Erecting a pergola on private verandah in an apartment building

For a few years we own a unit (in an apartment block), and the unit has got a very large verandah (250 sq meters), being on the lowest residential floor of the building. Below us there are offices and parking garage (our floor is about 5m above the street level). All was OK until a few months ago, when a new residential building has been erected very close across the street (literally 15m or less) from the outside wall of our verandah. It is just so frustrating, we now completely lack any privacy (is so close you can actually hear the builders / workers fa*t or talking on their mobile phones from across the street!); plus it has considerably taken away any winter sun and also changed significantly the wind patterns into worse!

Anyhow, we came up with a viable solution: we would like to errect one or more pergolas on our verandah (just to be clear, this is our property, not common use by all the residents), so we can achieve privacy, minimise the wind guts (now it can almost lift 150Kg heavy plant pots like they are feathers(!), anyhow most of our expensive ceramic pots are now broken because of the strong wind guts pushing them down), and also protect ourselves in summer against the sun and mosquitos, ie to be able to get some reasonable use of the huge verandah, use that we haven’t been able to get until now.

One would have thought this should be easy, given that it will also improve the aesthetic appeal of the building (right now people on the upper levels are looking at a bare, desolating brick pavement, full of mould, etc): well, here is the story, we met with a significant amount of obstacles, from various sources:

1. We went to the Council and inquired what we need to erect a pergola: the local Town Planner indicated that, given the concept design we have shown, and because is more than 1m above the street level, we will need a DA submission to the Council, and in order to be able to do that, we need ExCo approval, and a whole lot of drawings, etc; this was confirmed on two separate occasions, as after the first meeting I adjusted the concept design based on the Town Planner’s feedback, so I went the second time with the new concept design and asked the same question again);

2. I asked for the ExCo approval (I am actually the Secretary of the ExCo, so is a more delicate matter for the ExCo), and explained what the Town Planner told me, and presented in detail the concept design, examples of pergolas, examples of materials used, etc; I got rejected on grounds that I do not have enough info on materials, design, structural details, construction standards, etc. I explained that approval from the Council is bound by all these, that I do not have all these at this moment, but if I get the ExCo approval, than I can embark into spending the money and getting and architect, builder, structural engineer (lots of money!) to prepare everything for the Council, as the Council will never approve my DA without all the t’s crossed, etc.

3. I went one step further, I actually got an architect to prepare some drawings, got a builder to come and give me a quote, done extensive research on-line to identify a nice pergola design, got the applicable materials and construction standards, etc, the “whole nine-yards”, and went back to the ExCo and presented all these => I got the approval to proceed to Council Approval! Out of 5 in the Committee, we were 3 at that meeting: the Chairman, a neighbour who is a former solicitor, and myself. From past discussions, it is clear that the former solicitor is quite envious that I have so much space and now I am looking to change that so I can actually use it, etc.

4. I write and send out the Minutes of that ExCo meetings, and here is what I got back as comments to the minutes, with the request to change the text of the Minutes according to her email:

– the lady who was a former solicitor: “We (nb, the ExCo) gave our support to the making of an application to Waverley Council for approval for a pergola for Unit XXX, tacit or otherwise…”; this was fine with me, I started to adjust the Minutes, when:

– 2 hours later, from the same, stating that she thought better about what she wrote in the first email, and this is actually what she wanted to say: “… accordingly gave our support to the concept of a development application to Waverley Council. At the time I reiterated that legal advice should be obtained as to whether the matter would also have to go to a general meeting of the Owners’ Corporation. On receipt of that advice, we should be able to progress the matter further.”

– another half an hour, and got a message from the Strata Manager stating that a bylaw is required; I answered back to that indicating that the Council Town Planner advised me that this, “being just a pergola”, requires only ExCo approval, and possibly an OK from my neighbour next door (sun-shading issues); he answered back stating that the Town Planner is wrong (!);

– half an hour later and the lady switched completely saying that “I accept the advice of today’s date of our Strata manager, “Joe Blog”; that a pergola requires a by-law. Strata law applies to strata buildings; planning law is applied to and by councils. These are separate legal regimes.
If you wish to progress the matter further, I suggest it is appropriate that it be placed on an agenda for discussion at an Executive Committee meeting”.

The Chairman is happy with the initial decision, and he continues to support my application.

Leaving aside the fact that this looks like a bad ping-pong game, and from an initial approval it changed into a rejection, I need to understand who is right and who is wrong.

Is a Bylaw required? in my application to the ExCo I already stated in writing that all the associated expenses, such as maintenance, repairs of any damage to the common property, insurance, etc will be entirely my responsibility, and I will use only builders / engineers with appropriate certifications and building insurance (at least $20Mil), they will work to minimise any disturbance to the building and neighbours, we will place all the materials straight from the street onto the verandah (with a crane), so as not to use the common areas for transporting construction materials, etc.

Lastly, I know that the legislation has changed in 2009 to reduce the burden for erecting structures such as a pergola, etc. But this being at a height of more than 1 m from the street level it does require Council approval.

So was the Town Planner right or the Strata Manager right?

Plus, how appropriate (or legal) it is to change a decision already made, in the way it was changed in my case?