Barton Securities Limited v Warringah Council

[2009] NSWLEC 179

Reported Decision: 170 LGERA 223

Land and Environment Court

of New South Wales

CITATION:

Barton Securities Limited v Warringah Council & Others [2009] NSWLEC 179

PARTIES:

APPLICANT
Barton Securities Limited
FIRST RESPONDENT
Warringah Council
SECOND RESPONDENT
Colin Robert Haines
THIRD RESPONDENT
The Owners Strata Plan No.13322

FILE NUMBER(S):

41181 of 2008

CORAM:

Sheahan J

KEY ISSUES:

DEVELOPMENT CONSENT :- challenges on many grounds to the validity of a consent, jurisdictional facts, procedural fairness, owners consent, notification requirements, failure to consider impacts, design verification requirements, whether works are "substantial redevelopment" or "substantial refurbishment"

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Evidence Act 1995
Interpretation Act 1987
Land and Environment Court Act 1979
Strata Schemes Management Act 1996
Environmental Planning and Assessment Regulation 2000
State Environmental Planning Policy 65

CASES CITED:

Anvil Hill Project Watch Association Inc v Minister for Environment and Water Resources [2008] FCAFC 3; (2008) 158 LGERA 324;
Barrick Australia Ltd v Williams [2009] NSWCA 275
Botany Bay City Council v Remath Investments No.6 Pty Ltd [2000] NSWCA 364; (2000) 111 LGERA 446
Clark and Davis v Wollongong City Council [2008] NSWLEC 110
Corporation of the City of Enfield v Development Assessment Commission & Anor [2000] HCA 5; (2000) 199 CLR 135
Hope v Bathurst City Council (1980) 144 CLR 1
IGS Enterprises Pty Ltd v Hornsby Shire Council [2008] NSWLEC 304; (2008) 164 LGERA 424
Kindimindi Investments Pty Limited v Lane Cove Council [2006] NSWLEC 399; (2006) 143 LGERA 277
King v Woollahra Council [2006] NSWLEC 654
Lesnewski v Mosman Municipal Council [2005] NSWCA 99; (2005) 138 LGERA 207
McGovern v Ku-ring-gai Council [2008] NSWCA 209; (2008) 161 LGERA 170
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Notaras v Waverley Council & Anor [2007] NSWCA 333; (2007) 161 LGERA 230
NRS Group Pty Ltd v Cowra [2008] NSWLEC 156
Parramatta City Council v Hale (1982) 47 LGRA 319
Radio 2UE Sydney Pty Ltd v Stereo FM Pty Ltd (1982) 62 FLR 437
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1
Sisic v Rockdale City Council [2007] NSWLEC 687; (2007) 158 LGERA 170
Tillmanns Butcheries Pty Ltd v AMIEU (1979) 42 FLR 331
Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8; (1999) 46 NSWLR 55
Woolworths Ltd v Pallas Newco Pty Ltd & Anor [2004] NSWCA 422; (2004) 61 NSWLR 707

DATES OF HEARING:

16 and 17 June 2009

 
DATE OF JUDGMENT: 

26 October 2009

LEGAL REPRESENTATIVES:

APPLICANT
Mr C R Ireland, Barrister
SOLICITORS
Terence W Riley

FIRST RESPONDENT
Mr A Hudson, Solicitor of
Wilshire Webb Staunton Beattie Lawyers

SECOND RESPONDENT
Mr Ian Tremback, Solicitor

THIRD RESPONDENT
Submitting appearance

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Sheahan J

26 October 2009

41181 of 2008 Barton Securities Limited v Warringah Council & Others

JUDGMENT

Introduction

1 His Honour: The applicant company is controlled by a solicitor, Mr Tom Michael Oates, and purchased a home at 71 Undercliff Road Harbord/Freshwater in early 2007. The settlement of the purchase occurred on 1 February 2007, Council approved renovations in October 2007, and Mr Oates and his family returned from the United Kingdom to live in that property at the end of 2007.

2 The company now seeks to set aside a development consent (“DC”) granted by the first respondent Council, under delegated authority, to the second respondent, Mr Colin Robert Haines, on 20 August 2008, approving alterations and additions to a home unit next door, at 69 Undercliff Road, owned by his wife, Pauline Julia Haines.

3 Mr and/or Mrs Haines own two home units (Mr Haines owns No.3 and Mrs Haines No.4) out of the four in Strata Plan 13322, of which the third respondent owners corporation is the proprietor. Mr Haines is the chairman of that corporation. The lot entitlements in the corporation are nine each for Lots 1 & 2, seven for Lot 3, and eight for Lot 4. Lot 1 is owned by Mrs Glenda Dunn, and Lot 2 is owned by Dritex Pty Ltd, of which she and her husband Stephen are directors.

4 The unit involved in this case is Unit 4, and the estimated development cost of the approved renovations is $264,000. They would add a second storey to Unit/lot 4, and a fifth storey to No.69, would increase the floor space of Unit 4 from 427m2 to 493m2, and would also involve work on the common property.

5 It is common ground that the additional storey on No.69 will make that building significantly higher than both Mr Oates’ proposed redevelopment of the applicant’s house at No.71 and the existing dwelling on the other side of the unit block, No.67. (An adverse impact on No.77 owned by a Mr Trumper, is also alleged in the applicant’s points of claim (“ POC”)).

6 Mr Haines signed the development application (“DA”) dated 16 October 2007 (see Exhibit A1, tab 2, at p6) as proponent, and both Mr and Mrs Haines signed the section of the DA form entitled “Owner’s Consent” (ibid, at p2), she as owner of Lot 4 and he as chairman of the owners corporation. Both gave their address at 10 Alt Crescent, Davidson. (The seal of the Strata Plan was affixed to the DA literally over the signature of Mrs Haines, alongside that of her husband).

7 The applicant’s DA for No.71 was approved on 22 October 2007 (Exhibit A1, tab 37). A subsequent application for a construction certificate (“CC”) for the works at No.69 was withdrawn after these proceedings were commenced on 25 November 2008.

8 The Council is the primary contradictor of the applicant’s case, which has been spelt out in the detailed POC filed 6 March 2009.

9 The third respondent filed a submitting appearance, save as to costs, on 18 December 2008. After the second respondent had filed various defence contentions, his solicitor withdrew from the hearing, confirming that the second respondent endorsed the case and submissions presented by the Council (T16.06.09, p46, LL18-19).

10 The case proceeded largely on an analysis of an agreed bundle of documents (Exhibit A1), and from now on I will refer to those documents in that exhibit by reference only to the tab numbers. (Exhibit C1 comprises clearer versions of documents in Exhibit A1 at tabs 18, 19a, and 19b).

11 Nos.69, 67 and 71 Undercliff Road face generally north-east, with No.71 to the east or south, and No.67 (the property of W J and J A Jeremiasse) to the west or north of No.69. These properties are in an elevated location close to the beach (see map at tab 20, p2). The street plan and notification markings (at tab 3c) illustrate that Nos. 73, 75 and 77 Undercliff Road actually back perpendicularly onto the fence on the eastern/southern boundary of No.71, but have no boundaries with No.69. The aerial photograph (at tab 3d) shows the relationship among these properties.

12 I will now set out, in turn:

· The issues in the case ([13]-[17]).

· Details of the Haines proposal ([20]-[27]).

· The evidence regarding:

(i) Council’s processing and then assessment of the Haines DA ([28]-[39] and [40]-[51]).
(ii) Council’s grant of consent and subsequent correspondence ([52]-[58]).

· Other factual and expert evidence ([59]-[69] and [70]-[73]).

· The relevant instruments and other documents ([74]-[95]).

· My consideration of the applicant’s challenges under five headings ([96]-[122]).

The issues before the court

13 The Council has suggested, and the applicant agreed, that any questions of relief, including discretion, and/or the application of Div 3 of Part 3 (ss25A-25E) of the Land and Environment Court Act 1979, should be deferred until after the court has ruled on the applicant company’s challenges to the DC (see Council’s written submissions par 54, and T 16.6.09, pp44-46).

