Owners Consent Requirements

Stokes v Waverley Council
Shaw Reynolds Lawyers, Owners Consent Requirements

In Stokes v Waverley Council (No 2) [2019] NSWLEC 174, the Land and Environment Court reiterated that a consent authority may issue a development consent that includes conditions requiring works to be undertaken on adjoining land. It is not necessary for the consent authority to obtain the adjoining owner’s consent before imposing such conditions.

Initial findings of the Court

Existing piles (which are underground columns which provide support for structures above) were located on the boundary of the applicant’s property and their neighbour’s property. The proposed development relied on the existing piles to support new structures on the applicant’s land.

The Commissioner determined in the first instance that the Court did not have the power to approve the proposed development because the adjoining owner’s consent had not been provided by the neighbouring property

Findings of the Court on appeal

On appeal, the Court relevantly stated:

… the essential issue in this appeal relates to whether the scope of the [development application] extends to the two existing piles located on the western boundary of the site which are partially on [the neighbouring property]. If it does, it follows that consent from the owner [the neighbouring property] is required.,,

The Court went on to consider whether the scope of the development application itself extended to the existing piles and noted that:

Importantly for present purposes…, the land on which the development is to be carried out is to be determined not only from the address and formal particulars of title shown on the development application form but also from the documents that must accompany the development application…

… consent is only required from the owner of the land to which the [development application] relates and if the two piles are not within the scope of the [development application], they are not on land to which the [development application] relates. That is, if no development is being carried out on [the neighbouring property], no consent is required from the owner of that land…

It was found that the scope of the development application did not include the existing piles, and so therefore the adjoining owner’s consent was not required:

The Court also reiterated that it is within the power of the consent authority to require works on neighbouring land without first obtaining consent from the owner of that land:

Section 4.17 regulates the statutory scope of conditions of consent. A condition of consent can be imposed requiring works off-site. There is no provision in the [Environmental Planning and Assessment Act] or the [Environmental Planning and Assessment Regulation] which would require landowner’s consent to such a condition. However, any works physically carried out without the appropriate authorisation would be a trespass to land…

For the purpose of landowner’s consent to a development application, there is a distinction between the works the subject of the relevant development application, and off-site works that may be carried out pursuant to conditions of consent…

Key points

1. A consent authority does not need to obtain adjoining owner’s consent before imposing a condition of consent on a development application requiring an applicant to undertake works on adjoining land. However, the applicant must obtain owners consent later because carrying out works on others land without authorisation would be trespassing.

2. The land to which a development application relates is not just the land identified in the development application form, but also any works proposed within other submitted documents.

3. Owner’s consent is not necessarily required if the proposed works rely on an existing structure that encroaches a shared boundary.

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