Introduction

It is probable that your strata scheme is ruled by a set of model by-laws. If that is the case, the by-law governing the appearances of the lot will contain a paragraph in terms similar to the following:

the owner or occupier of a lot must not, without the prior written approval 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. (emphasis added)

 

 The Owners Strata Plan No 68976 v Nicholls [2018] NSWSC 270

In this case, the lot owners built a spa and surrounding decking in their courtyard, situated at the rear of the premises. It was alleged by the Owners Corporation that the building work was visible from outside the lot and not in keeping with the building.

‘Visible from outside the lot’

Whether the spa could be seen from outside the lot was a central issue as a preliminary determination before analysing other considerations such as the aesthetic harmony of the works. The test relies on the likelihood that persons would observe the works from outside the lot.

As the Court states:

“The provisions of By-law 17 render the evaluation of whether the works are “not in keeping with the rest of the building” a relevant question only on the assumption that the works are capable of being viewed from outside Lot 1. As a consequence, if the works could not be seen from outside Lot 1, the question of whether the works were not in keeping with the rest of the building would never arise.”

‘in keeping with the rest of the building’

The test utilised by both the Adjudicator (at first instance) and NCAT (on the first appeal) was a broad test that compared works with the rest of the building and the likelihood that persons would observe the works from outside Lot 1.

The Supreme Court agreed with NCAT that it is not a subjective test, so that it does not allow for an assumption that something that is not to the taste of other occupants is, for that reason, a breach of By-law 17.

The phrase is ordinary English, which bears neither a technical nor legal meaning. It requires the Adjudicator and NCAT to undertake an evaluative exercise to reach a conclusion as to the works (being the spa and decking) that have been undertaken.

The Adjudicator states:

“From the photos supplied by the respondent, spa and deck are small, the spa being only 2m square. The colour seems to be a close match to that of the building and it has an unobtrusive cover when not in use. Although a Mr Marchese, Architect, has opined that the spa is ‘totally out of character with the minimalist design of the building’ I am unable to agree with him. The photos available to me suggest a small item which does not detract from the building at all.”

Similarly, the relevant factors considered by the NCAT were the shape and colour scheme of the works, which were declared to be in accordance with the buildings’ minimalist design and with the public nature of the adjacent common area. It also considered the lack of evidence to support an alleged negative effect upon the market value of the lots in the strata scheme.

 

Conclusion

This decision suggests that the Supreme Court expects parties undertaking works visible from outside a lot to exercise reasonable care and practical judgment. At the same time, the ruling highlights the responsibility of lot owners and Owners Corporations to actively participate in the management of the scheme and to use the available preliminary processes to monitor and challenge external works that may be inconsistent with the character of the building, with court intervention intended only as a last resort.