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Development Application Approval Without Owner's Consent - New South Wales



This post is a follow up on the earlier article Development Application for Strata Common Wall.

Residential owners corporation reached out to surveyor and found out deposited plans that show the boundary is face of the wall on the commercial strata side. That means the applicant (commercial strata) submitted development application without consent from the owners of the wall.

This was pointed out to the Council and the applicant as follows:

"Section 78A of the Environmental Planning and Assessment Act 1979 (NSW) provides for the making of a development application (DA) subject to compliance with the requirements of the regulation.  Clause 49 of the Environmental Planning and Assessment Regulation 2000 (NSW) (regulation) mandates that a DA needs to be either made by the ‘owner’ of the land affected by the DA or any other person so long as the owner has provided consent in writing.

 DA Number was made by Applicant_Name and the owner specified is Proprietors of Strata Plan Commercial. However according to the deposited plans and strata plans (all attached to this email just in case) the existing wall where proposed development will take place is not owned by Proprietors of Strata Plan Commercial. Even though the drawings provided by applicant indicate strata boundary, in reality as per deposited plans plans their strata boundary is face of the wall and doesn't include the wall. The wall belongs to SP Residential. SP Residential didn't consent for this development. Therefore without our consent DA Number has been submitted not compliant with the regulation.

 We just would like to point out that DA was not compliant with the regulation from the beginning. It is clear from the reference to the EPA Act above and documents that support our position."

The Council responded:
"I have taken your response back to our legal Advisors who have stated that their previous advice stands and they have no further advice to provide to you.

If you do not believe that the advice given to you previously is correct you have the right under Section 123 of the EPA Act to challenge the validity of the consent issued by Council in the LEC.

In this particular case the DA consent in the opinion of Council is valid and will not be withdrawn."

For some reason the Council didn't cite any legislation that allowed them to approve DA without owner's consent, but cited only the section 123 of EPA Act. Council works for the people. :)

Applicant disregarded the documented evidence and started construction process on the property that doesn't belong to them. The notice was sent to Residential owners corporation last Thursday 14/08/2014 that the construction work commences this Monday 18/08/2014.

More fun to come!

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