior to re-sale of either lot if that is the intention. The by-law will also need to be registered on the folio of the common property (Owners Corporation’s certificate of title).

An alternative (but more expensive process) would be to combine the 2 lots by way of strata consolidation ie merge the 2 lots to be one and have the strata plan re-drawn to show both apartments as one. This is done through NSW Land Registry Services and requires a survey plan and various approvals from the Owners Corporation.

Leanne Habib Premium Strata E: info@premiumstrata.com.au P: 02 9281 6440

This post appears in the September 2021 edition of The NSW Strata Magazine.

Question: The owners below me intend to renovate, including removing load-bearing walls. Who is responsible for paying for a dilapidation report?

I own a unit in a block of four. The owners below me intend to renovate, including removing load-bearing walls. The engineers have recommended a dilapidation report be prepared for my unit before the renovations begin.

• Who is responsible for paying for this report?


• If there is damage to my unit from their renovations, how would this be managed and funded?

Answered: The homeowner who is wishing to undertake the renovations is required to pay for the dilapidation report and to restore the damage to any common property.

The homeowner who is wishing to undertake the renovations is required to pay for this report and to restore the damage to any common property. This is ordinarily set out in the by-law which should be tabled at the annual general meeting or extraordinary general meeting. It appears that the by-law is likely to make provision for a dilapidation report, pre and post the works being undertaken.

A pre dilapidation report is ordinarily prepared and after the work is completed a post dilapidation report is prepared. This will determine whether any damage is caused.

The cost should not fall on you. Any damage which appears in the post dilapidation report should be borne by the owner undertaking the works.

Pierrette Khoury Khoury Lawyers E: pierrette@khourylawyers.com.au P: 0415 459 486

This post appears in Strata News #502.

Question: If there is an existing renovations bylaw in place, does the lot owner need to get a new bylaw if additional renovations fit the original scope of works.

What is the ongoing benefit of a renovation by-law that has been registered against a lot? I have a building I manage where a lot owner obtained a by-law to do renovations in the lot, most specifically to the bathroom and waterproofing membrane. After the renovations, the lot owner sold the unit.

A new owner buys the unit and does not like the renovations and wants to renovate to their taste. Their renovation plans fall completely within the vague scope of works of the renovation by-law (eg “remove existing floor and install new flooring”). If you buy into the history of a unit, its by-laws, and the obligations and responsibilities of the by-law(s), then surely you can buy into the benefits as well. If the scope of works does not change, does the new owner need to get a new by-law for their renovations?

The obligations and responsibilities were already transferred to the new owner when they purchased the unit. They would need to get a renovation application approved by the Owners Corporation, but do they need a new by-law?

Answer: The motion and by-law should be very specific in terms of what works are being undertaken and who is responsible thereafter.

The owners corporation must still approve the renovation works in accordance with section 108 of the Strata Schemes Management Act, regardless of whether or not there is an existing by-law in place.

This is owing to subsection (2), which allows the work to proceed only if the owners corporation has passed a special resolution “that specifically authorises the taking of the particular action proposed.

In the article NSW: Renovation By-Laws – How Much Detail Do I Need To Include published by David Bannerman, Bannermans Lawyers, clarification is given to the need to:

1. adequately describe the works and the common property area; and


2. clearly identify who will be responsible for property maintenance of, and keeping in a state of good and serviceable repair, the specified common property are.

In summary, the motion and by-law should be very specific in terms of what works are being undertaken and who is responsible thereafter.

The vague description of the works in this particular by-law may serve to benefit the lot owner by avoiding the need for a new by-law, however it may also place the owners corporation (or the owner) at risk for the reasons mentioned in the article.

Tim Sara Strata Choice E: tsara@stratachoice.com.au P: 1300 322 213

This post appears in the August 2021 edition of The NSW Strata Magazine.

Question: If I replace my old window and the owners corporation decides to replace all windows in the future, will I be liable for the special levy?

I am about to renovate my unit and want to replace an old window with a louver. This process will cost about $5,000. I don’t mind paying, however, if strata want to replace all windows in the future, will I have to pay the special levy for the windows if my window is already replaced?

The committee have talked about replacing the windows for over 2 years, nothing has been done and I am just tired of waiting.

I am getting a bylaw made for my kitchen and bathroom renovations and am thinking I can just include the window replacement in this.

Answer: You may remain liable to contribute to the special levy

Yes, you may include your window works within one and the same by-law. The owners corporation may include a provision that if they do replace the windows, in case yours is not identical to their proposal (or potentially, if it is), that it is subject to replacement in the course of the owners corporation’s works (and therefore, you would remain liable to contribute to the special levy).

