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Development Application for Strata Common Wall Increase

There is a building that is constituted by Residential strata (28 units) and Commercial strata (2 offices and 2 retail shops).
Residential block and Commercial block face each other and have got shared walls between courtyards as per following figure:

Commercial Strata decided to enclose their courtyards (Courtyard 1 & 2 on the figure above). Enclosure would increase existing shared walls by 60 cm. Their floor level is lower therefore from their side it is about 25% increase, but from the Residential side it is about 40% increase:

Commercial strata owner sent a proposal for wall increase to Residential strata. Residential strata had a meeting and didn't consent to the proposed enclosures. A letter from Residential was sent to Commercial with "No" for proposed enclosures outlining the reasons.
Part of the proposed structure will encroach to private property - residential owners' courtyards.
Therefore written consent from the owners of either common wall or individual owners was not provided.

Commercial strata didn't respond anything, but lodged a Development Application (DA) to local council.
They commissioned some company to produce a Statement of Environmental Effects (SEE). That SEE was all in favour of Commercial strata and stated that there is no impact on adjoining properties.
That SEE was attached to DA.

Residential strata owners corporation and individual residential owners made several submissions against the DA.
The Council originally decided to approve the DA, but then organised an independent assessment panel. Some owners went to publicly address that panel against the DA. However the panel approved the DA.

According to Environmental Planning and Assessment Act 1979 (NSW) and Environmental Planning and Assessment Regulation 2000 (NSW) a DA needs to be either made by the owner of the land affected by the DA or any other person so long as the owner has provided consent in writing.
In the case above not only owners didn't provide consent, but explicitly provided no consent.

Following items come up in order to understand the problem:
  • The owners of the property must lodge the application. In this instances both strata's own the common wall so both owners consents have not been given.

  • The proposed development uses common property and also private property.

  • Failure to provide the proper owners' consent may have declared the development application invalid and void from the beginning. However Council still approved the DA.  
Now the questions:
  1. What could be the best way to stop the construction work to start? It looks like Commercial strata only respects the Council's decision and ignore's Residential owners.

  2. How to prevent these activities from Commercial strata in the future?

  3. How to make Council reject the DA as it seems invalid and to take responsibility? So it is easier for others who will be dealing with DAs in the future. 
Would be great to get some ideas.

Residential strata owners found that the wall belongs entirely to them. The letter has been sent to Council with the findings. Read the follow up:

Also have a look at my post regarding strata living and what to look at before and when you buy a strata unit.


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