Question: With a building by-law requiring timber plantation shutters and disallowing glass alternatives, could the negative impacts of reduced light and increased mould risk, particularly during wet weather, render the by-law unreasonable and open to challenge?
We want to purchase a lot in a building with timber plantation shutters to significant parts of the property. The by-laws state that, to preserve the outdoor appearance of the buildings, the shutters cannot be replaced by glass louvres or windows. During inclement weather or overnight, residents have no choice but to close the shutters, making it unreasonably dark and more conducive to mould growth, especially during current wet conditions.
Is this by-law unreasonable? Could the by-law be challenged? We assume this by-law is a reaction to past owner requests. We want to buy one of these properties. We think it would be more reasonable to allow some consistent glass louvre or window options for residents who wish to change.
Answer: Aside from ‘soft’ aesthetic reasons, ‘hard’ factors may motivate a body corporate not only to keep such a by-law in place.
We appreciate that, from a lot owner’s standpoint, a by-law restricting seemingly practical improvements could be perceived as unreasonable. However, there are a number of reasons why such a by-law may exist in the first place, and further, why a body corporate might not want to relax it…
Shutters or louvres have enjoyed an architectural revival, especially with respect to balconies and patios. Indeed, the ‘lanai’ has become a popular alternative treatment to the more traditional open balcony. Developers often pay serious money for well designed, useful and aesthetically pleasing treatments to high value areas such as indoor / outdoor living spaces, especially when they are visible from outside the community titles scheme. It’s not unusual for those developers to protect the original ‘design intention’ through by-laws and for bodies corporate that are then subsequently controlled by lot owners who liked the design (and indeed may have ‘bought in’ because of it), to seek to enforce those by-laws, strictly.
Aside from ‘soft’ aesthetic reasons, there are also a number of ‘hard’ factors that may motivate a body corporate not only to keep such a by-law in place or put one in place itself and then to strictly enforce it. To list a few:
- There may be town planning restrictions. Installing glass louvres or otherwise enclosing a balcony / patio is often a restricted activity contrary to the development approval for the premises, including because it increases the gross floor area for the building. As such, it may constitute a breach of the planning regulations for an owner to make these types of improvements without the necessary approvals. For example, for a property within the Brisbane City Council catchment area, enclosing balconies and patios are subject to an impact assessable development application. As the owner of the premises, the body corporate is ultimately responsible for a breach of the development conditions, and so, it has a vested interest in regulating the activity.
- The work could give rise to a disposal of part of the common property. For example, in Danseur v the Body Corporate for Cairns Aquarius CTS 1439 & ANOR [2022] QCATA, the Appeal Tribunal found that an owner enlarging a window in the front facing wall of the lot amounted to a disposition of common property, which required a resolution without dissent. Replacing timber louvres with glass may be low risk, but installing a window instead may ‘cross the line’.
- There may be adverse impacts on neighbouring lots’ amenities, including visual impacts, glare, and interruption of airflow. These issues mostly arise when a building has an articulated façade, with shutters providing for adjustable levels of privacy and protection from the elements. It is easy to see how replacing opaque shutters with glass ones may affect privacy, just as replacing louvres with fixed windows interrupts airflow.
- Enclosure of the balcony / patio may result in a breach of fire safety regulations and may impact the body corporate’s insurance. Balconies, patios and even ordinary window systems are designed and selected with fire safety, including fire separation, in mind. While the Grenfell Tower disaster was caused by combustible cladding, the fire vector was up the side of the building. External elements, such as louvres, could create a similar fire vector.
The good news is that most schemes have by-laws that only restrict, rather than prohibit, improvements being made by lot owners. So, in the normal course, it would be difficult, but not impossible, for a lot owner to obtain approval to make improvements designed to enhance the utility of their lot. By-laws drafted in this way are generally viewed as reasonable by the courts, particularly where there are good reasons for them being adopted.
As with most pre-purchase issues in community title, the starting point is to decide whether the issue is a deal breaker. If so, then the contract of purchase should be conditional upon the necessary body corporate approval being obtained before settlement. An experienced strata lawyer can help with that or with seeking approval after settlement if the application is to be made then. Most conveyancers do not appreciate the intricacies of by-laws, body corporate approval processes and rights of review of body corporate decisions.
Fortuitously, good strata lawyers are easy to find – simply go to the website of the Australian College of Strata Lawyers.
This post appears in Strata News #745.
