Charlton v Secretary, Department of Finance, Services & Innovation, NSW Fair Trading [2015] NSWCATOD 128

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Charlton v Secretary, Department of Finance, Services & Innovation, NSW Fair Trading [2015] NSWCATOD 128 Hearing dates: 6 and 13 October 2015 Decision date: 11 November 2015 Jurisdiction: Occupational Division Before: S Leal, Senior Member Decision: The decision to refuse the applicant an owner-builder permit is affirmed. Catchwords: Home Building Act – application for owner-builder permit – whether dual occupancy – whether secondary or single dwelling – strata subdivision. Legislation Cited: Home Building Act 1989 Standard Instrument (Local Environmental Plans) Order 2006 Standard Instrument—Principal Local Environmental Plan Category: Principal judgment Parties: Maria Charlton (Applicant) Secretary, Department of Finance, Services & Innovation, NSW Fair Trading (Respondent) Representation: Solicitors: In Person (Applicant) B Bourke (Respondent) File Number(s): 1520144

Judgment

Introduction 1. Ms Maria Charlton is the owner of a property in Newcastle which she purchased in 1991 and subsequently divided into two units. For twenty-five years, Ms Charlton has used one unit as her residence and the other as her professional marketing office. 2. On 24 January 2014, simultaneous approval was given by the City of Newcastle Council ('the Council') to Ms Charlton for alterations and additions to the dwelling and to the two-lot strata subdivision of the property. Lot 2 of the strata subdivision is Ms Charlton's residence while Lot 1 is an office. 3. On 14 May 2015, Ms Charlton applied for an owner-builder permit in relation to the approved alterations and additions. There is no dispute that the alterations and additions relate to Lot 2 of the strata subdivision, which is Ms Charlton's residence, and consist of a deck enclosure over a leaky ultra-floor that forms the ceiling over Lot 2's garage. 4. NSW Fair Trading, who is the respondent in this matter, refused Ms Charlton's application for an owner-builder permit. The decision was upheld on internal review on the basis that an owner-builder permit cannot be granted where the subject of the work is an individual lot in a strata scheme. 5. In support of her application to this Tribunal for a review of this decision, Ms Charlton submitted that her application for an owner-builder permit should be allowed on the basis that her property is more akin to a dual occupancy than a complex residential strata. 6. Ms Bourke for NSW Fair Trading submitted that there is no discretion in this matter as an owner-builder permit is simply not available where the work is to be conducted on an individual lot in a strata scheme.