In a recent case, the Land and Environment Court has confirmed that an owners corporation can apply to the Court for orders to require trees on a neighboring property which obstruct views from residential lots in the owners corporation’s building to be removed or pruned.  The Court confirmed that the individual lot owners do not have to apply to the Court for that relief.

The Case

A row of 21 Cyprus trees grows on a property in Sydney’s lower North Shore adjacent to a strata building.  The foliage of those trees is relatively close to the windows of some of the apartments in that building.  They obstruct the views from, and sunlight entering, the windows from those apartments.  To remedy that problem, the owners corporation of the apartment building applied to the Land and Environment Court for orders to require the neighbor to remove 9 of the trees and prune 10 of the trees.  Those orders were sought under the Trees (Disputes between Neighbors) Act 2009.

The Problem

In the case, the neighbor argued that the owners corporation was not entitled to apply for any orders on behalf of the apartment owners concerning the trees.  This was because the trees did not obstruct any views or sunlight on the common property but only from the apartments themselves and the owners corporation did not own or manage the apartments as a result of which it did not have standing to apply for orders in relation to the trees.

The Decision

The Land and Environment Court rejected the neighbour’s argument.  The Court held that the land which adjoined the trees in question was common property that was owned by the owners corporation and as the owner of that land the owners corporation could apply for an order relating to an apartment situated on the land in its strata scheme.  The Court also said that the apartment owners or residents themselves could also apply to the Court for orders in relation to the trees.  The Court stressed that this case was different to cases under the Trees Act that relate to tree damage.  In those types of cases apartment owners could only apply to the Court for orders in relation to damage to their apartments and the owners corporation could only apply to the Court for orders relating to damage to common property.

Conclusion

The Court’s decision clarifies that an owners corporation is entitled to apply for relief under the Trees Act in relation to trees on a neighboring property that obstruct views or sunlight through windows in apartments.  The Court’s decision represents a departure from earlier decision of the Court in 2012 in Salmon v Kibble[2012] NSWLEC 1359 in which it was held that an owners corporation could not make an application to the Court and instead applications needed to be made by the owners of the individual apartments.

The case provides greater flexibility for tree disputes involving strata schemes to be resolved through applications that are made by owners corporations.

Case citation: The Owners – Strata Plan No. 52378 v Huang [2025] NSWLEC 1125.

Adrian Mueller I BCOM LLB FACCAL I Partner

Since 2002 Adrian has specialised almost exclusively in the area of strata law. His knowledge of, and experience in strata law is second to none. He is the youngest person to have been admitted as a Fellow of the ACSL, the peak body for strata lawyers in Australia. Profile I Linked

Contact US

For all strata law advice including by-laws, building defects and levy collections contact our specialist NSW and Sydney strata lawyers here or call 02 9562 1266, we’re happy to assist.

Back in 2018, NCAT decided that a landlord is not responsible for ensuring that his or her tenants comply with the by-laws that apply to a strata building.  That decision was confirmed by the Appeal Panel of NCAT in Feletti -v- Eales [2019] NSWCATAP 100.

Therefore, if a tenant is breaching a by-law, the owners corporation of the building is not normally entitled to take action against the landlord to require the landlord to ensure that his or her tenant complies with the by-law.

This means that the owners corporation needs to take action against the tenant instead of the landlord which it may not want to do because tenants come and go and it can be difficult to enforce NCAT orders against them.

How to Make Landlords Accountable for Tenants in Strata?

There is, however, a solution to the problem.

• An owners corporation can make a by-law that requires landlords to ensure that their tenants comply with the by-laws.
• That by-law will give the owners corporation the right to take action against a landlord when his or her tenants breach the by-laws.
• The by-law goes one step further and will also allow an owners corporation to take action against both landlords and tenants whose guests and invitees breach the by-laws.

Tenancy Laws are Changing in NSW in 2025

More recently the NSW Government has committed to ending ‘no grounds’ evictions. This means that the landlord will need a valid reason to end a tenancy, making it even more challenging for owners corporations if they’re a bad tenant – new laws are expected to be passed in 2025.

