Candrick v Warringah Council
[2001] NSWLEC 296
•12/21/2001
Land and Environment Court
of New South Wales
CITATION: Candrick v Warringah Council & Ors [2001] NSWLEC 296 PARTIES: APPLICANT/APPELLANT
Paul Candrick
RESPONDENT
Warringah Council
INTERVENORS
Terence John Mullane and
Gae Elizabeth MullaneFILE NUMBER(S): 10295 of 2001 CORAM: Sheahan J KEY ISSUES: Section 56A Appeal :- error of law - effect of condition of earlier consent LEGISLATION CITED: Land and Environment Court Act 1979 s 56A CASES CITED: Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367;
Coles v Woollahra Municipal Council (1986) 59 LGERA 133;
Concrite Pty Ltd v South Sydney City Council (1998) 101 LGERA 170;
Grey v Pearson (1957) 6 HLC 61;
Hope v Bathurst City Council (1980) 144 CLR 1;
Jammal v Parramatta City Council (2001) NSWLEC 7 at 12;
MLC Properties Pty Ltd v Camden Council (1997) NSWLEC 130;
Newbury v Secretary of State for the Environment [1981] AC 578;
Randwick Municipal Council v Manousaki (1988) 66 LGERA 330;
Randwick Municipal Council v Crawley & Ors (1986) 60 LGERA 277;
Swadling v Sutherland Shire Council (1994) 82 LGERA 431;
Wollongong City Council v Australian Iron & Steel Ltd (1988) 67 LGERA 51DATES OF HEARING: 30/11/2001 DATE OF JUDGMENT:
12/21/2001LEGAL REPRESENTATIVES:
APPLICANT/APPELLANT
Mr B Hones (Solicitor)
Hones Lawyers
RESPONDENT
Mr G Newport (Barrister)
Wilshire Webb (Solicitors)
INTERVENORS
Mr D Wilson (Barrister)
Barkwell & Peacock (Solicitors)
JUDGMENT:
PAUL CANDRICK
Applicant/Appellant
v
WARRINGAH COUNCIL
Respondent
Intervenors
Introduction
1. This is an appeal, under s 56A of the Land & Environment Court Act 1979, against the decision of Commissioner Hussey on 31 August 2001, dismissing an appeal by Candrick against the refusal by Council of consent for the construction of a house at No.5 Lookout Avenue, Dee Why.
2. As the owners of the neighbouring No.7, the Mullanes were given the opportunity to be heard by both Commissioner Hussey, and myself.
The relevant facts
3. A rear building setback of 6.0m is prescribed for dwelling houses within the relevant locality.
4. On 5 September 2000 the Council granted consent to the applicant to construct a garage on his property. The stamped plans in respect of that garage consent were before the Commissioner and were Exhibit W3 before me on appeal. The first condition of the consent was that the development must be “generally in accordance with” those plans.
5. The development application for the house was lodged at a time when construction of the garage was proceeding.
6. Relevantly, the last of the conditions Council imposed upon the garage consent was condition 20 in the following terms:
The Council agreed to vary the building line in Council’s draft LEP conditions to allow the garage to be within those building lines and in so doing place a building line to the rear of the property to reflect the mean of the properties on either side.
7. It seems to be agreed among all three parties, not to mention the Commissioner and myself, that the wording of condition 20 is not precisely clear.
8. It may, indeed, infringe what is known as the Newbury test – Newbury v Secretary of State for the Environment [1981] AC 578 – i.e. it may not “fairly and reasonably” relate to the relevant subject development, in that condition 20 is imposed upon the earlier development and becomes effective only when an application is made for subsequent development.
9. However, as no appeal was lodged against imposition of that condition, and no attempt was made to modify it, its continued application to the garage consent was regarded by Commissioner Hussey as a “circumstance of the case” when he came to deal with the appeal in respect of Council’s refusal of consent to the house. There was certainly no proposition in the house application that the partially completed garage be demolished.
10. The plans submitted with the house application were also before both Commissioner Hussey and myself on appeal (Exhibit W2). The plans for both elements of the proposed development clearly demonstrate the “integration” of the garage into the house project.
