The NSW Strata Magazine | Oct 2020

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QUESTION: What do I need to include in a scope of work to reposition an air conditioner unit on common property?

ANSWER: Assuming that you have all the required Strata Permissions, by-laws and the like the scope of work can be variable depending on the size and type of Air-conditioning systems, being installed.

Assuming that you have all the required Strata Permissions, by-laws and the like the scope of work can be variable depending on the size and type of Air-conditioning systems, being installed. For a Split system, the head unit is within your air space, but may be attached to a common wall. If it is then you will need Strata Permission to relocate the head (drilling into the wall. The Head unit and the condenser are connected with copper pipes which carry refrigerant gas. You do not want to have the two too far apart, as you will lose efficiency. So the new location should be as near as possible to the head unit.

The location of the condenser is usually an issue, because of the heat generated and noise. So it is bet to get the contractor to identify a number of possible locations, before you ask the Owners Corporation for permission. Putting this on a drawing to locate it is best. For a Ducted system: It is likely you are not allowed to play with it, as it will have been part of the original installation and is most likely the OC’s responsibility. These units require specialists and detailed documentation for approval and implementation. In this situation, you need to speak to your Strata Manager. Any alteration will need drawings and certifications from a properly qualified Mechanical Engineer for approval of a by-law.

Marcus El Safty | MES Consulting Engineers & Project Managers

QUESTION: Two lots have a rooftop terrace. Large potted trees on the terrace have cause water ingress into the units below. Who is responsible for the damage caused by the water ingress? The rooftop-terrace areas of our building in NSW are occupied by two units and the Land Registry Services recently advised that these terrace areas are the property of the two resident unit owners. Several other lot owners contend that large pot plants holding large trees and an irrigation system on the rooftop terraces have damaged the rooftop tiling leading to water ingress and damage to the lots directly beneath the rooftop lots. Hitherto, repairs to the rooftop terrace areas has been borne by the owners corporation. Should the owners of the rooftop terrace lots pay for rooftop repairs and compensate the lower-level lot owners for any damage caused by water ingress? Also, how can I word a motion to pass a by law distinguishing between common property and lot-owner responsibility for care and maintenance of these rooftopterrace areas?

ANSWER: Generally insurers do not cover the cost associated with fixing a leak (maintenance) but they do cover consequential water damage. The first consideration is whether the water damage claim is covered by insurance or not. Generally insurers do not cover the cost associated with fixing a leak (maintenance) but they do cover consequential water damage. If there is an insurance claim the insurance policy will cover the damage to lower level lot owners. Outside of an insurance claim, there can be a

number of factors that determine who is legally responsible for repairs & maintenance of property – this can include: Who owns the property; Is someone other than the owner legally responsible for repairs (e.g. because of negligence or a breach of the Strata Management Act). With regard to a motion which between common property and lot owner responsibility for care and maintenance of these rooftop terrace areas, you should seek advice from your strata manager (if you have one). My unqualified opinion is the Strata Management Act & your strata plans already do this and you need to be careful not to write a bylaw that contravenes the strata management act.

Tyrone Shandiman | Strata Insurance Solutions

How to manage painting contractors on-site during COVID-19 Higgins Coatings Pty Ltd

Managing contractors on-site always requires preparation and forethought to ensure that the job is completed smoothly and safely. However, the COVID-19 pandemic has increased the health and safety obligations of organisations, meaning there are additional factors to consider when hiring painting and building maintenance contractors. For site managers, it’s critical that the contractors you work with not only understand and abide by your state’s current social distancing and isolation laws, but that they also incorporate COVID-19 health and safety into their site plan. If your contractors are taking the right steps to provide a COVID-safe work environment, then you can have confidence that you’re also fulfilling your own duties. So how can you tell if your painting contractors are doing the right thing? “ We talked to Higgins’ National Safety, Health, Environment & Quality Manager, Ben Cook, to understand what a good contractor looks like during COVID-19."

1. They document their work processes A good contractor will document their work process, verifying in advance what they’re going to do and how they will do it. Once on-site, they will then follow this process to ensure the job is completed efficiently and safely. “This is one of the biggest tells between a good and bad contractor,” explains Ben. “If they can’t flesh out how they’re going to do the job, you should be concerned.” If your contractors can demonstrate this level of planning and understanding of what your job will entail, then you can have reasonable confidence that they’ll also be able to manage the risks. Which leads us to our second point.

2. They include COVID-19 in their risk assessment The reality is that COVID-19 is currently a risk wherever people are gathered. Consequently, it should be included in any site risk assessment, alongside the controls that will be taken to minimise the risk. “Higgins documents all of our COVID-19 health and safety requirements in our worksite risk assessments,” says Ben. “Then we ensure that every one of our workers who will be on that job site has read and understood the requirements, and signed onto that risk management plan.” “Additionally, even if we’re not required to physically sign into a site each day, we’re still collecting that information as part of our own COVID-19 management.”

