Owner’s consent too onerous?

04 May 2020

The requirement that owner’s consent be obtained for development applications may on its face seem like a relatively easy procedural requirement that must be complied with. Applicants need to provide owner’s consent for the application, and consent authorities must ensure owner’s consent is in place prior to any determination. If there is no owner’s consent the consent authority (or Court on appeal) has no power to determine the application.

However, as the recent case of Stokes v Waverley Council (No 2) [2019] NSWLEC 174 showed, the requirement for owner’s consent can still be a relatively complex issue which can result in problems. This can be a particular concern for Applicants in Class 1 Appeals as the Court can raise an issue with owner’s consent as a jurisdictional issue even if it was not one of the Council’s contentions.

The Stokes case involved a DA for alterations and additions to an approved five storey building for use as a dual occupancy as well as additional excavation. At first instance the Commissioner found the proposed development relied upon existing piling, including two piles located on the adjoining property. There was no owner’s consent from the adjoining property owner. As a result, the Commissioner at first instance determined that the fundamental jurisdictional hurdle of owner’s consent had not been met.

The Commissioner’s judgment was overturned on appeal by Robson J, clarifying what the EPA Regulations mean when they require owner’s consent from owners of “the land to which the development application relates.” Robson J held:

[84] Despite the fact that the Commissioner did not make a specific finding as to whether off-site works were within the scope of the DA so as to trigger the requirement for landowner’s consent, the Commissioner’s conflation of “relates” and “relies upon” within the meaning of the EPA Regulation is sufficient to constitute legal error. In the circumstances, the factual foundation of the Commissioner’s finding on jurisdiction was wrong primarily because there was no proposal before the Court to carry out work on Lot 44 and therefore owner’s consent was not required.

The consequence of this precedent is to clarify that owner’s consent is only required where physical works occur on a site. Mere reliance on another property, such as for structural support or stability, does not trigger the need for owner’s consent.

It should however be kept in mind that this only concerns the procedural requirement for owner’s consent. The mere fact that owner’s consent may be provided by way of, for example, signing a DA form does not mean that property law rights have been granted to carry out the development.

The fact that owner’s consent may not technically be required because a proposal is relying upon adjoining property, without physical works occurring on the adjoining property, simply deals with the procedural requirement for owner’s consent for the application under the EPA Regulations.

Reliance by the proposed development upon an adjoining property could (and likely will) give rise to other considerations, such as impacts of the proposed development on adjoining property and whether there exists property law rights which enable the proposed development to actually be carried out.

This article was written by John Cole, Partner, Jane Hewitt, Partner, Philip Brown, Special Counsel and Alex Epstein, Solicitor.

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