Strata Scheme Development

These pages describe how cases under the Strata Schemes Development Act 2015 (NSW) in Classes 2 and 3 are started and dealt with by the Land and Environment Court.

If you want to start a case to enforce a right, obligation or duty imposed by a strata development contract or a strata renewal plan, or if you want to apply for damages for breach of a strata development contract, refer to the pages on this website on civil enforcement and judicial review in Class 4 of the Court's jurisdiction.

These pages outline:

  • the types of cases that can be started in Classes 2 and 3 and how they are started;
  • the class that each type of case should be started in;
  • who has rights to start cases in the Court under the Strata Schemes Development Act 2015 (NSW);
  • how and when you need to lodge your application to commence a case;
  • how to participate in the case if you have been provided with a  copy of the application and don't know what to do next; and
  • what to expect during the court process.

What is a strata scheme developement proceeding?

The list below shows the different types of cases, or proceedings, that can be started in Classes 2 and 3 of the Land and Environment Court under the Strata Schemes Development Act 2015 (NSW).

What kinds of proceedings can be commenced?​


​Proceedings in Class 2

Type of procceding Legislation
Appeals following an application for a strata certificate (s66 Appeal)

s 66 Appeal
Appeals under Part 4, Division 5, s 66 of the Strata Schemes Development Act 2015, against a decision of a local council including:

  • The refusal of an application for a strata certificate;
  • The decision to impose a restrictive use condition on the approval of a strata certificate.
Refusals of amendments to strata development contracts (s 85 Appeal)

s 85 Appeal

Appeals under Part 5, Division 4, s 85 of the Strata Schemes Development Act 2015 against the refusal by a planning authority of an amendment of a strata development contract.

Amendment of a strata development contract not supported by resolution of the owners corporation (s 86 Proceeding)

s 86 Proceeding

Proceedings brought under Part 5, Division 4, s 86 of the Strata Schemes Development Act 2015  for approval of an amendment of a strata development contract that is not supported by a resolution of an owners corporation in accordance with s 84 of the Act.

Extension or conclusion of a development scheme (s 92 Proceeding)

s 92 Proceeding

Proceedings brought by a person bound by a strata development contract requesting orders of the Court under Part 5, Division 5, s 92 of the Strata Schemes Development Act 2015, to extend a development scheme to a later date or to fix a specific date or time for the conclusion of a development scheme.

Proceedings in Class 3

Type of proceeding Legislation
Application for an order giving effect to a strata renewal plan for collective sale or redevelopment (s 179 Proceeding)

s 179 Proceeding

An Applicant may request that the Court make certain orders under Part 10, Division 6, s 179 of the Strata Schemes Development Act 2015.

These Court orders can give effect to a strata renewal plan for the collective sale or redevelopment of a strata scheme.

Who can commence proceedings?

Applicants will need to check the Strata Schemes Development Act 2015 (NSW) and if necessary obtain legal advice to find out:

  • who may commence proceedings;
  • the circumstances in which an application to commence proceedings can be made;
  • the time within which an application to commence proceedings must be made; and
  • who must be provided with a copy of the application to commence proceedings after it has been filed in the registry.

The table below provides some information as to the potential parties to be named in proceedings. It is advisable for prospective applicants to obtain legal advice to determine whether they can start the case and the relevant participants in different proceedings.  Sections 18 and 19 of the Land and Environment Court Act 1979 (NSW) indicate the relevant part or section of the Strata Schemes Development Act 2015 (NSW) under which proceedings can be lodged in the Land and Environment Court.

Type of proceeding Who can be the applicant in the proceeding Who should be named as the respondent
s 66 Appeal the person who was the applicant in the application for a strata certificate made to the local council The local council to whom the application for a strata certificate was made
s 85 Appeal the person who was the applicant for an amendment of a strata development contract The planning authority to whom the application for amendment of a strata development contract has been made
s 86 Appeal the person who was the applicant for an amendment of a strata development contract made to a planning authority
  • No person needs to be named as a respondent in the application commencing proceedings.
  • However, the following people must be personally served with the application:
    (a)  each owner of a lot in the strata scheme, other than the developer,
    (b)  each person, other than the applicant, who is the owner of a development lot,
    (c)  each registered mortgagee, chargee, covenant chargee and lessee of a lot in the scheme,
    (d)  if the strata scheme is a leasehold strata scheme—the lessor (unless the lessor is the developer),
    (e)  the owners corporation,
    (f)  the planning authority. 
  • These persons are entitled to become respondents in the proceedings (see s 86(4)).
s 92 Proceeding any person bound by a strata development contract
  • No person needs to be named as a respondent in the application commencing proceedings.
  • However, the following people must be personally served with the application:
    (a)  the developer,
    (b)  each owner of a lot in the strata scheme, other than the developer,
    (c)  each registered mortgagee, chargee, covenant chargee and lessee of a lot in the scheme,
    (d)  if the strata scheme is a leasehold strata scheme—the lessor (unless the lessor is the developer),
    (e)  the owners corporation,
    (f)  the planning authority,
    (g)  the Registrar-General.
     
