Question: Can a committee approve a lot owner to paint their terrace a different colour to the building’s scheme?
All terraces in our large apartment complex are white. An owner has repeatedly painted their terrace a different colour to the building’s colour scheme. I’ve complained about this to my strata committee for two years.
The committee has delayed any decision by saying it’s not financially viable, whatever that means. They previously told our strata manager that the lot owners had permission, but the manager cannot find evidence. I was under the understanding that a committee cannot approve a lot owner to paint external common property walls. Is this decision an owners corporation decision?
Our committee does not directly answer lot owners. Owners must email the strata manager and wait for a reply. We could end up with other owners painting their terraces or balconies a colour of their choice.
I’m disadvantaged as I’m visually challenged regarding filling out forms and reading. What are my options if the committee continues to delay a decision?
Answer: Painting is cosmetic work that doesn’t need approval, and the lack of a paper trail doesn’t prove the colour scheme exception was never approved.
I firstly note that you don’t indicate whether there is a by-law requiring all terraces to be the same colour.
Section 109(1) of the Strata Schemes Management Act 2015 (NSW) (“the Act”) states that:
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. (emphasis added)
Subsection (2)(c) states that cosmetic work includes “painting”.
In the case of minor works pursuant to section 110 of the Act which includes work involving reconfiguring walls, c.f. s110(3), the owners corporation may by way of a by-law delegate the approval making power to the strata committee: section 110(6)(b). The owners corporation cannot unreasonably withhold approval for such works: section 110(2), and a record for such works must be kept by the owners corporation for 10 years: section 110(6C).
Was approval required? The lack of evidence of approval is not proof something wasn’t approved. To the contrary. It’s read against those who want to say that something wasn’t approved. To take a specific example, the lack of any documents whether a lot owner had approval to install a pipe, is to be read that it was approved. This is the general law principle known as “presumption of regularity”, which has been applied to strata title, e.g. Davenport v The Owners – Strata Plan 536; The Owners – Strata Plan 536 v Davenport [2018] NSWCATAP 301 (“Davenport”).
In Hill v Woollahra Municipal Council & Ors [2003] NSWCA 106, which was cited in Davenport, it says at [51]–[52]:
…when a court comes to consider whether or not such a breach has occurred, the court will have regard to the presumption of regularity. This presumption was relevantly stated as follows by McHugh JA in Minister for Natural Resources v NSW Aboriginal Land Council (1987) 9 NSWLR 154 at 164 as follows:
Where a public official or authority purports to exercise a power or to do an act in the course of his or its duties, a presumption arises that all conditions necessary to the exercise of that power or the doing of that Act have been fulfilled.
This post appears in Strata News #809.
Matthew Lo
Kerin Strata Lawyers
E: matthew@kerinstratalawyers.com.au
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