Do votes against renovations need to be "reasonable"? | Talkin' 'bout a renovation | Flat Chat Forum: Your Questions Answered




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Do votes against renovations need to be "reasonable"?
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bluehouse
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13/04/2017 - 11:39 pm
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I am the secretary of a strata committee in NSW and I'd like to know on what grounds owners can object to passing a special bylaw for an addition.

We have an owner who wants to do what to her seems a simple addition to her townhouse.  The more we look into it the more she is going to have to do to have it approved - special by-law, engineers report, DA (not Complying Certificate) and all that it involves... All of which are genuine requirements, not raised for the purpose of making trouble for her.  She has never even been to any meetings of any sort yet - these are just the things that have arisen so far from Strata Legislation and Council requirements. 

Once she has met all these requirements and we have a vote at a General Meeting on what grounds can people object?  I am concerned that she will have done all this and gone to considerable expense (possibly exceeding the cost of the actual work) and her additions will be turned down on the whim of some owners for reason other than the best interests of the Strata Scheme.  In NSW are we required to have reasonable grounds to object to a special by-law for an alteration?

There are a few good reasons why people could object and I keep trying, on a friendly basis (not in my capacity as secretary) to suggest she should address them before the vote, so it will be her own fault if she is turned down on those grounds.  

But it seems very unfair for her to go to those lengths and be turned down on the grounds of individuals resentment/jealously/resistance to change/racism/intolerance/personal beliefs about how others should live/deluded personal beliefs about how buildings stand up....whatever.  

Its very likely someone has already asked and answered this question in some other form but I can't find the answer so I apologise if so.

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JimmyT
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14/04/2017 - 11:09 am
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Apartment owners don't have to explain or justify their decisions to accept or reject a proposed by-law when they are voting.  However, they may have to do so if the renovating owner takes the matter to the Tribunal and seeks orders under section 126 (below), claiming the Owners Corp has "unreasonably refused" permission.

What is unreasonable? If the proposal is denied even when the owner has taken steps to show:

  • the work will be done professionally with all insurances in place
  • no by-laws will be breached
  • disruption will be kept to a minimum
  • other owners properties will not be affected
  • they have undertaken ongoing responsibility for maintenance and repair of any common property affected 
  • adequate compensation for use of common property has been offered

... then refusal may well be considered unreasonable 

The chair of any meeting where this is considered might point out that any personal feelings have to be set aside otherwise the OC could be facing the expensive, time consuming and disruptive process of having to defend in a Tribunal a decision they know to be wrong and unfair.

 

126 Orders relating to alterations and repairs to common property and other property
(1) Order requiring owners corporation to carry out work on common property
The Tribunal may, on application by a lessor of a leasehold strata scheme or an owner of a lot in a strata scheme, order the owners corporation to consent to work proposed to be carried out by an owner of a lot if the Tribunal considers that the owners corporation has unreasonably refused its consent and the work relates to any of the following:
(a) minor renovations or other alterations to common property directly affecting the owner’s lot,
(b) carrying out repairs to common property or any other property of the owners corporation directly affecting the owner’s lot.

(2) Order consenting to owner’s work on owners corporation property
The Tribunal may, on application by a lessor of a leasehold strata scheme or an owner of a lot in a strata scheme, make an order (a work approval order) approving of minor renovations or alterations or repairs already made by an owner to common property or any other property of the owners corporation directly affecting the owner’s lot if the Tribunal considers that the owners corporation unreasonably refused its consent to the minor renovations or alterations or repairs.

(3) A work approval order is taken to be the consent of the owners corporation to the renovations, alterations or repairs and may provide that it has effect from a day specified in the order that occurred before the order was made.

(4) In deciding whether to grant a work approval order or to provide for the order to have effect from a day that occurred before the date of the order, the Tribunal may take into account the conduct of the parties in the proceedings, for example, if an owner did not first seek the consent of the owners corporation before carrying out the renovations, alterations or repairs.

(5) Responsibility for ongoing repair and maintenance of affected property
The Tribunal may specify in an order under this section whether the owners
corporation or the owner of the lot has the ongoing responsibility for the repair and maintenance of any additional property arising out of a minor renovation or alteration or repair to common property approved under the order.

(6) If an order provides for the owner of a lot to have the ongoing responsibility for the repair and maintenance of any such additional property, the order also has effect in relation to any subsequent owner of the lot.

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bluehouse
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14/04/2017 - 2:03 pm
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Thanks Jimmy, thats exactly what I wanted to know.  I wanted to make sure I was correct before saying that to the meeting. 

Her special by-law will cover most of those measures - provided she shows she is meeting all the clauses of her by-law.  