It’s now even more important that strata schemes consider introducing the following by-law to ensure a thriving and a well-run scheme.

We have drafted a by-law and a number of strata managers have introduced the by-law into the strata schemes they manage.

We expect that the by-law will prove very useful for owners corporations who introduce it because it will allow those owners corporations to take action against landlords whose tenants are breaching the by-laws.

ORDER YOUR BY-LAW NOW: ENFORCE LANDLORDS TO BE RESPONSIBLE FOR THEIR TENANTS

Adrian Mueller I BCOM LLB FACCAL I Partner

Since 2002 Adrian has specialised almost exclusively in the area of strata law. His knowledge of, and experience in strata law is second to none. He is the youngest person to have been admitted as a Fellow of the ACSL, the peak body for strata lawyers in Australia. Profile I Linked

Contact Us

For all strata law advice including by-laws, building defects and levy collections contact our specialist NSW and Sydney strata lawyers here or call 02 9562 1266, we’re happy to assist.

As of 1 July 2024, NSW (and ACT) became the first state in Australia to adopt new and modern defamation laws for the digital age.

Led by the NSW Government the changes in the Defamation Amendment Act 2023 (NSW) will improve the balance between freedom of speech and protection of reputation when someone publishes content through a digital intermediary.

Examples of digital intermediaries include:

• Social Media Platforms
• Review Websites
• Search Engines
• Content Hosts
• Service Providers
• Individuals and organisations who use online platforms to host forums inviting third-party comments (known as forum administrators).

Part A reforms include:

• two conditional statutory exemptions from defamation liability for a narrow group of digital intermediaries, including search engines in relation to organic search results (non-sponsored search results)
• a new innocent dissemination defence for digital intermediaries, subject to a simple complaints process
• empowering courts to order digital intermediaries to prevent access to defamatory content online, even when they are not parties to defamation proceedings
• requiring courts to consider safety, privacy and the public interest when making orders against digital intermediaries to provide the identity or contact details of a poster of online content

To read the full bill and other information including Stage 2 visit NSW Government.

Adrian Mueller I BCOM LLB FACCAL I Partner

Since 2002 Adrian has specialised almost exclusively in the area of strata law. His knowledge of, and experience in strata law is second to none. He is the youngest person to have been admitted as a Fellow of the ACSL, the peak body for strata lawyers in Australia. Profile I Linked

Contact Us

For all strata law advice including by-laws, building defects and levy collections contact our specialist NSW and Sydney strata lawyers here or call 02 9562 1266, we’re happy to assist

Restricting or Banning Smoking in Strata

As of 1 May 2024 body corporate’s in Queensland are permitted to introduce by-laws that specifically prohibit or restrict smoking or inhaling of smoking products on common property of strata buildings.

As Queensland grapples with these changes, in NSW there are still many buildings that do not have a by-law concerning smoking, even though they are permitted to do so. This has raised questions such as:

• Is it possible to stop people smoking in a strata building without a by-law that bans smoking?
• If it is possible to stop smoking without a by-law, is it still necessary or desirable to have a by-law that bans or restricts smoking and, if so, why?

Banning Smoking without a By-Law

Somewhat surprisingly, it is possible to stop residents of a strata building smoking in their lots or on common property without a specific by-law that prohibits smoking.  Section 153 of the Strata Schemes Management Act 2015 prohibits residents from using or enjoying their lots in a manner or for a purpose that causes a nuisance or hazard to another resident. There have been several cases over the past years in which NCAT has made orders prohibiting residents in strata buildings from smoking on the basis that smoke caused by smoking constituted a nuisance to other residents in contravention of section 153.

NCAT Smoking Cases

In May 2019, a lot owner, Martin Gisks, succeeded in obtaining an order from NCAT prohibiting the resident of another lot in his building smoking on her balcony or in her bedrooms and requiring that resident to close all exterior doors and bedroom and bathroom windows when smoking inside her lot (Gisks v The Owners – Strata Plan No. 6743 [2019] NSWCATCD 44).

