Question: Is a motion enforceable if it allows the committee to escalate breaches directly to NCAT without notices or investigation?
At a recent extraordinary general meeting, our scheme passed a motion that states, in effect: If a resident leaves a pot plant on common property without committee permission, and does not remove it after written advice from the committee, the committee may refer the resident to NCAT.
Is escalation to NCAT the legislated next step in this type of situation? The committee would only need to prove that the resident did not comply with an order to remove or relocate the pot plant, without needing to demonstrate that the pot plant created a hazard or obstructed movement. This places the burden of proof on the resident rather than the committee. Is this motion enforceable?
Answer: While the motion records the committee’s intention, it cannot override the requirements of the Act.
Under the Strata Schemes Management Act 2015 (NSW), the process for enforcing by-laws is set out quite specifically:
- The strata committee or owners corporation may issue a Notice to Comply with a by-law (Section 146). This notice must identify the by-law that is alleged to have been breached.
- If the matter is not resolved, the owners corporation may then apply to the NSW Civil and Administrative Tribunal (NCAT) for an order. Only NCAT can determine whether a breach has occurred and, if appropriate, impose a penalty.
- The Act does not require the committee to conduct a hearing before issuing a notice. The safeguard is that any enforcement action can only proceed through NCAT, where the resident has the full opportunity to present their case.
In short, while the motion records the committee’s intention, it cannot override the requirements of the Act. Enforcement must still follow the legislative process. The committee itself cannot impose penalties, and the onus remains on the owners corporation to demonstrate a breach of a valid by-law at NCAT.
This post appears in the October 2025 edition of The NSW Strata Magazine.
Sean Bermingham
The Strata Collective
E: info@thestratacollective.com.au
P: 02 9137 2320
I recently received a letter accusing me of breaching a by law (ie parking in visitors car park) which includes photographs of cars that do not belong to me. I feel most outraged. What are my rights?
Hi John
Leanne Habib, Premium Strata has responded to your comment in the article above.
Are Strata Managers allowed to charge for the cost of producing a letter advising of a by-law breach? If so, what constitutes a reasonable charge?
Does the notice need to be in the approved Notice to Comply form to be valid?
Hi Annie
Leanne Habib from Premium Strata has responded to your comment within this article: NSW: Q&A How do we Deal with Strata Manager Complaints and Bullying?
Answer: I would always recommend having legal representation, especially when it comes to enforcing bylaws
To answer the first question, ‘is it suggested to have legal representation’; in NCAT you have to actually seek leave to have legal representation. So it’s not automatic, you have to actually get approval from the tribunal member to have representation.
If representation is approved, generally, the NCAT is a jurisdiction where there’s no cost but you can obtain costs on rare occasions and circumstances but generally speaking, there is no cost, you can’t seek your cost.
Comment:
I think the views put forward are rather reckless.
Costs are a lottery at NCAT and it is remiss of anyone to say otherwise because the case law supports that position. Costs do get awarded at first instance in many cases.
As for leave, NCAT are reluctant not to grant leave, it is not ‘automatic’ to have leave but it is difficult to find situations where leave is denied.
As soon as you introduce a legal ‘professional’ to a matter then costs enter the equation. Also as soon as you introduce the legal professional you need to consider will the other party appeal and the quantum of the cost to the OC if appeals occur because there are numerous cases where matters started out as what seemed a simple by-law matter and next thing you know it is in the Court of Appeal with a 5 zero legal bill for someone.
I think the view expressed in the answer is very misleading.
Just for fun here are some reasons from a NCAT matter in relation to representation.
At the directions hearing the matter of leave was not brought up by the respondent who was granted leave. The applicant OC had opposed leave in a submission and even went as far as to say if leave was granted it should be only on the condition no costs would be sought by the respondent.
As the matter of leave was not discussed at the directions hearing the OC asked for reasons why leave why granted without any discussion; denial of procedural fairness was claimed.
The comments in brackets are not part of the reasons but comments on what the Tribunal claims.
Reasons for decision made on 20-May-2021 regarding leave for representation:
1. The owners corporation appears by representatives, as it is not a natural person, so the applicant already has a right to appear by a representative.
( not so much a right but a consequence of the OC being an artificial body)
2. The respondents wish to be represented by their property manager and the Tribunal considers that representative will be familiar with the practice and procedure and the law which is applied in the Tribunal.
(the representative property agent is completely unfamiliar with the practices and procedures as was shown by the material lodged. The view of the Tribunal has no qualification and strikes me as cliché rubbish to placate the ill informed, there was no basis for the reason other than perhaps that the property agent has a licence)
3. The rules of evidence apply and as such the proceedings are complex. If the respondents wish to be represented they should be entitled to given the complexity of the proceedings.
