Halpin v Sydney City Council

Land and Environment Court (NSW)|2000-05-31|Before: Cowdroy J, Mr J, Mr P

The applicant refers to the definition of 'owner' in the Strata Schemes Management Act 1996. In summary such definition relevantly refers to an 'owner' of a lot in a freehold strata scheme as a person ' being recorded in the Register as entitled to an estate in fee simple in that lot'. The applicant also has referred to the decision of the High Court of Australia in North Sydney Council v Lygon 302 Pty Limited (1996) 185 CLR 470 at 481 in which the majority judgment refers to the fact that the EPA Act is not concerned with the regulation of the private rights of ownership but with the physical use to be made of land as defined in the Act. However neither the definition of 'owner' as contained in the Strata Schemes Management Act 1996 nor the judgment of the High Court of Australia is pertinent. The question in issue is concerned solely with the definition of 'owner' in respect of a development application being made under the provisions of the EPA Act.

It might be submitted that sub-paragraph (b)(i) of the current definition applies to the present applicant as owner of the lot in strata plan no 52728 for estate of freehold in possession. Such construction however would ignore the specific provisions of sub-paragraph (b)(iii) of the current definition. In Smith v R (1994) 181 CLR 338 at 348 Mason CJ referred to the principle of construction which provides that in the event of a conflict between general and specific provisions of a statute the specific provision prevails.

Section 31 of the Interpretation Act 1987 requires an Act to be construed as operating to the full extent of, but not so as to exceed the legislative power of Parliament. Section 4 of the EPA Act declares that the term 'owner' has the same meaning as that contained in the 1993 LG Act. The latter Act specifically provides that the owners corporation is the 'owner' in respect of land which is the subject of the strata scheme. Since the land the subject of the development application is subject to such a scheme, the owners corporation is the 'owner' for the purposes of the 1993 LG Act.

It follows that pursuant to reg 46 of the Regulation the development application must be made by the owners corporation (reg 46(1)(a)) or with the consent of the owners corporation in writing (reg 46(1)(b)). In the absence of such consent, the application does not comply with the requirements of s 78A of the EPA Act.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

6. The Court was referred to several authorities of this Court which had considered the meaning of the word `owner'. In Jeblon v North Sydney Municipal Council (1981-1982) 48 LGRA 113 Cripps J considered an application for development by the owner of a strata title lot in a building containing six strata style residential units. His Honour determined (at 119-120) that since the development application was not one involving any common property, the consent of the owner was not required pursuant to the provisions of s 77 of the EPA Act as it then existed. Such section required that development applications could only be made by the owner or with the consent in writing of the owner, `of the land to which that development application relates'. The words `owner' as it then appeared in s 77(1) of the EPA Act referred to all persons who qualified as `owner' as defined in s 4 of the Local Government Act 1919 ("the 1919 LG Act"). Such definition included a provision similar to sub-paragraph (b)(i) of the current definition but no equivalent provision to sub-paragraph (b)(iii) of the current definition relating to strata schemes existed.

7. The decision of Jeblon was adopted by Sheahan J in Bluewater District Services Pty Ltd v Sutherland Shire Council (1997-1998) 97 LGERA 389 at 396. Although the 1993 LG Act which contains inter alia sub-paragraphs (b)(iii) and (b)(iv) had then been enacted, the latter judgment contains no reference to the fact that the definition of `owner' had been altered to the current definition. In Crawley v Sydney City Council (1997-1998) 98 LGERA 21, Talbot J at 27 found that the consent of the owner of the property was, `not a requirement made by or under the Act relating to the proposed building works'. This decision related to a building application and Talbot J adopted the approach of Cripps J in Jeblon.

8. The current definition of `owner' is substantially different when compared to the definition contained in the 1919 LG Act. Specific provisions now exist for the determination of an `owner' where land or an interest therein is held in a scheme, whether it be a strata scheme as provided in sub-paragraph b(iii) or community scheme as provided in sub-paragraph (b)(iv) of the current definition. Parliament by virtue of the 1993 LG Act has provided that the incorporated body is the `owner' in respect of land held under such schemes for the purposes of that Act.

