Northcott v The Owners – Strata Plan No 31143 [2020] NSWLEC 62

Northcott v The Owners – Strata Plan No 31143 [2020] NSWLEC 62

The approved plans, landscaping plan, continuous handrail and concrete upstand separating the terrace from the roof garden, absence of any gate or path, and dense landscaping showed that the roof garden was not designed for general use by occupants but only for landscaping and maintenance if at all. Ordinance 70 was therefore not engaged to require a protective balustrade around the roof garden, and the Owners Corporation was not in breach of the 1984 Consent incorporating the 1984 Building Permit. The challenged 2017 Consent conditions validly confined the balustrade to the terrace and maintained the roof garden as non-trafficable because they were imposed for planning purposes, fairly...

Jurisdiction
Australia
Judgment Date
29 May 2020
Procedural Posture
Class 4 Civil Enforcement Proceedings and Judicial Review Proceedings / Principal Judgment After Concurrent Hearing
Outcome
Both proceedings were dismissed.
Legal Topics
['development Consent Conditions' 'building Permit Compliance' 'protective Balustrade or Guard' 'roof Garden Access and Use' 'judicial Review of Council Decision' 'newbury Test' 'wednesbury Unreasonableness' 'procedural Fairness']
['environment and Planning' 'local Government' 'administrative Law' 'strata Schemes'] ['development Consent Conditions' 'building Permit Compliance' 'protective Balustrade or Guard' 'roof Garden Access and Use' 'judicial Review of Council Decision' 'newbury Test' 'wednesbury Unreasonableness' 'procedural Fairness']

Case Brief

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Procedural Posture

Class 4 Civil Enforcement Proceedings and Judicial Review Proceedings / Principal Judgment After Concurrent Hearing

Legal Issues

  1. 1 ['Whether the roof garden was designed for use by the occupants of the building so as to require a protective balustrade or guard under Ordinance 70 and the 1984 Building Permit.' 'Whether the Owners Corporation was in breach of the 1984 Consent incorporating the 1984 Building Permit.' 'Whether conditions A4, C4, G3 and I1 of Development Consent 266/17 were invalid under the Newbury principles or for Wednesbury unreasonableness.' 'Whether North Sydney Council denied the applicants procedural fairness by imposing the challenged conditions without consulting them.' 'If the challenged conditions were invalid, whether they were severable from the 2017 Consent.']

Ratio Decidendi

The approved plans, landscaping plan, continuous handrail and concrete upstand separating the terrace from the roof garden, absence of any gate or path, and dense landscaping showed that the roof garden was not designed for general use by occupants but only for landscaping and maintenance if at all. Ordinance 70 was therefore not engaged to require a protective balustrade around the roof garden, and the Owners Corporation was not in breach of the 1984 Consent incorporating the 1984 Building Permit. The challenged 2017 Consent conditions validly confined the balustrade to the terrace and maintained the roof garden as non-trafficable because they were imposed for planning purposes, fairly...

Court Disposition

Both proceedings were dismissed.

Orders

  • ['In proceedings 2018/00289697: The proceedings are dismissed.' "In proceedings 2018/00289697: Unless an application is made by notice of motion before 12 June 2020 for an alternate order, the applicants are to pay the Owners Corporation's costs of the proceedings." 'In proceedings 2018/00358115: The proceedings are...