Leanne Habib Premium Strata E: info@premiumstrata.com.au P: 02 9281 6440

This post appears in the July 2021 edition of The NSW Strata Magazine.

Question: Kitchen renovations resulted in a burst water pipe causing damage to the unit below. No bond or bylaw was submitted for the renovation. Who is responsible for the cost of the repairs?

A Lot Owner has undertaken a Do-It-Yourself kitchen renovation. During the renovation, the hot water pipe that passes through the common property cavity and exclusively services that lot, burst and caused damage to the ceiling of the lot directly below.

The renovators did not provide a security bond nor a certificate of currency nor provide the Owners Corporation with their credentials/qualifications. No special by-law for this kitchen renovation was shown to the OC’s to view and vote on their proposed D-I-Y kitchen renovation.

The OC finished up paying a few thousand dollars for this debacle. So, who is responsible for the cost of the damage caused?

Should these D-I-Y Lot Owners have provided those additional documents including the amount of the security deposit bond?

Should a Special By-Law for kitchen renovation been provided by these Lot Owners for the OC to vote on?

Can the Owners Corporation formally request the renovating Lot Owners to reimburse for the cost of repairs?

Answer: There are provisions to enable the Owners Corporation to consider options to recover from the owner the cost of repairs as well as the right to issue a notice to comply.

This does not sound like the work is cosmetic. It appears to be major renovation work. Major renovation work requires a special by law to be submitted to the Owners Corporation for its approval. This would also be included in the By-Laws that apply to the scheme.

It is not unreasonable for the Owners Corporation to request a bond in that by law to cover any damage to common property or adjoining lot owner’s property. There are provisions in the Strata Schemes Management Act 2015 to enable the Owners Corporation to consider options to recover from the owner the cost of repairs as well as the right to issue a notice to comply.

Please note this response is limited as I have not sighted any documents you may hold in this matter.

Pierrette Khoury Khoury Lawyers E: pierrette@khourylawyers.com.au P: 0415 459 486

This post appears in Strata News #470.

Question: One of our lot owners wants to erect a cage in his on title garage space. Is a bylaw required for this? If so he fears the costs involved will be much more than the cage installation.

One of our lot owners wants to erect a storage cage in his on title garage space. It will require drilling into the garage floor and a concrete column to insert dynabolts. Is a bylaw required for this? If so he fears the costs involved will be much more than the cage installation. Are there any other options?

Answer: The concrete garage floor and concrete column are likely common property, so the proposed installation of the storage cage are works to common property and will require consent from the owners corporation.

The concrete garage floor and concrete column are likely common property, so the proposed installation of the storage cage are works to common property and will require consent from the owners corporation.

Whilst some may argue that the works are cosmetic works or minor renovations, the works are excluded from being minor renovations as the works will change the external appearance of a lot (see section 110(7)(c) of the Strata Schemes Management Act 2015). Therefore the works will require a by-law.

Bannermans Lawyers E: enquiries@bannermans.com.au P: 02 9929 0226

This post appears in the May 2021 edition of The NSW Strata Magazine.

Question: Do we need permission to tile over the top of tiles in our townhouse bathroom and laundry? We will not be disturbing the waterproofing or original tiles?

Answer: Tiles are hard surface flooring and therefore considered a “minor renovation” under the legislation. If the strata committee has been delegated the power to approve minor renovations, this requires an ordinary resolution of the Owner Corporation or majority vote of the strata committee.

Leanne Habib Premium Strata E: info@premiumstrata.com.au P: 02 9281 6440

This post appears in Strata News #460.

Question: Our strata manager wants to charge us a $200 an hour fee to host a general meeting. We need approval for renovations and for a cat. Is this normal?

Our strata manager would like to charge us a $200 an hour fee to host a general meeting. We need to discuss whether we can alter the flooring in our unit from old carpet to a hybrid flooring and we also need approval for our cat. 

We have been warned that the meeting will probably be longer than one hour. I was wondering if it was normal to charge the owners of the unit to hold a general meeting?

I have not lived in a strata managed building before so I am unsure of the procedure.

Answer: If a general meeting is being held for a single purpose, yes, it is usual for the owner who is benefiting from that meeting to cover the cost.

Your buildings by-laws would be the best place to check in relation to approvals. It could be the by-laws require general meeting approvals, although this would be unusual for flooring and pets. Generally, applications for flooring and pets are dealt with by the strata committee.