11. Indeed, it would appear to the court that the very basic issue of access to the house from the roadway could not possibly be considered without taking into account the detailed provisions for stairways, etc, linking the grounds of the subject land to the roadway, in the garage project.
12. While this situation is difficult to describe in a narrative, it was clearly explained to the court with the assistance of the two sets of plans, as well as a model (Exhibit W1), which was also before the Commissioner (see T30.11.01 p11 L50-p13 L20).
13. In short, access to the proposed house is obtained only by way of elements of the approved garage project.
14. The court can only assume, from the evidence, that the Council, in considering the application in respect of the garage, appreciated the proposal and evaluated it on the basis that it was stage 1 of a proposed residential development of the site.
The Commissioner’s handling of the matter
15. The Commissioner proceeded on the basis of an Amended Statement of Issues (Exhibit 1 before him and Exhibit W4 before me).
16. Condition 20 and the related issue of rear setback are clearly raised for the Commissioner’s consideration in the following issues.
…
9. Whether the application should be refused having regard to objections by local residents and with particular reference to issues raised by the adjoining property owner at No.7 Lookout Avenue, being:
…
B. Whether the setback of the proposed building to the northern boundary is adequate having regard to:
(a) the average of adjoining property setbacks to the northern boundary.
(b) the privacy impact of the building on the swimming pool and dwelling house at 7 Lookout Avenue.
…
E. Whether the proposed development will have an unacceptable privacy impact upon the principle private open space of No.7 Lookout Avenue.
17. The appeal came on for hearing before Commissioner Hussey on 30-31 August 2001. After discussions during the site inspection on the second day, and argument on return to the court, the Commissioner gave an extempore decision.
18. It is quite a short judgment and, for completeness, I set out, in full, the following relevant passages, so that his methodology and reasoning can be seen (my emphasis added):
At this stage of the proceedings I have had the opportunity of reading the various technical reports regarding the overall application before the Court. But the preliminary point that has been raised, I consider, is one of the threshold issues and that concerns condition 20 of the previous approval for the garage. It seems to me, it is fairly obvious that the garage represents stage 1 development of this property because the garage is incorporated to a significant extent into the subsequent stage. That is for the residential building now before the Court, although there are some difficulties, I understand, with integration of the lift particularly.
- 2 Reference to those various documents and reports confirms that it is a large house and accordingly it does exert some impacts on the neighbouring properties for which there are objections. I realise that the appeal process is to assess the merits of the subject application, but in this case I think that the importance or the relevance of condition 20 is significant in this case. Condition 20 in the first stage garage approval said that the Council agreed to vary the building line in Council’s draft LEP controls to allow the garage to be within those building lines and in so doing, placed a building line to the rear of the property to reflect the mean of the properties on either side.
3 In gaining that approval there is apparently a particular benefit for the applicant because the front building line for the garage was reduced. I think then that the intent of that condition was to correspondingly pull back the rear alignment and that in effect has a restriction on the overall development size of the property.
4 It has been agreed by the parties that the wording of condition 20 is unclear. In my opinion it is somewhat clumsy, but I have been assisted to some extent by the different interpretations by the town planning experts, Mr Layman and Mr Winnacott. Whilst the lines drawn on the plan in Exhibit 13 show the different interpretations, I think at the end of the day as it is proposed to build a house on this land, somehow a building line has to be established, not a number of mathematical points.
6 … So that in the event of disputes on the interpretation of conditions, I think it is necessary to look behind what the intent is of the building line provisions in condition 20 . It seems to me that in this location, given the position of the existing buildings with their outside entertaining areas , the intent was to try and achieve an orderly transition between the two properties to minimise adverse impacts . In looking at the two different positions presented, I think the approach adopted by Mr Layman achieves an orderly transition between the two properties.
