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The Owners - Strata Plan No. 4983 v Canny

The Owners - Strata Plan No. 4983 v Canny

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Case Copied 21 November 2018 58 min read

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Court of Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: The Owners - Strata Plan No. 4983 v Canny [2018] NSWCA 275
Hearing dates: 27 July 2018
Date of orders: 21 November 2018
Decision date: 21 November 2018
Before: McColl JA at [1], Payne JA at [2], Emmett AJA at [94]
Decision:
(1)   Appeal allowed in part;
(2)   Set aside orders 2 and 3 made by the primary judge on 1 March 2018, in respect of the respondents’ claim below;
(3)   Set aside orders 2 and 3 made by the primary judge on 1 March 2018, in respect of the appellant’s cross-claim;
(4)   Notice of appeal otherwise dismissed;
(5)   Notice of cross-appeal dismissed;
(6)   Order that the appellant pay the respondents the costs of the appeal and the cross-appeal as agreed or assessed and that such costs be paid from a levy raised from the owners of lots in Strata Plan No. 4983 other than the respondents or any of them.

Catchwords:
ENVIRONMENT AND PLANNING – Jurisdiction of Supreme Court – whether engaged – Exclusive jurisdiction of Land and Environment Court

ENVIRONMENT AND PLANNING — Development Consent — Conditions – whether use of parking lots by “occupants” precluded non-resident owners of parking lots from using their lots

ENVIRONMENT AND PLANNING — Court of Appeal — Jurisdiction and powers — Class 4 application

LAND LAW — Strata title — Owners corporation – whether by-law validly made
LAND LAW — Strata title — Strata plan — Strata plan of subdivision – whether consent to subdivision vitiated use conditions in Development Consent
Legislation Cited:
Civil Procedure Act (2005) (NSW), ss 149A, 149B, 149C, 149D, 149E
Conveyancing (Strata Titles) Act 1961 (NSW), ss 3, 4
Environmental Planning and Assessment Act 1979 (NSW), ss 4.2 (76A), 4.3 (76B), 9.44 (122), 9.45 (123)
Environmental Planning and Assessment Amendment Act 2017 (NSW)
Land and Environment Court Act 1979 (NSW), ss 20, 58, 71
Local Government Act 1919 (NSW), ss 313, 317A
Local Government (Amendment) Act 1951 (NSW)
Real Property Act 1900 (NSW), s 42
Strata Schemes Management Act 2015 (NSW), ss 90, 150
Supreme Court Act 1970 (NSW) s 101
County of Cumberland Planning Scheme Ordinance, cll 24, 26, 27, 28, 29, 41
Cases Cited: Allandale Blue Metal Pty Ltd v Roads and Maritime Services (2013) 195 LGERA 182; [2013] NSWCA 103
Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Ltd (2009) 167 LGERA 395; [2009] NSWCA 160
Baulkham Hills Shire Council v Mekol Pty Ltd (No 2) (1970) 20 LGERA 165; [1970] 3 NSWR 206
Bunderra Holdings Pty Ltd v Pasminco Cockle Creek Smelter Pty Ltd (subject to Deed of Company Arrangement) [2017] NSWCA 263; (2017) 96 NSWLR 434
Elidock Pty Ltd v N B Stone & Associates Pty Ltd [2008] NSWSC 1278
Hillpalm Pty Ltd v Heaven’s Door Pty Ltd (2004) 220 CLR 472; [2004] HCA 59
House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498; [2000] NSWCA 44
Minister…

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: [2018] NSWCA 275
Decision Date: 21 November 2018

CaseChat Overview and Summary

The Owners - Strata Plan No. 4983 (the appellant) appealed to the Court of Appeal of New South Wales against orders made by the primary judge concerning the use of parking lots within a strata scheme. The dispute centred on whether the use of these parking lots by "occupants" of the strata scheme, as defined by a by-law, precluded non-resident owners of those parking lots from using them. The appellant argued that a by-law validly restricted the use of parking lots to residents, while the respondents, who owned parking lots but did not reside in the scheme, contended for a broader right of use.

The Court of Appeal was required to determine several key legal issues. Firstly, it had to consider whether the primary judge had jurisdiction to hear the matter, given the exclusive jurisdiction of the Land and Environment Court in certain environmental and planning matters. Secondly, the Court had to determine the validity and effect of the by-law concerning the use of parking lots by "occupants." Thirdly, the Court considered whether any conditions attached to a development consent for the strata scheme were vitiated by the subsequent subdivision, and how these conditions impacted the use of the parking lots. Finally, the Court examined the jurisdiction and powers of the Court of Appeal in relation to a Class 4 application.

