This question was considered in the case of Dehsabzi v The Owners Corporation – Strata Plan No 83556 [2020] NSWCATAP 142.
In this case, the Dehsabzis wanted to change the use of their lot from an office premises to enable them to operate a Domino’s Pizza restaurant with extended trading hours. The other lot owners strongly opposed this. The Dehsabzis also wanted to connect to the existing grease trap and upgrade the air ventilation on the lot so they could operate the proposed restaurant, which would involve the common property. The Owners Corporation refused its consent to the lodging of a development application to permit this change of use and use of the common property.
At first instance, the Tribunal held that the Dehsabzis required the Owners Corporation’s consent to the development application as the proposed fit-out works would affect common property. The Tribunal went on to say that even if it was incorrect in this conclusion that would not warrant making the order sought by the Dehsabzis which was that the Owners Corporation consent to the development application. This is because if a local council incorrectly refuses to accept a development application for development that is entirely within a lot on the basis that the applicant has not obtained the consent of the Owners Corporation, the remedy would be elsewhere and as such, it would not be appropriate to make an order that the Owners Corporation consent to a development application where it is not required.
The Appeal Panel agreed with the Tribunal below and stated that where a development application relates to the common property there would be a requirement for an Owners Corporation to give consent as it is the owner of the common property.
The Appeal Panel highlighted that the situation would be different if the development application did not relate to common property. In that case, the decision in The Owners Strata Plan No 50411 v Cameron North Sydney Investments Pty Ltd (2003) NSWCA 5 would be applicable in that the consent of the Owners Corporation to the development application would not be needed for a development application that only relates to the lot. In such a case, the rights of the other lot owners and the Owners Corporation would be confined to submitting objections to the development applications to the relevant Council.
Going by the findings above, it is likely that if an application was made solely for change of use of the lot and did not involve any work to the common property, the Owners Corporation’s consent would not be required.
We strongly recommend that you seek legal advice tailored to your specific circumstances as this area of law can be technical.
Authors: Jasmin H.Singh and Allison Benson