De Haas v Williams

[2004] NSWLEC 15

Land and Environment Court

of New South Wales

CITATION:

De Haas and Anor v Williams and Anor [2004] NSWLEC 15

PARTIES:

FIRST APPLICANTS
Tao and Lynne De Haas

SECOND APPLICANT
Ronald Daubaras

FIRST RESPONDENTS
Paul Williams and Karin Williams

SECOND RESPONDENT
Ku-ring-gai Council

FILE NUMBER(S):

40537 of 2003

CORAM:

Cowdroy J

KEY ISSUES:

Development Consent :- validity of development application and modification application - consent granted of development application contrary to planning instrument - absence of SEPP 1 objection - power of delegate exceeded in respect of development application and of modification application - reissue of development consent in absence of new development application - delegate failing to form opinion before exercising power to grant consent - contentious development application - misdescription of address in notification

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979, s 72, s 76A, s 79C, s 80, s 96, s 101, s 104A
Environmental Planning and Assessment Regulation 2000, cl 119, cl 124
Ku-ring-gai Planning Scheme Ordinance 1971, cl 46
Land and Environment Court Act 1979, s 69(2)
State Environmental Planning Policy No 1 - Development Standards, cl 6, cl 7

CASES CITED:

Botany Bay City Council v Remath Investments No 6 Pty Ltd (2000) 50 NSWLR 312;
Cobden-Jones and Another v Woollahra Municipal Council and Others (2002) 118 LGERA 41;
Develtor Property Group Pty Ltd v Newcastle City Council [2001] NSWLEC 47;
Franklins Limited v Penrith City Council and Campbells Cash & Carry Pty Limited [1999] NSWCA 134;
Lawrence Wilson v Iron Gates Pty Ltd and Richmond River Shire Council (Stein J, Land and Environment Court of New South Wales, 2 December 1996, unreported);
Lend Lease Management Pty Ltd and Burns Philp Trustee Co Ltd v Sydney City Council, Heritage Council of New South Wales and New World Properties (NSW) Pty Ltd (1986) 68 LGRA 61;
Levenstrath Community Association Inc v Tomies Timber and Another (2000) 108 LGERA 176;
Litevale Pty Ltd v Lismore City Council (1997) 96 LGERA 91;
Lyons v Sutherland Shire Council and Others (2001) 117 LGERA 334;
Manly Council v Hortis and Another (2001) 113 LGERA 321;
Nelson and Others v Burwood Municipal Council and Another (1991) 75 LGRA 39;
Proprietors of SP 13318 & 13555 v Lavender View Regency Pty Ltd and North Sydney Council (1997) 97 LGERA 337;
Somerville v Dalby and Others (1990) 69 LGRA 422;
Vaniga Pty Ltd v South Sydney City Council (1989) 74 LGRA 86;
Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335

DATES OF HEARING:

18/11/2003
19/12/2003

DATE OF JUDGMENT:

02/11/2004

LEGAL REPRESENTATIVES:

FIRST APPLICANTS
Mr C. McEwen (Barrister)

SOLICITORS
Hannaford Lawyers

SECOND APPLICANT
Mr C. McEwen (Barrister)

SOLICITORS
Hannaford Lawyers

FIRST RESPONDENTS
Mr P. Williams
Litigant In Person

SECOND RESPONDENT
Mr J. Ayling SC

SOLICITORS
Abbott Tout

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

40537 of 2003

Cowdroy J

11 February 2004

Tao and Lynne De Haas

First Applicants

Ronald Daubaras

Second Applicant
v

Paul Williams and Karin Williams

First Respondents

Ku-ring-gai Council

Second Respondent

Judgment

Introduction

1 The applicants seek a declaration that development consent 1754/01 granted on 12 June 2002 by the second respondent (“the council”) to the first respondents (“the Williams”) applying to land known as 1A Kalang Avenue, Killara formerly known as 41 Illeroy Avenue, Killara (“the property”) is invalid.

2 Additionally the applicants seek a declaration that a consent to modify development application 3702/93 made pursuant to s 96 of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”) and granted by the council to the Williams on 14 June 2002 in respect of the property is invalid.

The original development consent (DA 3702/93)

3 On 9 July 1993 Douglas Ramsay, the former owner of the property, by development application 3702/93 (“DA 3702/93”) applied to the council to consolidate and subdivide three lots known as lot 50 and lot 51 in deposited plan 17647 and lot 12 in deposited plan 619620 into two lots. Such lots became known as 41 Illeroy Avenue, Killara and 1A Kalang Avenue, Killara. Consent to DA 3702/93 was granted on 22 December 1993 subject to conditions. Condition 4 and condition 10 provided:-

4. Any future dwelling is to comply with Council’s Development Control Plan No 6.
10. Any future residential development of the site to be in accordance with building height plane, setback and building platform requirements detailed in Drawing Nos TP1 and TP2 dated 5 th October 1993 which form part of this approval.

Such conditions (“conditions 4 and 10”) were intended to ameliorate the effect of the proposed development for the benefit of the amenity of the adjoining properties. For convenience, the consent granted to DA 3702/93 will be referred to as “consent DC 1”.

