Owners - Strata Plan 37762 v Pham

[2005] NSWLEC 500

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 create an excavation in the floor of approximately 8.5 m x 4.5 m x 0.5 m and the refilling of the excavation with reinforced concrete to a depth of 200 mm. A plan accompanying the DA also showed a chimney and air inlet and outlet above the spray booth (“the vents”). It is an agreed fact that the concrete floor and the roof of lot 5 comprised part of the common property of strata plan 37762.

4 To enable its assessment of the DA the Council by letter dated 21 August 2003 sought further information and details concerning ventilation from the spray booth. In response the second respondent provided the requested information comprising data, description of ducting, filtration, pollution control measures, and plans showing that three penetrations through the roof would be necessary for the vents.

5 On 13 October 2003 the Council granted development consent to the DA subject to conditions (“the consent”) for the following use:

Construction of a spray booth inside a factory unit, subject to conditions.

Condition 1 provided:-

THE DEVELOPMENT
1. Development must be carried out generally in accordance with Development Application received 27 June 2003 and accompanying plans marked DA 63/04, except where modified by the undermentioned conditions.

COMPLIANCE WITH APPROVED PLANS
2. All aspects of the development shall comply with the approved plans and conditions.
3. Any variations to the approved plans and conditions of consent shall be subject to a further development application.

The approved plans referred to in the consent comprised the drawing originally submitted by the second respondent with the DA together with the plans provided in response to the Council’s request for further information. Such plans showing the floor penetration and vents were duly stamped by the Council.

6 The first and second respondents duly carried out the excavation and made the penetrations in the roof of the factory unit as contemplated in the DA. Such development in fact commenced prior to the grant of the consent.

7 Following the carrying out of this work, the body corporate complained to the Council that it had never approved of such work. The Council sought legal advice and was told that it had no jurisdiction to grant approval to DA 63/2004 in the absence of consent of the body corporate. Accordingly on 2 November 2004 the Council issued a notice of proposed order to cease the use of the spray booth pursuant to s 121B of the Environmental Planning and Assessment Act 1979 (“EP&A Act”). On 13 January 2005 the Council issued an order under that section. The owner appealed the order to this Court and subsequently by letter dated 21 March 2005 the Council revoked the order. Following the revocation of the order, the body corporate commenced these proceedings.

8 Several owners of lots in strata plan 37762 testified that they had suffered from effects of fumes and dust which had entered their premises. They attributed such effects to the activities conducted by the second respondent. They also testified that second respondent had parked vehicles awaiting repair within the grounds of the strata plan in spaces reserved for other owners. Another tenant testified that he had not been troubled by fumes but had been troubled by dust, although he did not attribute the latter to the second respondent’s business.

9 Lot 5 is the subject of existing consents granted by the Council. On 5 September 1990 the Council granted consent for motor vehicle panel beating and spray painting (in what is now lots 4 and 5) and on 19 May 1995 the Council granted consent for the use of lot 5 for panel beating and mechanical work.

10 Dinh Ky Pham, the father of the owner, deposed that his daughter purchased lot 5 in 1994. Both lot 4 and lot 5 were used as a smash repair business, and at some time between 1997 and 2003, the second respondent became the owner of such business.

11 In about June 2003 the second respondent informed Mr Dinh Ky Pham that he could no longer afford the rental for both lots 4 and 5 and an agreement was reached pursuant to which the second respondent would operate from lot 5 and that a spray booth would be installed in that lot.

Applicant’s submissions

12 The applicant submits that pursuant to s 78A(1) of the EP&A Act a development application must be made to a consent authority, subject to the regulations. Clause 49 of the Environmental Planning & Assessment Regulation 2000 (“the EP&A Regulation”) relevantly provides:-

(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 that land.

13 For the present purposes, “owner” has the meaning attributed to it in the Dictionary of the Local Government Act 1995, and relevantly 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) 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 A ct 1996 …

14 Clause 50 of the EP&A Regulation relevantly provides:-

(1) A development application:
(a) must contain the information, and be accompanied by the documents, specified in Part 1 of Schedule 1, and
(b) if the consent authority so requires, must be in the form approved by that authority …

15 Clause 1 of Pt 1 of Sch 1 relevantly provides:-

A development application must contain the following information:
(a) the name and address of the applicant,
(b) a description of the development to be carried out,
(c) the address, and formal particulars of title, of the land on which the development is to be carried out,
…
(i) if the applicant is not the owner of the land, a statement signed by the owner of the land to the effect that the owner consents to the making of the application
…

16 The Dictionary to the Strata Schemes Management Act 1996 includes the following definitions:

“lot”:
(a) in relation to a freehold strata scheme, has the same meaning as in the Strata Schemes (Freehold Development) Act 1973, and
(b) in relation to a leasehold strata scheme, has the same meaning as in the Strata Schemes (Leasehold Development) Act 1986.
“common property” means so much of a parcel as from time to time is not comprised in any lot.

