Welcome to the blog of NSW strata investigative journalism
| From: | SP52948 owner |
|---|---|
| To: | Russell Young BCS Strata Management, Bruce Copland, John Ward, Moses Levitt, Stan Pogorelsky, Maureen McDonald, Jeffery Wang |
| Subject: | REQUEST: Photos of BigAir facilities in the complex over long weekend and payments from townhouses |
| Date: | 2/10/14, 9:55 pm |
Hello,
Firstly, thank you for the phone call two days ago, in which Raine & Horne Strata Sydney confirmed that all townhouse owners who claimed water and gas reimbursements since 6 May 2013 (when the Special By-Law 13 was registered) will be sent invoices to pay back for expenses they could not legally claim.
On your side you had Miss Mallory Costen on the phone line and on my side I have three witnesses who I cannot disclose at the present time.
On the day of my visit to your office I will personally review the listing of owners who paid back (including the receipts). That is one of the items I requested in document search as per SSMA 1996 Section 108.
This is a good start but incomplete because the owners corporation lost around $160,000 in Admin Fund for water and gas reimbursements to selective townhouse owners who claimed it without Special Resolution and/or registered By-Law with the Department of Land in period 1998 to May 2013. In spite of myself raising it as a serious problem for the last four years, the actions started only when I caught EC and Raine & Horne red-handed for non-compliance with Special By-Law 13. Not only significant amount of money is missing from common funds, but also all those owners were unfinancial to vote or attend General Meetings and therefore made all those meetings void and invalid due to lack of quorum. As far as I am concerned, they only guilty parties are the Executive Committee and Raine & Horne Strata Sydney who misled owners into believing that they could make such claims. For the AGM 2014 Motions I will provide quotes that Mr. Peter Bone and single EC member sent to CTTT and in AGM notices for the last four years.
But that is an issue for the AGM 2014, along with many others I am preparing.
Back to the issue for today.
I have raised case with ACCC in regards to BigAir wireless service provider.
I gave chance to BigAir to respond to me directly and they failed even at the very basic steps that they had to comply with:
* Did not acknowledge my email within two working days,
* Did not assign a unique reference number or some other identifier that would ensure we could easily identify my complaint and its subject matter.
More very serious actions will follow.
Since Raine & Horne Strata Sydney and EC caused lot of financial damage in regards to this contract, and failed to act efficiently, I am taking things further.
Hence the request:
a) During this long-weekend I need to take photos in the MDF room (where telecom gear resides) and on the roof of Block C.
I took photos of these facilities in the past so I already have evidence from various periods.
Now I need them once more.
b) If it is easier for everyone, then caretaker's staff can take the photos (with datestamp) and send them to me electronically.
I do not need to emphasize that ignoring my request means you would be obstructing access to crucial evidence at the moment.
Executive Summary of the case sent to ACCC after failed communication with BigAir:
BigAir Group Ltd (BigAir) and its predecessor WHome wireless service provider failed to comply with the commercial agreement with Strata Plan 52988 from April 2004 until now:
1. Have not reimbursed owners corporation an amount equal to 5% of all income twice a year.
2. Since 15 November 2013 runs the business without any legal rights as original WHome contract was cancelled by the owners corporation officially.
3. Have not paid 10% interest on lost payments to owners corporation.
4. SkyNet Global failed to ensure all required certifications were provided to the owners' representative within five business days of completion of installation.
4. Currently, BigAir is:
* Not paying for electricity usage to owners corporation;
* Not paying for renting common property in the complex. In 2010, the owners corporation rejected Optus' proposal to rent common properly for small mobile tower in amount of $22,000 per year.
* Not serving the needs of the owners (there are no users who subscribe to BigAir services in the complex). The last one was the caretaker, who, according to the email exchange on 1 March 2013 and 22 August 2013 was instructed to move to another provider.
* Is illegally running business on the private property, in spite of clear order to leave premises on 31 January 2014.
Time-line of Major Events
1. Through sneaky and dishonest campaign, on 1 October 2003, a few members of the Executive Committee and the Strata Manager of Raine & Horne Strata Sydney persuaded owners to approve Special By-Law 7 that allowed the Executive Committee to enter into internet services contracts without decisions at general meetings.
2. The Special By-Law was registered in record time in the Land and Property NSW on 18 October 2003 .
3. On 15 November 2003, six members of the Executive Committee, without passing full details to 218 owners in the complex, entered into five-year contract with SkyNet Global to provide owners with broadband and home services.
That contract could had easily be left for approval at the Annual General Meeting month earlier, but it is now obvious why the Executive Committee and Raine & Horne Strata Sydney wanted to avoid it.
SP52948 entered into contract with WHome provider of internet for exclusive services to owners in the complex only. According to the contract signed on 15 November 2003, they were obliged to pay an amount equal to five percent (5%) of all income to owners corporation.
4. Since 2012, realising that no details of the payments were ever provided to owners over the years, I started requesting information about current status of the contract. To no avail. Raine & Horne Strata Sydney and the members of the Executive Committee (under strict guidance by the EC) avoided any scrutiny.