In October 2022, lot owners in a different building, Mr Pittman and Ms Cartwright, obtained orders from NCAT prohibiting the owners of another lot smoking or permitting any other person to smoke tobacco products on the balcony of their lot, and prohibiting them from permitting smoke from any tobacco product to be emitted from the interior of their lot into the lot of Mr Pittman and Ms Cartwright (Pittman v Newport [2022] NSWCATCD 173).

More recently, in June 2023, an owner in a strata building, Haydn Shaw, obtained an NCAT order prohibiting the owner and resident of another lot permitting the smoking of tobacco products in the courtyard of their lot (Shaw v Euen [2023] NSWCATCD 68).

In each case, NCAT concluded that the smoke caused by the smoking of cigarettes or tobacco products by residents constituted a nuisance which interfered with the amenity of other residents in contravention of section 153 of the Act.  It was on that basis that NCAT made orders prohibiting or restricting smoking in each of these cases.

Is a By-Law Banning Smoking Desirable?

These NCAT cases beg the obvious question:  does an owners corporation need to bother introducing a by-law prohibiting or restricting smoking?  The answer is “Yes” if the owners corporation wants to make it easier to ban or restrict smoking in its building.

This is because without a by-law that bans or restricts smoking:

• the owners corporation may not have standing to apply to NCAT for orders to prohibit residents smoking in a way that causes a nuisance to other residents because the owners corporation itself has not suffered from that nuisance (The Owners – Strata Plan No. 2245 v Veney [2020] NSWSC 134); and
• there is a need to prove that not only particular residents are smoking but also that the smoke from cigarettes or tobacco products has caused a nuisance to other residents by unreasonably and substantially interfering with the use and enjoyment of their lots (something which may be difficult to do).

In other words, if a by-law exists that bans smoking the owners corporation is able to enforce that by-law and to succeed it does not need to show that smoke from cigarettes constitutes a nuisance to other residents.  The owners corporation just needs to prove that particular residents are smoking in breach of the by-law.  That is much easier to do.

Conclusion

It is possible to stop residents smoking without a by-law that bans smoking.  However, it is much more difficult to do so because it requires proof that the smoking causes a nuisance to other residents.  And, there is real doubt that an owners corporation can apply to NCAT for an order to stop residents smoking in those circumstances.

Introducing a by-law prohibiting or restricting smoking overcomes those problems, gives the owners corporation the right to take steps through NCAT to prevent residents smoking and makes it easier for the owners corporation to win the case and put an end to smoking in its building.

DO YOU NEED A BY-LAW THAT PROHIBITS OR RESTRICTS SMOKING? CLICK HERE NOW!

Adrian Mueller I BCOM LLB FACCAL I Partner

Since 2002 Adrian has specialised almost exclusively in the area of strata law. His knowledge of, and experience in strata law is second to none. He is the youngest person to have been admitted as a Fellow of the ACSL, the peak body for strata lawyers in Australia. Profile I Linked

Contact Us

For all strata law advice including by-laws, building defects and levy collections contact our specialist NSW and Sydney strata lawyers here or call 02 9562 1266, we’re happy to assist.

Who is Responsible for Common Property Repairs Caused by Rain?

Sydney smashes another record rainfall in May 2024 (to date) with a deluge of rain over the past weeks across metropolitan and regional areas of New South Wales.

Extensive rainfall events test the patience of every strata manager resulting in numerous complaints about water leaks into strata lots.

Faced with endless demands, owners corporations need to be very clear about their responsibilities, so it’s timely to revisit some of the “fundamentals”.

In the article below we discuss…

Step 1 – Is it the owners corporation’s responsibility?

Step 2 – If it leaks has the common property failed?

Step 3 – Are damages payable by the owners corporation for common property failures?

For more information: Rain and Common Property Damage – Who is Responsible?

Warwick van Ede I BEc LLM I Lawyer

Since 1990, Warwick has specialised in strata law, property law and litigation. Recognised for his expertise, he is also a NSW Law Society Accredited Specialist in Property Law. In 2021 he was selected to serve on the Property Law Committee of the Law Society of NSW. Profile I LinkedIn

Contact Us

For all expert strata law advice including by-laws, building defects and levy collections contact our specialist NSW and Sydney strata lawyers here or call 02 9562 1266, we’re happy to assist.

