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  • #11294

    I am seeking to understand who has to give approval for lodgement of a development application with Local Council in NSW, or an application to amend a prior development approval.  The prior approval is the original approval for the strata complex to be constructed. We wish to only make chages to one lot, but it seems this may most easlily be able to be approved Council by ammending the origional development approval.

    So do we need the approval of the Body Corporate, and what type of meeting and resolution is required? to enable us to lodge application with Council on behalf of the Body Corporate.

    Thanks for any guidance available

Viewing 9 replies - 1 through 9 (of 9 total)
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  • #55898
    Jimmy-T
    Keymaster

    Planning approval is one thing. Anyone can pay the application fee and tick the boxes which inform the council that they either own the property or have informed the owner of the property (even if they haven’t).

    You’ve just reminded me of a story from years ago about a bloke who, as a joke, when his mate was abroad on an extended holiday, put in a planning application to turn the friend’s house into a pub. Hilarious … until the neighbours got notices from the council about the intended change of use and went collectively ballistic.

     

    • This reply was modified 1 month, 1 week ago by .
    #55895
    Austman
    Flatchatter

    Unless the law has changed you can take the following to the bank if the work is wholly within the lot.

    Or even outside the lot as my stratas have discovered.

    Planning approval is one thing.  Anyone can pay the application fee and tick the boxes which inform the council that they either own the property or have informed the owner of the property (even if they haven’t).

    And they might get council planning approval.

    But AFAIK, actually altering property that you do not own is still illegal.

     

    #55893
    Jimmy-T
    Keymaster

    Unless the law has changed …  the owner of a lot in a registered strata plan who applies to a consent authority for consent to carry out development wholly within the boundaries of that lot is not obliged to obtain and evidence the consent of the body corporate to the lodging of that application.

    Well, that was back in 2003, and we know that strata law has changed a lot since then (although those changes may not have affected cases like this one).

    Reading the case findings online, I’m struck by the fact that the trial judge chose to dismiss the findings of a previous case in a superior court, Halpin v Sydney City Council (2000).

    In the preamble, it is noted:

    In Halpin v Sydney City Council, Cowdroy J held that the owners corporation for a strata scheme is the owner which, pursuant to cl 49 of the EPA Regulation, must make or consent to a development application in relation to a lot in the strata plan, and that in the absence of the consent of the owners corporation a development application made by the registered proprietor of a lot in the strata plan does not comply with s 78A(1) of the EPA Act.

    Now, I’m no lawyer but it seems to me that the judge in this case decided that there was an error in judgement in the Halpin case and therefore its findings didn’t stand as an effective precedent in this case. Interestingly, lawyers from both sides went into the case saying they stood by the Halpin findings – it was the judge who had a problem with them.

    And ultimately, as the Hood reported, it was decided that the applicant did not need to provide permission from the owners corporation when they were applying for a DA to change their lot. It also seemed to establish that OCs should approve any “lawful” applications.

    However, there is a big difference between “must” and “should”. The ruling didn’t say that councils should ignore the wishes of an owners corporation when it came to the DA.

    Most councils have planning laws specific to their areas. City of Sydney, which has the highest concentration of apartments in Australia says on its Planning Portal website: “A development application is a formal request to build or modify your home or business site. Most development in the City of Sydney’s area requires approval.”

    The website goes on to say:

    When assessing an application, we consider: relevant planning controls and conditions; likely impacts of the development; suitability of the site; any comments and objections; the public interest.

    Elsewhere on the website it explains that most small developments are assessed by its planning department employees.  It’s only the really major or significant ones that go to the planning committee.

    What this all means is that, even if approval by the strata committee is not essential it could be critical if the council planning department is made aware of it.

    Take, for instance, a plan to renovate an apartment and change the room configuration which would result in the bathroom shifting so that it was above and below other apartments’ bedrooms. Most apartment reconfigurations require Development Approval from their local councils.

    Let’s assume that the renovator had complied with all the common property bylaws in terms of waterproofing and structure, so it was basically “lawful”.

    However, the strata committee might require a guarantee of improved soundproofing in the relocated bathroom to reduce noise disturbance at night. The renovator refuses and toddles off to the council with a DA application which, on the face of it, has ticked all the boxes but failed to get OC approval.

    Alerted by the committee to their concerns, you’d like to think a savvy council employee would insist on that being addressed before they approved the DA (which would be required if the rooms were being reconfigured).

    However, the problem seems to be that not all councils are good at letting apartment owners and committees know about applications that have been made for changes in their buildings.

    On several occasions in the past few years, I have been notified of proposed changes to a cafe or bar several streets away but heard nothing from the council about very substantial changes to apartments in my own block. It’s all about communication or the lack of it.

    So both The Hood and Scotland X are right.  If the law hasn’t changed, then “lawful” renovations within the bounds of an apartment, which don’t affect common property, possibly don’t require OC approval.

    However, if a strata committee refuses approval on reasonable grounds – and the planning department is made aware of it – it could make all the difference between a DA being approved or denied.

    There is another aspect to this.  If a judge in a lower court can choose to reject the ruling of a superior body, then everything is open to interpretation.  Also, councils can choose which of their own by-laws they want to enforce.

    For example, I believe most short-term lets in most apartment buildings in Sydney are still in breach of planning laws – the new short-term letting laws are still on hold – but try getting your local council to enforce them and you could spend a long and frustrating time getting nowhere.

    Once again, I am not a lawyer so if you are wrestling with these issues, you should approach someone who is.

