t Plaintiff)
& 24 Ors
The Owners-Strata Plan No 4983 (Defendant)
Representation: Counsel:
M.B Evans (Plaintiffs)
M. Ashhurst SC & G. Farland (Defendant)
Solicitors:
Cohen and Krass (Plaintiffs)
JS Mueller & Co Lawyers (Defendant)
File Number(s): 2016/36754
Publication restriction: Nil
[2]
Judgment
These proceedings concern a property in Elizabeth Bay known as Elizabeth Bay Gardens ("EBG"). EBG consists of a 15 storey tower containing a mix of one, two and three bedroom apartments and three levels of parking on the lower ground, ground and upper ground floors.
EBG was completed in 1970. It was the subject of a development application to Sydney City Council ("the Council") in 1968 and on 10 February 1969 the Council issued a Development Consent under the Local Government Act 1919 (NSW) ("LGA"), which contained a description of the application, which included the following (see: Exhibit A4 p 40052):
In pursuance of its powers under the abovementioned Act and ordinance, the Council, as the Responsible Authority, hereby grants its consent to the undermentioned application:
Brief Description of Application:
…
For use as twenty-six (26) one-bedroom flats, forty-seven (47) two-bedroom flats, and ten (10) three-bedroom flats on the first to fifteenth floors inclusive, in accordance with plans Nos 6805.SP8A, 6805.899A and 6805.SP10A with provision for the free-parking of one hundred and four (104) cars by the occupants of the proposed building on the lower ground, ground and upper ground floors and fifteen (15) cars by visitors at the rear of the site, subject to the following conditions: -
(1) That the parking area for visitors' cars, including access driveways, shall be drained and paved with a bituminous or other approved material to the satisfaction of the Council's Officers.
(2) That the parking spaces for visitors' cars shall be outlined in paint on the pavement.
(Emphasis added)
I shall refer to this Consent of 10 February 2017 as "the Consent".
On 29 October 1970 Strata Plan 4983 ("SP 4983") was registered by the Registrar-General as a strata plan comprised of 165 lots, 87 of which were parking lots ("the parking lots"), and 78 were residential lots ("the residential lots"). Portions of the property were designated as common property such as the "motor room", "laundry", "lobby", "incinerator room" and stairs. It will be observed that the plan of subdivision's 87 parking lots were less than the 104 spaces referred to in the Consent.
Although quite a number of owners of residential lots also purchased parking lots, not all of the parking lots were taken up by residential lot owners. The Plaintiffs are all owners of parking lots who are not owners of residential lots
From 1970 until 2014 parking lots were used by parking lot owners, whether residents of EBG or not, and without incident. Parking lots were bought and sold. In 1970 the price of a parking lot was $1,500. In 2006, for example, two lots were purchased by Mr Canny for $130,000, and in 2014 a parking lot sold for an amount of approximately $200,000 - $220,000: see T72.7 and see also Exhibit A2 p 20178.
In December 2014 the Owners Corporation Strata Plan 4983 ("the Owners Corporation") passed a resolution creating a new by-law entitled Special By-Law 7 Car Spaces, which repealed the existing By-Law 7 and which was in the following terms (see: Exhibit A4 p 40305):
1. Introduction
(a) The council issued development consent for the construction of the building in the strata scheme.
(b) The development consent relevantly records that the building may be constructed "with provision for the free parking of one hundred and four (104) cars by the occupants of the proposed building on the lower ground, ground and upper ground floors".
(c) The council issued the letter in relation to the development consent in which it stated that "the parking spaces within the building should only be used by occupants of that building, and not by someone who resides elsewhere".
(d) This by-law requires you to comply with all laws applicable to your car space including the development consent.
2. Definitions
In this by-law:
"car space" means a lot or part of a lot in the strata scheme that is used, or designed or intended to be used, for the purpose of parking a motor or other vehicle;
"council" means the Council of the City of Sydney, its predecessors and successors;
"development consent" means the development consent issued by the council a copy of which is attached to this by-law;
"law" includes any by-law, development consent, the Environmental Planning and Assessment Act 1979 and any instrument made under that Act;
"letter" means the letter issued by the council dated 12 September 2012 a copy of which is attached to this by-law;
"lot" means a lot in Strata Plan No. 4983 and any consolidation or subdivision thereof; and
"you" means the owner or occupier for the time being of a lot.
3. Use of Car Spaces
(a) You must ensure that your car space is not used for any purpose that is prohibited by law.
(b) You must ensure that you comply with the development consent to the extent that it relates to the use of your car space,
(c) You must ensure that any person who occupies or rents your car space complies the development consent to the extent that it relates to the use of your car space
I shall refer to this By-Law as "SBL7".
Up until that time the only by-law relevant to parking was a By-Law passed on 22 November 2007, also known as Special By-Law 7. It required parking lot owners to offer parking lots to "occupiers of the lots in the strata scheme" before leasing or licencing to anyone else. No complaint is or has been made about that By-Law. It was purportedly repealed at the time of the introduction of SBL7.
SBL7 contains reference to "the letter in relation to the development consent." The letter, to which reference is made, it is agreed, is a letter of 12 September 2012 from the Council to the Owners Corporation. The letter (see: Exhibit A4 p 40242) sent to the Owners Corporation's solicitor (Mr Mueller) states:
Dear Mr Mueller,
PROPOSED SUBDIVISION OF COMMON PROPERTY AT 15-19 ONSLOW
AVENUE, ELIZABETH BAY
I refer to your letter dated 28 August 2012 regarding the subdivision of a car space and sale to a person who does not own or reside within the strata scheme of the subject property.
Council at its meeting on 28 January 1969 approved the erection of the residential flat building at the above address. The approval refers to parking within the building "by the occupants of the proposed building", as well as visitor parking at the rear of the site.
The parking spaces within the building should only be used by occupants of that building, and not by someone who resides elsewhere. This position is consistent with later and current Council policies. Council responded to a similar request made by Williams + Roncolato Lawyers dated 31 May 2011 that reaffirmed this position. Therefore, Council is unlikely to support any application to strata subdivide the car space.
If you require any further information, please contact me on…or ...
Yours sincerely
DAVID ZABELL
Planner
In the letter of 28 August 2012 (see: Exhibit A4 p 40236), to which the Council's letter responds, is a letter from the Owners Corporation's solicitor that explained that the Council was advised that the Owners Corporation wanted to sell a car space that formed part of the common property and which would require subdivision and creation of a new lot thereby. The letter sought an indication as to whether the Council would permit the subdivision and, if so, whether the Council would impose "conditions of development consent requiring the owner of the car space to be an owner or resident of a unit in the strata scheme." The earlier letters from and to Williams Roncolato, referred to in Council's letter of 12 September 2012, are in evidence as Exhibits 3A and 3B.
