A Closer Look at the Tribunal’s Power to Order an Owners Corporation to Consent to a Development Application
It is common for owners living in strata schemes to want to do works requiring development consent or a complying development certificate. These works could include major renovations, additions or alterations to a building, or changes to the use of a building or land.
Suppose these works affect common property, which refers to areas of the strata scheme that are not part of any lot. In that case, the Owners Corporation’s consent is also required for the development application or complying with the development certificate application.
In the recent case of The Owners – Strata Plan No. 53865 v JPG Investments Pty Ltd [2024] NSWCATAP 12 (JPG), the NSW Civil and Administrative Tribunal’s Appeal Panel, an essential key authority in strata scheme disputes, considered an appeal involving a matter where an Owners corporation refused to give its consent to a lot owner’s development application.
The development application sought to add two additional storeys to the building. The Owners Corporation refused consent for a myriad of reasons, including allegations that the works may affect the structural stability of the building.
In the first instance, the Tribunal ordered the Owners Corporation to consent to the development application. The Owners Corporation then appealed that decision to the Appeal Panel.
Consideration in the Decision
Section 232(6) of the Strata Schemes Management Act 2015 (SSMA) gives the Tribunal power to make orders for a strata scheme to consent to the making of a development application, stating:
“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 relating to a dispute concerning the failure of an Owners Corporation for a strata scheme to consent to the making of a development application under the Environmental Planning and Assessment Act 1979 relating to the common property of the scheme.”
In considering whether the Owners Corporation should consent to the development application, the Appeal Panel held that the lot owner had to prove their case on the balance of probabilities, considering the interests of all lot owners in their use and enjoyment of their lots and common property.
This consideration included whether the works subject to the development application would impede other lot owners’ use of the common property. The Tribunal may also consider any future effects the works could have on the use of the common property if they were to take place.
Interestingly, the Tribunal also held that an Owners Corporation providing its consent to a development application did not mean that lot owners agreed with its content and that they could provide objections once it was before the Council.
The Appeal Panel subsequently dismissed the appeal, holding that the Tribunal applied the proper test at the first instance and confirmed the orders for the Owners Corporation to consent to the development application.
Take Away
This decision is important because when a development application affecting the common property is before an Owners Corporation, the primary factor is how the works in that application may affect the enjoyment of the common property for other lot owners in the scheme.
It is also important to note that the Tribunal does not need to find that the original withholding of consent was unreasonable in making an order to consent to a development application.
The decision also infers that if the works do not significantly impede the enjoyment of the common property and necessary documentation is included in a form that can be lodged with the local council, the Owners Corporation should consider consenting. This is because if the lot owner were to challenge the refusal, the Tribunal may use its power to order the Owners Corporation to consent to the application.
At Madison Marcus, we have extensive experience assisting owners with obtaining approval for their work and advising owners and corporations regarding work applications they receive.
If you would like to discuss development applications and other approvals, please do not hesitate to contact us.