17 The word “lot” is defined in s 5 of the Strata Schemes (Freehold Development) Act 1973 (“the Freehold Development Act”) as follows:-

“lot” means one or more cubic spaces forming part of the parcel to which a strata scheme relates, the base of each such cubic space being designated as one lot or part of one lot on the floor plan forming part of the strata plan, a strata plan of subdivision or a strata plan of consolidation to which that strata scheme relates, being in each case cubic space the base of whose vertical boundaries is as delineated on a sheet of that floor plan and which has horizontal boundaries as ascertained under subsection (2), but does not include any structural cubic space unless that structural cubic space has boundaries described as prescribed and is described in that floor plan as part of a lot.

Relevantly, subsection (2) defines horizontal boundary as “where any floor or ceiling joins a vertical boundary of that cubic space—the upper surface of that floor and the under surface of that ceiling ”.

18 “Floor plan” is defined in s 5 of the Freehold Development Act as follows:-

“floor plan” means a plan, consisting of one or more sheets, which:
(a) defines by lines (in paragraph (c) of this definition referred to as base lines) the base of each vertical boundary of every cubic space forming the whole of a proposed lot, or the whole of any part of a proposed lot, to which the plan relates,
(b) shows:
(i) the floor area of any such cubic space, and
(ii) where any such cubic space forms part only of a proposed lot, the aggregate of the floor areas of every cubic space that forms part of the proposed lot, and
(c) where proposed lots or parts thereof to which the plan relates are superimposed on other proposed lots or parts thereof to which the plan relates:
(i) shows the base lines in respect of the proposed lots or parts thereof that are so superimposed separately from those in respect of the other proposed lots or parts thereof upon which they are superimposed, and
(ii) specifies, by reference to floors or levels, the order in which that superimposition occurs.

19 The applicant submits that the development proposed by the owner necessarily resulted in a physical impact on the common property of the strata plan, namely by the excavation of the concrete floor and by the penetrations through the roof, which involved cutting holes through the roof to erect the vents (comprising a chimney 3 m above the roof and air inlet and outlet at roof level). Accordingly, the applicant submits that in accordance with the decision of the New South Wales Court of Appeal in Owners Strata Plan No 50411 & Ors v Cameron North Sydney Investments Pty Ltd [2003] NSWCA 5, the consent of the applicant was required and the absence thereof, the consent is void. At [163], Heydon JA stated:-

On the true construction of the Environmental Planning and Assessment Act 1979 s 78A and the Environmental Planning Assessment Regulation 2000 clause 49, the owner of a lot in a registered strata plan who applies to a consent authority for consent to carry out development wholly within the boundaries of that lot is not obliged to obtain and evidence the consent of the body corporate to the lodging of that application.

20 Alternatively the applicant submits that by failing to obtain the consent of the applicant, the owner denied the applicant the opportunity of making any submissions in respect of the DA. It submits that specific provisions of cl 50 of the EP&A Regulation are designed to ensure that a development application cannot be made on land which an applicant for consent does not own. Consent in writing is required to ensure that an owner of land is aware that the application is being made. The applicant refers to Twist v The Council of the Municipality of Randwick (1976) 136 CLR 106 at 109-10 wherein Barwick CJ referred to the common law rule that a statutory authority “having power to affect the rights of a person is bound to hear him before exercising the power”. Accordingly the consent is void because the applicant was not given the opportunity to make submissions in respect of development affecting the common property.

21 The applicant submits that relief by way of remediation should be ordered if the consent is found invalid. As to the issue of discretion, the applicant relies upon the observations of Kirby P in Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 at 339-41 and upon Somerville v Dalby and Os (1990) 69 LGRA 422. In the latter decision, where Hemmings J observed (at 433):-

A successful applicant who establishes a breach of the public law is usually entitled to an injunction to remedy or restrain such breach.