If a general meeting is being held for a single purpose, yes, it is usual for the owner who is benefiting from that meeting to cover the cost. Again, however, for what on the surface seems like a straight forward application and therefore meeting, a meeting held by pre-meeting electronic voting could be held for minimal costs.

As the Owners Corporation are the party to the agreement of the agent, strictly, the OC should be invoiced the fee, and in turn, that cost would be forwarded to you. Again, this should be provided for in your building’s by-laws.

Natalie Fitzgerald More Than Strata E: natalie@morethanstrata.com.au P: 1300 044 979

This post appears in the December 2020 edition of The NSW Strata Magazine.

Question: Our committee has a bylaw that empowers the Committee to approve minor renovations. Our Strata Manager insists we still need an EGM for the strata committee to vote. Is this correct?

I live in Sydney, NSW. Our strata has a By-Law ‘Minor Renovations By-Law Empowering the Strata Committee’.

The Strata Committee was advised previously this meant that the Strata Committee could provide approval (or otherwise) for minor renovations. This could, for example, be for installation of an air-conditioner that complies with a separate By-Law.

The current Strata Manager insists that legally, they must check the documentation provided and hold an EGM for the Strata Committee to vote so that the decision is minuted.

The variable cost of this process has been added to the owners’ ledgers with neither communication regarding how the amount was calculated, nor when the amount was due to be paid. One owner was recently billed $430 for the application for an air-conditioner. 

Would a meeting of the Strata Committee that minuted their decision regarding the application for minor renovation and supplied that documentation to the Strata Manager suffice?

Answer: If a committee is empowered by a registered by-law it can approve minor renovations.

If a committee is empowered by a registered by-law it can approve minor renovations. However, most air-conditioning units applications will not be within minor renovations thresholds.

As to major renovations these will need to be approved by the owners corporation at a general meeting.

Please see the links for more details :

• Air Conditioning Issues Heating Up Your Scheme


• What Approvals Do I Need To Renovate My Unit?

Owners can enter into agreements to pay for owners corporation’s fees for considering applications for approval where such agreement refers to the cost being placed on the ledger as a debt due and payable. Absent on agreement the owners corporation bears the cost.

Bannermans Lawyers E: enquiries@bannermans.com.au P: 02 9929 0226

This post appears in Strata News #433.

Question: We are looking to install insulation in the roof of our apartment. What is involved in having a bylaw drawn up by a solicitor?

We are owners of a top floor unit in an 18 unit block. There is currently no insulation in the roof and given the low funds in the Strata, the committee is unlikely to vote to approve this work as they do not want to spend money.

We asked our Strata Manager if there were any other options and he advised that if we wished to arrange and pay for this ourselves then we would need a bylaw to proceed.

We are unclear what this would entail, I would imagine we would need to get a solicitor to draw up a bylaw. I am looking for some easy-to-understand steps of having a ByLaw drawn up by a solicitor.

Answer: Generally, we would ask our client to provide all the relevant information.

1. If it’s not a big strata have you spoken to other owners on the top floor to obtain their support as to the costs as it sounds like this would benefit them?


2. Given it is common property the owners corporation is generally liable for the costs to maintain and repair it in the future. However if you are paying for the installation it needs to be decided whether you and any subsequent owners of the lot are to be responsible for the maintenance and repair of that area from now on (indefinitely). This should be reflected in the by-law to be drafted.

Generally, we would ask our client to provide all the relevant information such as a copy of the current by-laws for the strata and what has been agreed among the owners and the committee members relating to the by-law. This information would be required before they engage us to commence legal work on the by-law drafting.

Yuhao Gu Omega Legal E: info@omegalegal.com.au P: 0402 990 108

This post appears in Strata News #421.

Question: My balcony cannot be viewed from any common property. Can I retile my balcony as long as the finish is in keeping with the building without OC approval for the renovations being asked?

I appreciate that maintenance and replacement of my balcony structure and it’s waterproof membrane are the responsibility of our Strata.

My private first-floor townhouse balcony cannot be viewed from any common property; can I retile my balcony as long as the finish is in keeping with the building without OC approval being asked?

Answer: Typically, you may not re-tile without first seeking strata approval because you will need a by-law due to your works affecting the common property waterproofing.

Typically, you may not re-tile without first seeking strata approval because you will need a by-law due to your works affecting the common property waterproofing. Your by-law will need to go to a general meeting and pass by special resolution and then be registered.

The by-law, if approved, will transfer the ongoing responsibility for repair and maintenance of the tiles and waterproofing to you.

As you are in a townhouse, however, you should check your strata by-laws and strata plan for any notations which displace the above position.

