Diverse Property Constructions' offer on Merewether right-of-carriageway

City of Newcastle has lodged a formal complaint with NSW Fair Trading in relation to an occupation certificate issued for the Acoya apartments development at 33-37 Llewellyn Street.

The council argues the property should not have been certified after a publicly-used easement on the edge of the land was blocked off with a wall and fire door.

The Herald reported in March 2023 the developer Diverse Property Constructions said the building had been constructed as per the conditions, including the preservation of a right-of-carriageway on the site.

They said "unimpeded access" was available to the council with a key provided to access the garage door.

"Public access to the site had never been contemplated or required under the easement that burdened the site," the developer said.

But City of Newcastle pointed to schedule 4A of the Conveyancing Act 1919, which said "full and free right for the body in whose favour this easement is created, and every person authorised by it, to go, pass and repass at all times and for all purposes with or without animals or vehicles or both over the land".

The council also claims the second floor above the carriageway isn't high enough.

The conditions of consent state a minimum height of 3.5 metres must be maintained over the right-of-carriageway.

A site inspection in January found the constructed minimum floor to ceiling clearance height over the easement was less than 3.5 metres.

"Height clearances were measured to be as low as 3.11m between structural elements of the building and 2.85m to the lowest service pipe extending below the first-floor structure," a report to council said.

The developer said the height discrepancy was identified in early stages of construction and council were made aware. They stood by the claim the approved plans and right-of-carriageway requirements had been adhered to.

"[The] council condition of consent does not state anywhere specifically that public access was ever a requirement and there are no provisions for public access, such as, any clear pedestrian paths, lighting, security, safety measures and as such, safety for the public can not be guaranteed by moving vehicles," Diverse Property Constructions said.

"The developer believes that they have taken every necessary measure to construct a building that meets council's approval and to meet the Building Code of Australia."

The council said it believed it had "a legal basis" to authorise public access through the site, but it would be hard to enact without demolishing part of the building.

"Achieving safe access could also adversely impact the new residents of the development, who are not responsible for the actions of the developer or the private certifier," it said.

Enforcing the access through litigation is also "unknown due to the variable nature of court matters" and "there is a substantial cost and time associated with such action and the end result may not be desirable from a public safety perspective or community expectation", council said.

City of Newcastle CEO Jeremy Bath said he met with the developer on March 28.

A Diverse Property Constructions spokesperson said the developer "understands the frustration that is being felt by all parties" and is working with council on an alternate solution.

"The developer has in principle offered to assist with the cost of construction and the creation of the easement," the spokesperson said.

The council approached NSW Fire and Rescue to seek alternative pedestrian access over the land at Merewether Fire Station next door, but the request was refused.

Mr Bath said council was still pursuing this avenue.

"There is still advocacy to be done in order to secure that easement over Fire and Rescue station land but we have a strategy ... which will involve myself, hopefully it will involve the state member for Newcastle, as well as the developers to get an outcome for the community," Mr Bath said.