NSW: Q&A Apartment renovations without approval. Oops … What do we do now?

As a NSW Lot Owner, what happens if you’ve carried out renovations on your apartment without strata approval? Can you apply for approval retrospectively? Will you have to remove the renovations or can we be fined for not obtaining approval before renovating?

Table of Contents:

• QUESTION: Our neighbour’s renovations were approved. He proceeded to carry out work not included in his application or by-law. It affects our lot as the plumbing is in our bedroom wall. He’s seeking retrospective approval, but what happens now?
• QUESTION: A grey water waste pipe that runs through my kitchen was leaking. The owners corporation repaired the leak, however, my kitchen cabinets seem to have old water damage. Should the owners corporation pay for the replacement of my kitchen?
• QUESTION: If a lot owner installed an air conditioning system without approval in 2013, can the owners corporation ask for retrospective approval in 2023? Is there a time limit on retrospective approval?
• QUESTION: My daughter recently bought an apartment with non compliant flooring. Who is responsible for the cost of work to replace the flooring?
• QUESTION: The owners corporation refused to approve an owner’s request for renovations due to unpaid levies. Is this reasonable?
• QUESTION: None of the bathroom renovations in our building prior to 2017 have a by-law nor were they approved. Is the Owner liable for damage to other properties or common property as a result of a waterproof membrane failing?
• QUESTION: A lot owner has carried out works on his balcony and installed air conditioning without approval. What steps should the OC take to protect themselves?
• QUESTION: A previous lot owner in our small scheme carried out unapproved works which have now been discovered to have caused damage to common property. How do we proceed?
• QUESTION: Our neighbours have undertaken extensive renovations without approval. I’ve notified the committee but nothing is being done.
• QUESTION: My neighbour’s unapproved bathroom renovations have caused damage to my lot but he will not give permission for access. What can I do?
• QUESTION: Our neighbour drilled into our balcony to install an awning shade. What do we do now? Who is responsible if there is future damage due to the installation?
• QUESTION: We have recently renovated our kitchen without approval from the Owners Corporation. Will have to return the kitchen to the original condition or be fined?

Question: Our neighbour’s renovations were approved. He proceeded to carry out work not included in his application or by-law. It affects our lot as the plumbing is in our bedroom wall. He’s seeking retrospective approval, but what happens now?

Our neighbour submitted an application for renovations of their lot. Their application was approved. Their ensuite wall is on the other side of our main bathroom. We’ve heard them jackhammering the wall, and they’ve installed new plumbing pipes and connections. None of this was included in their application or renovation by-law.

The additional unapproved work was discovered when a smoke detector test was carried out. The owner has requested retrospective approval for the renovations.

As the wall adjoins our bedroom, we are concerned about the noise of the pipes. We are the only lot affected, so I have little support from the committee. The committee has organised a meeting to discuss the next steps. What happens now?

Answer: You should ask for the pipes to be re-located at your next meeting, failing which you can take the matter further and apply for mediation.

Of course, your neighbour can seek to have the unauthorised pipes retrospectively approved but he will need a special resolution to amend his existing by-law. Until the pipes are approved, they are in breach of the by-law. You also have the right to object to the pipes on the basis that they appear to cause you nuisance.

The strata legislation states that an owner cannot permit that lot to be used in a manner or for a purpose that causes a nuisance to the occupier of another lot. Further, the legislation states that a lot or common property cannot be used in such a way as to interfere unreasonably with the use or enjoyment of another lot. It seems that the pipes will affect your enjoyment of your bedroom due to, for example, the sound of toilet flushing in close proximity to your bedroom.

You should ask for the pipes to be re-located at your next meeting, failing which you can take the matter further and apply for mediation and then make an application to the NSW Civil & Administrative Tribunal.

Leanne Habib
Premium Strata
E: info@premiumstrata.com.au
P: 02 9281 6440

This post appears in the February 2024 edition of The NSW Strata Magazine.

Question: A grey water waste pipe that runs through my kitchen was leaking. The owners corporation repaired the leak, however, my kitchen cabinets seem to have old water damage. Should the owners corporation pay for the replacement of my kitchen?

I recently discovered a leak in the grey water waste pipe that runs through my apartment’s kitchen. The plumber confirmed the grey water waste pipe leak was coming from the common property, and the owners corporation paid for the repair. The leak appears to have been present for years before I bought the apartment. Dirty water has slowly been absorbed into the kitchen’s kickboards and cabinetry, which are now soiled and contaminated.

