What has happened?
In Owners Corporation Strata Plan 533 v Random Primer Pty Ltd [2025] NSWCA 8, the Court of Appeal upheld a mandatory injunction requiring a strata owners corporation in Roseville to give its consent, as landowner, to a neighbour's development application.
Context
The neighbour, Random Primer, had a registered right of way over a shared driveway on the strata property. It applied to Ku-ring-gai Council to replace its building with an eight-unit apartment block. The application proposed widening part of the driveway by about 1.5 metres, entirely on Random Primer's own land, to create a passing bay.
The Council considered that the application related to the strata property as well, so the owners corporation's consent was required under the planning regulations. The owners corporation refused. The Council refused the application, partly for want of that consent.
Random Primer sued in the Supreme Court, which ordered the owners corporation to consent. The owners corporation appealed.
The decision
The Court of Appeal dismissed the appeal:
Requiring vehicles leaving the strata property occasionally to use the passing bay, which is on the neighbour's land, to give way was not an unreasonable interference with the owners corporation's rights.
Alleged deficiencies in the development application were matters for the consent authority, not reasons to withhold owner's consent. Development applications are commonly amended.
In the circumstances, refusing consent was unreasonable and amounted to a substantial interference with the neighbour's rights under the right of way. The widening would benefit everyone using the driveway.
How will this affect you?
Where a development needs the consent of an owner of land burdened by an easement, that owner cannot necessarily refuse. An unreasonable refusal can be restrained by a court order.
Owners of burdened land may still be justified in refusing where the proposal is genuinely uncertain in ways that could materially affect their rights.
Developers facing an uncooperative neighbour should consider their easement rights before abandoning a proposal.
Further information
For further information please contact Darren Bick, Director, on +61 416 167 556 or darren.bick@bicksteele.com.au.