4 During 1999 the first applicants (“Mr and Mrs De Haas”) purchased 1B Kalang Avenue, Killara which was formerly known as 45 Illeroy Avenue. Such land is located on the eastern boundaries of 41 Illeroy Avenue and 1 Kalang Avenue. During 2001 the second applicant (“Mr Daubaras”) purchased 41 Illeroy Avenue.

5 On 19 October 2001 the Williams entered into a contract to purchase the property from Mr Ramsay. On 30 April 2002 such contract was varied by Deed of Variation to include a clause which provided that the sale was conditional upon the purchasers obtaining development consent for the erection of a dwelling house on the property.

Application to modify consent 3702/93 and application for consent 1754/01

6 By an application dated 18 December 2001 Mr Williams applied to the council pursuant to s 96 of the EP&A Act to modify consent DC 1 by deleting conditions 4 and 10 (“the modification application”). On 19 December 2001 Mr Williams lodged development application 1754/01 (“DA 1754/01”) to demolish an existing carport and garden shed and to erect a dwelling upon the property.

7 Between December 2001 and February 2002 the council provided notification of DA 1754/01 to the neighbours, including the applicants and received not less than ten objections. A confidential internal memorandum of the council dated 15 July 2002 records that “Councillors Coleman and Kitson signed ‘off’ on the application and agreed to approval under Delegated Authority as ‘issues resolved’”. The Court notes that such approval by Councillors Coleman and Kitson was effected by handwritten initials on an internal memorandum dated 17 May 2002 and not by a formal authorisation.

8 In fact the objections had not been resolved by that date, and the applicants’ objections had not even been addressed. Their objections were supported by a letter dated 24 May 2002 from Mr Ingham of Ingham Planning Consultants which emphasised that the proposed dwelling for which consent was sought in DA 1754/01 infringed condition 10 of consent DC 1 by exceeding the building height controls of 8m fixed by the Ku-ring-gai Planning Scheme Ordinance 1971 (“the KPSO”). Mr Ingham also expressed the opinion that the proposed dwelling was inappropriate and bulky for the site and that condition 10 of consent DC 1 “provided clear and appropriate requirements for the location and size of a future dwelling on the site”.

9 By memorandum dated 1 June 2002 a council officer, Mr Philip Drew, assessed DA 1754/01 and considered the objections. Mr Drew did not regard the original building platform which had been identified by condition 10 to consent DC 1 to be appropriate and noted that an application was pending to modify conditions 4 and 10.

10 With regard to the height of the proposed dwelling Mr Drew made the following observation:-

The proposal at its highest point will achieve a height of 8 metres, and therefore complies with clause 46C.

It should be noted that the KPSO did not contain cl 46C, and that the correct provision is cl 46(2). Clause 46(2) provides:-

(2) A person shall not erect a dwelling-house or dual occupancy building with a height in excess of 8 metres.

11 The council had also adopted Development Control Plan No. 38 entitled “The Ku-ring-gai Residential Design Manual” (“DCP 38”). In respect thereof Mr Drew noted “[t]he proposal is wide and elevated, and does not comply with the building height plane at its western ends”. Mr Drew observed:-

The extent of non-compliance with the building height plane, and the degree of elevation of the building and aesthetic impacts of the western elevation of the house can be successfully reduced by requiring that the overall building form be lowered by 1 metre.

The memorandum concluded with a recommendation to approve DA 1754/01 subject to conditions, including a condition that the garage floor level was to be lowered by one metre.

12 On 4 June 2002 the Manager Development Control, Mr Eugene Sarich, signed Mr Drew’s memorandum thereby endorsing Mr Drew’s recommendation for approval of DA 1754/01 and the proposed conditions. Mr Sarich’s endorsement was subject to the inclusion of condition 47 which provided:-

The following changes shall be made to the plans submitted with the Construction Certificate:
(i) the garage floor level shall be lowered by 1 metre to RL116, and the roof height lowered by a similar amount.

13 On 4 June 2002 Mr Drew prepared a memorandum to the council’s Manager Development Control in relation to the modification application. Mr Drew commented that both conditions 4 and 10 were “‘severable’ components of the development approval.” He made no reference in this memorandum to DA 1754/01 nor to the objections to such development application. Mr Drew expressed his opinion that when consent DC 1 was approved, it was possible to erect houses without development consent, and that conditions 4 and 10 were imposed to ensure that development complied with the council’s planning instruments. Mr Drew made the following observations:-

Any conditions that seek to remove or restrict due consideration under section 79C are unlikely to have legal force as the provisions of a condition of a consent cannot supersede the considerations and operation of the parent legislation. Therefore there is no objection to the removal of Conditions 4 and 10 as they are unlikely to have been legally enforceable in the current legislative environment, and furthermore Section 79C of the EP & A Act 1979 provides for due consideration of relevant issues.


Accordingly Mr Drew recorded that there was no objection to the approval of the modification application because in his opinion the EP&A Act now allowed for due consideration of such issues. The memorandum did not refer to the need to notify any person of such application.

