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We have owned an apartment in Potts Point for 6 years with a large private terrace. The apartment adjacent to us has recently been sold with “exclusive use” rights to the rooftop area outside the apartment purchased by the previous owners from the building developer, and a by-law was created granting the rights to the space. Up until now this hasn’t been a problem but the new owners want to install balustrade fencing around part of the roof area which will be visible from our terrace and anyone standing next to the balustrade can look down onto our previously private terrace and into our bedroom and living room. The owners corporation (which the new owner previously chaired) has granted approval but we assume they will have to lodge a DA for the construction. Is this correct? Can we prevent them from building onto their roof area effectively eliminating our existing privacy? What are our rights in this situation? Any advice much appreciated.
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Exclusive use rights or not, the rooftop area remains Common Property and therefore the proposed balustrades would in my opinion be classified as a change or addition to that, where under Sect 65A of the NSW Strata Schemes Management Act (1996) the Owners Corporation’s (O/C) consent may only be given by way of a special resolution at a General Meeting.
Before commenting further, could you please advise by what means your O/C granted approval to your neighbours proposal?
mofo – thanks for the additional information.
Regarding the privileges additionally granted under the Special By-Law (SBL) providing exclusive use of the rooftop area to your neighbours, as the NSW Strata Schemes Management Act (1996) and the NSW Environmental Planning & Assessment Act (1979) are both legally “superior” to the SBL, your neighbours will need the written consent of both your Owners Corporation and the Local Council before those privileges may be exercised.
What if the proposed balustrades were 3m high and coloured fluorescent orange?
Well…. that’s why Sect 65A of the NSW Strata Schemes Management Act (SCMA) requires works of the types proposed to be consented by way of a special resolution at a General Meeting of the Owners Corporation (not by the Executive Committee), where notwithstanding the special privileges, a vote in favour by ≥75% of those Owners in attendance (both personally and by proxy) would be required in order for the motion accepting the detail of your neighbour’s Development Application (DA) to pass.
If consent is then given, the Owners Corporation places its Common Seal on your neighbour’s Development Application (DA) in order to affirm that the requirements of the SCMA have been complied with, and it’s only then that Council will consider the DA.
So you have two (2) opportunities for input – one at the General Meeting and the second after the DA is lodged with Council, where in the former case you may wish to seek the prior support of other Residents, and in the latter case you must advise Council with prior notice of your interest and of your desire to comment just in case they regard the matter as a complying development.
My large Strata in NSW has a somewhat similar situation so we also need to comply with Sect 65A of the Act and pass a resolution at an EGM that is approved by 75% of owners present – in person or by proxy. One of our lot owners is requesting significant alterations to one of her lots – she owns 4 lots within the complex, therefore has 4 votes at any meeting, in regard to any issue.
Whale, would the lot owner’s 4 votes be included in the 75% you mentioned in your previous response or would the owner be excluded from voting on the issue as it would be beneficial to them alone? Despite being a large strata, attendance at meetings is appalling, quorums impossible to achieve for any reason, so 4 votes is significant.
Thanks JimmyT and all for my “daily forum fix.”
Cappy said: would the lot owner’s 4 votes be included in the 75% you mentioned in your previous response
YES I’m afraid so, but a saving grace may be that the vote on a Special Resolution is not by a simple majority, but by lot unit entitlement where that ≥75% in favour is calculated from the lot unit entitlement of those entitled to vote (and voting) divided by the aggregate lot unit entitlement.
If there’s something contentious about the renovations proposed, then you had better do a bit of lobbying amongst like-minded Proprietors in n effort to convince them attend the General Meeting or to grant you their proxies; not necessarily to oppose the works but perhaps to place conditions upon them that overcome whatever it is that you’re concerned about.
Information provided re unit entitlement was extremely helpful. Thank you. Does this UE regulation apply to all votes on any issues, quorum attendance calculation at meetings etc or just 65A matters or Special Resolutions?
My large inner Sydney Strata consists of studios, 1 -3 bedroom apartments, penthouses, storage facilities and car spaces. UE entitlements range from 8 to 180, that is car spaces to penthouses, and people can own multiple car spaces, with or without residential unit ownership. Yet for voting purposes, no consideration is given to UE – it is all lot entitlements. 10 car spaces = minimal levies and minimal UE but equates to 10 votes. 1 penthouse = maximum levies and maximum UE but equates to 1 vote. Is our SM implementing the Act correctly?
