Retail tenants in a mixed-use building keep breaching council conditions on rubbish removal hours. Can the owners corporation enforce them?
We live in a mixed-use apartment complex. The retail lots on the ground floor are subject to council development approval (DA) conditions that specifically say there is to be no rubbish removal from the site between 10 pm and 7 am. These times are breached regularly.
Can the owners corporation, the strata committee or the strata managing agent be involved in enforcing the DA conditions?
An owners corporation can enforce its own by-laws, but those powers don’t extend to breaches of council conditions outside the strata scheme.
This addresses very specific issues which I cannot speak to without being instructed, and I recommend the enquirer seek legal advice.
I will comment generally:
An owners corporation’s by-laws govern how owners and tenants use lot and common property within the strata scheme. By-laws can govern all behaviours within a strata scheme, subject to them being reasonable and compliant with the law and particularly the Strata Schemes Management Act 2015 (NSW) (SSMA): cf. section 139 of the SSMA.
Where a lot owner (or tenant) breaches a by-law, an owners corporation can issue a breach notice pursuant to section 146 of the SSMA in respect of that breach. If the breach persists after the notice is issued, an owners corporation can commence NCAT proceedings under section 147 of the SSMA to seek a civil penalty against the offending lot owner (or tenant).
The owners corporation only manages the strata scheme, and the aforementioned sections do not apply to issues outside the strata scheme, for example, breaches of council rules on public land. Additionally, a mixed-use building might be part of a building management committee (BMC), and you would also need to refer to the Strata Management Statement (SMS).
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Matthew is a Partner of Kerin Strata Lawyers. He graduated Laws from UNSW with Honours and has practiced as a solicitor since 2014. He has acted for and advised clients in a range of matters, including in disputes with respect to strata, building & construction, insurance, contracts, trusts, consumer law, and class actions. He is a Member of the Australian College of Strata Lawyers (MACSL).
In addition to legal practice, Matthew is a frequent contributor to LookUpStrata, the Law Society Journal, and Ethics & Standards Quarterly. He was also a contributor to Wolters Kluwer’s Australian Company Law Commentary and an author to LexisNexis’ Practical Guidance for Total and Permanent Disablement Insurance.
Matthew is an active member of the Law Society of New South Wales and was appointed by the President of the Law Society of New South Wales to its: Business Law Committee since 2021, where Matthew has particular interest in building and construction legislation and strata legislation; and Costs Committee since 2023. In 2024, Matthew was awarded Highly Commended Committee Member of the Year by the Law Society.
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