The Owners - Strata Plan No. 4983 v Canny - [2018] NSWCA 275 - NSWCA 2018 case summary

Court of Appeal (NSW)|2018-07-27|Before: McColl JA, Payne JA

Background

Elizabeth Bay Gardens was the subject of a Development Application to Sydney City Council (the "Council") on 29 March 1968. On 10 February 1969, the Council issued a Development Consent under the now-repealed Local Government Act 1919 (NSW) and the County of Cumberland Planning Scheme Ordinance, a scheme introduced by the Local Government (Amendment) Act 1951 (NSW). The building was completed in 1970. On 6 October 1970, strata subdivision approval was granted by the Council.
The Development Consent contained a description of the Development Application, which itself included the following information about parking at the property: "…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…"
On 29 October 1970, Strata Plan No. 4983 was registered by the Registrar-General as a strata plan comprised of 165 lots, 87 of which were "parking lots" (fewer than the originally planned 104 "free parking" spaces), and 78 were "residential lots".
From 1970 until 2014, parking lots were bought, sold and used by parking lot owners, some of whom were residents of Elizabeth Bay Gardens and some were not. The appellant, the Owners Corporation of Strata Plan No. 4983, was aware throughout that period that some of the parking lots had been purchased by non-residents. The Owners Corporation levied non-resident parking lot owners for strata levies and those levies were paid. The respondents originally relied upon a pleaded estoppel but for reasons which are unclear this claim was abandoned before the case was heard by the primary judge.

Primary judgment

The parties agreed that the County of Cumberland Planning Scheme Ordinance, attached to the Local Government (Amendment) Act, was the relevant source of legislative requirements and restrictions at the time that Elizabeth Bay Gardens was developed.
It was also common ground that any use permitted by the Development Consent in 1969 was continued by later planning schemes pursuant to ss 76A and 76B of the Environmental Planning and Assessment Act 1979 (NSW) (now renumbered as ss 4.2 and 4.3).
The relevant sections of the County of Cumberland Planning Scheme 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."
The Table to clause 26 of the Ordinance provides that "residential buildings" 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 single house) designed for human habitation together with such outbuildings as are ordinarily used therewith.
The primary judge found that, to build Elizabeth Bay Gardens and use it as a residential building, the developers were required to obtain consent and the use which was permitted was that of a "residential building".
The primary judge framed the case as raising three issues. The first issue was whether the Development Consent, by its terms, permitted use of the allocated parking spaces by non-residents. The crucial phrase in the Development Consent was "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". The primary judge held that this phrase should be construed as a "requirement" that the developer make available 104 parking spaces for residents of Elizabeth Bay Gardens who were the "occupants" referred to in the Development Consent, although his Honour accepted that this was not a condition of the Development Consent. It followed that non-resident owners of parking lots were not permitted to use the lots for parking by the Development Consent. The appellant thus succeeded on this issue.
The second issue addressed by the primary judge was whether the approval by the Council of the plan of subdivision for Elizabeth Bay Gardens, which contained both residential lots and parking lots, thereby permitted the use of the parking lots by owners of those lots, whether or not they also were residents of Elizabeth Bay Gardens. The Conveyancing (Strata Titles) Act 1961 (NSW) permitted the subdivision of land into lots by registration of a strata plan (s 3) with accompanying certificates (s 4). A Certificate of Compliance under s 317A of the Local Government Act was issued on 20 August 1970, and the Strata Plan of Subdivision application was approved by resolution of the Council on 6 October 1970.
The primary judge held that, by approving a subdivision of a building which created 87 strata lots for the parking of cars, Council must be taken to have approved, thereby, the occupation of those lots for parking. By virtue of the Certificate under s 4 of the Conveyancing (Strata Titles) Act and by force of s 3 of the Conveyancing (Strata Titles) Act, Council's approval entailed separate occupation of those lots by their owners. His Honour held that Council "must have necessarily intended to resile from, or revoke, the requirement [in the Development Consent] that car spaces created could only be used by residents of Elizabeth Bay Gardens …". The respondents succeeded on this issue, however, in oral submissions in this Court Mr Coles QC, who appeared with Mr Evans for the respondents, made clear that the respondents did not seek to support the decision of the primary judge on this basis.
Finally, the primary judge found that SBL7 was "clearly introduced to preclude non-resident owners from parking their cars in their parking lots". The primary judge also found that SBL7 was deficient in form in that it did not make clear what the parking lot owners could or could not do or make clear that the Council had indicated that it did not propose to take any action in respect of any asserted breach of the Development Consent relating to parking by non-residents. His Honour held that SBL7 should be set aside, regardless of the outcome of the other issues before him.

Notice of appeal

The notice of appeal contained 11 grounds: "1. His Honour erred in law by finding (at paragraphs 67 to 69 of the judgment) that the plan of subdivision for the building known as 15-19 Onslow Avenue, Elizabeth Bay (Strata Plan) approved by Sydney City Council (Council) under section 20 of the Conveyancing (Strata Titles) Act 1961 on October 1970 (Strata Approval) approved the use of parking lots in the Strata Plan (Parking Lots) by persons other than residents of the building the subject of the Strata Plan. 2. His Honour erred in law by framing (at paragraph 26 of the judgment) as a question to be answered for the purposes of the hearing, whether the Strata Approval permitted the use of the Parking Lots by owners of those lots. 3. His Honour should have held that the correct question to be answered was: "Did the approval of the Council of the plan of subdivision on 6 October 1970 constitute a 'consent' within the meaning of s 76A of the Environmental Planning and Assessment Act 1979 or clause 29 of the County of Cumberland Planning Scheme Ordinance or alternatively a variation of the 'consent' granted by Council on 10 February 1969?" 4. His Honour should have held that the relevant 'consent' required under cl 29 of the County of Cumberland Planning Scheme Ordinance (to permit the use of parking lots) was that described in clauses 27 and 41 of the County of Cumberland Planning Scheme Ordinance, being a 'consent to an application for use of a building' and accompanied by the requirements prescribed by cl 41(1)(a) of that Ordinance (including plans and a description of the current use and proposed use). 5. His Honour erred in law by finding that an approval under section 20 of the Conveyancing (Strata Titles) Act 1961 was or could constitute an approval for the use of land for the purposes of clauses 27 and 41 of the County of Cumberland Planning Scheme Ordinance or section 76A or alternatively section 76B of the Environmental Planning and Assessment Act 1979. 6. His Honour should have held (contrary to the finding by His Honour at paragraph 69 of the judgment) that the respondents were in breach of section 76A or alternatively section 76B of the Environmental Planning and Assessment Act 1979. 7. His Honour erred in law by finding that Special By-Law 7 for Strata Plan 4983 (Special By-Law 7) was invalid. 8. His Honour should have held that the respondents were in breach of Special By-Law 7. 9. His Honour should have found that the respondents were not entitled to use the Parking Lots in a manner contrary to Special By-Law 7. 10. His Honour should have granted injunctive relief restraining the respondents from parking in the Parking Lots contrary to Special By-Law 7. 11. His Honour, in the exercise of his discretion, should have stayed the operation of an injunction against the respondents for a period of 5 years."