Respondents’ submissions

22 The respondents submit that the DA was made in respect of lot 5 and approval has been granted for development with respect to that lot. The consent was sought and granted for the set up of the spray booth “inside a factory unit”, being lot 5. The alterations to the roof and floor of the common property did not comprise part of the DA and no development consent was granted for any part of the common property. The further information was provided to the Council following its request by letter dated 21 August 2003 solely for the purpose of assessment of the DA under s 79C of the EP&A Act.

23 In support of their submission, the respondents rely upon North Sydney Council v Ligon 302 Pty Limited (1996) 185 CLR 470 at 481, where the Court said:

The development application in the instant case is for consent only to a development to be carried out on the Club site. The development application relates solely to the Club site. The use of the Century Plaza land to give access to the Club site is an existing use and, unless that use be intensified, no question of consent to a development to the Century Plaza land will arise. It may be expected that the use will be intensified but it does not follow that the prospect of intensification makes the application already lodged by Ligon invalid for want of the consent of Century Plaza. The prospect of intensification of use is capable of affecting the discretion to grant or refuse Ligon’s application, but that is a different problem.

24 The respondents also rely upon the decision of the New South Wales Court of Appeal in Currey v Sutherland Shire Council and Ors (1998) 100 LGERA 365. Stein JA at 367 said:-

What was the subject matter of the development application? When this is examined, it is abundantly clear that it is the subdivision of lot 4 into three lots. The development application did not encompass lot 1, nor did the Council grant consent to carry out development on lot 1.

25 The Court has been referred by the respondents to Hillpalm Pty Ltd v Tweed Shire Council and Anor (2002) 119 LGERA 86; Hillpalm v Tweed Shire Council [2002] NSWCA 332 and Motbey v Hollis and Anor (2003) 124 LGERA 227.

26 The respondents alternatively submit that if the consent applied to common property, the Court could sever those parts of the consent which applied to the common property, as considered in Greek Australian Finance Corporation Pty Ltd v Sydney City Council (1974) 29 LGRA 130.

27 Additionally, the respondents submit that if the Court finds the consent to be invalid, the Court would exercise its discretion in favour of the respondents. The respondents referred to proceedings currently before the Consumer Trading and Tenancy Tribunal brought by them against the body corporate seeking an order that the body corporate grant approval to the installation of the spray booth. The respondents claim that such consent is being withheld unreasonably and that the applicant delayed in instituting these proceedings.

Findings

28 Provided the development did not extend beyond lot 5, the “set up a spray booth inside a factory unit” did not require the approval of the body corporate: see Cameron North Sydney Investments. The issue for determination is the scope of the DA made to the Council.

29 In Ligon, the applicant sought approval to develop land by extending existing club premises and adding a residential building. The only access to such land was across an adjoining parcel of land which was owned by a body corporate known as Century Plaza. Consent to the development application was granted without the approval Century Plaza. The Court determined that the council could grant development consent for the development on the applicant’s land and stated (at 477):-

Although related developments on adjoining parcels of land may each require consent before they are carried out, each development is on its own parcel of land and any necessary consent must be sought by a development application that relates to that parcel – not to the adjoining parcel.

30 This decision was followed in Currey v Sutherland Shire Council where the Court of Appeal considered the identification of land to which a development application related. The development application proposed the subdivision of land. In granting consent, the council imposed a condition requiring work to be done on an access which was not owned by the applicant. Stein JA at 367 observed that although such condition required work on adjoining land such land did not form part of the development application. Accordingly the consent was valid.

31 Subsequently in Motbey the Court said:-

The decisions in Ligon and Hillpalm establish that if a condition of consent requires some act or permission which affects land other than that referred to in the development application, it does not affect the validity of the consent. It merely has the consequence that the consent cannot be acted upon until such condition is fulfilled.

32 It is the clear from the above authorities that the terms of the development application will identify the land for which development consent is sought. However, the identity of the land is not only revealed by the address shown on the prescribed form. If the development application reveals that an essential part of the proposed development extends to other land, then that other land is also the subject of the development application. As noted by the High Court of Australia in Ligon (at 476):-

When a development application is made for consent to a specified development, the land to which the application ‘relates’ must therefore be the land on which the specified development is proposed to be carried out.

33 In the present case the excavation and creation of the vents necessarily involved work being performed beyond the boundaries of lot 5. The question is whether this aspect of the work was applied for as part of the DA.

