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The Owners Strata Plan 432 v Seddon

The Owners Strata Plan 432 v Seddon

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Land and Environment Court

New South Wales

Medium Neutral Citation: The Owners Strata Plan 432 v Seddon [2015] NSWLEC 69
Hearing dates: 20, 21, 22, 23, and 27 May 2014; written submissions 4, 6, and 10 June, 2014
Date of orders: 01 May 2015
Decision date: 01 May 2015
Jurisdiction: Class 4
Before: Sheahan J
Decision:
(1) The Court declares
(i) that the first and second respondents are carrying out or threatening to carry out works at 15 Crescent Street, Fairlight, being Lot 15 SP 432, in breach of the Environmental Planning and Assessment Act 1979; and
(ii) that Complying Development Certificate No CD56/10 issued by Manly Council on the 27th October 2010 to the first and second respondents is null and void and of no effect.
(2) The Court orders that the first and second respondents, by themselves, their employees, agents and contractors be restrained from carrying out any works in the northern part of Lot 15 Strata Plan 432 occupied by laundry and toilet facilities and/or in any common property associated with such facilities.
(3) Costs are reserved.
(4) All exhibits are returned.

Catchwords:
DEVELOPMENT CONSENT: deeming of a development consent from a building approval granted in 1962 – residential flat building with common laundry/toilet facilities – whether the owners of Lot 15 are entitled to a complying development certificate approving the removal of the common facilities and/or entitled to exclude other lot owners from using those facilities – whether the complying development certificate authorising those works is valid – failure to obtain “owner’s consent” from owners’ corporation – failure of Council to inspect before approval.

REAL PROPERTY: common facilities not depicted on registered strata plan – space occupied by the common facilities is shown as part of “Lot 15” – rectification.
RES JUDICATA: earlier proceedings brought by applicant in CTTT determined that the common facilities were located “wholly on Lot 15” – whether common property impacted by development – is applicant now estopped from asserting that “owner’s consent” was required in respect of complying development certificate authorising the removal of the facilities – whether decision of “Adjudicator” under the Strata Scheme Management Act 1996 can give rise to estoppel.
Legislation Cited: Building and Construction Industry (Security of Payment) Act 1999
Conveyancing (Strata Titles) Act 1961
County of Cumberland Planning Scheme Ordinance
Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment Regulation 2000
Environmental Planning and Assessment (Savings and Transitional) Regulation 1998
Interpretation Act 1987
Local Government Act 1919
Local Government Act 1993
Local Government (Amendment) Act 1951
Manly Local Environmental Plan 1988
Miscellaneous Act (Planning) Repeal and Amendment Act 1979
Real Property Act 1900
Strata Act 1961
Strata Schemes (Freehold Development) Act 1973
Strata Schemes Management Act 1996
Uniform Civil Procedure Rules 2005
Cases Cited: Auburn Council v Nehme [1999] NSWCA 383; 106 LGERA 19
Baiada v Waste Recycling and Processing Service of NSW [1999] NSWCA 139; 130 LGERA 52
Burgechard v Holroyd Municipal Council [1984] 2 NSWLR 164; 53 LGRA 346
Burwood…

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.

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Details

Case: [2015] NSWLEC 69
Decision Date: 01 May 2015

CaseChat Overview and Summary

In the matter of The Owners Strata Plan 432 versus Seddon, the Supreme Court of New South Wales addressed a dispute involving alleged breaches of the Environmental Planning and Assessment Act 1979. The plaintiff, representing the owners of Strata Plan 432, sought a declaration that the first and second respondents were in breach of planning regulations through the execution of works at 15 Crescent Street, Fairlight, Lot 15 SP 432. The plaintiff further sought a declaration that a Complying Development Certificate issued by Manly Council was null and void, along with an injunction to prevent the respondents from continuing or commencing further works on the property.

The primary legal issue before the court was whether the respondents' works at the specified property constituted a breach of the Environmental Planning and Assessment Act 1979 and if the issued Complying Development Certificate was valid. The court was tasked with interpreting the relevant sections of the Act and the conditions attached to the certificate. Furthermore, the court needed to determine whether the respondents had overstepped the boundaries of permissible development in the strata scheme.

