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How to resolve unauthorised work in strata buildings

Have you inadvertently undertaken renovation work to your strata unit only to find out later that you needed approval from the owners corporation and consent from the local council?

Well, you’re not alone, this happens quite regularly, and there are a few options available in order for you to resolve the issue.

Firstly, you need to be sure that both approval from the owners corporation and consent from the council is actually required.

Approval from the owners corporation is required pursuant to the Strata Schemes Management Act 2015 (“Act”) when the work you have undertaken is major works, for example:

  • work involving structural changes;
  • work that changes the external appearance of a lot;
  • work involving waterproofing;
  • work that is undertaken pursuant to a common property rights by-law pursuant to section 143 of the Act; and
  • work for which consent or approval is required under any other Act.

It is important to note the last point above, if the work that you have undertaken requires consent from the local council it requires the approval of the owners corporation.

In the usual course, in order to obtain consent from the council you will need to apply for development consent and, as a lot in an owners corporation, if the works affects the common property, the council will usually require the owners corporation affix its seal to the application.

Once you have ascertained that you require both approval from the owners corporation and consent from the local council, you need starting taking appropriate steps to obtain the approval.

In relation to obtaining approval from the council there are generally 3 options:

,1. Apply for a building certificate

  • A building certificate is different to obtaining consent for the work. A building certificate essentially provides confirmation that the council will not issue an order in relation to the work requiring it to be repaired, demolished, altered or rebuilt for a period of 7 years.
  • However, a building certificate is not a substitute for an occupation certificate. Does not guarantee that the council will not prosecute the persons involved in the work and leaves open the question of what position the council will take when the 7 years expires.
  • An application for a building certificate will usually involve completing an application form, payment of a fee to the council, and depending on the work may require supporting documents such as construction drawings, a survey, and certification from an engineer, electrician, plumber water proofer, etc. as the case may be.

,2. Make a section 4.55 application

  • A section 4.55 application (formerly referred to as a section 96 application) concerns the modification of an existing development consent. Modification of an existing development consent is permissible when the modifications are substantially the same as the consent which has been granted.
  • A section 4.55 application may also necessitate the provision of construction drawings and certificates to the council and depending on the work may also require additional documents such as environmental impact statements.

,3. Remove the work, or the main parts of the work, and seek development consent

  • This option may be feasible when the work is relatively minor or a major component of the work is able to be removed easily. For example, where a balcony has been enclosed without consent and it is possible to remove glass and leave the supporting framework in pace because it is not noticeable.
  • It is important to note that if an application is made to council, and for any reason the council does not issue a certificate or approve the application, the council may make an order that the work be removed. It is best to obtain advice from a planning consultant prior to lodging documents with the council.
  • In relation to obtaining approval from the owners corporation, this will likely require a by-law. You may prepare a by-law which seeks retrospective approval of the work, or if possible you may remove the work and apply for an ordinary by-law for works to common property.

As mentioned above, the local council will usually require the owners corporation affix its seal to any application made to the council in relation to the strata plan and common property.

It is important to note that, by an owners corporation affixing its seal to an application to council, this does not constitute authority to undertake the work pursuant to the Strata Schemes Management Act 2015.

Depending upon the extent and type of works you have performed and other factors such as the authority allocated to the strata committee in your scheme, it is possible the owners corporation will not affix its seal to an application to council until such time as a by-law is approved at an Extraordinary General Meeting. This is a matter for discussion with the strata managing agent.

When a by-law is required prior to making an application to the council, it is best to have the application prepared and include a provision in the by-law requiring the owners corporation to affix its seal to that application.

It should be noted that both the local council and the owners corporation have a right to make you reinstate work to common property which has been undertaken without proper authorisation:

  • A council may issue a penalty infringement notice or may make an order that the illegal work be removed or demolished.
  • An owners corporation may issue a notice to comply with by-laws and civil penalties may be imposed by NCAT for failure to comply with a notice to comply. An owners corporation may also obtain orders from NCAT to enter into the lot and reinstate the common property at the expense of the lot owner responsible.

The information provided in this article is general information only and should not be relied upon as legal advice or be used as a substitute for obtaining legal advice. The specific circumstances relating to you impact upon your legal rights and obligations and personal legal advice based upon your circumstances should be obtained. This area of law changes frequently and the law may have changed after the time this article was prepared, up-to-date legal advice should be obtained. Please do not hesitate to contact Williamson Lawyers if we may be of assistance.

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