Notice of contention

Three grounds were raised in the notice of contention dated 17 April 2018: "1. The learned trial judge erred in finding that the Development Consent dated 10 February 1969, by its terms, did not permit the use of the allocated parking spaces by non-residents. 2. The learned trial judge erred in finding, as he did that the Development Consent dated 10 February 1969, by its terms, did not permit the use of the allocated parking spaces by non-residents, that the said Development Consent imposed a condition on the development of the building mandating that all such non-visitor parking spaces be limited as to their use to the parking of vehicles owned by residents of the residential units in the building subsequently built on the site. 3. The learned trial judge erred in holding that the defendant should pay the plaintiffs' costs on the ordinary basis, subject to the allowance in respect of 80% of the costs of certain affidavits, for the whole of the proceedings and not holding that the defendant should pay the plaintiffs' costs on the indemnity basis from 26 February 2016 on the basis of the failure of the defendant to accept an open offer made by the plaintiffs on that date."

Notice of cross-appeal

The respondents cross-appealed on 25 June 2018 on five grounds: "1 The primary judge erred in holding that it was a condition of the Development Consent granted by the Sydney City Council on 10 February 1969 to the erection of the Elizabeth Bay Gardens building that car parking spaces or lots provided for in the plans for that building were only permitted to be used by persons who were also residents of residential lots in the building. 2 The primary judge erred in finding that the words, "with provision for the free parking of one hundred and four (104) cars by the occupants" of the proposed building imposed a condition in the nature of a restriction as to user in respect of private parking lots in the development that was the subject of the consent. 3 The primary judge erred in failing to find that upon acquisition of title to individual parking lots in Strata Plan 4983 being any of the lots numbered 76 to 161 inclusive and lot 165 the purchasers of such lots and their successors in title thereby became owners of the said lots free from all and any purported encumbrance or restriction as to user not recorded on the register or on the strata plan. 4 The primary judge erred in approaching the question of whether the Development Consent granted by Sydney City Council on 10 February 1969 imposed a condition effectively setting a restriction as to user on private parking spaces or parking lots to be included or provided in the lower three floors of the building to be constructed pursuant to the said Consent in the manner he did that: (a) he did not take properly into account the fact that the particular words, "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…" appeared in a section of the document headed "Brief Description of Application"; (b) in paragraph [40] of his judgment, his Honour addressed the question of the construction of those words on the basis of what he considered was the subjective intention of the person or persons drafting the consent, rather than addressing the question of construction from an objective consideration of the words used; (c) in the process described above, his Honour failed to give proper weight to the meaning of the word "occupants", and to the fact of the absence of the word "residents" in the wording of the consent; (d) he failed to give proper consideration to the fact that the Development Consent otherwise contained two express conditions dealing with matters concerning visitor parking spaces, in relation to which reasons mandated by the applicable statutory provisions were given; (e) he failed to properly apply the principle stated by Else-Mitchell J in Ryde Municipal Council v Royal Ryde Homes (1970) 19 LGRA 321; [1970] NSWR 277 as to need for clarity and certainty in any condition purportedly imposed by a Council in a consent and, in particular, the consequences that must flow in the event that any intended condition is not stated with sufficient clarity and certainty, and with proper reasons; and (f) he failed to take into account the curative effect of the Certificate of Compliance issued by Sydney City Council in respect of the subject development on 20 August 1970. 5 Further, or in the alternative, the learned trial judge erred in failing to refuse any relief to the Owners Corporation for the further reasons that: (a) Special By-law 7 was invalid and unenforceable; and (b) the Owners Corporation was, in substance, seeking enforcement of a planning condition pursuant to s 123 (now 9.45) of the Environmental Planning and Assessment Act 1979 without having made any application to the relevant court, and obtained such relief (if any, which is denied) which such court might grant."

Appellant's submissions

The appellant submitted that unless there is lawful entitlement to use the car parking spaces, their use is illegal. Under the Development Consent, only occupants of residential units within Elizabeth Bay Gardens can lawfully use the car spaces. The respondents are not occupants of the residential units within Elizabeth Bay Gardens. Therefore, the current use of the car spaces by the respondents is unlawful.
The appellant focussed its appeal on the "consent ground" (ground 1) and the "discretion ground" (ground 11). The appellant submitted that the Strata Approval was not and could not be construed as a "consent" under either the Environmental Planning and Assessment Act or the Ordinance, as the Strata Approval was concerned with subdivision, not use. The appellant submitted that grounds 2-6 lead to the same conclusion.
The appellant submitted that ground 10 is made out once the Court finds that the consent grounds are made out, and ground 11 provides a necessary degree of latitude for the respondents to accommodate an orderly return to the lawful state of affairs.
With regards to the consent ground, the appellant submitted that the primary judge failed to pose the correct question in the judgment and should have examined whether or not the Strata Approval was a "consent". The appellant submitted that the Strata Approval could never be considered as a "consent" for use. The appellant further submitted that, once the conclusion that the Strata Approval is not a "consent" is reached, SBL7 is "plainly valid and unexceptional".
With regards to the discretion ground, the appellant submitted that the Court should exercise its discretion to enforce the prohibition upon an unauthorised use: North Sydney Municipal Council v Sydney Serviced Apartments Pty Ltd (1988) 66 LGRA 373 per Bignold J. The appellant further submitted that SBL7 was a legitimate means by which the appellant has drawn the Development Consent to the attention of all lot owners. The appellant, however, submitted that if an injunction were granted it should be stayed for 5 years properly to balance the requirements of the respondents with the requirement that the appellant uphold the law.

Respondents' submissions

With regards to the Development Consent, the respondents submitted that there is a clear textual distinction between the "use" of the building as residential apartments on the 1st to 15th floors and the "provision for" parking by "the occupants of the proposed building". The respondents submitted that the Development Consent does not create a "necessary condition" that parking lots must be owned or used by occupants of the building. The Council must ensure "consents are framed in clear terms and conditions are specified with certainty", and the consequences of any lack of certainty must be borne by the Council: Ryde Municipal Council v Royal Ryde Homes (1970) 19 LGRA 321; [1970] 1 NSWR 277 per Else-Mitchell J at [29].
With regards to SBL7, the respondents submitted that the primary judge correctly concluded that SBL7 is deficient in form and invalid.
In their written submissions, the respondents submitted that the Strata Approval "displaced" the provisions of the Development Consent by separately authorising the strata plan. The Strata Approval made no reference to parking spaces, nor imposed any condition(s) in relation to parking. They argued that the primary judge was correct to reject the appellant's contention that s 4.2 of the Environmental Planning and Assessment Act (formerly s 76A) applied, because there was no basis to say that the construction of Elizabeth Bay Gardens had not been carried out in accordance with the Development Consent and any applicable environmental instrument.
The respondents also submitted that, under s 42(1) of the Real Property Act 1900 (NSW), a registered proprietor's interest in land recorded in the folio is "absolutely free from all other estates and interests that are not so recorded". The respondents submitted that s 42(3) of the Real Property Act provides that the section prevails over any inconsistent provision of any other Act or law. The respondents concluded that, if the Development Consent created a right in rem that restricted their use and enjoyment of their own parcels of land (the parking lots), such a right is not recorded and could be disregarded by the registered proprietor: Hillpalm Pty Ltd v Heaven's Door Pty Ltd (2004) 220 CLR 472; [2004] HCA 59 per McHugh A-CJ, Hayne and Heydon JJ at [53].

