Can NCAT enforce a by-law?

Strata committees have been reminded that there are limits to their discretion in enforcing by-laws. While there is room for interpretation about a tolerable amount of noise or what’s allowed on balconies, a recent NSW Civil and Administrative Tribunal (NCAT) decision took a harder line on by-laws authorising work on individual lots.

Recent NCAT case

Briefly, a townhouse owner added a pergola to their courtyard on Sydney’s lower north shore. The completed pergola was half a metre higher and 15cm deeper than the plans submitted for approval through a special by-law. Neighbours objected due to shadowing and the intrusion into their views, but the strata committee declined to act based on legal advice.

The neighbours took the case to the Tribunal, which found that the committee’s legal advice assumed the pergola had complied with the plans submitted as part of the by-law application. The Tribunal said it was clearly not compliant and gave the Owners Corporation six months to make the infringing owner reduce the size of the pergola.

“There is little point in creating a statutory mechanism for the owners corporation to pass a common property by-law merely to have that by-law flouted and for the owners corporation to fail to act in the face of legal advice and complaints from other lot owners,” the decision said.

This decision turned on the specific facts of the case and does not necessarily limit discretion in other situations where strata committees need to decide about enforcing by-laws. Other recent cases have focussed on where owners corporations have been overzealous, such as cancelling the fobs of owners found to be in breach of by-laws regulating short-term letting.

They are all reminders that the role of the owners corporation is to administer the by-laws fairly, reasonably and in the interests of all owners.

More on by-laws. You can read the full decision here.