Going Up When the Strata Building Says No

The Owners-Strata Plan No 53865 v JPG Investments Pty Ltd [2024] NSWCATAP 12

Quick Read

This 20204 decision by the NCAT Appeal Panel is about a dispute in a Bondi Junction commercial strata title building over a strata owner’s redevelopment proposal for the roof and airspace. One strata lot covered the 2 top floors and 20 m of airspace on the roof of this strata building, plus it had exclusive use of another 30 m of airspace above that under a by law. The strata owner wanted to redevelop those areas by adding 2 more storeys, needed a DA, and asked the strata building to consent as it involved common property. The strata building refused to consent and the dispute ended up at NCAT. The key issues were whether NCAT could order a strata building to consent a DA, what matters were relevant to that decision, and the effects of a DA consent. After considering the planning and strata laws and the decisions in The Owners-Strata Plan No 18229 v Jakabah Pty Ltd and Dehsabzi v The Owners Corporation – Strata Plan No 83556, the NCAT Appeal Panel decided that whilst a strata building was not obliged to consent to DA’s, NCAT could order it to do so under s 232(6) after considering all strata owners’ use of lots and common property. It also decided that a strata building’s consent to a DA didn’t bind strata owners or prevent them from objecting to the DA and also didn’t bind the strata building to later give any further approvals required for the development [like work approvals or by laws]. It also said that NCAT shouldn’t try to analyse DA’s as if it was a planning tribunal. So, the NCAT Appeal Panel ordered the strata building to consent to the DA. The decision extends NCAT’s approach over DAs after s 232(6) covering them started and clarifies how far such consents do, and don’t go, for strata buildings, applicant strata owners and opposing strata owners.

Implications

A DA involving common property must have strata building consent.
Strata buildings do not have positive duties to consent to DA’s when asked by strata owners.
But s 232(6) allows NCAT to order a strata building DA consent if it is refused.
When deciding disputes about DA’s, NCAT must consider strata owners’ use and enjoyment of their lots and the common property.
When deciding disputes about DA’s, NCAT can also consider other relevant matters.
When deciding disputes about DA’s, NCAT shouldn’t review the DA details as if it is a planning tribunal.

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Full Report & Case Details

This 20204 decision by the NCAT Appeal Panel is about a dispute in a Bondi Junction commercial strata title building over a strata owner’s redevelopment proposal for the roof and airspace.

This 4 storey 10 lot strata building contained a variety of businesses including a dry cleaner, florist, Thai restaurant, a gym and a nightclub.

One of the strata lots covered the 2 top floors of the building plus an airspace area on the roof that was 20 metres high. The strata lot also had a by law for the exclusive use of another 30 metres of common property airspace above it and the right to perform roof development works.

The strata owner wanted to redevelop their strata lot and the common property exclusive use airspace by adding two more storeys to the top of the strata building and submitted a Development Application to the strata building for its consent to the Development Application only.

Under the clause 49 of the Environmental Planning & Assessment Regulation 2000 and because of the NSW Supreme Court decision in The Owners – Strata Plan 50411 v Cameron North Sydney Investments Pty Ltd [2003] NSWCA 5, where a Development Application involves common property, the strata building, as the owner of the common property must consent.

The strata building refused to consent to the Development Application and the strata owner applied to NCAT for an order that the strata building do so.

The strata building argued that it did not have an obligation to consent to Development Applications, that the Development Application was formally inadequate or incomplete, and that the proposed redevelopment was not in the best interests of the strata lot owners. Both it and the strata owner relied on town planning and structural experts.

The key issues in the case were whether NCAT could make orders that a strata building consent to a Development Application, if NCAT could, what matters were relevant to that decision, and what the effect of a strata building’s consent to a Development Application was.

In making its decision the NCAT Appeal Panel reviewed the planning and strata laws and the decisions in The Owners-Strata Plan No 18229 v Jakabah Pty Ltd [2022] NSWCATAP 229 and Dehsabzi v The Owners Corporation – Strata Plan No 83556 [2020] NSWCATAP 142 and concluded …

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Keywords

#NSW #NCATAppealPanel #developmentapplication #consent #2024 #SSMA2015 #s232 #s232(6) #EPAR2000 #cl49