14 Put briefly, the applicant seeks in its class 4 application declarations that:

(1) The Council failed to take into consideration a matter required to be considered, under s79C(1)(b) of the Environmental Planning and Assessment Act 1979 (“ EPA Act ), namely “ the likely adverse impacts on the privacy and amenity of adjoining property owned by the Applicant … by reason of overlooking from the proposed development …”.
(2) The decision of the Council to grant the consent, either at all, or without any conditions ameliorating any overlooking, was manifestly unreasonable.
(3) The Council, in granting the consent, failed to take into consideration matters required to be taken into consideration pursuant to cl 30(2)(b) and (c) of State Environmental Planning Policy 65 – Design Quality of Residential Flat Development (“SEPP 65”).
(4) The DA was not accompanied by the required “ design verification ” from a qualified designer, within the meaning of those terms in cl 50(1A) of the Environmental Planning and Assessment Regulation 2000 (“the Regulation”).
(5) The DA was lodged and determined without the lawful consent of the third respondent, being the owner of common property to which the application partially relates.
(6) The Council’s decision to grant the DC was vitiated by a denial of procedural fairness, arising from the applicant’s “ not being further notified or provided with an opportunity to be heard after the First Respondent decided to determine DA 2007/1018 contrary to the representation made by the First Respondent ”.
(7) The DC was granted contrary to law, in the absence of jurisdiction, and is wholly invalid, void and of no force and effect.

15 In respect of the applicant’s prayers for relief, I note the following:

(a) Prayer (1) – The actual wording of the EPA Act s79C(1)(b) is as follows:

“ 79C Evaluation
(1) Matters for consideration-general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application: …
(b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality. …”
(b) Prayer (3) – Clause 30 of SEPP 65 will be set out later, in the context of other relevant provisions of that SEPP. (See [87]-[94] below).

(c) Prayer (4) – Regulation 50(1A) provides:

“( 1A) A development application that relates to a residential flat development, and that is made on or after 1 December 2003, must be accompanied by a design verification from a qualified designer, being a statement in which the qualified designer verifies:
(a) that he or she designed, or directed the design, of the residential flat development, and
(b) that the design quality principles set out in Part 2 of State Environmental Planning Policy No 65-Design Quality of Residential Flat Development are achieved for the residential flat development.”
It is to be noted that Regulation 143A(2) also requires a design verification at the CC stage.

(d) Prayer (5) – Regulation 49(1) requires ( vice EPA Act s77(1)) a development application to enjoy the “ consent in writing of the owner of” “the land to which the development application relates ”. (I will refer to this requirement as that for “ owner’s consent ”).

16 Counsel for the applicant (Mr C Ireland) helpfully summarised the applicant’s challenges as follows (written submissions par 3):

“(a) Failure to have regard to the SEPP 65 – Design Quality of Residential Flat Development mandatory relevant considerations;
(b) Jurisdictional error brought about the absence of the ‘design verification’ required by clause 50(1A) of the EP & A Regulation;
(c) Failure to take into account a s79C mandatory relevant consideration (impact on 71 Undercliff), and Wednesbury unreasonableness in the resulting Consent;
(d) Denial of procedural fairness; and
(e) Jurisdictional error brought about by the absence of owner’s consent, being the consent of the Owners’ Corporation.”

17 Towards the end of his written submissions (par 48) Mr Ireland said:

“ The development consent granted by the first respondent is vitiated by three different jurisdictional errors (failure to provide the specific design verification required by clause 50(1A), denial of natural justice, and absence of owner’s consent). It is also legally unreasonable and affected by vitiating error of law being a material failure to take into account a mandatory relevant consideration being the privacy impact on 71 Undercliff and the clause 30 SEPP 65 design considerations ”.

18 The Council resists all the applicant’s claims, and made detailed written and oral submissions on each, asserting (written submissions par 32) that the applicant “is seeking to disguise a challenge on the merits contrary to the established principles for judicial review”.

19 The contentions filed on behalf of Mr Haines were as follows:

(a) That he provided a clear and complete DA to the Council to enable its full consideration of his proposal.
(b) That Council carried out a full and proper assessment of the DA.
(c) That the granting of consent subject to appropriate conditions was correct and appropriate.
(d) That “ the Affidavit of Tom Michael Oates is misleading in that it does not conclude by noting that the Owners Corporation consent was supplied to Warringah Council prior to Development Approval.”
(e) that the applicant would have a worse privacy invasion if its case succeeded.

The Haines Project in detail

20 DA 2007/1018 was accompanied by a Statement of Environmental Effects (“SEE” – tab 2d), prepared by Building Consultant Context Design Pty Ltd “for Colin and Pauline Haines”, and the proposal is clearly defined in s6.0 of that SEE and clearly depicted in the plans at tab 2e. The proposed development was said to involve:

(i) the demolition of an existing single garage in the unit block, and its replacement by the construction of a new double garage,
(ii) demolition and replacement of a western wall beneath the building,
(iii) the installation of a structural transfer beam to support the eastern corner of the building, as a consequence of the demolition of the eastern wall,
(iv) the demolition of existing walls of Lot 4, the extension of Lot 4 on level 2 northwards over the roof of level 1, and the construction of a new usable tile clad roof terrace for the use of Lot 4 on the roof of level 1,
(v) construction and addition of a new level containing a bedroom with ensuite and study, construction of a north-facing deck over part of the concrete roof of level 2, and construction of a south-facing balcony spanning the gap between the building and the rock shelf to the south,
(vi) the provision of an 1800mm privacy screen along the western side of the terrace (but not on the balcony areas overlooking No.71 to the east),
(vii) the installation of a vertically-louvred screen 1800mm high on the remainder of the western edge of the proposed level 2 terrace, and
(viii) the installation of a glazed metal framed balustrade around the remainder of the terrace on the northern and eastern sides overlooking No.71.

21 The site at No.69 rises away from Undercliff Road from north to south and, in the SEE, the existing development at No.71 is described as a large three-storey contemporary flat metal roof rendered brick residence. No.67 is described as three-storey curved metal roofed and rendered brick apartment building. To the rear of the site are multi-storey apartment buildings in Crown Road Queenscliff, and opposite the site, on the northern side of Undercliff Road, is public open space leading to the Freshwater Beach public carpark in Moore Road and the beachfront reserve. At the eastern end of the open space adjoining the reserve at No.80 Undercliff Road, is a listed heritage building occupied as “Pilu Freshwater Restaurant”.

22 Unit 1 of No.69 is located on the ground floor level at the front/northern end. On level 1 there are two apartments, Unit 2 at the front and Unit 3 at the rear. On level 2 (the top floor), Unit 4 is at the rear or southern end of the building, with a large open roof deck extending to the front of the building over the level 1 apartment below. Four garages are located in the lower ground floor or basement. It is proposed to extend the existing ground floor eastern terrace servicing the ground floor level front apartment over the garage area, which will be revised to accommodate the Haines proposal for doubling Unit 4’s garage, which runs north-south.

23 Section 9.0 of the SEE (tab 2d, pp6f) makes clear that there will be a western privacy screen on the proposed level 2 roof deck, and that glazed balustrades will replace solid brick, which had been removed for maintenance. (The western privacy screen was stated to have been included at the specific request of the owners of the adjacent top floor apartment at No.67 to the west “for privacy reasons”).

24 Section 13.0 (commencing at p9 of the SEE – tab 2d), deals with privacy and security, and asserts that “no adjacent residences will suffer any additional loss of privacy and there will be no reduction in existing levels of security as a result of the proposal”. The SEE notes that there is currently an existing degree of overlooking between adjacent buildings, but states that the focus of view lines is towards the ocean, rather than towards adjacent properties.

