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Owners - Strata Plan 37762 v Pham

Owners - Strata Plan 37762 v Pham

Case [2005] NSWLEC 500 13 September 2005

Development Consent

Common Property

Statutory Interpretation

Jurisdiction

Invalidity of Consent

Planning & Development Law

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Land and Environment Court

of New South Wales

CITATION:
Owners - Strata Plan 37762 v Pham and Ors [2005] NSWLEC 500

PARTIES:
APPLICANT
Owners - Strata Plan 37762
FIRST RESPONDENT
Ding Phuong Dung Pham
SECOND RESPONDENT
Kiet Luu
THIRD RESPONDENT
Liverpool City Council

FILE NUMBER(S):
40358 of 2005

CORAM:
Cowdroy J

KEY ISSUES:
Development Consent :- consent to development application for strata title unit - work undertaken on common property - whether consent of owners' corporation required - whether development application related to work on common property - whether consent invalid - discretion

LEGISLATION CITED:
Environmental Planning and Assessment Act 1979 s 78A(1), s79C, s 121B
Local Government Act 1993, Dictionary
Strata Scheme Management Act 1996, Dictionary
Strata Schemes (Freehold Development) Act 1973 s 5
Environmental Planning and Assessment Regulation 2000 cl 49, cl 50, cl 100(3), Sch 1 Pt 1 cl 1

CASES CITED:
Currey v Sutherland Shire Council and Ors (1998) 100 LGERA 365;
Greek Australian Finance Corporation Pty Ltd v Sydney City Council (1974) 29 LGRA 130;
Hillpalm Pty Ltd v Tweed Shire Council and Anor (2002) 119 LGERA 86;
Hillpalm v Tweed Shire Council [2002] NSWCA 332;
Motbey v Hollis and Anor (2003) 124 LGERA 227;
North Sydney Council v Ligon 302 Pty Limited (1996) 185 CLR 470;
Owners Strata Plan No 50411 & Ors v Cameron North Sydney Investments Pty Ltd [2003] NSWCA 5;
Somerville v Dalby and Ors (1990) 69 LGRA 422;
Twist v The Council of the Municipality of Randwick (1976) 136 CLR 106;
Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335

DATES OF HEARING: 12/08/2005, 29/08/2005

DATE OF JUDGMENT:

09/13/2005

LEGAL REPRESENTATIVES:
APPLICANT
P Tomasetti
SOLICITORS
Andreones Pty Ltd
FIRST AND SECOND RESPONDENT
C Norton
SOLICITORS
Woolf Associates
THIRD RESPONDENT
P Hudson (solicitor)
SOLICITORS
Marsdens Law Group

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Cowdroy J

13 September 2005

40358 of 2005

OWNERS – STRATA PLAN 37762
Applicants

DINH PHUONG DUNG PHAM
First Respondent

KIET LUU
Second Respondent

LIVERPOOL CITY COUNCIL
Third Respondent

JUDGMENT
Facts

1 Cowdroy J: The applicant (“the body corporate”) seeks a declaration that a development consent granted by the third respondent (“the Council”) to the first respondent in respect of a lot in strata plan number 37762 is invalid. The applicant also seeks orders requiring remediation of work carried out by the first and second respondents (collectively referred to hereafter as “the respondents”) pursuant to such consent.

2 The Council has filed a submitting appearance save as to costs.

3 By development application DA63/04 (“the DA”) made by the first respondent (“the owner”) to the Council on 2 July 2003 consent was sought for set up of a spray booth inside a factory unit at lot 5 in strata plan 37762, Riverside Road, Chipping Norton. The spray booth was required for use by the second respondent, as tenant, in his smash repairs business known as Bang Smash Repairs. A letter accompanying the DA referred to the need to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Owners - Strata Plan 37762 v Pham

Details

AGLC: Owners - Strata Plan 37762 v Pham [2005] NSWLEC 500
Case: [2005] NSWLEC 500
Decision Date: 09/13/2005

CaseChat Overview and Summary

Owners - Strata Plan 37762, the body corporate of a strata plan, sought a declaration that a development consent granted by Liverpool City Council to a tenant of one of the lots in the strata plan was invalid. The tenant had installed a spray booth within his factory unit and made modifications to the common property in order to do so. The body corporate argued that the consent of the body corporate was required to make a development application for work on the common property, and that the consent was therefore invalid. The tenant argued that the consent related only to the factory unit and not to the common property. The court held that the consent was invalid because it related to work on the common property which required the consent of the body corporate. The court also found that the parts of the consent relating to the common property could not be severed from the rest of the consent. The court granted a declaration that the consent was invalid and ordered that the tenant could not use the spray booth until a new consent was obtained. The court also ordered that the tenant reinstate the common property to its previous condition. The operation of these orders was postponed for three months to allow the tenant to make alternative arrangements for his business or to seek a fresh consent.

Orders