Australia acquires its principles of land from England. It is neither the European system, nor complies with Indigenous Cultures. It is clearly identifiable as Anglo-Saxon.
English law focuses on a persons right to use land. People buy it, lease it, obtain licenses etc. for the pure purposes of using the land for a specified objective.
The laws of this State are being clearly refined to focus on this concept of land usage, and exist within a layered level of controls which identify how a person can use a piece of property and for what purpose that property can be used.
In 1979, the Environmental Planning and Assessment Act was enacted. This Act set up three layers of policy planning for New South Wales:
• State Environmental Planning Policy (SEPP) – was a policy that was made by the State Government and relates to all of NSW.
• Regional Environmental Planning Policy (REPP) – Regional policies made by the State Government that are specifically designed for the development of a region of NSW.
• Local Environmental Planning Policy (LEPP) – these are policies made by the Local Council for the Council Precincts.
All these planning policies are drawn together to create a single plan for every property in NSW. It culminates in what we now commonly refer to as “Zoning”. Each local council will give a property an identified zoning. This zoning will set out what the property can be used for.
The zoning requirements per specific area are set out in a Section 149 Certificate under the Environment Planning and Assessment Act 1979. These are referred to as Section 149 Certificates. Among other things, the Certificates will set out:
• what the property can be used for without consent;
• what the property can be used for with consent; and
• what the property is prohibited from being for.
These zoning requirements are meant to be used as a basis for council decisions. Before any property can be built or any commercial venture can be established, a development approval application must be lodged with the local council. The development determination made by council must exceed the various planning policies. They can be narrower than the planning policies but can not be wider.
When a strata complex is built, it has an attached development determination. In many cases, there are a number of development determinations, whether made by local council or the Land and Environment Court, that are associated with these buildings.
The bi-laws can further define the use of a strata building. Bi-laws can give exclusive use, can provide that a specific lot be used for a specific purpose or can prohibit activities from the Strata complex. These bi-laws cannot exceed the development determination. Yes – it can be narrower but cannot exceed it.
There is a final layer to this usage equation. An individual lot owner can define how a tenant uses a property under a lease. All commercial leases set out the use of a commercial unit. Under a residential tenancy agreement, the landlord can restrict the usage of that premises.
These four layers of laws will identify how a specific unit can be used. In relation to strata, it is generally only the first three layers which are important for a Strata Manager or Community Title Manager to understand. Strata Managers and Community Title Managers need to consider what needs to be put on file so that they can understand how their complex is to be utilised.
Until Next Time Bailey Compton The Team at Leverage Australia & The Australian College of Professionals.
