Lot owners wishing to do works within their lot, in particular within courtyards or to outside areas of their lots where the works may be seen, might wonder whether it is necessary to seek permission from their owners corporation to carry out those works. In some instances, where a lot owner is doing work to common property then yes, permission is required. However, a lot owner doing work wholly within their lot may not require such permission even if the work is visible.

Most strata schemes will be subject to a by-law dealing with appearances. If your scheme has the model by-laws, it may be model by-law 12 or 17. The Appearances by-law will help determine whether owners corporation permission is required. The Appearances by-law will generally state:

The owner or occupier of a lot must not, without the written consent of the owners corporation, maintain within the lot anything visible from outside the lot that, viewed from outside the lot, is not in keeping with the rest of the building.

The key words are “visible” and “in keeping with the rest of the building”.

The by-law was subject of the NSW Civil & Administrative Tribunal’s decision in The Owners – Strata Plan 30198 v Barnes [2018] NSWCATCD 8. In that case, a lot owner had erected a deck and retaining wall used for entertaining in their courtyard without consent of the Owners Corporation. The Owners Corporation argued it was not in keeping with the building.

The parties relied on expert reports, one of which was a town planner. Whilst the Tribunal accepted the reports, they ultimately held that to determine whether the works were “in keeping with” the rest of the building a visual comparison was sufficient and that technical expertise was not required.

The Tribunal was satisfied by photographs that the works had a “uniformity of appearance” that was based on the timber and paving materials used in their construction and on the plants which were largely tropical in appearance. It held that the works had a “visual and aesthetic harmony” when compared to photos of other lots and common property.

It is worth noting that the Tribunal accepted there was no decision on the phrase “in keeping with” from the Supreme Court or other superior Court, and whilst the Tribunal considered the ordinary meaning of “in keeping with”, dictionary synonyms were not strictly adopted.

What is the take away for lot owners and owners corporations from Barnes?

Works conducted wholly within a lot will not need approval from an owners corporation if those works are uniform and have visually aesthetic harmony with the rest of the strata plan. Note that an aesthetic opinion will be subjective.

Lot owners should take care however, because works carried out to common property that change the external appearance of a lot must have approval.

Accordingly, lot owners should consider where the boundary of their lot is or what might be common property bounding or within their lot before they carry out work relying on by-law 12 or 17.

Written by Gemma Lumley and Allison Benson

6 February 2020