Owners - Strata Plan 37762 v Pham and Ors [2005] NSWLEC 500

Owners - Strata Plan 37762 v Pham and Ors [2005] NSWLEC 500

The development application and consent involved work on both lot 5 and the common property as shown on the plans and details supplied with the DA; thus, the consent of the owners' corporation was a statutory prerequisite. Its absence rendered the Council's grant of development consent ultra vires, meaning the consent was invalid and consequential orders for restraint of use and remediation must follow.

Jurisdiction
Australia
Judgment Date
13 September 2005
Procedural Posture
Judicial Review / Administrative Law / Final Judgment
Outcome
Application allowed; development consent declared invalid; injunction and remediation orders made with postponed operation; costs to applicant unless contrary order sought.
Legal Topics
['development Consent' 'strata Title' 'common Property' 'ultra Vires' 'severability of Consent']
['planning and Environment Law' 'strata Law'] ['development Consent' 'strata Title' 'common Property' 'ultra Vires' 'severability of Consent']

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Procedural Posture

Judicial Review / Administrative Law / Final Judgment

Legal Issues

  1. 1 ['Whether development consent granted by the Council was invalid for lack of owner’s corporation consent due to works on common property' 'Whether the DA related only to lot 5 or also to common property, requiring owner’s corporation consent' 'Whether the consent was ultra vires and if relief/remediation should be ordered']

Ratio Decidendi

The development application and consent involved work on both lot 5 and the common property as shown on the plans and details supplied with the DA; thus, the consent of the owners' corporation was a statutory prerequisite. Its absence rendered the Council's grant of development consent ultra vires, meaning the consent was invalid and consequential orders for restraint of use and remediation must follow.

Court Disposition

Application allowed; development consent declared invalid; injunction and remediation orders made with postponed operation; costs to applicant unless contrary order sought.

Orders

  • ['Development consent DA63/04 granted on 13 October 2003 declared invalid.' 'First and second respondents restrained from using the spray booth within lot 5 without lawful consent from Liverpool City Council.' 'First respondent to reinstate altered common property to its prior condition.' 'Operation of order 2...