In New South Wales, under the Strata Schemes Management Act 2015 (NSW), inconvenience caused during construction work may not, on its own, constitute a reasonable reason to refuse a lot owners proposed works by-law. The determination of whether a refusal is reasonable depends on the specific circumstances and the conduct of the owners corporation, as well as the balancing of interests between the lot owner proposing the works and other lot owners.
Section 149 of the Act empowers the Tribunal to make an order prescribing a change to a by-law if it finds that the owners corporation has unreasonably refused to make a common property rights by-law. In assessing reasonableness, the Tribunal must consider the interests of all owners in the use and enjoyment of their lots and common property, as well as the rights and reasonable expectations of any owner deriving or anticipating a benefit under a common property rights by-law.
The reasonableness of a refusal depends on objective evidence and the balancing of interests. Lot owners are entitled to consider their own interests and rely on their experiences and beliefs, but the refusal must be supported by reasonable grounds. In McGhee v The Owners – Strata Plan No 1687 [2019] NSWCATCD 60, the Tribunal emphasised that the test of reasonableness is objective and must be based on sound judgment and facts sufficient to induce a reasonable state of mind.
In The Owners – Strata Plan No 2245 v Veney [2020] NSWSC 134, a case concerning nuisance, the Supreme Court noted that inconvenience caused by lawful activities, such as construction work, is generally tolerated provided reasonable precautions are taken to minimise interference. This aligns with the principle that inconvenience alone may not justify refusal unless it amounts to substantial interference or is unreasonable in the circumstances.
Therefore, while inconvenience during construction work may be a factor considered by the Tribunal, it must be weighed against the broader context, including the necessity and benefits of the proposed works, the precautions taken to minimise disruption, and the overall reasonableness of the refusal. The Tribunal’s decision will ultimately depend on the specific facts and evidence presented in each case.
This is general information only. Please see legal advice tailored to your situation.
Author: Allison Benson