Scarton and Scarton v Northern Territory of Australia - [2001] NTSC 117

Scarton & Scarton v Northern Territory of Australia [2001] NTSC 117
No. 173 of 2001 (20115144)
PARTIES:ANDRE SCARTON

AND
RINALDO SCARTON
v
NORTHERN TERRITORY OF AUSTRALIA

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  CIVIL
FILE NO:NO. 173 of 2001 (20115144)
DELIVERED:  21 DECEMBER 2001
HEARING DATES:  12 OCTOBER 2001
JUDGMENT OF:  ANGEL J
CATCHWORDS:
REPRESENTATION:
Counsel:
Plaintiffs:Mr P Barr
Respondent:  Mr D Fraser QC
Solicitors:
Plaintiffs:Hunt & Hunt
Respondent:  Solicitor for the Northern Territory
Judgment category classification:               C
Judgment ID Number:  ang200114
Number of pages:  12

IN SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
Scarton & Scarton v Northern Territory of Australia [2001] NTSC 117
No. 173 of 2001 (20115144)

BETWEEN:

ANDRE SCARTON
First Plaintiff

AND

RINALDO SCARTON
Second Plaintiff

AND:

NORTHERN TERRITORY OF AUSTRALIA
Respondent

CORAM: ANGEL J
REASONS FOR JUDGMENT
(Delivered 21 December 2001)

This is an application by the plaintiffs, who are registered proprietors of Sections 92 and 93 Hundred of Howard at Lake Bennett. As such registered proprietors, they are registered dominant tenant holders of an easement over Section 244 Hundred of Howard. Section 244 is the subject of a subdivision, and development in stages of a condominium development. Something of the history of the matter can be seen from related litigation: City Developments Pty Ltd v Registrar General of the Northern Territory (2000) 156 FLR 1; 135 NTR 1.

