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Posted 21 September 2017
Category: Strata, Renovations
The case of Owners Strata Plan No. 50411 & Ors v Cameron North Sydney Investments Pty Ltd  NSWCA 5 (Cameron’s case) considered not only the question of when an owners corporation’s consent is required for a development application lodged by a lot owner but also the question of when an owners corporation has an ‘obligation’ to provide such consent.
For a development application relating to works ‘wholly within’ the boundaries of a lot and not affecting common property, such application does not require the consent of an owners corporation.
If a lot owner’s works impact on common property, the consent of the owners corporation is required to the development application, but only prior to approval being granted by Council as outlined below.
Questions arise frequently as to when a lot owner’s works actually ‘impact’ on common property giving rise to an obligation of the owners corporation to consent to those works. This is still a grey area and depends on the circumstances of each case. Cameron’s case looked to whether there ‘may be some penetration of the common property by screws and other fastenings…significant alterations to planter boxes on common property…altering entrance arrangements to the lot to the DA (that) may change the use of common property…’.
There was no evidence in Cameron’s case of ‘penetrations’ or that the works impacted on common property and accordingly, the owners corporation’s consent was not required in that case.
If a dispute arises either by way of:
a lot owner can apply to the NSW Civil and Administrative Tribunal pursuant to section 232(1)(f) of the SSMA 2015 for orders to settle the dispute arising as a result of the owner’s corporation’s ‘failure to exercise, a function conferred or imposed on an owners corporation under any other Act’ (in this case section 78A of the Environmental Planning and Assessment Act 1979).
Pursuant to s232(6) for a dispute relating to consent to development applications ‘The Tribunal must consider the interests of all the owners of lots in a strata scheme in the use and enjoyment of their lots and the common property in determining whether to make an order…’.
The consent of an owners corporation is necessary for the development application to be approved by your Local Council, not necessarily before a development application can be lodged.
***The information contained in this article is general information only and not legal advice. The currency, accuracy and completeness of this article (and its contents) should be checked by obtaining independent legal advice before you take any action or otherwise rely upon its contents in any way.