Cutcliffe and Anor v Lithgow City Council & Ors.

[2006] NSWLEC 317

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION:     Cutcliffe and Anor v Lithgow City Council & Ors. [2006]  NSWLEC 317

PARTIES:
APPLICANTS:
Edward Brian Cutcliffe and Jill Cutcliffe

FIRST RESPONDENT:
Lithgow City Council

SECOND RESPONDENTS:
Garry Allan Dukes and Wendy Ann Dukes

CASE NUMBER:       40181  of       2005

CATCH WORDS:      Development Consent

LEGISLATION CITED:

CORAM:        Biscoe J

DATES OF HEARING:          22/05/2006

EX TEMPORE DATE:           22/05/2006

LEGAL REPRESENTATIVES

APPLICANTS:
Mr P Clay, barrister
SOLICITORS
McIntosh McPhillamy & Co

FIRST RESPONDENT:
submitting appearance
SOLICITORS
Pike Pike and Fenwick

SECOND RESPONDENTS:
Mr D Wilson, barrister
SOLICITORS
Barry E Cosier & Associates

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

22 May 2006

40181 of 2005

B E CUTCLIFFE & ANOR v LITHGOW CITY COUNCIL AND ORS

JUDGMENT

HIS HONOUR: 

1. In these proceedings the applicants, the Cutcliffes, have sought orders setting aside two development consents granted by Lithgow City Council to the second respondents, the Dukes, for subdivision for light industrial purposes.

1. In the course of the hearing the Cutcliffes and the Dukes have sought orders by consent.  The first respondent, the council, has filed a submitting appearance.

1. I have been handed short minutes of the proposed consent orders which provide, among other things, that I should grant leave to the applicants to amend their application and points of claim by deleting the claim for relief in respect of the first of the two development consents, and by providing for a declaration that the second development consent is void and of no effect and for consequential orders.  I propose to grant leave to amend.

1. There has been no evidence tendered by the respondents and no contest to the orders being sought by consent of the applicants and the second respondents.

1. Two causes of action arise under the amended application and points of claim.  The first is that the development consent was granted by a delegate of the council who did not have the requisite authority to grant the consent, because the instrument limited his authority to a situation where there was no objection to the development application, and it is said there was such an objection. 

1. The second cause of action is that the requirements of clause 13 of the Lithgow City Local Environmental Plan 1994 were not satisfied, in that the council did not form the requisite satisfaction in relation to the matters referred to in subclauses (1) or (2). Clause 13 provides as follows:

   (1)The Council may consent to the subdivision of land within Zone No 1(a) that the Council is satisfied will be used primarily for purposes other than agriculture or a dwelling-house only if the Council is satisfied that:

   (a)the land is not prime crop and pasture land, and

   (b)the area of each allotment to be created by the subdivision is appropriate having regard to the purpose for which the Council considers it is being created.

   (2)Despite subclause (1), the Council may consent to the subdivision of such land to create an allotment if it is satisfied that:

   (a)the proposed allotment will be used for the purpose of supplying goods or services for which there is a demand,

   (b)no other land in the locality could reasonably be used for that purpose, and

   (c)the level of demand for the goods or services and the extent of the use justifies the creation of the allotment regardless of its agricultural value.

2. The instrument of delegation of authority to Mr Rufus, who granted the relevant development consent, is in evidence.  It is dated 9 October 2000.  Paragraph 1 of that instrument provides that power to approve of development applications of the relevant type vest in Mr Rufus provided there is no objection to the application.  There is uncontested evidence which satisfies me that there was an objection to the relevant application and yet Mr Rufus granted development consent.  In those circumstances I am satisfied that the first cause of action is made out, that is, that Mr Rufus did not have authority to grant this development consent.

1. As for the second cause of action based on clause 13 of the Local Environmental Plan, I am satisfied on the uncontested evidence which has been placed before me that no consideration was given by council or its delegate to the matters in respect of which council or the delegate was required to be satisfied in subclause 13(1), in particular that the land was not prime crop and pasture land, and in subclause 13(2).

1. There remains for consideration the residual question of whether I should exercise my discretion in favour of the grant of relief that is sought.  In the way that the case has developed, the second respondents have not made submissions or advanced any evidence to support any discretionary considerations which would weigh against the granting of the relief.

1. There is evidence before me that, to put it neutrally, there may be a risk of some environmental harm or of harm to the applicant’s nearby trout farm.  Whether or not that is so or is such that I could rely upon it as a discretionary factor weighing in favour of relief, I consider, in the absence of any discretionary considerations advanced in evidence or submissions which would weigh against the granting of the relief, that I should grant the relief sought.  I therefore propose to proceed in accordance with the consent short minutes of order. 

1. Before I do so, is there anything else, gentlemen, which you wish to raise?

WILSON:  Your Honour sees at the tail end of the document, you have a requirement in respect of an application for costs to be filed within a period of time.  That is the remaining matter.  I think we’re both taking the view that the council should be given some opportunity to be heard on that score.

1. By consent of the applicants and the second respondents:

   (a)I note paragraph 1 of the short minutes of order dated 22 May 2006 signed by counsel for those parties;

   (b)grant leave to the applicants to amend the application in accordance with paragraph 2;

   (c)grant leave to the applicants to amend the points of claim in accordance with paragraph 3;

   (d)declaration in accordance with paragraph 4;

(e)        orders in accordance with paragraphs 5 and 6;
(f)         I note the applicant’s undertaking in paragraph 7; 
(g)        direction in accordance paragraph 8.

CLAY:  Your Honour perhaps should not order that the exhibits be returned in the event that any application is made under paragraph 8, and your Honour may wish to note for the purpose of the Court Registry whether or not your Honour would wish to direct that any costs application be before your Honour - it doesn’t need to be as a matter of jurisprudence I wouldn’t have thought, but it’s a matter for your Honour.

1. I think it is desirable that it comes back before me as I have some background in the case.  I direct that any costs application should be listed before me.