25 Specifically in reference to No.71 and No.67, the SEE says (tab 2d, p9):

“The revised and extended upper level apartment will continue to look over the lower adjacent building to the east at No.71. At the existing Level 2 rooftop deck level the extended eastern wall and proposed window reduces the existing open rooftop deck area and provides marginally improved privacy to No.71. The proposed new Level 3 addition and roof deck is located higher and to the rear of No 71 and while affording easterly ocean views these are over the roof of No 71 and will not result in any direct viewing of windows or living areas or reduced privacy to this building.
Discussions have been held with the owners of the adjacent top floor apartment at No 67 to the west and they have requested privacy screens be installed along the western sides of the existing Level 2 roof deck and proposed Level 3 roof deck areas. 1.8 metre high metal framed vertical louvre privacy screens are proposed and these will have angled vertical blades which afford northerly views and maintain cooling breezes while negating direct north-westerly views into the windows and onto the terrace areas of No 69 which is currently directly overlooked from the subject buildings Level 2 roof deck area.”

26 In s14.0 (tab 2d, p10) regarding “views” the SEE says:

“There is no change to the existing subject building footprint and no change to the existing building envelope impacting on the adjacent buildings or properties at Nos 67 and 71.
The proposed new Level 3 rooftop addition at the rear of the existing building is contained below the height of the existing natural rock topography and vegetation at the rear of the site and will not impact on existing views available from the apartment buildings behind in Crown Road.
The proposed 1.8 metre high privacy screen along the western side of the Level 2 roof deck area is 0.8 metres higher than the existing solid brickwork balustrade that it replaces however this privacy screen has been installed at the request of the owners of the top floor apartment of No 67 to the west who are aware of the minor impact this will have on some existing easterly views”.

27 In the last paragraph of the “summary” section 23.0 (tab 2d, at p14) the SEE says:

“ No adjacent buildings or properties will suffer any loss of natural light, sunlight, privacy, views or amenity. The proposal has been designed to address these issues and successfully negates any adverse affects on neighbouring sites or public spaces”.

Council’s processing of the Haines DA
SEPP 65

28 The Council officers processing and assessing the Haines DA determined at the outset that the proposed development was neither “substantial refurbishment”, nor “substantial redevelopment”, of a “residential flat building”, and that the SEPP accordingly did not apply to the Haines DA. The Council file was annotated, on or about 24 October 2007, “SEPP 65 not req’d” (see tab 3a).

Notification

29 The proposal was notified to neighbours in accordance with the Council’s policy. The standard notification letter and attachments appear at tab 7. The evidence indicates that some 65 letters were sent out on or about 26 October 2007, but the notification to the applicant was posted to the address in the Council’s property information system, namely 71 Undercliff Road Queenscliff, rather than its preferred postal address. It is common ground that that particular notification was not received, but the applicant concedes learning of the DA from visiting the Council’s website. It would appear (from tabs 3c, 5 and 6) that No.77 was also not notified. It is more a failure to “renotify”, or, rather, engage with, the applicant, rather than the original failure to notify it, which is at the centre of this case.

30 Further information was sought from Mr Haines on 24 October (tab 4 and Exhibit A2), and Rex MacRae, direct of Context Design, replied to Council on 29 October 2007 (tab 8 and Exhibit A2). The major subject of the correspondence was the garage alterations, but (at p3 of the letter, par 2) under the heading – “Preserve the Amenity of Adjoining Land” the following comments are made:

“ The proposal maintains the height and length of the existing boundary wall and maintains all existing site, boundary and adjoining site (No 71) levels without change. No existing landscaping is affected by the proposal and there is no impact on existing views, privacy, natural light or solar access affecting the adjacent site or existing residence at No 71 ”.

31 On 7 November 2007, Mr & Mrs Jeremiasse (No.67) lodged an objection to the DA on their own behalf (tab 9 and Exhibit A2). The Council assessment report (tab 20 at p5 of 18) records that as the only submission received. Context Design provided a response to that objection in a detailed letter dated 11 January 2008 (tab 11 and Exhibit A2), again signed by Rex MacRae. The letter volunteers (p4, s (vi)) the following comment:

“ The owners of the adjacent residence to the east at No 71 are fully conversant with the proposal and in direct discussions have voiced no objections or concern with the proposal including the fact that there is a minor increase in mid Winter noon and 3.00 p.m. shadows affecting the rear of their building and site”.
(This evidence is the subject of a direction pursuant to s136 of the Evidence Act 1995, and Council brought no evidence, nor elicited any from Mr T M Oates in cross-examination, to make the point good).

32 The letter of 11 January 2008 continues (at p5), in respect of the objection from No 67:

“The proposed 3 metre long western wall extension to the north of the existing Level 2 stairwell envelope was discussed and it was mutually agreed that this provided privacy between both parties to and from the proposed roofed verandah area of the Unit 4 Level 2 roof deck extension.
Privacy to and from the balance of the existing Level 2 roof deck area was also discussed and the objectors requested that an approx 1.8 metre high privacy screen be installed along the western side of this area. A similar screen was also discussed and agreed to along the western side of the proposed Level 3 rear roof deck area although this area had potentially far lesser affect on privacy to the objectors apartment.”
(Reference in that quotation to the word “ objectors ” does not refer to the present applicant, which had not received Council’s letter of notification).

33 Further information was again requested of Mr and Mrs Haines on 20 February 2008 (tab 12 and Exhibit A2), and Context Design responded on 3 March 2008 (tab 13 and Exhibit A2), attaching some detail.

34 On 25 March 2008, Mr Stephen Dunn, as a director of Dritex Pty Limited, the owner of Lot 2, wrote to the Council in the following terms (tab 14):

“We are writing as a follow up to our telephone communication of January 2008.
To recap, we are the owners of Unit 2, 69 Undercliff Road, Harbord and were surprised when we learned that a Development Application had been lodged on the 16 October last by the owner of Unit 4 for the extensive redevelopment of that unit.
Whilst they had indicated their desire to redevelop and had shown copies of plans, at no stage did we agree to this proposal, or in fact have the opportunity to formally vote on this proposal in a meeting of the Owners Corporation as is required.
We note that Colin Haines has signed the DA as Chairman of the Owners Corporation, but this DA was never discussed or agreed by this body. Note that Unit 2 carries 9 strata entitlements of a total of 33, and we indirectly carry a further 9 by the ownership of Unit 1 by a Director of Dritex, giving a majority vote of 18 of 33. If this DA had been properly discussed and put to a vote by the Owners Corporation, it would have been defeated at that time.
We are now formally requesting that the current DA 2007/1018 be rejected by Warringah Council because it misrepresents the true position of the Owners Corporation and was improperly stamped and endorsed by the Chairman.”

35 Mrs Glenda Dunn, as owner of Lot 1, wrote a letter to the Council in almost identical terms, from the same address at Pennant Hills, on the same date (tab 15).

36 On 9 April 2008, the Council wrote to Mr Haines in the following terms (tab 16):

“ I refer to the above matter and advise that Council is in receipt of correspondence (see copies attached) from the owners of two other lots in the above Strata Plan claiming that the above development application was improperly stamped and signed by you as Chairman of the Owners Corporation.
As you are aware, a development application in respect of land which is the subject of a Strata Scheme must be lodged by or with the consent of the Owners’ Corporation.
On the face of the claims currently before Council, it would appear that this may not have occurred and accordingly the validity of your application is now in question.
In order for consideration of this application to proceed further, it will be necessary for you to provide appropriate evidence that you were entitled to sign the application on behalf of the Owners’ Corporation. Alternatively, you may wish to consider withdrawing the application, in which case consideration will be given by Council to a partial refund of your application fees”.

37 On 30 April 2008, Mr & Mrs Haines replied to the Council as follows (tab 17):

“ We advise that a decision to proceed with this DA was deferred at a meeting with Stephen Dunn (units 1 & 2) last Thurs 24th April until another extraordinary meeting on or around 24th June.
It is anticipated the ‘go ahead’ will be cleared at that time.
Therefore, it would be much appreciated if you can hold the paperwork etc until around that time when we have this meeting and we can advise you.
Any queries please call …”

38 On 27 June 2008, the following three documents were delivered to the Council (tabs 18, 19a, and 19b, and Exhibit C1):

Items:


(i) A letter dated 27 June 2008 from Mr Haines to David Auster at the Council “ as per phone calls attached are minutes of meeting (Tues 24/6) where DA is now approved. Stephen/Glenda Dunn were present as noted. Any queries pls call ”.

