Peek-A Boo: Can You See The Works To My Apartment? 

Peek a Boo

Chances are your strata scheme is ruled by a set of model by-laws. If that is the case, the appearances by-law will contain a paragraph in terms similar to the following:

The owner or occupier of a lot must not, without the written consent of the Owners Corporation, maintain
within the lot anything visible from outside the lot that, viewed from outside the lot, is not in keeping with the rest of the building.

These regulations take special relevance when conducting works in your lot. You might be wondering if the works you are planning to execute are of the kind that requires written consent of the Owners Corporation. In other words, are the works visible from outside my lot? And if so, can they be considered to be in keeping with the rest of the building?

The NSW Supreme Court shed light in The Owners Strata Plan No 68976 v Nicholls [2018] NSWSC 270. In this case, a lot owner had erected a spa bath and decking wall in their courtyard, located at the rear of the
premises, which was arguably visible from outside the lot and not in keeping with the building, as alleged by the Owners Corporation. The decision provides us with useful commentary for the construction of the cited by-law.

‘Visible from outside the lot’ Whether the spa could be seen from outside the lot was a central issue as a preliminary determination before analysing other considerations such as the aesthetic harmony of the works.

The test relies on the likelihood that persons would observe the works from outside the lot [at 58].

‘In keeping with the rest of the building’ The Court stated that this phrase must be read in plain English, and that it does not bear any technical or legal meaning. This was particularly relevant in Nicholls’ case where one of the grounds for appeal revolved around an architect’s ‘expert opinion’ that was considered by the Tribunal yet not influential in its decision.

The Supreme Court agreed with NCAT that it is not a subjective test [at 52], meaning that it cannot be left to the taste of the other occupants of the building.

The Court did not explicitly interpret the phrase (mainly because it did not have the opportunity to do so,
based on the tenor of the appeal); however, it did impliedly confirm the broad approach taken by the
Adjudicator and NCAT. Therefore, it appears that test to be applied is an objective visual comparison between the works and the rest of the building [at 58].

Relevant factors considered by the Tribunal were the shape and colour scheme of the works, which were
declared to be in accordance with the buildings’ minimalist design and with the public nature of the adjacent common area, as well as the lack of evidence to support an alleged negative effect upon the market value of the lots in the strata scheme [at 56].

Our take away
It is worth keeping in mind these requirements when planning works. The Supreme Court calls for common sense and diligence when conducting works that might be seen from outside a lot. On the other side (for lot owners and Owners Corporations), the decision emphasises the importance of being involved in the scheme’s management and of taking advantage of all the available prior stages to supervise and oppose visible works that might not be in keeping with the building, leaving the Courts as the last resource. In any case, the decision is a reminder to always seek adequate legal advice.

This is general information and should not be considered to be legal advice. You should obtain legal advice specific to your individual situation.

Authors: Paulina Mena & Gemma Lumley

Author: Paulina Mena & Gemma Lumley