First, a quick recap on when you need a by-law. A by-law will generally be required when the proposed work:
(a) involves making structural changes,
(b) will change the external appearance of a lot
(c) involves waterproofing (for instance replacing tiles);
(d) requires development consent or approval under other legislation; or
(e) you want to obtain the exclusive use of part of the common property.
For more information see my post “I want to do work to my lot do I need a by-law?” See: (https://allisonbensonau.com/2018/04/06/i-want-to-do-work-to-my-lot-do-i-need-a-by-law/)
So, a by-law has been prepared and put to a vote at a general meeting of your owners corporation however it did not pass. This is when you need to ask whether your by-law motion unreasonably refused by the owners corporation? I’ve previously written about this in “Was my by-law unreasonably refused? See: https://allisonbensonau.com/2019/07/15/was-my-by-law-unreasonably-refused/
If you believe your by-law was unreasonably refused then you broadly speaking have four potential responses which are:
1. Decide not to conduct the work.
2. Discuss your concerns with other lot owners and try to win over their support to your proposed works. Once you have the numbers you can then put the by-law forward again for a second vote.
3. Discuss your proposed changes with other lot owners and your strata manager and see what the objections were. It may be that:
– other lot owners did not understand what you wanted or
– your by-law did not contain enough information or safeguards for other lot owners comfort or
– there was a particular component of the work that was objected.
If so, you may be able to provide additional information or to amend your scope of work or proposed by-law to address these concerns
4. Apply to the NSW Civil & Administrative Tribunal (NCAT) for an order that your by-law be made as it was unreasonably refused. If you go to NCAT remember that you must show that the owners corporation’s refusal was unreasonable not that the proposed work was reasonable. To put it another way the onus is upon you as the lot owner to demonstrate that the decision of the owners corporation had no rational basis and was not guided by sound judgement or good sense. The relevant time and material to be considered is the meeting date and the material known at the meeting.
What are some aspects that would make the owners corporation’s refusal unreasonable? Two examples suggested in the case law are that:
Refusing due to concern that something might be an issue rather than knowledge that it will be an issue is unreasonable;
Refusing when the interests of lot owners in using their lots and the common property are not affected the proposed exclusive use or work or only minimally affected may be unreasonable
This is general information and should not be considered to be legal advice. If you are affected you should obtain legal advice specific to your individual situation.
Author – Allison Benson
Principal at Kerin Benson Lawyers