Jurisdiction

No point was raised by either party about the jurisdiction of the Supreme Court to determine this case, although the respondents were plainly alive to the possibility of jurisdictional limits. It will be recalled that ground 5 of the notice of cross appeal provided: "..the learned trial judge erred in failing to refuse any relief to the Owners Corporation for the further reasons that… the Owners Corporation was, in substance, seeking enforcement of a planning condition pursuant to s 123 (now 9.45) of the Environmental Planning and Assessment Act 1979 without having made any application to the relevant court, and obtained such relief (if any, which is denied) which such court might grant."
The legislative requirements governing this dispute were agreed by the parties to be the County of Cumberland Planning Scheme Ordinance introduced into the now-repealed Local Government Act by the Local Government (Amendment) Act and two sections of the Environmental Planning and Assessment Act. Any use permitted as at 1969/1970 was preserved by later planning schemes and ss 76A and 76B of the Environmental Planning and Assessment Act.
The Environmental Planning and Assessment Act was renumbered by the Environmental Planning and Assessment Amendment Act 2017 (NSW). Sections 76A and 76B are now numbered ss 4.2 and 4.3, respectively but are substantively identical, save for the maximum penalty for breach. Section 4.2 provides, relevantly: "4.2 Development that needs consent (cf previous s 76A) (1) General If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless: (a) such a consent has been obtained and is in force, and (b) the development is carried out in accordance with the consent and the instrument. Maximum penalty: Tier 1 monetary penalty. (2) For the purposes of subsection (1), development consent may be obtained: (a) by the making of a determination by a consent authority to grant development consent, or (b) in the case of complying development, by the issue of a complying development certificate." …
Section 9.45 (which is identical to former s 123, the relevant section at the time these proceedings were commenced in the Supreme Court) governs contraventions, or threatened contraventions, of the Environmental Planning and Assessment Act. That section provides: "9.45 Restraint etc of breaches of this Act (cf previous s 123) (1) Any person may bring proceedings in the Court for an order to remedy or restrain a breach of this Act, whether or not any right of that person has been or may be infringed by or as a consequence of that breach. (2) Proceedings under this section may be brought by a person on his or her own behalf or on behalf of himself or herself and on behalf of other persons (with their consent), or a body corporate or unincorporated (with the consent of its committee or other controlling or governing body), having like or common interests in those proceedings. (3) Any person on whose behalf proceedings are brought is entitled to contribute to or provide for the payment of the legal costs and expenses incurred by the person bringing the proceedings. (4) (Repealed)"
"Court" is defined in the Environmental Planning and Assessment Act as the Land and Environment Court: s 4. The particulars of the amended cross-claim and defence clarify that this matter concerns, in substantial part, an alleged contravention of former ss 76A and 76B of the Environmental Planning and Assessment Act (current ss 4.2 and 4.3). By operation of that Act, these proceedings fall under s 9.45. The primary judge referred to s 123 when considering the issue of injunctive relief, which appears to be the only reference by the parties below to that part of the Environmental Planning and Assessment Act.
The primary judge found that there was no breach of former ss 76A or 76B of the Environmental Planning and Assessment Act, as "breach" in s 9.45 refers to, per s 9.44 (identical to former s 122): "9.44 Definitions (cf previous s 122) In this Division: (a) a reference to a breach of this Act is a reference to: (i) a contravention of or failure to comply with this Act, and (ii) a threatened or an apprehended contravention of or a threatened or apprehended failure to comply with this Act…"
Section 71 of the Land and Environment Court Act 1979 (NSW) provides that: "71 Proceedings in Supreme Court (1) Subject to section 58, proceedings of the kind referred to in section 20(1)(e) may not be commenced or entertained in the Supreme Court. (2) The jurisdiction conferred on the Court in respect of proceedings referred to in section 20(1)(e) is not limited by any provision of the Civil Procedure Act 2005 or the uniform rules under that Act." (emphasis added)
Section 58 involves appeals from determinations of the Land and Environment Court, and is thus not relevant for present purposes.
Section 20(1)(e) refers to proceedings in s 20(2) of the Land and Environment Court Act. The section provides: "20 Class 4 - environmental planning and protection, development contract and strata renewal plan civil enforcement … (2) The Court has the same civil jurisdiction as the Supreme Court would, but for section 71, have to hear and dispose of the following proceedings: (a) to enforce any right, obligation or duty conferred or imposed by a planning or environmental law, a development contract or a strata renewal plan, (b) to review, or command, the exercise of a function conferred or imposed by a planning or environmental law, a development contract or a strata renewal plan, (c) to make declarations of right in relation to any such right, obligation or duty or the exercise of any such function, (d) whether or not as provided by section 68 of the Supreme Court Act 1970 - to award damages for a breach of a development contract."
This section only deals with Class 4 jurisdiction of the Land and Environment Court. In its original cross-claim, an injunction was sought by the appellant before the primary judge and in this Court to remedy or restrain a breach of the Environmental Planning and Assessment Act.
That relief, together with other substantial parts of the present proceeding, as framed, would appear to fall within the Land and Environment Court's Class 4 jurisdiction as Class 4 includes jurisdiction to hear proceedings under (former) s 123 of the Environmental Planning and Assessment Act, now s 9.45. In Minister for Local Government v Blue Mountains City Council [2018] NSWCA 133; (2018) 229 LGERA 197 Leeming JA (Bathurst CJ and McColl JA agreeing) held: "[50] In response to this Court's request in advance of the hearing, both parties supplied written submissions as to the Supreme Court's jurisdiction at first instance. Both relied upon s 23 combined with s 66 of the Supreme Court Act 1970 (NSW); the Council also invoked the "inherent and general" jurisdiction of the Supreme Court to act in aid of other courts. [51] The parties' common position does not relieve a court from its obligation of satisfying itself that there was subject matter jurisdiction: Cockle v Isaksen (1957) 99 CLR 155 at 161; [1957] HCA 85; PT Garuda Indonesia Ltd v Australian Competition & Consumer Commission (2012) 247 CLR 240; [2012] HCA 33 at [16]. The position is no different on appeal. The result for which the Council contends is to leave in place an injunction ordered by the Supreme Court. It would be inappropriate to refuse leave or to dismiss the appeal unless this Court were satisfied there was jurisdiction to sustain that injunction. And, as was properly realised by Mr Singleton, who appeared for the Council at first instance and in this Court, there was a real issue as to jurisdiction (hence his submissions addressed the question of jurisdiction in terms, as did the reasons of the primary judge)."
With regards to whether the Land and Environment Court's jurisdiction over Class 4 matters was exclusive, Leeming JA (Bathurst CJ and McColl JA agreeing) held that: "[59] I have concluded that if the proceeding were brought pursuant to s 673 of the Local Government Act, then the Supreme Court would have lacked jurisdiction. The proceeding would have been within Class 4 of the jurisdiction of the Land and Environment Court, and within that Court's exclusive jurisdiction. Indeed, I favour the view that the entirety of Class 4 of the jurisdiction of the Land and Environment Court is exclusive to that Court, although that conclusion does not stand in the way of the Supreme Court having jurisdiction to make orders which are ancillary to the exercise of that Court's jurisdiction…"
There is much to be said for the proposition that this case, at its core, should properly have been brought within the exclusive Class 4 jurisdiction of the Land and Environment Court as seeking either an injunction or a declaration of right concerning the proper construction of the Development Consent under s 20(2) of the Land and Environment Court Act.
I have concluded, however, that the Supreme Court had jurisdiction in this case to make orders and that this Court has jurisdiction to hear an appeal from those orders. This is because the pleadings identified the construction and operation of the Conveyancing (Strata Titles) Act and the Real Property Act as issues to be determined. Those issues were within the jurisdiction of the Supreme Court. There was also the issue of the correct construction and operation of SBL7 (the relevant by-law), although I note that s 150 of the Strata Schemes Management Act 2015 (NSW) identifies the question of the validity of a Strata by-law as a matter for NSW Civil and Administrative Tribunal. The relief sought by the respondents in relation to the giving effect by the appellant to that by-law was a matter within the jurisdiction of the Supreme Court.
I will return to the central issue of whether this Court has jurisdiction to make orders about the correct meaning of the Development Consent when I come to consider relief.

