No By-Law? No Sale? Digging yourself a Hole with an Unauthorised Renovation

The Owners – Strata Plan No 9319 v Lovell [2020] NSWCATCD

Background

Bannermans received instructions from an owners corporation that had recently discovered extensive unauthorised works to the common property, undertaken by a lot owner some years earlier. The owner undertook extensive excavation works underneath the lot to create a subterranean area complete with speakers and a video projector. These works were then concealed by a motorised trap door near the entry way. The owners corporation submitted that the unauthorised works did not have Council approval.

The lot owner alleged that the works were necessary to facilitate the installation of a sump pump underneath the lot to extract excess ground water. At the time the owners corporation discovered the unauthorised works, the property was being marketed for sale.

Bannermans pointed out the risks involved in allowing the property to sell whilst the unauthorised works were outstanding. Bannermans commenced proceedings in the NSW Civil and Administrative Tribunal to have the unauthorised works removed and the common property reinstated.

Throughout the duration of the proceedings, the lot owner indicated their willingness to proceed with the sale and her refusal to provide an undertaking not to sell until the proceedings were determined.

Orders Granted

Within five weeks of commencing proceedings, Bannermans was successful in obtaining the following orders for the owners corporation:

1. That the lot owner permanently seal the subterranean area within 4 months. Provided they obtained confirmation from a structural engineer, a hydraulic engineer and Council that the works to seal the subterranean area would not adversely impact on the common property; or

2. If the lot owner was unable to obtain the above advice and/or Council consent, they were required to permanently seal the trap door and reinstate the subterranean living area to a condition as close as practicable to its condition prior to the carrying out of the unauthorised works within 4 months; or

3. In the alternative to the above, within 14 days the lot owner could provide a written undertaking to the Tribunal and the owners corporation that they would not sell the property until a by-law could be made either by the owners corporation or failing this, by Tribunal order. If a by-law was not made by the owners corporation or the Tribunal, then the lot owner was required to reinstate the works as per orders 1 and 2 above.

It should be noted that as a result of the lot owner not first seeking the proper authorisation for the works, many months of time was lost, they were unable to sell the property and unnecessary costs incurred. The moral of the story is, before carrying out works to common property, obtain the appropriate by-law and approvals from the owners corporation and Council.