Back to the bad old days as by-laws balked

I hate to say it, but it seems we’re heading back to the bad old days of the CTTT when it comes to our strata tribunal (NCAT).

According to an increasing number of stories crossing this desk, Tribunal Members are making decisions that seem odd, at best, but too often appear irrational and even biased against whichever party is trying to do the right thing in terms of strata law and by-laws.

In fact, it’s fair to say that the whole concept of by-laws are being undermined by the very people who are supposed to be there to help us to enforce them.

We’ve had the “no-pets by-laws are invalid” case – in our opinion, the right decision for the wrong reasons – and the “short-term letting by-laws are invalid” case, where we saw arguably the wrong decision for the wrong reasons.

The latest issue concerns a building where one set of owners applied for permission to renovate, subject to certain conditions.  The Owners Corp agreed and work started – and everything promptly went pear-shaped.

There was unapproved drilling into the concrete slab, widening of a doorway and the installation of bi-fold doors instead of the standard sliding doors installed in the rest of the building. And then there was the rubble dumped on common property.

The OC took the owners to the tribunal on the grounds that they had breached by-laws, their agreement with the strata scheme, that they had altered the outward appearance of the block and had damaged common property.

The main reason the committee took the case to the Tribunal was to establish that owners had to abide by their by-laws, and to set a precedent so that future renovators wouldn’t just do what they wanted, knowing they’d get away with it.

At the Tribunal hearing, by way of conciliation, the OC members agreed to drop the other issues if they could get agreement to change the doors back.  The lot owners refused.

So they went to the hearing and the member agreed that the scope of works had been exceeded and the by-law breached … no question.

However, in his wisdom the Member didn’t think the change of doors was such a big deal, so dismissed the case.

Yes, it’s only a door, but the clear message, according to the strata committee members, is that your by-laws mean very little when a Tribunal member decides to impose their own arbitrary opinions to the case.

Let’s look at what the Member said in his findings:

“This work is alleged to have been done, and appears plainly to have been done, not in compliance with by-laws. In that regard, the owners corporation seeks the imposition of a civil penalty under s 147 of the SSM Act.

“There is no dispute, and it is clear on the evidence, that this is a valid claim under the SSM Act and that the Tribunal has jurisdiction to hear and determine the claim,” says the member, who goes on to acknowledge that the strata committee had agreed not to press the case on the many other breaches, provided the sliding door was restored to its previous appearance.  The lot owners had refused.

“In brief, I determined that the replacement doors and window were not out of keeping with the appearance of the building, based on a view of numerous photographs of the building, showing there was already considerable, but minor, variations in appearance,” said the Member.

“In my opinion the subject windows did not add to that variation in any relevant fashion.”

The member went on to address complaints about additional noise escaping from the redesigned doors.

“There is no evidence that bi-fold doors or windows allow more noise to escape than the other windows and doors currently installed,” he said.

So, no site visit to determine the noise issue?  Just an opinion about noise based on … what? Photographs?

Hang on, there’s this: “There was no evidence that any person was disturbed by noise to a greater extent than can be expected in all, or the great majority of, strata schemes.”

Oh, that old chestnut! Basically, if you are stupid enough to live in strata, you should expect to be disturbed by other people’s noise.

So having agreed that by-laws had been breached and that the works had gone beyond their initial agreed scope, the Member decided that there was no issue of noise and that there wasn’t enough difference in the look of the windows, all based on a few photographs.

“On the basis of those findings I am satisfied it is not reasonable to require any or all of the new windows and door to be replaced, and that I refuse to exercise my discretion to impose a civil penalty.”

Now normally, I would get a comment on the story from the government departments involved but I won’t waste the energy expended by my dialling finger.

The Attorney General’s department won’t comment on Tribunal cases, saying they are a Fair Trading issue, and Fair Trading won’t comment on Tribunal cases, saying they are down to the Attorney General’s office.

It’s a convenient smokescreen that both departments employ in situations like this.  Why have a too-hard basket when you have Credibilty Canyon between departments, into which all tricky questions are allowed to fall.

And, yes, it’s only a door and some drilling – but the clear message is this: just because you have by-laws and rock-solid evidence that they have been breached – as agreed by a Tribunal Member – don’t expect to win at NCAT.

As the committee’s strata manager told them after the case, there is a reluctance on the part of Tribunal members to issue orders that would result in an expensive restoration of work that was done illegally.

And, as our old friend and leading strata lawyer Stephen Goddard used to say about the old CTTT, “When Tribunal members start wanting to impose their version of the Wisdom of Solomon, you know there’s going to be blood on the floor.”

One other thing – NCAT is supposed to be a low-cost, lawyer free avenue for resolving strata disputes.  But it’s clear from this that hiring a lawyer, who could speak to the Member on equal terms, might have prevented it from being a waste of time as well as money.