Narrowing of the issues on the appeal and the cross-appeal

In oral submissions the cases of both parties contracted significantly. At the end of those addresses the only real issue between the parties was the correct construction of the Development Consent.
The respondents succeeded before the primary judge on the basis of his Honour's finding that by approving a subdivision of a 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. By virtue of the Certificate under s 4 of the Conveyancing (Strata Titles) Act and by force of s 3 of the Conveyancing (Strata Titles) Act, Council's approval entailed separate occupation of those lots by owners of those lots and thus Council "must have necessarily intended to resile from, or revoke, the requirement [in the Development Consent] that car spaces created could only be used by residents of Elizabeth Bay Gardens."
As I have said, in oral submissions in this Court, Mr Coles QC accepted that the subsequent approval by the Council of the strata scheme under the Conveyancing (Strata Titles) Act could not affect the correct construction of the Development Consent.
There were lengthy written submissions made by the respondents about indefeasibility of title. It was submitted that the indefeasibility of title to the "parking lots" was inconsistent with there being any restriction on their use provided by the Development Consent. That proposition, that the absence of notification of any restriction on use derived from a Development Consent in the Certificate of Title was inconsistent with indefeasibility of title, was rejected by the majority in Hillpalm. As McHugh A-CJ, Hayne and Heydon JJ said: "[49] … In the common case where the relevant development of the land is a particular permitted use of the land, any person who uses the land in some other way carries out a development of the land (by using it in that other way) contrary to the consent that was given. It matters not whether the user of the land was the applicant for consent. Section 76A of the EPAA forbids the user of the land from carrying out the development constituted by that use otherwise than in accordance with the consent given. Accordingly, orders may be made against those who use land in a manner not permitted by development consent. A person using the land in that way is in breach of s 76A of the EPAA…"
Again, Mr Coles QC did not rely on indefeasibility in his oral address and accepted that the references in the cross-appeal to indefeasibility were "an unnecessary distraction".
The issues to be determined were further narrowed by counsel for the appellant, Mr Ashhurst SC, who accepted that that the Council had not imposed any conditions about parking in the Development Consent. That is, parking by non-residents at Elizabeth Bay Gardens was not alleged to be a prohibited use. Mr Ashhurst SC also accepted that any prohibition upon use of the parking spaces as a "car park" was no longer a relevant issue in these proceedings.
The only question thus before the Court on appeal, other than the breadth of the relief, if any, to be granted, was the question of the correct construction of the Development Consent and whether parking by non-residents of Elizabeth Bay Gardens in parking lots owned by them at Elizabeth Bay Gardens was a permitted use.

Construction of the Development Consent

No challenge was made to the description of the relevant principles guiding the construction of the Development Consent described by the primary judge, which were essentially derived from Bunderra Holdings Pty Ltd v Pasminco Cockle Creek Smelter Pty Ltd (subject to Deed of Company Arrangement) (2017) 96 NSWLR 434; [2017] NSWCA 263. They should briefly be re-stated.
First, 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 632 at 637 per Hope JA;
Secondly, 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 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 per Mason P at [23]; Winn v Director-General of National Parks and Wildlife [2001] NSWCA 17; (2001) 130 LGERA 508 per Spigelman CJ at [4].
Thirdly, 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 per Mason P at [41].
Fourthly, a development consent is to be construed not as a document drafted with legal expertise, but to achieve practical results: Westfield Management Limited v Perpetual Trustee Company Limited [2006] NSWCA 245 per Hodgson JA at [36]; Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Ltd (2009) 167 LGERA 395; [2009] NSWCA 160, per Tobias JA at [105].
Fifthly, as a general rule, a development consent, being a public document operating 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 per Meagher JA at [44]; Parramatta City Council v Shell Co of Australia at 637.
As Meagher JA explained in Allandale Blue Metal the relevant principles concerning the construction of a development consent are more easily stated than applied.
The relevant planning instrument was the County of Cumberland Planning Scheme Ordinance, cll 26, 27, 28 and 29 of which provided: "26. The purpose - (a) for which buildings may be erected or used without the consent of the responsible authority; (b) for which buildings may be erected or used only with the consent of the responsible authority; and (c) for which buildings may not be erected or used; in each of the zones specified in Part I or Part II of the Table to this clause are respectively shown in the third, fourth and fifth columns of the Table set out opposite thereto, but no building operations shall be undertaken on land within the zone specified in Part II of the Table unless a notice applying to the land has been given under paragraph (a) of section 342R of the Act and such notice is still operative or permission to erect a building has been granted under paragraph (e) of the said section. Column I. Column II. Column III. Column IV. Column V. Zone Reference to scheme map. Purposes for which buildings may be erected or used without consent of responsible authority. Purposes for which buildings may be erected or used only with the consent of the responsible authority. Purposes for which buildings may not be erected or used Part I
Living area Light scarlet colour Dwelling houses Residential buildings; places of public worship; places of assembly; places of instruction; public buildings; hospitals; shops; commercial premises, other than warehouses and bulk stores; professional chambers; local light industries; utility installations other than generating works; any other purpose not referred to in Column III or Column V. Generating works; warehouses; bulk stores; industries other than local light industries; mines; institutions