By its defence the Owners Corporation admits that the letter of 12 September 2012 has no legal effect.
After passage of SBL7, the Owners Corporation took steps which, on the Plaintiffs' case, were designed to enforce SBL7. These steps included installing a security access point and issuing new security swipe cards to residential lot owners. The Owners Corporation has issued new remotes to residential lot owners that give them access to all floors of the car park: see T55.6 - T55.12. There is also evidence of an attempt to preclude non-residential owners from using the swimming pool and accessing some common areas.
Prior to the passage of SBL7, in March 2014 the managing agent for the Owners Corporation, Mr John Sarraf, was instructed by the Owners Corporation to write a letter to the owners in the terms of a letter dated 18 March 2014 (see: Exhibit A4 p 40258) which letter informed owners of the terms of the 1969 development consent and said, inter alia:
You will also observe that the letter from the Council states that "the parking spaces within the building should only be used by occupants of that building, and not by someone who resides elsewhere".
The terms of the development consent for the building are binding on you and as an owner you are (and always have been) responsible for complying with those terms.
Since the threat of, or commencement of, these proceedings the Owners Corporation has not proceeded with its plan to restrict non-residential parking lot owners from obtaining access to the pool area of the building. Mr Sarraf says that he told the Executive Committee of the Owners Corporation that the attempt to restrict non-residential lot owners from accessing common property was not permitted: see T81.35 - T81.43. Mr Ashurst SC, who with Mr G. Farland appears for the Owners Corporation, informed the Court at T19.45 - T20.4 that the Owners Corporation was not trying to stop the Plaintiffs (for whom Mr M. Evans of counsel appears) from using the facilities of the common property.
There were some matters that were conceded not to be in dispute:
1. That parking lots were bought and sold between 1970 and 2014 by both residential lot owners and by non-residents.
2. That the Owners Corporation was, throughout the period 1970 to 2014, aware that some of the parking lots had been purchased by non-residents.
3. That the Owners Corporation had levied non-resident parking lot owners for strata levies and that those levies had been paid.
4. That the amounts paid for parking lots were not insignificant amounts.
5. That the Owners Corporation had no knowledge prior to purchase of a lot whether the prospective purchaser was a resident or non-resident of EBG.
It is clear that at no time prior to 2014 has the Owners Corporation told any non-resident parking lot owners that there was any impediment to them using the parking lots to park their cars. It would appear that, until the second half of 2012, the Owners Corporation, through its various officers, had no awareness of any such impediment, although there is some evidence that in 1980 the then Secretary of the Owners Corporation had sought clarification on the issue of the terms of the Consent: see Exhibit A2 p 20210, and pp 20211 - 20212.
In the 1980 letter to the Council, the then Secretary of the Owners Corporation asked whether ownership of the lots by persons not otherwise associated with the building would be a contravention of the development application and the Council would be "within its rights to refrain from issuing" a Certificate of Compliance. The Council responded (see: Exhibit A2 p 20212):
In reply to your letter dated 10th September, 1980, advising of the disposal of car parking lots to persons other than tenants of the abovementioned premises, I wish to advise that Council on the 6th October, 1970, granted approval to the subdivision of the building known as Nos. 15-19 Onslow Avenue, Elizabeth Bay, into 165 lots in accordance with the Strata Plan of Subdivision submitted by Messrs. Malcolm T. Jones & Burgess, Registered Surveyors. Council's policy now would not allow the sale of garages or the like to persons other than tenants of a building.
With regard to your query as to whether Council could refrain from issuing a Certificate of Compliance, I have to advise that, provided the building complies in all respects with the plans and specification, a certificate would have to be issued.
A note of Council (see: Exhibit A2 p 20211) suggests that the Council's view as at 15 October 1980 was that Council had no jurisdiction because Council "did not concern themselves in retaining garages solely for use of tenants. However, Council's new policy does not allow the sale of garages to persons other than tenants of units. No action, by Council, is available at this stage."
There is some opacity in relation to the reason or motive for the introduction by the Owners Corporation of SBL7. Mr Wight-Boycott, a member of the Executive Committee of the Owners Corporation, sought to explain the motivation for the By-Law as being only to draw attention to both existing owners and prospective owners of the contents of the Consent: see T66.15 - T66.22 and T68.39 - T68.43. Mr Sarraf asserted the same motivation at T80.24 - T80.37. Mr Sarraf conceded, however, at T84. 35 - T85.26 that his letter of 18 March 2014 was not consistent with merely informing owners of the existence of the terms of the consent. The Owners Corporation, by its cross claim, seeks to injunct the Plaintiffs from parking their cars in the parking lots owned by them. Mr Ashhurst says that there is no impediment to the Plaintiffs using the pool and all common areas, all they cannot do, he says, is park their cars in their parking lots.
In my view SBL7 was clearly introduced to preclude non-resident owners from parking their cars in their parking lots. I say that because:
1. That is the clear thrust of SBL7, by reference to the Council's letter. Clause 3 of SBL7 does not actually use the language of the letter of 12 September, but rather says that "you must ensure that your car space is not used for any purpose that is prohibited by law" and you must comply with the development consent and you must ensure that any person who occupies or rents your car space complies. Clause 1, however, (together with the definitions in clause 2) does use that language and, in my view, the intent of SBL7 is to preclude non-residential parking lot owners from parking their vehicles on those lots.
2. That is what the letter of 18 March 2014 (which predates SBL7) said should occur.
3. That is consistent with the admission by Mr Wight-Boycott in the course of cross-examination (see: T76.5 - T76.23) that he thought that the Council should take action but the Council would not do so, and that it was up to the Owners Corporation "to take action. So in that case, that's why we did it."
4. It is reinforced by the fact that the Owners Corporation seeks, by its cross-claim, to injunct the Plaintiffs from using their parking lots. By the Owners Corporations' final written submissions ("DFWS"), paragraph 3, the Owners Corporation asserts that, as a result of the Consent, only occupants of residential units within EBG can use the parking lots.
The Owners Corporation contends that SBL7 must be a valid by-law since it is just an iteration of the Model By-Law number 21 to Schedule 2 of the Strata Schemes Management Regulation 2010 (NSW). I do not accept that contention because of clause 1 (and the definitions in clause 2), which references the Council's letter of 12 September 2012 and quotes words from that letter, but does not in clear terms state what the parking lot owners cannot do, nor does it make clear that Council has indicated that it does not propose to take any action in respect of the Consent or that residential lot owners who own parking lots cannot park in the parking lots if they do not reside in the building. Mr Ashhurst indicated if the Court was of the view that the By-Law was defective in form he would seek instructions to issue a fresh by-law in the terms of clause 3 only, to comply with the Model By-Law (see: T112). In my view SBL7 is deficient in form, but I accept that that conclusion, whilst it should lead to the setting aside of the SBL7, whatever the outcome of this case, is not determinative of the issues in this case.