This is a building defect from a common property area that has caused damage to my lot. Is the owners corporation responsible for removing and replacing my damaged kitchen cabinet? I’m also concerned about the potential for mould.

Answer: You need to establish that the kitchen cabinet would be a foreseeable loss.

The defect in issue will depend on whether the source of the leak is a common property issue. If it is determined that it is, the kitchen cabinet may also be covered if it can be linked.

In terms of rights, section 106 (5) of the Strata Schemes Management Act 2015 provides:

5. An owner of a lot in a strata scheme may recover from the owners corporation, as damages for breach of statutory duty, any reasonably foreseeable loss suffered by the owner as a result of a contravention of this section by the owners corporation.

If you were to pursue it, you would need to establish that the kitchen cabinet would be a foreseeable loss.

Liability limited by a scheme approved under Professional Standards Legislation.

Pierrette Khoury
Khoury Lawyers
E: pierrette@khourylawyers.com.au
P: 0415 459 486

This post appears in the November 2023 edition of The NSW Strata Magazine.

Question: If a lot owner installed an air conditioning system without approval in 2013, can the owners corporation ask for retrospective approval in 2023? Is there a time limit on retrospective approval?

Answer: The owners corporation can and should seek retrospective approval if an owner wishes to keep the unauthorised alterations.

Generally, the owners corporation is responsible for ensuring any unauthorised alterations or additions to the common property made by an owner are removed and the common property made good.

So, the owners corporation can and should seek retrospective approval if an owner wishes to keep the unauthorised alterations or additions. The owner should also assume responsibility for the obligation to maintain and repair the air-conditioning works.

Leanne Habib
Premium Strata
E: info@premiumstrata.com.au
P: 02 9281 6440

This post appears in the November 2023 edition of The NSW Strata Magazine.

Question: My daughter recently bought an apartment with non compliant flooring. Who is responsible for the cost of work to replace the flooring?

My daughter recently bought an apartment with non compliant flooring. The owners corporation knew about the work but has done nothing to rectify the situation. She would like to replace the flooring so it complies. Who is responsible for the cost of work to replace the non compliant flooring?

Answer: If flooring was installed without approval, as the current lot owner, your daughter will be responsible and should look at whether she can claim against the previous owner.

Who is responsible depends on who did the work to the flooring and what portion of it is common property.

If it is original flooring and all common property, then the owners corporation is likely responsible and may have a claim against the builder. If it is not original flooring and is common property or lot property, I suggest looking for approval to install the new flooring as it will likely have conditions on it. If the flooring was installed but not approved, your daughter will be responsible as the current lot owner and should look at whether she can claim against the previous owner.

Allison Benson
Kerin Benson Lawyers
E: allison@kerinbensonlawyers.com.au
P: 02 4032 7990

This post appears in the September 2023 edition of The NSW Strata Magazine.

Question: The owners corporation refused to approve an owner’s request for renovations due to unpaid levies. Is this reasonable?

A lot owner has not paid strata levies for years. They have requested approval to install timber flooring. The owners corporation refused the request for renovations, due to the lot owner’s unpaid levies.

The owner went ahead with the renovations regardless and installed the flooring. What can the owners corporation do?

Answer: It is always wise to treat separate matters separately.

Tim Sara, Strata Choice:

It is always wise to treat separate matters separately.

For example, section 110(2) of the Strata Schemes Management Act 2015 (NSW) (‘the Act’) requires an owners corporation to not unreasonably withhold approval for minor renovations (which includes installing wooden or hard floors).

To remedy this, an owner can seek orders from the NSW Civil & Administrative Tribunal for unreasonably withholding approval. A tribunal member would likely question the link between levy payments and a flooring application. There are legal mechanisms for an owners corporation to follow to recover unpaid levies and that would be the appropriate remedy for addressing that matter.

There are legal avenues to address unauthorised works in strata schemes, and the avenue depends on the type of works. Hard flooring is considered a minor renovation under section 110 of the Act.

Shane Williamson, Williamson Lawyers:

Legal advice should be sought, however, generally speaking:

Section 111 of the Act states that the owner of a lot may not carry out work on the common property unless authorised to do so.

Section 132 of the Act provides that, if the NSW Civil & Administrative Tribunal is satisfied that the work caused damage to the common property or another lot, the Tribunal may make an order requiring the owner to rectify the damage or pay for the cost of the repairs.

There are a number of factors that need to be considered before action is taken pursuant to either of these sections, such as, for example:

• the type of floor covering in place before the timber flooring was installed and whether it was part of the common property;
• are there any by-laws which may authorise the work;
• whether the timber flooring is compliant, for example, is acoustic underlay required, and if so, has compliant underlay been installed; and
• if there is damage to the common property, what is the damage and how should it be rectified?