… 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. (2) Land, included in a zone, whether forming the site of a building or not, shall not be used without the consent of the responsible authority for any purpose for which a building in the same zone may be erected or used only with the consent of the responsible authority. (3) The provisions of clause 27 relating to the consideration by the responsible authority of an application for its consent to the erecetion or use of a building in a zone shall, mutatis mutandis, apply to an application made to the responsible authority for its consent to the use of land. (4) In this clause the expression "use" in relation to land includes the carrying out of work on land."

The following matters bear emphasis. 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. The relevant building type here is "Residential building" which was defined in clause 24 as, "'Residential building' means a building other than a dwelling house, designed for human habitation together with such outbuildings as are ordinarily used therewith, a residential flat building, a hostel, an hotel designed primarily for residential purposes and a residential club, but does not include any building mentioned, whether by inclusion or exclusion in the definitions of 'places of instruction' or 'institution'".
The 1969 Development Consent in full provided: "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, namely: Date of application: 29.3.68 & letter dated 12.12.68 Premises: Land Nos. 15/19 Onslow Avenue, No. 4 Crick Avenue and Greenknowe Avenue, Elizabeth Bay. Brief Description of Application: To erect on the abovementioned land a building set back 13 feet from the Onslow Avenue alignment, comprising a lower ground, ground, and upper ground floors, each approximately 240' x 60', and a fifteen-storeyed irregular-shaped tower section 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.SPSA, 6805.SP9A 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 condition: (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. The reason for the Council's consent being granted, subject to the conditions hereinbefore specified, is: - That the granting of unrestricted consent would not be in the public interest. Dated the tenth day of February, 1969."
This was the consent described in cll 27 and 41 of the County of Cumberland Planning Scheme Ordinance: "27. Where application is made to the responsible authority for its consent to the erection or use of a building in a zone in which a building of the type proposed may be erected or used only with its consent, the responsible authority shall decide whether to give or withhold consent, and in the former event what conditions, if any, shall be imposed. Provided that before determining any such application the responsible authority shall consider the provisions of any planning scheme (including this scheme) affecting the land and in any case where it appears to the responsible authority that the erection or use of such building would be in contravention of any such scheme or is likely to cause injury to the amenity of the neighbourhood including injury due to the emission of noise, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, grit, oil, waste water, waste products or otherwise the responsible authority may withhold consent. … 41. (1) Any application for the consent of the responsible authority under the provisions of this Ordinance shall be made in writing to the responsible authority and shall be accompanied by the following plans and particulars: (a) if the application is for consent to the use of a building or work or to the use of land, a plan in triplicate sufficient to identify the land to which the application relates and particulars in writing in triplicate of the purpose for which the building, work or land is used at the date of the application and the purpose for which consent is sought; (b) if the application is for consent to the erection of a building or the carrying out of a work, a plan in triplicate sufficient to identify the land to which the application relates and particulars, illustrated by maps and drawings in triplicate, sufficient to describe the building or work, its location on the site and the purpose for which it is to be used: Provided that if an application relates only to the alteration, enlargement, extension of or addition to a building it shall be sufficient to show on the plan the site of the building and the alteration, enlargement, extension or addition in relation to such building and to furnish particulars relating only to the alteration, enlargement, extension or addition. (2) Where, in pursuance of the Act (except Part XIIA thereof) or of an Ordinance made under the Act (except the said Part), an application is made to the responsible authority for its approval to erect a building such application shall, if the matter to which it relates requires the consent of the responsible authority under this Ordinance, be deemed to be an application for such consent, unless the application does not contain the information and particulars required by subclause one of this clause and the responsible authority so informs the applicant on or before giving its decision under the Act (except Part XIIA thereof) or under an Ordinance made under the Act (except the said Part). (3)(a) The responsible authority may grant the application unconditionally or subject to such conditions as it may think proper to impose or refuse to grant such application. (b) The responsible authority shall cause notice to be given to the applicant of its decision and ini the case of a consent given subject to conditions or of a refusal, the reasons therefor shall be indicated in the notice. (4) An application shall be deemed to be refused if the responsible authority neglects or delays to give within forty days after service of the application a decision with respect thereto."
An important observation in the present context was made in Ryde Municipal Council v Royal Ryde Homes by Else-Mitchell J, that: "(324) …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."
What must be discerned is the true meaning of the consent as the unilateral act of the Council, not the result of a bilateral transaction between the appellant and the Council. It is for that reason that development consents are required to be framed in clear terms and any relevant conditions specified with certainty. I agree with Else-Mitchell J that 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.
In the present case the Council is not a party to the proceedings. I infer from the correspondence in evidence that the Council is aware of the dispute between these parties but so far as the evidence reveals has done nothing to assert any entitlement for relief against the respondents for engaging in a use of the building it considered to be contrary to the Development Consent. The absence of the Council from the proceedings perhaps explains the absence of attention given to jurisdictional issues.
There is no doubt that this Development Consent fails to specify accurately or in detail what precisely the Council has consented to. The language of the Development Consent poses a difficulty. At first blush, it may be doubted that the Development Consent actually gives consent for any particular use of the building as distinct from giving consent to the erection of the building. This is because of the language to "erect on the abovementioned land a building". The focus of that language is on the permission to build rather than on any subsequent use.
I have concluded, however, that this is not the better view of the Development Consent. It will be recalled that it was common ground that parking per se was a permitted use. The relevant requirement for consent, found in the Column IV of Table to the Local Government (Amendment) Act is headed "Purposes for which buildings may be erected or used only with the consent of the responsible authority". The relevant requirement was for a "Residential building" which means, relevantly, a residential flat building. In the opening sentence of the Development Consent, "the Council, as the Responsible Authority, hereby grants its consent to the undermentioned application", the Council grants consent to the use described in the proposal. This is a sufficiently broad description of the use of the building by "occupants" for the purposes of parking described in the Development Consent.
The critical matter where I depart from the primary judge is that I do not regard the Development Consent as involving any "requirement for use". In 1969 when the Development Consent was granted it was clear that the Council had a "wide power of imposing conditions as to off street parking when granting a development consent": Baulkham Hills Shire Council v Mekol Pty Ltd (No 2) (1970) 20 LGERA 165; [1970] 3 NSWR 206 per Hardie J (affirmed on jurisdictional grounds but not addressing this point in this Court in [1971] 2 NSWLR 54). It is common ground that no such conditions were imposed here.
I do not agree that the Development Consent should be construed by asking the question posed by the primary judge whether it was likely that the Council would act in "requiring the developer to provide parking for people who were not residents of the building" as his Honour found at [40]. Plainly enough, there was no such requirement. I regard the Development Consent merely as providing permission for use within its terms.
The critical question is who the Development Consent contemplates as being the "occupants" the relevant subject of the Development Consent. There is no doubt that Elizabeth Bay Gardens was a "residential flat building" and that I have found that the Development Consent permitted the use of 104 parking spaces by "occupants". It does not automatically follow that the Development Consent provides use rights to those 104 parking spaces only to residents of the building.
In a different context, s 313 of the Local Government Act 1919 (NSW), Hardie J held in Mekol (No 2) that when s 313(j) authorised the imposition of a condition requiring provision or space for vehicles "likely to be used by the occupants of such building", the section referred to vehicles likely to be used by legal occupiers, whether owners or tenants, and also "those persons who work in the subject premises so long as their presence has some element of regularity and continuity and permanence."
In Elidock Pty Ltd v N B Stone & Associates Pty Ltd [2008] NSWSC 1278 Young CJ in Eq, after referring to a number of cases drawn from different contexts, concluded that "a person who has the right to occupy and a person who has the right to reside are not necessarily the same." I respectfully agree.
The necessary fair but liberal reading of the use rights granted by the Development Consent leads me to conclude that the description of "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" should be understood as a permission by the Council for use of the building by "occupants", being legal occupiers, who are not necessarily "residents".
An important textual indication in favour of this construction is that the Development Consent refers to "occupants" of the building, rather than occupants of the residential floors. I do not accept the appellant's submission that this textual reading involves any circularity. It only does so when the assumption is made that "occupants" within the meaning of the Development Consent means "residents". The permission to use granted by the Development Consent to "occupants" is wide enough to encompass the respondents as owners of strata lots in the building. I do not think that the respondents' reference to "occupant" in Division 4 of Part 11 of the Local Government Act takes the matter any further. As Mr Ashhurst pointed out, the reference was contained in a part of the Act dealing with building approvals rather than development consents.
In my view, the permission to use Elizabeth Bay Gardens extends to any person properly described as an "occupant" of Elizabeth Bay Gardens. An "occupant" of Elizabeth Bay Gardens includes, at least, each of the present respondents as owners of strata parking lots. The respondents are "occupants" of Elizabeth Bay Gardens in that their presence in Elizabeth Bay Gardens as an owner of a parking lot has the element of regularity, continuity and permanence described by Hardie J, albeit in a different context, in Mekol (No 2). The appellant's concession that the respondents are not using the parking spaces as a "car park" is significant. Obviously, if the respondents were using the parking spaces as a "car park" this would constitute a prohibited use. The lack of clarity in the Development Consent about the identity of "occupants" permitted to use the car spaces should be resolved in favour of the respondents. I have also had the opportunity of reading the decision of Emmett AJA in draft. I agree with his Honour's additional reasons.

