What To Expect When Getting Your By-Law Approved?

When Owners wish to undertake renovations to their lots, the approval process has been simplified under the Strata Schemes Management Act 2015 (“SSMA 2015”) and Regulations under that SSMA 2015. To ensure that this process is easy and manageable this article shall provide you with information regarding what to expect when you seek to get your by-law approved. However, please note that this article is not an exhaustive list of all approvals you may require when undertaking renovations.

What are the benefits of having a by-law?

As an Owner, a by-law will create a clear and transferable right to undertake specific works. The by-law will also provide you with exclusive use of the renovation works which means that you will have the maintenance obligations if any repairs are required.  Additionally, once the by-law is registered any further legal issues regarding the renovations will be removed if you want to sell your property in the future.

If you do not have a by-law approved for your renovation works, the Owners Corporation can require you to remove any changes and reinstate the parts of common property to the state they were in before you undertook the renovations.

What kind of by-law do you need for your renovations?

Under the SSMA 2015, there are different levels of approval that are required depending on the kind of renovations you are seeking to undertake. For clarity please see the table below.

Type of By-law Types of works   Approvals
Cosmetic Works in accordance with section 109 of the SSMA 2015 Cosmetic works are very minor internal works to common property such as:

  • installing or replacing hooks, nails or screws for hanging paintings and other things on walls;
  • installing or replacing handrails;
  • painting;
  • filling minor holes and cracks in internal walls;
  • laying carpet;
  • installing or replacing built-in wardrobes;
  • installing or replacing internal blinds and curtains;

However, certain types of renovations are excluded, such as:

  • minor renovations (as described in the row below);
  • work involving structural changes,work that changes the external appearance of a lot;
  • work that detrimentally affects the safety of a lot or common property;
  • work involving waterproofing, plumbing or exhaust system of a building;
  • work involving reconfiguring walls; and
  • work which requires Council Consents or another approval as required under any other Act.

 

No approval or notification is required for this type of work. As an Owner you may begin the works at any time.
Minor Renovations in accordance with section 110 of the SSMA Minor renovations include but are not limited to the following works:

  • renovating a kitchen,
  • changing recessed light fittings,
  • installing or replacing wood or other hard floors,
  • installing or replacing wiring or cabling or power or access points,
  • work involving reconfiguring walls,
  • removing carpet or other soft floor coverings to expose underlying wooden or other hard floors,
  • installing a rainwater tank,
  • installing a clothesline,
  • installing a reverse cycle split system air conditioner,
  • installing double or triple glazed windows,
  • installing a heat pump, and
  • installing ceiling insulation.

However, certain types of renovations are excluded, such as:

  • cosmetic works (as identified above);
  • work involving structural changes,
  • work that changes the external appearance of a lot;
  • work involving waterproofing;
  • work for which Council Consent (for example development consent or complying development certificate) or another approval is required under any other Act; and
  • work that is authorised by a common property rights by-law or a by-law made under Part 6 of the SSMA 2015.

 

Before you can begin works, you must put forward a section 110 motion for resolution at a general meeting of the Owners Corporation.  After it has been ordinarily resolved you may begin your renovations.

Please see the sections below which describes what an ordinary resolution is.

Works changing common property in accordance with section 108 of the SSMA 2015 Works which change common property include anything that will:

  • add to the common property; alter the common property; or
  • erect a new structure on common property for the purpose of improving or enhancing the common property.

However, this kind of by-law does not include any kind of works listed above as cosmetic works or minor renovations.

Please note that this type of by-law is made in conjunction with a section 143 by-law as described below.

To get this by-law approved you will require:

  • special resolution to make a by-law which authorises the works and transfers the repair and maintenance obligations to you as the owner;  and
  • written consent of the registered Owner(s) of the lot undertaking the renovations prior to the by-law being approved at a general meeting.

Please see the sections below which describes what a special resolution is.

Works approved under a common property rights by-law in accordance with section 143 of the SSMA 2015 This type of by-law is required in conjunction with a section 108 by-law. The effect of this by-law will authorise you to keep your works if they affect common property. This type of by-law requires the same approvals as a section 108 by-law (identified above).

 

What kind of approvals do I need?

  1. Ordinary Resolution at a general meeting of the Owners Corporation

This form of approval simply requires the majority of the eligible Owners or representatives present at a general meeting to vote in favour or your motion or by-law. 

  1. Special Resolution at a general meeting of the Owners Corporation

This approval requires:

  • approval of 50% of all eligible Owners or representatives; and
  • no more than 25% of Owners or representatives present at the general meeting, voting against your motion and by-law.
  1. Council Approval

It is important to understand that some renovations may require Council Consents in the form of development consent/complying development certificate, construction certificate and occupation certificate from Council or a private certifier and plumbing approvals from a water services coordinator.

How do you get your by-law approved?

To get your by-law approved, you should provide the owners corporation with the following for approval:

  • details of the proposed renovations, including plans and specifications and ideally a report from an appropriate expert consultant, particularly if structural works are proposed;
  • duration and times of the work;
  • details of who will perform the work, including qualifications to carry out the work; and
  • arrangements to manage any resulting rubbish or debris;
  • your motion, by-law and signed consent form.

The owners corporation may then convene a meeting for the purpose of considering and possibly passing motions to approve your by-law. However, in some schemes you may have to wait until the next general meeting rather than convene a special one for your renovations.

Common issues that may occur during the approval process

Some common issues which you may encounter during the approval process are:

  • when your motion and by-law is not approved. In this situation it may be necessary for you to make an application to the New South Wales Civil and Administrative Tribunal seeking appropriate orders.
  • when you have already carried out the renovations without a by-law. In this situation you may be able to seek a by-law which grants you exclusive use of the existing works however what is the appropriate thing to do at this stage depends on the circumstances and the nature of the renovations.

What can the owners corporation do if the work carried out has caused damage?

If your renovations cause some form of damage to the common property, the owners corporation may seek that the Tribunal make orders that you:

  • take steps to repair the damage; or
  • pay the owners corporation to cover the costs of the repairs, insurance costs and legal costs (section 132 SSMA 2015).

Other factors to consider

Some other factors that you should consider when seeking approval to undertake renovations are:

  • that you may be obligated to notify the architect who designed the building, , where the architect’s moral rights under the Copyright Act 1968 might otherwise be infringed;
  • where the property forms part of a community title scheme you may be required to seek consent from the Community Association before you can start the renovations; and
  • where the owners corporation is a member of a Building Management Committee (“BMC”) BMC you may be required to seek consent from the BMC approval before you can start the renovations.

However, these factors are more likely to affect your approval process if your works are visible from outside the lot and impact the appearance of the building e.g. works in relation to roofing, balconies or windows.

Another factor to consider before you seek approvals to renovate your unit is that there are other options which may need to be considered. For example, if the works are more substantial, it may be better for you to perform a strata subdivision which means that you will seek to transfer part of the common property and make it part of your lot, rather than a section 108 approval/section 143 by-law.