Australian Super Developments Pty Limited v Pittwater Council

[2004] NSWLEC 632

Land and Environment Court

of New South Wales

CITATION:	Australian Super Developments Pty Limited v Pittwater Council [2004] NSWLEC 632
PARTIES:	APPLICANT Australian Super Developments Pty Limited RESPONDENT Pittwater Council
FILE NUMBER(S):	10431 of 1981
CORAM:	Pain J
KEY ISSUES:	Development Consent :- whether alternative plan gives effect to lost development consent plan
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 s 96 Land and Environment Court Rules Pt 6 r 1(1) Supreme Court Rules Pt 31 r 2
CASES CITED:
DATES OF HEARING:	8/11/2004
DATE OF JUDGMENT:	11/12/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr M Craig SC with Ms A Pearman instructed by Gadens Lawyers RESPONDENT Ms J Jagot instructed by Mallesons Stephen Jaques

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

12 November 2004

10431 of 1981 Australian Super Developments Pty Limited v Pittwater Council

JUDGMENT

1 Her Honour: In 1982 this Court granted the Applicant development consent for a retirement village, including 185 self care units, at 79 Cabbage Tree Road, Bayview. Stage 1 of the development has been completed in the southern part of the site. Stage 2, being the construction of 112 self care units on the northern part of the land, is yet to be constructed.

2 The Applicant has lodged a Notice of Motion with the Court pursuant to s 96 of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”) seeking modification of the development consent as it relates to Stage 2 of the development.

3 Condition 14 of the development consent granted in 1982 states that:

The development shall be generally in accordance with the plans as tendered to the Land and Environment Court as Exhibit 2 as amended by Exhibit H.

4 On 10 June 2004 the Applicant’s instructing solicitors received a letter from the Respondent’s instructing solicitors (Annexure K to the affidavit of Ms Richards sworn 29 July 2004) stating that until a complete copy of Exhibit H as tendered to the Court at the original hearing is produced it will not be possible for the Court to determine whether the development as modified is substantially the same as the development to which consent was originally granted, or otherwise assess the Applicant’s application and determine the issues in these Class 1 proceedings.

5 On 14 September 2004 the Applicant filed a Notice of Motion pursuant to Pt 31 r 2 of the Supreme Court Rules, which are adopted by Pt 6 r 1(1) of the Land and Environment Court Rules, seeking the separate determination of a question of fact being the identity of the plans forming Exhibit 2 and Exhibit H. The Notice of Motion filed by the Applicant seeks, inter alia, the following order:

For the purpose of determining the applicant’s Application Class 1 dated 1 March 2004 and made pursuant to section 96 of the Environmental Planning and Assessment Act 1979 for modification of the development consent granted by the Court on 9 March 1982 for a retirement village comprising aged persons housing at Bayview South, the plans referred to in condition 14 of the conditions annexed to that consent as “Exhibit 2” and “Exhibit H” respectively, may be taken to be the plans marked “A” and “B” respectively, copies of which are annexed to this Notice of Motion;

6 As Exhibit 2 has now been located the identity of Exhibit 2 is no longer in dispute and the parties agreed that the plans marked “A” attached to the Applicant’s Notice of Motion are Exhibit 2. However the identity of Exhibit H remains outstanding. Exhibit H, which was not retained by the Court, has not been able to be located. As the parties agreed that the original Exhibit H cannot be located, despite the extensive searches which have been made as testified to in the affidavits sworn by Ms Richards on 29 July 2004 and 23 September 2004 relied on by the Applicant, the issue before the Court is whether a plan exists which is reflective of Exhibit H.

The Applicant’s Submissions

7 In support of its Notice of Motion the Applicant relied upon, in addition to the affidavits of Ms Richards, two affidavits sworn 29 July 2004 and 22 September 2004 of Mr Geoffrey Twibill, the Applicant’s architect who had carriage of the development from the time of the lodgement of the development application with the Council until 1985.