     

     

    • This reply was modified 1 month, 1 week ago by .
    #55876
    The Hood
    Flatchatter

    Unless the law has changed you can take the following to the bank if the work is wholly within the lot.

    In Owners Strata Plan No 50411 & v Cameron North Sydney Investments Pty Ltd [2003] NSWCA 5 Heydon JA at para 163.
    163 On the true construction of the Environmental Planning and Assessment Act 1979 s 78A and the Environmental Planning Assessment Regulation 2000 clause 49, the owner of a lot in a registered strata plan who applies to a consent authority for consent to carry out development wholly within the boundaries of that lot is not obliged to obtain and evidence the consent of the body corporate to the lodging of that application.

    #27946
    Austman
    Flatchatter



    @scotlandx
    said:
    Any DA needs the approval of the owners in a general meeting, by ordinary resolution.  

    As an aside, we have had 2 x DAs (Planning Applications in VIC) passed by our council without even a “hello” from the council to the OC.  As the OC chair, I found out only by other means – eg by looking at the council website from time to time.  Smaller works don’t even need street advertising or neighbour letter box drops (at least in my council they don’t).

    Both DA/PAs altered common property on the outside of our apartment building.  In both cases the lot owner declared themselves to be the owner of the property to be altered.  The council approved both applications and issued permits.

    You’d think that councils should know better! (and a bit about common property in apartment buildings)  When I pointed out to our council that the applying owners were actually altering common property that they did not own, the council agreed that their applications were invalid.  But the council also informed me that regardless of that, the council approval of the works was still valid.  And that there were several court cases that had established that validity.

    So there it is.  Anyone can submit a DA/Planning Permit and if the council approves it, there can be a valid permit even on property you don’t actually own!

    Unbelievable but true. 

    It’s all probably fixable, but not without a fair bit of hassle for the actual owner (the OC in our cases).

    #27932
    scotlandx
    Strataguru

    A builder may tell you that works don’t require a DA, but he/she would, wouldn’t he/she.

    The question of a DA is separate from whether you require the approval of the OC – if the works require approval under section 110 or 111, then you need to have that. (unless as Jimmy says the owners have delegated power under section 110 to the Committee)

    The State Environmental Planning Policy (SEPP) Subdivision 26 determines whether something requires a DA.  If it falls within para 2.52, a DA is required. If it falls within para 2.51, you don’t need a DA.  I believe the OC is within its rights to say whether or not something falls under a certain category.

    Subdivision 26  Minor building alterations (internal)

    2.51   Specified development

    (1)  A minor internal building alteration for the replacement or renovation of:

    (a)  a doorway, wall, ceiling or floor lining, or
    (b)  a deteriorated frame member, including stairs and stairwells, or
    (c)  a bathroom or kitchen, or
    (d)  a built in fixture such as a vanity, a cupboard or a wardrobe, or
    (e)  an existing sanitary fixture, such as a grease trap or the like, or
    (f)  shelving or racking that is not higher than 2.7m, or
    (g)  a work station or counter,

    is development specified for this code if it is not constructed or installed on or in a heritage item or a draft heritage item.

    (2)  The installation of new or replacement insulation material in the ceiling, floor or wall of a building is development specified for this code.

    2.52   Development standards

    The standards specified for that development are that the development must:

    (aa)  not be an alteration to a food preparation area in food and drink premises, and
    (a)  if it is the replacement or renovation of a deteriorated frame member—be of equivalent or improved quality materials, and
    (b)  not include a change to the configuration of a room, whether by removal of an existing wall, partition or other means, and
    (c)  not cause reduced window arrangements for light and ventilation needs, reduce the size of a doorway or involve the enclosure of an open area, and
    (d)  not affect the load bearing capacity (whether vertical or horizontal) of a building, and
    (e)  not include a change to the fire resisting components of, or interfere with the entry to, or exit from, or the fire safety measures contained within, a building, and
    (f)  if it is the installation of new or replacement insulation material in a dwelling, it must be in accordance with Part 3.12.1 of the Building Code of Australia.

    #27928
    Jimmy-T
    Keymaster

    @steven strata said:
    So do we need the approval of the Body Corporate, and what type of meeting and resolution is required? to enable us to lodge application with Council on behalf of the Body Corporate.

    It depends how extensive the changes are but soomner or later you will need either Strata Committee approval (for non-major changes) — if your scheme has delegated these responsibilities to the committee – and by-laws from a general meeting for major changes.

    #27927
    Jimmy-T
    Keymaster

    A neighbour of ours pulled a real swifty on this.

    He wanted to remove one bedroom and extend his lounge so that he could “have room to have bigger parties”.

    In so doing his lounge room would now be above, below and adjacent to three neighbours’ bedrooms.

    This is exactly the kind of thing that DAs are specified for – changing the configuration of the layout of the unit.

    However, being prominent in the real estate industry, he had no trouble getting his builder to say that what he was doing was a “complying development” (requiring no DA).

    Once council had accepted that, the owners corp went along with it, wrongly (but understandably) assuming that everything must have been OK or the council wouldn’t have accepted it.

    To make matters worse, the estate agent is an a**hole – coming home at 12.30 am and cranking up the music to maximum volume – then gets very nasty if neighbours complain.

    When I pointed out to the mostly useless City of Sydney Council planning department that they should have blocked this right from the start, they said “take it up with the builder who signed off on the complying development”.

    Like that would do any good … 

    #27922
    scotlandx
    Strataguru

    Any DA needs the approval of the owners in a general meeting, by ordinary resolution.

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