Designlink International v Baulkham Hills Shire Council

[1999] NSWLEC 218

Land and Environment Court

of New South Wales

CITATION:

Designlink International v Baulkham Hills Shire Council [1999] NSWLEC 218

PARTIES

APPLICANT/RESPONDENT:
Designlink International

RESPONDENT/APPELLANT:
Baulkham Hills Shire Council

NUMBER:

10007A of 1999

CORAM:

Talbot J

KEY ISSUES:

Section 56A Appeal :- finality of determination of application - validity of deferred commencement condition

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979 s 80(3)
Environmental Planning and Assessment Regulation 1994 reg 67
Land and Environment Court Act 1979 s 56A

DATES OF HEARING:

09/08/1999

DATE OF JUDGMENT DELIVERY:

09/15/1999

LEGAL REPRESENTATIVES:

APPLICANT/RESPONDENT:
Mr C McEwen (Barrister)
With:
Mr A Pickles (Barrister)

SOLICITORS:
n/a

RESPONDENT/APPELLANT:
Mr P McClellan QC

SOLICITORS:
Dunhill Madden Butler

JUDGMENT:

IN THE LAND AND Matter No. 10007 of 1999
ENVIRONMENT COURT Coram: Talbot J
OF NEW SOUTH WALES Decision Date: 15 September 1999

Designlink Pty Ltd
Applicant

v
Baulkham Hills Shire Council

Respondent

REASONS FOR JUDGMENT


1. This is an appeal from the decision of the Senior Commissioner delivered on 27 May 1999 ex tempore.

2. The Commissioner concluded that the development application was “appropriate to be approved” but that it should be deferred to ensure that a drainage easement could be properly obtained and legitimised and secondly, “on the basis of the concerns expressed by council going to the accuracy of the drawings and made explicit by the efforts of their witness Mr Pickworth, there should be an opportunity for such errors and anomalies to be rectified on the basis that they are not sufficiently serious as to justify refusing the application” .

3. The Commissioner expressed concern as to whether, generally speaking, the building as presented in the development application could be built in accordance with the plans. Anomalies to do with the connection of the basement stairs up to the ground floor, the ramp gradients giving access to the underground parking areas and the extent of excavation of the basement are established by the evidence and were accepted by the Commissioner.

4. During the course of the hearing discussion also took place as to whether the building could be built within the constraints of a construction certificate.

5. The transcript of the proceedings records the evolutionary debate which ultimately was resolved by the Commissioner electing to rely on the provisions of s 80(3) of the Environmental Planning and Assessment Act 1979 (the EP&A Act) to grant deferred commencement consent rather than to grant consent and foreshadow an inevitable application pursuant to s 96 for modification of the consent in the future.

6. The relevant parts of the Commissioner’s order are set out below:-

2. A deferred consent is given to a development involving twenty-six residential flats at Nos. 18-22 Campbell Street, Northmead and as described in Exhibits 1N and C. The deferral is to allow:


(a) an easement for drainage purposes to be obtained.

(b) minor corrections to be made to the drawings at the basement carparking level so that appropriate ramp gradients, headroom and staircase access to the ground floor level are shown.
3. ….


4. ….

5. Upon satisfaction of the council that the deferred commencement conditions have been satisfactorily met the parties may approach the Court so as to have the development consent confirmed.


7. Mr McClellan QC, who appears for the appellant council, argues strongly that s 80(3) cannot be used except where final consent to development is granted. The Senior Commissioner erred by leaving for later decision fundamental aspects of the development. The consent could not be regarded as final ( Lend Lease Management Pty Ltd and Anor v Sydney City Council and Ors (1986) 68 LGRA 61 and Mison and Ors v Randwick Municipal Council and Ors (1991) 23 NSWLR 734).

8. As Mr McClellan points out, s 80(3), in conjunction with reg 67 of the Environmental Planning and Assessment Regulation 1994 (the Regulation), defers the operation or commencement of the consent in the same way as its predecessor s 91AA did. Its terms explicitly refer to the grant of development consent subject to a condition. In other words, a consent granted pursuant to s 80(3) must be in respect of a development which can be identified, so that ultimately the consent can be acted upon when the deferred commencement condition is satisfied, by production of evidence to satisfy the consent authority as to the matter specified in the condition.

9. In Canyonleigh Environment Protection Society Inc v Wingecarribee Shire Council (1997) 95 LGERA 294, Bignold J questioned my narrow approach to the effect of s 91AA in Remath Investments (No 6) Pty Ltd v Botany Bay Council (No 2) (unreported 10649 of 1996 11 December 1996). On the same day that judgment in Canyonleigh was delivered I reinforced my earlier view in Remath , by discounting the prospect of s 91AA being “a panacea to overcome the necessity to consider a requisite matter pursuant to s 90 or the requirement to finally determine the development application pursuant to s 91” , in Torquil Cameron v Nambucca Shire Council (1997) 95 LGERA 268 at 276.

10. In Canyonleigh Bignold J made reference to the historical approach to the notion of an “in principle” development consent in New South Wales and “outline planning permission” under United Kingdom town planning legislation in order to seek possible guidance as to the true nature and content of a deferred commencement consent pursuant to s 91AA of the EP&A Act.

