Going Up When the Strata Building Says No
The Owners-Strata Plan No 53865 v JPG Investments Pty Ltd [2024] NSWCATAP 12
GoStrata’s CaseWatch is a short, sharp and easy-to-understand review of important and interesting Court and Tribunal decisions affecting Australian strata title stakeholders.
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
The key implications of this strata case are as follows.
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.