However, section 126(2) of the Act gives the lot owner the right to seek an order from the NSW Civil & Administrative Tribunal approving minor renovations already made if the Tribunal considers that the owners corporation has unreasonably refused to consent to the minor renovations. This is referred to in the Act as a “work approval order”.

Weighing up all of the above, if the owners corporation takes action pursuant to section 111, the owner of the lot will likely respond with a counter-action under section 126(2) seeking a work approval order. However, if the owners corporation can prove there is damage to the common property (it will require expert evidence to prove this), the owners corporation may succeed in having the owner rectify the damage pursuant to section 132 of the Act.

Once you have considered all of the relevant factors, a good starting point to resolve the matter would be to apply for mediation with NSW Fair Trading. Following is a link to the application form: Applying for strata mediation.

Tim Sara
Strata Choice
E: tsara@stratachoice.com.au
P: 1300 322 213

Shane Williamson
Williamson Lawyers Pty Ltd
E: shane@williamsonlawyers.com.au
P: 0404 045 605

This post appears in Strata News #640.

Question: None of the bathroom renovations in our building prior to 2017 have a by-law nor were they approved. Is the Owner liable for damage to other properties or common property as a result of a waterproof membrane failing?

None of the bathroom renovations (including replacing waterproof membrane) prior to 2017 have a by-law nor were they approved at an AGM or EGM.

A lot owner bought a property with a bathroom renovated before the new 2017 major renovation bylaw. Is the Owner liable for damage to neighbouring lots or common property as a result of the waterproof membrane failing?

Answer: The Owners Corporation should pass a special resolution divesting itself of responsibility for that bathroom provided that that decision would not impact on the safety of any part of the building.

In the absence of a by-law, it will be difficult to pursue the current owner for past renovations which were not properly authorised as the waterproofing is likely common property albeit the previous owner may have damaged it or did not properly waterproof in the course of his renovations.

The Owners Corporation should pass a special resolution divesting itself of responsibility for that bathroom (if the 2017 by-law does not already do so) provided that that decision would not impact on the safety of any part of the building.

Leanne Habib
Premium Strata
E: info@premiumstrata.com.au
P: 02 9281 6440

This post appears in the April 2022 edition of The NSW Strata Magazine.

Question: A lot owner has carried out works on his balcony and installed air conditioning without approval. What steps should the OC take to protect themselves?

An owner has carried out various renovations without strata approval. He has tiled his balcony and installed air conditioning with a visible compressor sitting on the balcony. We do not know if the people who carried the work are qualified. The owner has not supplied a full scope of works on either jobs. My understanding is that both jobs are minor renovations; however, waterproofing (if applicable) is a major renovation. Apart from no resolution obtained for both jobs, the owner still needs a common property rights bylaw which I am not sure we have. We do have a minor renovations bylaw.

1. Are we able to ask the owner to supply a full scope of works so we can in retrospect approve or decline and thus seek an order to remove both as they are unlawful?
2. If the lot owner intends to sell his unit down the track, he has made unauthorised changes to common property.
3. What about the maintenance of the common property in case of damage caused by shoddy work?

Answer: You can retrospectively approve the application. I would be advising the first step is writing to the lot owner.

I wouldn’t say that they’re minor renovations because of the waterproofing. I’m assuming if they tiled the balcony, they would have had to put some sort of waterproofing substance down. Waterproofing does need a bylaw.

If it was just the air conditioning system, and it was installed on the balcony where it’s not visible, and it doesn’t change the aesthetics of the overall appearance of the building, then you could consider it under a minor renovation. The minor renovation bylaw that the reader has referred to is potentially just permitting the strata committee to consider minor renovation applications, because under the Act a minor renovation application is considered at a general meeting, unless you have a resolution that permits your strata committee to consider those applications. I’m assuming that bylaw is just permitting the committee to consider that.

Going back to these type of works, they have tiled the balcony (I’m assuming this membrane and waterproofing). Even if there’s no membrane waterproofing, the tiles are attached to the lot, so I would say it needs bylaw. Regarding the air conditioning, if it’s not visible from outside of the building, then a minor renovation is fine. But if you’re going to have the bylaw for the balcony tiles, I would throw in the air conditioning in that bylaw.