Leanne Habib Premium Strata E: info@premiumstrata.com.au P: 02 9281 6440

This post appears in Strata News #410.

Question: My townhouse has a compact garden with a tiled patio and lawn (within my lot). Can I take up the patio and reconfigure my outdoor landscaping to better suit my taste? Do I need approval?

Answer: Yes, you need approval by way of a by-law

Yes, you need approval by way of a by-law for 2 reasons:

1. subject to the by-laws applicable to your scheme and any notations, you will be affecting the common property waterproofing by re-tiling and


2. even though you propose to have the area in keeping with the appearance of the building, you will be changing the external appearance of the building.

There are strata lawyers who specialise in drafting of the required by-law and could assist.

Leanne Habib Premium Strata E: info@premiumstrata.com.au P: 02 9281 6440

This post appears in the September 2020 edition of The NSW Strata Magazine.

Question: We have a clause in a common property rights by-law where specific parts of the common property are not named. Is this bylaw valid?

We have a clause in a common property rights by-law where specific parts of the common property are not named. Is this bylaw valid?

“Notwithstanding anything contained in any by-law in force for the strata scheme, the Owner has the special privilege to carry out the Works (at the Owner’s cost) and to retain the Owner’s fixture and the right of exclusive use and enjoyment of those parts of the common property attached to or occupied by the Works, subject to the terms and conditions contained in this by-law.”

Can an Owners Corporation make a by-law which states that if there is any inconsistency with the provisions of this by-law and the other by-laws applicable to the strata scheme, then the provisions of this by-law prevail?

Answer: The clause would be valid provided the by-law included a sufficiently clear definition of the “Works” to be undertaken.

The clause would be valid provided the by-law included a sufficiently clear definition of the “Works” to be undertaken, making it possible to identify the parts of common property that would likely be attached to or occupied by the works.

Generally speaking there is no set hierarchy in regards to registered by-laws. Typically however when a new by-law is made it will need to be compliant with the scheme’s existing by-laws. However, there may be some exceptions to this depending on the way the by-laws are drafted and whether the terms of the existing by-law are valid and enforceable. I advise you to seek further advice in this regard.

Joshua Bernie Bannermans Lawyers E: enquiries@bannermans.com.au P: 02 9929 0226

This article is not intended to be personal advice and you should not rely on it as a substitute for any form of advice.

This post appears in Strata News #388.

Question: To undertake major and minor renovations, do we need a separate by-law submitted for each item or can it all be included in one special renovation by-law?

When an owner wants to renovate to undertake major and minor renovations does this need a separate by-law passed for each bit of work or can it all be included in one special by-law and registered the once against the property title?

The renovations relate to minor being kitchen and flooring. Also, the addition of another window (non-opening) in the kitchen which is replacing external bricks being a major renovation requiring a by-law and special resolution being passed. We are only a small strata of 3 units.

Answer: There would never be the requirement for 2 by-laws because minor renovations only require an ordinary resolution.

The latter appears to be the industry norm and in the context of the works referred to below, would be the sensible approach. However, there is also the practice of having the strata committee approve the minor renovation component of the works (if they are delegated that power) and have the by-law apply only in relation to the “major” works which fall outside the definitions of cosmetic works or minor renovations.

In any event, there would never be the requirement for 2 by-laws because minor renovations only require an ordinary resolution without the requirement for a special resolution and by-law.

Leanne Habib Premium Strata E: info@premiumstrata.com.au P: 02 9281 6440

This article is not intended to be personal advice and you should not rely on it as a substitute for any form of advice.

This post appears in Strata News #373.

Question: We’ve never received approval for an air conditioner. We’ve recently been told to move the exterior unit as it is not keeping with the appearance of the lot.

We own a strata unit in NSW and back in 2017 we installed an air conditioner with the outside unit mounted high on the balcony and also an exhaust fan in our bathroom and kitchen windows.

Now the owners corporation tells us we need to move the exterior unit of the air conditioner as it has affected the outdoor appearance of the lot. They have also insisted we remove the exhaust fans as they likewise affected the appearance of the lot.

The block is very old, built around the 1960s. Many units in the block have awnings on windows, clotheslines on balconies, pot plants sitting on balcony railings, box air conditioners in windows and units mounted in a very similar manner to ours.

We sought permission retrospectively not long after the work was completed and only heard back recently.

Answer: To effect your desired improvements, you will need a by-law for works.

To effect your desired improvements, you will need a by-law for works.