11. Unfortunately, and with due respect to his Honour, I cannot obtain any assistance from the earlier decisions referred to by his Honour (at 310) in the context of s 80(3). In my view there is no part of s 80(3) that allows for a deferral of the decision to grant consent. There are no words to suggest the concept of an indicative decision.

12. The mechanism introduced by s 91AA, and continued by s 80(3) and the Regulation, is that although the consent authority is satisfied that an applicant for development consent is entitled to a consent, that consent is not to operate until some matter external to the subject matter of the consent is satisfied.

13. I agree with Bignold J that “the elucidation of the matters that might properly be the subject of deferred commencement conditions is best left to be developed on a case by case basis of judicial exegesis” . However, the evolution in my opinion, and with respect to his Honour, must occur within constraints which require the grant of the development consent to be final.

14. Mr McEwen, who appears for the applicant for development consent, responds to the appellant’s argument by referring the Court to the observations made by the Court of Appeal in Scott and Ors v Wollongong City Council and Anor (1992) 75 LGERA 112, particularly at 118 and 119 in the judgment of Samuels AP, as follows:-

However, what distinguishes them is that the exercise of the decision-making power they each contemplate will certainly not alter the development “in a fundamental respect”, nor will the development be “significantly different” from that which the application for consent contemplated. They are all conditions which may be described as ancillary to the core purpose of the application. Moreover, in my view the attachment of conditions of this kind, which leave final details to be settled, should be approached with the degree of flexibility indicated, for example, by Pape J in Weigall Constructions Pty Ltd v Melbourne & Metropolitan Board of Works [1972] VR 781; (1972) 30 LGRA 333. If I may quote the words of Barwick CJ in a somewhat different context in Upper Hunter County District Council v Australian Chilling and Freezing Co Ltd (1968) 118 CLR 429 at 437: “no narrow or pedantic approach is warranted.”


15. Mr McClellan does not seek to assert that it was not open to the Commissioner to grant development consent. To that extent he agrees with Mr McEwen. The argument is confined to the alleged error when the Commissioner elected to proceed by way of a deferred commencement condition.

16. Mr McEwen contends that irrespective of whether a proposed amendment is minor, there is nothing in s 80(3) which says the consent authority may not defer to allow for a design change. There is no question that the Senior Commissioner only contemplated minor alterations to the plans. He says so specifically.

17. It is a question of fact and degree in each case whether a consent can be granted conditionally in accordance with the judgment of the Court of Appeal in Scott . Where changes within the ambit recognised by the Court of Appeal are allowed, it is only after the parameters of the development have been set and the impacts determined. Otherwise the consent authority has the option to refuse consent or to postpone its final decision to allow an opportunity for the applicant to amend the plans, if that is permissible in the circumstances of the case. Either way, the Court will be called upon to give further consideration to the application before the consent can be acted on. The Court should not be dissuaded from dealing with the issue raised by the appellant simply because there is a perceived lack of utility arising out of the facts of this matter.

18. The Commissioner has, in effect, elected to postpone his final decision. The Court is not a consent authority as defined in s 5 of the EP&A Act. It was not open for the Commissioner to grant a deferred commencement consent subject to a condition that the consent is not to operate until the applicant satisfied the council as to the matter specified in the condition and then for the development consent to be confirmed by the Court. A lawful deferred commencement consent will operate following the consent authority’s satisfaction, without any further confirmation.

19. If there was no prospect that there will be any different impacts following amendment to the plans, then the applicant was entitled to a final consent subject to a condition that the plans be amended in the specific minor respects referred to by the Commissioner. It is not part of the purpose of s 80(3) to accommodate changes to the development itself. Section 80(3) assumes that the development is acceptable subject to compliance with a matter that has no influence on the form of development to be carried out.

20. Section 80(3) contemplates that final consent has been granted. The decision by the Senior Commissioner does not have that effect. Until the so called minor corrections are made, there can be no complete understanding of what development is the subject of the consent. The conditions allowing for minor corrections to be made to the drawings expressly leave that question open. Furthermore, condition 5 required confirmation by the Court, thus expressly demonstrating that the consent is not final.

21. The crux of the applicant’s argument is that a deferred commencement consent can be granted pursuant to s 80(3) so long as that which is approved remains relevantly the same. The consent must be capable of operating subject to compliance with the deferred commencement condition.

22. I agree with Mr McClellan that the reference used by the Senior Commissioner in condition 5 “to have the development consent confirmed” is not the language of s 80(3). It discloses that he was not prepared to grant a final consent at the time of his determination.

23. Although it might be suggested that the difference between what the Commissioner did and what the Court dictates he should have done is academic, to allow the decision to stand would be to sanction an unlawful exercise of power.

24. I am satisfied that the Senior Commissioner erred in law by granting a deferred commencement consent in the circumstances of this case.

25. The Court directs that the matter be referred back to the Commissioner for determination in accordance with the above findings according to the evidence as it now stands, together with any further evidence that he may allow, in the proper exercise of his discretion.