As the world we live in drastically changes, people are looking for more economical and sustainable ways of living.

Many families (and others) are downsizing and moving into strata apartment living which often means they need to also review their current transport options.

The parking incident that raised many questions!

In a recent incident a lot owner was sent a notice from their owners corporation to remove a kayak from their parking lot. The kayak was stored neatly in front of their motor vehicle within the confines of their parking space.

The owners corporation said the kayak was not a vehicle so therefore it had to be removed or the owner would incur a fine. The owner argued that the kayak was a vehicle and therefore could be kept in the parking space according to the building’s by-law for parking.

• Firstly, is a kayak classified as a non-motorised vehicle?
• What if the kayak was strapped to roof racks on the motor vehicle (providing the height allowed for this), would the owner have been asked to remove the kayak?
• What if it was a non-motorised bicycle or scooter that was parked on the parking lot?
• What if it was an e-bike or an e-scooter – are they classified as motor vehicles?
• The list goes on: row boats, dinghies, skateboards, rollerblades etc all types of transport.
• Should the by-law have stipulated (among other things) motorised and non-motorised vehicles?
• What is legally deemed as a transport vehicle and what is not?

As government and local councils push communities to reduce carbon emissions – the question that must be asked is: do we need to now allow for other forms of transport vehicles with lower emissions to be parked on parking lots within strata complexes?

Do you need to review your parking by-law?

The lesson here is to ensure that your parking by-law is current and in-line with today’s ever-changing world.

Most likely your parking by-law is out of date and requires a review.

For a parking by-law review speak to our specialist strata lawyers here now.

YOUR PARKING BY-LAW NEEDS A REVIEW CLICK HERE NOW!

Adrian Mueller I BCOM LLB FACCAL I Partner

Since 2002 Adrian has specialised almost exclusively in the area of strata law. His knowledge of, and experience in strata law is second to none. He is the youngest person to have been admitted as a Fellow of the ACSL, the peak body for strata lawyers in Australia. Profile I Linked

Contact Us

For all strata law advice including by-laws, building defects and levy collections contact our specialist NSW and Sydney strata lawyers here or call 02 9562 1266, we’re happy to assist.

As Summer Heats up so do the air conditioning complaints!

Summer is here and it’s predicted to be a hot summer season with temperatures in the high 30’s and some days even reaching 40’s.

It’s the time of year when lot owners and tenants look to install and use air conditioners to relieve themselves from the oppressive heat.

Did you know air conditioners are high on the list for strata disputes?

Air conditioners can cause all types of complaints in strata such as:

• What if the noise of the unit upsets the peace and quiet?
• Who’s responsible for maintenance?
• What if the unit leaks water into another apartment?
• Is it in line with the appearance of the lot?
• and much more!

A Good By-law Addressing Air Conditioning Units is Important

For these reasons it’s important that you have a good by-law in place regulating the installation and use of them  that covers the following (and much more):

• What type of air conditioning equipment is appropriate?
• Where can the unit be installed?
• Will council approval be required?
• Will owners corporation approval be required?
• Will it be installed on common property?
• Will a by-law be required for individual lots, or can it be covered under a general by-law?

A good by-law will ensure that your summer is as stress free as possible and reduces (and hopefully eliminates) any strata disputes in relation to air conditioners.

Adrian Mueller I BCOM LLB FACCAL I Partner

Since 2002 Adrian has specialised almost exclusively in the area of strata law. His knowledge of, and experience in strata law is second to none. He is the youngest person to have been admitted as a Fellow of the ACSL, the peak body for strata lawyers in Australia. Profile I Linked

Contact Us

For all strata law advice including by-laws, building defects and levy collections contact our specialist NSW and Sydney strata lawyers here or call 02 9562 1266, we’re happy to assist.

Lot Owner Claims Damages of $850 Million!

Generally we use these  bulletins for educational purposes,  but it’s getting toward that time of the year when everything goes a little crazy in the world of strata title, and so today the emphasis is on providing you with sheer relief that your strata scheme is not tied up with the sort of case in which a decision was recently made by the Supreme Court of New South Wales, where a lot owner commenced proceedings against the owners corporation claiming damages of $850 million!