(the matter is simply a question of has the owner (respondent) complied with the by-law, a simple matter of fact)
4. The decision was made during a 30 min directions hearing which needed to consider a number of matters. The Tribunal took account of the owners corporation’s opposition to leave being granted but decided to grant leave. (Rubbish; as if it had then it would have made some comment on the option to grant conditional leave)
5. If the applicant considers that the grant of leave was a breach of procedural fairness the applicant can appeal to the appeal panel if it so desires. The Tribunal does not accept the decision to grant leave was made with disregard for procedural fairness.(What a lovely exit card the Tribunal plays – as if anyone is going to drag this to the Appeal Panel)
“It is possible this person is unaware of the protocols….” in breaching By-laws?
Is it not not possible.that they are?
1. Strata By-laws are attached to all Sale agreements when Strata units are bought The purchaser reads the agreement and all the attached documentation. Strata By-laws do state where applicable “do not commence works without Owners Corporation approval”
2. Tenants sign a lease to rent a Strata unit and the Strata By-laws must be attached to the lease . The rent agent / landlord must sit down with the tenant at time of signing the lease , explain the lease, explain the By-laws and obtain signature from the tenant that acknowledges the acceptance of the lease agreement and the Strata By-laws.
If the Agent / Landlord fails to do this they are negligent in their professional duty. Dereliction of duty comes into play.
Too many times do we read about and experience blatant disregard and abuse of Strata By-laws by tenants and owners. It’s never ending resentful nightmare for Strata Committees to become involved in a prolonged remedy process that involves personal time and legal costs. that could have been avoided had Strata residents Tenants/ Owners followed the simple regulation “Request Approval First’ !
And, too many times we have to deal with passive Strata Managers who fail the Owners Corporation by not upholding the Strata By-laws by appeasing Rent Agents rather than appeasing the Owners Corporation.
“Question: […] How do we enforce clean up of their lot and stop the smell!”
Matters concerning offensive smells from animal poo that is not being cleaned away are best dealt with by promptly contacting your local health inspector; the R.S.P.C.A. will definitely want to know about it because the animal is being kept in an unsanitary location.
Hi there its a new building 2 years old residents below complaining about foot steps noise, lounge room is hard ceramic tile flooring and bedrooms are carpeted. What can i do, strata issued us final warning to comply bylaw 14 to place rugs.
My question is why should I place rugs or carpet to reduce noise, i did not change flooring more over they don’t have expert report about how many decibels of noise, pretty much basing on neighbors witness, why should I suffer. So working couple and 4 years old cant live in apartment.
Rather than issuing you with a final warning to comply with a bylaw it looks like the strata company has an issue with *but the builder* if it was indeed the builder who decided to lay the hard ceramic floor tiling in the lounge and for some reason decided to carpet the bedrooms. There may be valid grounds to have the strata company served with an order to cease harassing you in their trying to take what appears to be the easy way out by threatening you instead of dealing with the matter properly by taking it up with *but the builder*.
Hi Chandra
Leanne Habib from Premium Strata has responded to your comment in the article above.
we are on the top floor of a 4 story dwelling with carpets in bedrooms, timber in living areas and porcelain tiles in work areas. As we are considerate people and do not want to make others uncomfortable we do not wear hard soled footwear, mostly slippers or soft crepe shoes. It’s no great effort or bid deal so why not be considerate. We do find that [some people] are not inclined towards being considerate like slamming (not shutting) doors they do not comprehend that noise is stressful especially if it is thoughtless.
Hi Tony,
Wished you lived in my complex. We are an older block in an expensive suburb that has become rundown. We are attracting first homebuyers, often young couples in a one bedroom apartment who want the Hawthorn address. They don’t care about the outwards appearance of the complex and renovate cheaply. Even trying to remotely request that they comply with Special Rules is a nightmare. These millennials are self entitled and selfish and become very aggressive. One couple stated they were putting in high quality timber flooring with the sound proofing and the sound rating, got their approval and instead put in cheap hard vinyl planks with no underlay. They are two floors above me and all I can hear is them stomping around with what sounds like bricks on their feet and slamming doors. I can tell exactly what room they are in and what furniture they are using. They won’t even put felt stoppers under their chairs. I am on the ground floor, and yet when I put in my floorboards I made sure my sound proofing was top quality and I aways wear slippers inside. What I don’t understand, is if I can hear it two floors away, imagine what the noise must be like for themselves.
Perhaps think about what you are wearing as footware. Some compromise could be needed.
What do you do when a Strata Committee member or members breach any one of the Owners Corporation’s By-laws …?
Go after them.
238 Orders relating to strata committee and officers
(1) The Tribunal may, on its own motion or on application by an interested person, make any of the following orders—
(a) an order removing a person from a strata committee,
(b) …
(c) an order removing one or more of the officers of an owners corporation from office and from the strata committee.
(2) Without limiting the grounds on which the Tribunal may order the removal from office of a person, the Tribunal may remove a person if it is satisfied that the person has—
(a) failed to comply with this Act or the regulations or the by-laws of the strata scheme, or
(b) ….
What do you do when a Strata Committee (SC) member or members breach any one of the Owners Corporation’s By-laws which in turn is a breach of one of the provisions in the Strata Schemes Management legislation? How does a resident commence proceedings against the SC member/s?