Tatton Park Pty Ltd v Randwick City Council

It is first necessary to turn one's attention to subparagraphs (i) and (ii) of subsection 37(1)(b) of the Act. This in turn directs attention to the terms of any consent required under the Environmental Planning & Assessment Act 1979 ("the EP&A Act"); and for the purpose of resolving the identified issue, whether any such consent has been given to the separate occupation of the proposed lots illustrated on the plan.

On 3 March 1995 Talbot J, (apparently exercising the powers of the Court on an appeal under s 97 of the EP&A Act against either the refusal or deemed refusal of a development application), made an order granting consent to a " development application for the conversion of the existing Coogee Sands Motel into 81 serviced apartments and subdivision pursuant to the Strata Titles Act " subject to certain conditions ( Alanto Investments Pty Ltd v Randwick City Council , NSWLEC, 3 March 1995,unreported). The conditions of consent relevantly include: 15. All strata tille units being used as serviced apartments and all strata title car spaces being used as an adjunct to the use of the said units as serviced apartments as defined in Local Environmental Plan No 104 made 23 March 1993.

18. A total of 56 car parking spaces are to be provided as shown in the approved plans.

On 10 December 1996 Talbot J ordered by consent that the development consent granted by him on 3 March 1995 be modified in a number of respects. One of the modifications was that condition 18 of the consent be amended to read: A total of fifty two (52) strata title car parking spaces are to be provided as shown on the amended approved plans.

On 14 April 2000 Talbot J delivered judgment on a further application for modification of the consent. The modification which was sought was the incorporation of the draft strata plan into condition 1, which condition identifies the plans which are the subject of the development consent. The applicant contended before Talbot J that the order made by his Honour on 3 March 1995 together with conditions 15 and 18 (as subsequently modified) demonstrates that the Court intended to and did approve the strata plan. Talbot J said that he was not persuaded that his previous order " was intended to grant subdivision approval beyond in principle consent to the concept of a strata subdivision " and refused the application for modification ( Alanto Investments Pty Ltd v Randwick City Council [2000] NSWLEC 74). In the course of delivering his reasons Talbot J made reference to the present issue: The only dispute between the council and applicant so far as the Court is aware relates to the conjunction of those lots in the strata plan comprising an apartment and the lots comprising individual car spaces. The council contends that condition 15 requires that the individual strata title lots proposed to be used for serviced apartments should incorporate the individual strata title car spaces so that they together form one lot. The strata plan produced to the Court in support of the application for modification does not on its face establish that relationship.

Talbot J did not go on, however, and decide the issue which he had thus identified.

In order to determine the issue it is necessary to construe the consent granted by Talbot J, as modified. If it is a consent which satisfied subparagraphs (i) and (ii) of subsection 37(1)(b) of the Act then, provided subparagraph (iii) is also satisfied, the Court standing in the shoes of the respondent local council, shall issue a certificate of approval of the strata plan.

As noted in paragraph 7 above Talbot J held on 14 April 2000 that the consent which he granted on 3 March 1995 was an " in principle consent to the concept of a strata subdivision ". It was thus not an approval under s 37 of the Act. The essential question which now arises is: was it an in principle consent to the concept of a strata subdivision of the car spaces as separate lots in a strata plan? This question can be answered, in my opinion, by construing the language of the consent, as modified.

As noted in paragraphs 5 and 6 above, the consent granted by Talbot J incorporates a number of conditions. Condition 15 refers to " all strata title car spaces ...". This language suggests that the car spaces were each to be the subject of a separate strata lot. The condition then continues by requiring that all such strata title car spaces be " used as an adjunct to the use of the said units ..." . The use of the word " adjunct ", the primary meaning of which is " something added to another thing but not essentially a part of it " (Macquarie Dictionary) suggests that it was not intended that the car spaces form part of the same lot as the residential units. There seems to have been a deliberate choice of the word " adjunct " rather than another word such as " appurtenant ", the primary legal meaning of which is " a right, privilege, or improvement belonging to and passing with a principal property " (Macquarie Dictionary). Moreover, the car spaces are to be used as an adjunct to " the use " of the said units, which suggests an association of use rather than of title. In short, the language used suggests that the consent is an in-principle consent to the concept of separate strata lots for each car parking space.

Condition 18 as modified and which I have described in paragraph 6 above leads to the same conclusion. The condition as originally drafted contained no reference to strata title. It merely required the provision of a total of 56 car parking spaces. Two important changes were made in the modified condition 18. The first change was to the number of car parking spaces: 52 instead of 56. The second change is the inclusion of the words " strata title " immediately before the words " car parking spaces ". That is to say, the modified condition 18 amounts to an in principle consent to the concept of 52 individual strata titled car parking spaces.

