Halpin v Sydney City Council
[2000] NSWLEC 218
•10/24/2000
Reported Decision: (2000) 110 LGERA 464
Land and Environment Court
of New South Wales
CITATION: Halpin v Sydney City Council [2000] NSWLEC 218 PARTIES: APPLICANT
RESPONDENT
Halpin
Sydney City CouncilFILE NUMBER(S): 10613 of 2000 CORAM: Cowdroy J KEY ISSUES: Development Application :- application for development of a lot within a strata scheme - owners corporation refusing consent - whether consent of owners corporation is required to constitute a valid development application pursuant to s 78A of the EPA Act - definition of ‘owner’ for the purposes of development LEGISLATION CITED: Environmental Planning and Assessment Act 1979, s 4, s 78A
Environmental Planning and Assessment Regulation 1994
Local Government Act 1919
Local Government Act 1993
Strata Schemes (Freehold Development) Act 1973
Interpretation Act 1987 s 34
Strata Schemes (Leasehold Development) Act 1986CASES CITED: Bluewater District Services Pty Ltd v Sutherland Shire Council (1997-1998) 97 LGERA 389 ;
Crawley v Sydney City Council (1997-1998) 98 LGERA 21;
Jeblon v North Sydney Municipal Council (1981-1982) 48 LGRA 113 ;
North Sydney Council v Lygon 302 Pty Limited (1996) 185 CLR 470DATES OF HEARING: 16/10/00 DATE OF JUDGMENT:
10/24/2000LEGAL REPRESENTATIVES:
APPLICANT
Mr S Austin QC with Mr J JohnsonSOLICITORS
David Hand SolicitorsRESPONDENT
SOLICITORS
Mr P McClellan QC
Abbott Tout
JUDGMENT:
IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESMATTER No. 10613 of 2000
CORAM: Cowdroy J
DECISION DATE: 24/10/00
Applicants
Respondent
Introduction
1. In these proceedings a preliminary question of law arises for determination.
2. By development application no D/00/00297 dated 31 May 2000 (“the development application”) made pursuant to the provisions of s 78A of the Environmental Planning and Assessment Act 1979 (“the EPA Act”), the applicants sought consent of Sydney City Council (“the council”) for a licensed restaurant and bar in respect of the premises located at 4/131 Macquarie Street, Sydney (“the site”) to include gaming areas. The site comprises a lot in strata plan no 52728 and is located on the ground floor of a building known as ‘Hudson House’. The remainder of the lots in strata plan no 52728 are used for commercial offices, professional offices and club premises.
3. Owners Corporation Strata Plan No 52728 being a body corporate constituted under s 11 of the Strata Schemes Management Act 1996 (“the owners corporation”) opposes the development application and does not grant its consent. Accordingly the council submits that the development application fails to comply with s 78A(1) of the EPA Act and reg 46 of the Environmental Planning and Assessment Regulation 1994 (“the Regulation”) because the consent in writing of the owner of the land, namely the owners corporation has not been submitted with the development application. The applicants submit that upon a proper construction of the requirements of the EPA Act and the Regulation the consent of the owners corporation is not required.
The legislative requirements
4. Section 78A(1) of the EPA Act provides:-
A person may, subject to the regulations, apply to a consent authority for consent to carry out development.
Regulation 46 of the Regulation relevantly provides:-
46 (1) A development application may be made:
(a) by the owner of the land to which the development application relates, or
(b) by any other person, with the consent in writing of the owner of the land to which the development application relates.
5. The term ‘owner’ is defined in s 4 of the EPA Act as follows:-
owner has the same meaning as in the Local Government Act 1993 and includes, in Division 2A of Part 6, in relation to a building, the owner of a building or the owner of the land on which the building is erected.
The term ‘owner’ as contained in Schedule 9 of the Local Government Act 1993 (“the 1993 LG Act”) is relevantly defined (“the current definition”) as follows:-
owner:
(b) in relation to land other than Crown land, includes:
(i) every person who jointly or severally, whether at law or in equity, is entitled to the land for any estate of freehold in possession; and
(ii) [not relevant]
(iii) in the case of land that is the subject of a strata scheme under the Strata Schemes (Freehold Development) Act 1973 or the Strata Schemes (Leasehold Development) Act 1986, the owners corporation for that scheme constituted under the Strata Schemes Management Act 1996, and
(iv) in the case of land that is a community, precinct or neighbourhood parcel within the meaning of the Community Land Development Act 1989, the association
(v) every person who by this Act is taken to be the owner; and
(d) in Part 2 of Chapter 7, in relation to a building, means the owner of the building or the owner of the land on which the building is erected.
- The provisions of Part 2 of Chapter 7 of the 1993 LG Act are not relevant for present purposes.
