Consent from the owner of the land is required for a development application to be made – but what does this really mean, and what are some of the quirks?

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What does legislation say about owners consent?

Clause 49 of the Environmental Planning and Assessment Regulation 2000 (EPA Regs) sets out who can made a development application. Relevantly, it says that a development application may be made:

• by the owner of the land to which the development application relates; or
• by any other person, with the consent in writing of the owner of that land.

The Environmental Planning and Assessment Act 1979 (EPA Act), says that the definition of “owner” is taken from the Local Government Act 1993. This definition is very complex, but generally an “owner” can include:

• every person who owns the land;
• every person entitled to receive profits from the land (like a trustee, or a mortgagee who has possessed the land);
• the owners corporation in the case of land with a strata scheme; and
• the community, precinct or neighbourhood association in the case of land within a community, precinct or neighbourhood scheme.

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Do I have to get consent from every owner of the land?

Yes – but only every owner of the land to which the development application relates.

In Jeblon Pty Ltd v North Sydney Municipal Council, Jeblon Pty Ltd (Jeblon) made an application to change the use of a hairdresser shop to a gourmet food and coffee shop. The premises were part of a building that had a strata scheme with six strata title residential units. North Sydney Municipal Council claimed that the development related to the common property of the building, because the application contemplated the installation of an external vent for the kitchen. As a result, the council said that the development application could not be considered because the owners corporation had not provided consent. The New South Wales Land and Environment Court said that Jeblon had not applied for consent to instal a vent, but rather a change of use. Also, the council had not indicated that that the installation of a vent should be a condition of consent. As a result the Court found that the application was not in respect of any common property, and Jeblon did not require consent from the owners corporation.

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Do I have to provide consent from the owner at the time of lodging a development application?

It is well-settled by the courts that consent from the owner can be provided at any time before a consent authority (like a local council) makes their determination. This means that it is not a requirement in law that consent from the owner is provided at the time of lodging a development application. However, consent authorities will often resist accepting development applications if consent from the owner is not provided at the time of lodgement.

In Harris Farm Markets Pty Limited v Ashfield Fresh Pty Limited, Harris Farm Markets Pty Limited (Harris Farm) was a competitor within the same locality of the proposed development by Ashfield Fresh Pty Limited (Ashfield Fresh). Ashfield Fresh lodged a development application for a fruit and vegetable shop with the local council, and provided the owner’s consent to the council a few days later. Harris Farm claimed that the development consent was void because the owner’s consent was provided after lodging the development application. In dismissing the case, the New South Wales Land and Environment Court emphasised that there was a clear line of authority from the Court, reaching back to the 1980’s, that consent from the owner could be provided at any time before the determination of the application.

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Can consent from an owner for a development application be conditional?

The short answer is no. However, it may depend on the facts of the situation – an owner’s consent that appears to be conditional may not be. It may also be possible to use a separate contract, outside of the development application process, to effectively create a conditional owner’s consent.

In Crowley v Hastings Municipal Council, the applicant provided a letter from the owner of the land that said “no objection will be raised” to the development. The activity proposed by the applicant was already occurring on the land. The letter clearly failed to provide an unqualified consent to the making of the development application. However, the court found that since the owner expressed that they would not object something already occurring on the land, the owner had effectively provided consent to the making of a development application.

Crowley v Hastings Municipal Council can be compared against Mulyan Pty Ltd v Cowra Shire Council. In August 1992 Mulyan Pty Ltd (Mulyan) granted a licence to another company, T J Bryant Pty Ltd (Bryant), to take quartzite pebble and sand from Mulyan’s land. In April 1998, Bryant lodged a development application with Cowra Shire Council for an extractive industry on Mulyan’s land. A letter from Mulyan said that owners consent was provided “only on the basis set out in this letter”, and listed out a range of conditions. The conditions were not satisfied – nevertheless, Cowra Shire Council granted development consent. The New South Wales Land and Environment Court found that because the owners consent relied on future events to occur at a future date, the letter from Mulyan effectively did not provide owners consent at all. Unlike the owner in Crowley v Hastings Municipal Council, Mulyan did object to the development unless certain conditions were satisfied. Mulyan had also terminated the licence with Bryant and opposed the activity continuing on the land.

It is important to note that applicants and owners may be able to enter into a separate contract to govern the use of an unconditional owner’s consent. In this way, a valid consent from the owner could be provided with a development application, while a separate contract could protect other rights and interests of the owner and applicant.

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Can an owner of land be ordered to provide written consent?

In some circumstances, an owner of land may be ordered by the courts to provide written consent for a development application. Typically, this has occurred when the applicant has a proprietary interest in the land (like an easement) that gives them a right to consent from the owner of the land.

In 117 York Street Pty Ltd v Proprietors of Strata Plan No 16123, the Court made an order imposing an easement for the benefit of the plaintiff (117 York Street) over the land of the defendant (the Proprietors). 117 York Street also sought an order requiring the the Proprietors to give written consent to the making of a development application for the erection of a crane, which was to occupy the air space in the easement. The Supreme Court of New South Wales accepted that the grant of an easement includes the grant of other implied rights that are necessary to allow for the use and enjoyment of the easement. An implied right could include a right to written consent for the lodging of a development application. The Court recognised that it was better if a right to consent from the owner was written into the terms of the easement, and proceeded to do so in this case. The Court also recognised that an obligation on the Proprietors to give written consent could only be imposed as part of the easement – if the land was not affected by an easement, there would be no such obligation.

In Kirkjian v Towers, Mr and Mrs Kirkjian were the owners of a battle-axe lot. Their lot had the benefit of a right of way easement to the nearest street, over a property owned by Mr and Mrs Towers. The Kirkjians wanted to construct a concrete driveway over the right of way easement. The Towers, as owners of the land, refused to give their consent to the Kirkjian’s development application. The Kirkjians took the matter to the Supreme Court, asking the Court to require the Towers to provide consent for the development application. The Supreme Court held that the Kirkjians were entitled to an order requiring the Towers to give consent for the work proposed in the right of way easement. However, the Court emphasised that they were applying the law relating to easements and property – the Kirkjians had the right to consent from the Towers because of the terms of the right of way easement.

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If you would like legal advice, you can contact Alyce Kliese directly by clicking here.