A Strata Planning Approvals Refresher [NSW Edition]: 2024 Update
or, how to keep the planning approval genie in the bottle …
A Quick Take
Many things that happen in strata buildings need planning approval, usually from the local council. That’s no different to other property types, except that because there are multiple lots in strata buildings it happens more often, because there’s common property and lots it’s a bit more complex, and because of strata decision making rules there’s also an internal approval layer, So, here’s a simple[ish] refresher for NSW strata buildings about what needs planning approval, how it works [internally and externally], and some complications to help keep the strata approval genie in the bottle.
[a 10:30 minute read, with 2102 words]
The Full Article
INTRODUCTION
Like in all properties, things that happen in strata buildings sometimes need planning approval, usually from local council.
That includes new construction work, some repair works, changes to the building, new or different activities in common property and lots, and subdivisions and title changes.
But there’s often uncertainty about when planning approvals are needed, what for, who must get them and/or agree to them, and how to go about getting approval in strata buildings. And, the multiple ownership structure and split between common property and lots complicates things.
So, here’s how it all works in NSW strata buildings.
WHAT THINGS NEED APPROVAL
Two kinds of activities or work in strata buildings need planning approval: development and building activity. Sometimes the proposed activity or work needs both kinds of approvals.
Development
In the context of NSW planning approvals, development is broadly defined as the use of land, the subdivision of land, or the carrying out of any work on land. This covers a wide range of activities and changes to the built and natural environment including the following.
Construction of Buildings: The erection, alteration, or demolition of buildings and structures, including residential, commercial, industrial, and public infrastructure.
Land Use Changes: Changes in the use of property, such as converting residential property to commercial or industrial use, or vice versa.
Subdivision of Land: The subdivision of property into different title structures, including the creation of new titles.
Earthworks: Excavation, filling, or other disturbance of land contours that may impact the natural landscape.
Demolition: The demolition, dismantling or removal of structures or buildings.
Changes to the External Appearance: External modifications or renovations that alter the appearance of a building.
It's important to understand that even minor alterations or additions to existing structures may be considered development and require approval.
The kind of development that requires approval also depends on the planning rules that apply in the strata building location which are established by state government and local councils under State, Regional and Local Environmental Planning Policies and Development Control Plans.
Building Activity
Building activity specifically refers to the construction, alteration, demolition, or relocation of buildings and structures in both residential and commercial buildings. This can also cover various activities including the following.
New Construction: The erection of entirely new buildings or structures.
Alterations and Additions: Modifications to existing buildings, including renovations, extensions, or any changes that affect the structure.
Demolition: The dismantling or removal of buildings or structures.
Relocation: Moving a building or structure from one location to another.
Fit Outs: Interior modifications or installations within a building, such as partitioning, flooring, or internal infrastructure.
The kinds of building activity that require approval also depend on the planning rules that apply in the strata building location which are established by state government and local councils under Development Control Plans and environmental standards.
THE APPROVAL PROCESSES
So, development and building activities require appropriate approvals from the local council or an accredited certifier.
In NSW obtaining planning approvals involves several stages as follows.
Development Application Submission: Strata buildings and strata owners must submit a Development Application to the local council or an accredited certifier. The Development Application includes detailed plans and documentation outlining the proposed development, such as architectural drawings, environmental impact assessments, and other relevant information.
Council Assessment: The local council or certifier reviews the Development Application to ensure it complies with zoning regulations, local planning controls, and environmental guidelines. Public notification may occur, allowing nearby residents [including from within the strata building] to provide feedback or raise objections.
Council [or Certifier] Decision: The local council or certifier assesses the Development Application against relevant planning policies and decides whether to approve, refuse, or conditionally approve the application. There may also be specific conditions in the approval.
Appeals: Applicants or objectors have the right to appeal the local council's [or certifier’s] decision via the Land and Environment Court if they are dissatisfied with the outcome, whether it’s approval or refusal.
Construction Certificate: If the Development Application is approved involving building work, a Construction Certificate is also required before commencing works. This involves submitting detailed construction plans and specifications.
Building Construction: After the Construction Certificate is issued, building work can start, following the approved plans and any specified conditions.
Occupation Certificate: After development and/or building work is complete, the strata building or strata owner must obtain an Occupation Certificate to confirm that the building is suitable for occupation and complies with relevant building codes and standards.
COMPLYING DEVELOPMENT
There’s also a shortcut process for some kinds of development or building activity called complying development.
Complying development is a streamlined planning and building approval process in New South Wales that allows for faster approvals for straightforward and low-impact development and building work. This process is designed to provide a quicker and more efficient pathway for certain types of developments that meet specific predetermined criteria, as outlined in the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008.
Complying Development has the following key characteristics.
Predetermined Standards: Complying development must adhere to predetermined standards and criteria outlined in the State Environmental Planning Policy (SEPP). These standards cover a range of factors, including building size, setbacks, and environmental considerations.
Certification by Private Certifiers: Instead of obtaining approvals from the local council, complying development can be certified by accredited private certifiers. This reduces the need for lengthy council assessments.
Faster Approval Process: The complying development process is generally faster compared to a traditional Development Application (DA). In some cases, approvals can be obtained within a short timeframe, providing a more efficient option for certain types of developments.