Thank you for your prompt replies and best wishes for Flat Chat live tomorrow.
My questions have no doubt veered from the Privacy of Terrace issue but I am reluctant to start another thread.
Cappy – unit entitlements cannot be used to detetmine a quorum, but the SCMA does mandate Special Resolutions (and votes by unit entitlement) in specific circumstances including for voting on changes and additions to the Common Property of the Plan, creating Special By-Laws, and for revoking exclusive use privelages. Incidentally, it also mandates a unanimous vote on any motion to wind-up the Plan.
In terms of the Agenda for General Meetings, Special Resolutions must be called for (and be “flagged”) where mandated under the Act (refer above), and Ordinary Resolutions (simple majority / one vote, one value) otherwise, so your Strata Manager is acting appropriately if they’re preparing Agendas in that way.
However there is one useful provision of the Act that’s particularly relevant in circumstances such as exists in your Plan with its spread of unit entitlements, and that’s a “poll vote” where a majority of votes by lot unit entitlement determines the outcome (ie 51% determines the outcome).
In that situation, it is where permitted usual for a vote on an Item to be taken by an Ordinary Resolution (i.e. one vote / one value) and if the outcome is considered for any reason to be inappropriate by any one Owner, then that Owner can call for a “poll vote” on that same Item where the votes by those Owners whose Lots have the highest units of entitlement hold sway.
@Whale said:
Cappy – unit entitlements cannot be used to detetmine a quorum,Actually, Schedule 2, clause 12(2) says;
(2) There is a quorum for considering and voting on such a motion or at such an election only if:
(a) at least one-quarter of the number of persons entitled to vote on the motion or at the election is present, either personally or by duly appointed proxy, or
(b) at least one-quarter of the aggregate unit entitlement of the strata scheme is represented by the persons who are present and entitled to vote on the motion or at the election, either personally or by duly appointed proxy.
So you can determine a quorum by either the number of persons present OR by unit of entitlements present.
A special resolution MUST be determined by counting UE’s.
Thanks JGOWI, that’s a provision that I’ve never had to use, therefore didn’t know about, and another bit of potential good news for Cappy!
Am currently in dispute over addition of a sun screen (shutter) to the left elevation of our balcony that has been approved by the scheme architects for our community. Unfortunately my neighbour who is on the executive has raised an objection saying it will partially impede his water view through my balcony and that he has legal advice that indicates that his objection would override any proxies or consensus by other members of our strata plan. There are 30 lot owners in our SP. Can one individual block another lot owner regardless of precedence , compliance with architectural standards etc ?? – See more at: http://www.flatchat.com.au/forum/participation/1-14-end-to-proxy-farming-or-harvesting/#p10812
@Tony said:
Am currently in dispute over addition of a sun screen (shutter) to the left elevation of our balcony that has been approved by the scheme architects for our community.Any changes to the outside appearance of the lot need Strata approval via an ordinary motion at an GM or EC meeting. Unless he has it written into his contract that he is entitled to unrestricted water views (very unlikely) he is bluffing.
If this screen is attached to the common property some would argue it requires a bylaw (I’m not of that persuasion for minor changes) but if it free standing you just need a simple majourity.
No – the only way he could do that is if the change required Council Approval, and he lodged an objection and the Council withheld approval because of that.
But that is an entirely different matter to approval by the Owners Corporation.
Thanks so much for the heads up on this Scott and Paul – the situation has somewhat of a further complication as our SP is part of a Community Estate that has its own Community Association Executive that oversees the entire estate. My neighbour is our SP rep on the Community Association Executive. As a result our own SP exec required me to get approval from the CAE – they then challenged their own scheme architects and have told me that my shutter application is deferred indefinitely until they reconcile the so called inconsistencies. Meanwhile 9 months have elapsed – since our original application 6 months seeking approval from our own exec and 3 months with the CAE … I can only draw the conclusion that our application is being intentionally derailed just not sure of next steps – Our balcony is virtually unusable in the hotter months .. we have complied with each request , Several apartments have enclosed their balconies in exactly the same way , the neighbour objecting himself has a shutter yet we are being told that the SP has had legal advice and they are not bound by precedence .. we are being frustrated at every turn !
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