Monthly Archives: September 2011

Building and development – solving neighbourhood problems

As buildings age, particularly those that have had their repairs and maintenance neglected, strata communities might choose to redevelop all or part of the building to comply with fire and life safety orders and / or to remain functional and relevant in the current market. Knowledge of building and development process is required.

Similarly, when a neighbor is proposing a new building or a lot owner wants to do structural work, the building and development process becomes relevant to strata community life.

While each state and territory has their own building and development legislative regimes, the process is generally the same:

  1. Environmental plans set out the guidelines for development in a local area – watch for new plans in your area as everyone has a say before they are finalised;
  2. The general rule is that development approval is required from your local authority to erect, structurally alter, or demolish any building, including outhouses and sheds. Excavations and painting of heritage-listed properties also needs approval
    – remember if something does not require development approval, for example because it does not affect the structural integrity of the building, it may still require owners corporation approval under the by-laws;
  3. The subdivision of excess land also requires a development approval;
  4. High impact development applications will require advertising and objections might be lodged on the grounds of effecting views, overshadowing, privacy, encroachments, noise, possible parking problems and changing the streetscape or character of the neighborhood – if you are going up another level or two, the set back of the new floor will be relevant to the way the building looks from below.
  5. Development approvals will cost up to $200,000 for major works because they will require full-scale drawings and an array of experts reports and can take 9 to 18 months depending on the level of objections and the complexity of the issues. If building and development work is being undertaken to comply with fire and life safety orders, temporary measures may have to be taken to protect the safety of occupants and visitors pending the resolution of this often long and drawn out
    process; and
  6. The owners corporation is required to consent to any development approval application but the consent to lodging the application does not stop the owners from objecting to the application – try explaining that to the ‘naysayers’ at your owners corporation meeting!

Good consultants attuned to the special needs of strata communities can help you navigate this difficult area whether as the applicant or the objector.

Thank you for TEYS Lawyers for this Article

Developments for preliminaries in building defects claims

Owners Strata Plan 70579 v Midwest Constructions Pty Limited & Ors [2011] NSWSC 429

Obtaining adequate compensation for owners corporations in building defect matters is a specialised task.
In The Owners Strata Plan 70579 v Midwest Constructions Pty Limited & Ors the Supreme Court considered an owners corporation’s request to vary a referee’s report to make further allowance for superintendence fees, storage costs, protection of goods costs, a contingency allowance, an increased contract period and scaffolding.
Apart for the claim for the superintendence fees issues, where the owners corporation’s evidence was uncontested, the owners corporation’s arguments were rejected by the Court.  Those remaining issues are explored below:
Storage of courtyard topsoil fee:  The court found that the referee was correct to not allow this fee because there was no evidence that it could not be stored on site safely.  Perhaps, if the scheme had a structural engineer’s report to support the argument that the slab could not withstand the soil loading the referee or Court would of found that this fee would be recovered.

  1.  Protection of goods issue:   The owners corporation sought costs for moving and storing goods whilst works in the unit were undertaken.  The expert evidence from the defendants was that covers could be placed on the goods and that whilst some may need more protection than others an allowance should be made for that.  The referee made the allowance suggested by the owners corporation, but it wanted to subsequently change its position to seek a higher amount and was unable to do so.   Expert evidence to determine why and how goods should be protected and how to best protect those goods in light of the anticipated scope and duration should be carefully considered.
  2. Contingency:  A contingency allowance only of 5% instead of the 15% sought was allowed by the referee.
  3. Contract period:  The scheme sought an increased contract period which partially determines the cost of various items including scaffolding hire.   The owners corporation’s evidence on the required contract period was considered to be not transparent or testable.  The builder’s evidence was based on a construction programme with a critical path analysis prepared by an experienced builder and was preferred by the referee and the court.
  4. Mobile or standing scaffolding:   The referee and court found that the cheaper option of mobile scaffolding was to be preferred.  If the owners corporation had put on expert evidence that mobile scaffolding was not appropriate and that fixed scaffolding was, that outcome may have been different

This area of law is regularly evolving and the briefing  of experts and consideration of expert evidence is becoming more and more specialised.

Thank you to Bannermans Lawyers for this Article