You can retrospectively approve the application. I would be advising the first step is writing to the lot owner:

1. advising that they’ve carried out unauthorise works,
2. advising them to make a full application so you can consider the impact on common property or any other lot as a result of these works

If the works are in order, and the Owners Corporation has no concern with the works then 100% they should be ratifying any approval by way of a bylaw. Because again, that is the mechanism in which will protect any shoddy works, any poor workmanship. When an incoming owner comes in, you want to make sure that the Owners Corporation is not responsible for those alterations. When an incoming owner comes in those assume the tiles are common property as they are in most cases for most schemes (not every scheme, but most), they would assume that the Owners Corporation responsible because there’s no bylaw to advise of that. I think the Owners Corporation has a duty of care to ensure that they enforce any unauthorised applications for that very reason that if an incoming purchaser comes in and says ‘Well, I did a search there was no indication whatsoever on the record, I wasn’t aware that I’d be responsible for these balcony tiles. The Owners Corporation failed to pursue the previous owner for the unauthorised works and I’ve now been affected because of that’.

I would strongly recommend this owner be pursued for the unauthorised works.

Leanne Habib
Premium Strata
E: info@premiumstrata.com.au
P: 02 9281 6440

This post appears in Strata News #533.

Question: A previous lot owner in our small scheme carried out unapproved works which have now been discovered to have caused damage to common property. How do we proceed?

We are a small complex of 7 townhouses and villas. One of the previous owners conducted renovations without strata approval and now it appears this has resulted in structural damage to the lot. The subsequent owner (who has been in residence for approximately 2 years), has noticed these structural damages and has asked the OC to share the cost of fixing. It’s not a small amount.

I was wondering where the liability and cost falls.

The previous owner who conducted the unapproved renovation was a tradesperson so they should have insurance, however, they not responding to our calls/emails/etc for obvious reasons.

Is the OC liable for the costs under the circumstances? Or should the lot owner have done their due diligence and had the property properly inspected for damage prior to purchase?

Answer: We recommend that you obtain expert strata legal advice or find an amicable resolution and consider costs sharing.

This is not legal advice, however, we are aware that there is a NSW Supreme Court case which held that an owners corporation’s obligation to repair and maintain the common property extended to rectifying the damage to common property that was caused by an individual lot owner’s works but because the damage to the common property was caused by other lot owners, those other lot owners were held liable to indemnify the owners corporation in that regard.

In terms of the damage to lot property caused by another lot owner’s works, the Supreme Court also held that the lot owners who carried out the works were liable for damage caused to the other lot’s lot property pursuant to the hazard/interference/nuisance provisions of the strata legislation.

Your matter is complicated by the fact that the previous owner has sold and that the Owners Corporation did not pursue the previous lot owner to obtain the proper approvals at the relevant time. This may, in turn, impact on the Owners Corporation’s building insurance coverage.

It seems that the structural damage is latent (ie was not obvious at the time of purchase) and that even if the new owner had obtained a building condition pre-purchase inspection report, it would not have been detected.

The current lot owner may be able to pursue a private cause of action in nuisance against the previous lot owner.

We recommend that you obtain expert strata legal advice on behalf of the Owners Corporation, or, in the interests of saving legal costs and avoiding potential disharmony at the scheme, find an amicable resolution and consider costs sharing and engage the appropriate experts eg engineers etc.

Leanne Habib
Premium Strata
E: info@premiumstrata.com.au
P: 02 9281 6440

This post appears in the December 2021 edition of The NSW Strata Magazine.

Question: Our neighbours have undertaken extensive renovations without approval. I’ve notified the committee but nothing is being done.

Our neighbour submitted major works at the 2019 AGM. This work was not approved. Regardless, they started working on the extensive renovations. A stop order was given in May 2020.

They have started work again, although I’m sure no approval has been given. They’ve built a toilet on their rooftop terrace and are intending to install a gas fireplace. I’ve provided evidence to the strata committee, but the committee has not taken any action. What else can I do?

Answer: You do have a few options

You may:

• Make your own complaint to your Local Council
• Requisition a motion at a general meeting of the Owners Corporation (in compliance with the strata legislation) that the Owners Corporation take action against the lot owners carrying out works without the proper approvals including issuance of a Notice to Comply with the by-laws applicable to the scheme
• Apply to NCAT for urgent/interim orders that the works stop

NSW Fair Trading offers free general advice on such matters and you may wish to consult a lawyer in case the works directly impact your lot or your enjoyment of it.

Leanne Habib
Premium Strata
E: info@premiumstrata.com.au
P: 02 9281 6440

This post appears in the November 2021 edition of The NSW Strata Magazine.

Question: My neighbour’s unapproved bathroom renovations have caused damage to my lot but he will not give permission for access. What can I do?