34 In the Court of Appeal’s decision in Hillpalm, Meagher JA said:-

What land an application “relates to” must primarily, if not exclusively, be determined by an examination of the terms of the application itself, which, of course, is a written document.

35 The DA nominated the address of the property on which the work was to be carried out as lot 5/52 Riverside Road, Chipping Norton. However the plans accompanying the DA showed the vents and the excavation of the floor, all of which were located on common property. These plans were specifically incorporated in the DA, by express reference in the prescribed form. Further detail was supplied to Council in response to its request of 21 March 2005 which elaborated upon the proposal to excavate the floor and install vents through the roof.

36 The floor excavation and the vents comprised an integral part of the development for which consent was sought since both were essential features of the operation of the spray booth. The plans showing these parts were stamped by the Council pursuant to cl 100(3) of the EP&A Regulation. Those parts of the development were clearly intended to form part of the DA in contrast to the development applications in Ligon, Currey, Hillpalm and Motbey.

37 In Hillpalm, Hodgson JA, agreeing with Meagher JA, considered the application in the prescribed form and said:-

There was nothing in the application or accompanying documents inconsistent with this identification; and in those circumstances it could not possibly have been contended by the respondent that consent to that application amounted to consent to carry out any work on Lot 2.

38 In the present case, the identification of lot 5 in the DA as the sole location of the works is inconsistent with the scope of the proposed development. The DA, properly construed, proposed development of both lot 5 and the common property. The Court rejects the submission that the DA did not include development on the common property.

Council’s power to grant consent

39 In view of the above finding, the DA involved a physical impact upon the common property and as such required the consent of the body corporate of strata plan no 37762. In the absence of such consent the Council had no power to grant consent to the DA: see Cameron North Sydney.

40 It follows that the purported grant of the consent was ultra vires the power of the Council and is therefore invalid.

Severability

41 As the Court has found above, the vents comprise an integral part of the DA. These structures did not result from conditions of consent, but formed part of the DA for which consent was granted. In these circumstances severance is not available. The spray booth without these structures would be tantamount to a different development, and one which was never considered by the Council.

Discretion

42 The Court has been referred to the principles in Sedevcic at 339-41 and takes them into consideration in the determination of the relief which will be awarded by the Court.

43 The Court has considered the respondents’ submission of laches but rejects the submission that the applicant is disentitled to relief on this ground.

44 The applicant has submitted that on the basis of the evidence of complaints by owners of adjoining lots, the Court would not exercise its discretion in favour of the respondents. On the evidence before the Court, the Court cannot be satisfied that the complaints by the owners of adjoining lots in the strata plan are attributable to the operation of the spray booth. Although the Court accepts that problems have been experienced by the applicant’s witnesses, the evidence as to the source of those complaints is inconclusive. The Court is not satisfied that such complaints necessarily result from activities carried out under the invalid consent.

45 Prior to the installation of the spray booth, lot 5 held the benefit of existing approvals for the purpose of motor vehicle panel beating and spray painting, a use which had continued since 1990. On 19 May 1995 approval was granted by the Council for the use of those premises for “panel beating and mechanical work”. Accordingly such uses may continue lawfully. The spray booth, however, cannot be used lawfully without a fresh consent.

46 Whilst there is no evidence of any commitments made by the second respondent concerning work in progress which may involve the use of the spray booth, the Court considers that a reasonable period should be allowed to enable the second respondent to make alternative arrangements for the conduct of his business or to seek a fresh consent. For these purposes the Court will make an order restraining the use of the spray booth but postpone the operation of such order for a period of three months.

Orders

47 The Court makes the following declaration and orders:

1. Development consent DA63/04 granted on 13 October 2003 by Liverpool City Council in respect of lot 5 in Strata Plan No 37762 is declared invalid.
2. The first and second respondents and each of them be restrained from using the spray booth within lot 5 in Strata Plan No 37762 without consent being lawfully obtained from Liverpool City Council.
3. The first respondent reinstate those parts of the common property which were altered pursuant to development consent DA63/04 to their condition extant prior to their alteration.
4. The operation of order 2 is postponed until 9 December 2005 and the operation of order 3 is postponed until 9 January 2006.
5. Unless a contrary order is sought by 9 December 2005, the first and second respondents pay the applicant’s costs of these proceedings.
6. The exhibits be returned.

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