The plaintiffs seek declarations, first, that their estate and interest as easement holders over Section 244 Hundred of Howard is affected by the subdivision and development of Section 244, secondly, that their interest is affected by a proposal to extend the time for completion of the subdivision and the development in stages as a condominium development beyond that originally consented to by the Minister, and thirdly, that the plaintiffs are required to consent to any variation of the defendant’s approval of the subdivision and development of the land in question. The plaintiffs further seek injunctive relief restraining the responsible Minister or his delegate from approving any variation to the disclosure statement affecting their rights as registered easement holders over Section 244 Hundred of Howard, Lake Bennett.
The proposal for the subdivision and development of Section 244 was lodged with the Minister in January 1997, and was approved on 25 February 1997. A certified copy of the applicable disclosure statement was lodged with the Registrar-General on 3 March 1997. This disclosure statement provided that all units would be completed by 30 December 2001.
The developer has applied to the Minister under the Unit Titles Act for a variation of the Minister’s approval of the of the subdivision proposed in the disclosure statement, most particularly in regard to the date for completion of all the units.
Relevantly, s26J of the Unit Titles Act provides:
“s26J Variation of disclosure statement
(1) At any time after the completion of the first stage of a condominium development, the developer may apply to the Minister for a variation of the Minister’s approval of the subdivision proposed in the disclosure statement.
(2) An application under subsection (1) shall be accompanied by –
(a)a disclosure statement in the form required under section 26C indicating the manner it is proposed that the condominium development proposal be varied and the new proposal;
(b)a determination under section 52 of the Planning Act indicating the consent of the relevant consent authority under that Act to the proposal as varied; and
(c)the consent in writing, in such for as the Minister approves, of each proprietor of a unit in the condominium development.
(3)Subject to this section, an application under subsection (1) shall be dealt with by the Minister in the same manner as an application for the approval of the subdivision proposed in the original disclosure statement.”
S26C of the Unit Titles Act provides:
“26C Contents of disclosure statement
(1) A disclosure statement shall, on its first page, have printed the prescribed warning, in such a manner as is prescribed, and no other information other than the title of the condominium development.
(2) In addition to the warning referred to in subsection (1), a disclosure statement shall consist of –
(a)the documents required under section 11 to be included in an application under section 10(1) as if the disclosure statement were an application under Part III for the approval of the condominium development as a units plan;
(b)a description of the condominium development, and each proposed stage of the development, signed by or on behalf of the proposed developer;
(c)a location plan for each proposed stage of the condominium development and indicating construction zones, access zones and common property;
(d)a description of what use can be made of access zones and construction zones referred to in paragraph (c);
(e)a schedule of materials and finishes for all proposed stages of the condominium development;
(f)a schedule of units and of unit entitlement certified by a valuer on the completion of the condominium development and at the completion of each proposed stage of the condominium development;
(g)a schedule of commencement and completion dates for each proposed stage of the condominium development;
(h)a schedule of working hours in relation to the construction and development during the second and each subsequent proposed stage of the condominium development; and
(i)such other document, if any, as are prescribed.”
S11 of the Unit Titles Act provides as follows:
“S11 Documents to be included in proposals
(1) The proposals shall include –
(a)diagrams showing the manner in which it is proposed to subdivide the parcel and allotting to each unit a number;
(b)a schedule certified by a valuer specifying –
(i) in respect of each unit – the unit entitlement for that unit; and
(ii) the aggregate unit entitlement proposed for all the unit; and
(c)where the proposals provide for the erection or alteration of, or an addition to, a building – a copy of the plans and specification for the erection, alteration or addition.
(2) [Omitted]
(3) The proposals shall be accompanied by a document signed by all persons (other than the Crown) having an estate or interest in the parcel, being an estate or interest that is registered under the Land Titles Act, and whose estate or interest is affected by the proposed subdivision, indicating that those persons consent to the proposed subdivision.
It is the plaintiff’s submission that the reference to s26C in s26J(2)(a) invokes s11(3) of the Unit Titles Act and the requirement to obtain the written consent of all persons having a registered estate or interest in the parcel “whose estate or interest is affected by the proposed subdivision”. The document as required under s11, it is argued, is made a constituent part of a disclosure statement.
It is argued by counsel for the plaintiffs that their registered interest was affected by the original subdivision under the Unit Titles Act, involving both land subdivision and development of that land as a condominium development. Their interest is affected in that the land to which the unit proposals relate was within land subject to the plaintiff’s easement, and further and more practically, the land available to the plaintiffs for the exercise of their rights under their easements is reduced with the development and completion of each new structure.
Alternatively, it is argued for the plaintiffs that because the original approval was invalid in that the disclosure statement was incomplete, not containing the necessary written consents from the plaintiffs, there can be no lawful variation of such approval. It is submitted that the only way in which there can be such a lawful variation is if the written consent of the plaintiffs and the other easement holders is given to the disclosure statement as varied, in accordance with s9K Real Property (Unit Titles) Act.
The argument for the defendant against the relief sought is that as a matter of statutory interpretation, the consent of the easement holders is not required for a variation of the disclosure statement in respect of the condominium development. A number of reasons were advanced in support of this conclusion.
It was submitted that the context of the application is such that approval has already been given to a subdivision and its development in stages in a particular way. The way in which the land is to be held in future has already been changed by the original approval. The requirement under s26J(2)(a) is that the application be accompanied by a disclosure statement in a particular form, indicating the manner in which the condominium development proposal is to be varied, and because the reference is to the proposal itself, consents are not required. It was argued that there is no practical point in having the Minister approving part of a proposal that would have already been carried out, which would be the result of interpreting the requirements for a variation of a disclosure statement as including all documents required for the original application.