I therefore conclude that as a matter of language the consent granted by Talbot J and subsequently modified by him was an in principle consent for 52 individual strata titled car parking spaces as an adjunct (as distinct from appurtenant) to the use (but not the title) of the residential units. This conclusion means that the proposed strata plan satisfies the matters set out in subparagraphs (i) and (ii) of subsection 37(1)(b) of the Act.

The remaining question is whether the proposed strata plan satisfies subparagraph (iii) of subsection 37(1)(b). On this question the applicant relies upon three affidavits of Mr J A Snellgrove (its solicitor) and the affidavits of two expert witnesses, Mr N Ingham (town planner) and Mr O Sannikov (traffic engineer). The respondent relies upon the reports of two expert witnesses, Mr M Johnson (consultant environmental planner) and Mr C T McLaren (traffic engineer).

The affidavits of Mr Snellgrove do not relate to the question of the existing or likely future amenity of the neighbourhood. Rather, they relate to the circumstances of the case and in particular the steps taken by the applicant following the grant of development consent on the assumption that the applicant would be able to have a strata subdivision with separate lots for each car space and to the need of the applicant for separate strata lots for each car space.

Mr Ingham expresses the opinion that the principle of the development consent is to ensure that the car parking spaces cannot be used otherwise than as car parking for the residential units. The terms of the restriction on use ensure that the car spaces must be used as an adjunct to the serviced appartments. In Mr Ingham's opinion there are no differences in traffic generation which would apply to the site as a result of the car parking spaces not being attached to a particular unit.

Mr Sannikov notes that currently 81 apartments enjoy a parking provision of 52 spaces; that is, a rate of car parking provision of 0.64 car spaces per apartment. Not every apartment generates a need for a car space, so that a degree of flexibility is presently enjoyed. Should car spaces be attached to particular apartments, the situation would be different. As he points out in his affidavit:

Should the car spaces be attached to particular apartments, the situation would become different. For any car space being attached to a particular apartment, the rate of car parking provision for the remaining apartments would decrease. The more apartments would have a car space attached to them, the worse parking provision rate would become for the remaining apartments. Eventually, parking provision would become zero for 29 apartments if the other first 52 apartments were to be allocated one car space each. In my opinion, this situation would be unacceptable. It is my opinion that car space lots should not be attached to Strata lots.

Mr Johnson notes that Condition 15 of the development consent requires all strata title car spaces to be used as a adjunct to the use of the units. He states that the principal question is how the 52 strata car spaces should be added to the strata title unit lots; and the simplest way of achieving this is to require all strata title car spaces to be tied to the individual strata title lots and it is clearest way of satisfying Condition 15 of the development consent. Mr Johnson states that the council has a concern that the independent lots could be sold off or, alternatively, be used independently of the apartments.

Mr Johnson states, alternatively, that all car spaces should form part of the common property with an accompanying restriction as to user registered pursuant to section 88B of the Conveyancing Act 1919 prohibiting the grant of any exclusive use of the common property without the consent of the council.

Mr McLaren refers to the possibility that owners of the strata car spaces may themselves utilise those spaces, forcing the occupiers of the residential units to park on the street, leading in turm to kerbside parking demand which is already heavily utilised.

It seems to me that the opinions of Mr Johnson are met by the following considerations:

a) The language chosen in Condition 15 of the development consent, as noted in paragraph 10 above, is consistent with the concept of separate strata lots for each car parking space, rather than as part of the same lot as the residential units;

b) Both Condition 15 and Condition 18 (as modified) of the development consent refer to strata title car parking spaces, which, as noted in paragraphs 10 and 11 above, amount to an in-principle consent to the concept of 52 individual strata title car parking spaces;

c) It follows that in the grant of development consent and in the modification thereof it was intended that the car parking spaces each be the subject of individual strata title lots. The concerns that are now expressed by the council were not concerns which it had when the development application and the modification thereof was being considered;

d) The court has previously been disinclined to require the registration of restriction on the use of land pursuant to section 88B of the Conveyancing Act (or even a restriction under the more appropriate section 88E) McDonald v Mosman Municipal Council [1999] NSWLEC 215.

The opinion of Mr McLaren is met by simply enforcing Condition 15 of the development consent. Moreover, the consequences of attaching the car spaces to particular residential units described by Mr Sannikov (and as noted in paragraph 16 above) suggests that doing so would have the adverse consequences which he has described. In my opinion the views of Mr Ingham and Mr Sannikov are persuasive, and I am satisfied that paragraph (b) (iii) of sub-section 37(1) of the Act is also satisfied.

1. Appeal allowed.
2. I direct the council to issue to the applicant a certificate of approval of the proposed strata plan, being Exhibit 4 in these proceedings, pursuant to section 37 (1) of the Strata Schemes (Freehold Development) Act 1973.
3. The exhibits, other than Exhibit 4, may be returned.

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3. The exhibits, other than Exhibit 4, may be returned.