Case Name: Medium Neutral Citation Hearing Date(s): Date of Orders: Date of Decision: Jurisdiction: Before: Decision: Catchwords: Legislation Cited: Cases Cited Civil and Administrative Tribunal New South Wales Dehsabzi v The Owners - Strata Plan No 83556 [2018] NSWCAT 28 September 2018 22 November 2018 22 November 2018 Consumer and Commercial DAC Robertson, Senior Member 1. The application is dismissed. 2. The applicant, Pamir Gulyar Dehsabzi, is to pay the respondent's costs of the proceedings as agreed or assessed. LAND LAW - Strata title — application for orders that Owners Corporation consent to application for complying development certificate — whether Tribunal has jurisdiction to make orders — whether Tribunal should order Owners Corporation to give consent where certificate sought for only one part of development proposal - requirement that development proposal should be considered as a whole Civil and Administrative Tribunal Act 2013 (NSW) Environmental Planning and Assessment Act 1979 (NSW) Environmental Planning and Assessment Amendment Act 1997 (NSW) Environmental Planning and Assessment Regulation 2000 (NSW) Strata Schemes Management Act 2015 (NSW) eMove Pty Ltd v Naomi Dickinson [2015] NSWCATAP 94 Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 Mrs Top at Neutral Bay Pty Ltd v Tripodina [2014] NSWCATCD 245Category Parties: Representation: File Number(s): Publication Restriction: Pathold No 176 Pty Ltd v Minister for Transport Services [2005] NSWLEC 184 People for the Plains Inc v Santos NSW (Eastern) Pty Ltd [2017] NSWCA 46, Principal judgment Pamir Gulyar Dehsabzi (Applicant) ‘The Owners - Strata Plan No 83556 (Respondent) Counsel: W van Ede, solicitor (Applicant) M Astill (Respondent) Solicitors: JS Mueller & Co (Applicant) Kanjian & Co (Respondent) SC 18/23902 NilREASONS FOR DECISION 1 The applicant, Mr Dehsabzi, is the proprietor of Lot 12 in Strata Plan 83556, a mixed commercial and residential strata development in Northbridge. 2 Lot 12 is a commercial unit located on the ground floor. In plans apparently prepared prior to construction of the building, it is described as “retail”. This is in contrast with Lot 13 which is described as “restaurant”. 3 The existing development consent for Lot 12, DA 2011/336, permits the use of the premises as “office premises” subject to Condition 13 which provides: “The hours of operation of the use are to be restricted to those times listed below, i.e.: Weekdays 8.30 am and 5.30 pm. Any variation to these hours is to be subject to the PRIOR CONSENT OF COUNCIL.” (Reason: amenity) 4 Mr Dehsabzi seeks to utilise the premises for the operation of a Domino's Pizza restaurant. In order to do so he seeks as a first step to obtain a complying development cei fate, which, it appears to be common ground between the parties, would enable Mr Dehsabzi to refit the premises internally. It was not clear from the evidence whether Mr Dehsabzi also proposes to seek a complying development certificate to change the use of the premises to “food and drink”. | proceed on the basis that he does intend to do so and that that process would be effective to permit Mr Dehsabzi to operate a food and drink outlet during the permitted operating hours, that is 8.30 to 5.30 on weekdays, 5 Mr Dehsabzi then proposes to seek a development consent from Willoughby Council to extend the operating hours permitted under the existing development consent. 6 The operation of the Environmental Planning and Assessment Act 1979 (NSW) in relation to Mr Dehsabzi’s proposal and complying development generally was exp! ied in a letter from Mr Matthew Benson, a town planner, to the Owners Corporation's solicitors dated 4 December 2017 as follows: