Introduction

Unauthorised building works within strata schemes pose significant risks to the safety, value, and harmony of the community. In New South Wales, Owners Corporations (OCs) must enforce by-laws to manage these breaches effectively, ensuring compliance with the Strata Schemes Management Act 2015 (NSW) and protecting common property from unapproved alterations.

This guide offers a practical framework for OCs to detect unauthorised renovations, issue formal breach notices, and pursue enforcement through the NSW Civil and Administrative Tribunal (NCAT). Acting promptly and following the correct legal procedures helps maintain the integrity of the strata scheme and supports fair governance for all lot owners.

Identifying Unauthorised Works & Taking Initial Action

Detecting & Classifying Unauthorised Works in NSW

To prevent potential damage and disputes, detecting unauthorised building works early is crucial for an OC. The first signs often come from other residents who may report excessive noise, dust in common areas, or the movement of tradespeople and materials into a lot. Additionally, regular inspections of the strata scheme by the strata committee or building manager can reveal unapproved alterations to common property, such as changes to balconies, doors, or external fixtures.

Once potential works are identified, the OC must determine if they are unauthorised by classifying them according to the Strata Schemes Management Act 2015 (NSW). Renovations in a NSW stratum fall into three distinct categories, each with different approval requirements:

Category of Work	Description & Approval Requirement
Cosmetic Works	Minor changes like painting, filling cracks, or laying new carpet. Under section 109 of the Strata Schemes Management Act 2015, these works generally do not require OC approval.
Minor Renovations	More significant changes like renovating a kitchen or bathroom, installing new flooring, or altering non-structural walls. These require approval via an ordinary resolution (50% majority vote) of the OC.
Major Works	Renovations involving structural changes, waterproofing, altering a lot’s external appearance, or affecting essential services. These require a special resolution (75% majority vote) and often a registered common property rights by-law.

It is a common misconception that obtaining council approval for a development application removes the need for OC consent. However, these are separate legal obligations. Even with council approval, a lot owner is still required to seek approval from the OC for any building works that impact common property.

Gathering Evidence & Issuing Initial Warnings

When an OC suspects a breach has occurred, the immediate next step is to gather comprehensive evidence to support any future enforcement action. This documentation is vital if the matter escalates to NCAT.

Strong evidence includes:

• Dated photographs and videos of the unauthorised work
• Copies of all correspondence with the lot owner
• Written statements from any witnesses

For major works, obtaining a report from a qualified expert, such as an engineer or builder, can provide a professional assessment of the changes.

Before proceeding to formal action, it is highly recommended that the OC take an informal approach by issuing an initial warning. This is typically done by sending the lot owner a polite letter or email. This communication should:

• State that the OC is aware of the works being undertaken
• Note that there is no record of the required approval being granted
• Identify the by-law that has been breached
• Request that the owner cease all work immediately and contact the strata manager to discuss the matter

This initial step demonstrates that the OC is acting reasonably and allows the lot owner to achieve compliance without escalating the dispute. If the first warning is ignored, a second, more strongly worded letter can be sent, advising that a formal “Notice to Comply” will be the next step if the breach is not addressed.

The Formal Enforcement Process at the NSW Civil & Administrative Tribunal

Issuing a Formal Notice to Comply

If informal communication fails to resolve the breach, the OC must issue a formal Notice to Comply before applying to NCAT. This mandatory step is required under section 146 of the Strata Schemes Management Act 2015 (NSW). Failure to issue a valid notice can result in an NCAT application being dismissed.

The decision to issue the notice must be made via a resolution of either:

• The strata committee, or
• The OC at a general meeting

A valid Notice to Comply must adhere to several strict requirements to be enforceable:

Requirement	Details
Use the prescribed form	The notice must be in the form approved by and available from NSW Fair Trading.
Specify the by-law	It must clearly identify the specific by-law that has been breached, including its number and full text.
Detail the breach	The notice must explain how the lot owner has breached the by-law (e.g., installing an unauthorised structure).
Outline required actions	It must state what the owner must do to rectify the breach, such as removing the works and restoring common property.
Provide a reasonable timeframe	The owner must be given a reasonable period to comply, typically between 14 and 28 days.

Once the notice is prepared, it must be served correctly to the lot owner’s address on the strata roll. After service, an Affidavit of Service should be completed to provide proof of delivery. This documentation will be required as evidence if the matter proceeds to NCAT.

Understanding the Role of Mediation

Before an OC can apply to NCAT for most types of orders to resolve a dispute, it is generally required to first attempt mediation. This process is managed by NSW Fair Trading and provides a structured opportunity for both parties to resolve the issue with the help of an impartial mediator. The goal is to reach a mutually agreeable solution without the need for a formal and often costly tribunal hearing.

If the parties reach an agreement during mediation, the terms can become a binding resolution to the dispute. However, if mediation is unsuccessful or one party refuses to participate, NSW Fair Trading will issue a certificate confirming that mediation was attempted and failed. This certificate is a necessary document to include with most applications to NCAT.

