Have you ever faced the conundrum of deciding if an improvement such as an awning affects the external appearance of any lot enough to reasonably refuse approval? Or maybe you have been an owner looking to make an improvement to your lot and wondered whether a Committee has authority to grant approval or is it required to be considered at a General Meeting by all owners?

In this article we will provide the answers to these questions by delving into the legislative provisions that apply to improvements. We will also look into specific adjudicators orders made when the question of whether or not the proposed improvement affects the appearance enough has not been entirely clear.

Improvements in strata schemes are generally split into the category of being proposed by either the Body Corporate or an Owner. The criteria for deciding approval has been explained in the following articles as a background:

1. https://www.smartstrata.com/approving-improvements-part-1-body-corporate/
2. https://www.smartstrata.com/approving-improvements-part-2-owners/

Improvements requested by owners is the focus for this article as the criteria for approval when considering whether or not the improvement detracts from the appearance can at times be unclear.  Section 164, 2b of the Body Corporate and Community Management Act specifies the following provision:

“(2) The improvement must be authorised by ordinary resolution of the body corporate unless—
(a) the improvement is a minor improvement; and
(b) the improvement does not detract from the appearance of any lot included in, or common property for, the community titles scheme”

Answering the question of whether the proposed improvement can be considered as ‘detracting’ from the appearance of any lot can be considered subjective. For instance, replacing an old fixed cloth shade sail on their balcony to a modern automated folding arm retractable awning has to be an improvement from what was previously in place. However owners need to give consideration for whether the improvement being proposed is in-keeping with your neighbours lots and the appearance of the building in general.

An example where this opinion was tested is : (RIVERPARK VIEW 2018 River Park View [2018] QBCCMCmr 97 (21 February 2018) Where an owner had made an improvement to their balcony doors that lead onto their balcony by replacing the sliding aluminium doors with new timber framed doors. As the owner felt that the improvement in no way detracted from the external appearance of the building, he felt that no application was required. In this case after giving consideration, the decision came down to whether the change detracted from the ‘amenity of the lot and its surrounds’. The adjudicator looked into the definition of amenity and along with referencing the Oxford English Dictionary where the word is defined as “pleasant….a delight; a pleasant feature; a desirable facility”, consideration was given to other definitions of the word that included terms like “perception”, “atmosphere”, “ambience”, “feeling” and “neighbourhood”. The adjudicator reviewed all submissions including several that were made by neighbours in the scheme and determined that the improvement had detracted from the amenity of the lot and its surrounds and was required to be replaced.

Another example where an adjudicator took into consideration whether an improvement detracted from the appearance of the scheme was Belvedere On Racecourse [2014] QBCCMCmr 223 (23 June 2014). In this case the owners has constructed a roofing structure on the balcony of their lot which was attached to the common property roof of the lot. This was another case where no application for the structure has been submitted to the Committee. In this case the adjudicator considered that the owner hadn’t followed correct procedure as according to the by-laws, and so was required to submit approval within twenty-one (21) days from the date of the order or remove the unauthorised structure within eight (8) weeks. However in giving consideration the adjudicator in this case reviewed the structure and deemed in this that it had not detracted from the appearance of the scheme. Although the Committee disagreed with this, the fact that no owners had made a submission complaining about it detracting from the scheme and the respondent had provided detail on how the structure had been colour matched and designed to match the existing roof structure is likely to have had an affect on the decision. Although the adjudicator had determined that the owners must submit an application or remove the structure various arguments presented by the Committee (including the construction being a potential fire safety issue) were rejected (or required further evidence to be presented) and the adjudicator went into detail on if a subsequent application was made how the Committee would need to act reasonably.

Anyone considering an improvement that may affect the external appearance of a lot or the building, needs to consider whether the improvement would be in-keeping with the building, and seek opinions of your neighbours within the scheme. Contacting the Committee to seek guidance on approval parameters can also reduce the likelihood of at-times costly and lengthy disputes.

 

This article was contributed by Tim Burns, Senior Strata Community Manager – Archers the Strata Professionals

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