When an owners corporation is faced with an ageing balcony that was added decades ago and is now expensive to repair, the temptation is often to ask a simple question: can we just remove it?
For many Committees, especially those trying to manage rising costs and limited budgets, demolition can seem like the most practical solution.
However, a tribunal case involving a long-standing balcony dispute shows why that approach can be risky and why owners corporations need to be careful about assumptions, process, and advice.
Key takeaways:
- Even without formal by-laws, unanimous agreement among original owners can legitimise alterations to common property.
- Owners corporation are generally responsible for maintaining and repairing common property, even if it was initially unauthorised.
- Owners corporation must follow proper procedures when making decisions about common property, including considering all relevant factors and passing valid resolutions.
Unapproved structures on common property: a situation many buildings face
In older apartment buildings constructed or altered in the 1960s and 1970s, it is common to find balconies, extensions, or other structures that were not part of the original strata plan.
In many cases, these changes were made when all apartments were owned by the same people, long before today’s strict approval processes and documentation standards.
Years later, when the structure begins to deteriorate, the question of responsibility inevitably arises. Committees often assume that if something was not formally approved, it must be illegal and therefore not the owners corporation’s problem. Unfortunately, that assumption is often where disputes begin.
The balcony dispute that went to the tribunal
In the case of Davenport The Owners – Strata Plan 536 [2018] NSWCATAP 301, an apartment owner challenged her owners corporation’s decision to demolish a balcony attached to her lot.
The balcony had been constructed around 1968, several years after the building was registered as a strata plan. Over time, the structure deteriorated and required substantial repairs. Faced with the cost, the owners corporation decided it would not repair the balcony and instead resolved to demolish it.
From the Committee’s perspective, this seemed reasonable. The balcony was assumed to be unauthorised, and removal was significantly cheaper than repair. The owner disagreed and took the matter to the tribunal.
Initially, the tribunal sided with the owners corporation and ordered the balcony to be demolished. However, that was not the end of the matter.
Tribunal findings: when “unauthorised” does not mean illegal
On appeal, the tribunal took a closer look at how and when the balcony was built.
At the time of construction:
- all apartments were owned by the same people
- those owners had the power to unanimously approve changes to common property
- formal by-laws were not always required under the legislation in force at the time
The Appeal Panel concluded that it was more likely than not that the owners unanimously approved the balcony when it was built.
As a result:
- the balcony was not an illegal structure
- it formed part of the common property
- the owners corporation became responsible for its upkeep
This finding overturned the earlier demolition order and fundamentally changed the owners corporation’s position.
What this means for Victorian Owners Corporations
Although this was a New South Wales case, the lesson is highly relevant for Victorian buildings.
Under the Owners Corporations Act 2006 (Vic), owners corporations have a clear duty to properly maintain and repair common property. Just as importantly, they are expected to act reasonably and follow proper decision-making processes.
In practice, this means that an owners corporation cannot simply rely on the belief that a structure was “never approved” to avoid its obligations.
Where historical consent is likely, particularly in older buildings, tribunals will look closely at the facts rather than assumptions.
Can an owners corporation decide not to repair or demolish?
The owners corporation argued it could refuse to repair the balcony due to cost and instead demolish it.
While the tribunal accepted that an owners corporation may decide not to repair certain common property, it made something very clear, process matters.
In this case:
- The owners corporation passed only an ordinary resolution
- It should have passed a special resolution
- The resolution failed to:
o formally determine that repair was inappropriate
o consider safety, appearance, and the owner’s right to use the balcony
Because of these failures, the decision to demolish was invalid.
Lessons for Victorian owners corporations and Committees
This case highlights mistakes we regularly see in Victoria:
- Assuming older structures are “illegal”
Historical approvals are often informal but still valid. - Making cost-driven decisions without proper advice
Saving money upfront can trigger far greater legal costs later. - Passing the wrong resolution
Incorrect resolutions expose owners corporations to disputes and invalid decisions. - Ignoring owners’ rights and amenity
Tribunals take owner impact seriously.
Getting the right guidance before problems grow with Change Body Corporate
Disputes like this rarely start at a tribunal. They begin with rushed decisions and assumptions made without proper guidance. By the time the issue escalates, costs rise, relationships suffer, and the owners corporation is left defending decisions that could have been avoided.
In our experience, this is usually a management issue, not a legal one.
If your Committee is facing ongoing disputes or unclear advice, it may be time to rethink your management approach. Contact Change Body Corporate for a confidential consultation and learn how we help owners corporations change management the right way.