Seeking Orders from the NSW Civil & Administrative Tribunal

Applying for Penalty Orders for By-Law Breaches

If a lot owner continues to breach a by-law after a formal Notice to Comply has been issued, the OC can apply to NCAT for a penalty order. This application must be lodged within 12 months of the notice being served. It’s important to understand that the purpose of this order is to penalise the owner for non-compliance, not to force them to rectify the unauthorised work itself.

Under section 147 of the Strata Schemes Management Act 2015 (NSW), the Tribunal has the power to impose monetary penalties with the following financial implications:

• First Breach: NCAT can impose a fine of up to 10 penalty units, which is currently $1,100.
• Repeat Breach: If the same by-law is breached again within 12 months of a penalty order being made, the OC can apply for a higher penalty of up to 20 penalty units, currently $2,200.

Pursuing Compliance & Rectification Orders

Separate from seeking penalties, an OC can apply to NCAT for orders that compel a lot owner to address the physical breach. These general orders, sought under section 232 of the Strata Schemes Management Act 2015 (NSW), focus on resolving the dispute by requiring specific actions to be taken.

Before applying for these orders, the parties are generally required to attempt mediation through NSW Fair Trading.

The Tribunal has broad powers to make orders to rectify a breach, including directing a lot owner to:

• Remove the unauthorised building works
• Restore the common property to its original condition at their expense
• Repair any damage caused to another lot or the common property

If a lot owner fails to comply with a rectification order, the OC can seek further orders from the Tribunal. This may include authorising the OC to:

• Enter the lot
• Carry out the necessary restoration works
• Recover the associated costs from the non-compliant owner

Obtaining Urgent Interim Orders

When unauthorised work is currently in progress and poses an immediate risk to the building or other residents, an OC can apply to NCAT for urgent interim orders. These orders act as a temporary injunction, requiring the lot owner to cease all work immediately until the matter can be formally heard by the Tribunal.

Timing is critical when seeking interim orders. An OC must act quickly once it becomes aware of the unauthorised renovation. Any delay can weaken the application, as the Tribunal may determine that the prejudice the order seeks to prevent has already occurred, especially if the works are substantially complete.

These applications are reserved for urgent situations where there is a risk of significant damage, such as to structural elements or waterproofing. In such cases, NCAT can make interim orders swiftly, sometimes within 24 hours of an application being filed, to prevent further harm to the strata scheme.

Options for Resolving Unauthorised Works

Enforcing the Restoration of Common Property

An OC has a strict duty to repair and maintain the common property. When unauthorised building works cause damage or alter common property without approval, the OC can demand that the lot owner restore the area to its original condition at their expense. This is often the first step when the work is deemed unacceptable, unsafe, or non-compliant.

If the lot owner fails to comply with a request to rectify the breach, the OC can seek formal orders from NCAT. Before applying to NCAT, however, the parties are generally required to attempt mediation through NSW Fair Trading. Should mediation fail, the OC can then apply for general orders under section 232 of the Strata Schemes Management Act 2015 (NSW).

The Tribunal has broad powers to resolve such disputes and can make orders that compel a lot owner to:

• Remove the unauthorised works entirely
• Restore the common property to its original condition
• Repair any damage caused to another lot or the common property during the renovation

Should the lot owner ignore a final order from NCAT, the OC can seek further authorisation from the Tribunal. This may include orders permitting the OC to:

• Enter the lot
• Carry out the necessary restoration works
• Subsequently, recover all associated costs from the non-compliant lot owner

Using Retrospective By-Laws for Unauthorised Works

In situations where the unauthorised work is not hazardous and is of a standard that the OC finds acceptable, granting retrospective approval is a practical alternative to costly legal proceedings. This approach formalises the alteration and transfers ongoing responsibility to the lot owner, providing a quicker and more cost-effective resolution for the stratum.

To grant retrospective approval, the OC can require the lot owner to provide comprehensive details about the works, including:

• A full scope of the works performed
• Relevant plans, drawings, and structural reports
• Warranties and insurance certificates from the contractors involved
• A draft common property rights by-law to authorise the works

The OC must then consider the by-law at a general meeting. The by-law requires a special resolution, meaning at least 75% of owners present and entitled to vote must approve it.

Once passed and registered, the by-law legally authorises the works and typically makes the lot owner responsible for their ongoing maintenance and any future damage they may cause.

If a lot owner unreasonably refuses to consent to a retrospective by-law, the OC can apply to NCAT. Under section 149 of the Strata Schemes Management Act 2015 (NSW), the Tribunal can order that a by-law be made, even without the owner’s consent, if their refusal is deemed unreasonable.

Conclusion

Enforcing by-laws against unauthorised building works in NSW requires a structured approach, from issuing a formal Notice to Comply to seeking orders from NCAT. OCs can either pursue the full restoration of common property or grant retrospective approval through a special by-law to resolve the breach.

Navigating this legal process demands precision to avoid costly errors and protect the strata scheme’s integrity. For expert guidance on drafting compliant notices, representing your OC at NCAT, or developing a clear enforcement strategy, contact the specialist team at PBL Law Group today to ensure your community is protected.

Frequently Asked Questions (FAQ)