Dakin v Lismore City Council

[2008] NSWLEC 1113

Land and Environment Court

of New South Wales

CITATION:	Dakin & Anor v Lismore City Council [2008] NSWLEC 1113
PARTIES:	APPLICANTS M & S Dakin RESPONDENT Lismore City Council
FILE NUMBER(S):	11098 of 2007
CORAM:	Moore C
KEY ISSUES:	Development Consent :- Developer charges Headworks charges
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Local Government Act 1993 s 64 Water Management Act 2000 s 306
CASES CITED:	Townsend v Lake Macquarie City Council [2004] NSWLEC 38
DATES OF HEARING:	7 February 2008
EX TEMPORE JUDGMENT DATE:	7 February 2008
LEGAL REPRESENTATIVES:	APPLICANTS In person RESPONDENT Mr M Young, solicitor Bourke Love McCartney Young

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C

7 February 2008

11098 of 2007 Dakin & Anor v Lismore City Council

JUDGMENT

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

The consequence of the Court’s decision in this appeal is modification of the detailed conditions of a development consent. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court’s Orders may be obtained from the Court’s registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders are available on the Court’s web site at

1 COMMISSIONER: The applicants seek to have two matters dealt with concerning a development consent to renovations to the State heritage listed Tulloona House at Goonellabah near Lismore.

2 The applicants seek the deletion of two conditions, by modification pursuant to s 96 of the Environmental Planning and Assessment Act 1979. The two conditions sought to be deleted are condition 24 relating to contributions pursuant to s 94 of the Planning Act and condition 25 which concerned contributions made pursuant to the powers of Lismore Council being deemed to exercise the powers of a water authority pursuant to s 64 of the Local Government Act 1993 and thus exercising the powers under s 306 of the Water Management Act 2000.

3 During the course of the proceedings, I considered the question of whether or not I have the power to delete the second of those conditions and I am satisfied that I do not. The Land and Environment Court Act1979 gives a limited range of appeal rights pursuant to the Water Management Act and these do not include a power to appeal against developer contributions levied under s 306. Similarly, there is no power in the Court Act nominating a power to appeal against amounts levied using s 64 of the Local Government Act. As a consequence, I am satisfied that I do not have jurisdiction to deal with condition 25.

4 However, during the course of discussion with the parties, it became obvious that the underlying issues which gave rise to those levies being made by the Council were capable of being dealt with to the satisfaction of the Council by amendment to the development application itself – that is by further modification. The applicants sought leave so to modify their plans.

5 I am satisfied that the further modifications for which leave was sought by the applicants (and not opposed by the Council) are within the power as the modified development which will be approved will also remain substantially the same as the development which was originally approved thus satisfying the relevant test pursuant to s 96(1A)(a) of the Planning Act.

6 The amendments for which leave has been given are, with respect to the interior of the old school house which is part of the heritage item and which, on the Council’s interpretation of the development application had sought to be approved for a separate domicile (thus giving rise to the charges), that the layout is to be altered by:

• the plans reflecting the actual location of the hot water service (it being in a slightly different location to that which originally was approved in the building application for the incorporation of a bathroom in the old school house); and
• the removal of the sink, kitchen cupboards and oven contained in that building.

7 The consequence of that leave being granted, I am satisfied (consistent with the decision of Bignold J in Townsend v Lake Macquarie City Council [2004] NSWLEC 38), is that the old school house is no longer a separate domicile within the meaning of the definition of “dwelling” contained in the Lismore Local Environmental Plan.

8 As that building will no longer be capable of being a dwelling within the terms of the LEP, the trigger for assessment for contributions pursuant to the Councils s 94 Contributions Plan is removed. The result of this is that the Council does not oppose the deletion of condition 24 of the development consent imposing that development contribution.

9 The removal of a further condition sought by the applicants reflects the fact that condition 26 of the development consent required the approval of a building certificate application for the bathroom in the old school house building. As an existing, approved building application has been found for those works, that condition is redundant and is no longer pressed. By consent, I propose to remove that condition.

10 As I do not have jurisdiction to deal with the question of the contribution pursuant to s 64 of the Local Government Act, I have been given an undertaking condition 25 will be revoked. This undertaking is given by the Council through by Mr Soulsby, the relevant responsible Council officer who assures me he has authority to give this undertaking pursuant to the delegations he holds. The reason for revocation is the old school house building will no longer be a dwelling within the meaning of the LEP and thus no basis exists, within either of the s 64 Contribution Plans, for the imposition or enforcement of the contribution proposed in condition 25.

11 I note the Council has agreed to a period of 6 months for the removal of the sink, cupboards and oven in the old school house – in return, the applicants have given an undertaking that that building will not be used as a separate domicile or dwelling within the meaning of the LEP.

12 I also note that the parties have discussed the imposition of a condition (which I am satisfied that I cannot impose) that would make the removal of those elements conditional upon the completion of the renovations of the kitchen in the main house. The Council has indicated that if the undertaking not to use the school house as a dwelling is maintained and there is some difficulty (about the genuineness of which it is satisfied) with the renovation of the main building’s kitchen so that this has not been completed within the 6 months, the council would favourably consider the extension of that period by non-enforcement of that condition. This would be on the basis that the applicants continued to maintain the undertaking not to use the school house as a separate dwelling.

13 Noting that, in making the Orders of the Court, I will be exercising my powers pursuant to section 39(2) of the Court Act as the development is integrated development, I propose to uphold the appeal to delete condition 24 and 26 and to note that the development will now be carried out subject to the amendments to the plans which have been made today by the applicants. These amended plans are a modified version of a plan which formed part of the heritage report underpinning the development application to the Council. The Orders of the Court therefore will be that:

1. the appeal is upheld, by consent, to the extent discussed above;
2. the development consent will be modified in the terms of the plan noted in (13); and
3. the conditions of consent will be amended to reflect the requirement to remove the elements of the kitchen structures in the school house within 6 months from the date of these Orders.

Commissioner of the Court