It is hardly surprising that the Plaintiffs should feel aggrieved by the passing of SBL7, and by the Owners Corporation's attempts to preclude them from using their parking lots. They, or their parents, have paid a considerable amount of money for the parking lots in an open market in which residents and non-residents were able to purchase lots and they have been paying the levies on the lots for a period of forty years. Mr Ashhurst submits that none of these matters has any bearing on the case, but he did make the point that the Consent, if binding in respect of parking, is binding whatever the consequence and that, whilst current non-resident owners who have paid considerable amount of money for parking lots might be aggrieved to now be told that they cannot park their cars on their parking lots, this arises from the effect of the Consent and the failure of each of the solicitors who acted for the non-resident owners on purchase to obtain a copy of the Consent, or to write to the Council and obtain a letter like the letter of 12 September 2012 or Exhibit 3.
The Local Government (Amendment) Act 1951 (NSW) had attached to it the County of Cumberland Planning Scheme Ordinance, which was referred to by the parties. Sections 28 and 29 of that Ordinance ("the Ordinance") were in the following terms:
28(1) A building shall not without the consent of the responsible authority be erected or used in any zone for any purpose shown opposite that zone in the fourth column of the Table to clause 26.
(2) A building shall not be erected or used in any zone for any purpose shown opposite that zone in the fifth column of the Table to clause 26.
29(1) Land, included in a zone, whether forming the site of a building or not, shall not be used for any purpose for which a building in the same zone may not be erected or used.
…
It was agreed by counsel for both the Plaintiffs and the Owners Corporation that the Ordinance is the relevant source of the legislative requirements and restrictions at the relevant time and that any use permitted as at 1969/1970 will be continued by later planning schemes and ss 76A and 76B of the Environmental Planning and Assessment Act 1979 (NSW) ("EPA").
The table to clause 26 of the Ordinance relevantly provides that "residential buildings" is a purpose for which a building can be erected or used "only with the consent of the responsible authority". "Residential building" means a building other than a dwelling-house (i.e. a building which is for only one family) designed for human habitation together with such outbuildings as are ordinarily used therewith: see clause 24. It follows that, to build EBG and use it as a residential building, the developers were required to obtain consent and that the use which was permitted was that of 'residential building'. The Owners Corporation contend that the only use permitted was that found in the Consent. The Plaintiffs contend that the use could be found either in the Consent (as a matter of construction) or in the approval by Council of the subdivision.
The pleadings raised a number of issues, but in the course of the hearing these were reduced to only three:
1. Does the Consent, by its terms, permit use of the allocated parking spaces by non-residents?
2. If the answer to (1) is no, did the approval by the Council of the plan of subdivision for EBG, which contained both residential lots (78) and parking lots (87), thereby permit the use of the parking lots by owners of those lots, whether or not they also were resident in EBG?
3. If the answer to both (1) and (2) is no, should the Owners Corporation be granted injunctive relief to prevent the Plaintiffs from parking their cars in their respective lots.
Issue 1: The Consent
In the period between 10 February and August 1970, the Consent was amended in several respects to increase the number of flats, but there was no amendment in relation to the car parking provision.
In construing a development consent I am guided by the summary of principles agreed and noted in Bunderra Holdings Pty Ltd v Pasminco Cockle Creek Smelter Pty Ltd [2017] NSWCA 263 per Payne JA, with whom McColl and Leeming JJA concurred, at [158]:
The principles relating to the construction of development consents were not controversial on the appeal. Those principles were explained by the primary judge at [62]-[63]. In particular, it was common ground that the following principles applied:
(1) the nature and extent of the approved development must be determined by construing the document of approval, including any plans or other documents which it incorporates, aided only by that evidence admissible in relation to construction which establishes, or helps to establish, the true meaning of the document as the unilateral act of the relevant authority, not the result of a bilateral transaction between the applicant and the Council. Thus evidence of the nature of the site would always be admissible for this purpose, as would be, in appropriate cases, evidence as to the meaning of the marks on plans, or indeed, the meaning of the absence of particular marks: Parramatta City Council v Shell Co of Australia Ltd [1972] 2 NSWLR 632at 637 per Hope JA;
(2) a development consent is to be construed according to its terms, having regard to its enduring nature. A development consent has an enduring nature because it is not personal to the applicant but is a public document operating in rem for the benefit of third parties such as subsequent owners, occupiers and security holders, and in some respects is equivalent to a document of title: House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498; [2000] NSWCA 44 at [23]; Winn v Director-General of National Parks and Wildlife (2001) 130 LGERA 508; [2001] NSWCA 17 at [4]: The enduring nature of a development consent encourages a fair but liberal reading of the rights it confers upon a landowner who may spend considerable money acting upon it and who is likely to wish to sell the land sooner or later: House of Peace at [41];
(3) a development consent is to be construed not as a document drafted with legal expertise, but to achieve practical results: Westfield Management Ltd v Perpetual Trustee Co Ltd [2006] NSWCA 245 at [36]; Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Ltd (2009) 167 LGERA 395; [2009] NSWCA 160, at [105]; and
(4) as a general rule, a development consent, being a public document operating in rem for the benefit of third parties, should be construed without reference to extrinsic evidence other than to identify a thing or place referred to in it. That extrinsic evidence is not led to vary the consent but to identify a thing or place referred to in it. Evidence as to the nature or physical features of the land may also be admissible for that purpose, at least those features observable by a third party at the time of the consent: Allandale Blue Metal Pty Ltd v Roads and Maritime Services (2013) 195 LGERA 182; [2013] NSWCA 103 at [44]; Shell Co of Australia at 637.
and see also the judgment of Pepper J in SJ Connelly Pty Ltd v Ballina Shire Council [2010] NSWLEC 151, in which her Honour said at [59] (omitting citations):
1. a development consent is to be construed fairly and liberally in context, according to its written terms and having regard to its function as a public document operating in rem for the benefit of successors in title
2. a development consent must be considered a stand alone document and recourse may only be had to other documents if these are incorporated in it expressly or by necessary implication
3. "the court can have regard to objective circumstances, including the physical circumstances, the plans accompanying the development application, and matters relating to title" … mere approval of an application does not incorporate in that approval everything contained in or referred to in the approval
The Plaintiffs rely on what was said in Ryde Municipal Council v Royal Ryde Homes (1970) 19 LGRA 321 [1970] NSWLR 277 by Else-Mitchell J, namely:
the legal qualities a consent possesses, or which flow from a consent, are so important that care should be taken to ensure that consents are framed in clear terms and conditions are specified with certainty. Any lack of clarity or certainty is the responsibility of the council and it must take the consequences of any failure to specify accurately or in detail what is consented to as well as any conditions to which a consent is subject.
and submit that what applies to conditions applies with even more force to terms that are not expressed as conditions.