There has been a bylaw put in place that says the unit above me will pay for any damage caused by his unapproved bathroom renovation.

There has been a leak causing damp walls in my unit since before Christmas. After the plumber, hired by the Strata company, fixed a few problems he thought the problem was solved. Unfortunately, it wasn’t, and the owner has refused to allow entry to another plumber. The committee say they are talking to the owner about this.

What Options are available?

Answer: Orders for Access must be sought from NCAT

It seems that the subject by-law was passed by retrospective approval of the Owners Corporation, and, under its terms, the Owner of the bathroom would be liable for any loss or damage caused to lot or common property. Depending on the source of the cause of your damp, the Owners Corporation could enforce the provisions of the by-law by seeking orders from NCAT and you could seek orders from NCAT in that the water ingress is causing you a nuisance.

While it is unclear who the “other” plumber was contracted by, if it was the Owners Corporation, except in case of emergency, it would need the other lot owner’s consent for the Owners Corporation’s contractor’s entry, in the absence of which, Orders for Access must be sought from NCAT.

Leanne Habib
Premium Strata
E: info@premiumstrata.com.au
P: 02 9281 6440

This post appears in Strata News #510.

Question: Our neighbour drilled into our balcony to install an awning shade. What do we do now? Who is responsible if there is future damage due to the installation?

Our downstairs neighbour got approval to set up an awning for her backyard. In her request she stated that drilling was ‘probably not required’, however, she then drilled into our balcony. She has attached two awnings to our balcony without any consent from or the owners corporation.

Is she allowed to do that? Our balcony is included in our allotment, but the owners corporation is responsible if there’s any structural issue with our balcony. What course of action can we take? What if the awning attachment causes any future damage to our balcony?

Answer: If the downstairs neighbour received the proper approvals, she would likely be responsible for any loss or damage caused to the lot and common property including yours.

If the downstairs neighbour received the proper approvals, she would likely be responsible for any loss or damage caused to lot and common property including yours. She would have required a by-law in which case you would have been notified of an upcoming meeting to consider same. You should carefully review her approval to determine whether or not she obtained proper consent and whether or not she has exceeded the scope of her stated works.

Leanne Habib
Premium Strata
E: info@premiumstrata.com.au
P: 02 9281 6440

This post appears in Strata News #454.

Question: We have recently renovated our kitchen without approval from the Owners Corporation. Will have to return the kitchen to the original condition or be fined?

We live in a strata townhouse complex in NSW.

I have just done some renovations to my kitchen including new cupboard doors and benchtops. I have recently found out that I should have sought our Owners Corporation’s permission to do the renovations.

I was under the impression that minor work like kitchen renovations could be done without approval.

I am looking for advice on what I should do now. Should I contact my strata manager and let them know work has been done?

What is the likelihood I’ll have to return the kitchen to the original state or be fined for carrying out renovations without approval?

Answer: Transparency and pro-activeness is usually the best approach when something like renovations without approval occurs.

Kitchen renovations (with works involving waterproofing) are “minor renovations” under the new strata legislation which means you should have obtained an ordinary resolution at a general meeting of the owners corporation (or resolution of the strata committee if there is a by-law authorising the strata committee to approve minor renovations).

Transparency and pro-activeness is usually the best approach when something like renovations without approval occurs, so, yes, contact your strata manager, provide a full scope of works carried out and indicate that you will repair & maintain your works and indemnity the owners corporation in respect of them.

It is difficult to predict the likelihood of having to remove your renovations and it would be difficult to reinstate the common property because presumably you no longer have the original fixtures, fittings, tiles etc.

Enforcement of strata legislation varies from scheme to scheme and strata management agency to strata management agency but given your willingness to regularise your works, in our view, it is unlikely you would be expected to remove your works.

Leanne Habib
Premium Strata
E: info@premiumstrata.com.au
P: 02 9281 6440

This post appears in Strata News #217.

Embed

Read next:

• NSW: Q&A Strata approval for renovations – What is the process?
• NSW: Are We All Getting It Wrong? Unauthorised Works: Who Is Responsible For Repairing Them?

These articles are not intended to be personal advice and you should not rely on it as a substitute for any form of advice.

Visit Maintenance and Common Property OR NSW Strata Legislation.

Looking for strata information concerning your state? For state-specific strata information, take a look here.

Are you not sure about some of the strata terms used in this article? Take a look at our NSW Strata Glossary to help with your understanding.

After a free PDF of this article? Log into your existing LookUpStrata Account to download the printable file. Not a member? Simple – join for free on our Registration page.