Conclusion and orders

For the foregoing reasons I have concluded that the correct construction of the Development Consent is that it provides permission for use of the property for car parking by the respondents, who as owners of the strata lots are properly described as "occupants" within the meaning of the Development Consent.
The basis upon which the respondents succeeded below, however, cannot be supported. On 1 March 2018, the primary judge made separate but relevantly identical orders in respect of the respondents' claim below and the appellant's cross-claim. The appeal must succeed, in part, and order 2 made in each of the sets of orders made on 1 March 2018 must be set aside. Order 3 made by the primary judge in each case is plainly linked to order 2 and must also be set aside.
I am not persuaded that it is necessary to set aside any other orders made by the primary judge on 1 March 2018. Orders 1 and 4 concern SBL7. On one view, all that SBL7 requires is compliance with the law. The evidence accepted by the primary judge, however, makes it plain that SBL7 has been interpreted by the appellant as permitting it to prevent parking lot owners from accessing and using parking lots owned by the respondents. That is based on an incorrect understanding of the Development Consent. SBL7 also suffers from the formal defects identified by the primary judge. It is thus not appropriate to set orders 1 and 4 aside.
As to orders 6 and 7, which concern costs, although the primary judge erred in making orders 2 and 3, his overall conclusion that the appellant's case should fail was correct. No sufficient reason has been shown by the appellant to disturb the orders made below in relation to costs.
There remains a question about whether a declaration of the kind sought by the respondents in the notice of cross-appeal should be made. As is no doubt apparent from the discussion of the jurisdiction of the Supreme Court at [36]-[50] above, I have significant doubts about whether the Supreme Court has jurisdiction to grant declaratory relief about the meaning of the Development Consent. Those jurisdictional doubts are amplified by the absence of the Council as a party to these proceedings. It may be that if an order was made under ss 149A-149E of the Civil Procedure Act (2005) (NSW) that jurisdictional difficulty could be overcome. If I had determined that a declaration should otherwise be made it would be necessary for the parties to be heard further on jurisdiction.
I have concluded, however, that even if the Supreme Court has jurisdiction to make a declaration about the correct construction of the Development Consent such an order should not in the exercise of discretion be made here. No sufficient basis has been shown to make such a declaration in circumstances where the Court has found that the respondents, as registered proprietors of lots in Strata Plan No. 4983, are properly described as "occupants" within the meaning of the Development Consent and have existing use rights to park their cars at Elizabeth Bay Gardens. No evidence suggests that the appellant will not abide by the construction given to the Development Consent by this Court. It follows that the cross-appeal should be dismissed.
As to the costs in this Court, whilst the appellant succeeded in having certain orders made by the primary judge set aside, these proceedings have been driven from the beginning by a view taken by the appellant of the meaning of the Development Consent which I have found to be incorrect. In substance, this appeal was only brought because of a view taken by the appellant about the meaning of the Development Consent which was wrong. The cross-appeal was only necessary because of the same incorrect view of the Development Consent taken by the appellant.
When Senior Counsel for the appellant was asked why these proceedings were being brought in this Court, having regard to the appellant being prepared to allow the non-residents five years to apply to the council to vary the use for which they could use their car parking spaces, the following exchange occurred: "MCCOLL JA: What is the purpose of this litigation, Mr Ashhurst? ASHHURST: For a number of reasons. Firstly, your Honour, there is a concern that now that the owners corporation is aware of this problem - that if they do nothing about it, it may be said, as indeed it was initially said against them in these proceedings, that there was some form of estoppel against them over allowing this unlawful use to go ahead. And if there was, for instance, an injury in the car park, it could be said that the owners corporation is aware of the unauthorised use and allowed it to go ahead. MCCOLL JA: You mean if there was an injury in a car park somehow occasioned by the use of a car parking lot by a non resident? ASHHURST: Correct. So there was concern MCCOLL JA: That could somehow enlarge the owners corporation's duty of care. ASHHURST: Yes. And there was also just a civic concern that you're an owners corporation, you're supposed to be doing what the law requires you to do. And if you're allowing any of your lots to be used for unlawful purposes there may be consequences for the owners corporation…".
Following the decision of the primary judge, it was clear that the appellant could not reasonably have continued to harbour either of those concerns. In the light of the orders made by the primary judge it could not be said in the event of injury in the car park that the appellant had allowed any "unlawful use to go ahead". It could also not be said that the appellant was "allowing any of [the] lots to be used for unlawful purposes".
As the appellant has failed on the principal issue which made this appeal and cross-appeal necessary, it is appropriate that the appellant pay the respondent's costs of the appeal and the cross-appeal. Such costs should, in accordance with s 90 of the Strata Schemes Management Act 2015 (NSW) only be levied on lots owned by resident lot owners of the appellant.
The orders I propose are: 1. Appeal allowed in part; 2. Set aside orders 2 and 3 made by the primary judge on 1 March 2018, in respect of the respondents' claim below; 3. Set aside orders 2 and 3 made by the primary judge on 1 March 2018, in respect of the appellant's cross-claim; 4. Notice of appeal otherwise dismissed; 5. Notice of cross-appeal dismissed; 6. Order that the appellant pay the respondents the costs of the appeal and the cross-appeal as agreed or assessed and that such costs be paid from a levy raised from the owners of lots in Strata Plan No. 4983 other than the respondents or any of them.
EMMETT AJA: This appeal and cross appeal concern the entitlement of the owners of car parking spaces in an apartment building in Elizabeth Bay (the Building) to use the spaces for the purposes of parking cars. That question turns on the proper construction of development consent given by the Council of the City of Sydney (the Council) for the erection of the Building and the effect of the approval given by the Council for the registration of a strata plan in respect of the Building.