The only aspect not covered is the impact on others property. The reason Council gave for requiring a DA not just a Complying Development Certificate was that they need to check how the alteration will effect neighbouring properties. Since our properties are townhouses and the alteration is to the back wall and courtyard at the back of the house its possible those concerns will already have been addressed by the time we have to vote on it.  I'll be interested to see how that goes in reality....

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Sir Humphrey
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14/04/2017 - 5:49 pm
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What about reversing the order of things? The OC could vote to give approval conditional on receiving the appropriate Development Approval, engineer's report, maintenance or repair requirements, and so on. 

That is how our OC does it. In our case the Executive Committee (EC) has authority to approve unit alterations on behalf of the Owners Corporation (OC). The EC is constrained in what it can approve by various resolutions of the OC directing the EC to only approve after consulting the immediately surrounding neighbours or anyone else who might be affected and within various guidelines on architectural style, colour and materials. 

Sometimes we go back and forth a few times informally with an owner before they present a proposal that the EC is likely to approve or able to approve. Proposals are approved subject to compliance with any local government requirements such as DA, which covers engineering, safety etc. Approval is also made subject to restoring any damage to common property that might occur during construction. 

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bluehouse
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14/04/2017 - 10:41 pm
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Sir Humphrey, What you describe sounds logical, but our committee doesn't have authority to approve an alteration that requires a special by-law.  And don't have authority to approve on behalf of the Owners Corp. 

We have had trouble in the past with the committee approving something that we already had a general bylaw covering, on condition the requirements of the bylaw were met. The owner went ahead and built the addition and when the requirements weren't met it became very difficult to deal with the situation and impossible to rectify without asking the owner to remove the addition (which the committee were unwilling to do). So both the committee and the Strata Manager are wary of getting caught like that again. I'm assuming that is one reason our Strata Manager has insisted we do it in this order.  It means we can ask for documents showing that they have met the DA, have a structural engineers report, have a builder with a license and insurance..... etc, before we give any approval. And what is required can't be misunderstood.

At this point it looks like there will be legitimate reasons the owner has not addressed that will result in a vote against her by-law, so my concern that there will be votes against her for the wrong reasons is probably irrelevant.

Whichever order we do it, your suggestion of going back and forth a few times informally until the owner presents a proposal that is likely to be approved or approvable is a good one.  Unfortunately this owner is in a great hurry for some reason and is not listening to me about possible impacts on others properties that I can see, let alone asking any others. She is throwing herself into getting everything she needs for the DA and trying to get us to organise a date for a general meeting to vote on the by law (which is pointless at this stage).

The committee have to give her permission to apply for a DA so I suppose we will have a chance to tell her some concerns that those on the committee can see. And if, as they claim, Hornsby Council require a DA (as opposed to a CDC) partly to ensure the impacts on her neighbours are considered, that may force the owner to look into them before she gets to the special resolution vote for her bylaw, at an Extra General Meeting she will have had to pay the fees for. Otherwise she potentially will be turned down by an owners vote right at the end of the process after all the effort and cost.  

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scotlandx
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15/04/2017 - 5:08 pm
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In thes circumstances the DA application has to have the seal of the strata scheme affixed to it before the Council will consider it.  This has to be approved by the owners at a general meeting.  

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Sir Humphrey
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15/04/2017 - 9:20 pm
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I see no reason why the OC could not approve subject to various other approvals  such as DA at a general meeting. That can be very explicit in the wording of the resolution. 

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JimmyT
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16/04/2017 - 9:14 am
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bluehouse said
Sir Humphrey, What you describe sounds logical, but our committee doesn't have authority to approve an alteration that requires a special by-law.  And don't have authority to approve on behalf of the Owners Corp. 

We have had trouble in the past with the committee approving something that we already had a general bylaw covering, on condition the requirements of the bylaw were met. The owner went ahead and built the addition and when the requirements weren't met it became very difficult to deal with the situation and impossible to rectify without asking the owner to remove the addition (which the committee were unwilling to do).  

As you say, the committee doesn't have the power to approve or otherwise but it does have considerable influence and it could set the parameters that would have to be met before the proposal went to a general meeting with its support.

Making the support provisional on certain conditions could work if one of those conditions was that the owner agreed that failure to do the work agreed in the conditions would lead to the common property being restored and the new construction removed at the owner's expense.  

Of course, if the committee doesn't have the stomach for anything so confronting then they should step back and require the owner to take whatever laborious steps are required to get this done through the normal processes.

Don't forget, the owner is interested in only one thing - getting what they want as quickly and economically as possible.

The committee has to be interested primarily in what's best for the whole building, now and in the future, not just one owner.  They should not allow themselves to be railroaded by one person.

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