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(NSW) New by-law being proposed that ‘all lots must comply with the original Development Application conditions and approval’. In short this has come about because the antagonist has taken his concerns to Council and Council has advised him that it is not a matter Council would pursue.
Following the DA was a Construction Certificate and then a Strata Plan and then the sign off via an ‘occupation certificate’ issued by the private certifier. Along the way variations to the original DA were made at each of the above stages.
My argument is that a by-law cannot conflict with an existing law [being the Environmental Planning and Assessment Act (and Regs)]. What the by-law will do is shift the authority from Council to the Owners Corp to issue a notice of non-compliance, thus by-passing State legislation. Does anyone have any thoughts on this or have a similar by-law?
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I would be careful about the wording and perhaps change it to “current development controls” or something like that. However, if the work requires a by-law, you can cite the part of the law that you quoted about by-laws not superseding superior law, without requiring a separate by-law to do so.
Your next email or phone call should be to a strata lawyer.
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Actually, on further thought, you may better off having had this handed back to you instead of expecting council to run the case. You don’t want your building’s needs to get tangled up in the priorities of a bureaucracy that probably doesn’t even begin to understand what’s important to you. But I still don’t think you need a separate by-law. The rule on superior laws applies whether or not you have a by-law saying that.
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This is what the Flat Chatbot said when asked this question:
I wouldn’t assume a separate by-law is required—or that one would solve enforcement. Flat Chat reported a NSW case where an owners corporation used a by-law requiring owners to comply with a development consent; that by-law was declared invalid in that particular car-space dispute. It’s a useful caution, not a ruling on your renovation or a general answer about DA enforcement.
The NSW Government’s renovation guidance covers strata approval, but the sources I found don’t settle who can enforce the specific DA conditions here. Ask the council in writing to identify the relevant conditions and explain its position on enforcement. Given the potential cost and legal complexity, have a specialist strata or planning lawyer review the DA, the proposed work and any strata approvals before deciding whether to pursue a by-law or another route.
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