Yes, owners can object, but if 25% or more object, your by-law will fail as a special resolution is required. If the Owners Corporation “unreasonably” refuses to pass your by-law you have recourse to take action through NCAT that they were being unreasonable.

To maximise the prospects of your by-law passing, we can recommend strata lawyers to draft the by-law and usually, in this regard, the more information you provide i.e. construction materials, plans, specifications, architectural drawings etc the more likely people won’t object. Where possible your improvements should be in keeping with the appearance and amenity of the building and retain the same “look and feel”.

In our view, look and feel relates to design, construction materials and the general amenity of the building.

The extensive irregularities you mention from around the scheme would almost all certainly be breaches of by-laws and the pot-plant issue is likely to be a WH&S concern.

Leanne Habib Premium Strata E: info@premiumstrata.com.au P: 02 9281 6440

This article is not intended to be personal advice and you should not rely on it as a substitute for any form of advice.

This post appears in Strata News #350.

Question: We’ve submitted a bylaw for the renovation of our unit. A lot Owner and the Strata Manager want us to pay for the review of the bylaw by a strata lawyer. Where do we stand?

We are in a small Strata scheme and have submitted a detailed special bylaw for an addition and renovation drafted by our Strata lawyer including certificates from a structural engineer.

We own 74.6% of the strata and so require the approval of the remaining owners to pass the bylaw.

One of the owners has said they want the bylaw reviewed by another lawyer, paid for by us, as they are new to strata living. This is supported by the strata agent.

Where do we stand on this as it feels like we have no choice and are over a barrel.

Answer: The costs and delays involved in mediation and Tribunal proceedings would far outweigh the costs of any advice on the by-law.

The by-law requires a special resolution at a general meeting. This means that not more than 25% of the value of the unit entitlements cast are against the resolution. If an owner does not attend the meeting or for whatever reason does not cast a vote, it is likely that you would be able to obtain a special resolution as it would increase your percentage of unit entitlement voting in favour of the by-law and reduce the percentage of unit entitlements voting against.

If all owners attend the meeting and all other owners vote against the motion for the by-law, the by-law will fail. If the owners who voted against the by-law refused the by-law unreasonably, you would have a possible action in NCAT to seek an order that the by-law is made on the basis that the owners corporation unreasonably refused the making of the by-law. Mediation would need to be attempted prior to seeking orders in NCAT.

Whether or not it is reasonable to require a lot owner proposing a by-law to pay for advice on the by-law for the owners corporation would depend on the complexities of the by-law, the proposed works and is a matter for determination by the Tribunal. In any event, the costs and delays involved in mediation and Tribunal proceedings would far outweigh the costs of any advice on the by-law. Therefore unless you can convince an owner or owners that legal advice is not required on the by-law, I suggest that you offer to pay the costs of advice on the by-law for the owners corporation. You should also consider capping those costs.

When the lot owner received the response from David Bannerman, they asked this follow up question:

If the majority of the Owners Committee/Strata Committee are not supportive of the request for a review by another lawyer, can a vote be called to decide?

David Bannerman responded:

Yes, as an owner you can request that the general meeting consider a motion at the next general meeting. However, that does not get you your by-law. It is possible that the majority of the owners corporation votes against getting further advice on the by-law, but the by-law still fails to obtain a special resolution.

David Bannerman Bannermans Lawyers E: enquiries@bannermans.com.au P: 02 9929 0226

This post appears in Strata News #318.

Question: Do I need strata approval for the renovations of my bathroom if I am simply replacing like for like and retiling over the existing floor tiles? Is this work considered a minor cosmetic renovation?

I am about to update my bathroom and need to be clear whether or not I need to make my intentions known to the owners corporation.

I will be replacing old with new; vanity, shower screen and toilet, plus retiling the floor over top of the existing tiles. There are no intended alterations to plumbing or waterproofing.

Is this work considered a minor cosmetic renovation?

Answer: It seems unlikely that your works could be carried out without any impact whatsoever on the existing waterproofing.

While it is correct that the installation of hard floors is a minor renovation, it seems unlikely that your works could be carried out without any impact whatsoever on the existing waterproofing or that no additional membrane/waterproofing will be required.

Leanne Habib Premium Strata E: info@premiumstrata.com.au P: 02 9281 6440

This post appears in Strata News #295.

Question: I’m concerned about the correct process of strata approval for renovations in our scheme. Renovations involving waterproofing isn’t being considered a major work under the new legislation, and therefore not being considered by the Owners Corporation as a special resolution.

I’m a member of a Strata Committee in an apartment complex that was registered prior to 1 July 1974. Being a ‘mature’ building, some of the more recent owners wish to improve their investment by having the laundry, kitchen, bathroom or floor coverings changed. That is understandable and it’s great to see improvements happening.

