​3. Strata Scheme Development proceedings: how to sta​rt

It is advisable for prospective applicants to obtain legal advice to determine whether they can start the case.

 

STEP DESCRIPTION
CHECK YOUR INFORMATION


Check that you are commencing the right proceedings under the right section of the Strata Schemes Development Act 2015 (NSW) and that you are making the application to commence proceedings within the specified time limit pursuant to the applicable sections within the legislation.

FIND THE RIGHT FORM

Strata Scheme Development proceedings can be made in Classes 2 or 3 of the Court's jurisdiction.  The Class to which a proceeding is allocated is stated in s18 and 19 of the Court Act.   Strata Scheme Development proceedings are to be commenced by completing and lodging an Application in Class 2 or 3, as the case may be (Form B (version 2).

​ATTACH THE
RIGH​T
DOCUMENTS​​

The application is to attach relevant documents. These documents include, but are not limited to, the following for each type of Strata Scheme Development proceeding:

s66 Appeal

  • the application for the strata certificate made to the local council;
  • any notice of the decision given by the local council under s 65 of the Strata Schemes Development Act when considering the strata certificate application; and
  • any notice given by the local council under s 54 of the Strata Schemes Development Act.

s85 Appeal

  • the proposed amendment of the strata development contract for a strata scheme in the approved form (see s 84(2)); and
  • any notice of refusal given by the planning authority refusing the amendment of the strata development contract.

s86 Proceeding

  • the proposed amendment of the strata development contract for a strata scheme in the approved form;
  • any notice of decision given by the planning authority approving or refusing the amendment of the strata development contract;
  • the notice of intention to move a motion supporting the amendment of the strata development contract given to a meeting of the owners corporation of the strata scheme;
  • any resolution of the owners corporation defeating the motion supporting the amendment of the strata development contract; and
  • any refusal to consent to the amendment of the strata development contract of a mortgagee, chargee, covenant chargee or lessee of a lot in the strata scheme.

s92 Proceeding

  • Information in the application as to the time at which the development scheme would otherwise be concluded under s 89 of the Strata Scheme Development Act.
  • The time/date to which the applicant applies to extend the development scheme; or
  • The time/date which the applicant applies to fix for the conclusion of the development scheme.

s179 Proceeding

  • a copy of the strata renewal plan;
  • a copy of each support notice (a signed notice from the owner stating support for the strata renewal plan: see s 174(1)) that is in effect under Part 10 of the Strata Schemes Development Act for the strata renewal plan;
  • the names of each dissenting owner (an owner that does not support the strata renewal plan) and each registered mortgagee and covenant chargee of a dissenting owner's lot (e.g. the bank if the property is mortgaged);
  • a declaration given by the owners corporation identifying the steps taken in preparing the plan and obtaining the required level of support in accordance with Part 10 of the Strata Schemes Development Act.
  • if the strata renewal plan is for a collective sale of a strata scheme:
    • ​the declaration given by the purchaser (if known) is to disclose the nature of any relationship, whether personal or commercial, the purchaser may have with the owner of any lot in the scheme; and
    • a report is to be provided from an independent valuer that includes details of the market value of the whole building and its site (at its highest and best use) and details of the compensation value of each lot;
  • if the strata renewal plan is for a redevelopment of a strata scheme:
    • ​the declaration given by the developer is to disclose the nature of any relationship, whether personal or commercial, that the developer may have with an owner of any lot in the scheme,
    • a document is to be provided specifying the amount to be paid to each dissenting owner for the owner's lot,
    • a report is to be provided from an independent valuer that includes details of the market value of the whole building and its site (at its highest and best use) and details of the compensation value of each dissenting owner's lot, and
    • a document is to be provided detailing enough financial information to show there is a secure source of finance for the carrying out of the proposed redevelopment under the strata renewal plan; and
  • any other information or document about the proposed collective sale or redevelopment prescribed by any regulations made under the Strata Schemes Development Act.

CHECK THE FEE

​ 

A court filing fee must be paid to commence the proceedings. The amount of the filing fee depends on whether the person commencing proceedings is a natural person or a corporation. The range of filing fees is specified in the Schedule of Court fees.

