Key Takeaways

• You Must Apply to the OC First: Before you can go to the NSW Civil and Administrative Tribunal (NCAT), you must first formally apply to your Owners Corporation (OC) for retrospective approval and have them consider and refuse your request. Applying directly to NCAT without this step will lead to your application being dismissed.
• The Onus of Proof is on the Lot Owner: It is entirely your responsibility to provide comprehensive, expert evidence (e.g., structural, waterproofing, and acoustic reports) to prove the unauthorised works are safe, compliant, and pose no risk to the building. A weak, evidence-poor application will likely be refused.
• Approval Requires a By-Law, Not Just a Vote: For major works, a special resolution from the OC is not enough. The approval must be formalised by drafting and registering a common property rights by-law, which legally transfers all future maintenance responsibility for the works from the OC to you.
• NCAT Can Overrule an “Unreasonable” Refusal: If you provide strong evidence and the OC still refuses your application without a valid reason, you can apply to NCAT. The Tribunal can make an order to approve the works if it finds the OC’s refusal was unreasonable.
• There is a Strict 6-Month Registration Deadline: Once a by-law is approved by the OC or ordered by NCAT, it must be registered with NSW Land Registry Services within six months. If this deadline is missed, the approval becomes void, and you must start the entire process again.

Introduction

Undertaking a renovation in a NSW strata scheme without obtaining the required approval can create a complex and stressful situation for a lot owner. Under the Strata Schemes Management Act 2015 (NSW), any renovation work that affects common property requires consent from the Owners Corporation (OC), and proceeding without it results in unauthorised works that carry significant legal and financial risks.

Fortunately, a legal pathway exists to approve these unauthorised works retrospectively. This guide provides a step-by-step walkthrough for lot owners, strata committees, and strata managers on how to navigate the process, from preparing an application for the OC to seeking a work approval order from the NSW Civil and Administrative Tribunal (NCAT). It also includes finalising the necessary common property rights by-law.

Applying to the OC for Retrospective Approval

The Requirement for Formal OC Approval First

Before applying to the NCAT for an order, you must formally request retrospective approval from the OC. This is not just a procedural step but a mandatory legal prerequisite.

The NSW Supreme Court in Colman v The Owners – Strata Plan No. 61131 [2021] NSWSC 453 established that an application made directly to NCAT without being considered and refused by the OC is legally flawed and will be dismissed.

Your application to the OC is a formal request for retrospective consent for the unauthorised works as they currently stand. This involves writing to the strata manager or secretary to have a motion placed on the agenda of the following general meeting.

It is important to note that if the strata committee unreasonably delays this process or ignores your request, it can be considered a “constructive refusal,” which may allow you to proceed to mediation and then to NCAT.

Assembling the Essential Evidence for Your Application

The responsibility to prove that the unauthorised works are safe, compliant, and pose no risk to the strata scheme rests entirely with the lot owner. A comprehensive, evidence-based submission is crucial, as it aims to de-risk the decision for the OC by providing professional assurance.

An application lacking sufficient evidence will likely be refused, and this refusal would be considered reasonable by NCAT.

A robust application package for your renovation should include a range of essential documents to build a persuasive case for obtaining approval:

Document / Report	Description & Purpose
“As-Built” Architectural or Construction Drawings	Professionally drawn plans accurately show the Owners Corporation precisely what was built.
Detailed Scope of Works	A written description outlining the work’s full scope, including the specific materials and methods used.
Contractor and Insurance Details	A list of all tradespeople and companies who performed the work, including their licence numbers and public liability insurance certificates.
Structural Engineering Report	Mandatory for any work involving altered or removed walls, certifying that the works have not compromised the building’s structural integrity.
Waterproofing Certificate	Essential for work in wet areas (e.g., bathrooms), confirming compliance with Australian Standard AS 3740.
Acoustic Engineering Report	Required for hard flooring installations to prove the system meets noise insulation standards in the National Construction Code (NCC).
Draft Common Property Rights By-Law	A professionally drafted by-law to formalise the approval and transfer ongoing maintenance responsibility to the lot owner.