3. They’re accredited This is a must whether there’s a pandemic or not. But it can also provide you with the extra confidence you need during COVID-19 that your painting contractor can manage the additional requirements. “A third-party health and safety or risk management certification provides assurance that your contractors have the skills and understanding to prepare for, minimise and respond to the specific hazards on each site,”

Australian family-owned-and-operated, Higgins Coatings is NSW's premier commercial painting provider, with over 70 years of experience in the Strata industry.

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respond to the specific hazards on each site,” says Ben. “Particularly when faced with the unique situation of a global pandemic, you want to be confident that your contractors have a sound risk management framework that they’ll use to control hazards.” Higgins has internationally recognised TriCertification Accreditation in ISO 9001, ISO 14001 and OHSAS 18001 to demonstrate our commitment to safety, quality and the environment.

QUESTION: Are bylaws allowed to specifically prohibit ownership of dogs whilst cats and other animals are subject to approval? The bylaws in my building require pets (except for fish) to be approved by the strata committee. However there is a specific clause which prohibits dogs (with the exception of guidance & hearing assistance dogs). Are the bylaws allowed to specifically prohibit ownership of only dogs whilst cats and other animals are subject to approval?

ANSWER: We have seen such bylaws and in our experience they arose due to issues the strata committees had with existing dogs We have seen such by-laws and in our experience they arose due to issues the strata committees had with existing dogs, in particular barking and soiling the common property. Under the 2015 strata legislation, by-laws may not be harsh, unconscionable or oppressive and such a by-law may be invalidated by the Tribunal on application, noting also that the owners corporation/by-law cannot prohibit a disability animal (as referred to in section 9 of the Disability Discrimination Act 1992). Leanne Habib | Premium Strata

WHAT DO I OWN AND WHAT IS COMMON PROPERTY? What is Lot and Common Property? The important question of who owns what needs to be established, as the answer will dictate how a strata scheme is correctly managed and who is responsible for what parts of a strata scheme. Common property is the responsibility of the owners corporation, and Lot property is the responsibility of the lot owner. The picture adjacent is an extract from a typical strata plan. The strata plan does not tell you all of the details about what is common property and what is lot property. Further details are described by the relevant legislation and case law.

General position (subject to exceptions) As a guide, the general rules applicable to the majority of strata schemes registered after 1 July 1974 are: The structures located on the solid thick line at the registration of the strata plan are common property. The ceiling, the structure of the floor including fixed tiles or floorboards, the electrical wiring located in the ceiling, external windows and balcony doors are usually all items of common property. Internal walls, not shown on a strata plan are lot property and a structure located on a thin line is usually lot property. Carpet, light fittings, blinds, curtains, toilet bowls, bath tubs and kitchen cupboards will all usually be lot property and the responsibility of a lot owner.

Exceptions The following exceptions to the general position apply: The general position does not apply to strata plans registered before July 1974. To a limited extent notations on the strata plan can modify the general position. Owners or owners corporations can with proper approval alter, add to or remove common property after the registration of the plan. There is no ‘one size fits all’ answer so if in doubt, ask an expert to work it out.

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Bannermans Lawyers


Building bridges is a key reason. This is a question I am asked about a lot. There are many reasons why you should seriously consider mediation. The first is that in strata and community title disputes it is generally mandated that parties to a dispute must attempt mediation before they can approach the NSW Civil and Administrative Tribunal (NCAT) for orders. In other words, it is the first procedural step that must be taken in most disputes involving strata and community title schemes. More compelling reasons are that mediators are trained, neutral third parties whose role is to guide the parties through a process of investigating the dispute, generating options for potential solutions or partial solutions and to facilitate negotiation. Simply put, mediation can be very effective. Just as importantly in this context it can often help in mending relationships or build bridges between those in dispute. By this I mean that the parties should through the mediation process have gained a better understanding of the true issues in dispute and the reasons why the other party acted or failed to act and their reasons which, in the heat of an argument, can often be overlooked or misinterpreted. Mediation is also relatively quick and inexpensive. Certainly, it is faster and cheaper than going to NCAT for a determination and, if an agreement is reached, there is a process to register the agreement as NCAT orders.

Mediation in a strata or community title scheme can be difficult as parties representing the owners corporation or the community association (or precinct or neighbourhood association) must be given authority to attend the mediation and to settle the dispute. This may require a meeting to be held to pass resolutions to do so. It may also be that even if representatives attend the mediation, they cannot agree to what the other party is seeking as the legislation requires that a particular decision be made by an ordinary, special or unanimous resolution to be passed at a general meeting. For this reason, when representatives attend mediation on behalf of an owners corporation or community association they need to be clear as to what authority they do and do not have. For instance, if the dispute is in relation to whether or not a common property by-law was unreasonably refused, then the representatives cannot agree to pass an amended by-law. This is because adding to the by-law for the scheme requires a special resolution to be passed at a general meeting. Instead, the representatives may be able to agree that they will personally recommend that lot owners vote in favour of a new proposed by-law as negotiated at the

mediation. They may also agree to call another general meeting to enable a new version of the disputed by-law to be considered within a set time frame. The key to mediation is to prepare, prepare, prepare. While you can lead a horse to water, you cannot make it drink, however you can be prepared and with a little good will, effort and creativity it may be possible to offer the horse other options that are equally pleasing to both of you.