8 In view of the uncertainty here I am inclined to accept that a reasonable balance would be the centre line to centre line approach that was drawn on the plan by Mr Layman. That goes from the centre line of No. 3 to No. 7 and if you look at that in a plan situation it allows for an orderly sweep of the building lines through the neighbouring properties and in my opinion that is a reasonable way to approach this problem. But in saying that I appreciate that legally there may be a different interpretation on how that condition be interpreted. However, my assessment is that this is a reasonable and practical interpretation of the condition , so that when I adopt the centre to centre line building alignment I find the overlay indicates to me a considerable encroachment of the balcony areas. They are elevated balcony areas and that encroachment exacerbates the overlooking problems onto the adjoining properties. I think that the residents accept that there is a degree of overlooking in this neighbourhood, but that reduced set back exacerbates the problem causing undue disamenity.
…
11 So that taking all those matters into consideration I think that this is effectively a staged application. Stage 1 was the garage which included condition 20. It also set a condition on the rear building line. The applicant has apparently accepted that condition, and not lodged any objection in the past and proceeded to complete construction of the garage. To ignore that rear building line would mean accepting the fundamental proposition that Mr Winnecott (sic) stated in his report on p 13 and he said
- “Having regard to the above comments I formed the opinion that condition 20, the development consent DA3991, should not be used as a basis for establishing the setback of the proposed dwelling-house or the rear boundary on the site.”
12 I do not accept that proposition. I think because the benefits of condition 20 were accepted and acted on, the corresponding burden must be taken and I think that on that basis then, the application should be refused, because it does not comply with the stipulated rear building line. As such it represents an overdevelopment of the site based on the other information that I have read in the reports. So, my orders then would be:
- Orders
1. The appeal is dismissed.
2. The development application for a dwelling at No. 5 Lookout Avenue, Dee Why is refused.
3. The exhibits except for Exhibits 2, 8, 13, A, C, and E, may be returned.
This appeal and the parties’ submissions
19. In the notice of appeal filed on 27 September 2001, the following two grounds are claimed:
1. That the Commissioner erred at law in finding that condition 20 of consent DA 3991 issued 5 September 2000 (the Date) by Warringah Council should apply to any development application lodged subsequent to the Date for the approval for the erection of a building on the property known as 5 Lookout Avenue, Dee Why (the Property)
2. That the Commissioner erred in holding that any dwelling on the Property should be set back behind a line being the projection of lines between certain points on the dwelling houses on the properties known as numbers 7 and 3 at Lookout Avenue, Dee Why.
20. In his written submissions on behalf of the applicant/appellant Mr Hones refers to the notice of 27 September as follows:
5. In a Notice of Motion filed on 27 September 2001 the Applicant seeks a Declaration that Condition 20 of the Development Consent dated 5 September 2000 should not apply to any Development Application lodged subsequent to 5 September 2000.
1. The Applicant seeks a Declaration that the Commissioner erred in holding that …
‘it is necessary to look behind what the intent is of the building line provisions in Condition 20’.
2. The Applicant seeks a Declaration that any dwelling erected on the Property should be set back from the rear boundary of the Property by a distance which is the mean of the rear boundary setback of the buildings and balconies attached to those buildings on those properties known as No’s 3 and 7 Lookout Avenue, Dee Why.
21. Obviously, the court in an appeal under s 56A in class 1 of its jurisdiction is unable to make the declarations sought.
22. During the course of argument, Mr Hones submitted that the errors of law upon which a s 56A appeal must rest are the Commissioner’s misconstruction of the meaning of condition 20, and the fact that he went “behind it” to interpret it, in circumstances when it really was clear on its face. He submits that it should be interpreted on common law principles, i.e. literally rather than purposively. Grey v Pearson (1857) 6 HLC 61.
23. He also submitted that there was no evidence that the applicant’s proposals for the site constituted a staged development, but that submission is contrary to all the evidence before the court.
24. Insofar as the applicant/appellant’s submissions rely upon misattribution of weight to condition 20 in the assessment of the subject development application, clearly any such error on the part of a Commissioner is a question of fact. Randwick Municipal Council v Manousaki (1988) 66 LGRA 330 (per Clarke JA at 333-4).
25. Mr Hones consistently argued during this hearing that condition 20 should be deleted (see par 12 of written submissions), but the court has no power to do so in this appeal.