There are several matters to note concerning the terms of the Consent:
1. The words:
For use as twenty-six (26) one-bedroom flats, forty-seven (47) two-bedroom flats, and ten (10) three-bedroom flats on the first to fifteenth floors inclusive, in accordance with plans Nos 6805.SP8A, 6805.899A and 6805.SP10A with provision for the free-parking of one hundred and four (104) cars by the occupants of the proposed building on the lower ground, ground and upper ground floors and fifteen (15) cars by visitors at the rear of the site…
draw a distinction between what is the use- i.e. as "flats", and what is to be provided for i.e. "provision for 104 cars for free parking". I shall refer to the clause "with provision for 104 cars for free parking for occupants of the building" as the "provision for" clause.
1. The use of the word 'free' could be interpreted as emphasizing that the parking spaces are not to be operated as a commercial car park, or could mean that those parking in the spaces are not to be charged for so doing.
2. The phrase used is "by occupants of the proposed building", which can be contrasted with "by residents of the proposed building".
3. At the time that the Consent was issued (i.e. 10 February 1969) there was no subdivision in place because that was submitted in August 1970 and approved in October 1970.
4. The words "occupants of the building" seems to be contrasted in the "provision for" clause with "visitors."
Mr Ashhurst, in support of the construction of "occupants of the building" as meaning occupants of the flats and not occupants of the parking spaces, submitted that:
1. It would not make sense for the Council to require spaces to be provided for people who are occupants of car spaces.
2. What would make sense is for the Council to require residents of the proposed building to have parking in the building and, hence, off the street.
3. The words "with provision for" refer back to the flats enumerated in the first part of the clause.
4. No plan of subdivision had been lodged at that point of time so there was no certainty that there would be any occupant of the building who was not a resident of the building.
5. The words "on the lower ground, ground and upper floors" suggests that the portion of the building of which there are to be occupants are the flats, not the lower levels.
Mr Evans contended that:
1. Whilst it was true that as at February 1970 there was no subdivision in place and no indication of how the car parking spaces were to be dealt with, it must have been recognised as likely that a strata plan would have been utilised and at least a real possibility that it would, the Conveyancing (Strata Titles) Act 1961 (NSW) ("the CST Act"), having been introduced in 1961, and the block being some 15 storeys high.
2. The word "occupants" is used and not "residents" and "occupants" should be given its ordinary meaning.
3. The Council would have had a real reason to grant consent to occupants of the parking lots to use those lots because parking in Elizabeth Bay was notoriously tight and the Council would have seen a benefit in the utilisation of car spaces for anyone living in the area; and see: Exhibit A5 p 50077 in which the Council described the building as "a multi-storeyed residential flat building with provision for 'off street' car parking".
4. Persons using parking spaces is a residential use, even if they do not live in the building in which the parking space is located.
5. The cases support a wide view of the word 'occupant', referring to Baulkham Hills Shire Council v Mekol Pty Ltd (No 2) (1970) 20 LGRA 165, Warringah Shire Council v KVM Investments Pty Ltd (1981) 45 LGRA 425 and Elidock Pty Ltd v NB Stone & Associates Pty Ltd [2008] NSWSC 1278 at [44].
6. Given the importance of the Consent, what might potentially be a condition or a term needs to be spelled out very precisely. Mr Evans drew attention to the concession made by Mr Ashhurst in opening that the "provision for" clause was not a condition. He submitted that the strictures relating to conditions found in Royal Ryde Homes are as, or even more important, where what Council has included is not expressed as a condition. The only part of the Consent expressed as conditions related to visitor parking outside the building.
7. That there were to be easements (rights of way) given for the benefit of two adjourning properties (Onslow Gardens and Muedon).
The Owners Corporation contends that the Consent, in using "occupants of the building", must mean residents, not owners of the parking lots, and that cases on "occupant" which point in the opposite direction are not relevant.
In Baulkham Hills Shire Council v Mekol Pty Ltd (No 2) (1970) 20 LGRA 165 Hardie J had to consider the meaning of "occupants", which appeared in s 313(j) of the Local Government Act 1919 (NSW), which required a council, in considering an application for approval, to take into consideration:
The provision of suitable space or accommodation for vehicles likely to be used by the occupants of such building.
and held that "occupants" referred to "legal occupiers, whether owners or tenants and those persons who work in the premises so long as their presence on the premises had some element of regularity, continuity and permanence."
In Warringah Shire Council v KVM Investments Pty Ltd (1981) 45 LGRA 425, 'occupant' within s 313(2)(b) of the Local Government Act 1919 (NSW) was said by Hutley JA to include squatters or protestors who refuse to move. In Elidock Pty Ltd v NB Stone & Associates Pty Ltd [2008] NSWSC 1278, Young CJ in Eq held that occupation of a premise did not necessarily imply residence.
The word 'occupant' is similar to 'occupier'. There are legislative provisions which use the word 'occupier' rather than 'occupant', for example:
Section 3 of the Local Government Act 1933 (NSW) defines "occupier" to be (inter alia) "a person having the charge, management or control of the premises".
Section 4 of the Strata Schemes Management Act 2015 (NSW) defines "occupier" as "a person in lawful occupation of the lot."
I do not find any of these cases or the legislative provisions set out above in [32(5)], [34], [35] and [36] of any real assistance in determining what was meant by "occupants of the proposed building" as used in the Consent.
There was no evidence identified that the Council was aware that rights of way were to be granted to the occupants of Onslow Gardens and Muedon.
Mr Ashhurst contended that, in assessing what the terms of the Consent mean, it is not appropriate to have regard to any matter after the Consent was issued. This principle is similar to the approach taken to contracts i.e. that post contractual conduct is not relevant as an aid to construction: see Agricultural and Rural Finance Pty Ltd v Gardiner (2008) 238 CLR 570, at 582 following James Miller & Partners Ltd v Whitworth Street Estates (Manchester) Ltd [1970] AC 583. He submitted that it is not appropriate to consider what occupant meant in 1971 or even 2017, and then consider if that is what the Consent means. Mr Evans did not challenge this principle, but rather contended that I could draw from what the Council said in 1970 what its intentions were (see: T102.45 - T103.5 and T105.31 - T105.32). This was linked to the question of the significance of the registration of the plan of subdivision. I think that that second question is a separate matter, and I will deal with it below.
In my view the reference to 'occupants' was intended to refer to people who would reside in the building and who were to be distinguished from visitors who did not. I doubt very much that the Council were requiring the developer to provide parking for people who were not residents of the building, but rather were owners of the parking lot when the creation of those lots had not occurred and might never occur. I say 'might never occur' because it was possible that the owners of residences would have the right to use a designated space or any of a number of spaces without being provided with their own particular lots.
