This is not something that comes up very often in rural residential areas, but community title rural residential developments do exist in our LGA. The structure of Community or Strata Schemes is such that they are often described as ‘the fourth level of government’ and anyone who has ever been involved with the management of such a scheme will understand why.
The reason for raising this issue is that Council recently had to deal with a matter that arose through a disagreement between a member of a Community Scheme and the local Community Association, this being the management entity responsible for the relevant Community Scheme and not to be confused with what most of us know as our local Community Association. The individual in question had built structures in violation of the Community Management Statement (CMS), the contract that usually defines a Community Scheme, and without council approval, but was nonetheless seeking ‘retrospective approval’ from council for the structures.
It probably goes without saying that, had the applicant followed the proper procedures, and sought development approval before building, that approval would not have been granted. The process of ‘retrospective approval’, however, is a little different in that it is not so much approval as it is simply a certification that the structure, illegal or otherwise, is sound with regard to the building code. Such certification does, however, come with a guarantee that council will not seek to have the structure demolished during the period covered by the Building Certificate, that being seven years. At that point, the owner would again need to go through the building certification process to demonstrate that the structure was still sound.
In the event, respecting a request from the responsible Community Association, Council effectively declined to issue a Building Certificate on the basis that the application should be considered in the context of the CMS, a contract over which Council had no jurisdiction but which the NSW Land & Environment Court did. The subsequent Land & Environment Court ruling on the appeal against Council’s [deemed] refusal made a point of distinguishing the respective responsibilities of Council and the relevant Community Association.
In deciding Council’s responsibility, and ruling that Council must issue the Building Certificates in question, the LEC Commissioner determined that, as enforcement of the CMS was not within Council’s jurisdiction and its content was not relevant to Councils deliberations [she also chose to ignore it in arriving at her ruling] and since Council had not provided any [other] reason why the Building Certificates should not be issued, Council effectively had no case. The Commissioner noted that it was the responsibility of the Community Association to pursue any case relating to violation of the CMS as a separate matter.
The Commissioner also [implicitly] noted that, if Council saw reason within its jurisdiction to refuse the issue of a Building Certificate, it should have resolved accordingly, but in any case it should not just have the matter sent off to the LEC to decide on its behalf. Ouch…
This situation is a variation on the general issue surrounding the consideration and enforcement of land title covenants. While council has the power to vary or release land title covenants, it is not generally responsible for their enforcement, although, perhaps not surprisingly, it does take an active interest in covenants of which it is the beneficiary. To add even more confusion to this situation, LEPs quite often include a clause (e.g. PLEP Clause 1.9A) that explicitly allows a council to set aside covenants (that it, itself, has not imposed) when granting an approval for development. There’s a lot of room for further ‘discussion’ in that clause alone, but perhaps I’ll leave that for another time.
[For the full details of the LEC ruling, see Hennock v Queanbeyan-Palerang Regional Council [2020] NSWLEC 1070]