9. During the Parliamentary debates concerning the interpretation preceding the enactment of the 1993 LG Act a document entitled `Exposure Draft Local Government Bill 1992' was released by the Minister for Local Government and Co-Operatives and reference may be had to it pursuant to s 34(2)(e) of the Interpretation Act 1987. The definition of `owner' contained therein was similar to that contained in s 4 of the 1919 LG Act and significantly did not contain the extensive changes which now exist in the current definition.

10. The applicant refers to the definition of `owner' in the Strata Schemes Management Act 1996. In summary such definition relevantly refers to an `owner' of a lot in a freehold strata scheme as a person `being recorded in the Register as entitled to an estate in fee simple in that lot'. The applicant also has referred to the decision of the High Court of Australia in North Sydney Council v Lygon 302 Pty Limited [1996] HCA 20; (1996) 185 CLR 470 at 481 in which the majority judgment refers to the fact that the EPA Act is not concerned with the regulation of the private rights of ownership but with the physical use to be made of land as defined in the Act. However neither the definition of `owner' as contained in the Strata Schemes Management Act 1996 nor the judgment of the High Court of Australia is pertinent. The question in issue is concerned solely with the definition of `owner' in respect of a development application being made under the provisions of the EPA Act.

11. It might be submitted that sub-paragraph (b)(i) of the current definition applies to the present applicant as owner of the lot in strata plan no 52728 for estate of freehold in possession. Such construction however would ignore the specific provisions of sub-paragraph (b)(iii) of the current definition. In Smith v R [1994] HCA 60; (1994) 181 CLR 338 at 348 Mason CJ referred to the principle of construction which provides that in the event of a conflict between general and specific provisions of a statute the specific provision prevails.

12. Section 31 of the Interpretation Act 1987 requires an Act to be construed as operating to the full extent of, but not so as to exceed the legislative power of Parliament. Section 4 of the EPA Act declares that the term `owner' has the same meaning as that contained in the 1993 LG Act. The latter Act specifically provides that the owners corporation is the `owner' in respect of land which is the subject of the strata scheme. Since the land the subject of the development application is subject to such a scheme, the owners corporation is the `owner' for the purposes of the 1993 LG Act.

13. It follows that pursuant to reg 46 of the Regulation the development application must be made by the owners corporation (reg 46(1)(a)) or with the consent of the owners corporation in writing (reg 46(1)(b)). In the absence of such consent, the application does not comply with the requirements of s 78A of the EPA Act.

Local Government Act 1919

Schemes (Freehold Development) Act 1973

Schemes (Leasehold Development) Act 1986

Land Development Act 1989

Planning and Assessment Act 1979

Environmental Planning and Assessment Regulation 1994

Schemes Management Act 1996

CITATION : Halpin v Sydney City Council [2000] NSWLEC 218 APPLICANT Halpin PARTIES : RESPONDENT Sydney City Council FILE NUMBER(S) : 10613 of 2000 CORAM: Cowdroy J KEY ISSUES: Development Application :- application for development of a lot within a strata scheme - owners corporation refusing consent - whether consent of owners corporation is required to constitute a valid development application pursuant to s 78A of the EPA Act - definition of 'owner' for the purposes of development Environmental Planning and Assessment Act 1979, s 4, s 78A Environmental Planning and Assessment Regulation 1994 Local Government Act 1919 LEGISLATION CITED: Local Government Act 1993 Strata Schemes (Freehold Development) Act 1973 Interpretation Act 1987 s 34 Strata Schemes (Leasehold Development) Act 1986 Bluewater District Services Pty Ltd v Sutherland Shire Council (1997-1998) 97 LGERA 389 ; CASES CITED: Crawley v Sydney City Council (1997-1998) 98 LGERA 21; Jeblon v North Sydney Municipal Council (1981-1982) 48 LGRA 113 ; North Sydney Council v Lygon 302 Pty Limited (1996) 185 CLR 470 DATES OF HEARING: 16/10/00 DATE OF JUDGMENT: 10/24/2000

(2000) 110 LGERA 464

At a glance

Court

Decision date

Before

Source

Judgment (13 paragraphs)

Parties

Legislation Cited (9)

Cases Cited (4)