In coming to this conclusion I have given consideration to the fact that the Consent speaks of 'use' and then in terms of 'provision for'. It seemed on first reading that the use which the Council was specifying was as residential flats and the 'provision for' clause was not a 'use', and nor (it has been agreed) was it specified to be a condition and merely requiring a building which had enough space for that number of cars. It is difficult, however, to escape the conclusion that the Council was, by the 'provision for clause', adding a requirement for use.
It follows, in my view, that, as matters stood in February 1969, and at least until October 1970, the Council required that there be 104 spaces for parking (within the three lower levels in the building) and that those 104 spaces were for parking of vehicles owned by residents of the building.
I should also refer to another theme in the parties' respective submissions. The Plaintiffs claimed that residential use of a building included provision of parking to people residing in neighbouring buildings. The Owners Corporation submitted that the use of the parking lots by non-residents is not a 'residential use' of EBG. The purpose of the Council approval was to permit the construction of flats for dwelling and there was an acceptance that the persons residing in the flats would need a certain number of car parking spaces. The purpose, it is said, was not to provide non-residents with car parking spaces. Apart from the fact that there would be no reason why a person residing on the North Shore might not become a lot owner with the intention of leasing the space to a person living in the street or even working in the area, rather than being someone living next door to EBG, I do not think that the provision of parking for non-residents is a residential use of EBG, and no authority was cited by Mr Evans to support that contention that it is.
The Owners Corporation submitted that if (as it contended) the Consent provided for parking on a limited or restricted basis it could not, of itself, be used as a springboard to parking generally. This is supported by Botany Bay City Council v Parangool Pty Ltd [2009] NSWLEC 198, in which Lloyd J held that a consent for "the warehousing/storage and distribution of alcoholic goods" did not permit a change to use as a general warehouse.
I note that there is in evidence the s 149(2) Planning Certificate. It relevantly states that residential flat buildings are permitted with consent of Council. It also prohibits "Car Parks": see p 40134. There was some attempt to suggest that to allow non-residents to park in the parking lots would mean that EBG was being used as a car park, in breach of the Sydney Local Environment Plan 2012. The definition of 'car park' in the plan "means a building or place primarily used for the purpose of parking motor vehicles… whether operated for gain or not". I do not think that EBG can be said to be used primarily for the purpose of parking cars since its primary purpose is residential. This is really the mirror image of the point that parking is ancillary to residential use only if the owner of the vehicle resides in the building.
Approval of the Plan of Subdivision
The next issue is what is the effect of the approval by the Council and registration of the plan of subdivision for EBG, which included both 78 residential lots and 87 parking lots.
The Plaintiffs contend that, if the Consent did not grant consent for non-resident owners the right to park in the spaces provided within the building, then the registration of the plan of subdivision did do so. The Owners Corporation contends that the registration of the plan of subdivision says nothing about the use that can be made of the lots.
Section 20 of the CST Act was in the following terms:
20. (1 ) The provisions relating to subdivision of land contained in the Local Government Act, 1919 , as amended by subsequent Acts, or any other Act, shall not apply to any subdivision effected pursuant to subsection one of section three of this Act: Provided always that the boundaries of the parcel correspond with boundaries of a lawful subdivision within the meaning of the Local Government Act, 1919 , as amended by subsequent Acts, and provided further that any disposition of common property does not contravene the provisions of that Act, as so amended.
(2) In respect of any application for a certificate under paragraph (b) of subsection three of section four of this Act the local council shall direct the issue of such certificate if it is satisfied that -
(a) separate occupation of the proposed lots will not contravene the provisions of any prescribed scheme within the meaning of Part XII A of the Local Government Act, 1919 , as amended by subsequent Acts;
(b) any consent or approval required under any such prescribed scheme or under Division 7 of Part XII A of the Local Government Act, 1919 , as amended by subsequent Acts, has been given in relation to the separate occupation of the proposed lots;
(c) the building and the proposed subdivision of the parcel into lots for separate occupation will not interfere with the existing or likely future amenity of the neighbourhood, having regard to the circumstances of the case, and the public interest.
Section 3(1),(2) and (3) and s 4(3) of the CST Act provided:
3. (1) Land may be subdivided into lots by registering a strata plan in the manner provided by or under this Act.
(2) When a plan has been so registered the lots comprised therein, or any one or more thereof, may devolve or be transferred, leased, mortgaged, or otherwise dealt with in the same manner and form as any land held under the provisions of the Real Property Act, 1900, as amended by subsequent Acts.
(3) (a) Subject to the provisions of this section, any transfer, lease, mortgage or other dealing affecting a lot shall have the same effect as a similar dealing affecting a lot in a plan of subdivision registered pursuant to section one hundred and ninety-six of the Conveyancing Act, 1919, as amended by subsequent Acts.
(b) A strata plan shall, for the purposes of the Real Property Act, 1900, as amended by subsequent Acts, be deemed upon registration to be embodied in the register book; and notwithstanding the provisions of that Act, as so amended, a proprietor shall hold his lot and his share in the common property subject to any interests affecting the same for the time being notified on the registered strata plan and subject to any amendments to lots or common property shown on that plan.
4. (3) Every strata plan lodged for registration shall be endorsed with or accompanied by a certificate -
(a) of a surveyor registered under the Surveyors Act, 1929, as amended by subsequent Acts, that the building shown on the strata plan is within the external surface boundaries of the parcel the subject of the strata plan and where eaves or guttering project beyond such external boundaries, that an appropriate easement has been granted as an appurtenance of the parcel;
(b) of the town or shire clerk of the local council that the proposed subdivision of the parcel, as illustrated in the strata plan, has been approved by the local council;
(c) pursuant to section 317A of the Local Government Act, 1919, as amended by subsequent Acts, in respect of the building.
Before considering the respective arguments it is appropriate to summarise from the evidence the events leading up to the approval of the Strata Plan:
1. In 1968 the developer applied for approval to build EBG described as a Block of Home Units with Parking Facilities, with off-street parking for 123 cars: see Exhibit A2 p 20205.
2. In 1969 the Consent approved the development with 83 flats and provision for the free parking of 104 cars by occupants of the proposed building on the three lower floors.
3. On 7 August 1970 the developer sought approval of a plan of subdivision, described in the memorandum of 22 September 1970 of the Council's City, which is detailed in (6) below.
4. On 10 August 1970 the Council agreed to vary the Consent by altering the number of units to 84 and described the building as "a multi-storeyed residential flat building with provision for 'offstreet car parking'": see Exhibit A5 p 50077.
5. A Certificate of Compliance under s 317A of the Local Government Act 1919 (NSW) was issued on 20 August 1970: see Exhibit A4 p 40094.