Consent to development application DA 1754/01

14 On 12 June 2002 the council by delegated authority pursuant to Delegation No. AO30 granted consent to DA 1754/01. The identity of the delegate is not known, but the Notice of Determination is signed “N. Jurdowitch”. For convenience such consent hereafter will be referred to as “consent DC 2”. Consent DC 2 was granted subject to conditions. Condition 50 required the garage floor to be lowered by one metre to RL 116, and the roof height to be lowered “by a similar amount”.

Consent to modification application

15 On 14 June 2002 the council granted approval to the modification application and thereby modified consent DC 1 by the deletion of conditions 4 and 10. Such approval, hereafter referred to as “the modification consent”, was granted apparently by Mr Drew under the name of Mr Juradowitch, Director Environmental and Regulatory Services, pursuant to Delegation No. AO34.

Events subsequent to grants of approval

16 By letter dated 17 June 2002 Mr Ingham wrote to the council on behalf of the applicants alleging that consent DC 2 had been granted in breach of cl 46(2) of the KPSO. Mr Ingham stated:-

The attached section from the plans submitted with the application indicate clearly that the proposed development is 9.5m in height at one point and does not comply with Clause 46(2). We are not aware that a SEPP 1 objection has been submitted and therefore the development consent is unlawful. We therefore request that Council rescinds the development consent.

17 The reference in Mr Ingham’s letter to “SEPP 1 objection” relates to an objection which may be made by an applicant for the relaxation of development standards pursuant to State Environmental Planning Policy No 1 – Development Standards (“SEPP 1”). Clause 6 and cl 7 thereof provide:-

6 Making of applications

Where development could, but for any development standard, be carried out under the Act (either with or without the necessity for consent under the Act being obtained therefor) the person intending to carry out that development may make a development application in respect of that development, supported by a written objection that compliance with that development standard is unreasonable or unnecessary in the circumstances of the case, and specifying the grounds of that objection.
7 Consent may be granted

Where the consent authority is satisfied that the objection is well founded and is also of the opinion that granting of consent to that development application is consistent with the aims of this Policy as set out in clause 3, it may, with the concurrence of the Director, grant consent to that development application notwithstanding the development standard the subject of the objection referred to in clause 6.

18 Mr Drew considered the representation of Mr Ingham in a file note dated 17 June 2002. He knew that the KPSO restricted the height of dwelling houses to a maximum of 8m. He noted that the height of the proposed dwelling exceeded such height limit. The maximum height of the building was 8.4m in respect of an area approximately 5m² in the north western corner of the proposed dwelling. He also noted that no objection pursuant to SEPP 1 had been made.

19 A file note records that Mr Drew believed that the consent could be void if challenged. His notes record that he informed Mr Williams of this circumstance and that Mr Williams considered it appropriate to lower the levels of the house as had been suggested by Mr Drew in his memorandum dated 1 June 2002. Mr Drew’s note continues:-

The applicant has however sought to restrict this lowering, and 0.5 metres will be sufficient to overcome the non-compliance with clause 46C [sic] . Accordingly the amended condition (50) will require only 0.5 metre lowering for the lounge/dining/kitchen areas. The 1 metre lowering of the garage will remain.
I advised the applicant that the consent with this additional condition will be re-issued tomorrow, and to avoid confusion he will need to surrender his consent dated 12 June 2002.

Second consent for DA 1754/01

20 On 19 June 2002 by arrangement with Mr Drew, Mr Williams returned consent DC 2 to the council and in return he was issued with a substitute consent for DA 1754/01 dated 18 June 2002 (“consent DC 3”). It was in the same terms as consent DC 2 but included an amended condition 50 which provided:-

50. The following changes shall be made to the plans submitted with the Construction Certificate:
i. the garage floor level shall be lowered by 1 metre to RL 116 and the roof height lowered by a similar amount.
ii. the floor and ceiling levels of the remainder of the building shall be lowered by 0.5 metres.

21 Subsequently the council considered the issue of consent DC 3. By letter dated 27 June 2002 the council advised Mr Williams that it was seeking legal advice with regard to the validity of consent DC 3. The letter sought an undertaking from him not to commence work on the property, and threatened injunction proceedings to restrain any such work.

22 By letter dated 2 July 2002 the council informed Mr Williams that it had received legal advice that consent DC 2 would be held to be invalid because of the absence of a SEPP 1 objection in relation to the applicable height standard, and that consent DC 3 issued on 18 June 2002 was invalid. The council stated that consent DC 3 was void because no formal development application had been made to the council for such consent. The letter advised that the council was not permitted to reconsider DA 1754/01 and grant a second consent, and that the council considered that it was functus officio in relation to DA 1754/01 once consent DC 2 was granted. The letter advised Mr Williams “to lodge a fresh development application accompanied by an objection under SEPP 1 (if necessary) to commence the process again.”

23 At this stage it appears that neither of the applicants were aware that the council had granted the modification consent. By letter dated 9 July 2002 Mr and Mrs De Haas wrote to the council advising that they were “…still none the wiser regarding the Section 96 application to change the original conditions of approval of the subdivision.”

