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Obtaining Council decisions on building works by other owners
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platform.shoes
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07/12/2017 - 12:18 pm
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 Our OC comprises 5 separate town houses, of which are connected by adjoining garages.  Two units (one joined to my garage) undertook unapproved conversions of their garages to make them living spaces.  The OC did not agree that this issue was for them and advised that individual unit owners could lodge complaints with Council.

A complaint from me to Council resulted in both owners being instructed to demolish the works.  I received Council correspondence advising of this decision.

At our last AGM, I proposed a motion that both owners provide written confirmation that the demolish works had been completed in accordance with Council's instruction and their lots now complied with the development consent.

The managing agent advised that this was not a matter for the OC, but an issue between individual owners and Council and ruled the motion out of order.

As I had lodged the original complaint with Council, I contacted them requesting written confirmation that the demolition works had been completed and was advised that Council had inspected the works and both units now complied.

I sought written confirmation from Council of their final inspection and was advised that as I was not the owner, they were not able to confirm the outcome of their assessment and if I wanted to find out I could so via a Freedom of Information application.

I asked whether the OC could receive the written confirmation and they were unsure.

Could anyone advise what rights I have as an owner to follow-up with Council or what clause under the Act might apply in this instance?

Thank you

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scotlandx
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07/12/2017 - 1:20 pm
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What more do you want, the Council has given you confirmation.

You made the complaint, it has nothing to do with the OC.

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Sir Humphrey
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07/12/2017 - 9:09 pm
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While this does seem to have been resolved via the local council, an alternative route could have been to enforce the OC rules/by-laws/articles that most places have specifying the approval necessary to erect or alter a structure on the unit. With only 5 units and an alternative route available via the council, I suspect other owners might have thought it more diplomatic and less harmful to happy co-existence to go via the council approval route. 

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platform.shoes
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08/12/2017 - 3:20 am
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Thank you for the response.

Our development consent requires us to have 10 car spaces, 5 garages and 5 visitors.  As the unapproved garage conversions did not meet the DC, by reducing the number of car spaces to 8, I assumed the OC would have a responsibility to ensure DC compliance and not leave the issue for individual owners to pursue. 

As you noted, the strata law provides for owners to apply to the OC to undertake renovations, however, if they don't apply and undertake them anyway, where does that leave the OC in relation to insurance liability?  Do we have to wait for an incident to find out unapproved alterations have been undertaken?

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Sir Humphrey
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08/12/2017 - 10:28 am
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In this instance it seems the path of least resistance and quickest efficacy was for individuals to go directly to the local council rather than address the matter through the OC's power to approve or disapprove unit alterations, especially as, in this case, even if the OC approved these alterations, they were contrary to the council's planning requirements and would therefore have failed at that stage of approval. 

However, some unit owner alterations or erections would not offend any planning rules or development approvals yet could offend OC decisions about what sorts of alterations should be permitted and how they are to be approved. 

I am most familiar with the situation in the ACT but expect other places are similar. Here the Unit Titles (Management) Act leaves the process for approving erections and alterations in or on a unit to the OC's rules (aka by-laws or articles) rather than being set in stone in the body of the Act. The default rule provided by the ACT's Act is that all erections and alterations require an unopposed resolution of a general meeting. [Some other states distinguish major and minor alterations and require different classes of resolution.]

Rules may be amended by special resolution (in the ACT, a majority in favour and fewer than one third opposed). Therefore, an OC can resolve to require some less stringent standard than an unopposed resolution for alterations. OCs can resolve to amend the rule in many ways.

Our OC deleted the requirement for a general meeting resolution but retained the requirement for OC approval. The consequence is that our Executive Committee can approve (or not). Our EC however is constrained by other resolutions of general meetings which require consultation with nearby units and certain style and architectural constraints to be met before the EC can approve a proposal on behalf of the OC. 

Now, to the question, if a unit owner erects or alters a structure without approval, that owner will have failed to comply with a rule and can be issued with a rules infringement notice (other terms in other states) telling them that they must rectify the matter in a particular way by some reasonable specified date. The Act sets out what is required for a valid rules infringement notice. I expect this is similar in other states. One of the requirements is that the notice informs the unit owner that it is an offence to fail to comply with a valid notice. 

If a person fails to comply, the OC, or the EC on behalf of the OC, can go to the Tribunal seeking an order that the person complies with the notice. In the event that the person fails to comply with the Tribunal order they have committed a further offence. 

On the one occasion that all the above occurred where I am, we then applied for and received an 'enforcement order' by which the OC was authorised to do that which the unit owner had been ordered to do but had failed to do. IE. The OC was then able to appoint a representative (in practice a suitable tradesperson) to enter the unit and remove the unapproved structure. 

If someone digs in their heels, it can become a drawn out process but you can get there in the end if the matter is clear cut and you still scrupulously to the proper processes. 

In the meantime, if the matter seems likely to have insurance implications, then the OC should inform its insurer. The insurer should be reassured that the OC is diligently pursuing its options to rectify the situation. If the insurer were to say that the risk causes them to increase the premium, then the OC should also apply to the Tribunal for an order that the unit owner reimburse the OC for the extra cost caused by their failure to comply with the rules. 

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bluehouse
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10/12/2017 - 4:25 pm
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Platform Shoes, In answer to your original question: If you are in NSW, you (or any other member of the public) probably do have the right to view the documents relevant to this matter because councils must supply information about orders and development approvals via GIPA (Government Information (Public Access) Act). A Freedom of Information application, (which will actually be a GIPA application in NSW) is the method by which you claim that right. You may be allowed to print or copy what you are shown.

You can read about GIPA at https://www.ipc.nsw.gov.au/access-government-information# and details of how to apply should be on your council's website. I don't know about the equivalent laws in other states, but searching for "Freedom of Information" on your council's website would be a good place to start.

You already received a reply to your complaint when you were told that there were orders to demolish; after that the compliance issue is between the owner and council, not you. I don't think its reasonable to expect to be sent a confirmation letter about something that is a council matter with someone else.

I don't understand what you would hope to gain by seeing written confirmation, since you already know the garages now comply.  You are unlikely to get much more detail than that. You would be able to see it in writing yourself, but I don't see how that will help you. There is no need to be concerned whether there will be a written record of the outcome kept, because the matter is recorded in writing in the council property file which will still be there in future if needed for some reason.  However, if you really want to see the outcome of the inspection, an FOI application is the route to go at this point.

This is all assuming that simply asking the relevant owners nicely is unlikely to get them to show you their copies of the paperwork that they received?

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