In Stokes v Waverley Council, 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.
Section 4.17 of the Environmental Planning and Assessment Act 1979 relevantly states:
4.17 Imposition of conditions
(1) Conditions—generally A condition of development consent may be imposed if—
(a) it relates to any matter referred to in section 4.15(1) of relevance to the development the subject of the consent, or
(c) it requires the modification or cessation of development (including the removal of buildings and works used in connection with that development) carried out on land (whether or not being land to which the development application relates), or
(f) it requires the carrying out of works (whether or not being works on land to which the application relates) relating to any matter referred to in section 4.15(1) applicable to the development the subject of the consent, or
The development application and appeal
On 22 September 2017 Ms Stephanie Stokes lodged development application with Waverley Council (the Council) seeking consent for alterations and additions to an approved five-storey building for use as a dual occupancy and for some additional excavation at 21 Thompson Street, Tamarama.
On 28 March 2018, the Waverley Development Assessment Panel refused the development application.
On 18 July 2018 Ms Stokes filed an appeal in the Land and Environment Court against the refusal of the development application.
Initial findings of the Land and Environment Court
On 3 April 2019 Commissioner Bish delivered judgment dismissing the appeal.
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…
1. A consent authority does not need to obtain consent from an adjoining owner before imposing a condition of consent on a development application requiring an applicant to undertake works on adjoining land. However, the applicant must obtain consent from that owner at a later time, because carrying out works on others land without authorisation is trespassing.
2. The land on which development is to be carried out is to be determined not only from the address and formal particulars shown on the development application form, but also from the documents that must accompany the development application. Identification of the land to which a development application relates is primarily required to identify the owner of the land and obtain their consent to the making of the development application.
3. Owner’s consent is not necessarily required if the proposed works rely on an existing structure that encroaches a shared boundary.
- The initial judgment – Stokes v Waverley Council  NSWLEC 1137;
- The appeal judgment – Stokes v Waverley Council (No 2)  NSWLEC 174; and
- The judgment following the appeal – Stokes v Waverley Council (No 3)  NSWLEC 1224.