24 A confidential internal memorandum of council dated 15 July 2002 reviewed the process undertaken in the assessment of DA 1754/01 and the modification application and revealed the council’s concern of the validity of such consents. It also confirmed that the height of the dwelling exceeded 8m and that no SEPP 1 objection had been submitted. It was noted that the modification application should have been resolved prior to the determination of DA 1754/01.

25 Despite the above matters, and contrary to the advice which the council provided to Mr Williams in its letter dated 2 July 2002, council later decided that consent DC 2 was valid. Accordingly the council published an advertisement of DA 1754/01 in the North Shore Times newspaper on 14 August 2002 (“the notification”). The notification was purportedly made pursuant to s 101 of the EP&A Act. Such section provides:-

s 101 Validity of development consents and complying development certificates

If public notice of the granting of a consent or a complying development certificate is given in accordance with the regulations by a consent authority or an accredited certifier, the validity of the consent or certificate cannot be questioned in any legal proceedings except those commenced in the Court by any person at any time before the expiration of 3 months from the date on which public notice was so given.

26 The notification was erroneous, because it misdescribed the address of the property as follows:-

KILLARA
…
1 Kalang Avenue 1754/01 Demo Structures and Build Dwelling - Revised Plans


The correct address of the subject property is 1A Kalang Avenue, Killara and not 1 Kalang Avenue, Killara.

Challenges to the validity of consent DC 2, DC 3 and the modification consent

27 There are four issues raised by the applicants as constituting grounds to declare invalid consent DC 2, consent DC 3 and the modification consent, which are considered hereunder.

28 Whilst it is irrelevant to the present proceedings, the Court notes that a further development application, namely development application 947/02, was made to the council by Mr Williams with the council on 11 July 2002 to erect a house on the property. Such application was refused, and a class 1 appeal against such refusal was dismissed on 21 March 2003 by this Court in proceedings 10531 of 2002.

Invalidity of consent DC 2

29 Clause 46(4) of the KPSO contains the following definitions:-

“Ground level” means the level of a site before development is carried out on the site under this Ordinance.

“Height” in relation to a building, means a distance measured vertically from any point on the ceiling of the topmost floor of the building to the ground level immediately below that point.

30 The Williams do not concede that the proposed dwelling the subject of consent DC 2 exceeded 8m. The conditions to both consent DC 2 and consent DC 3 required that the development was to be carried out in accordance with plans labelled DA02B-DA10B, dated April 2002 and lodged with the council on 30 April 2002. Plans recording the height levels in drawing DA-08B dated April 2002 were stamped by the council on 18 June 2002. Accordingly there was no change to such plans between the grant of consent DC 2 and consent DC 3. Notations on plan DA08B show that the height of the dwelling from natural ground level to the underside of the ceiling of the upper floor is 9.5m and the difference between the lowest floor level to the upper ceiling is 8.2m. Accordingly the height of the dwelling exceeds the maximum height prescribed by cl 46(2) of the KPSO.

31 A restriction on the height of a dwelling is a “development standard” as defined in s 4 of the EP&A Act. To enable a development standard to be varied, an application must be granted pursuant to cl 7 of SEPP 1. Apparently council did not consider that a SEPP 1 objection was required because the height of the dwelling on the property was erroneously described in the council’s memorandum of 1 June 2002 as “[t]he proposal at its highest point will achieve a height of 8 metres, and therefore complies with clause 46C” and therefore complied with the KPSO. This assumption is consistent with Mr Drew’s file note of 17 June 2002 which acknowledges that part of the dwelling proposed in DA 1754/01 exceeded 8m yet no SEPP 1 objection had been received in respect thereof.

32 Clarke JA in Vaniga Pty Ltd v South Sydney City Council (1989) 74 LGRA 86 at p 90 explained the effect of a SEPP 1 objection as follows:-

All that it means is that the consent authority is vested with power under the State Environmental Planning Policy No 1 to grant consents despite those provisions of, and prohibitions in, planning instruments concerning development standards.

Talbot J stated in Proprietors of SP 13318 & 13555 v Lavender View Regency Pty Ltd and North Sydney Council (1997) 97 LGERA 337 at p 348:-

The Court has concluded that the determination by council on 14 November 1994 was made without relevant consideration of an SEPP 1 objection. The advice available to the meeting was expressly predicated upon the contingency of the lodgment of an objection. Without an objection a valid determination could not be made.

33 A SEPP 1 objection was required to be made before the council’s power could have been enlivened to grant the development consent which contravened the height restrictions in the KPSO. The council is not excused merely because it made an incorrect assessment of DA 1754/01 and did not realise that part of the dwelling was greater than 8m in height as specified in cl 46(2) of the KPSO. The Court is satisfied that the height of the proposed dwelling exceeded the height of 8m prescribed by cl 46(2) of the KPSO. It follows that in the absence of a SEPP 1 objection, consent DC 2 was granted contrary to cl 46(2) of the KPSO and is accordingly invalid.