(ii) A letter dated 25 June 2008 from Ian J Prior & Co, Strata Managers, to Mr Haines in the following terms:

“I enclose for your records a copy of the Minutes of the Extraordinary General Meeting held on 24th June, 2008 incorporating Items 1-6 with the addition at the end of Item 2 of the following: ‘and subject to evaluation of the implications on value and cost of changed floor ratios’.
It appears that there is nothing further for me to do at this stage and for record purposes I note that since my statement to you of 7th May, I prepared the Agenda and Minutes for the EGM held on 10th June, 2008 and the Agenda and Minutes of the EGM held on 24th June, 2008. …

(iii) Minutes of an Extraordinary General Meeting of the owners corporation, SP 13332 (sic) held at 18 Holland Crescent Frenchs Forest (Prior & Co address) and chaired by Mr Prior on Tuesday 24 June 2008 (also in Exhibit A2 ). Attendees are listed as “ G Dunn (1), S Dunn Company Nominee (2), C Haines (3) ”, and the court notes the absence of Mrs Haines, as owner of Unit 4. The six resolutions carried by the meeting are recorded as follows:

“ 1. Mrs GR Dunn and Dritex Pty Limited as proprietor of lots 1 and 2 respectively will support the development application (DA 2007/1018) lodged with Warringah Council by Mr and Mrs CR Haines for the redevelopment of lot 4.
2. Mr and Mrs Haines as proprietors of lots 3 and 4 will support lodgement of a development application for the redevelopment of the building as a whole as generally depicted in design concepts prepared by Corben Architects (drawings numbered A00, DA01, DA02, DA03, DA04, DA05, A07 and A08) (the Building DA), subject to a pre-DA meeting with Warringah Council, and subject to evaluation of the implications on value and cost of changed floor ratios.
3. Mr and Mrs Haines agree that upon receipt of development approval for the redevelopment of lot 4 they will provide a copy to Mr and Mrs Dunn.
4. The owners will then cooperate to have prepared and passed appropriate resolutions to approve such exclusive use by law and alterations to common property as may be necessary and desirable to permit the execution of the building works for the redevelopment of lot 4 in accordance with the terms of the development approval.
5. Subject to Mr and Mrs Dunn causing the Building DA to be prepared for lodgement expeditiously, Mr and Mrs Haines:
(a) Agree they will not, pending approval of the Building DA, carry out any works;
(i) In relation to the redevelopment of lot 4 beyond the existing northern wall of lot 4 or
(ii) In and in relation to the existing lower ground floor garage space; and
(b) Acknowledge that if the Building DA is approved then the works referred to in sub-paragraph (a)(ii) will be rendered redundant.
6. The parties agree that they will enter into all such agreements, sign all such documents, pass all such resolutions and do all such other things as may be necessary or desirable to give effect to and implement the foregoing resolutions”.

39 It is relevant to note in respect of these documents that the strata manager neither had nor asserted any authority to grant the corporation’s consent as an affected owner. His role in this matter is simply as the transmitter of the minutes. I will later return to deal with the relevant provisions of the Strata Schemes Management Act 1996, and the applicant’s claim that no valid “owner’s consent” was transmitted with the original DA or subsequently.

Council’s assessment report

40 The Council’s assessment report, prepared by Development Assessment Officer David Auster, following a site inspection (tab 20, at p17 of 18), and dated 20 August 2008, comments (at p6 of 18) on the matters raised by the Jeremiasse objection. Under the heading “Reduction in Privacy” the following comment occurs:

“ Privacy screening is proposed along the western side of the decks providing a measure of privacy for the applicant and the objector ”.

41 The author goes on (further down p6) to observe that the development is considered to result in “a reasonable sharing of views”.

42 In respect of impacts covered by s79C(1)(b) the report says (at p7):

“ (i) The environmental impacts of the proposed development on the natural and built environment are addressed under the General Principles of Development Control in this report.
(ii) The proposed development will not have a detrimental social impact in the locality considering the residential character of the proposal.
(iii) The proposed development will not have a detrimental economic impact on the locality considering the residential nature of the existing and proposed land use.”

43 In respect of SEPP 65 the report says (at pp 7-8) that the SEPP:

“applies to:

(a) the erection of a new residential flat building, and
(b) the substantial redevelopment or the substantial refurbishment of an existing residential flat building, and
(c) the conversion of an existing building to a residential flat building.
The proposal is neither a substantial redevelopment nor refurbishment of the existing building and that the policy does not, therefore, apply”.

44 The balustrade issue is dealt with (at pp9-10 of the assessment report) under the heading “Built Form Controls”, and the following comment appears:

“ At the northern façade, the existing building is up to 650mm above the 8.5m control. The proposed extensions to Levels 2 and 3 will not, however, exceed the control. The proposed glazed rooftop balustrades on Level 2 will exceed the maximum Building height by up to 1.5m. However, as these balustrades replace earlier brick balustrades which have been removed to permit maintenance, and are no higher, they are considered satisfactory. The western privacy screen will encroach up to 2.3m above the control. This encroachment is the subject of a Clause 20 variation.
…
The privacy screen and balustrade at the front of Level 2, west side, exceed the envelope by 2 metres and 1.2m respectively. As discussed in respect of the Building Height encroachment, the balustrade height is supported However, it is considered that the privacy screen should comply with a view to minimising view loss from the adjacent building.”

45 The remark about “a Clause 20 variation” is explained (on p10) thus:

“ Consent may be granted to proposed development even if the development does not comply with one or more development standards, providing the resulting development is consistent with the general principles of development control, the desired future character of the locality and any relevant State Environmental Planning Policy”.

46 On Height and Bulk the following comment appears (at p11):

“ There are a number of larger and higher buildings in the immediate vicinity of the development site. The relatively minor increase in height and bulk resulting from the privacy screen would not result in the development being visually dominant in the locality.
There are views towards Freshwater Beach and the ocean across the subject land from the existing residential flat building at No 67 Undercliff Road (located immediately to the west). The main views from the primary living areas are from the front and northern end of the east elevation of that building and these are not impacted on by the proposal. Only the upper floor has views over the top of the existing building. The proposed privacy screens on the western edges of the Level 2 and 3 terraces will have a minor impact on such views, although, given the relationship of the floor levels, it is considered that such impacts are not significant enough to amount to an unreasonable impact upon amenity. Notwithstanding, it is considered that that portion of the Level 2 privacy screen which exceeds the building height control should be deleted. Privacy will be protected to an extent by the existing palm trees combined with the distance between the buildings (approximately 6.5m) and the angles of vision from the principle living areas. Condition 10 will ensure the Privacy screen is reduced in length”.

47 Later (on p12) the following appears:

“ There is a number of larger and higher buildings in the immediate vicinity of the development site. The proposed non-compliance with the ceiling height control will not result in the development being visually dominant in the locality. In particular, it is noted that the overall height of the building (apart from the Level 2 privacy screen) is in full compliance with the building height control.
The additional ceiling height does not infringe unreasonably upon adjoining amenity, particularly in terms of privacy, overshadowing or view loss.
The slope of the land in the vicinity of the building platform is between 30 and 31%. Under the provisions of the LEP, the Ceiling height control may be relaxed where the slope exceeds 20%, provided the 8.5m height is not breached. The proposed additions do not exceed the 8.5m control apart from the Level 2 privacy screen which is to be reduced in length by condition to comply with the height control. Accordingly, the proposal responds appropriately to the site topography”.

48 In respect of the side boundary envelope and setback, the comment appears (on p13):

“ There are a number of larger and higher buildings in the immediate vicinity of the development site. The relatively minor increase in height and bulk resulting from the privacy screen would not result in the development being visually dominant in the locality.”

49 Specifically on the question of views the following appears (at pp14-15):

“ The neighbours to the west have raised concerns with view loss. The development is not considered however to cause unreasonable view loss. The existing position of the two buildings mean that number 67 to the west will retain its eastern and northern views of Freshwater Beach. The principle living areas of number 67 are at the front of the building and this is in front of number 69 which is setback further from the road. Any view loss caused by the proposed privacy screen will be across a side boundary and will only impact on non-principle (sic) living areas. The privacy screen will be reduced in length by condition and the view loss is considered to be minor. Reasonable sharing of views is considered to be maintained”.

