New South Wales Consolidated Acts

STRATA SCHEMES (FREEHOLD DEVELOPMENT) ACT 1973 - SECT 37

37 Approval of proposed strata plans, certain subdivisions and conversions of lots into common property

(1) Subject to this Division, a local council must, on application made to it for a strata certificate in respect of a proposed strata plan that does not include a development lot or lots, issue to the applicant a strata certificate in respect of that plan if:

(a) where the land proposed to be subdivided is situated within a water supply authority’s area of operations-the water supply authority has issued a certificate of compliance for the proposed subdivision, and

(b) the requirements of subparagraphs (i), (ii) and (iii) or the requirements of subparagraphs (iv), (v), (vi), (vii) and (viii) are satisfied:

(i) a construction certificate has been issued under the Environmental Planning and Assessment Act 1979 with respect to the erection of any building containing any proposed lots to which the strata plan relates,

(ii) the proposed lots illustrated by that plan substantially correspond with parts of any such building shown in the building plans accompanying the construction certificate and designated in those building plans as being intended for separate occupation,

(iii) any such building was completed not more than 12 months, or such longer period as the local council may in any particular case fix, before the application for the strata certificate under this subsection was made to the certifier,

(iv) separate occupation of the proposed lots illustrated by the strata plan will not contravene the provisions of the Environmental Planning and Assessment Act 1979 or of any environmental planning instrument within the meaning of that Act,

(v) any consent required under that Act or instrument has been given in relation to the separate occupation of the proposed lots illustrated by that plan,

(vi) having regard to the circumstances of the case and the public interest, the local council is satisfied that the subdivision to which the plan relates will not interfere with the existing or likely future amenity of the neighbourhood,

(vii) the land proposed to be subdivided is not the subject of any outstanding order, requirement or notice of a kind referred to in, or given under, a provision referred to in subsection (1B),

(viii) if the local council has made an order of the kind referred to in Order No 6 in the Table to section 121B of the Environmental Planning and Assessment Act 1979 in relation to the land proposed to be subdivided-the order has been complied with or an appeal against the order has been made under section 121ZK of that Act and the Land and Environment Court has refused to confirm the order.

(1A) Subject to this Division, a local council must, on application made to it for a strata certificate in respect of a proposed strata plan that includes a development lot or lots, or of a proposed strata plan of subdivision of a development lot, issue to the applicant a strata certificate in respect of that plan if:

(a) the requirements of subsection (1) (a) and (b) are satisfied, and

(b) the plan and any building containing proposed lots to which the plan relates:

(i) satisfy any applicable development consent conditions, and

(ii) give effect to the stage of the strata development contract to which they relate.

(1B) For the purposes of subsection (1) (b) (vii), the orders and provisions referred to in this subsection are as follows:

(a) any order of the kind referred to in Orders Nos 2, 4, 8 or 9 in the Table to section 121B of the Environmental Planning and Assessment Act 1979 ,

(b) any order of the kind referred to in Orders Nos 21, 22, 23, 24 or 25 in the Table to section 124 of the Local Government Act 1993 ,

(c) provisions of regulations made under the Local Government Act 1993 or the Environmental Planning and Assessment Act 1979 that are prescribed for the purposes of this subsection.

(2) A local council on application made to it for a strata certificate in respect of a plan illustrating a proposed subdivision (not being a proposed subdivision of a development lot) referred to in section 5 (7) (a), shall, unless the application was accompanied by a certificate under the seal of the body corporate certifying that by resolution passed at a general meeting it agrees to the proposed subdivision, send, by certified mail, notice of the proposed subdivision to the body corporate concerned inviting it to express its views upon the proposed subdivision within a time (being not less than twenty-one days after the notice was sent) specified in the notice.

(3) A local council may after the expiration of the time specified in the notice sent under subsection (2) and after taking into consideration:

(a) any representations made to the local council by the body corporate to which the notice was sent,

(b) whether the proposed subdivision would be likely:

(i) to detract from the external appearance of the building containing the lot the subject of the proposed subdivision,

(ii) to render inadequate existing services to other lots the subject of the strata scheme concerned, or

(iii) by increasing the number and decreasing the size of lots within that building, to detract from the amenity or value of any other lot the subject of the strata scheme concerned, and

(c) the matters specified in subsection (1) (b) (iv), (v) and (vi), as if the reference in subsection (1) to a proposed strata plan were a reference to the plan to which the notice relates,

issue a strata certificate in respect of the plan to which the notice relates.

(4) A local council, on application made to it for a strata certificate in respect of a plan illustrating a proposed subdivision (not being a proposed subdivision of a development lot) referred to in section 5 (7) (b), (c) or (d), may:

(a) if that plan, upon lodgment with the local council, was accompanied by a certificate under the seal of the body corporate concerned certifying that it has, by special resolution, consented to the proposed subdivision, and

(b) after taking into consideration the matters specified in subsection (1) (b) (iv), (v) and (vi), as if the reference in subsection (1) to a proposed strata plan were a reference to the plan illustrating the proposed subdivision,

issue the strata certificate applied for.

(5) A local council, on application made to it for a strata certificate in respect of a proposed notice of conversion, may:

(a) if that notice, upon lodgment with the local council, was accompanied by a certificate under the seal of the body corporate concerned certifying that it has, by special resolution, consented to the proposed conversion, and

(b) if, having regard to the circumstances of the case and the public interest, it is satisfied that the proposed conversion will not interfere with the existing or likely future amenity of the neighbourhood,

issue the certificate applied for.

(6) Despite any other provision of this section, a council, in considering an application for a strata certificate where there is a relevant development consent in force, is not required to satisfy itself of the following matters:

(a) the matters set out in subsection (1) (b) (vi) (as required by subsections (1), (1A) (a), (3) (c) and (4) (b)),

(b) the matters set out in subsection (3) (b),

(c) the matters set out in subsection (5) (b).

(7) Despite any other provision of this section, a local council must not grant a strata certificate in respect of a proposed strata plan, strata plan of subdivision or notice of conversion for which no relevant development consent is in force or is required unless it has considered the following:

(a) whether the following will be appropriate to the building’s proposed use:

(i) the structural strength and load-bearing capacity of the building the subject of the plan or notice,

(ii) the measures to protect persons using the building, and to facilitate their egress from the building, in the event of fire,

(iii) the measures to restrict the spread of fire from the building to other buildings nearby,

(b) whether the building complies, or will, when completed, comply, with such of the Category 1 fire safety provisions as are applicable to the building’s proposed use.

(8) In subsection (7):
"Category 1 fire safety provisions" means the provisions prescribed for the purposes of this section by the regulations.