Question: We’ve requested approval to install a cat net over our covered balcony. The request has been denied and little reason given although other balconies have bamboo screening and awnings installed. What do we do now?
We’ve requested approval to install a cat net over our covered balcony. The balcony faces into a common area courtyard and is set low so only about 7-8 other apartments in the complex look into this area.
Our request has been declined on the basis that there are no other cat nets in the building. No other reason for the refusal has been given.
We have asked if other units will have to remove their bamboo screening, awning tarps, and mismatched security screen doors but have been ignored. As the appearance of lot seems to be the concern, we also asked if people would have to stop storing items in the car space which our previous tenant was breached for but has now become commonplace.
We provided photos of netting that is visible from several buildings close by in support and said we were amenable to any reasonable conditions placed upon us.
Should we seek legal advice. We’ve asked them to reconsider but the committee replied with a “no” within a matter of hours.
Answer: It is important for you to clearly understand all of the reasons the cat netting will not be approved so that you may assess your position and respond accordingly.
You are on the right track in making the observation that the appearance of the lot is one of the primary issues in this dispute, however, it is best not to assume that it will be the only issue. It is important for you to clearly understand all of the reasons the cat netting will not be approved so that you may assess your position and respond accordingly. It is also important for you to understand the legal provisions which determine when authorisation is required and how authorisation is obtained.
The model by-laws in Schedule 3 of the Strata Schemes Management Regulations 2016 include the following by-law and for the purpose of responding to your question I assume your scheme has the following by-law in force:
12 Appearance of lot
- The owner or occupier of a lot must not, without the prior written approval of the owners corporation, maintain within the lot anything visible from outside the lot that, viewed from outside the lot, is not in keeping with the rest of the building.
- (This by-law does not apply to the hanging of any clothing, towel, bedding or other article of a similar type in accordance with by-law 14.
Additionally, if the cat netting will be affixed to the common property (for example, anchored into the balustrade and/or the soffit) the work cannot be undertaken as cosmetic work or minor renovations because it appears that the work will change the external appearance of your lot. Any work to the common property will need to be approved by the owners corporation. Section 108 to section 111 of the Strata Schemes Management Act 2015 set out the relevant provisions in relation to this. These provisions apply to your cat netting as well as the bamboo screen and the awning.
Following is a link to the Strata Schemes Management Act 2015: NSW Legislation: Strata Schemes Management Act 2015 No 50
The first step is to obtain a copy of the registered by-laws, review the by-laws carefully for any by-law which may in any way prohibit the installation of the cat netting or may prohibit or authorise items and fixtures on the balconies, such as bamboo screens and awnings.
You should obtain copies of the minutes of general meetings extending back to the time before to the installation of the bamboo, awnings, etc., and consider whether any motions have been resolved which prohibit or authorise fixtures or items on the balconies.
You should note that there is a distinction between placing something on the balcony and affixing something permanently to the common property. For example, the bamboo screening may be leaning on the balustrade however the awning is likely to be fixed to the common property. You need to consider how sections 108 to section 111 of the Strata Schemes Management Act 2015, and any relevant by-laws, apply to each particular item or fixture you believe does not have authorisation.
In relation to your cat netting, the key words in model by-law 12 above are “anything visible from outside the lot” and “not in keeping with the rest of the building”. From your email it appears the cat netting will be visible from outside your lot and that it is possibly not in keeping with the rest of the building. If there are screens on other parts of the building, such as flyscreens, maybe you can find a solution which is in keeping. You may wish to consult a designer or architect in relation to a solution which is in keeping with the rest of the building.
In relation to the bamboo screening, awning, tarps, etc., if authorisation has been granted this does not automatically mean your cat netting should also be authorised. However, you should enquire into the basis upon which authorisation was obtained for any other items or fixtures on other balconies. If authorisation is required, and has not been obtained, you need to consider whether the item or fixture should be removed.
Clause 4 of Schedule 1 of the Strata Schemes Management Act 2015 provides owners with the opportunity to require a motion be included in the agenda of the next general meeting. Pursuant to clause 4 you may wish to draft some carefully worded motions which:
- 1. Resolve to authorise the installation of your cat netting.
- 2. Resolve to enforce the by-laws or the relevant provisions of the Strata Schemes Management Act 2015 by requiring the removal of any unauthorised items or fixtures on other balconies.
Please note the relevant legal provisions are technical and I am simplifying them. The motions must be drafted very carefully. You should obtain legal advice before submitting any motions to the Secretary for inclusion on the agenda.
Your motions will provide you with the opportunity to discuss your concerns with other owners at a general meeting and may assist you in deciding whether you will take the matter further. The next step will be to apply for a strata mediation with NSW Fair Trading. When you prepare your application for mediation you should annex the notice and minutes of the general meeting to your application and a summary of the discussions which took place at the general meeting.
Your concerns relating to the storage of items in car spaces is not directly relevant to the cat netting and needs to be considered separately.
In relation to whether you should seek legal advice, complex legal issues and precedent apply to the cat netting and if other owners have undertaken work without authorisation, this will add to the complexity of the matter.
My comments are based upon assumptions and generalisations and I have not covered all of the potential issues and laws which need to be considered, and which may arise if an application is filed in the Tribunal. I would definitely recommend you obtain legal advice.
This post appears in Strata News #609.
Shane Williamson
Williamson Lawyers Pty Ltd
E: shane@williamsonlawyers.com.au
P: 0404 045 605
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