50 Then, on privacy the report comments (p15):

“ The proposal includes privacy screens along the sides of the upper level deck. These are to be reduced in size by condition, however, combined with the existing planting and orientation of the dwellings privacy will be adequately maintained ”.

51 Mr Ireland submits (T16.6.09, p16, LL23ff) that at this point the assessment report misled the Council officer delegated to determine the DA by inferring that a privacy screen would be provided on level two “along the eastern side of the terrace”, whereas in fact such treatment was proposed only for the western side.

The development consent and subsequent correspondence

52 The notice of determination (to grant DC) is in evidence (at tab 21). It is dated 20 August 2008 and signed by the Council’s Team Leader, Development Assessment.

53 Condition 10 (at p5 of 13) stipulates the requirement for a privacy screen on the western edge of the level 2 terrace “to minimise amenity impacts resulting from the loss of views from adjoining premises”.

54 The stamped plans to be read with the consent are at tab 25. The eastern elevation drawing 2007/10 shows a privacy screen and the western elevation drawing 2007/11 does not. Mr Hudson relies on these plans as indicating that in the overall scheme of the whole building, what is proposed is not “substantial”, affecting as it does only one unit.

55 Mr Ireland submits that the court should draw a Parramatta v Hale inference (see Parramatta City Council v Hale (1982) 47 LGRA 319) from the absence of a condition favouring No.71, that there was a failure on the Council’s part to consider the matter.

56 The Council wrote to Mr Haines, and to Mr Jeremiasse, on 1 September 2008 (tabs 23 and 24), advising that the DA had been determined on “standard conditions”.

57 It is mentioned in the letter, and worthy of notation for the factual dispute in this case, that “details of development applications lodged after July 1, 2005 are also available online …”.

58 Council wrote to Mr Haines again on 17 December 2008 (tab 26) acknowledging receipt of the CC application (see [7] above), and listing “outstanding items” requiring his attention. Council wrote to Mr Haines again on 30 January 2009 (tab 27) acknowledging his request to withdraw that CC application. He had paid a fee of $1800 and the Council said the amount had been fully expended on the assessment carried out to that point.

Other factual evidence before the court

59 Mr T M Oates swore an affidavit (dated 6 March 2009) and submitted himself for cross-examination. He gave the court “597-599 Military Road, Mosman” as his current address. His father, Mr M L Oates, appears to have represented him and the applicant during 2007. Mr T M Oates lived in the UK from 2000 until Christmas 2007, and then in No.71 for about six months.

60 In the Notice of Sale or Transfer (tab 33), submitted to the Council on or about 20 February 2007, following settlement of the applicant’s purchase of No.71, the applicant’s “solicitor/agent” is nominated as “M L Oates, PO Box 420, Spit Junction, NSW, 2088”, but (1) the address for service of Council notices, (2) the property address, and (3) the “supplementary address details”, are all nominated as No.71 Undercliff Road, in either Harbord or Queenscliff.

61 No.71 was apparently vacant between 26 October and 12 November 2007 when the Council’s notification letters were sent. Mail was not regularly collected at No.71, and no copy was sent to the company’s registered office. Mr T M Oates deposed also that Mr Trumper of No.77 told him that he learned of the Haines proposal only after the notification period.

62 Rate notices in respect of No.71 were forwarded to the applicant at the No.71 address on 23 July 2007 and 30 January 2008. The notices for the last quarter of the 2007-08 year, and for the period post 22 July 2008, were addressed to the applicant company “C/- Mr M L Oates” at the Spit Junction PO box (Exhibit C2 and tab 35). Mr M L Oates is said to have changed the postal address for notices on or before 1 May 2008, but he gave no evidence in this matter.

63 During re-examination by his counsel (Mr Ireland), Mr T M Oates gave the following evidence (T 16.6.09, p29, LL23-33):

“Q. Mr Oates are you aware as to whether your company has ever sent any notice of its address for service for the purposes of the EP&A Act, the Environmental Planning & Assessment Act 1979 NSW to Warringah Council?
A. I asked my dad about this yesterday, he said that the contract for sale and the notice of transfer included the Mosman address either the P O Box or the Brady Street address. So my understanding was that the address given was not at 71 Undercliff.

Q. And you're aware of no further specific notification specifically under the Environmental Planning & Assessment Act 1979?
A. No.”

64 As already noted above, Mr Jeremiasse (No.67) made a submission to Council on 7 November 2007 regarding his concerns with the Haines DA. Mr T M Oates annexed a copy of that letter to his affidavit, and testified that Mr Jeremiasse had contacted him about his concerns.

65 Mr T M Oates gave evidence of having only limited dealings with Mr Haines. He says Mr Haines rang him in London at about the time of the applicant’s purchase of No.71 in February 2007 to discuss a possible joint attempt to achieve the undergrounding of powerlines in Undercliff Road in front of their respective properties. Each told the other they were planning renovations, but there were no further discussions when the respective DAs were lodged later in 2007.

66 Mr M L Oates apparently met with Council officers in December 2007 and was told it was not too late to object to the Haines DA. It was decided to await Mr T M Oates’ return to Australia.

67 Mr T M Oates logged on to the Council’s website in late March 2008 and saw the two Dunn letters of 25 March 2008. He testified (par 11) that “based on these letters I formed the belief that the DA would not go ahead”. He also noticed on the website that no privacy screens were proposed for his side of No.69. When he saw Council’s letter to Haines dated 9 April 2008 regarding the Dunn letters he (par 13) “decided not to object [to the DA] unless and until the defect was rectified and this was notified by Council on their (sic) website”. Mr Jeremiasse told him in late August 2008 that the Haines DA had been approved.

68 In early 2008, Mr M L Oates rang the Council again. He was again told the company could object and they commenced work on the preparation of an objection. He was unable to find and produce any notes of that work.

69 In his affidavit (par 16) Mr T M Oates expresses the view that the Haines DA “will have a serious and adverse impact on the amenity and privacy of not only 71 Undercliff, but also 77 Undercliff, due to overlooking and associated adverse privacy and amenity impacts”.

Expert planning evidence

70 It is convenient at this point to note the evidence from expert town planner Neil Ingham, who was engaged by the applicant. His affidavit is dated 11 March 2009 and he was not required for cross-examination.

71 In forming his opinions, Mr Ingham had regard to the consent granted to the applicant on 22 October 2007 for the demolition of the existing dwelling and erection of a new, more substantial three-storey dwelling at No.71 (see determination at tab 37 and unstamped plans at tab 36). In par 6 of his affidavit Mr Ingham expresses his “expert opinion” that the proposed development at No.69 would constitute a substantial redevelopment of an existing residential flat building, within the meaning of those terms in SEPP 65, having special regard to the matters in cl 30(2)(b)(c).

72 Mr Ingham considers Council should have considered the impacts upon No.71. He notes (par 10) that the swimming pool at the rear of No.71 will be “completely overlooked from the balcony on level 3 of the proposed development, and from the windows of the kitchen, dining and living rooms of level 2”. Level 2 is to receive additional floor space and the living room window is “totally additional and will view directly down into the area where the swimming pool is located”. The current development on the site allows overlooking “but only to a much more limited extent”.

73 Mr Ingham nominates some ameliorative conditions of consent that would have formed the basis of any objection/submission he would have prepared for Council on behalf of No.71. The absence of such conditions he says (par 13) will “bring about a significant loss of privacy and amenity for the residents of No 71 and represents an unreasonable exercise of Council’s planning discretion”.

Relevant Instruments and other public documents
The LEP

74 Warringah Local Environmental Plan 2000 (as amended – tab 28) includes the following relevant provisions.

75 Clause 12(1)(b) requires that Council, before granting consent, satisfy itself that the development is consistent with “any relevant State environmental planning policy described in Schedule 5”, but Schedule 5 does not include SEPP 65. Clause 12(1)(a) requires the Council to be also satisfied of consistency with “any relevant general principles of development control” in Part 4 of the LEP.

