Owners Strata Plan No 50411 v Cameron North Sydney Investments Pty Ltd

This case concerned a dispute between Owners Strata Plan No 50411 (the Owners Corporation) and Cameron North Sydney Investments Pty Ltd (Cameron) regarding a development application for Lot 1 within a strata scheme. Cameron, the registered proprietor of Lot 1, sought to enclose a portion of the lot which was effectively used as common property. The purchaser of Lot 1 lodged a development application with the local council, which required the consent of the Owners Corporation. The Owners Corporation refused to consent, asserting its right to do so and its status as an "owner" for the purposes of the Environmental Planning and Assessment Regulation. The matter came before the Supreme Court of New South Wales.

The primary legal issues before the court were whether the Owners Corporation, as a body corporate, could refuse consent to a development application made by a lot owner, and whether the Owners Corporation was included within the definition of 'owner' for the purposes of the Environmental Planning and Assessment Regulation. A related issue was whether a previous decision in *Halpin v Sydney City Council* (2000) 110 LGERA 464, which held that an owners corporation must consent to a development application concerning a lot in its strata plan, was correctly decided.

The court considered the reasoning in *Halpin's case* and found it to be incorrect. It distinguished the present case from *Kirkjian v Towers*, where a party was ordered to consent to a development application as it was necessary for the exercise of a pre-existing right. In this instance, Cameron did not possess an equivalent right against the Owners Corporation that would compel its consent. The court also noted that the question of whether withholding consent constituted a "fraud on the power" or a "fraud on the minority" had not been fully argued.

The court ultimately refused leave to appeal on the specific point concerning the correctness of *Halpin's case*. The court indicated that *Halpin's case* was, with respect, incorrectly decided. The final orders reflected the refusal of leave to cross-appeal on that specific ground.