However, my concern is the way in which these proposed scope of works are being formally addressed. I will give you an actual example:

An Owner has sought to do renovation works as listed above. For the kitchen, in his Special By-Law he has stated the following:

Renovation of the kitchen of the Authorised Lot including:

1. Removal and installation of cabinet with laminated bench tops; and


2. Removal and installation of wall tiles including waterproofing works.

The Strata Manager has decided to place the entirety of the kitchen renovation as being ‘minor works’ and therefore the Owners Corporation are instructed in the ballot paper to consider it as an ‘ordinary resolution’ ie: 50% approval.

I raised my concern that this is incorrect pursuant to the new changes in the Strata Schemes Management Act (NSW) 2015. My concern is that item (b) namely waterproofing is considered a major work under the new legislation and therefore this particular item (b) should be a ‘stand-alone’ item and the strata approval for renovations should be considered by the Owners Corporation as a special resolution. In other words, item (a) of the Kitchen Renovation being considered as Ordinary Resolution whilst item (b) as a Special Resolution. Alternatively, perhaps, have both items (A and B) consolidated as a Special Resolution.

My suggestion to the Strata Manager about the process of strata approval for renovations has been ignored. Likewise by the other members of the Strata Committee.

I seek your interpretation of how this particular proposal for Kitchen Renovation ought to have been prepared for the Owners Corporation to vote on.

Since my suggestion is ignored and the Owners Corporation are about to vote on it with only 48-hour turn around, is it possible that an action can be taken to have this resolution deemed void assuming that my suggestion is correct? If so, what is the procedure to be taken?

Answer: Your interpretation is correct.

Your interpretation is correct. Any work which involves waterproofing necessitates the creation of a by-law irrespective of the fact that a kitchen renovation is designated a “minor renovation”. You have understood correctly that while a kitchen renovation is indeed a minor renovation if such a renovation also includes waterproofing works then the works need to be approved by way of a special resolution (by-law). Section 110(7)(d) SSMA 2015 clearly states that the section does NOT apply (ie categorising a kitchen a minor renovation) where the proposed works involve waterproofing.

We also agree with your approach that both sets of works ie cabinetry and waterproofing be detailed in one and the same by-law (rather than passing some works by ordinary resolution and others by special resolution).

Despite all of the above, however, we are not aware that a kitchen is a “wet area” within the meaning of the Building Code of Australia for the requirement for waterproofing.

Leanne Habib Premium Strata E: info@premiumstrata.com.au P: 02 9281 6440

This post appears in Strata News #185.

Question: We are looking to renovate our bathroom, toilet and laundry in the single story townhouse we purchased last year. The renovation includes installing a waterproof membrane. What is the strata approval for renovations process and what approvals do we need from the owners corporation?

We are looking to renovate our bathroom, toilet and laundry in the single story townhouse we purchased last year. The renovation includes installing a waterproof membrane. What approvals do we need from the owners corporation?

The job will consist of:-

1. Membrane wet areas:
   • Installing a waterproof membrane in wet areas (done by a qualified wet area tradesperson)
2.  Bathroom:
   • Replacement of tiles (Floor and shower and walls around bath). Replacement of shower door from slider to bi-fold
   • Replacement of shower head only (Not pipework) Replacement of vanity unit


3. Toilet:
   
   • Replacement of tiles (Floor) Replacement of toilet
   
   
4. Laundry:
   
   • Replacement of tiles only (not the wash sink). All replacement items are new.
   
   

There will be no movement or adding of new pipework, only direct replacement of taps, toilet and vanity with no effect on pipework.

No electrics affected except baton light replacement.

The debris will be disposed of ourselves at the tip.

We wish to start as soon as viable after receiving the strata owners decision and will be doing all the renovations ourselves, apart from installing a waterproof membrane.

Is this something the strata body would be ok with? What is the strata approval for renovations process and how do we get started?

Answer: We cannot predict the outcome of your application, however, you must submit a by-law for approval by the Owners Corporation in general meeting by special resolution.

We cannot predict the outcome of your application, however, to start the strata approval for renovations process, you must submit a by-law for approval by the Owners Corporation in general meeting by special resolution.

A by-law is necessitated because you are doing waterproofing works (which places your scope outside the ambit of minor renovations or cosmetic works).

Usually, an Owners Corporation would not object to such works provided you use a strata specialist solicitor to draft your by-law. Such by-law must then be registered on the certificate of title for the common property before you can commence works.