It was also submitted that because of the apparent two-fold nature of what is involved in relation to a variation of the Minister’s approval, namely subdivision and development in stages, that consent is not required. The basis of this argument is that a variation of the Minister’s approval is sought, and not a variation of the actual subdivision proposal. It was submitted that development in stages is not “subdivision” as contemplated by s11(3), and as such, it is only where there is to be a subdivision that affects a registered estate or interest in land that the estate or interest holders are required to consent. A variation of the date of completion is not “subdivision” for the purposes of s11(3), and further, the plaintiff’s interest is not affected because there is no “proposed subdivision” which affects it. The new proposal is unaltered from the initial proposal and as such, will not affect any estate or interest.
Further, s17 provides that any approval given by the Minister (under s15) is subject to a condition that “the erection or alteration of, or addition to, the building will be completed in accordance with the proposals…within such time as is specified in the approval or within such extended time as the Minister from time to time allows” It was submitted that this section indicates that the Minister can extend the time for building, and that there is not requirement for a registered estate or interest holder to consent to such an extension of time.
A further reason suggested by the defendants as to why consent of the plaintiffs is not required for a variation of the disclosure statement is the distinction between what the disclosure statement is to “consist of” under s26B, and the “form of” the disclosure statement as required by s26J. No separate form has been prescribed for the disclosure statement under the Unit Titles Act, though the contents of such have been prescribed by s26C. It was submitted that as provided by s28 of the Interpretation Act, strict compliance with the forms prescribed by or under an Act is not necessary. Such compliance as the circumstances of the particular case allow is sufficient. As such, the consent of the plaintiffs to the variation of the proposal would not be required for the Minister to be able to approve it.
Another reason submitted by the defendants as to why relief should not be given to the plaintiffs is that consent is not required under s7 of the Real Property (Unit Titles) Act. S7 requires the Registrar-General to register a units plan upon lodgement of an application and that is to include a written consent of every person having a registered estate or interest in the relevant parcel, and whose estate or interest is affected by the units plan. However, subsection 2 of the same section provides that consent is deemed to have been given if the units plan relates to a second or subsequent stage of the development, the first stage of which had been registered before the commencement of the Real Property (Unit Titles) Amendment Act 1998.
It was argued finally in the alternative that even if s26J should be construed as requiring the consent of registered estate or interest holders, then the Minister nonetheless has the jurisdiction to receive the application and consider it.
I am of the opinion that the consent of the plaintiffs and all other parties whose estate and interest is affected by the development is required for the purposes of varying the disclosure statement under the Unit Titles Act. It is clear, I think, from a reading of the Unit Titles Act s26J, that an application for a variation of the Minister’s approval is to be accompanied by a disclosure statement in the form required under s26C. The very terms of s26C, in turn makes it apparent that recourse is to be made to the provisions of s11, the use of the word “shall” in subsection 2 prescribing what is to be included in a disclosure statement.
I disagree with the first submission of the defendants, for the reason that it is a requirement under s17 that the proposals be completed on time. The power does exist under s17 fro the Minister to extend the time allowed for completion, though that extension of time is to be sought via a variation of the disclosure statement, which has its own prescribed process, as set out in s26J. It is for this reason that the fourth of the defendant’s submissions must also be rejected.
I also disagree with the second of the defendant’s submissions, that a variation to the Minister’s approval is not a variation of “subdivision” as is referred to in s11. S26C refers to the documents required by s11 to be part of the disclosure statement “as if” the disclosure statement were an application under Part III for the approval of the condominium development as a units plan. This would suggest that regardless of the wording of s11, the documents required by s11 (which is referring specifically to the documents required to be included in proposals) are required to be included in the disclosure statement by virtue of s26C. S11(3) is required to be complied with, even though it refers to “subdivision”, because that is the context in which s11 was drafted.
The third of the defendant’s arguments, that consistent with s28 of the Interpretation Act, there is no requirement to comply absolutely with a form as prescribed by an Act must also be rejected. I do not agree that the legislature could have intended to strip estate or interest holders of their right in respect of land subdivision and development. It seems only appropriate that if consent is required for the initial proposal under s26B, consent ought also be required if a variation is sought that may further affect a registered estate or easement holder’s interest.
I accept the submission made on behalf of the plaintiffs, that it has been to their advantage that the development has not been completed within time. This has benefited them in that a lesser portion of the land subject to their easement has been built upon, and as such a greater portion of land remains available to them to exercise their rights of recreation under the easement. An extension of time to allow completion of the development would affect their interest in that the land presently available to them would be significantly reduced. See, generally, Jones v Assef [1976] 1 NSWLR 467, Stevenson v Stephens [1990] 1 Qd. R 575 and Gaetjens v Arndale (Kilkenny) Pty Ltd [1969] SASR 470, on appeal, (1970) 44 ALJR 434.
As a result of the above conclusions, it is unnecessary to deal with the alternative argument put by the plaintiffs, or the alternative submission of the defendant, that even if consent of estate and interest holders be required under s26J, the Minister could nevertheless receive the application to vary the proposal and consider it, and effectively consent to it whether or not the plaintiffs have consented or the developer has complied with the letter of the Act. The Minister ought not be permitted to give his approval to a proposal that does not comply with statutory requirements and which will affect the rights of other land owners or interest holders without their consent.
I will hear counsel as to the appropriate orders.