Navigating the OC Meeting & By-Law Process

Securing the Correct Resolution for Your Unauthorised Works

To grant retrospective approval, the type of resolution required at a general meeting mirrors the one needed for obtaining permission beforehand. The classification of the renovation work under the Strata Schemes Management Act 2015 (NSW) determines the voting threshold the OC must meet.

There are two types of resolutions:

• Ordinary Resolution: This is required for a minor renovation. Approval is granted if a simple majority (more than 50%) of those present and entitled to vote are in favour. Occasionally, a strata committee can approve minor renovations if a specific by-law allows it.
• Special Resolution: This is necessary for any major renovation. To pass, no more than 25% of the value of votes cast can be against the motion. This higher threshold reflects the significant impact major works have on common property.

Major renovations, which include structural changes, waterproofing, or altering the external appearance of a lot, will always require a special resolution to be retrospectively approved.

Drafting a Retrospective Common Property Rights By-Law

For any major works, obtaining a special resolution is not enough. The approval must be formalised through a professionally drafted common property rights by-law. This legal document is essential for providing long-term certainty and properly allocating future responsibilities for the unauthorised works.

A simple note in the meeting minutes is insufficient because the by-law serves two critical functions:

1. To Grant Rights and Formalise Approval: The by-law provides the lot owner with the formal, ongoing right to have the altered common property remain in place.
2. To Transfer Responsibility: Crucially, it transfers the duty for all future maintenance, repair, and replacement of the altered common property from the OC to the lot owner who undertook the renovation.

This transfer of responsibility is a key condition for approval, as it ensures that the benefiting lot owner and all future owners of that lot bear the ongoing costs and risks. Additionally, the by-law should indemnify the OC against any loss or damage from the work to the common property.

The NCAT Pathway: When the OC Refuses Approval

Proving the OC’s Refusal was Unreasonable

If an OC refuses to grant retrospective approval, a lot owner can apply to the NCAT. The application is made under section 126(2) of the Strata Schemes Management Act 2015 (NSW), which allows the Tribunal to authorise works that have already been carried out if it determines the OC has “unreasonably refused to consent.”

The core of the NCAT application is to prove that the OC’s decision was unjustifiable. NCAT’s role is not to substitute its opinion, but to review the reasonableness of the OC’s decision-making process.

The Tribunal will consider several factors, including:

• The evidence that was presented to the OC when it made its decision
• The specific reasons the OC provided for the refusal
• The conduct of both the lot owner and the OC
• Any potential prejudice or negative impact on other lot owners or the common property

A thorough initial application to the OC is critical for this process. If a lot owner provides comprehensive expert reports proving the unauthorised works are safe and compliant, and the OC still refuses approval without a valid, evidence-based reason, there is a strong basis to argue the refusal was unreasonable.

Additionally, if the strata committee ignores a valid request or unreasonably delays calling a meeting, this can be considered a “constructive refusal,” which also provides grounds to apply to NCAT.

The NCAT Application & Hearing Process

Navigating the NCAT process involves a series of structured legal steps. It begins with compulsory mediation and can proceed to a formal hearing if the dispute is unresolved.

A crucial first step is compulsory mediation through NSW Fair Trading. Before most strata dispute applications can be filed, the parties must attempt to resolve the matter through this free service. An application to NCAT will be rejected without a certificate from Fair Trading confirming that mediation was attempted but was unsuccessful.

If mediation fails, the lot owner can lodge a “Strata and community schemes application” with NCAT. This is typically done online and requires paying an application fee. The application must clearly state the orders sought, such as under section 126(2) of the Strata Schemes Management Act 2015 (NSW), to authorise the completed works.

Once the application is accepted, the process generally follows these stages:

Stage	Description of Process
1. Listing and Notice	NCAT lists the matter for a hearing (usually within 4–6 weeks) and sends a notice to all parties. The OC must notify all other lot owners.
2. Directions Hearing	For complex cases, a brief initial hearing where a Tribunal Member sets a timetable for exchanging evidence and schedules a final hearing.
3. Final Hearing	Both parties present their case, provide evidence, and cross-examine witnesses in a judicial proceeding that is less formal than a court.
4. Decision	The Tribunal Member may deliver a decision on the day or “reserve” it for more complex matters, with a written judgment typically provided within 6 weeks to 3 months.