6. On 22 September 1970 the City Engineer referred to s 20(2) of the CST Act and recommended that Council approve the subdivision of 165 lots (see: Exhibit A2 p 20287 - 20289). The Council approved the Strata Plan which provided for residential lots (residential units) and parking lots ('car parking spaces') and there was no by-law precluding the use of parking lots by non-resident parking lot owners. The City Engineer in his report to the Town Clerk of 22 September 1970 (see: Exhibit A2 p 20287) said, inter alia:
The purpose of this Act [the CST Act], which commenced on the 1st July, 1961, is to permit the subdivision of buildings into units for each of which a Certificate of Title will issue.
The strata subdivision submitted provides for a total of seventy-eight (78) residential units, referred to as Lots 1-75, inclusive, and 162-164, inclusive, of the proposed strata subdivision, and eighty-seven (87) car parking spaces, referred to as Lots 76-161, inclusive, and Lot 165 of the subdivision, located in the subject sixteen (16) storey and two (2) basements brick and concrete residential flat building.
…
The abovementioned car parking spaces, referred to as Lots 76-161, inclusive, and Lot 165 of the proposed strata subdivision, on the sub-basement, basement, and ground floors of the building have dimensions varying from 8' to 11'6" in width from 18' to 18'5" in depth, with areas of from about 144 square feet to about 207 square feet, as shown in the schedules on sheets Nos. 7 and 8 of the subject strata plan of subdivision.
1. On 6 October 1970 the Council resolved to approve the subdivision and noted the requirement of the body corporate, under s 21 of the CST Act, to furnish copies of the registered plan for rates and taxes (see: Exhibit A4 p 40111). This resolution stated:
That approval be given under the Conveyancing (Strata Titles) Act 1961 to the subdivision of the building known as Nos. 15/10 Onslow Ave, Elizabeth Bay, erected on land being the whole of land comprised in Lot 1, Deposited Plan No. 543102, having frontages to Onslow Avenue, Greenknowe Avenue, Crick Avenue and Macleay Street respectively, into one hundred and sixty-five (165) lots, as indicated on the Strata Plan of Subdivision submitted by the Applicants, Messrs Malcolm T. Jones & Burgess, Registered Surveyors. (see: Exhibit A5 p 50082)
1. On 6 October 1970 the approval by Council of the subdivision was recorded: see Exhibit A5 p 50082.
2. On 6 October 1970 the Town Clerk endorsed the Strata Plan: "Approved by the Council for the purposes of the Conveyancing (Strata Titles) Act 1961": see Exhibit A1 p 10055.
3. On 6 October 1970 the Strata Plan was registered: see Exhibit A5 p 50084 - 50095.
It will be observed that the Council approval and the Certificate issued do not refer to the nature of the lots (residential or parking) but the Strata Plan shows "1 level parking" and "3 level parking" within the footprint of the building and the small lots are shown as located in the basement, sub-basement and ground floors (see: Exhibit A5 p 50084). The Strata Plan, itself, makes clear that lots 1 - 75, 162 - 164 are large (and inferentially are intended to be the residential lots) and lots 76 - 161 are small (and inferentially are intended to be the parking lots). There can be no doubt whatsoever that Council was made aware and proceeding upon the basis that 87 of the lots (the smaller sized lots) were parking lots and 78 lots (the larger sized lots) were residential lots.
By reason of s 20 of the CST Act, the Council was required to issue a certificate if it was satisfied that separate occupation would not contravene the provisions of any relevant scheme, and that any consent or approval required had been given in relation to the separate occupation of the proposed lots and that the proposed subdivision of the parcel into lots for separate occupation would not interfere with the existing or likely future amenity of the neighbourhood having regard to the circumstance of the case and the public interest.
Mr Evans submitted that if a person has the right to possession of the car space they occupy that car space by parking their car in it: see T121. This accords with general principle (see: Wheat v E Lacon & Co Ltd [1966] AC 552 at 577 per Lord Denning and see Melbourne Tramway & Omnibus Co Ltd v Mayor of Fitzroy [1901] AC 153 at 169). Mr Ashhurst did not offer any alternative view about occupation of a car space, saying that "you have a right to possession of it and you take possession of it". He agreed that consent had been given to the parking lot owners to occupation (see: T145.16 - T145.40). Mr Ashhurst' s position was, however, that occupation and use are two very different matters and s 20 of the CST Act is concerned only with occupation and not use.
The Owners Corporation contends that s 20 of the CST Act is concerned with occupation of the land and not use, referring to Smith v Randwick Municipal Council (1950) 17 LGR (NSW) 246, Wehbe v Pittwater Council [2007] NSWLEC 827, and Currency Corporation Pty Limited v Wyong Shire Council [2006] NSWLEC 692 and submits that approval of the strata plan did not involve any use of the land on which the building stands, and "it is the Consent that permitted the separate occupation of the flats and the accompanying car spaces": see paragraph 74 of the DFWS.
In Smith v Randwick Municipal Council (1950) 17 LGR (NSW) 246 Sugerman P said at 250:
The approval of a subdivision into lots of, say, 18 feet or 19 feet frontage is in law the approval of a subdivision simpliciter and not its approval with any condition or for any particular purpose such as shops or dwellings, etc. The question what sort of building may be erected upon the respective blocks is one which in strictness arises for decision later when it is sought to build on them and one which will be affected by circumstances as they then exist, by various considerations including the size of the lots, and by other matters which may have occurred in the meantime, such, for instance, as the proclamation of the area as a residential area.
This passage was cited with approval and followed in Wehbe v Pittwater Council [2007] NSWLEC 827. In Smith the owner wanted to subdivide what had been three blocks of land into two blocks of equal area. There was at the time of the application a pair of semi-detached buildings on the land and the owner contemplated the division of the two new blocks through the existing building, which Council opposed.
In Wehbe the owners of land, on which was erected a kiosk and other buildings, wanted to subdivide the land and demolish the existing structure, but without any application on foot for the new building. The question was whether the application could be characterised as one seeking to change an existing use of the land to another use and Preston CJ of the Land and Environment Court held that it could not because neither demolition, nor subdivision, involved use of the land.
In Currency Biscoe J, in dealing with an argument about use in connection with a block of flats built in 1958, said at [36]:
The development the subject of the 1974 approval ceased to be "carried out" in 1975 when the strata plan endorsed with the certificate of approval was registered and the associated works finalised. That "development" was exhausted at that time. Thereafter there was nothing left to be "carried out". The 1974 approval assumed the underlying use of the residential flat building, rather than constituting a consent to it.
In Apex Developments Pty Ltd v Holroyd Municipal Council [1974] 1 NSWLR 313 Sheppard J, in considering whether or not the defendant Council was entitled to refuse to grant a certificate in connection with a plan of subdivision, pointed out that s 20 is directed to the question of separate occupation, not ownership: see p 319.