76 Under clause 12(2)(b) the Council must be satisfied the development will comply with, among other things, “development standards for the development set out in the Locality Statement for the locality in which the development will be carried out”. Clause 12 goes on to discuss Locality Statements expressive of “desired future character” in the context of various categories of development.

77 Part 4 of the LEP comprises clauses 38-83. It is entitled “General principles of development control”. In Div 4 of Part 4 “Site planning and building design” (commencing at cl 54) one finds, for example, at cl 61 “Development is to allow for the reasonable sharing of views”, and, at cl 62, “Development is not to unreasonably reduce sunlight to surrounding properties”.

78 Clause 65 (on pp43-44 of the LEP) deals with “Privacy” in the following terms:

“Development is not to cause unreasonable direct overlooking of habitable rooms and principal private open spaces of other dwellings.
In particular:
• the windows of one dwelling are to be located so they do not provide direct and close views (ie from less than 9 metres away) into the windows of other dwellings, and
• planter boxes, louvre screens, pergolas, balcony design and the like are to be used to screen a minimum of 50% of the principal private open space of a lower apartment from overlooking from an upper apartment.
Note: The effective location of windows and balconies to avoid overlooking is preferred to the use of screening devices, high sills or obscured glass. Where these are used, they should be integrated with the building design and have minimal negative effect on the amenity of residents and neighbours.”

79 Immediately after Part 4 of the LEP (commencing at p55) come 17 Schedules, then (at pp119ff) a Dictionary, followed by a series of appendices. (These are indexed as commencing at p135, but “A” to “G” are not reproduced in Exhibit A1, tab 28, and are not before the court).

80 Appendix “H” to the LEP is, however, reproduced in the bundle (commencing at p511 of the LEP, cf “p518” in the index) and sets out the “Harbord Locality Statements”. That which is relevant to “Locality H1 Freshwater Beach”, outlines the area’s “desired future character” as being “remain characterised by detached style housing in landscaped settings interspersed by existing apartment style housing and a range of complementary and compatible uses”. Three categories of land use are defined, and housing is category one. Clause 12(3)(a) specifically requires Council to consider the “desired future character” before granting consent to category one development. At p514 a building height limit of 8.5m is prescribed. This limit was the subject of some discussion between Council and the proponent.

The DCP

81 Warringah Development Control Plan 2005 (adopted 13 December 2005 – tab 29) deals mainly with “Public Exhibition and Notification Requirements”. In s 2.6, headed “Notification and Advertising Process for Applications”, it provides (pp4-5):

“The minimum standard for notification of development applications, which are not advertised development or designated development is as follows:

· A written notice will be sent to adjoining property owners and occupiers. This includes those properties directly across any form of roadway. All owners and occupiers within a multi-residence complex will be included in the notification.

Council will rely on its property system on the day of compiling the notice to identify the owners of the land. The extent of notification area is identified under the title ‘Notification maps’….”

82 The officer responsible for the management of the development assessment has the discretion (p5) to notify properties beyond those actually adjoining, and to embark upon other consultation processes, and s2.12 (pp11-12) stipulates the limited circumstances in which Council might dispense with notification/advertising (namely where the DA is amended or substituted “in minor respects”).

83 Section 2.15 (p12) deals with “How submissions are to be made and … considered”. It provides (pp12-13):

“All submissions received in the correct manner during the submission period will be taken into consideration in the determination of the application, submissions will be viewed on Council’s website. Consideration of late submissions will be at the discretion of the officer responsible for development assessment”.

84 Section 2.15 goes on to specify (p13) how submissions will be dealt with, and includes the following: “Details provided in any submission will be considered in the assessment officer’s report and are available on Councils (sic) web site”.

85 The last words of s.2.15 (p14) are: “Consideration of late submissions will be at the discretion of the officer responsible”. It is to be noted in this regard that Mr Oates was encouraged on several occasions to make a late submission.

Brochure on the Web

86 Tab 30 contains an instructive brochure designed to assist members of the public in “Making a submission on a Development Application”. It makes the point that:

“As the reporting process is open it is important to note that your submission will be made public and could appear in a document available to the general public … Any submission received relating to an application lodged will be publicly available on the Warringah Council website”. …

SEPP 65

87 SEPP 65 (tab 31) includes the following relevant provisions.

88 Clause 2 states the following relevant objectives of the SEPP:

“(1) This Policy aims to improve the design quality of residential flat development in New South Wales.
(2) This Policy recognises that the design quality of residential flat development is of significance for environmental planning for the State due to the economic, environmental , cultural and social benefits of high quality design. …”

89 Clause 3(1) contains the following relevant definitions (pp2-3):

“residential flat building means a building that comprises or includes:
(a) 3 or more storeys (not including levels below ground level provided for car parking or storage, or both, that protrude less than 1.2 metres above ground level), and
(b) 4 or more self-contained dwellings (whether or not the building includes uses for other purposes, such as shops),
but does not include a Class 1a building or a Class 1b building under the Building Code of Australia.
Note.
Class 1a and Class 1b buildings are commonly referred to as town houses or villas where the dwelling units are side by side, rather than on top of each other.
Residential Flat Design Code means the document titled “Residential Flat Design Code”, (a publication of the Department of Planning, September 2002), held in the head office of the Department.
residential flat development means development to which this Policy applies because of clause 4.”

90 Clause 4 relevantly provides on “Application of Policy” (p3):

“ (1) This Policy applies to development being:
(a) the erection of a new residential flat building, and
(b) the substantial redevelopment or the substantial refurbishment of an existing residential flat building, and
(c) the conversion of an existing building to a residential flat building.
(2) If particular development comprises development to which subclause (1) applies and other development, this Policy applies to the part of the development that is development to which subclause (1) applies and does not apply to the other part.”

91 There is no dispute in this case that No.69 is an “(existing) residential flat building”, as defined by the SEPP.

92 Part 2 (cls 7-18) set out ten “design quality principles for residential flat development”, and Part 3 provides for the constitution (by the Minister) of “one or more design review panels”, and for their functioning.

93 Part 4 of the SEPP includes cl 28 (pp 8) and cl 29 (pp8-9), which contain the following relevant provisions:

“28. Preparation of instruments
A person who prepares:
(a) an environmental planning instrument, or
(b) a development control plan, or
(c) a master plan or similar plan,
that makes provision with respect to residential flat development should include provisions in the instrument or plan to ensure the achievement of design quality in accordance with the design quality principles and have regard to the publication Residential Flat Design Code (a publication of the Department of Planning, September 2002).

Approval of development control plans
Note. The Environmental Planning and Assessment Regulation 2000 contains the following provision:

21A Approval of development control plans relating to residential flat development
(1) The council must not approve a draft development control plan (including an amending plan) containing provisions that apply to residential flat development unless the council:
(a) has referred the provisions of the draft development control plan that relate to design quality to the design review panel (if any) constituted for the council’s area (or a region that includes the council’s area) under State Environmental Planning Policy No 65—Design Quality of Residential Flat Development, and
(b) has taken into consideration any comments made by the design review panel concerning those provisions.
(2) This clause extends to a plan the preparation of which commenced before the constitution of the relevant design review panel.”
29. …
Development applications
Note. The Environmental Planning and Assessment Regulation 2000 contains the following provision in clause 50 (How must a development application be made?):
(1A) A development application that relates to residential flat development, and that is made on or after 1 December 2003, must be accompanied by a design verification from a qualified designer, being a statement in which the qualified designer verifies:
(a) that he or she designed, or directed the design, of the residential flat development, and
(b) that the design quality principles set out in Part 2 of State Environmental Planning Policy No 65—Design Quality of Residential Flat Development are achieved for the residential flat development.