We can direct you to specialist strata lawyers who can assist in drafting the required by law.

Leanne Habib Premium Strata E: info@premiumstrata.com.au P: 02 9281 6440

This post appears in Strata News #177.

Question: Are there any templates available of renovation bylaws?

We are members of a Strata Plan in NSW which is in a complex of just over 50 units constructed in the 1980s. We have regular applications from owners proposing to renovate their apartments and we are looking to update quite cumbersome processes with respect to the approval by the Owners Corp of proposed renovations by owners.

Are there any templates available of policies and standards in relation to this process?

The issues which are contentious clearly arise in many Owners Corporation’s and include:

1. Reasonable policies relating to the approval by the Owners Corporation of proposed changes to hard surfaces coverings to mitigate impact noise transfer from floors to ceilings.


2. Whether the approval by Owners Corporation’s of renovation plans necessarily requires the current cumbersome and costly practice of calling special general meetings of owners to adopt special by-laws to approve their renovations with the Owner meeting the cost of solicitors to draft the new by-laws etc and the calling of the meeting.

Answer: Yes, you may purchase detailed renovation bylaws which regulate the carrying out of renovations and modifications

Yes, you may purchase detailed renovation by-laws which regulate the carrying out of renovations and modifications to a lot which may specifically authorise the executive committee to sign off on the commencement of the works (provided all the requirements of the by-law are satisfied including standards and compliance issues as stipulated in the by-law).

The “generic renovation by-law” obviates the need for a new by-law and a new general meeting to be held each time an owner wishes to carry out works.

Under the current legislation, you cannot avoid the general meeting, by-law drafting process because that is the procedure outlined in the current legislation. The new legislation, however, has relaxed the renovation procedure. For example, “cosmetic” works eg built-in wardrobes will no longer require any approval of the Owners Corporation. “Minor” renovations eg kitchen renovation will no longer require a special resolution or a by-law but rather only an ordinary resolution. Works involving structural changes, for example, will continue to require the special resolution/by-law process.

Renovation bylaws may be purchased which contemplate the revisions to the renovation processes.

Leanne Habib Premium Strata E: info@premiumstrata.com.au P: 02 9281 6440

Question: Is it possible to have generic renovation bylaws for major works set up by the Committee so that everyone can use them without having to go to the trouble and the cost of setting up their own?

Being a member of a Strata Committee where I live I have been asked to look into some things regarding By-Laws for Major Works.

We have at least three owners of Units wanting to renovate their bathrooms, and they, therefore, need to have a Special Resolution and renovation bylaws passed.

1. Is it possible to have Blanket / Generic Renovation ByLaws for Major Works set up by the Committee so that everyone can use them without having to go to the trouble and the cost of setting up their own?


2. I assume renovation bylaws would have to be registered.


3. What would the procedure be for each Unit Owner to take once they have the Generic Bylaw?


4. Do they then follow the same steps as before: Present the renovation bylaws, Plans and Details to the Strata Manager and wait till this is passed at a General or Extra Ordinary Meeting?


5. Does it have to be registered again with their signature on it, therefore, taking the responsibility hereafter for the waterproofing and work carried out in their unit.

Answer: Yes this is possible. You pass a “management bylaw” which sets up the guidelines for major works

We have addressed each question below:

1. Yes this is possible. You pass a “management bylaw” which sets up the guidelines for major works eg “Major Renovations” means works that:
   
   
   • involve structural changes;
   
   
   • change the external appearance of a Lot;
   
   
   • detrimentally affect the safety of a Lot or common property including fire safety systems;
   
   
   • involve waterproofing or plumbing or exhaust system(s); and/or
   
   
   • are on the common property, for clarity, works that add to, alter or erect a structure on the common property, as are more particularly described in the Scope of Works.
   
   
2. This bylaw is then registered. Then an owner wanting to carry out the works provides the Scope of Works to the strata committee, agrees to comply with the generic by-law and a one-line by-law stating the relevant lot owner’s lot number and specific scope of works is then registered (and the lot owner agrees that the provisions of the generic by-law are adopted or incorporated into the short by-law). Alternatively, we have seen blanket authorisation bylaws (granting common property rights) for each and every lot providing strict guidelines are met (with only the generic bylaw being registered and no subsequent bylaws being registered in respect of any particular lot).


3. As per the above


4. Correct. We prefer the management bylaw approach so that all plans/details etc are registered on the title for a specific lot owner. This will avoid doubt in the future as to what scope of works were carried out.


5. It depends on which approach you prefer. The former blanket bylaw approach you would require a short bylaw to be registered in addition to the generic one. If you adopt the alternative course, no.

