The Owners - Strata Plan No 37762 v Pham

The Owners - Strata Plan No 37762 v Pham was a case heard by the Supreme Court of New South Wales, where the Owners of a strata scheme sought to challenge a decision made by the Consumer, Trader and Tenancy Tribunal (CTTT). The dispute centred around the validity of a development approval granted by a local council and the construction of a balcony by one of the owners, which was deemed to have been carried out without the necessary consent of the Owners' Corporation. The legality of the CTTT's jurisdiction in hearing the matter was also in question.

The primary legal issues that the court was required to decide were whether the development approval granted by the Council was void due to the lack of the Owners' Corporation's consent, and if so, whether retrospective consent could be obtained from the Owners' Corporation for the work already completed. Additionally, the court had to determine if the CTTT had the jurisdiction to hear the matter or if the dispute should have been resolved by another body, such as the NSW Civil and Administrative Tribunal (NCAT).

The Supreme Court held that the development approval granted by the Council was indeed void ab initio as it did not have the consent of the Owners' Corporation, as required by the Strata Schemes Management Act. The court further ruled that the Owners' Corporation could not provide retrospective consent for the work that had already been completed, as this would contravene the provisions of the Environmental Protection and Assessment Act 2001. Finally, the court determined that the CTTT did not have jurisdiction to hear the matter, as the dispute should have been brought before the NCAT. Consequently, the orders made by the CTTT were quashed.

In light of the above findings, the court set aside the orders made by the CTTT and directed that the matter be remitted to the NCAT for further determination. The court emphasised the importance of Owners' Corporations obtaining the necessary consent before lodging a development application with the Consent Authority (Council) to avoid similar disputes in the future.