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Hello
we have purchased an apartment in a block of four in NSW. It is the top floor apartment. The common property at some point has been divided into exclusive use zones for each apartment. The bottom apartments have benefited from receiving about twice as much land – we don’t know anything about the decision making. The top floor apartment next to us has installed a balcony and recently requested to rebuild it. This was unanimously approved. When we met our new neighbours we mentioned we would like to also have a balcony for use and to match next door. We were informally told they would refuse it.
I am wondering if anyone is aware of any relevant NCAT decisions which relate to a similar issue? Would we have any chance of appealing the ox’s decision?
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The OC has to have a reason to refuse you building a balcony. So, taking into account that your neighbour has a balcony, and the OC is fine with them rebuilding it, then you have to ask why they would refuse you permission to do the same.
In the absence of a specific consideration that distinguishes your side of the building to your neighbours, e.g. that you building a balcony would compromise the structural integrity of the building/common property, then I would say you would have a very good chance of challenging any refusal. This is taking into account that you can’t rely on NCAT to be sensible.
Perhaps you could raise it again with your neighbours and ask them why they would refuse you permission.
In terms of the bottom apartments having the benefit of twice as much land, you need to look at the value of the lot as a whole, which can determine unit entitlements. The upper level apartments may have other benefits such as views which would contribute to their value. That said, if there has been exclusive use allowed to specific apartments, the increase in value of those apartments should have been taken into account at the time, with a view to whether the unit entitlements should be changed.
Ok – then if the issue is blocking of light, if you went to the Tribunal you would have to argue they are refusing permission notwithstanding permission was given when the same issue applies to your level. However, there has been a case that went to the High Court that dealt with a similar issue, and concluded it is not unreasonable to refuse permission if this would materially affect a property right (note this was a refusal to grant a common property right in Queensland).
Ainsworth v Albrecht [2016] HCA 40
Re entitlements – to clarify, I am talking about the lot entitlements recorded on the strata plan. If an owner has a property that is of greater value the lot entitlement will be greater, which means they pay more in strata levies and have a greater percentage of the vote on a poll. Usually where an owner is given exclusive use of a part of the common property you would expect to see the entitlements adjusted or some other form of compensation to the OC.
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