By application dated 29 March 1968 made to the Council, architects acting on behalf of the owner of land situated in Onslow Avenue, Elizabeth Bay, applied for development permission in relation to a proposed building described as "Block of Home Units with Parking Facilities". The application stated that off-street parking facilities for 123 cars were proposed and stated that the proposed use of the premises was "RESIDENTIAL". A minute paper prepared by the City Surveyor on 14 January 1969 described the proposed development, relevantly, as follows: "To erect over the site … a building … comprising lower ground, ground and upper ground floors … and a fifteen-storey irregular shaped tower … for use for the purposes of … flats on the first to fifteenth floors, the unpaid parking of one hundred and four (104) occupants' cars on the lower ground, ground and upper ground floors and for the unpaid parking of fifteen (15) visitors' cars at the rear of the site."
On 28 January 1969, the Council resolved to grant its consent to the application, subject to certain conditions.
By instrument dated 10 February 1969 (the Development Consent), the Council, as the responsible authority under the Local Government Act 1919 (NSW) (the Local Government Act) and for the County of Cumberland Planning Scheme, granted its consent to the application subject to conditions for visitors' cars that are not presently relevant. A note at the foot of the Development Consent stated that the consent related to the County of Cumberland Planning Scheme Ordinance only and that any other statutory consent necessary under the Local Government Act or any other Act must be obtained from the appropriate authority. In particular, the Development Consent stated that "the plans of any proposed building work, alterations, etc., must be approved by the City Building Surveyor".
By application dated 26 February 1969, the owner of the land requested the approval of the Council to the erection of a building described as a "reinforced concrete flat slab construction and cavity walls." The application described the proposed building as having three storeys of parking and 15 storeys of residential. The proposed use and occupancy was stated as "three floors of parking" for the basement and "home units" for the ground floor and upper floors. On 8 April 1969, the City Building Surveyor wrote to the owner's architect saying that the plans and specifications submitted in connection with that application had been approved subject to several conditions that are not presently relevant.
The Building was erected, apparently in accordance with the plans and specifications, and, on 6 October 1970, the Council approved Strata Plan 4983 in respect of the Building. Strata Plan 4983 provided for 165 lots, of which 75 lots related to residential apartments. The remaining lots related to car parking spaces, save for three lots which carried a greater unit entitlement than the car parking lots. Strata Plan 4983 was registered on 29 October 1970.
Quite a number of persons who purchased residential lots also purchased parking lots. However, not all of the parking lots were acquired by the owners of residential lots. From 1970 until 2014, parking lots were used by parking lot owners, whether residents of the building or not. Parking lots were bought and sold separately from residential lots. For example, in 1970, a parking lot was sold for $1,500. In 2006, two lots were purchased for a price of $130,000 and in 2014, a parking lot was sold for a price between $200,000 and $220,000.
On 2 December 2014, the appellant, Owners' Corporation in respect of Strata plan 4983 (the Owners Corporation), voted to adopt Special By-law No 7 (By-law No 7). After reciting that the owner or occupier for the time being of a lot in Strata plan 4983 would be required to comply with all laws applicable to the owner or occupier's car space, including the Development Consent, By-law No 7 stated that an owner or occupier must ensure: 1. that a relevant car space is not used for any purpose that is prohibited by law, 2. that the owner or occupier complies with the Development Consent as it relates to the use of the car space, and 3. that any person who occupies or rents the car space complies with the Development Consent to the extent that it relates to the use of the car space.
The owners of parking lots who are not also owners of residential lots in the building (the Parking Lot Owners) commenced proceedings in the Equity Division seeking, relevantly, a declaration that By-Law No 7 is invalid. The Owners' Corporation filed a cross claim seeking a declaration that the Parking Lot Owners have contravened and are in breach of a condition of the Development Consent and a declaration that they have contravened and are in breach of By-Law No 7. The Owners' Corporation also sought an order restraining the Parking Lot Owners from using, or allowing to be used, any car space lot or lots in a manner or for a purpose that contravenes By-Law No 7.
On 1 March 2018, for reasons given on 2 February 2018, a judge of the Equity Division (the primary judge) concluded that the Development Consent did not permit the use of the parking space lots by non-residents but that, by granting its approval to the registration of Strata Plan 4983 showing 87 car parking lots, each as separate lots, the Council approved the grant to each registered proprietor for the time being of a car parking lot of a separate right of occupation and thus of use as a parking space in respect of each of the parking lots contained in Strata Plan 4983. The primary judge declared that the Parking Lot Owners have a right to park motor vehicles in their respective parking lots and to have all necessary rights of access and egress from their respective parking lots both for vehicles and persons.
By notice of appeal filed on 3 April 2018, the Owners' Corporation appeal from the orders made by the primary judge. By notice of contention filed on 17 April 2018, the Parking Lot Owners seek to support the conclusion reached by his Honour on the basis that his Honour erred in finding that the Development Consent did not permit the use of the parking space lots by non-residents. The respondents have quite rightly conceded that the subsequent approval by the Council of Strata Plan 4983 under the Conveyancing (Strata Titles) Act 1961 (NSW) (the Conveyancing (Strata Titles) Act) could not constitute approval for the use of the Building. The creation of separate lots in a strata scheme pursuant to the Conveyancing (Strata Titles) Act has nothing to do with the use of such lots once they are created. However, that is not the end of the matter.
The Development Consent of 10 February 1969 was "to erect … a building … for use as … flats … with provision for the free parking of … cars by the occupants of the proposed building." That language can reasonably be construed as describing the building for the erection of which consent was being given. It does not, in terms, say anything about the use of the building once constructed. That is to say, the Development Consent is for the erection of the Building, which includes provision for the free parking of cars. It is implicit in the instrument that the consent extends to the use of the Building. There is no express restriction on the use of the "provision" for parking and none should be implied.
I have had the advantage of reading a draft of the proposed reasons of Payne JA. I agree with Payne JA, for the reasons proposed by his Honour, that the correct construction of the Development Consent is that it provides permission for use of the Building for car parking by the Parking Lot Owners, who as owners of the strata lots are properly described as "occupants" within the meaning of the Development Consent. I agree that the orders proposed by him are appropriate in the circumstances.

