New South Wales Repealed Acts

This legislation has been repealed.

STRATA SCHEMES (FREEHOLD DEVELOPMENT) ACT 1973 - SECT 38

38 Encroachments

(1) The local council may refuse to issue a strata certificate in respect of a proposed strata plan or strata plan of subdivision if any building illustrated by that plan encroaches on to a public place but may issue a strata certificate in respect of such a plan if:

(a) the plan clearly indicates the existence of the encroachment and its nature and extent, and

(c) it is satisfied that retention of the encroachment in its existing state will not endanger public safety or unreasonably interfere with the amenity of the neighbourhood.

(1A) An accredited certifier must refuse to issue a strata certificate in respect of a proposed strata plan or strata plan of subdivision if any building illustrated by that plan encroaches on to a public place unless:

(a) the plan clearly indicates the existence of the encroachment and its nature and extent, and

(b) either one of the following matters is satisfied:

(i) the building complies with any relevant development consent in force with respect to the building with the encroachment,

(ii) any relevant development consent in force with respect to the subdivision the subject of the plan specifies the existence of the encroachment.

(2) Where a local council or an accredited certifier issues a strata certificate in respect of a proposed strata plan or a strata plan of subdivision illustrating a building referred to in subsection (1) or (1A):

(a) in the case of an approval by a local council, the council must not issue a strata certificate under section 37 (1), (1A), (3) or (4) unless the certificate refers to the existence of the encroachment and indicates that the local council does not object thereto, and

(a1) in the case of an approval by an accredited certifier, the accredited certifier must not issue a strata certificate under section 37A (2), (3), (4) or (5) unless the certificate refers to the existence of the encroachment and indicates that:

(i) the local council has granted a relevant development consent that is in force for the building with the encroachment, or

(ii) the local council has granted a relevant development consent that is in force for the subdivision the subject of the plan specifying the existence of the encroachment, and

(b) the provisions of this Act, other than those relating to ownership and certification of title, apply:

(i) in the case of so much of the encroachment as is designated on the plan for use with a lot--as if it were part of the lot, or

(ii) in any other case--as if it were common property.