Alanto Investments Pty Ltd v Randwick City Council
[2000] NSWLEC 74
•04/14/2000
Land and Environment Court
of New South Wales
CITATION: Alanto Investments Pty Ltd v Randwick City Council [2000] NSWLEC 74 PARTIES: APPLICANT:
RESPONDENT:
Alanto Investments Pty Ltd
Randwick City CouncilFILE NUMBER(S): 10639B of 1994 CORAM: Talbot J KEY ISSUES: Development Consent :- modification - whether includes addition of further approval under separate legislation LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 96(1)
Strata Schemes (Freehold Development) Act 1973 s 37
Strata Titles Act 1973CASES CITED: M J Davis Industrial Pty Ltd v Fairfield City Council and Anor (SC(NSW), Bell J, 20 August 1999, unreported);
Proprietors of SP 13318 & 13555 v Lavender View Regency Pty Ltd and Anor (1997) 97 LGERA 337DATES OF HEARING: 11/04/2000 DATE OF JUDGMENT:
04/14/2000LEGAL REPRESENTATIVES: RESPONDENT:
APPLICANT:
Mr W R Davison SC
SOLICITORS:
Snelgrove & Partners
Mr A J J Thompson (Barrister)
SOLICITORS:
Bowen & Gerathy
JUDGMENT:
IN THE LAND AND Matter No. 10639B of 1994
ENVIRONMENT COURT Coram: Talbot J
OF NEW SOUTH WALES Decision Date: 14 April, 2000
Respondent
1. On 3 March 1995 the Court delivered a judgment upholding an appeal by the applicant and determining a development application for the conversion of the existing Coogee Sands Motel into 81 serviced apartments and subdivision pursuant to the Strata Titles Act 1973, by granting of consent subject to conditions.
3. Condition 15 of the consent reads as follows:-2. Subsequently, by consent, on 10 December 1996 condition 1 of the development consent was amended to include a reference to plans in order to accommodate changes by way of modification.
- All strata title units being used as serviced apartments and all strata title car spaces being used as an adjunct to the use of the said units as serviced apartments as defined in Local Environmental Plan No. 104 made 23 March 1993.
4. The consent orders made on 10 December 1996 amended condition 18 to read as follows:-
- A total of fifty two (52) strata title car parking spaces are to be provided as shown on the amended approved plans.
5. None of the plans expressly referred to in condition 1 of the consent are plans of subdivision capable of registration pursuant to the Strata Titles Act.
6. The applicant has caused a strata plan to be prepared. The council has refused to certify the plan for registration pursuant to the Strata Schemes (Freehold Development) Act 1973.
7. The strata plan has not previously been before the Court.
8. The applicant now seeks a further modification to the development consent by amending condition 1 to incorporate the draft strata plan.
9. Originally, Mr Davison SC who appeared for the applicant made his submissions on the basis that the draft strata plan was in evidence as an exhibit in the original proceedings. This understanding proved to be incorrect. It could never have been the case as the draft strata plan was not certified by the surveyor until 14 September 1999.
10. The substance of the applicant’s motion therefore is that the Court incorporate by way of modification, a plan which has not been previously considered by it and did not exist at the date when development consent was granted by the Court on 3 March 1995.
12. Order 2 is in the following form:-11. Mr Davison contends that Order 2 made by the Court in 1995, condition 15 and condition 18, as subsequently modified, demonstrate that the Court intended to, and did approve the strata plan.
- Development application for the conversion of the existing Coogee Sands Motel into 81 serviced apartments and subdivision pursuant to the Strata Titles Act is determined by granting of consent subject to the conditions attached hereto and marked A.
13. I have already mentioned that condition 1 referred to the specific plans and provided that the approved development be carried out generally in accordance with those plans.
14. Mr Davison’s argument is that the effect of Order 2 is twofold. Firstly, development consent is granted to the conversion of the existing motel into 81 serviced apartments. Secondly, consent was granted for a subdivision pursuant to the Strata Titles Act.
15. At page 3 of the judgment delivered 3 March 1995, the proposal is identified as “the conversion of the existing restaurant into four rooms, the reconversion of a conference room into four rooms and the addition of a new floor set back five metres from the Dolphin Street frontage containing 18 rooms. A partial floor set back three metres from Bream Street will be added at the rear. The rear addition will contain five rooms”.
