Landowner Consent In NSW: The Signature That Makes Your DA Valid

YOUR DA NEEDS THE RIGHT OWNER’S SIGNATURE.NSW: confirm written landowner consent before lodgement.

There is a version of a development application that never gets assessed, and it fails for a reason that has nothing to do with planning. If the person making the application is not the only registered owner of the land, and the other owners have not consented in writing, the consent authority has no power to determine the application at all.

The deal question: who must sign before you can lodge?

Owner's consent is not a housekeeping item at the end of the lodgement checklist. Lindsay Taylor Lawyers' summary of the 2022 amendment records that the Environmental Planning and Assessment Amendment (Miscellaneous) Regulation (No 2) 2022 amended section 23 of the Environmental Planning and Assessment Regulation 2021 so that an owner's consent to the making of a development application must be in writing, and that this applies to applications lodged from 1 January 2023. The same analysis notes that owner's consent is an essential prerequisite to a consent authority's power to determine a development application, citing Al Maha Pty Ltd v Huajun Investments Pty Ltd [2018] NSWCA 245, and that consent authorities now have to check the written consent is there.

Read that as a risk statement rather than a rule. A defective consent does not produce a slow application; it produces an invalid one.

Who counts as an owner

The starting point is the certificate of title, not the person you have been negotiating with. City of Sydney states that where the person making the application is not the only registered owner, written consent from all other registered owners is required, that it is the applicant's responsibility to demonstrate all owners have consented, and that the council will not accept an application without the correct owner's consent.

Two practical consequences follow. First, on a site held by several owners, or by a family or trust structure, you need consent from all of them — not just the one who is keen. Second, if title has recently changed hands, you need evidence of the new registered owner, because a consent signed by the vendor who has already settled is worthless.

Companies, strata and signing on someone's behalf

The signing mechanics are where deals quietly lose a fortnight. City of Sydney's published requirements say that where the owner is a company, the consent must be signed by one company director and one company secretary, or two company directors, and where the company has a single director or secretary only one signature is required — with the applicant providing the names and positions of the signatories and a current company extract from ASIC dated the day of lodgement or the day before.

Strata adds a layer. Where the property is a unit under strata title and the works or proposed use affect common property, consent from the owners corporation is also required, signed in line with section 273 of the Strata Schemes Management Act 2015. That is a resolution process, not a signature you can collect in an afternoon.

And where someone signs on the owner's behalf — a power of attorney, a trust deed, probate, letters of administration or a delegated company authority — the full evidence of that authority has to be attached.

It is not only development applications

Central Coast Council's Part B form accompanies all applications submitted through the NSW Planning Portal, including development applications, complying development certificates, construction certificates and subdivision certificate applications, and must be completed and signed by all owners of the land. So the consent requirement follows you past the DA into certification and subdivision — meaning a consent that was adequate at DA stage may need to be refreshed later, and council material suggests consents are expected to be current rather than ancient.

The checks a capable student would run

• Order a current title search before you lodge, not after. Work from the registered ownership, not from the contract or from what the vendor told you.
• List every owner and every interest. Co-owners, companies, trusts and strata all have different signing requirements, and each takes different time to obtain.
• Do not rely on a verbal yes. The consent must be in writing and it must be in the form the council requires.
• Check the date on the consent. Council material expects a consent dated within a recent window of lodgement, so a consent collected months ago in early negotiations may need to be re-signed.
• Put the consent in the contract, not after it. If you are applying over land you do not yet own, make the consent, and the cooperation needed to obtain it, an express obligation with a deadline before you commit money.

The trap: doing the planning work before securing the signature

The expensive mistake on a pre-purchase or option deal is spending on surveys, architects and reports before the landowner has committed, in writing, to the application being lodged. If the owner changes their mind, or a co-owner refuses, the work is stranded and the site is not yours to progress. Because consent is a precondition to council's power to determine, not a defect council can wave through, there is no administrative workaround: you either have the consent or the application does not proceed.

What you do not have to work out alone

You are not expected to determine who must sign or to draft around a difficult title. A property lawyer identifies every registered owner and every interest that must consent, prepares the consent in the required form, and advises on company, strata and delegated-signing issues; your town planner coordinates the rest of the application so nothing else is missing at lodgement; and council's planning staff confirm their own lodgement requirements. Your job is to sequence the consent into the deal as a condition, so the planning spend only happens on terms you can enforce.

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Photo: 'Semi-detached house in Tompson Street' by Bidgee, Wikimedia Commons, CC BY-SA 3.0 AU.