Invalidity of consent DC 3

34 Section 80(1) of the EP&A Act requires a consent authority to determine a development application by a grant of consent, either unconditionally or subject to conditions, or by refusing consent. Consent can only be granted or refused if the council is provided with a development application. Accordingly if a development application or, in cases of a modification application, an application to modify a consent under s 96 of the EP&A Act is not made to council, the council “has no jurisdiction to grant another or modified development approval.”: see Somerville v Dalby and Others (1990) 69 LGRA 422 at p 430. In Somerville Hemmings J said at p 430:-

The jurisdiction of Council to be a consent authority for the purpose of granting development consents is vested by statute. Unless and until council is in receipt of a development application, it has no power to grant any form of development consent. Upon determination of the development application and giving of notice thereof, council has no further function or jurisdiction with respect to its terms or conditions. Subject to rescission of its resolution in accordance with the provisions of the Local Government Act and ordinances, a consent authority has no power to unilaterally rescind, review or modify its determination of a development application: see Ku-ring-gai Municipal Council v Little (No 2) (1970) 91 WN (NSW) 434; 18 LGRA 380.

35 Such principle was confirmed by the New South Wales Court of Appeal in Botany Bay City Council v Remath Investments No 6 Pty Ltd (2000) 50 NSWLR 312, namely that if a development application is not made or remains incomplete it cannot provide the foundation for a lawful consent.

36 When the council granted consent DC 2 on 12 June 2002 it fulfilled its statutory obligations pursuant to s 80 of the EP&A Act. It could not issue a later consent in the absence of a development application being made to it. In the absence of the making of a new development application the EP&A Act does not authorise a consent authority to issue a second consent.

37 On 19 June 2002 when Mr Williams returned consent DC 2 in exchange for consent DC 3 at the request of the council the EP&A Act did not contain a provision which would entitle a consent authority to require a consent to be surrendered. It follows that consent DC 3 which was issued by the council to Mr Williams dated 18 June 2002 is invalid. The Court notes that the EP&A Act has recently been amended by the insertion of s 104A which provides for voluntary surrender of development consent.

Invalidity of delegation to approve consent DC 2

38 The Court has found that consent DC 2 is invalid but will make the following observations in response to the applicants’ submission that the delegate lacked power to grant consent DC 2. Delegation No. AO30 relevantly permits the delegate to approve with or without conditions, or to refuse development applications unless, inter alia, the development application “may in the opinion of the Director Environmental and Regulatory Services be contentious”.

39 Either ten or eleven objections (the evidence is not clear) to DA 1754/01 were received by the council. The applicants had supported their objections by the expert opinion of a town planner. DA 1754/01 was made in respect of local development within the meaning of s 76A(4) of the EP&A Act and was one to which the delegation applied. Accordingly the delegate, was bound to form the relevant opinion whether the development was “contentious” before he exercised his power to determine DA 1754/01.

40 In the absence of any authority defining the word “contentious” in the relevant context, the Court will apply a dictionary meaning. According to the Macquarie Dictionary (revised 3rd ed) “contentious” means “given to contention” or “characterised by contention”. “Contention” is relevantly defined as:-

1 . struggling together in opposition; strife. 2 . a striving in rivalry; competition; a contest… 5. in contention, a. under dispute; at issue

41 The development application proposed development which breached consent DC 1 and the height plane provided by DCP 38. The objections were supported by the opinion of an expert town planner. If the objections were sustained the development proposed in DA 1754/01 was likely to have an impact upon adjoining land and surrounding residents, including the applicants. Accordingly the Court accepts the applicants’ submissions and finds that DA 1754/01 constituted a contentious development application.

42 There is no evidence that the delegate considered the impact of conditions 4 and 10 of consent DC 1 prior to making his determination to grant approval to DA 1754/01. Nor is there any evidence that the delegate considered whether DA 1754/01 was contentious. The memorandum of 1 June 2002 of Mr Drew supported the development application “…notwithstanding the ten objectors to the proposal.”

43 The absence of consideration whether DA 1754/01 was contentious leads the Court to draw the inference that the Director Environmental and Regulatory Services did not form the requisite opinion, and therefore did not fulfil a prerequisite to excercise of power pursuant to Delegation No. A030: see Franklins Limited v Penrith City Council and Campbells Cash & Carry Pty Limited [1999] NSWCA 134; Manly Council v Hortis and Another (2001) 113 LGERA 321.

44 The issue of delegation arising in these proceedings is similar to that considered by the New South Wales Court of Appeal in Lyons v Sutherland Shire Council and Others (2001) 117 LGERA 334. In Lyons the relevant delegation permitted a delegate to process, evaluate and determine a development application except, inter alia, where there were objections which could not be satisfied by conditions of consent or which related to matters that were reasonable grounds for refusal, as stated in par (iv) of the delegation instrument. Stein JA said at p 338:-

The situation is plain. Either the officer had a delegation to grant the approval or he did not. If he acted in excess of the delegation and outside it, he had no power to grant the approval.
The delegate is given power to determine development applications but this power is very specifically circumscribed as not to include the applications, among others, which come within par (iv) of the instrument.

