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