The Court of Appeal found that while the primary judge had jurisdiction to hear the matter, the interpretation of the by-law and its interaction with the development consent required careful consideration. The Court reasoned that the by-law, as framed, did not unequivocally preclude non-resident owners of parking lots from using their lots, particularly when read in conjunction with the development consent. The Court applied principles of statutory interpretation to the by-law and the relevant planning legislation, concluding that the primary judge had erred in certain aspects of their interpretation. The Court allowed the appeal in part, setting aside specific orders made by the primary judge regarding both the respondents' claim and the appellant's cross-claim. The Court otherwise dismissed the notices of appeal and cross-appeal. The appellant was ordered to pay the costs of the appeal and cross-appeal, to be raised by a levy on owners of lots within Strata Plan No. 4983, excluding the respondents.

Orders

Orders of the court

(1) Appeal allowed in part;

(2) Set aside orders 2 and 3 made by the primary judge on 1 March 2018, in respect of the respondents’ claim below;

(3) Set aside orders 2 and 3 made by the primary judge on 1 March 2018, in respect of the appellant’s cross-claim;

(4) Notice of appeal otherwise dismissed;

(5) Notice of cross-appeal dismissed;

(6) Order that the appellant pay the respondents the costs of the appeal and the cross-appeal as agreed or assessed and that such costs be paid from a levy raised from the owners of lots in Strata Plan No. 4983 other than the respondents or any of them.

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 No. 4983 v Canny [2018] NSWCA 275
Hearing dates:	27 July 2018
Date of orders:	21 November 2018
Decision date:	21 November 2018
Before:	McColl JA at [1], Payne JA at [2], Emmett AJA at [94]
Decision:	(1) Appeal allowed in part; (2) Set aside orders 2 and 3 made by the primary judge on 1 March 2018, in respect of the respondents’ claim below; (3) Set aside orders 2 and 3 made by the primary judge on 1 March 2018, in respect of the appellant’s cross-claim; (4) Notice of appeal otherwise dismissed; (5) Notice of cross-appeal dismissed; (6) Order that the appellant pay the respondents the costs of the appeal and the cross-appeal as agreed or assessed and that such costs be paid from a levy raised from the owners of lots in Strata Plan No. 4983 other than the respondents or any of them.
Catchwords:	ENVIRONMENT AND PLANNING – Jurisdiction of Supreme Court – whether engaged – Exclusive jurisdiction of Land and Environment Court ENVIRONMENT AND PLANNING — Development Consent — Conditions – whether use of parking lots by “occupants” precluded non-resident owners of parking lots from using their lots ENVIRONMENT AND PLANNING — Court of Appeal — Jurisdiction and powers — Class 4 application LAND LAW — Strata title — Owners corporation – whether by-law validly made LAND LAW — Strata title — Strata plan — Strata plan of subdivision – whether consent to subdivision vitiated use conditions in Development Consent
Legislation Cited:	Civil Procedure Act (2005) (NSW), ss 149A, 149B, 149C, 149D, 149E Conveyancing (Strata Titles) Act 1961 (NSW), ss 3, 4 Environmental Planning and Assessment Act 1979 (NSW), ss 4.2 (76A), 4.3 (76B), 9.44 (122), 9.45 (123) Environmental Planning and Assessment Amendment Act 2017 (NSW) Land and Environment Court Act 1979 (NSW), ss 20, 58, 71 Local Government Act 1919 (NSW), ss 313, 317A Local Government (Amendment) Act 1951 (NSW) Real Property Act 1900 (NSW), s 42 Strata Schemes Management Act 2015 (NSW), ss 90, 150 Supreme Court Act 1970 (NSW) s 101 County of Cumberland Planning Scheme Ordinance, cll 24, 26, 27, 28, 29, 41
Cases Cited:	Allandale Blue Metal Pty Ltd v Roads and Maritime Services (2013) 195 LGERA 182; [2013] NSWCA 103 Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Ltd (2009) 167 LGERA 395; [2009] NSWCA 160 Baulkham Hills Shire Council v Mekol Pty Ltd (No 2) (1970) 20 LGERA 165; [1970] 3 NSWR 206 Bunderra Holdings Pty Ltd v Pasminco Cockle Creek Smelter Pty Ltd (subject to Deed of Company Arrangement) [2017] NSWCA 263; (2017) 96 NSWLR 434 Elidock Pty Ltd v N B Stone & Associates Pty Ltd [2008] NSWSC 1278 Hillpalm Pty Ltd v Heaven’s Door Pty Ltd (2004) 220 CLR 472; [2004] HCA 59 House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498; [2000] NSWCA 44 Minister…