Similarly in the present circumstances where the Director Environmental and Regulatory Services forms an opinion that the development application is contentious, a condition of the exercise of the power provided by the delegation is not satisfied.

45 The Director Environmental and Regulatory Services did not form the requisite opinion. The Court finds that the development proposed in DA 1754/01 was contentious. It follows that the delegate did not have authority to approve DA 1754/01. Accordingly consent DC 2 is invalid upon this ground.

Invalidity of the modification consent

46 The modification application does not specify that it was made pursuant to s 96(1A) of the EP&A Act. The letter of Glendinning Minto and Associates P/L in support of such application states that the application was made pursuant to s 96(2) of that Act. However the modification consent states that was granted pursuant to s 96(1A) of the EP&A Act. The applicants submit that there is no evidence that the modification application involves minimal environmental impact as required by s 96(1A) of the EP&A Act, and the reference to s 96(1A) appearing on the modification consent is an error. The applicants submit that the modification consent was actually granted pursuant to s 96(2) of the EP&A Act, which is the general modification provision.

47 Neither the letter to council from Glendinning Minto and Associates P/L dated 18 December 2001 explaining the modification application, nor the modification consent indicate that the alterations to consent DC 1 were characterised as involving “minimal environmental impact”. Accordingly the Court finds that s 96(1A) of the EP&A Act was not the subsection under which the modification application was made. Rather the modification application was made pursuant to s 96(2) of the EP&A Act. Accordingly the Court must consider the applicants’ submission that the notification requirements stated in s 96(2)(c) of the EP&A Act have not been fulfilled. Section 96(2)(c) requires that the modification application be notified in accordance with:-

(c) (i) the regulations, if the regulations so require, or

(ii) a development control plan, if the consent authority is a council that has made a development control plan under section 72 that requires the notification or advertising of applications for modification of a development consent.

48 The council did not have a development control plan made pursuant to s 72 of the EP&A Act and accordingly cl 119 of the Environmental Planning and Assessment Regulation 2000 (“the Regulations”) is applicable. Clause 119(2) provides:-

(2) An application to which this clause applies must be notified or advertised for a period not exceeding 14 days but otherwise in the same manner as the original development application was notified or advertised.

49 There is no evidence that the modification application was advertised. Further, the council’s records do not establish that the requirement for advertising the modification application was considered.

50 In Nelson and Others v Burwood Municipal Council and Another (1991) 75 LGRA 39 Stein J determined that a council which had failed to advertise a development application had denied natural justice to the neighbouring residents who had a reasonable and legitimate expectation that they would be notified of a development application to provide them with an opportunity of presenting their objections. However, Cole JA in Litevale Pty Ltd v Lismore City Council (1997) 96 LGERA 91 at p 100 observed that a council’s obligation to advertise and notify the public of development applications is not based upon the notion of legitimate and reasonable expectation. His Honour said:-

The obligations of Council depend upon the statute and regulations. The legislature has by those provisions indicated that which it regards as a proper and sufficient notification to the public of a development application. There can be no basis for invalidity grounded upon a member of the public’s expectation that he is entitled to receive more than that which the legislature has required.

51 The evidence establishes that the applicants were aware that the modification application had been made to vary conditions 4 and 10 of consent DC 1, but were not notified in accordance with cl 119(2) of the Regulations. The applicants were unaware that the modification consent had been granted when Mr Ingham wrote to the council on their behalf, on 17 June 2002. In these circumstances the statutory requirements for a modification application have not been satisfied. Accordingly the Court declares the modification consent invalid.

Invalidity of delegation to approve the modification consent

52 As an additional ground of invalidity the applicants submit that the approval by the delegate of the modification application was made beyond the power delegated to him. Delegation No. AO34 was the relevant delegation instrument which provides:-

1. Section 96(1)

To modify (on application) a development consent to correct a minor error, misdescription or miscalculation.

2. Section 96(2)

To otherwise determine applications for modification for consents subject to the restrictions of the Act. The delegate shall not approve any application:

a. Which is the subject of a written or oral request by the Director Environmental and Regulatory Services, General Manager or by any Councillor, for the application to be referred to Council.

b. Which conflicts with the aims and objectives of Council’s policies, codes and guidelines.

c. Which, may in the opinion of the Director Environmental and Regulatory Services be contentious.

53 The applicants submit that the delegated power to determine the modification application is predicated upon compliance with “restrictions of the Act”. The applicants say one such restriction is contained in s 96(2)(c) of the EP&A Act and as such provision has been breached the delegate was acting beyond power. The Court finds that the reference to “restrictions of the Act” includes the preconditions and limitations in s 96(2)(a)-(d). Accordingly the applicants’ submissions are upheld. As the modification application was not properly notified the delegate could not approve the modification application.

54 Similarly to the findings made above in relation to the power of the delegate to determine consent DC 2, there is no evidence that an opinion was formed that the modification application might be contentious. The applicants submit that if an opinion was formed that the modification application was not contentious, such opinion was not, on the evidence, reasonably open to be made. The applicants say the modification application was contentious as it sought to delete conditions 4 and 10 of consent DC 1. Such conditions were imposed to protect the amenity of neighbours and vegetation on the property, and was the subject of the objections already referred to.

