This article is about how sustainability infrastructure in NSW strata covers a wide range of common property upgrades, not just technology, and can be approved with a lower voting threshold.
- Part 1: NSW: Authorising works to the common property and the resolution is required
- Part 2: NSW: What is the test to determine if work is a repair or an upgrade?
- Part 3: NSW: What are sustainability infrastructure motions? How are these resolutions changing how works are authorised?
So far I have discussed when and how work to the common property needs to be authorised and considered whether the work is a repair or an upgrade. I have also discussed the requirements of a sustainability infrastructure resolution as the vast majority of sustainability initiatives will involve adding or altering the common property to intentionally change its functional equivalency.
While decreasing the requirements of a special resolution is extremely aids strata schemes in incorporating sustainability initiatives, combined with the definition of sustainability infrastructure, the impact is substantial.
It is key not just to think about the technology, but the overall common property. Why? Section 132B of the Strata Schemes Management Act (“Management Act”) does not define sustainability infrastructure with reference to technology. Instead, it defines it by reference to functionality such as reducing energy or water consumption or the use of landfill. It is the purpose, not the technology that is crucial. As the types of improvements that may fall into the definition of sustainability infrastructure are extremely broad and will have a significant practical effect on schemes. Let’s consider come examples.
Example 1: Composting and landscaping.
Removing current landscaping and installing a composting system for residents use and planting drought tolerant species. This work would tick the box as sustainability infrastructure as doing so would reduce waste through composting and also reduce water consumption. A motion to add the compost system and to alter the common property gardens would require special resolutions under section 108 of the Management Act however as it would be a sustainability infrastructure resolution the special resolution requirements are lower, effectively making the threshold to pass it a simple majority.
Example 2: Installing a new lift.
One of the cases discussed in part 2 of my Sustainability Series involved the replacement of a lift. It was found to be an upgrade rather than a repair as the lift was able to be repaired and parts were available and for this reason a special resolution under s108 of the Management Act had been required to authorise the work. It may well however have been less expensive to replace the lift. Since 24 February 2021 when the changes were introduced, if the lift was to be replaced with a new more energy efficient lift then it would be sustainability infrastructure and although a special resolution would be required, the reduced threshold would require a simple majority vote.
Example 3: Painting the building.
This was also discussed part 2 of this Sustainability Series. Where the paint system is intact and does not need to be re-painted but the owners corporation wish to re-paint the building in a colour or using a paint system that will reduce the energy use within the building then the motion to approve this work would also be a sustainability infrastructure resolution.
Example 4: Garbage Room.
If a scheme needed to alter the common property to either remove structural walls or open doorways to create a larger garbage room to house recycling bins or to erect a new garbage bin storage area then then this would reduce the waste in landfill. As such, the motion to approve this work would be a sustainability resolution.
Example 5: EV Chargers and Associated Electrical Work
Clearly, installing an EV charging system would be to install sustainability infrastructure as it would be a motion to encourage the use of sustainable forms of transport. However, what about when a scheme’s electrical switchboard would not have capacity for an EV charging system or one more EV charging system? Is that a sustainability infrastructure resolution? I believe it should be for instance, if a new switchboard is necessary as part of the installation of the EV charging system to enable the EV charging system to be installed then it should be included in the same authorising resolution. On the other hand, where replacement of the switchboard to enable the installation of an EV charging system is not needed and it was instead being replaced as part of a fire safety review then it would not be a sustainability infrastructure resolution. This same line of thought could be applied to the installation of solar panels, inverters and batteries.
To me, the key takeaway is that it is the purpose, or the intended functionality, of the new infrastructure that should be the guiding principle when considering whether the proposed work is work to install sustainability infrastructure.
Where the purpose of the work is that it will reduce the consumption of energy or water or to increase the efficiency of its consumption, reduce or prevent pollution, reduce the amount of waste sent to landfill, increase the recovery or recycling of materials, reduce greenhouse gas emissions or facilitate the use of sustainable forms of transport then it will be sustainability infrastructure and be able to be authorised under the reduced threshold special resolution for sustainability infrastructure resolutions.
In effect, if work or improvements to the common property can be classified as sustainability infrastructure resolutions they become much easier to authorise and harder to block.
The practical changes are real and wide ranging, however sustainability infrastructure resolutions have technical requirements that need to be met. These are discussed in part 5 of my Sustainability Series.
Please seek legal advice that is tailored to your situation because as always, the devil is in the details and this is general information only.
Allison Benson
Kerin Benson Lawyers
E: allison@kerinbensonlawyers.com.au
P: 02 4032 7990
This post appears in Strata News #779.
Have a question or something to add to the article? Leave a comment below.
Read next:
- NSW: Sustainability infrastructure: What is it & how has installing it been made easier?
- NSW: Sustainability Infrastructure In Strata Schemes – The Good And The Bad
- NSW: What are sustainability infrastructure motions? How are these resolutions changing how works are authorised?
This article has been republished with permission from the author and first appeared on the Kerin Benson Lawyers website.
Visit our Apartment Living Sustainability, Maintenance and Common Property OR NSW Strata Legislation.
Are you not sure about some of the strata terms used in this article? Take a look at our NSW Strata Glossary to help with your understanding.
After a free PDF of this article? Log into your existing LookUpStrata Account to download the printable file. Not a member? Simple – join for free on our Registration page.
Leave a Reply