Mr Evans contended that none of the cases relied upon by the Owners Corporation was relevant to the present case.
I accept that, generally speaking, approval of a subdivision 'simpliciter' is not an approval of use. However, s 20(1) of the CST Act itself draws a distinction between subdivision for the purposes of a Strata Plan and subdivision of the normal kind to which provisions of the LGA apply, and none of the cases cited by the Owners Corporation concern the present situation i.e. where a plan of strata subdivision with provision for separate lots for residential use and for parking is, after construction of the building, approved pursuant to s 20 of the CST Act and the Council is fully appraised of the purpose of the subdivision. Of the two cases relied on by the Owners Corporation which deal with a strata plan Currency was concerned with circumstances, legislative provisions and issues that have no relevance to the present case. Apex was a case concerned with whether a plan submitted to Council met the requirements of a Strata Plan- Sheppard J held that it did not because the plan did not show the whole or any part of the land being divided into two strata. I do not regard Apex as providing any support to the Owners Corporation's submissions.
Even accepting that the Strata Plan itself does not expressly refer to "parking lots" and "residential lots" (or 'residential units' and 'car parking spaces') the objective facts that arise from the material upon which Council was proceeding, including the Strata Plan itself, and to which I have already referred- namely that the Council approved of a Strata Plan in which 87 of the lots were created for owners of those lots to park their vehicles, cannot be ignored.
Reference was made in the course of submissions to the question of whether the Council could, when approving the plan of subdivision, have imposed a condition relevant to the parking lots. The Plaintiffs had in their pleading contended that no condition was imposed by the Council at the time of approving the plan of subdivision, which contention has been made good. Mr Evans submitted that Council could have done so (see: T123.37) and Mr Ashhurst contended that it could not and relied on Gibbs v Ashfield Municipal Council (1988) 65 LGRA 425 (see: T142). Gibbs was dealing with s 37 of the Strata Titles Act 1973 (NSW) (a provision similar, but in important respects not identical to s 20 of the CST Act), which does preclude a consent from imposing conditions unless the condition related to a 'utility lot', dealt with in s 39 of the Strata Titles Act 1973 (NSW). Section 39 did permit the imposition of conditions in relation to utility lots (including lots for "the accommodation" of motor vehicles). An example of a condition of that kind and similar to the type for which the Owners Corporation contend here, is the one imposed in Michael Raad Architects Pty Ltd v Strathfield Municipal Council [2018] NSWLEC 1019.
The Strata Plan in this matter, however, was registered in 1970, before the introduction of the Strata Titles Act 1973 (NSW), so the relevant legislation at the time of the registration of the plan of subdivision was the CST Act. It did not contain any restrictions on conditions being imposed in contrast to s 37 of the later Act.
In Granville Developments Pty Ltd v Holroyd Municipal Council [1969] 2 NSWR 377; (1969) 18 LGRA 34, 37 - 38 Else-Mitchell J explained the operation and effect of s 20 of the CST Act as follows:
Regardless of when the issue of a certificate is sought, however, the council's discretion to direct its issue is conditioned upon the council being satisfied of the matters specified in pars. (a), (b) and (c). These may seem inconsistent inter se, and there was much debate before me as to whether they were cumulative or alternative, but it appears to me that all three paragraphs have a common relevance to the planning controls which have been imposed under or by virtue of Pt XIIA of the Local Government Act. So much is explicit in par. (a), which requires that the separate occupation of the proposed lots will not contravene the provisions of a prescribed scheme, and this would seem to be appropriate to conforming uses under provisions such as the land use table in cl 26 of the County of Cumberland Planning Scheme Ordinance and, possibly, existing uses under cl 32 of that Ordinance; par. (b) is directed to those cases where the development is not a conforming use, but a permissible use which under col. IV of the land use table would require the consent of the responsible authority, or where the land is subject to interim development control under s 342s, et seq., of the Local Government Act, and here again there must in each case be a consent to the separate occupation of the proposed lots in the strata plan; par. (c) then appears to me to be concerned with those cases in which there is no planning control under or by virtue of Pt XIIA of the Local Government Act, and in those instances, which may now be fairly rare, the council must be satisfied that the building and the proposed subdivision into lots for separate occupation will not interfere with existing or likely future amenity having regard to the circumstances of the case and the public interest.
If this analysis be correct the three paragraphs are concerned with the same thing, namely that planning controls should not be ignored by resort to the device of registration of a strata plan, and even if there are no planning controls s 20 (2) (c) is designed to ensure that the amenity of the neighbourhood will not be disregarded. In most cases falling under par. (b) the question of amenity will have been considered by the responsible authority when development approval was sought and the council, as responsible authority, will have had regard to such matters as are set out in cl 27 of the County of Cumberland Planning Scheme Ordinance which include existing and future amenity as well as the circumstances of the case and the public interest (cl 27 (e) and (f)); but in other cases, particularly where there is no planning scheme at all, the question of amenity and other matters mentioned in par. (c) will have to be considered.
It was pointed out in argument that the discretion of the council not to issue a certificate on amenity grounds may not be of much significance where it is sought in respect of a building which has already been erected, for a refusal of the certificate and an inability on the part of the owner to obtain registration will not prevent the use and occupation of the building (cf. Re Lehrer and the Real Property Act, 1900-1956 [(1)] ). But it would reinforce a council's power to refuse approval to the construction of a building under Pt XI in areas where there is no planning scheme, if the applicant disclosed his intention to subdivide it into lots by means of a strata plan after completion; and even if the building is an existing and completed structure considerations of amenity and other circumstances mentioned in par. (c) might lead a council to refuse to allow it to be subdivided for separate occupation; this could be the case where the conversion of large residences or other buildings is sought for multiple occupation in small units. There may be other circumstances in which the local amenity would be protected or the public interest better preserved by refusing approval of a certificate under s 20 (2) (c), but it is not necessary here to attempt any categorization of them, for in all the present appeals development consent had been granted to the construction of the relevant buildings under the County of Cumberland Planning Scheme Ordinance. As these consents necessarily involved a decision by the council under cl 27 of the Ordinance upon matters identical with or substantially similar to those posed by s 20 (2) (c), and as no change of circumstances was suggested since the granting of the development consents, I am unable to see any basis upon which it was open to the council to assert that it was not satisfied of the matters specified in that paragraph.
If the Council in the present case was not satisfied that separate occupation of the proposed lot would not contravene the provision of the relevant scheme and that consent or approval had not been given in relation to the separate occupation of the proposed lots, or if it did not regard the plan as complying or did not approve of the subdivision for any reason, it was, in any event, open to it to refuse to approve the Strata Plan and to not have issued the certificate- that it could take that course is supported by Granville Developments and see also Williams v North Sydney Municipal Council (1965) 11 LGRA 224 per Hardie J.