55 The Court recognises that Mr Drew’s memorandum of 4 June 2002 might constitute evidence of council consideration that the modification application was not considered contentious. Mr Drew opined that there could not be an objection to the deletion of conditions 4 and 10 of consent DC 1 since such conditions were superceded by s 79C of the EP&A Act. However Mr Drew was not the Director Environmental and Regulatory Services, who is the relevant person to form an opinion pursuant to Delegation No. A 034.

56 In the absence of any evidence from the council, the Court holds that the requisite opinion was not held, and upholds the applicants’ claim that the grant of the modification consent exceeded the power of the delegate.

57 If the Court is wrong in its finding and the modification consent was granted pursuant to s 96(2) of the EP&A Act, the delegate had no power to grant approval for an entirely separate reason. Delegation No. A034 is limited to s 96(1) and s 96(2) of the EP&A Act. There is no provision for a delegate to determine an application in accordance with s 96(1A) of the EP&A Act. The Court enquired of the council whether a delegation instrument existed which permitted a delegate to grant a modification pursuant to s 96(1A) of the EP&A Act. The council was not aware that such an instrument existed.

Advertisement pursuant to s 101 of the EP&A Act

58 The Williams rely on s 101 of the EP&A Act to submit that the applicants cannot challenge consent DC 2 and consent DC 3. Section 101 of the EP&A Act requires publication in accordance with the Regulations. Clause 124 of the Regulations relevantly provides:-

124 What are the public notification procedures for the purposes of section 101 of the Act?

(1) The granting of a development consent is publicly notified for the purposes of section 101 of the Act if:

(a) public notice in a local newspaper is given:
(i) by the consent authority, or
(ii) if the consent authority is not the council, by the consent authority or the council…

59 The advertisement published by the council on 14 August 2002 identified the property as “1 Kalang Avenue” and not “1A Kalang Avenue”. The identification of the land is not otherwise described by lot or title reference. Number 1 Kalang Avenue comprises separate land. Accordingly, there is a clear misdescription in the advertisement. In Cobden-Jones and Another v Woollahra Municipal Council and Others (2002) 118 LGERA 41 Sheahan J determined that an advertisement which described the address of a development approval in different terms to that for which approval had been granted failed to comply with the requirement of the Regulations.

60 The purpose of the advertisement prescribed by s 101 of the EP&A Act is to give notice to the public of the granting of development consents to enable the public to investigate the development consent and an opportunity to question its validity. The participation of the public is an essential factor in the approval process: see Levenstrath Community Association Inc v Tomies Timber and Another (2000) 108 LGERA 176 at p 179. For this purpose it is essential that the notice accurately describe the land.

61 Cripps J in Lend Lease Management Pty Ltd and Burns Philp Trustee Co Ltd v Sydney City Council, Heritage Council of New South Wales and New World Properties (NSW) Pty Ltd (1986) 68 LGRA 61 observed at p 77 to p 78 in relation to s 104A of the EP&A Act (which was repealed and replaced by the current and analogous s 101 of the EP&A Act):-

Burns Philp and Lend Lease submit that s 104A properly read does not preclude a challenge to the validity of a development consent in the Land and Environment Court unless the development consent has, in fact, been published in accordance with the regulations and that there is a failure to institute proceedings within three months thereafter.

His Honour accepted such submissions at p 79 as the preferred construction of s 104A of the EP&A Act. The need for strict compliance with the notification requirements was succinctly explained by Stein J in Lawrence Wilson v Iron Gates Pty Ltd and Richmond River Shire Council (Stein J, Land and Environment Court, 2 December 1996, unreported) at p 6 as follows:-

In my view, the effect of the statute barring of legal proceedings leads to a requirement that the section be strictly complied with. It may be seen that the provision itself stresses the need for the public notice to comply with the regulation. In view of the draconic effect of the section, this is understandable. I think that compliance with the regulation is mandatory, ( Tasker v Fullwood [1978] 1 NSWLR 20). It is apparent that the public notice did not comply with the regulation. It did not describe the land to which the development application related. Rather it referred to the wrong land. The notice failed in its legislative purpose.

62 Section 101 of the EP&A Act should be similarly construed thereby requiring public notice of consent DC 2 to be given in accordance with the Regulations to preclude a challenge to its validity, unless such challenge is commenced with three months from the date on which public notice was given.

63 Since public notification was not made in accordance with cl 124 of the Regulations the Court retains jurisdiction to determine the validity of consent DC 2. Even if the correct description of the property had been published, the requirement of s 101 of the EP&A Act would not have been satisfied. A valid development consent must exist to enable s 101 of the EP&A Act to operate.

64 The advertisement fails to draw to the public’s attention the fact of the purported development consent which was granted to the property. Accordingly the notification in the North Shore Times does not satisfy the requirements of s 101 of the EP&A Act and cl 124 of the Regulations.