Eligible Types of Development: Complying development typically applies to low-impact residential, commercial, and industrial projects. Examples include home renovations, small-scale commercial fit-outs, and minor industrial developments.
Strict Adherence to Standards: To qualify for complying development, the proposed project must strictly adhere to the specified standards. Any deviation from these standards may require a traditional Development Application.
WHEN IS STRATA BUILDING APPROVAL NEEDED?
The application of planning and building activity approval controls applies in slightly different ways in strata buildings and about when strata building approval is needed.
Section 4.11 of the Environmental Planning & Assessment Act 1979 says that a person may, subject to the Environmental Regulation, apply to a consent authority such as a local council for consent to carry out development.
Clause 49 of the Environmental Planning & Assessment Regulation 2000 says that a development application may be made by:
the owner of the land to which the development application relates, or
any other person, with the consent in writing of the owner of that land.
Therefore, the owner of the land to which a development application relates is given control over the making of the development application. The owner must either make the application or give written consent to the making of the application.
A strata building is the owner of the common property in a strata title scheme under section 28 of the Strata Schemes Development Act 2015. Therefore, the strata building must make, or consent to the making of, a development application concerning the common property. But it is not the owner of the other community lots.
As a result, the registered owner of the land for each strata lot is the person who must make, or consent to the making of, a development application concerning the lot.
This issue was considered concerning strata title in the NSW Court of Appeal decision in Owners – Strata Plan No. 50411 & Ors -v- Cameron North Sydney Investments [2003] NSWCA 5.
In that case, the NSW Court of Appeal considered whether an owners corporation was under any obligation to consent to a development application of a lot owner for building work to a lot, and a change in use of, the lot.
About the need for consent, the NSW Court of Appeal decided that where a development application relates only to a lot and does not affect common property, there is no need for a strata building to approve the development application. The strata owner can lodge the development application with the local council without the strata building’s approval [at paragraphs 155 and 163 per Heydon JA].
Conversely, if the common property is involved in development or building activity then the strata building must consent to applications for approval.
DOES A STRATA BUILDING HAVE TO APPROVE DEVELOPMENT OR CONSTRUCTION APPLICATIONS?
In Cameron’s Case, the NSW Court of Appeal also considered whether a strata building had any obligation to consent to a development application when that consent was necessary, saying that there was an obligation on strata buildings to consent to the owner’s development application in the Environmental Planning & Assessment Act 1979 and the Environmental Planning & Assessment Regulation 2000 [they were relevantly the same at the time] or under the Strata Schemes Management Act 1996 [which applied at the time].
A few years later, the NSW Supreme Court also considered the issue in The Owners – Strata Plan No. 37762 -v- Dinh Phuong Dung Pham [2006] NSWSC 1287, confirming that a strata building is not obliged to sign a development application submitted to it by a strata owner for building work which will affect the common property unless the owner has already been given permission to carry out the building work by the owners corporation via a by law or licence or there is a binding agreement for it to do so [such as under a contract or deed].
The NSW Supreme Court also said that the Consumer, Trader and Tenancy Tribunal
[now the NSW Civil and Administrative Tribunal (NCAT)] does not have the power to force a strata building to sign a development application submitted to it by a lot owner.
The NSW Supreme Court said that where a strata owner wants to do building work on the common property which requires local council approval, the strata owner should first get strata building permission for that work under a by law, licence or other agreement. If the strata building refuses to make the by law, grant the licence or agree and that decision is unreasonable, the strata owner can apply for orders for that refusal decision to be reviewed.
Then, if a by law, licence or other work order is made the strata building must sign a
development or building activity application because of the strata owner’s rights under the strata approval.
HYBRID APPROVAL SITUATIONS & DILEMMAS
Finally, many strata owners and strata buildings put themselves in a tricky hybrid position with development or building activity applications affecting common property by consenting to the application before making a by law, licence or other agreement.
That happens for a range of good and bad reasons including:
strata owners don’t want to go to the cost of getting strata building approval if the local council won’t approve the change in use or work,
strata owners are in a rush to get local council approvals started since they can take a long time,
strata owners pressure, coerce or trick the strata building to do so,
strata buildings avoid or defer confrontations [and disputed] that may result from forcing the strata owner to apply for a by law, licence or agreement, or
strata buildings don’t know what to do and/or are poorly advised.
Either way it can lead to problems if the strata owner gets local council approval but can’t later get a by law, licence or agreement approved by the strata building.
It’s arguable that the strata building can avoid those consequences by giving the consent conditionally [in other words by saying that whilst it consents to the application to local council], it may not ultimately approve the change in use or work.
But, that’s a bit like trying to put the genie back in the box.
As strata owners feel entitled to a later approval, local council approval bolsters the reasonableness of their proposed change in use or work, later refusals may be constrained and/or look biased, and, other strata lot owners who object will feel disenfranchised by the earlier consent.
CONCLUSIONS
Understanding how planning approvals work generally and in strata buildings is important basic knowledge when changes are occurring, but they’re also a bit trickier than in other kinds of property.
Plus, how and when a strata building should [and shouldn’t] consent to a strata owner’s planning application needs care to avoid letting the genie out.
February 06, 2024
Francesco …