I do not accept the Owners Corporation's submission that no grant of any right to use the parking lots for parking can be implied from the approval of a Strata Plan for separate parking lots. In my view by approving a subdivision of the building which created 87 lots for the parking of cars, Council must be taken to have approved, thereby, the occupation of those lots for parking. As Mr Evans contended, parking a car very obviously is the use (or at least the principal use) that will be made of a parking lot.
By force of s 4 of the CST Act the certificate issued indicated that the Strata Plan had been approved by the Council and by force of s 3 of the CST Act, Council's approval of the creation of separate parking lots entailed separate occupation of those lots by owners of those lots and the sale, devolution and dealing with those lots permitted to the same extent as land held under the Real Property Act 1900 (NSW). To accept that a person can be the owner of a parking lot and occupy that lot without any requirement that he be a resident of EBG, as the plan of subdivision does, carries with it, as Mr Evans contended, the right to use the parking lot for its intended purpose without restriction, and consent to that use by Council.
It follows, in my view, that Council must have necessarily intended to resile from, or revoke, the requirement that car spaces created could only be used by residents of EBG, and must be taken to have accepted that whoever became the owner of a parking lot created by the Strata Plan approved by Council, whether a resident or not, could use the parking lot for its intended purpose. The use of the parking lots by the Plaintiffs does not entail any breach by them of s 76A or s 76B of the EPA, as contended by the Owners Corporation. Whether the Council consented to the use of the parking lots by non-resident owners because it understood that not every owner of a residential lot would have a car and a positive effect of taking cars off the street would be promoted ([50(4)] supra may be of relevance in this connection), or because it was considered that all or most of the parking lots would be purchased by the purchasers of residential lots, or for some other reason, it is not necessary to determine, but it might explain why Council has been unwilling to take any action in respect of EBG's failure to comply with the terms of the Consent to date.
Whilst in order to arrive at the conclusion to which I have come, as set out above, it has not been necessary to address the disparity between the reference in the Consent to 104 car spaces within the building and the 87 parking lots that have in fact been created, I think that the fact that the requirement for 104 car spaces has not been adhered to is a matter of interest. I raised this matter with Mr Ashhurst (see: T93 - T95 and T99 - T101) and there are no documents in evidence which explain the change, other than the approval of the Strata Plan with only 87 lots for parking. One possibility raised by Mr Ashhurst is that the Council had, by issue of the s 317A Certificate, thereby approved the reduction in numbers from 104 to 87 (see: T94). There is no document in evidence which establishes whether, as at the date of the s 317A Certificate, there were in fact 104 car spaces and in any event if a s 317A Certificate can effectively amend a condition of Consent this would support the Plaintiffs' contention that a Certificate of approval of the Strata Plan, with no restriction on the parking by parking lot owners can also do so. In my view the approval of only 87 parking lots in the Strata Plan (as opposed to 104 car spaces in the Consent) can be taken to reflect a change of position of the Council, which would preclude the Council from contending that 104 car spaces were still required, and if that is correct that only strengthens the Plaintiffs' case. A further consequence would be that the residential lot owners who also own parking lots would not be in breach of any planning law by parking their vehicles in those lots, and nor would the Owners Corporation for not ensuring that there were 104 spaces.
It follows that each of the Plaintiffs is entitled to park his or her vehicles on their respective parking lots. It also follows that SBL7 is defective for an additional reason and should be removed from the Register.
Injunctive Relief
Having regard to my conclusion in respect of the second issue, it is not necessary for me to consider the issue of injunctive relief. I observe, however that:
1. Section 123 of the EPA does not limit relief to Councils (contrary to Mr Evans' initial contention).
2. Mr Ashhurst did indicate that if the Plaintiffs are not entitled to park in the parking lots the Owners Corporation accepts that it not be able to enforce the injunction for a period of five years (T118.20 - T118.25).
3. The question of whether injunctive relief should be granted is a matter of discretion and guidelines to the exercise of that discretion can be found in Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 at 339 - 341, per Kirby P and I should note that the DFWS did make reference to a number of authorities to which regard would need to be had i.e. Council of the Municipality of North Sydney v Sydney Serviced Apartments Pty Ltd [1992] NSWLEC 43, Council of the City of Sydney v Waldorf Apartments Hotel Sydney Pty Ltd (No 2) [2008] NSWLEC 122, White v Betalli (2006) 66 NSWLR 690, Hamlena Pty Ltd v Sydney Endoscopy Centre Pty Ltd (1990) 5 BPR 11,436, Craig-Gordon v Proprietors-Strata Plan No 16 [1964-5] NSWR 1576.
4. There are a number of matters which, in my view, are potentially relevant to the exercise of discretion in this case should the Owners Corporation have been successful on both issues, which were not canvassed in submissions and upon which I would have invited counsel to address should that have been necessary, namely:
1. The Council has taken no action in forty years to enforce the terms of the Consent and made it clear to the Owners Corporation in 2012 that it did not regard it as a matter requiring action to be taken by it: see T76.5 - T76.23, and in 1980, at least, seems to have thought it was not within its jurisdiction to prevent non-tenants from using the parking lots.
2. If the issue of the s 149 Compliance Certificate did not of itself entail Council abandoning the requirement for 104 spaces within the building, and the Owners Corporation's submissions on both issues (1) and (2) were accepted, then the Owners Corporation would be seeking to enforce only part of the Consent i.e. not that part which requires 104 spaces to be provided.
3. There was no awareness of the problem on the part of the purchasers of parking lots until 2014.
4. The enforcement of the Consent benefits no one but the owners of the residential lots.
5. Injunctive relief may be more likely to lead to unused parking spaces in EBG than non-enforcement, and the effect of granting injunctive relief more generally.
6. There does not appear to be any damage to the Owners Corporation if the injunctive relief is refused.
Costs and Orders
Mr Evans has submitted that, if successful in this litigation, the Plaintiffs should not only obtain a costs order in their favour, as is usual, but that no share of the costs ordered to be paid by the Owners Corporation should be paid by them as lot owners. Mr Ashhurst did not put anything in opposition to that and accepted that there was authority to support the Plaintiffs' approach (see: T86.32 - T87.12). I will invite counsel to consider, consequent upon these reasons, the appropriate form of orders which should be made, which orders should include the issue of costs. I will fix a timetable by which the Plaintiffs are to provide to the Owners Corporation a proposed form of orders and the Owners Corporation are to respond. In the event that there is disagreement about the issue of costs, or any other aspect of the form of orders, I will require submissions on those matters to be provided, and provision can be made in the timetable for that eventuality.
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Decision last updated: 08 February 2018