FILE THE APPLICATION TO COMMENCE PROCEEDINGS

The application to commence proceedings can be commenced by filing at least three copies of the completed application and paying the Court's filing fee at the Court's registry on Level 4, 225 Macquarie Street, Sydney or by posting at least three copies of the completed application and payment of the filing fee to the Court at GPO Box 3565, Sydney, NSW 2001.  

In addition, all Local Courts throughout New South Wales act as agents for the Land and Environment Court.   Applications can be filed and the filing fee paid at any Local Court registry.   The Local Court registry staff will give a receipt for the payment of the filing fee and will forward the papers to the Land and Environment Court for processing.

The Court will process the application at the Court's registry.   The application will be recorded in the Court's record system and stamped as having been filed with the Court.   The date, time and place for the first directions hearing before the Court will be set and written by the Court's staff on each of the copies of the application. The first directions hearing will usually be five weeks after the date of filing of the application.

The Court's registry will keep the original application for the Court's file and return the other copies of the application to the applicant.   One of the returned copies is for the applicant to keep and the other copies are provided to be served on the respondent(s) and any other persons that are required to be served with the application.

SERVE THE APPLICATION


A stamped copy of the application needs to be personally served on all persons listed in the respective section of the Act within 7 days of filing as follows:​

(a) for a s 66 appeal:  the respondent local council;

(b) for a s 85 appeal:  the respondent planning authority;

(c) for s 86 proceedings:  
(i) each owner of a lot in the strata scheme, other than the developer,
(ii) each person, other than the applicant, who is the owner of a development lot,
(iii) each registered mortgagee, chargee, covenant chargee and lessee of a lot in the scheme,
(iv) if the strata scheme is a leasehold strata scheme - the lessor (unless the lessor is the developer),
(v) the owners corporation, and
(vi) the planning authority.

(d) for s 92 proceedings:
(i) the developer,
(ii) each owner of a lot in the strata scheme, other than the developer,
(iii) each registered mortgagee, chargee, covenant chargee and lessee of a lot in the scheme,
(iv) if the strata scheme is a leasehold strata scheme - the lessor (unless the lessor is the developer),
(v) the owners corporation,
(vi) the planning authority,
(vii) the Registrar-General, and
(viii) any other person directed by the Court.

(e) for s 179 proceedings:
(i) each owner of a lot in the strata scheme,
(ii) each registered mortgagee or covenant chargee of a dissenting owner's lot,
(iii) if the strata renewal plan is for a collective sale of a strata scheme - the proposed purchaser (if known),
(iv) if the strata renewal plan is for a redevelopment of a strata scheme - the local council and the proposed developer (if known), and
(v) any other person directed by the Court.

The Court has prepared a guide for the service of documents for self-represented litigants.   The guide explains what is meant by service of documents and how this is to be undertaken​.
FILE AFFIDAVITS OF SERVICE

Once you have served the application on the respondents and/or the above persons, you will need to prepare and file an affidavit of service. The affidavit is to be filed on or before the first directions hearing and is to include:

  1. The date service was effected on each person required to be served;
  2. The method of service used; and
  3. The name, address and occupation of the person serving the application.

    Refer to the Practice Note – Strata Schemes Development Proceedings, paragraph 17, for more information on what is to be contained in the affidavit of service.

RESPONDENT APPEARS BY EITHER NOTICE OF APPEARANCE OR NOTICE OF MOTION DEPENDING ON TYPE OF PROCEEDINGS​

In s66 and s85 appeals, after the applicant serves the application, the respondent(s) are required to acknowledge service and register their desire to take part in the proceedings.   This is known as filing a Notice of Appearance.   The respondent needs to complete and file with the Court, and serve on the applicant, a Notice of Appearance.

In s86 and s92 proceedings, the proceeding can be commenced without a respondent. The parties that must be served with the application (see s 86(3)-(4) and s 92(2)-(3) of the Act respectively) have the right to become a respondent in the proceedings. This is to be done by filing a Notice of Appearance and serving the Notice of Appearance on the other parties in the proceedings.

In s179 proceedings, certain persons or entities are entitled to be served with the application (179 (2)(b)–(e) of the Act) and are entitled to lodge a notice of objection. If that party wishes to be joined as a respondent to the proceedings, they are required to apply to the Court to be formally joined as a respondent. This is done by filing with the Court and serving on the other parties to the proceedings a notice of motion and an affidavit explaining why the person should be joined as a party to the proceedings.