8 The Applicant argued that the plan marked “B” attached to its Notice of Motion, being the “Peninsula Gardens All Stages Plan” (the “All Stages Plan”), is reflective of Exhibit H as:

· The buildings and roads in Stage 1 approved by the Council in 1983 and built are consistent with the All Stages Plan;

· The grant of building approval by the Council for Stage 1 was dependent upon the existence of a prior development consent for those buildings works, s 314(4) of the Local Government Act 1919;

· The only development consent preceding the grant of building approval was the consent granted by the Court;

· Assuming that the building approval was lawfully granted by the Council, that Act is consistent only with the amended development scheme conforming to the All Stages Plan and not the Allocation Plan, the plan contended for previously by the Respondent The layout for Stage 1 on the latter plan would not, if it was the only extant consent, have authorised the grant of building approval under Pt 11 of the 1919 Act;

· In the absence of any orders issued by the Respondent the inference available to the Court is that the development has been built in accordance with the approved plans and conditions;

· In a report to Council’s Development Unit dated 17 December 1986 the Council had identified that it may not have had an appropriate modification when contemplating a Building Approval. It examined the requirement and determined that the modification was required in order to accommodate the serviced apartment hostel building;

· The Court approval was for 185 self care units. The Statement of Environmental Effects accompanying the application was for 185 self care units plus one resident supervisor. The All Stages Plan shows 186 units. The Allocation Plan total only 170 units.

9 While the Applicant noted that the hostel in Stage 1 has not been built in the location shown in the All Stages Plan, the Applicant argued that this did not mean that the All Stages Plan was not reflective of Exhibit H. Rather, the development consent had been subsequently modified by the Court to permit the relocation of the hostel.

10 It is Mr Twibill’s evidence, as contained in his affidavit sworn on 22 September 2004, that while he does not recall if the All Stages Plan was produced to the Court during the hearing in 1982, the All Stages Plan and plans titled:

(a) Site Plan A01;
(b) A46: Site Development Plan – Stage 1; and
(c) WD11 Site Development Layout;
all show a consistency in the footprints of the buildings in Stage 1. The Applicant submitted that Stage 1 of the development as built is consistent with the footprints shown in these plans.

11 Further, Mr Twibill states in his affidavit sworn on 22 September 2004 that:

(a) the building footprints shown on a Sketch Plan attached as Exhibit 1 to a Deed of Trust, which deed was entered into in satisfaction of certain conditions of the development consent, are consistent with the All Stages Plan; and
(b) a letter from the Council dated 22 November 1984 to Colin Henry at Geoffrey Twibill & Associates, notes the location of the master TV antennae is a component covered by the consent granted by the Court and annexes a copy of the All Stages Plan which has been marked to show the location of the antennae.

12 The Applicant argued that the only inference which can be drawn from the evidence of Mr Twibill is that the All Stages Plan is reflective of Exhibit H.

The Council’s Submissions

13 While the Council accepts that Stage 1 of the development and the access from Cabbage Tree Road as constructed is the development consented to in the development consent and is consistent in these respects with the All Stages Plan, the Council does not accept the Applicant’s argument that the All Stages Plan is reflective of Exhibit H in relation to the northern part of the site. While the Council did not argue strongly that any plan was reflective of Exhibit H the Council argued that the evidence suggests a plan entitled “Modified Access Plan”, which was served on the Council’s solicitors the day before the 1982 hearing, was more likely to be reflective of Exhibit H than the All Stages Plan.

14 The Council’s concerns are that the All Stages Plan shows development in the northern section different from the plans contained in Exhibit 2 where, other than the access from Cabbage Tree Road, the development has not yet been constructed. The differences between the All Stages Plan and the Modification Access Plan or the Allocation Plan in Exhibit 2, even allowing for the change in access from that depicted in these plans, may be material in terms of accessibility for disabled persons, flood impacts and impacts of the building pads and roads on vegetation and fauna habitat. The All Stages Plan shows 36 building footprints while the Allocation Plan shows 27.

