The Owners - Strata Plan No. 4983 v Canny [2018] NSWCA 275

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: The Owners - Strata Plan No. 4983 v Canny [2018] NSWCA 275 Hearing dates: 27 July 2018 Date of orders: 21 November 2018 Decision date: 21 November 2018 Before: McColl JA at [1], Payne JA at [2], Emmett AJA at [94] Decision: (1) Appeal allowed in part; (2) Set aside orders 2 and 3 made by the primary judge on 1 March 2018, in respect of the respondents' claim below; (3) Set aside orders 2 and 3 made by the primary judge on 1 March 2018, in respect of the appellant's cross-claim; (4) Notice of appeal otherwise dismissed; (5) Notice of cross-appeal dismissed; (6) Order that the appellant pay the respondents the costs of the appeal and the cross-appeal as agreed or assessed and that such costs be paid from a levy raised from the owners of lots in Strata Plan No. 4983 other than the respondents or any of them. Catchwords: ENVIRONMENT AND PLANNING – Jurisdiction of Supreme Court – whether engaged – Exclusive jurisdiction of Land and Environment Court

ENVIRONMENT AND PLANNING — Development Consent — Conditions – whether use of parking lots by "occupants" precluded non-resident owners of parking lots from using their lots

ENVIRONMENT AND PLANNING — Court of Appeal — Jurisdiction and powers — Class 4 application

LAND LAW — Strata title — Owners corporation – whether by-law validly made

LAND LAW — Strata title — Strata plan — Strata plan of subdivision – whether consent to subdivision vitiated use conditions in Development Consent Legislation Cited: Civil Procedure Act (2005) (NSW), ss 149A, 149B, 149C, 149D, 149E Conveyancing (Strata Titles) Act 1961 (NSW), ss 3, 4 Environmental Planning and Assessment Act 1979 (NSW), ss 4.2 (76A), 4.3 (76B), 9.44 (122), 9.45 (123) Environmental Planning and Assessment Amendment Act 2017 (NSW) Land and Environment Court Act 1979 (NSW), ss 20, 58, 71 Local Government Act 1919 (NSW), ss 313, 317A Local Government (Amendment) Act 1951 (NSW) Real Property Act 1900 (NSW), s 42 Strata Schemes Management Act 2015 (NSW), ss 90, 150 Supreme Court Act 1970 (NSW) s 101