  • These persons are entitled to become respondents in the proceedings (see s 92(3)).

Proceedings in Class 3

Type of proceedings Potential Applicant(s) Potential respondent(s)
s 179 Proceeding the owners corporation seeking an order to give effect to a strata renewal plan for the collective sale or redevelopment of a strata scheme
  • No person need be named as a respondent in the application commencing proceedings.
  • However, the following persons must be personally served with the application (see s 179(2)):
    (a)  each owner of a lot in the strata scheme, and
    (b)  each registered mortgagee or covenant chargee of a dissenting owner's lot, and
    (c)  if the strata renewal plan is for a collective sale of a strata scheme—the proposed purchaser (if known), and
    ​(d)  if the strata renewal plan is for a redevelopment of a strata scheme—the local council and the proposed developer (if known)

     
  • The above persons are permitted to file an objection without becoming a respondent (including a dissenting owner or a person that must be served with an application under s 179(2)): see s 180(1)).
  • An objector to the application is permitted to apply to the Court to be joined as a respondent (see s 181(6)(a)).
  • The Court can also direct other persons to be respondents in the proceedings (see s 181(6)(b)).

What to do if you have been provided with a Class 2 Application under s86 or s92

If you have been served with an application in Class 2 of the Court's jurisdiction, and the application relates to proceedings under ss 86 or 92 of the Strata Schemes Development Act 2015 (NSW), you are probably one of the following persons:

  • the developer,
  • an owner of a lot in the strata scheme
  • a registered mortgagee, chargee, covenant chargee and lessee of a lot in the scheme,
  • the lessor if the strata scheme is a leasehold strata scheme,
  • the owners corporation,
  • the planning authority, or
  • the Registrar-General,

If so, you can either:

(a)  choose not to participate in the case at all; or

(b)  become a respondent to the proceedings.

Before making a decision, you should get your own legal advice.

If you become a respondent, you will be required to attend or be legally represented each time the case is in court, including at the directions hearing, at any conciliation or mediation, and at the final hearing. By becoming a respondent, you will be able to file evidence in response to the case and make submissions in the case. It may also mean that, in certain circumstances, you can appeal against the outcome of the case if you disagree with it.

However, you should carefully consider any decision to become a respondent to the proceedings. If you do become a respondent, this exposes you to the possibility of costs orders being made against you if the Court considers it fair and reasonable to make such an order. Such orders may require you to pay the costs of the legal representatives of the other parties, even if you are not legally represented yourself.

s 86 Proceeding

Persons who can become a respondent How do I become a respondent?

86(3) of the Act outlines who must be served with an application in s 86 proceedings:

(a)  each owner of a lot in the strata scheme, other than the developer,

(b)  each person, other than the applicant, who is the owner of a development lot,

(c)  each registered mortgagee, chargee, covenant chargee and lessee of a lot in the scheme,

(d)  if the strata scheme is a leasehold strata scheme—the lessor (unless the lessor is the developer),

(e)  the owners corporation, and

(f)  the planning authority.

A party served with an application is entitled to become a respondent in the proceedings.

To become a respondent, a Notice of Appearance is to be filed with the Court and served on the parties to the proceedings.

The Notice of Appearance must be filed before the return date specified on the Application in the 'hearing details'.

s 92 Proceeding

Perosns who can become a respondent How do I become a respondent?

Section 92(2) of the Act outlines who must be served with an application in s 92 proceedings:

(a) the developer,

(b) each owner of a lot in the strata scheme, other than the developer,

(c) each registered mortgagee, chargee, covenant chargee and lessee of a lot in the scheme,

(d) if the strata scheme is a leasehold strata scheme—the lessor (unless the lessor is the developer),

(e) the owners corporation,

(f) the planning authority,

(g) the Registrar-General, and

(h) any other person directed by the court.

A party served with an application is entitled to become a respondent in the proceedings.

To become a respondent, a Notice of Appearance is to be filed with the Court and served on the parties to the proceedings.

The Notice of Appearance must be filed before the return date specified on the Application in the 'hearing details'.

What to do if you have been provided with a Class 3 Application for approval of a strata renewal plan (s 179 Proceeding)

If you have been served with an application in Class 3 of the Court's jurisdiction, and the application relates to an application under s 179 of the Strata Schemes Development Act 2015 (NSW) for approval of a strata renewal plan, you are probably one of the following persons:

  • an owner of a lot in the strata scheme,
  • a registered mortgagee or covenant chargee of a dissenting owner's lot,
  • if the strata renewal plan is for a collective sale of a strata scheme - the proposed purchaser, or
  • if the strata renewal plan is for a redevelopment of a strata scheme - the local council or the proposed developer.

If so, you can either:

(a)  choose not to participate in the case at all;

(b)  lodge an objection to the application; or

(c)  apply to be joined as a respondent to the proceedings (you can only do this if you have already lodged an objection).

Before making a decision, you should get your own legal advice.

Lodging an Objection

Who can lodge an objection?