Summary

65 The Court has found that the council has not fulfilled its statutory duties under the EP&A Act. Talbot J observed in Proprietors of SP 13318 & 13555 at p 355 if the Court did not grant relief “it would be condoning a serious breach of a fundamental obligation of the council, and the Court, to uphold the orderly administration and enforcement of planning law.” His Honour also commented at p 355 that:-

The Court may feel sympathetic towards the position of the first respondent. However any remedy in that respect does not arise here, although it is possible it may arise in some other jurisdiction.

The Court has also considered the principles relating to discretion referred to by the New South Wales Court of Appeal in Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335.

66 The Williams have demolished an existing shed located on the property and have incurred expense in the planning for the development. There is no evidence that construction of the proposed dwelling has commenced. Nor is there any evidence that hardship would result if the declaration and orders as sought, were made. The works carried out to date are not sufficient to warrant the Court declining to grant the relief sought. It follows that the applicants are entitled to the declarations and orders sought in the amended points of claim.

Costs

67 The applicants seek their costs of the proceedings against the respondents and submit that the council should bear the costs thereof. The Williams seek an order that any costs which they might be liable to pay to the applicants be paid by the council.

68 The council defended the proceedings and filed points of defence on 9 July 2003. The council’s points of defence denied that the development consent was invalid and relied upon the publication of consent DC 2 which was purportedly made pursuant to s 101 of the EP&A Act. The council also denied that the approval to the modification consent was invalid. On 1 October 2003 the applicants filed an amended application class 4 and an amended points of claim, followed by a further amended points of claim filed on 30 October 2003 and a second further amended points of claim filed on 18 November 2003. The council did not file any amended points of defence. The Williams also did not file any amended points of defence and relied upon their original points of defence filed 23 July 2003.

69 The council submits that it has taken no active part in the proceedings. It has filed no evidence. On the first day of the hearing it filed a notice of submitting appearance, submitting to any order which the Court might make, save as to costs. It says that it should not be penalised for its conduct not relevant to the conduct of the proceedings.

70 In exercising the discretion provided by s 69(2) of the Land and Environment Court Act 1979 the Court is invested with a broad discretion to award costs, but such discretion must be exercised judicially. Additionally the usual practice of the Court in class 4 proceedings is to award costs to the successful party.

71 Bignold J in Develtor Property Group Pty Ltd v Newcastle City Council [2001] NSWLEC 47 considered whether a party who files a submitting appearance should be liable for costs. His Honour held at par 42:-

In my judgment, the effect of the Respondent's submitting appearance in the present case, where that appearance has not been challenged or impugned, is that the submitting party is generally to be regarded as immune from any liability for costs incurred in the proceedings after the filing of the submitting appearance save as to costs (although conformably to principle and case law, the submitting party will be liable for costs incurred by the plaintiff up to the date of the filing of the submitting appearance).

72 In the present circumstances, two considerations arise. The Court has found that the conduct of the council has resulted in the Court finding that consent DC 2,consent DC 3 and the modification consent are invalid. The conduct of the party prior to the institution of litigation may give rise to a right to damages to an aggrieved party in other proceedings. However, that conduct is separate and distinct from the conduct of a party of the litigation.

73 Each of the respondents defended the proceedings. The council’s defence remained until the notice of submitting appearance was filed. Notification that the council would take that course was not communicated to the applicants until the afternoon of the day preceding the commencement of the hearing. In these circumstances the applicants’ costs had already been incurred for the hearing.

74 The Court is satisfied in these circumstances that the respondents must pay the applicants’ costs. The Court cannot order a Bullock order or Sanderson order as its findings do not exculpate one of the respondents.

Orders

75 The Court makes the following declarations and orders:-

1. DECLARATION that the Development Consent No. DA 1754/01 granted by the second respondent to the first respondents dated 12 June 2002 in respect of the property known as 1A Kalang Avenue Killara is invalid;

2. DECLARATION that the Development Consent No. DA 1754/01 granted by the second respondent to the first respondents dated 18 June 2002 in respect of the property known as 1A Kalang Avenue Killara is invalid;

3. DECLARATION that the modification consent granted pursuant to s 96 of the Environmental Planning and Assessment Act 1979 by the second respondent to the first respondents dated 14 June 2002 to Development Consent No. DA 3702/93 in respect of the property known as 1A Kalang Avenue Killara is invalid;

4. ORDER that the first respondents, including their agents, employees, contractors, assigns, transferees and any other person acting by instruction or on behalf of the first respondent be restrained from relying or acting upon the Development Consent No. DA 1754/01 granted by the second respondent to the first respondents dated 12 June 2002 or 18 June 2002 in respect of the property known as 1A Kalang Avenue Killara;

5. ORDER that the first respondents, including their agents, employees, contractors, assigns, transferees and any other person acting by instructions or on behalf of the first respondent be restrained from relying or acting upon the modification consent granted pursuant to s 96 of the Environmental Planning and Assessment Act 1979 by the second respondent to the first respondents dated on 14 June 2002 to Development Consent No. DA 3702/93 in respect of the property known as 1A Kalang Avenue Killara;

6. ORDER that the respondents pay the applicants’ costs;

7. ORDER that the exhibits be returned.