26. In the submissions on behalf of the Council, Mr Newport made clear that the imposition of condition 20 on the garage consent involved both a benefit and a burden for the applicant. It was common ground that the garage was approved within the usual building line and that that concession was to be balanced by the striking of a specific rear building line for the subsequent house.
27. The Council’s submissions essentially are that in all the circumstances the Commissioner had to give consideration to the condition in its context. When he did so he came to the conclusion of fact that it was significant in the case. The applicant could not accept the benefit of the condition and avoid the burden, of a condition which was never the subject of an appeal or an application to modify.
28. The appeal cannot succeed unless it is established that the Commissioner “defined other than in accordance with the law the question of fact he had to answer”. Hope v Bathurst City Council (1980) 144 CLR 1 at 10; Randwick v Manousaki at 333; and Jammal v Parramatta City Council (2001) NSWLEC 7 at 12.
29. Mr Wilson, for the neighbours, endorsed the submissions made by Mr Newport for the Council, but further submits that, independently of condition 20, the Commissioner was right to refuse the appeal on the basis of the merits of the matter, having regard to the relationship of the rear of the building to the buildings on either side, and having regard to the proximity of the building proposed, at its rear boundary to an adjacent public pathway.
Consideration
30. All the Commissioner’s relevant findings were on questions of fact.
31. There should not be an over-technical approach to the meaning of the language used in conditions attached to consents. They should not be scrutinised in the same way as the words used by a parliamentary draftsman. Wollongong City Council v Australian Iron & Steel Ltd (1988) 67 LGERA 51 at 56.
32. The Commissioner had a duty to treat condition 20 as valid. Swadling v Sutherland Shire Council (1994) 82 LGERA 431. This court does not find it clear on its face, and the Commissioner had to interpret it. As Commissioner Hussey’s interpretation of condition 20 was reasonably open to him, no issue of law arises from his construction of it. MLC Properties Pty Ltd v Camden Council (1997) NSWLEC 130.
33. The applicant, having accepted the benefit of condition 20, also had an obligation to observe and act upon its burden, and it was not open to the Commissioner in the appeal to approve a project in a way which would totally negate that condition, when its impact was clearly placed before him as an issue in the house case.
34. In Jammal, Cowdroy J said (in par 12):
The respondent submits that the appeal cannot succeed without evidence that the adjudicator has ‘misdirected himself’’, that is ‘has defined other than in accordance with the law the question of fact which he has to answer’ (see Hope v Bathurst City Council (1980) 144 CLR 1 at 10; Randwick Municipal Council v Manousaki (1988) 66 LGERA 330 at 333). The Senior Commissioner has, it is submitted, answered the various questions and resolved the divergent opinions according to the law, and no error of law arises. The ‘fine comb’ approach is unwarranted (see Randwick Municipal Council v Crawley & Ors (1986) 60 LGERA 277 at 284). The respondent says that there is no need for commissioners’ decisions to be read ‘as if they were written by a lawyer’ see Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367 per Kirby P at 368.
35. (In Concrite Pty Ltd v South Sydney City Council (1998) 101 LGERA 170, I also discussed (at 185) Brimbella v Mosman and Coles v Woollahra Municipal Council (1986) 59 LGERA 133, and (at 188) Hope v Bathurst and Randwick v Manousaki).
36. The Commissioner correctly required the applicant, on the merits, to accept the corresponding burden of condition 20, which involved the rear alignment, and a restriction on the overall size of the development.
37. As the Commissioner was simply giving meaning to the condition, his conclusions were open in law. He did not singularly apply condition 20 to the application, but viewed it as a valid condition of an extant consent, a relevant “circumstance of the case” in the overall context of his merit assessment of the DA for the house.
Conclusion
38. As I can find no error of law in the Commissioner’s judgment, this appeal should be dismissed.
39. In the normal course, an order that the applicant pay the respondent’s costs would follow, but, as no questions of costs were argued before me, all such questions will be formally reserved.
40. All the exhibits may be returned.
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