An objection can be lodged by a dissenting owner or a person on whom notice of the application must be served. A person lodging an objection does not have to formally be a party to the proceedings (see s 180(3) of the Act).

What is a dissenting owner?

dissenting owner is defined at s 154 of the Act as, "in relation to a strata renewal plan, … an owner of a lot in relation to which a support notice is not in effect under this Part [Part 10] for the plan."

support notice is defined at s 174(1) of the Act as "a notice in the approved form that states the owner supports the plan, and is by the owner and each registered mortgagee or covenant chargee of the owner's lot".

When can an objection be made?

An objection needs to be lodged within 21 days of the person being served with the application (s 180 (s) of the Act).

What should be included in an objection?

As noted at paragraph 24 of the Practice Note (PDF , 115.5 KB), an objector will need to specify their grounds of objection to the application and address their concerns regarding the matters in s 182(1) of the Act about which the Court needs to be satisfied before making an order to grant a Strata Renewal Plan.

In preparing your objection, you should look at the matters in s 182(1) of the Act and provide any information you have that would be relevant to them. Those matters include (but are not limited to) the following:

  • Whether there was any relationship between the owners of lots and the purchaser or developer that might have prevented the plan being prepared in good faith;
  • Whether the steps taken in preparing the plan and obtaining the required level of support were carried out in accordance with the Strata Schemes Development Act 2015 (NSW);
  • If the plan is for a collective sale, whether the proposed distribution of the proceeds of sale to each lot is not less than the compensation value of the lot;
  • If the plan is for a collective sale, whether the terms of settlement under the plan are just and equitable in all the circumstances;
  • If the plan is for a redevelopment, whether the terms of settlement under the plan, as they relate to the dissenting owner, are just and equitable in all the circumstances;
  • If the plan is for a redevelopment, the amount to be paid to a dissenting owner and whether it is more than the compensation value of the lot or more than the total consideration that would accrue to the dissenting owner under the plan if that owner had given a support notice for the plan.
What is required after filing my objection?

Once the objection has been filed at the Land and Environment Court Registry, copies of the filed objection need to be served on each person or organisation listed as a party to the proceedings.

What role will an objector have after filing an objection?

The Court may consider the matters raised in an objection. If the matter goes to a hearing, an objector may be invited to make submissions or may be required to answer questions about the matters raised in the objection.

How much does it cost?

There is no Court filing fee to lodge an objection.

Applying to be joined as a respondent to the case

If you have lodged an objection to the application, you may consider making an application to be joined as a respondent to the case. If you become a respondent, you will be required to attend or be legally represented each time the case is in court, including at the directions hearing, at any conciliation or mediation, and at the final hearing. It will also enable you to file evidence in response to the case and make submissions in the case. It may also mean that, in certain circumstances, you can appeal against the outcome of the case if you disagree with it.

You should carefully consider any decision to apply to become a respondent to the proceedings and obtain legal advice before making any such application. If you are unsuccessful in your application to be joined as a respondent, you may be ordered by the Court to pay the costs of the parties to the case if the Court considers it fair and reasonable to make such an order.

Further, if you do become a respondent, this exposes you to the possibility of costs orders being made against you in the case if the Court considers it fair and reasonable to make such an order.

Any orders for the payment of costs may require you to pay the costs of the legal representatives of the other parties, even if you are not legally represented yourself.

How to apply

An application to be joined as a party to the proceedings is made by filing a Notice of Motion with the Court. The Notice of Motion is to be accompanied by an affidavit of the person seeking to be joined as a party explaining why the person should be joined.

How much does it cost?

The standard fees apply for lodging a Notice of Motion (see schedule of court fees).

What happens after filing the Notice of Motion?

After you have filed the Notice of Motion, you will be given a date that the Notice of Motion will be first dealt with before the Court. You will need to serve the Notice of Motion and supporting affidavit on each person who is named as a party to the proceedings. On the date that the Notice of Motion is first before the Court, you should come prepared for the Notice of Motion to be considered and heard by the Court. In some circumstances, the Notice of Motion might be fixed for a special hearing.

What happens if I am joined as a respondent?

If you are joined as a respondent to the proceedings, your name will appear as a party to the proceedings and you will be given the opportunity to file evidence and make submissions in the case.​

What is a collective sale plan?

A collective sale plan is a sale of the whole of a strata scheme. This means each of the lots within the strata scheme are sold. Once all lots have been sold, the strata scheme will be terminated.

What is a redevelopment plan?

A redevelopment plan can involve a variety of changes to redevelop the existing strata scheme (such as adding new levels or units, upgrading facilities like adding balconies, changing internal configuration, a complete redevelopment of the site and so on). Following a successful application to the Court, a new strata scheme will then be formed, with unit holders of the collapsed scheme becoming unit holders in the new scheme (and units of dissenting owners sold), pursuant to the specific terms of the strata renewal plan. More information is contained on the NSW Land Registry Services Website.​

Steps

Helpful materials

For links to useful Court information and documents, legislation and case studies relating to development appeals, see: Helpful materials.

Strata scheme development
Image: Strata scheme development
Last updated:

17 Dec 2020

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