Amendments 21 November 2018 - 21 November 2018 - Typographical corrections to [27(5)(b)], [29], [37] and [47]. 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. Decision last updated: 21 November 2018

Conveyancing (Strata Titles) Act 1961(NSW)

Environmental Planning and Assessment Amendment Act 2017(NSW)

Local Government Act 1919(NSW)

Local Government (Amendment) Act 1951(NSW)

19 LGRA 321; [1970] 1 NSWR 277 Westfield Management Limited v Perpetual Trustee Company Limited [2006] NSWCA 245 Winn v Director-General of National Parks and Wildlife (2001) 130 LGERA 508; [2001] NSWCA 17 Category: Principal judgment Parties: The Owners - Strata Plan No. 4983 (Appellant) Julian Edward Canny (First Respondent) Patricia Canny (Second Respondent) Christopher James Cain (Third Respondent) Carolyn Elizabeth Cain (Fourth Respondent) Neil Craig Cochrane (Fifth Respondent) Stephanie Jill Elias (Sixth Respondent) Rosie Fairbairn-Watt (Seventh Respondent) Amanda Jane Findlay (Eight Respondent) Beulah Gwendoline Fitzgerald (Ninth Respondent) Peter Desmond Herbert (Tenth Respondent) Sarah Suttor Keddie (Eleventh Respondent) Gerald Bennett Kitay (Twelfth Respondent) Clyde Alan Watson (Thirteenth Respondent) Leanne Robyn Maxwell (Fourteenth Respondent) Julie-Anne Marie Mizzi (Fifteenth Respondent) Kieran Thomas Moran (Sixteenth Respondent) Wendy Harding Nash (Seventeenth Respondent) Paul William O'Hanlon (Eighteenth Respondent) Jose Ricon Morera (Nineteenth Respondent) Gaye Stockell (Twentieth Respondent) Nigel Cameron Stokes (Twenty-First Respondent) Michael George Timbrell (Twenty-Second Respondent) Katherine Rose Whitby (Twenty-Third Respondent) Nigel Henry Murray Williams (Twenty-Fourth Respondent) Rae-Ann Isabella Sinclair (Twenty-Fifth Respondent) Representation: Counsel: M Ashhurst SC / G Farland (Appellant) B Coles QC / M Evans (Respondents)

Solicitors: J.S. Mueller & Co (Appellant) Cohen & Krass (Respondents) File Number(s): 2018/103039 Publication restriction: None Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Division Citation: [2018] NSWSC 80 Date of Decision: 02 February 2018 Before: Rein J File Number(s): 2016/36754

HEADNOTE A 15-storey apartment building, Elizabeth Bay Gardens, was the subject of a Development Application to Sydney City Council in 1968. In 1969, the Council issued a Development Consent. The Development Consent contained provision for "free parking of…cars by the occupants of the proposed building…". The building was completed in 1970 and strata subdivision approval was granted by the Council. Strata Plan No. 4983 was registered as a strata plan with 87 "parking lots". From 1970 until 2014, parking lots were bought, sold and used by residents and non-residents of Elizabeth Bay Gardens. These parking lots were valuable assets: in 2014, a parking lot sold for between $200,000 and $220,000. The appellant, the Owners Corporation of Strata Plan No. 4983, was aware throughout that period that some of the parking lots had been purchased by non-residents. The Owners Corporation levied non-resident parking lot owners for strata levies and those levies were paid. In 2014, the Owners Corporation passed a resolution creating a new by-law which purportedly had the effect of excluding non-resident owners of parking lots from using their car spaces. The Owners Corporation took steps designed to enforce this new by-law including installing a security access point and issuing new security swipe cards to residential lot owners. A group of non-resident car space owners commenced proceedings seeking a declaration that the new by-law was invalid. The primary judge, amongst other declarations and orders, held that the new by-law was invalid and of no legal force and effect. The Owners Corporation appealed. The Court (McColl JA, Payne JA and Emmett AJA) held, dismissing the appeal in part: Per Payne JA at [71] and [73] (McColl JA agreeing at [1], Emmett AJA agreeing at [94]): What must be discerned is the true meaning of the Development Consent as the unilateral act of the Council, not the result of a bilateral transaction between the applicant and the Council. Any lack of clarity or certainty in the Development Consent 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. The Development Consent fails to specify accurately or in detail precisely what the Council has consented to. Ryde Municipal Council v Royal Ryde Homes (1970) 19 LGRA 321; [1970] NSWR 277 applied Per Payne JA at [77]-[82] (McColl JA agreeing at [1], Emmett AJA agreeing at [94]): The Development Consent permitted use of parking spaces by "occupants" of the building. Occupants include persons whose presence has some element of regularity and continuity and permanence. The Development Consent refers to "occupants" of the building, rather than occupants of the residential floors. The lack of clarity in the Development Consent about the identity of "occupants" permitted to use the car spaces should be resolved in favour of the respondents. Baulkham Hills Shire Council v Mekol Pty Ltd (No 2) (1970) 20 LGERA 395; [2009] NSWCA 160; Elidock Pty Ltd v N B Stone & Associates Pty Ltd [2008] NSWSC 1278 applied. Per Emmett AJA at [105] (McColl JA agreeing at [1], Payne JA agreeing at [82]): The Development Consent is for the erection of the building, which includes provision for the parking of cars. It is implicit in the instrument that the consent extends to the use of the building. There is no express restriction on the use of the provision for parking in the Development Consent and none should be implied.

(2013) 195 LGERA 182

(2009) 167 LGERA 395

(2001) 130 LGERA 508

(2018) 229 LGERA 197

The Owners - Strata Plan No. 4983 v Canny

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