Prior authorities
6. The Court was referred to several authorities of this Court which had considered the meaning of the word ‘owner’. In Jeblon v North Sydney Municipal Council (1981-1982) 48 LGRA 113 Cripps J considered an application for development by the owner of a strata title lot in a building containing six strata style residential units. His Honour determined (at 119-120) that since the development application was not one involving any common property, the consent of the owner was not required pursuant to the provisions of s 77 of the EPA Act as it then existed. Such section required that development applications could only be made by the owner or with the consent in writing of the owner, ‘ of the land to which that development application relates’ . The words ‘owner’ as it then appeared in s 77(1) of the EPA Act referred to all persons who qualified as ‘owner’ as defined in s 4 of the Local Government Act 1919 (“the 1919 LG Act”). Such definition included a provision similar to sub-paragraph (b)(i) of the current definition but no equivalent provision to sub-paragraph (b)(iii) of the current definition relating to strata schemes existed.
7. The decision of Jeblon was adopted by Sheahan J in Bluewater District Services Pty Ltd v Sutherland Shire Council (1997-1998) 97 LGERA 389 at 396. Although the 1993 LG Act which contains inter alia sub-paragraphs (b)(iii) and (b)(iv) had then been enacted, the latter judgment contains no reference to the fact that the definition of ‘owner’ had been altered to the current definition. In Crawley v Sydney City Council (1997-1998) 98 LGERA 21, Talbot J at 27 found that the consent of the owner of the property was, ‘ not a requirement made by or under the Act relating to the proposed building works’. This decision related to a building application and Talbot J adopted the approach of Cripps J in Jeblon .
Effect of the LG Act 1993 definition
8. The current definition of ‘owner’ is substantially different when compared to the definition contained in the 1919 LG Act. Specific provisions now exist for the determination of an ‘owner’ where land or an interest therein is held in a scheme, whether it be a strata scheme as provided in sub-paragraph b(iii) or community scheme as provided in sub-paragraph (b)(iv) of the current definition. Parliament by virtue of the 1993 LG Act has provided that the incorporated body is the ‘owner’ in respect of land held under such schemes for the purposes of that Act.
9. During the Parliamentary debates concerning the interpretation preceding the enactment of the 1993 LG Act a document entitled ‘Exposure Draft Local Government Bill 1992’ was released by the Minister for Local Government and Co-Operatives and reference may be had to it pursuant to s 34(2)(e) of the Interpretation Act 1987. The definition of ‘owner’ contained therein was similar to that contained in s 4 of the 1919 LG Act and significantly did not contain the extensive changes which now exist in the current definition.
10. The applicant refers to the definition of ‘owner’ in the Strata Schemes Management Act 1996. In summary such definition relevantly refers to an ‘owner’ of a lot in a freehold strata scheme as a person ‘ being recorded in the Register as entitled to an estate in fee simple in that lot’. The applicant also has referred to the decision of the High Court of Australia in North Sydney Council v Lygon 302 Pty Limited (1996) 185 CLR 470 at 481 in which the majority judgment refers to the fact that the EPA Act is not concerned with the regulation of the private rights of ownership but with the physical use to be made of land as defined in the Act. However neither the definition of ‘owner’ as contained in the Strata Schemes Management Act 1996 nor the judgment of the High Court of Australia is pertinent. The question in issue is concerned solely with the definition of ‘owner’ in respect of a development application being made under the provisions of the EPA Act.
11. It might be submitted that sub-paragraph (b)(i) of the current definition applies to the present applicant as owner of the lot in strata plan no 52728 for estate of freehold in possession. Such construction however would ignore the specific provisions of sub-paragraph (b)(iii) of the current definition. In Smith v R (1994) 181 CLR 338 at 348 Mason CJ referred to the principle of construction which provides that in the event of a conflict between general and specific provisions of a statute the specific provision prevails.
12. Section 31 of the Interpretation Act 1987 requires an Act to be construed as operating to the full extent of, but not so as to exceed the legislative power of Parliament. Section 4 of the EPA Act declares that the term ‘owner’ has the same meaning as that contained in the 1993 LG Act. The latter Act specifically provides that the owners corporation is the ‘owner’ in respect of land which is the subject of the strata scheme. Since the land the subject of the development application is subject to such a scheme, the owners corporation is the ‘owner’ for the purposes of the 1993 LG Act.
The finding
13. It follows that pursuant to reg 46 of the Regulation the development application must be made by the owners corporation (reg 46(1)(a)) or with the consent of the owners corporation in writing (reg 46(1)(b)). In the absence of such consent, the application does not comply with the requirements of s 78A of the EPA Act.
14. The Court orders the exhibit be returned.
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