Finalising the Approval & Amending the By-Law

The Six-Month Deadline for Registering Your By-Law

After obtaining a special resolution from the OC or an order from the NCAT, the approval for your unauthorised works is not yet legally binding. A critical final step is the registration of the common property rights by-law.

There is a strict deadline for this action: the by-law must be registered with NSW Land Registry Services (LRS) within six months of the special resolution being passed. This timeframe is not flexible.

If the six-month deadline is missed:

• The resolution automatically lapses
• The retrospective approval becomes void
• The entire approval process is nullified

It’s important to understand that a by-law has no legal effect or enforceability until it is officially registered on the common property’s Certificate of Title. Consequently, if registration doesn’t occur in time, the lot owner must start over by seeking a new resolution at another general meeting.

Lodging the By-Law with NSW Land Registry Services

Registering a by-law is a formal legal process that must be completed electronically. As of October 2021, all changes to by-laws in NSW must be lodged through an Electronic Lodgement Network Operator (ELNO), such as Property Exchange Australia (PEXA). This modernised system means an OC cannot simply mail paper forms to the LRS.

To finalise the registration, the OC must engage:

• A subscriber to an ELNO (typically a solicitor or a licensed conveyancer)
• This professional prepares the electronic dealing
• They verify the necessary authorisations
• They lodge the consolidated by-law for registration

This requirement ensures the process is handled with the necessary legal diligence, but also adds a final layer of professional cost to be borne by the lot owner.

Costs & Timelines for Retrospective Approval

Cost Breakdown for Lot Owners

A lot owner seeking retrospective approval for unauthorised works must be prepared for various expenses. As the responsible party, you’ll bear all associated costs, which can accumulate quickly and often significantly exceed what you would have paid for obtaining approval before starting a renovation.

The primary expenses fall into several distinct categories:

Cost Category	Expense Item	Estimated Cost
Expert and Compliance Reports	Structural Engineer’s Report	$1,000—$2,500
	Acoustic Engineer’s Report	$800—$2,000
	Waterproofing Certification	$300—$800
Legal and Administrative Fees	By-Law Drafting (by strata lawyer)	$700—$2,000
	By-Law Registration (via PEXA)	$900—$1,200
	Extraordinary General Meeting (EGM)	$300—$800
Government and Tribunal Fees	NCAT Application Fee (individual)	Approx. $128
	NSW LRS Registration Fee	Approx. $176

Timeline from Application to Final Decision

The timeline for achieving retrospective approval varies dramatically depending on the OC’s cooperation and whether the matter proceeds to the NCAT.

In a best-case scenario, where the OC is cooperative, and a general meeting is already scheduled, the process might be completed in two to four months. This timeline includes submitting the application, passing the motion, and finalising the by-law registration.

However, a worst-case scenario involving a contested application that requires a full NCAT hearing can extend significantly, typically taking six to twelve months or even longer. This extended duration results from multiple stages in the tribunal process:

Stage in Contested Application	Typical Timeline
1. Mediation	Compulsory mediation with NSW Fair Trading typically takes 8 to 10 weeks to arrange.
2. NCAT Application and First Hearing	It generally takes 4 to 6 weeks for the matter to be listed for its first hearing after an application is lodged.
3. Evidence Exchange	Following a directions hearing, exchanging evidence can take another 4 to 8 weeks.
4. Final Hearing and Decision	After evidence is filed, a final hearing is scheduled. A reserved decision can take another 6 weeks to 3 months.

Conclusion

Legitimising unauthorised works in a NSW strata scheme requires a structured legal process, from applying to the OC with robust evidence to potentially seeking orders from the NCAT. Finalising the approval through registering a common property rights by-law is a critical last step to ensure compliance and formally transfer ongoing responsibilities for the renovation.

If you are facing the complexities of obtaining retrospective approval, contact PBL Law Group for trusted legal advice. Our experts specialise in strata law and can provide the tailored guidance needed to navigate the approval process, protect your interests, and achieve a successful outcome for your unauthorised works.

Frequently Asked Questions (FAQ)