Question: With a building by-law requiring timber plantation shutters and disallowing glass alternatives, could the negative impacts of reduced light and increased mould risk, particularly during wet weather, render the by-law unreasonable and open to challenge?
We want to purchase a lot in a building with timber plantation shutters to significant parts of the property. The by-laws state that, to preserve the outdoor appearance of the buildings, the shutters cannot be replaced by glass louvres or windows. During inclement weather or overnight, residents have no choice but to close the shutters, making it unreasonably dark and more conducive to mould growth, especially during current wet conditions.
Is this by-law unreasonable? Could the by-law be challenged? We assume this by-law is a reaction to past owner requests. We want to buy one of these properties. We think it would be more reasonable to allow some consistent glass louvre or window options for residents who wish to change.
Answer: Aside from ‘soft’ aesthetic reasons, ‘hard’ factors may motivate a body corporate not only to keep such a by-law in place.
We appreciate that, from a lot owner’s standpoint, a by-law restricting seemingly practical improvements could be perceived as unreasonable. However, there are a number of reasons why such a by-law may exist in the first place, and further, why a body corporate might not want to relax it…
Shutters or louvres have enjoyed an architectural revival, especially with respect to balconies and patios. Indeed, the ‘lanai’ has become a popular alternative treatment to the more traditional open balcony. Developers often pay serious money for well designed, useful and aesthetically pleasing treatments to high value areas such as indoor / outdoor living spaces, especially when they are visible from outside the community titles scheme. It’s not unusual for those developers to protect the original ‘design intention’ through by-laws and for bodies corporate that are then subsequently controlled by lot owners who liked the design (and indeed may have ‘bought in’ because of it), to seek to enforce those by-laws, strictly.
Aside from ‘soft’ aesthetic reasons, there are also a number of ‘hard’ factors that may motivate a body corporate not only to keep such a by-law in place or put one in place itself and then to strictly enforce it. To list a few:
- There may be town planning restrictions. Installing glass louvres or otherwise enclosing a balcony / patio is often a restricted activity contrary to the development approval for the premises, including because it increases the gross floor area for the building. As such, it may constitute a breach of the planning regulations for an owner to make these types of improvements without the necessary approvals. For example, for a property within the Brisbane City Council catchment area, enclosing balconies and patios are subject to an impact assessable development application. As the owner of the premises, the body corporate is ultimately responsible for a breach of the development conditions, and so, it has a vested interest in regulating the activity.
- The work could give rise to a disposal of part of the common property. For example, in Danseur v the Body Corporate for Cairns Aquarius CTS 1439 & ANOR [2022] QCATA, the Appeal Tribunal found that an owner enlarging a window in the front facing wall of the lot amounted to a disposition of common property, which required a resolution without dissent. Replacing timber louvres with glass may be low risk, but installing a window instead may ‘cross the line’.
- There may be adverse impacts on neighbouring lots’ amenities, including visual impacts, glare, and interruption of airflow. These issues mostly arise when a building has an articulated façade, with shutters providing for adjustable levels of privacy and protection from the elements. It is easy to see how replacing opaque shutters with glass ones may affect privacy, just as replacing louvres with fixed windows interrupts airflow.
- Enclosure of the balcony / patio may result in a breach of fire safety regulations and may impact the body corporate’s insurance. Balconies, patios and even ordinary window systems are designed and selected with fire safety, including fire separation, in mind. While the Grenfell Tower disaster was caused by combustible cladding, the fire vector was up the side of the building. External elements, such as louvres, could create a similar fire vector.
The good news is that most schemes have by-laws that only restrict, rather than prohibit, improvements being made by lot owners. So, in the normal course, it would be difficult, but not impossible, for a lot owner to obtain approval to make improvements designed to enhance the utility of their lot. By-laws drafted in this way are generally viewed as reasonable by the courts, particularly where there are good reasons for them being adopted.
As with most pre-purchase issues in community title, the starting point is to decide whether the issue is a deal breaker. If so, then the contract of purchase should be conditional upon the necessary body corporate approval being obtained before settlement. An experienced strata lawyer can help with that or with seeking approval after settlement if the application is to be made then. Most conveyancers do not appreciate the intricacies of by-laws, body corporate approval processes and rights of review of body corporate decisions.
Fortuitously, good strata lawyers are easy to find – simply go to the website of the Australian College of Strata Lawyers.
This post appears in Strata News #745.
Michael Kleinschmidt Bugden Allen E: michael.kleinschmidt@bagl.com.au P: 07 5406 1280