Brian Dunne v Hurstville City Council [1998] Nswlec 84 (7 May 1998) - [1998] NSWLEC 84

Land and Environment Court

of New South Wales

CITATION: BRIAN DUNNE v. HURSTVILLE CITY COUNCIL [1998] NSWLEC 84 (7 May 1998) [1998] NSWLEC 35

PARTIES: BRIAN DUNNE v. HURSTVILLE CITY COUNCIL [1998] NSWLEC 84 (7 May 1998)

FILE NUMBER(S): 10681 of 1997

CORAM: Pearlman J

KEY ISSUES: :-

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 ss 99(4A), 102

CASES CITED: Coalcliff Community Association Inc v Minister of Urban Affairs and Planning (1997) 95 LGERA 114 at 129;
Valhalla Cinemas Pty Ltd v Leichhardt Municipal Council (1986) 60 LGRA 240 at 246

DATES OF HEARING: 23 February 1998

DATE OF JUDGMENT:
05/07/1998

LEGAL REPRESENTATIVES:
Mr D R Parry, Barrister
Ms L D McCusker, Solicitor

JUDGMENT:

These class 1 proceedings are an appeal from the deemed refusal of Hurstville City Council (“the council”) to grant a modification of a development consent pursuant to s 102 of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”).

The development the subject of the development consent was for a muscular therapy clinic. The subject premises are located at 325-327 Belmore Road, Riverwood (“the premises”). The applicant, Mr Brian Dunne, in partnership with Ms Qui Zhen Xui, carries on a business on the premises under the name “Health Body Services”.

Development consent No 294/94 was granted by the council on 22 July 1994 subject to conditions, including condition 10 as follows:

“10. This consent is valid only for a period of twelve (12) months from the date of Council’s letter of consent. Further notification is required prior to the expiry of twelve (12) months from the date of this notice for any extension of time of this approval.”

The application sought to modify the development consent by deleting condition 10.

Condition 10 was the basis for two extensions of the operation of the development consent. On 10 May 1995, the council extended that operation until 22 July 1996. Similarly, a further 12 months extension was again sought by the applicant and granted by the council, resulting in an extension of the operation of the development consent until 22 July 1997.

Condition 10 was relied upon by the applicant a further time in a letter dated 19 June 1997, where the applicant applied for another twelve months extension. The council suspended its decision, and sought additional information regarding the applicant’s use of the premises, pending “further consideration”. The letter from the council seeking that information was dated 31 July 1997, which was after the expiry date of the current term.

The applicant’s solicitors responded to the council’s request for additional information in a letter dated 25 August 1997. No letter of reply was received from the council, and on 4 September 1997, the applicant applied to modify the development consent seeking the deletion of condition 10. The reason for the modification was stated on the application form:

“This deletion does not substantially alter the development and provides the applicant greater certainty in the operation of the business, the subject matter of the consent.”

The council…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Brian Dunne v Hurstville City Council [1998] NSWLEC 84 (7 May 1998) [1998] NSWLEC 35
Case: [1998] NSWLEC 84
Decision Date: 05/07/1998

CaseChat Overview and Summary

In Brian Dunne v Hurstville City Council, the applicant sought to modify a development consent granted for a muscular therapy clinic at 325-327 Belmore Road, Riverwood. The consent was subject to a condition that it would expire after twelve months unless the applicant notified the council of a request for an extension. The applicant applied to modify the consent by deleting this condition. The council did not determine the application and the applicant appealed the deemed refusal of the application to the Land and Environment Court. The court was required to decide whether the proposed modification would result in a substantially the same development, whether the consent had lapsed before the modification application was made, and whether the consent had lapsed under s 99(4A) of the EP&A Act. The court found that the modification would not result in a substantially different development, as the deletion of the condition would only remove the need for the applicant to reapply annually for an extension. The court also found that the consent had not lapsed before the modification application was made, as the applicant had notified the council of a request for an extension before the consent expired. Finally, the court found that the consent had not lapsed under s 99(4A) of the EP&A Act, as there was no evidence that the actual use of the premises was not a muscular therapy clinic before the consent expired. The court granted the applicant's appeal and modified the consent by deleting the condition.

Orders