QUESTION: Does the Council of Owners have a spending limit for items not in the budget?

ANSWER: The strata committee may be restricted on spending limits or any other matter or type of matter determined by the Owners Corporation. In NSW, the strata committee may be restricted on spending limits or any other matter or type of matter determined by the Owners Corporation. Further, there are limits on spending by large strata schemes in NSW and safeguards for all schemes in relation to obtaining legal services.

Leanne Habib | Premium Strata

For example, a general meeting approval to obtain legal services is not required, if the matter is not urgent and the costs do not exceed $3,000.


New Building Defects Laws New building defects laws which commenced in June 2020 received considerable media attention. Those laws are contained in the Design and Building Practitioners Act 2020 and impose on builders and others involved in the construction of apartment buildings a statutory duty of care to avoid loss caused by defects. The new laws give owners corporations greater powers to make defects claims against builders and others. However, a recent case which dealt with another statutory duty of care highlights some of the issues that will confront an owners corporation which makes a defects claim under the new laws. In this article we take a look at that case and explain what relevance it has to defects claims that will be brought by owners corporations under the Design and Building Practitioners Act 2020.

The Case The case of Shalhoub v Johnson [2020] NSWSC 1321 concerned two neighbouring properties in Randwick, Sydney. Those properties are divided by a retaining wall on

the lower property which provides support for the higher property. The owner of the higher property alleged that in 2012 the owner of the lower property carried out work around the retaining wall which caused the wall to fail resulting in the building on the higher property suffering damage. The owner of the higher property sued the neighbour for damages claiming that the neighbour breached the duty of care imposed by section 177 of the Conveyancing Act 1919.

Statutory Duty of Care Section 177 creates a duty of care in relation to the right of support for land. It says that a person has a duty of care not to do anything on or in relation to land that removes the support provided by that land to any other land. The owner of the higher property alleged that the neighbour breached that duty of care when carrying out work around the retaining wall in 2012 by failing to ensure that the work did not remove the support which the retaining wall provided for the higher property and by excavating around the retaining wall without first providing adequate support for the higher property.

The Outcome The claim by the owner of the higher property was unsuccessful. The Court did not accept that the neighbour had breached the duty of care created by section 177. The Court held that the duty imposed by section 177 is a duty to take reasonable care not to do anything on or in relation to land that removes the support provided by that land to other land. The Court said it is not enough that something is done on or in relation land that in fact removes or reduces the support provided by that land to other land. The Court held that in order to establish that a person has breached the duty of care, it must be shown that the person has failed to take reasonable care in doing something on or in relation to land that removes or reduces the support provided by that land to other land.

Analysis The Court concluded that the evidence did not show that the work done around the retaining wall in 2012 caused or contributed to movement of the retaining wall so as to remove or reduce the support it would have otherwise provided to the higher property. However, the Court went further. It said that even if the work done in 2012 had that effect, the owner of the higher property would still need to show that what was done on the neighbouring property to remove or reduce the support was done negligently, without the exercise of reasonable care. The Court observed that the owner of the higher property did not provide any expert evidence concerning standards and practices of builders in circumstances such as those faced by the builder who carried out the work in 2012 including as to any precautions that might be expected to be taken by a reasonably competent builder. The Court said the lack of that evidence made it difficult

to conclude that the builder was negligent in failing to install shoring of some kind as a precaution against the risk of the retaining wall failing as a result of the work done in 2012. The Court also concluded that, based on the expert evidence, the work done in 2012 did not cause or contribute to the failure of the retaining wall and that the expert evidence showed that it would not have been reasonable, and indeed would have been unnecessary, for the builder to put some form of shoring in place for the retaining wall before commencing that work.

The Wash Up The Shalhoub case gives a useful insight into the way in which the courts deal with a defect claim relating to a breach of a statutory duty of care. It shows that a statutory duty of care normally only imposes a duty to take reasonable care (not a duty to take every possible step) to avoid a defect. It also shows that a claimant will need to demonstrate, preferably through expert evidence, the precautions that might be expected to be taken by a reasonably competent builder or building practitioner to avoid a defect. In many cases, this will require the claimant to provide expert evidence concerning standards and practices of builders in the relevant circumstances. This is likely to increase the complexity and cost of defect claims that are based on a breach of a statutory duty of care such as the duty that arises under the Design and Building Practitioners Act 2020.

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Fire services / Upgrades

Financial Services

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Electrical McIntosh Electrical Pty Ltd The Electrical Strata Specialists You Can Rely On P: 1300 627 727 W: E: ENM Solutions Providing Solutions for Embedded Networks P: 03 9836 6366 W: E:

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Painting & Decorating Calibre Coatings Committed to Delivering Excellence in Painting P: 0423 800 153 W: E: Higgins Coatings Pty Ltd Specialist painters in the strata industry P: 1300 HIGGINS W: E:

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Building Repair / Maintenance

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Superseal Protective Coatings (SPC) Waterproofing & Epoxy Specialists P: (02) 9774 1004 W: E:

Big Boys Construction Group P/L Strata Builders - Insurance & Remedial P: 0420 774 644 W: E:

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