16. I then went on to note in the next paragraph that “[I]t is proposed that the building be subdivided under the Strata Titles Act and that the use be changed from a motel to serviced apartments. The number of rooms will be increased from 54 to 81” .
17. At page 9 of the judgment I also noted a concern of council that the proposed strata subdivision and separate occupation of the rooms will likely result in the development being occupied as permanent accommodation. Condition 15 which is set out in full above responds to that concern. Although part of the consent approved alterations to an existing building, it also contemplated that new building work would be carried out.
18. The Court is not persuaded that Order 2 was intended to grant subdivision approval beyond in principle development consent to the concept of a strata subdivision, notwithstanding that Christopher T Norton, registered surveyor, has certified that in his opinion the strata plan now produced substantially accords with the layout shown in the building plans referred to in Order 2, save that the strata plan has been prepared in the format as required by the Land Titles Office.
19. The application for modification of development consent is in effect an attempt to circumvent s 37 of the Strata Schemes (Freehold Development) Act in circumstances where the council has refused to issue to the applicant a certificate of approval of the proposed strata plan.
20. There is no evidence that there was an extant application to the council pursuant to s 37 at the time the development application was determined on 3 March 1995 or subsequently when it was modified by the consent orders made 10 December 1996. Furthermore, there is no record of, nor any suggestion that, the appeal in proceedings 10639 of 1994 incorporated an appeal pursuant to s 40 of the Strata Schemes (Freehold Development) Act. It is difficult to see how it could be suggested that the Court was being asked at any stage to make a final decision in respect of the matters specified in s 37.
21. The only dispute between the council and applicant so far as the Court is aware relates to the conjunction of those lots in the strata plan comprising an apartment and the lots comprising individual car spaces. The council contends that condition 15 requires that the individual strata title lots proposed to be used for serviced apartments should incorporate the individual strata title car spaces so that they together form one lot. The strata plan produced to the Court in support of the application for modification does not on its face establish that relationship.
22. Section 96(1) of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”) permits a consent authority and hence the Court in this case (see regulation 72) to modify a development consent to correct a minor error, misdescription or miscalculation. At the time development consent was granted there was no error, misdescription or miscalculation by the Court which led to an omission to refer specifically to the strata plan. The plan did not exist.
23. It is difficult to see how an error could have occurred in the absence of a mistake, a wrong opinion or inaccuracy. The omission of any reference to the strata plan is not a misdescription in the sense that any part of the development or the plans are described inaccurately. The issue of miscalculation does not arise.
24. In the Court’s opinion the application for modification pursuant to s 96(1) is misconceived.
25. It follows that the application should be refused.
26. This conclusion is reinforced by condition 17 of the conditions of development consent which states that the consent is subject to the receipt of an original survey plan and seven copies. That condition confirms that neither the parties nor the Court intended the consent to extend beyond the plans lodged in support of the development application.
27. The process of approving and certifying a plan of subdivision after final survey is a distinct process to the granting of development consent for subdivision. There is nothing in the wording of Order 2 that would take the effect of that order beyond development consent to a subdivision pursuant to the Strata Titles Act. The provisions under the EP&A Act and the Strata Schemes (Freehold Development) Act are cast in different terms. What the applicant is seeking to do is to add to the Court’s determination as part of its development consent a determination pursuant to a separate and distinct regime (see M J Davis Industrial Pty Ltd v Fairfield City Council and Anor (SC(NSW), Bell J, 20 August 1999, unreported); Proprietors of SP 13318 & 13555 v Lavender View Regency Pty Ltd and Anor (1997) 97 LGERA 337).
28. Irrespective of whether any changes that have occurred between the development plans and the strata plan are consistent with the process involved in a modification, the Court is now being asked to embark upon a separate and new task which is distinct from the assessment of a development application. This involves consideration of a different set of criteria.
29. The application for modification of orders made by the Court on 3 March 1995 as modified by consent orders dated 10 December 1996 is refused.
31. On 4 April 2000, Tatton Park Pty Ltd, a successor to the applicant, filed an application class 2 in Court. This application class 2 has been designated No 20010 of 2000. It is an appeal against the deemed refusal by the respondent council of an application for a certificate of approval of the proposed strata plan. Following the decision in matter No 10639B of 1994 it will be necessary for that appeal to proceed. Accordingly, matter No 20010 of 2000 is listed for callover before the registrar at 9.00am Wednesday, 19 April 2000.30. The exhibits may be returned.
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