The Strata Dispute Lot Owner Vs Owners Corporation

The dispute, between the occupant of an apartment located in Sydney and the owners corporation,  began life as a tenancy dispute, but the occupant (tenant), having failed to enlist the support of the NSW Civil & Administrative Tribunal (NCAT),  brought proceedings in the Supreme Court of NSW seeking among other things damages of $850 million against the owners corporation! You can imagine the insurer’s claims manager when that came through…

Needless to say, the proceedings in the Supreme Court of NSW were, to use the words of the Supreme Court Judge dealing with the final version of the proceedings, “frivolous and vexatious” and an abuse of the process of the Court.  Notwithstanding this, the plaintiff lot occupant filed applications of various kinds in the proceedings, made scandalous allegations against the owners corporation’s legal representatives, court officials and even a judge of the Court.

At the heart of the lot occupant’s claim was the suggestion that the owners corporation had somehow been involved in a criminal conspiracy which allegedly caused the plaintiff loss and damage.

Finally, on the sixth application before the Court (some of those applications being interlocutory applications for stays, injunctions and applications for recusal of various judges) the entire application was dismissed and the lot occupant was ordered to pay the owners corporation’s legal costs on an indemnity basis.  This means that the owners corporation was entitled to recover from the lot occupant not only the normal (“party/party”) costs but almost all the legal costs it had expended in having to deal with this application.

Conclusion

So as we head towards the end of the year, and if you are experiencing stress due to the matters which your owners corporation has to deal with, just remember – at least you haven’t been served with a law suit for $850 million!

If you do have issues in your strata scheme JS Mueller & Co Strata Lawyers have the experience and ability to assist you in dealing with these issues, whether they are disputes relating to the operation of the committee, questions about property and renovations, dealing with adjoining land owners and more please contact us on the details below for further assistance.

Warwick van Ede I BEc LLM I Lawyer

Since 1990, Warwick has specialised in strata law, property law and litigation. Recognised for his expertise, he is also a NSW Law Society Accredited Specialist in Property Law. In 2021 he was selected to serve on the Property Law Committee of the Law Society  of NSW.  Profile I LinkedIn

Contact Us

For all strata law advice including by-laws, building defects and levy collections contact our specialist NSW and Sydney strata lawyers here or call 02 9562 1266, we’re happy to assist.

Are Visitor Parking Spaces Exempt from Levies?

A recent decision of the Appeal Panel of NCAT has re-examined the question of as to whether visitor parking spaces in a residential strata complex qualify for exemption from levies which may be payable pursuant to the Parking Space Levy Act 2009 (NSW).

NSW Government Introduces the Parking Space Levy Act

An attempt to discourage or reduce traffic congestion in certain key Sydney business districts, in 2009  the NSW Government introduced the Parking Space Levy Act , the effect of which was to make a levy payable by landowners  on certain off-street parking spaces located in specified districts.

In broad terms, the districts to which the legislation currently applies are:

• Sydney CBD;
• North Sydney/Milsons Point;
• Bondi Junction;
• Chatswood;
• Parramatta; and
• St Leonards.

There are designated maps which set out in detail the parts of those areas to which the levy applies, and the levy has two categories. Category 1 (Sydney CBD and North Sydney/Milsons Point) has the highest levy rate, and  the balance of districts are designated as Category 2, for which a lower rate is payable.

The relevant legislation also contains exemptions, one of which is set out in Regulations 7 & 8 of the Parking Space Levy Regulation 2009 (the Regulation). One of the exempt purposes is where the parking spaces are for “the parking of motor vehicles by persons who reside on the premises or an adjoining premises”.

NCAT Disputes Visitor Car Space Assessment

The premises in question in this case were located in Milsons Point, and were therefore designated as “Category 1”. The Chief Commissioner of State Revenue made a determination that the strata scheme in Milsons Point was liable to pay a car space levy on 5 of 7 car spaces which were set aside for visitors to the property. The strata scheme itself is a mixed commercial and residential building containing 33 residential apartments and 7 commercial suites.