The Court found that the respondents' works indeed constituted a breach of the Environmental Planning and Assessment Act 1979. The certificate issued by Manly Council was declared null and void due to non-compliance with the planning regulations. The Court held that the works were carried out in areas that were part of the common property of the strata scheme, which the respondents did not have the authority to develop without proper consent. Consequently, the Court issued an injunction preventing the respondents from continuing or commencing any further works in the specified areas. The Court's decision underscored the importance of adhering to planning regulations and the specific rights and responsibilities of strata owners and occupiers.

Orders

Orders of the court

(1) The Court declares

(i) that the first and second respondents are carrying out or threatening to carry out works at 15 Crescent Street, Fairlight, being Lot 15 SP 432, in breach of the Environmental Planning and Assessment Act 1979; and

(ii) that Complying Development Certificate No CD56/10 issued by Manly Council on the 27th October 2010 to the first and second respondents is null and void and of no effect.

(2) The Court orders that the first and second respondents, by themselves, their employees, agents and contractors be restrained from carrying out any works in the northern part of Lot 15 Strata Plan 432 occupied by laundry and toilet facilities and/or in any common property associated with such facilities.

(3) Costs are reserved.

(4) All exhibits are returned.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	The Owners Strata Plan 432 v Seddon [2015] NSWLEC 69
Hearing dates:	20, 21, 22, 23, and 27 May 2014; written submissions 4, 6, and 10 June, 2014
Date of orders:	01 May 2015
Decision date:	01 May 2015
Jurisdiction:	Class 4
Before:	Sheahan J
Decision:	(1) The Court declares (i) that the first and second respondents are carrying out or threatening to carry out works at 15 Crescent Street, Fairlight, being Lot 15 SP 432, in breach of the Environmental Planning and Assessment Act 1979; and (ii) that Complying Development Certificate No CD56/10 issued by Manly Council on the 27th October 2010 to the first and second respondents is null and void and of no effect. (2) The Court orders that the first and second respondents, by themselves, their employees, agents and contractors be restrained from carrying out any works in the northern part of Lot 15 Strata Plan 432 occupied by laundry and toilet facilities and/or in any common property associated with such facilities. (3) Costs are reserved. (4) All exhibits are returned.
Catchwords:	DEVELOPMENT CONSENT: deeming of a development consent from a building approval granted in 1962 – residential flat building with common laundry/toilet facilities – whether the owners of Lot 15 are entitled to a complying development certificate approving the removal of the common facilities and/or entitled to exclude other lot owners from using those facilities – whether the complying development certificate authorising those works is valid – failure to obtain “owner’s consent” from owners’ corporation – failure of Council to inspect before approval. REAL PROPERTY: common facilities not depicted on registered strata plan – space occupied by the common facilities is shown as part of “Lot 15” – rectification. RES JUDICATA: earlier proceedings brought by applicant in CTTT determined that the common facilities were located “wholly on Lot 15” – whether common property impacted by development – is applicant now estopped from asserting that “owner’s consent” was required in respect of complying development certificate authorising the removal of the facilities – whether decision of “Adjudicator” under the Strata Scheme Management Act 1996 can give rise to estoppel.
Legislation Cited:	Building and Construction Industry (Security of Payment) Act 1999 Conveyancing (Strata Titles) Act 1961 County of Cumberland Planning Scheme Ordinance Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Environmental Planning and Assessment (Savings and Transitional) Regulation 1998 Interpretation Act 1987 Local Government Act 1919 Local Government Act 1993 Local Government (Amendment) Act 1951 Manly Local Environmental Plan 1988 Miscellaneous Act (Planning) Repeal and Amendment Act 1979 Real Property Act 1900 Strata Act 1961 Strata Schemes (Freehold Development) Act 1973 Strata Schemes Management Act 1996 Uniform Civil Procedure Rules 2005
Cases Cited:	Auburn Council v Nehme [1999] NSWCA 383; 106 LGERA 19 Baiada v Waste Recycling and Processing Service of NSW [1999] NSWCA 139; 130 LGERA 52 Burgechard v Holroyd Municipal Council [1984] 2 NSWLR 164; 53 LGRA 346 Burwood…