Lot Owner is Permitted to Keep Skylights Installed in the Roof Without Prior Approval from the Owners Corporation

The Appeal Panel of the Civil and Administrative Tribunal of New South Wales in Endre v The Owners – Strata Plan No. 17771 [2019] NSWCATAP 93 has made a work approval order in favour of a lot owner who installed 6 skylights in the roof of the building above her lot (Lot 2) without first obtaining the prior approval of the Owners Corporation. The lot owner had appealed the Tribunal’s original decision ordering her to carry out all works necessary to restore the common property to its condition prior to the installation of the 6 skylights and refusing to make a work approval order in her favour.

Some of the relevant facts are:

  • There are three lots in the strata scheme.
  • In 2004/2005, the Lot 2 owner had discussed installing skylights with the former owner of Lot 3 who had already installed skylights above his lot and who said the Lot 2 owner could do the same.
  • In 2006, the Lot 2 owner, along with the Lot 3 owner, were given exclusive use (in a by-law) of the roof space (attic space) above their Lots.
  • The Lot 2 owner installed the 6 skylights in June 2014 within the attic space over which she had exclusive use, without any complaints by the other two owners. The skylights complied with the relevant building requirements and did not compromise the structural integrity of the roof.
  • Works were carried out by the Owners Corporation to replace the roof above Lot 2 in late 2016 and that work incorporated the skylights. There were no complaints about the skylights having been installed during those works.
  • In late 2017, the Owners Corporation applied for an order from the Tribunal for the removal of the skylights.
  • In April 2018, the Lot 2 owner sought retrospective approval of the unauthorised works, which approval was not obtained.

In reaching its decision, the Appeal Panel considered section 126(2) of the Strata Schemes Management Act 2015 which provides as follows:

(2) Order consenting to owner’s work on owners corporation property

The Tribunal may, on application by a lessor of a leasehold strata scheme or an owner of a lot in a strata scheme, make an order (a work approval order) approving of minor renovations or alterations or repairs already made by an owner to common property or any other property of the owners corporation directly affecting the owner’s lot if the Tribunal considers that the owners corporation unreasonably refused its consent to the minor renovations or alterations or repairs.

The Appeal Panel determined that an order under section 126(2) could only be made if the Owners Corporation had unreasonably refused consent to the installation of the 6 skylights and the installation was work to common property or any other property of the Owners Corporation directly affecting the lot owner’s lot.

The Appeal Panel rejected a submission made on behalf of the Owners Corporation that section 126(2) only operated in respect of minor repairs and determined that the use of “or” in section 126(2) in “minor renovations or alterations or repairs” made it clear that the section was not intended to be limited to minor repairs only.

The Owners Corporation submitted that its refusal to approve the installation of the skylights was reasonable because the Lot 2 owner had failed to obtain prior approval to carry out the installation, the attic space was for storage purposes only, not suitable for habitable purposes (so did not need natural light) and already received ventilation from a window at the front of the attic, the roof windows created an increased risk of water ingress, had an unappealing appearance and detracted from the building’s external appearance.

The Tribunal determined that the refusal to approve the installation was unreasonable including because:

  • The exclusive by-law in favour of the Lot 2 owner for the attic space allows her to occupy the space and is not subject to any condition of use (although the Tribunal acknowledged she may not be able to occupy the space if the relevant planning laws prohibited this).
  • There was no expert evidence regarding whether the existing lighting and ventilation was adequate.
  • There was no independent evidence that the building’s appearance is unappealing, or the skylights detracted from its external appearance.
  • The attic space is not accessible by other Lot owners and there was no evidence that the installation of the skylights would adversely affect the other Lot owners.
  • There was no common intention of the Owners Corporation to retain the building in its original state, as the Owners Corporation had approved exclusive use and occupation of common property in attic spaces above existing lots in the scheme and alterations to those spaces.
  • The skylights had been installed for nearly 3 years and the roof was repaired with the skylights remaining without any objection from the other Lot owners.
  • The Lot 2 owner agreed to be responsible for the repair and maintenance of the skylights.

The Appeal Panel also determined that the installation of the skylights directly affected the Lot 2 owner’s Lot because the roof area is immediately above the attic space.  The Lot 2 owner has exclusive use of that attic space.  The adequacy of the skylight installation will directly affect water ingress to the attic space so has a direct impact upon Lot 2.  The exclusive use rights she has been given means that her use of the Lot and attic space is directly affected by the installation.  The Appeal Panel said:

It seems to us that the expression “directly affecting” is not limited to work that has an immediate physical connection with the Lot in question.  Lot and common property are separate parts of the building or its services, delineated in the manner prescribed by the legislation.  Common property can have a direct effect on a particular Lot even if not physically adjacent to that Lot.  For example, air-conditioning units and other common property which fall into a state of disrepair can directly affect a Lot even if not adjacent to that Lot.

The Appeal Panel then made a work approval order for the 6 skylights with the order to have effect from 30 June 2014 (the date they were installed) and with the Lot 2 owner and any subsequent owner to have ongoing responsibility for the repair and maintenance of the 6 skylights.

[Note: some additional orders were made in the matter concerning some structural repairs which are not dealt with in this article.]

If you are a lot owner needing help with renovations already carried out in your lot without formal approval, or you are a strata managing agent or strata committee member of an Owners Corporation wanting to ensure that the Owners Corporation is sufficiently protected following the discovery of unauthorised renovations by a lot owner, we can help you.  🙂