An application was made by the strata scheme to the NSW Civil and Administrative Tribunal (NCAT) disputing the assessment made by the Chief Commissioner of State Revenue on the basis that the visitor car spaces in question should have been considered as “exempt” parking spaces.

Specifically, the strata scheme’s original application to NCAT argued that the exemptions described in Regulations 7 and 8 of the Regulations for “the parking of motor vehicles by persons who reside on the premises or an adjoining premises” should include parking spaces set aside for visitors of persons who reside on the premises.

The original decision of NCAT was that visitor car spaces were not exempt. The owners corporation then appealed the original NCAT decision in relation to this issue to the Appeal Panel.

The Decision of the Appeal Panel

The Appeal Panel rejected the proposition that parking for guests of residents was intended to be covered by the relevant exemption.

The Appeal Panel noted that Regulations 7 and 8 contained a number of specific exemptions including for parking of contractors and consultants providing services on the premises. The Appeal Panel argued that  if the Parliament had intended for an exemption to be granted for the parking of “guests”, then it could have included that exemption explicitly within those Regulations, which it did not.

The Appeal Panel noted that limiting the exemption in this way was also consistent with the aims of the legislation, being to discourage car use in the area. The Appeal Panel found that the parking spaces in question were for a combination of exempt and non-exempt purposes, and therefore not “exclusively” set aside for an exempt purpose.

The Appeal Panel therefore upheld the original decision of NCAT, and the original decision of the Chief Commissioner of State Revenue to apply the levy to these car spaces was affirmed.

The Conclusion

Although the Act and the Regulations apply only to a limited set of areas within Sydney, it is within the power of the Government to expand the list of areas to which that levy will apply in the future.  In light of current public policy settings regarding driving and motor vehicle use generally, the exercise of that power to expand the list of leviable areas in Sydney must be considered a possibility.

Owners Corporations within Category 1 and Category 2 areas should be aware of their obligations under the Act and the Regulations,  and the applicability of those legislative instruments to their particular circumstances.

Need Help with a Parking Issue?

We are happy to provide guidance to strata schemes who seek interpretation of the application of any Ruling in relation to levies of this kind or simply require general parking advice in relation to the issue.

Warwick van Ede I BEc LLM I Lawyer

Since 1990, Warwick has specialised in strata law, property law and litigation. Recognised for his expertise, he is also a NSW Law Society Accredited Specialist in Property Law. In 2021 he was selected to serve on the Property Law Committee of the Law Society of NSW. Profile I LinkedIn

Contact Us

For all strata law advice including by-laws, building defects and levy collections contact our specialist NSW and Sydney strata lawyers here or call 02 9562 1266, we’re happy to assist.

Keeping a pet in some strata schemes can be costly when schemes charge an additional fee or bond for the joy of having a pet!

The good news is that the NSW Government as part of the reform has labelled these fees and bonds as being costly, unreasonable, and unnecessary as lot owners already pay levies.

Owners already pay for the upkeep of their strata schemes including the cost of insurance to cover damage to common areas as part of their levies.

The reform is part of phase one of the NSW Government’s review to ensure we have a more transparent and fairer strata system.

This week the NSW Government will move forward on critical reforms implementing changes to ensure the system is fairer and transparent… https://www.nsw.gov.au/media-releases/critical-reforms-to-strata-laws

So, will there be a blanket ban on pet fees and bonds under the reforms for strata laws governing community living arrangements?

ARE YOUR PET BYLAWS CURRENT? DO YOU NEED A REVIEW?

Adrian Mueller I BCOM LLB FACCAL I Partner

Since 2002 Adrian has specialised almost exclusively in the area of strata law. His knowledge of, and experience in strata law is second to none. He is the youngest person to have been admitted as a Fellow of the ACSL, the peak body for strata lawyers in Australia. Profile I Linkedin

Contact Us

For all strata law advice including by-laws, building defects and levy collections contact our specialist NSW and Sydney strata lawyers here or call 02 9562 1266, we’re happy to assist.