5. Things became more complex in 2013. I persisted with asking for proof of benefits of having your business running in the complex. Number of emails are in my possession to prove it.
6. 12 August 2013: Based on request from single EC member, caretaker disconnected power to BigAir equipment.
BigAir responded with threats and weak explanations about "their rights" to run the business.
7. 14 August 2014: Andrew from BigAir sent someone out to set up a new cabinet for the system on the rooftop of Block C.
7. 5 September 2013: BigAir tried to rush owners into a new contract, which was rejected by the owners corporation.
8. 1 October 2013: BigAir admitted that they did not have the original contract and were willing to enter into new contract.
Likewise, Raine & Horne Strata Sydney also claimed at the Annual General Meeting that "they lost" the original SkyNet Global contract. In fact, Raine & Horne Strata Sydney desperately tried to obtain it from SkyNet Global in email on 29 January 2013 and 8 August 2013.
9. 15 November 2013: BigAir notified about SP52948 accepting their repudiation and cancelling the original WHome contract, with strong warnings that all unpaid benefits had to be settled, along with 10% interest before any new negotiations occurred.
10. 15 January 2014: The amount offered by BigAir was rejected by owners corporation as grossly inadequate.
11. 31 January 2014: BigAir instructed to remove their equipment from the complex due to failed contractual obligations for 10 years. Big Air refused to comply so far.
Conclusion
1. BigAir occupies common property in Strata Plan 52948 without approval or contract.
2. One of the excuses BigAir tries to portrait is that their equipment is low-impact.
Most ordinary people do not know that low-impact is description for visual impact. The health impact and the power of the facility is not described by term "low-impact" at all..
For carriers seeking to install infrastructure, the general rule is that they need to obtain local government planning permission and comply with state and territory planning laws. However, carriers may install a limited range of facilities without seeking planning approval. The most common of these are low-impact facilities.
The determination defines where these facilities can be installed, based on location and zoning considerations. For example, a facility that may be otherwise deemed low-impact in a rural or industrial zone may not be low-impact if it is installed in a residential area.
Carriers seeking to inspect land, install a low-impact facility or maintain a facility must comply with Schedule 3 to the Telecommunications Act and with the Telecommunications Code of Practice. Schedule 3 specifies carrier responsibilities, including requirements to:
give written notice to landowners and occupiers, before the activity starts.
do as little damage as practicable and act according to good engineering practice, take all reasonable steps to ensure the land is restored to a condition similar to its condition before the activity began,
take all reasonable steps to ensure the activity interferes as little as practicable with the operations of a public utility,
maintain records about the type and location of certain facilities.
The Telecommunications Code of Practice imposes additional requirements on carriers, including requirements to:
comply with any standard or code registered with the ACMA,
ensure the design, planning and installation of the facility follow best practice and comply with ACMA or industry codes or standards,
give written notice to landowners and occupiers, specifying the purpose for which the carrier intends to engage in the activity and outlining the objection process, at least ten business days before starting the activity (including installation) or at least two business days before beginning an activity associated with inspection of land if no part of the land affected by the land entry activity is, or is included in, a sensitive area and engaging in the activity does not involve any material disturbance to the land when installing a low-impact facility between 10:00 pm and 7:00 am, make no more noise than allowed under the relevant state or territory law applying to similar activities,
take all reasonable steps to make use of existing facilities for the activity, and make reasonable efforts to cooperate with other carriers and public utilities undertaking similar activities on the same land to minimise inconvenience and damage.
This is obviously NOT what BigAir complied with.
3. Strata Plan 52948 has 218 lots, with many children of school age.
The Department of Education and Training adopts a policy of prudent avoidance by not endorsing the installation of any mobile telecommunications facilities on school or TAFE property.
https://www.det.nsw.edu.au/policies/administrative/asset_manage/mobile_ph/PD20050148.shtml
Although this policy applies to all schools and TAFE Institutes, it is of crucial importance for parents in high-density areas (buildings and houses) where lot of children live.
The Department of Education and Training supports objections, if appropriate, to proposals to establish mobile telecommunications facilities near school grounds and TAFE campuses and requests that telecommunications carriers locate these proposed facilities further away from Departmental sites.
While the Department cannot state a specific separation distance between a proposed mobile telecommunications facility and a school or TAFE campus, the Department has a preference for a distance of at least 500 metres from the boundary of the property.
4. The reluctance by BigAir to leave the complex can only be attributed to one logical explanation: BigAir is profitable in some other business running in the complex, of which owners do not know the full details yet. Otherwise, why would anyone be so eager to stay in the complex if they "only provide services to owners and nobody else"!?
5. There are so many Internet service providers now (at some point NBN too) and Strata Plan 52948 certainly does not need to waste owners money on letting a third-party company abuse their common property and funds.
6. So far, Grace Lawyers charged owners corporation $4,172.30 (GST inclusive) for attempts to remove BigAir from the complex (to no avail).