Clause 3 of the Environmental Planning and Assessment Regulation 2000 contains the following definition:

qualified designer means a person registered as an architect in accordance with the Architects Act 2003.
Also, the form for making a development application as referred to in Schedule 1 to the Environmental Planning and Assessment Regulation 2000 provides:
(5) In addition, a statement of environmental effects referred to in subclause (1) (c) must include the following, if the development application relates to residential flat development to which State Environmental Planning Policy No 65—Design Quality of Residential Flat Development applies:
(a) an explanation of the design in terms of the design quality principles set out in Part 2 of State Environmental Planning Policy No 65—Design Quality of Residential Flat Development”.
…

94 Clause 30 of Part 4 then provides (pp9-10):

Determination of development applications
(1) After receipt of a development application for consent to carry out residential flat development and before it determines the application, the consent authority is to obtain the advice of the relevant design review panel (if any) concerning the design quality of the residential flat development.
(2) In determining a development application for consent to carry out residential flat development, a consent authority is to take into consideration (in addition to any other matters that are required to be, or may be, taken into consideration):
(a) the advice (if any) obtained in accordance with subclause (1), and
(b) the design quality of the residential flat development when evaluated in accordance with the design quality principles, and
(c) the publication Residential Flat Design Code (a publication of the Department of Planning, September 2002)….”

Residential Flat Design Code

95 The Residential Flat Design Code published by the then Department of Infrastructure Planning & Natural Resources is also in evidence (at tab 32). The relevant section on “Site Amenity – Visual Privacy” occurs at pp 58-59. After stating its objectives it includes a section on better design practice. That section firstly deals with “Locate and orient new development to maximise visual privacy …”. It then provides:

“- Design building layouts to minimise direct overlooking of rooms and private open spaces adjacent to apartments by:

· Balconies to screen other balconies and any ground level private open space

· Separating communal open space, common areas and access routes through the development from the windows of rooms, particularly habitable rooms

· Changing the level between ground floor apartments with their associated private open space, and the public domain or communal open space. (see Ground Floor Apartments).”

- Use detailed site and building design elements to increase privacy without compromising access to light and air. Design detailing may include:

· Offset windows of apartments in new development and adjacent development windows

· Recessed balconies and/or vertical fins between adjacent balconies

· Solid or semi-solid balustrades to balconies

· Louvres or screen panels to windows and/or balconies

· Fencing (see Fences and Walls)

· Vegetation as a screen between spaces

· Incorporating planter boxes into walls or balustrades to increase the visual separation between areas

· Utilise pergolas or shading devises [sic] to limit overlooking of lower apartments or private open space”.

Consideration

96 As noted at [16], the applicant essentially challenges the consent granted to Mr Haines on five grounds:

(a) ) failure to apply to the DA design requirements imposed by SEPP 65
(b) ) and/or Regulation 50(1A).
(c) failure to take into account impacts on No.71, as required by s79C(1)(b) of the EPA Act ; and/or granting a consent which is “ manifestly unreasonable ” in the Wednesbury sense.
(d) denial of procedural fairness to the applicant.
(e) jurisdictional error caused by the absence of “ owner’s consent ” from the owners corporation.

97 I will now deal with each of these in turn.

The SEPP 65/Regulation 50 challenges

98 I do not accept the Council’s submission (written submissions par 48) that consideration of whether or not SEPP 65 applied is merely a step in the s79C assessment process. It is a preliminary question of great importance. Indeed, I am satisfied that the decision under cl 4(1)(b) of the SEPP is a jurisdictional fact. Corporation of the City of Enfield v Development Assessment Commission & Anor [2000] HCA 5; (2000) 199 CLR 135, at [28]; Woolworths Ltd v Pallas Newco Pty Ltd & Anor [2004] NSWCA 422; (2004) 61 NSWLR 707 at [9], and [53]-[66]; Anvil Hill Project Watch Association Inc v Minister for Environment and Water Resources [2008] FCAFC 3; (2008) 158 LGERA 324 at [21]; Barrick Australia Ltd v Williams [2009] NSWCA 275, at [26].

99 “Substantial” is defined in the Macquarie dictionary as “of considerable amount”. It takes its meaning in and from its context, (Tillmanns Butcheries Pty Ltd v AMIEU (1979) 42 FLR 331, at 338-9 and 348; Radio 2UE Sydney Pty Ltd v Stereo FM Pty Ltd (1982) 62 FLR 437). Therefore, a comparison is required between the existing building and how it will be with the Haines renovation. Both Mr Hudson (for the Council) and Mr Ireland (for the applicant) attempted such a comparison.

100 “Considerable” structural works are clearly required by the DA. They are not set out in the SEE, and Mr Ireland notes them to include (written submissions pars 15 and 17):

“… demolition and construction of a new western wall, and the installation of a new structural transfer beam. The walls of the existing Lot 4 are to be demolished and extended northwards, a new level is to be added, a new deck placed on what is now a roof area, a new roof slab added, the roof top terrace converted to a usable area surrounded by glass framed balustrades, a new elevated rear balcony installed, and a single garage is to become a double garage”.
…
… Level 3 (bedroom, ensuite, study, balcony and deck) is all new . There is a significant northwards extension of the building and enclosure in balustrading of the roof area on Level 2. A new east facing window W7 is added”. (emphasis his).

101 Mr Hudson acknowledged all these elements of the Haines proposal (T 16.6.09, p53, LL20-23), but described them as a “modest extension” (T 16.6.09, p51, L39), and as a “little bit up the top” (T 16.6.09, p53, L22), relying on the fact that the building will continue to comprise only four units.

102 I am satisfied that these works clearly amount to a “substantial refurbishment”, and probably also a “substantial redevelopment” of No.69. King v Woollahra Council [2006] NSWLEC 654.

103 Accordingly, (1) SEPP 65 was inappropriately excluded – an error of law according to Hope v Bathurst City Council (1980) 144 CLR 1; and (2) consent cannot be granted without the appropriate “design verification” required by Regulation 50(1A), nor without Council’s having addressed the matters in cls 30(2)(b) and (c) of SEPP 65 (see [94] above). Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8; (1999) 46 NSWLR 55; McGovern v Ku-ring-gai Council [2008] NSWCA 209; (2008) 161 LGERA 170, at [196]ff).

104 Challenges 3 and 4 in the summons ([96] (a) and (b) above) should be upheld.

Privacy and overlooking

105 In the absence of any submission to Council drawing attention specifically to possible overlooking of No.71 by the proposed new features of No.69, and despite Mr Hudson’s submission to contrary effect, there is absolutely no evidence before the court that the Council considered such environmental impact as required by the terms of s79C, despite:

(i) an issue of like nature having been raised in respect of the other side of the project (No.67), being the only submission considered, and having been made the subject of a condition of consent,
(ii) the clear possibility of such a problem on the face of the plans, and
(iii) the Council having undertaken a site inspection before approving the DA.
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 (at 39-40); Kindimindi Investments Pty Limited v Lane Cove Council [2006] NSWLEC 399; (2006) 143 LGERA 277; Notaras v Waverley Council & Anor [2007] NSWCA 333; (2007) 161 LGERA 230.

106 The specific s79C challenge to the consent (No.1 in the summons, and the first point in [96](c) above) has been made out.

107 Mr Ireland submits also that the failure to consider and deal with this issue results in a consent which is manifestly unreasonable in the Wednesbury sense, as dealing with only one side of the development is “devoid of plausible justification”. I am not satisfied that that submission (challenge 2 in the summons, and the second point in [96](c) above) has been made good.

Procedural fairness

108 The DCP, pursuant to s74C(1)(c) and s79A(2) of the EPA Act, required the applicant to be notified of the Haines DA, and it was effectively not so notified, but, as the applicant became aware of the proposal, that failure on Council’s part could not vitiate the grant of consent for procedural unfairness. The owners of No.77 were not caught by the notification policy, but also became aware of the proposal. As Mr Ireland commented (T 17.6.09, p17, LL46-7) the Council’s process “didn’t start off well”.

109 The authorities suggest that compliance with a DCP’s “comprehensive scheme or code” might satisfy any requirements on Council to afford potential objectors procedural fairness. Sisic v Rockdale City Council [2007] NSWLEC 687; (2007) 158 LGERA 170 (see especially [82]). Mr Hudson argued that, as the Council complied with the relevant regime in this case, there is no denial of procedural fairness, and that may well be so, in so far as original notification of the DA is concerned. It may also negative any expectation on the applicant’s part that the Council would “renotify” the DA. The October 2007 DA is probably a nullity, for reasons made clear in this judgment, and the limited scope for renotification of a DA is made very clear in the DCP, so that matter is really beside the point in this case.

