Charalambous v Ku-ring-gai Council - [2007] NSWLEC 510

Reported Decision: 155 LGERA 352

Land and Environment Court

of New South Wales

CITATION: Charalambous v Ku-ring-gai Council [2007] NSWLEC 510

PARTIES:
APPLICANT:
Harry Charalambous
RESPONDENT:
Ku-ring-gai Council

FILE NUMBER(S): 10131 of 2007 and 10255 of 2007

CORAM: Lloyd J

KEY ISSUES: Question of Law :- development consent subject to conditions - condition relating to landscape bond - refusal of application to modify consent to delete condition - whether condition falls outside scope of bonds which may lawfully be imposed - newbury test - whether condition is ultra vires - source of power for a consent authority to impose conditions - provision of security - general and specific provisions

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 80, s 80A, s 96, s 98A, s 121B and s 121ZJ

CASES CITED: Anthony Hordern & Sons v Amalgamated Clothing & Allied Trades Union of Australia (1932) 47 CLR 1;
Datum Pty Ltd v Botany Bay City Council [2003] NSWLEC 62;
Fairfield City Council v N & S Olivieri Pty Ltd [2003] NSWCA 41;
Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672;
Newbury District Council v Secretary of State of the Environment [1981] AC 578;
Television Corporation Ltd v The Commonwealth (1963) 109 CLR 59;
Western Australian Planning Commission v Temwood Holdings Pty Ltd (2004) 221 CLR 30

DATES OF HEARING: 09/07/2007

DATE OF JUDGMENT:
21 August 2007

LEGAL REPRESENTATIVES:
APPLICANT:
Dr J E Griffiths SC
SOLICITORS:
Maddocks
RESPONDENT:
M G Craig QC
SOLICITORS:
DLA Phillips Fox

JUDGMENT:

- 12 -

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Lloyd J

Tuesday, 21 August 2007

LEC Nos. 10131 of 2007 and 10255 of 2007

CHARALAMBOUS v KU-RING-GAI COUNCIL [2007] NSWLEC 510

JUDGMENT

1 HIS HONOUR: On 14 September 2006, Ku-ring-gai Council granted development consent for the demolition of a dwelling and the construction of two new dwellings at No. 47 Westbrook Avenue, Wahroonga. The development consent was subject to numerous conditions, including a requirement for a cash bond or bank guarantee of $4,000 to ensure that landscape works are installed and maintained in accordance with the approved landscape plans and landscape conditions. The condition states that 50 per cent of the bond “will be refunded” once the landscape works have been satisfactorily installed and the balance will be refunded three years thereafter if the landscape works have been satisfactorily established and maintained.

2 On 11 December 2006, the council granted development consent for the demolition of a dwelling and the construction of two new dwellings at No. 49 Westbrook Avenue, Wahroonga. That development consent was also granted subject to a similar condition.

3 The applicant in each case made an application to modify the consent under s 96 of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”) to delete the condition relating to the landscaping bond. The council refused the modification applications. The applicant now appeals to the Court under sub-s…

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

Case: [2007] NSWLEC 510
Decision Date: 21 August 2007

CaseChat Overview and Summary

The case of Charalambous v Ku-ring-gai Council concerns the applicant's appeal against the refusal by the Ku-ring-gai Council to modify development consents to remove conditions requiring the provision of a landscape bond. The applicant, Harry Charalambous, sought to challenge the legality of the condition imposed by the council that required a cash bond or bank guarantee to ensure that landscape works were installed and maintained in accordance with approved plans and conditions. This condition was part of the development consent for the demolition of a dwelling and the construction of two new dwellings at two separate properties in Wahroonga.

The legal issues at the heart of this case revolve around the interpretation of the Environmental Planning and Assessment Act 1979 (EP&A Act) and the scope of conditions that can be imposed by a local council as part of development consent. Specifically, the court had to determine whether the condition requiring the payment of a landscape bond was within the lawful scope of the EP&A Act, whether it met the Newbury tests for condition validity, and if it was ultra vires the council's powers. The applicant argued that such a condition fell outside the permissible scope of bonds under the Act, did not meet the Newbury tests, and was therefore void.

The court found that section 80A(6) of the EP&A Act, which outlines the circumstances under which security can be required, is the exclusive source of power for imposing such conditions. This section limits the provision of security to specific instances related to public works or damage to public property. The court held that the council's imposition of a bond for private landscaping did not fall within the permitted scope of section 80A(6), rendering the condition ultra vires. Additionally, the court found the conditions in question to be void for uncertainty, as they did not clearly identify which landscaping conditions they were intended to cover.

In conclusion, the court ruled in favour of the applicant, determining that the conditions requiring the landscape bond were not authorised by the EP&A Act, were void for uncertainty, and therefore exceeded the council's lawful powers.

Orders