A lot owner did unauthorised work on his balcony 17 years before the dispute reached NCAT. When the owners corporation finally tried to regularise it with a proper by-law, he refused to consent. NCAT held the refusal was unreasonable and ordered the by-law made anyway. It's a useful case for any scheme dealing with historical unauthorised works.
The case
The Owners – Strata Plan No 19341 v Dehlsen [2022] NSWCATCD
NSW Civil and Administrative Tribunal. Application by the owners corporation under Section 149 of the Strata Schemes Management Act 2015 (NSW) for an order that a by-law be made despite the lot owner's refusal to consent.
What happened
Back in 2005, the lot owner did works to his balcony. He:
- Removed the existing artificial turf
- Replaced the waterproofing membrane
- Installed planter boxes around the perimeter
- Installed a drainage system
His position was that the works had been approved because he'd sent a letter to the other lot owners describing what he planned to do. The owners corporation's position was that no by-law had ever been passed by special resolution, and the works were unauthorised.
By 2022, the works were alleged to have caused damage to common property and water penetration into the lot below.
The by-law the OC tried to pass
The owners corporation passed a by-law via special resolution that would have:
- Made the lot owner responsible for maintaining the works
- Required him to renew or replace the works when reasonably required
- Made him liable for damage to common property and other lots caused by the works
- Required him to indemnify the owners corporation for any costs or losses arising from the works
The owner refused to provide his written consent (which is required under Section 143 SSMA before a common property rights by-law can take effect).
What NCAT decided
Under Section 149 of the SSMA, if the Tribunal considers a lot owner has unreasonably withheld consent to a by-law, it can order the by-law be made anyway. NCAT did exactly that.
The Tribunal compared the conditions in the proposed by-law with the conditions the owner had volunteered in his 2005 letter. They were almost identical — with one key difference: the 2005 letter didn't say the owner would be liable for damage caused to common property or other lots.
The Tribunal held it was reasonable for the by-law to make the owner responsible for maintaining and replacing the works, and reasonable to make him liable for the damage they caused. His refusal was unreasonable. The by-law was ordered to be made.
The legal framework — common property rights by-laws
Under the SSMA, changes to common property are tightly controlled because they affect every owner:
- Special resolution at a general meeting — passes only if less than 25% of voting owners oppose (Section 108).
- Written consent from each owner on whom the by-law confers rights or privileges (Section 143).
- Section 149 backstop — if the affected owner unreasonably withholds consent, the Tribunal can order the by-law made anyway.
Section 149 is the safety valve that stops one owner blocking a sensible regularisation.
What this means for your scheme
This case has direct relevance to townhouse schemes. Older townhouse complexes often have a history of works done years ago — pergolas, planter boxes, balcony alterations, even small additions — without a proper by-law in place. When water gets in, the question becomes who pays.
For owners: if you've done works to your lot that affected common property and there's no by-law, regularising it now is much cheaper than waiting for a leak to land in NCAT. A by-law makes the position clear for you and any future buyer.
For committees: if there's old unauthorised work in your scheme, don't ignore it. A properly drafted by-law transfers maintenance and liability to the responsible owner. If that owner refuses to consent, Dehlsen confirms you can ask NCAT to make the by-law anyway — provided the terms are reasonable.
For everyone: this is a strong reminder that "I sent a letter once" is not approval. Common property changes need a special resolution and a written by-law. Anything less leaves owners exposed and committees with no enforcement pathway.
Related articles
Sources
Strata Schemes Management Act 2015 (NSW), s108, s143, s149.
The Owners – Strata Plan No 19341 v Dehlsen [2022] NSWCATCD. Full text via NSW Caselaw: caselaw.nsw.gov.au
Bannermans Lawyers commentary: bannermans.com.au — NCAT Enforces By-Law for Renovation Works Despite Lot Owner's Refusal (5 March 2024)