110 Mr Hudson submitted that finding a legitimate expectation required Council to have done something “out of the ordinary, out of the process” (T 16.6.09, p48, LL35-37), and such is the evidence in this matter. Council decided, on its own motion, to go beyond its own regime, and, commendably, placed additional material on its website, and the applicant became aware, from the website, that the majority of the voting units in the strata plan for No.69 had not voted for the corporation to give its “owner’s consent” to those works which affected the common property, and had not voted for the seal of the owners corporation to be affixed to the DA. The Dunns and their company called on Council to reject the DA.

111 The Council had no obligation under statute or its own policies to place such correspondence on the website but, having elected to do so, it created an expectation that the information would be updated.

112 Believing that the apparent absence of a proper “owner’s consent” and/or that the assertion that there was no proper authorisation for the seal meant that the DA could not proceed, the applicant lodged no objection to it, pending further events. However, Council placed on the website no further information about this aspect of its consideration of the DA, nor any information to the effect that it had decided to process the DA further. The letter and minutes (at tabs 18 and 19b), which Mr Haines delivered to Council in response to its query, were not posted to the website, and it is upon those that Mr Haines relies for the owners corporation’s “owner’s consent” to his DA.

113 Notification of the Dunns’ correspondence created a legitimate expectation on the applicant’s part that further relevant information would become available to it. As the applicant was not provided with that information, and the Council proceeded to grant consent, the applicant was clearly denied procedural fairness, and so did not take the opportunity to lodge an objection. That failure on the applicant’s part is regrettable, but has been cogently explained. Mr T M Oates’ evidence was not challenged. In my view it does not relieve the Council of the duty to afford the applicant procedural fairness. Clark and Davis v Wollongong City Council [2008] NSWLEC 110; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1; Lesnewski v Mosman Municipal Council [2005] NSWCA 99; (2005) 138 LGERA 207.

114 The challenge numbered 6 in the summons ([96](d) above) should be upheld.

The “owner’s consent” challenge

115 The requirement of “owner’s consent” (see [15](d) above) affords a veto power to an affected owner, and the consent is a necessary prerequisite to a valid DA. It can be provided to the consent authority at any time prior to the determination of that DA. Botany Bay City Council v Remath Investments No.6 Pty Ltd [2000] NSWCA 364; (2000) 111 LGERA 446.

116 Corporations under the Strata legislation can consent only under seal. I set out in full the relevant provisions of the Strata Schemes Management Act 1996 regarding the appropriate use of the corporation’s seal, as follows:

“237 Who may keep seal of owners corporation?
(1) If an owners corporation has only one owner, the seal of the owners corporation must be kept by the owner or by the strata managing agent of the owners corporation.
(2) If an owners corporation has 2 or more owners, the seal of the owners corporation must be kept:
(a) by an owner, or member of the executive committee, that the owners corporation determines is to keep the seal or, in the absence of a determination, by the secretary of the executive committee, or
(b) by the strata managing agent of the owners corporation.

(3) A strata managing agent is entitled to custody of the seal of an owners corporation only to permit the exercise of the strata managing agent’s functions.
(4) Section 50 (2) and (3) of the Interpretation Act 1987 do not apply to an owners corporation.
Note. Section 50 (2) and (3) of the Interpretation Act 1987 contain provisions relating to the keeping of the seal of a statutory corporation and the authentication of documents by a statutory corporation.

238 How should the seal of the owners corporation be affixed?
(1) If an owners corporation has only one owner or 2 owners, the seal of the owners corporation must not be affixed to any instrument or document except in the presence of the owner or owners or the strata managing agent of the owners corporation.
(2) If an owners corporation has more than 2 owners, the seal of the owners corporation must not be affixed to any instrument or document except in the presence of:
(a) 2 persons, being owners of lots or members of the executive committee, that the owners corporation determines for the purpose or, in the absence of a determination, the secretary and any other member of the executive committee, or
(b) the strata managing agent of the owners corporation.
(3) The strata managing agent must attest the fact and date of the affixing of the seal:
(a) by his or her signature, or
(b) if the strata managing agent is a corporation, by the signature of the president, chairperson or other principal officer of the corporation or by any member of staff of the corporation authorised to do so by the president, chairperson or other principal officer.
(4) A strata managing agent who has affixed the common seal of the owners corporation to any instrument or document is taken to have done so under the authority of a delegation from the owners corporation.
(5) Subsection (4) does not operate so as to enable a person to fraudulently obtain a benefit.
(6) A person is taken not to have fraudulently obtained a benefit from the operation of subsection (4) if the benefit was, without any fraud by the person, obtained before the seal was affixed.”

117 The Interpretation Act 1987 s50 (see s237(4) in [116]) provides as follows:

“50 Statutory corporations
…
(2) The seal of a statutory corporation (being a corporation that has 2 or more members) shall be kept by the president, chairperson or other principal officer of the corporation and shall be affixed to a document only:
(a) in the presence of at least 2 members of the corporation, and
(b) with an attestation by the signatures of those members of the fact of the affixing of the seal.
(3) Every document requiring authentication by a statutory corporation may be sufficiently authenticated without the seal of the corporation:
(a) in the case of a corporation that has 2 or more members-if it is signed by the president, chairperson or other principal officer of the corporation or by any member of the staff of the corporation authorised to do so by the president, chairperson or other principal officer,
(b) in the case of a corporation sole-if it is signed by the person by whom the corporation is constituted or by any member of the staff of the corporation authorised to do so by that person, or
(c) in the case of a corporation that has no members-if it is signed by the person for the time being managing the affairs of the corporation or by any member of the staff of the corporation authorised to do so by that person.”

118 The minutes of the meeting of the owners corporation held on 24 June 2008 (tab 19b) record a statement of agreement or intention among those present to “support” development in the future, in certain circumstances. They do not indicate, as Council had requested, that any effective consent had earlier been given by the owners corporation to the affixing of its seal to the DA as submitted in October 2007.

119 The applicant submits, correctly, that the seal on the October 2007 DA was “unlawfully attached”, having not been attached with the authority of the Corporation. Hence there was no “consent in writing” provided by the Corporation to the Council as required by the Regulation (cl 49, cl 50, and schedule 1).

120 Nothing occurred between lodgement in October 2007 and determination in August 2008 to provide a valid consent on behalf of the owners corporation. In NRS Group Pty Ltd v Cowra [2008] NSWLEC 156, I had regard to a course of relevant conduct by the owner, following a letter of consent which was not entirely satisfactory, to find that an informed “owner’s consent” had been given. In this case the only relevant additional conduct to examine is the protest by the Dunns that renders the “owner’s consent” invalid. Exhibit A2 proves there are no other relevant documents to which the court can have regard.

121 The June 2008 minutes do not validate the sealing of the DA in October 2007, and I do not accept Council’s submissions (1) that, even when put on notice of the defect in the affixing of the seal, Council has no obligation or power to “go behind” the seal; and/or (2) that the steps taken by Mr Haines and the corporation in June 2008 are sufficient “to reinstate the authenticity of the Owners’ Corporation seal and signature” (written submissions par 23(f)); and/or (3) that the breach is merely “technical”; and/or (4) that “substantial compliance” with the “owner’s consent” requirement is sufficient.

122 Accordingly, the Haines DA was lodged, processed, and approved by the Council in the absence of this essential precondition to the grant of consent, amounting to a jurisdictional error. IGS Enterprises Pty Ltd v Hornsby Shire Council [2008] NSWLEC 304; (2008) 164 LGERA 424.

123 Challenge 5 in the summons ([96](e) above) must also be upheld.

Conclusion

124 The court has upheld most of the applicant’s challenges, and must now turn its attention to the questions of appropriate relief, and costs.

125 The matter is stood over to the Registrar’s callover list on Friday 30 October to set a date for further hearing of those issues.