15 The Council argued that the factors indicating that the All Stages Plan could not be reflective of Exhibit H are as follows:

(a) The letter accompanying the Modified Access Plan which the Applicant sent to the Council the day before the hearing refers to a modified access arrangement with the driveway to Cabbage Tree Road curving to the east across land lots 10 and 11 in DP 19980, which lots the applicants had an option over, and the access to Gulia Street described as for emergency exits only.
(b) Other than access, the Modified Access Plan is consistent with the plans contained in Exhibit 2. In particular, the Modified Access Plan shows the hostel as being located in the far south-western corner of the plan as shown on the Exhibit 2 plans.
(c) The judgment of the Court and a letter from the Council’s solicitors to the Council reflects the amended access to the development and the Council submits that if further amendments had been made to the stage 2 area as shown on the All Stages Plan the judgment and the letter would have noted that fact.
(d) While the access as constructed is not consistent with the Modified Access Plan and is consistent with the All Stages Plan this did not mean that the All Stages Plan is reflective of Exhibit H. The All Stages Plan shows access to the site over Lot A DP 387362 and at the time the development consent was granted by the Court the Applicant did not have any rights over that land.
(e) The All Stages Plan shows an alternative location for the hostel, which alternative location is not mentioned in the documents relating to the development until about 1983, suggesting that the All Stages Plan was not produced until after the development consent was granted in 1982.
(f) When the development consent was modified by the Court in 1986 to alter the location of the hostel Exhibit H was already missing and some form of compromise appears to have been reached with the Applicant producing Drawing WD 11 as a “substitute”. Other than the access road, Drawing WD 11 does not show the layout of the northern part of the site.
(g) A letter from the Council’s solicitors to the Applicant’s solicitors dated 1 October 2002 notes that Exhibit H is identified in their records as being a revised access plan and describes the plan in terms more reflective of the Modified Access Plan than the All Stages Plan.
(h) The All Stages Plan is similar to the “Allocation Plan” contained in Exhibit 2, making it unlikely that the consent would refer separately to the All Stages Plan.

16 It is necessary to determine the scope of the 1982 development consent because s 96 of the EP&A Act, which enables the Court to modify development consents, provides that the consent may only be modified where, amongst other things, the consent authority:

… is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all)

17 The Applicant’s All Stages Plan was the only plan produced to the Court which shows the access from Cabbage Tree Road as built in the north eastern corner together with a layout for the northern part of the site. The Modified Access Plan which the Council said could conceivably depict Exhibit H, does not show the access from Cabbage Tree Road as built, but rather the access as originally proposed over lots 9 and 10 towards the centre of the land to be developed.

18 As the Council has accepted for the purpose of these proceedings that the access as now built is what was given development consent it is clear that the Modified Access Plan cannot be representative of Exhibit H.

19 I agree with the Council that a possible inference from the evidence is that there may be a further plan, not currently before the Court, which shows the access road as built in the north western corner with a modified layout for the northern part of the site. Whether such a plan shows the layouts depicted in the Modified Access Plan or the All Stages Plan the Applicant relied on, is impossible to determine on the current evidence.

20 However I agree with the Applicant that for the reasons set out at par 8 to 11 above, the evidence supports the inference that the All Stages Plan is representative of Exhibit H for the northern section of the site. Given that there is no other plan before the Court and there is no direct evidence that such a plan exists I consider that the Applicant has proved, on the balance of probabilities, that the All Stages Plan is representative of Exhibit H. It is not material that at the time development consent was granted the Applicant did not own lot A over which access was subsequently built, as argued by the Council (see par 15(d)). Provided the owner’s consent was obtained to the making of the development application clearly development consent could be granted in relation to that land. The other matters the Council relied on at par 15 are not determinative of the issue one way or the other.

21 Given that the parties now agree on the identity of the Exhibit 2 plans I understand that no order in relation to these is necessary.

22 An order which reflects my finding that the All Stages Plan, Exhibit B to the Applicant’s Notice of Motion, reflects Exhibit H, should be made. As the precise terms of the order now sought in relation to Exhibit H differs from that sought in the Notice of Motion I ask the parties to file agreed terms of orders within seven days of this judgment. Those orders should reserve the question of costs.