The Bunker 2017 Pty Ltd v North Sydney Council [2019] NSWLEC 1365

The Bunker 2017 Pty Ltd v North Sydney Council [2019] NSWLEC 1365

The Court found that the works and use the subject of the development and Building Information Certificate applications were wholly within lots 148 and 167 and thus the owners corporation's consent was not required for the applications. Fixings and services reliance on common property did not, per authority, amount to works to common property requiring consent. The amenity, security, and waste management issues raised by the owners corporation were considered sufficiently mitigated by amended conditions and plan of management, and development consent was granted with limitations on hours and occupancy.

Parties
Applicant: The Bunker 2017 Pty Ltd; First Respondent: North Sydney Council; Second Respondent: The Owners – Strata Plan No 63731
Jurisdiction
Australia
Judgment Date
06 August 2019
Procedural Posture
Appeal / Principal Judgment
Outcome
Appeal upheld in part; development application approved; Building Information Certificate issued; modification application refused
Legal Topics
Development Applications, Building Information Certificate, Owners Corporation Consent, Strata Management, Residential and Commercial Amenity, Waste Management
Planning and Environment Law Strata Title Law Development Applications Building Information Certificate Owners Corporation Consent Strata Management Residential and Commercial Amenity Waste Management

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Parties

The Bunker 2017 Pty Ltd

Applicant

North Sydney Council

First Respondent

The Owners – Strata Plan No 63731

Second Respondent

Procedural Posture

Appeal / Principal Judgment

Legal Issues

  1. 1 Whether owners corporation's consent is required for a Building Information Certificate application in respect of works within a lot in a strata plan
  2. 2 Whether works that rely or encroach on common property require the consent of the owners corporation
  3. 3 Whether the proposal for use of a commercial lot as an office has an unacceptable impact on the amenity and security of the mixed-use building

Ratio Decidendi

The Court found that the works and use the subject of the development and Building Information Certificate applications were wholly within lots 148 and 167 and thus the owners corporation's consent was not required for the applications. Fixings and services reliance on common property did not, per authority, amount to works to common property requiring consent. The amenity, security, and waste management issues raised by the owners corporation were considered sufficiently mitigated by amended conditions and plan of management, and development consent was granted with limitations on hours and occupancy.

Court Disposition

Appeal upheld in part; development application approved; Building Information Certificate issued; modification application refused

Orders

  • Appeal is upheld.
  • Development Application No. 294/18 for use of lot 148 for office premises and lot 167 for car parking and bicycle storage is approved, subject to conditions of consent at Annexure A.