Michael Kleinschmidt
Bugden Allen
E: michael.kleinschmidt@bagl.com.au
P: 07 5406 1280
I live in remote x mine village, and have had difficulty with the Committee doing interfence with utilities and infrastructure by owners and especially committee members. Act 166 BCCM laws and also CMS consistently broken. I have tried free lawyers and paid lawyers to look at this. I have suffered with stress, anxiety and depression now due to their actions. BCCM advised to take the issues to a BCCM lawyer. They are too expensive and due to a lot of people here struggling to pay levies, etc on a pension. We are not an apartment block. And own title to our houses (units).
Where do you go to as court cannot tell you, Bccm cannot tell you. Police do not understand the Body corp law, and there is no Ombudsman. This has caused more than 4 people mental health problems.
The community are also trying to defame me by printing and spreading malicious gossip and information about me, as they have done in the past to people, causing them to leave and rent out their house, or sell, or mortgagee sales.
What can I do now, apart from paying, which I can’t, a specialized lawyer?
A lot of breaches and misappropriation of money and it’s 16 years of it.
Doing my head in.
So who offers free no win, no fee for poor people just trying to get heard in court, to right what is an ongoing problem.
Hi Dianne
You may be best to contact the Office of the Commissioner for Body Corporate and Community Management for assistance.
From P Thomas says:
[…] Where do we draw the line here?”
I suggest that better than drawing any line is to simply keep lines of communication open, remembering that there’s no guarantee that things will change even if action is taken which may only serve to foment the fire.
We currently have a very inexperienced committee who see themselves as “the law”. They are constantly bullying our building manager and changing rules to suit themselves. No amount of trying to talk with them seems to help. Our building is kept immaculate and admired by many however there is always something that they find to pick on just to make their authority felt.
The building manager has many years experience at this job and is kind and helpful to everyone. The body corporate services manager tries to point things out to them ; the instances where they are out of order and then they threaten her with withdrawing their contract. They have created a very toxic environment in this building that is totally unnecessary, all ego driven. Unfortunately they go as far as withholding our managers RUM and reimbursements as a form of asserting their authority.
Where do we draw the line here?
Hi P
The following response has been provided by Chris Irons, Hynes Legal:
Sounds to me like the line should have been drawn some time ago. Of some concern is your comment about withholding payment to the caretaker. That relationship with the caretaker is a contractual one and so withholding payment may mean a breach of contract terms, which places the body corporate and thus, all owners, at some risk.
Allegations of bullying are serious, as the caretaker may be defined as an employee and thus is entitled to a safe workplace.
If you haven’t done so already, you should have a conversation with the committee about the above and raise your concerns. Assuming that doesn’t work or they don’t want to listen, you’d need to consider your next step. Do you want to replace the committee or the more challenging members of it? Do you have people to replace them with? Or is there another course of action possible? You may need to seek qualified advice about your options. Remember, the situation will go on unchanged if no action is taken.
Hi Allan
The following response has been provided by Chris Irons, Hynes Legal:
Actually, you’re wrong. An adjudicator is given that role and its attendant powers in legislation. In other words, the Parliament has seen fit to establish the role of the adjudicator in making legally-binding orders. That order is then subject to potential appeal to the Queensland Civil and Administrative Tribunal and then the District Court after that. I know of at least one body corporate case which proceeded all the way from an adjudicator to the High Court of Australia. So no, anyone cannot at any time determine their choosing as to whether an adjudicator’s order is reasonable, because there are rights of appeal and also significant penalties for non-compliance with an adjudicator’s order.
An incisive article from Frank Higginson. I think that we all need to understand that the world is evolving and we, as Body Corporate/Strata operatives need to adopt and adapt.The complex that I live in has a permissive pet policy and there have been no pets for the 8 years of it’s life. Welcome to the real world. We are now being requested to consider a pet for an apartment that is changing hands. We can apply conditions to it’s entry but we need to go with the flow or perhaps face some form of action from the seller if we impede his sale contract by prolonging a process which we well know will go in his favour anyway. The committee needs to look at this in a “big picture” view.
Just as a side note to the question of the level of noise transference between apartments and pets. The apartment above mine has a hard timber floor attached to the rafters on our apartment ceiling.
When their cat is chasing things around in the above apartment it can clearly be heard from mine.
So much for the footfalls of cats not being heard. I can hear every step when it runs and every chair being moved across the floor.
A very low level of noise transfer is a good thing to have in the bylaws.