Leanne Habib Premium Strata E: info@premiumstrata.com.au P: 02 9281 6440

This post appears in Strata News #172.

Question: Strata approval for renovations – Do I need to get our strata or Owners Corporation approval for installing a sliding door between our dining room and kitchen in our apartment?

Am I install a removable sliding door for the dining room which is linked with the kitchen? The sliding door will prevent the smell from escaping to the other rooms.

Do I need to get our strata approval for installing a sliding door?

Answer: Technically speaking you do not need strata approval for installing a sliding door because it seems to fall within the definition of “cosmetic work”.

Technically speaking you do not need strata approval for installing a sliding door because it seems to fall within the definition of “cosmetic work” under Section 109 of the SSMA 2015:

109 Cosmetic work by owners

1. The owner of a lot in a strata scheme may carry out cosmetic work to common property in connection with the owner’s lot without the approval of the owners corporation.


2. “Cosmetic work” includes but is not limited to work for the following purposes:
   
   
   1. installing or replacing hooks, nails or screws for hanging paintings and other things on walls,

Because the definition is inclusive, your sliding doors could be construed as hanging “other things on walls” ie a sliding door.

Despite our view, we always recommend approaching your own strata manager first, because owners corporations generally appreciate the courtesy of being asked (rather than a resident hearing banging and drilling and notifying the strata manager which might get them offside).

Leanne Habib Premium Strata E: info@premiumstrata.com.au P: 02 9281 6440

This post appears in Strata News #164.

Question: We wish to renovate our strata unit in Sydney. What are the steps involved to obtain strata approval for renovations?

We wish to renovate our strata unit in Sydney, including relocating the kitchen, open a wall and use some area of the courtyard which forms part of the lot, add ducted air conditioning through the roof space.

Architectural plans are being drawn up for approval at an AGM.

Questions

1. Please advise if we should place an exclusive use by law on the AGM agenda covering all aspects of the works which impact the common property.


2. Is this single motion to approve a bylaw sufficient or do we need additional motions to gain strata approval for renovations?


3. Can we download a sample bylaw which could be amended for the above?

Answer: Yes, you should have a lawyer prepare a common property rights by-law for inclusion in an agenda of the Owners Corporation.

1. The correct terminology post the new legislation is that you need a “common property rights by-law”. But, yes, you should have a lawyer prepare such a by-law for inclusion in an agenda of the Owners Corporation.


2. You will need a Section 108 motion for the improvements etc. Your lawyer will automatically include this motion.


3. Some standard by-laws may be purchased online through various websites. However, we always recommend that you use a strata lawyer to bespoke draft for your exact works and ensure the intent of the bylaw is properly covered.

Leanne Habib Premium Strata E: info@premiumstrata.com.au P: 02 9281 6440

Question: During the process of strata approval for renovations are there circumstances where you may be exempt from registering strata bylaws?

I live in a complex in NSW. In our complex, there are a few apartments that were originally divided into two apartments by the developer. We questioned this with council many years ago and were advised that these apartments were permitted to do this.

One of the divided apartments was purchased by a new owner, who subsequently became chairman. The owner advised the board that council had ordered him to convert the apartment back into one apartment. The board never questioned the owner and did not request the demand letter from the council.

The owner has now gutted each floor, moved bathrooms and kitchen and laundry and added ducted air-conditioning. I have contacted the local council, who has advised that a privacy request needs to be made to view the alleged letter.

If such a demand was made, should the Executive Committee have requested a copy of the demand letter and also if there was a demand does that override NSW Strata rules which require owners, when seeking strata approval for renovations, to notify the Owners Corporation of any changes to plumbing, re-instating a staircase within the lot, adding ducted aircon?

Do we have a right to obtain a copy of the letter from the council?

Answer: It is possible that there is a by-law governing the consolidation of the divided apartments.

While we haven’t seen a copy of the by-laws applicable to the scheme, it is possible that there is a by-law governing the consolidation of the divided apartments.

If there is not, the Chairperson would have required a by-law for damage to the common property irrespective of any alleged Council directive to consolidate the lot. Even if the Council did in fact issue such a letter/demand, that does not excuse the Chairperson from the requirement to have a by-law registered for his works.

You should be able to inspect any documents at Council under a Freedom of Information Act 1982 application.

Leanne Habib Premium Strata E: info@premiumstrata.com.au P: 02 9281 6440

This post appears in Strata News #106.

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This article is not intended to be personal advice and you should not rely on it as a substitute for any form of advice.

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