common property, exclusive use, resolution antics

Several years ago, in our small block an owner was given exclusive use of an area and allowed to build a timber deck within the area above an unused raised concrete garden section which has a 3 brick high wall around its perimeter. The strata manager at the time who was making the case for exclusive use (is that proper for a strata manager?) assured the owners that the garden wall would remain in place and the proposed deck would be built above and over the wall.

Now comes the time for him to build the deck only to discover that he needs to remove about 6 metres of the garden wall to lower part of the deck below his unit’s floor level and yet to be built access door.

He put a special resolution to the OC for permission to remove the section of garden wall. It was defeated with about 70 per cent of votes in favour and 30 per cent refusing to agree, insisting that had they known when the deck was first proposed that the wall would be altered, as opposed to the original assurance, they would have voted against the original deck proposal.

Our attitude is that as the deck cannot be built based on the original assurance, then the matter of permitting a deck to be built at all should be reconsidered by the OC.

The majority group, in concert with the current strata manager, then put forward an ordinary resolution authorising the strata secretary, a solicitor, to sign a strata consent form which authorised the owner to lodge a modified DA with the council.

The plan attached to the resolution and the subsequent modified DA included reference to the removal of the 3 courses of brickwork. The original DA made no mention of removing any part of the wall. Needless to say the ordinary resolution passed 70 % to 30 %. This resolution is considered by them as permission to remove the section of garden wall.

The DA has been approved by the council which advised that it only considered planning issues and was unconcerned with strata permissions or lack thereof as far as the wall is concerned.

Judging by activity in the exclusive use area, it appears that the deck is about to be built. I appreciate that section 108 of the SSM Act requires that alterations to common property may be made only if a special resolution has first been passed. I was also advised by Fair Trading that the ordinary resolution does not authorise the walls removal. I brought this to the attention of the other owners and the strata manager only to be ignored.

Is my only option to take the matter to the tribunal? From what I’ve read on the NCAT website in the case histories section, it seems the tribunal usually has lawyers representing, which would be a considerable expense for me and the OC.

Preparing a case and representing myself at the tribunal may be beyond me. Would the tribunal consider the matter too trivial to deal with as the wall is not in public view and the part to be removed is not large compared to the building?

Or would the tribunal authorise the walls removal deciding that the objecting owners were being unreasonable, despite the original assurance that the wall would remain intact? Or instead would the tribunal instruct that the whole matter of allowing the deck to be built at all be reconsidered by the OC because of the misleading assurance stated when the deck was first proposed?

I’m troubled by the way the strata manager has allowed the walls removal to be dealt with by ordinary resolution. Is there a body where I could make a formal complaint against the strata manager who has apparently allowed the OC to act in contravention of the SSM Act?

I’d appreciate any thoughts as to what I can do now regarding the improper way which permitted the garden wall to be altered thus allowing work on the deck to soon begin, how to deal with the strata manager’s enabling role in it and any insights into the tribunals possible attitude.