Fernance Family Holdings Pty Ltd v Newcastle City Council

[2000] NSWLEC 190

Reported Decision: 110 LGERA 66

Land and Environment Court

of New South Wales

CITATION:	Fernance Family Holdings Pty Ltd v Newcastle City Council [2000] NSWLEC 190
PARTIES:	APPLICANT: Fernance Family Holdings Pty Ltd RESPONDENT: Newcastle City Council
FILE NUMBER(S):	10487 of 2000
CORAM:	Bignold J
KEY ISSUES:	Practice & Procedure - Question of Law :- Practice and Procedure - Motion for summary dismissal of class 1 proceedings. Question of law - whether modified development substantially the same development as originally approved.
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 s 96
CASES CITED:	Australian Gas Light Co v Valuer General (1940) 40 SR (NSW) 126; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139; Hope v Bathurst Council (1980) 144 CLR 1; Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298; North Sydney Council v Michael Standley and Associates Pty Ltd (1998) 97 LGERA 433; NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation (1956) 94 CLR 509; Valhalla Cinemas Pty Ltd v Leichhardt Municipal Council (1986) 60 LGRA 240
DATES OF HEARING:	29/06/00
DATE OF JUDGMENT:	08/28/2000
LEGAL REPRESENTATIVES:	APPLICANT: Mr D Wilson, Barrister SOLICITORS Trisley Kilmurray O'Sullivan RESPONDENT: Mr S Brockwell, Barrister SOLICITORS Sparke Helmore

JUDGMENT:

IN THE LAND AND Matter No . 10487 of 2000

ENVIRONMENT COURT OF Coram : Bignold J.

NEW SOUTH WALES 28 August 2000

FERNANCE FAMILY HOLDINGS PTY LIMITED

Applicant

v

NEWCASTLE CITY COUNCIL

Respondent

JUDGMENT

Bignold J:

A. INTRODUCTION

1. By its amended Notice of Motion filed 22 June 2000 the Respondent (the Council) seeks an order for the summary dismissal of the pending class 1 proceedings which involve an appeal pursuant to s 96(6) of the Environmental Planning and Assessment Act 1979 (the EP&A Act) against the Council’s refusal of the Applicant’s modification application to modify a development consent granted by the Council on 25 February 1999 for the erection of a roof structure over the existing carparking area of the Cricketers Arms Hotel situate at No 61 Bruce Street, Cooks Hill (the development consent).

2. As will hereafter be shown the Council’s decision is probably best understood as a decision declining to determine the modification application (because it apprehended that the modification power was not available) and hence the current appeal is best understood as an appeal in respect of the Council’s failure to determine the application within the prescribed period of 40 days: s 96(6).

3. The Council claims alternative relief to the summary dismissal of the proceedings, namely that the Court determine as a preliminary matter that the development, as proposed to be modified, is not “substantially the same development” as is the subject of the development consent and hence, as a matter of law, the modification application cannot be granted: s 96(2)(a). The Applicant does not oppose the Court entertaining the Council’s alternative claim to relief but on the basis that the Court’s determination will be confined to a determination of law and does not involve any determination of ultimate fact.

B. THE RELEVANT FACTS

4. The relevant primary facts are not in dispute.

5. The development consent was granted subject to a number of conditions including the following:

5.4 The existing carparking area, including the roofed area, under no circumstances being used for any purpose other than the parking of staff and visitor cars and the delivery of goods in association with the existing hotel premises.

6. The development consent was granted in respect of development application No 98/1458 which described the proposed development as the “ erection of a roof structure over the hotel’s existing carpark ”. The supporting statement of environmental effects stated further particulars of the proposed development as follows:

The proposal is to provide a carpark roof structure over the existing carpark serving the hotel, primarily as a response to noise concerns raised by residents. The structure is designed to contain noise within the carpark.

7. The statement of environmental effects also stated:

The proposal does not alter or affect the existing use as a carpark area serving the Hotel. All operational details are maintained.

8. Mr Craig Marler, a Town Planner employed by the Respondent, in par 6 of his affidavit sworn 6 June 2000 states:

As the planning officer assessing D.A. 98/1458 I formed the expert opinion that there were no planning grounds for the refusal of the development application to erect a roof structure over the existing car parking area of the hotel. Although I was aware that the application did not propose to change the use of the car park area and that the use was to continue to be exclusively for the purpose of car parking, I formed the expert opinion that it was necessary to include a condition in the consent to ensure that the car parking area continued to be used only for that purpose. This was the reason why I included Condition 5.4 in the Consent.

9. On 13 April 2000, the Applicant submitted to the Council the modification application which sought to modify condition 5.4 by adding to the terms of the existing condition the following exception:

except that, on Anzac Day and Melbourne Cup Day each year, it may be used to accommodate functions organised by the hotel’s licensee.

10. In the statement of environmental effects accompanying the modification application, the reason for seeking the modification is stated as follows:

The reason for seeking amendment is to permit the Hotel to continue to provide functions in its carpark on those days as it has done for many years past

11. The modification proposal was elaborated in Section 4 (“ The Proposal ”) of the Statement which included the following:

The owner of the Hotel is seeking Council’s approval to use the parking area to conduct functions on two days of the year - Anzac Day and Melbourne Cup Day. These functions will be organised by the Hotel’s licensee.

In years past, the Hotel has conducted similar functions on what was, formerly, its open air carpark. On those occasions, a large marquee was erected to house the functions. At those times, the hotel was not the subject of any consent which prevented that being done.

By imposing Condition 5.4 on its determination of DA 98/1458 - the Council for the first time - exercised control over the use of the carparking area and, thereby, in effect, prevented these annual events being held.

Following the completion of the works approved by DA 98/1458, the Hotel now has a permanent structure in which those events could be held but for Condition 5.4. There is no longer any need to erect a marquee.

As has been the practice in the past, the Hotel proposed that these two annual functions be open to its regular patrons in order to provide them with a place where - on Anzac Day - they can meet to renew old acquaintances and mourn those who are no longer present and - on Melbourne Cup Day - to celebrate this Australian institution in a quite different manner.

It is proposed that the functions run from 10am until midnight, i.e. in parallel with the hours of trade of the Hotel proper. On past experience, patrons will move in and out of the functions throughout the day and evening so that the total number present at any one time is unlikely to be large although the total number who attend over the day may be. (Probably the largest number could be expected at about the time of the running of the Melbourne Cup, i.e on the afternoon of that day.) Based on previous experience, the numbers which congregate at the Hotel on these days could reach close to 400 at any one time with the total number of visitations during the day being in the order of 2,000. [Anecdotal evidence is that the Cricketer’s Arms functions are the most popular of the many such functions provided throughout the City on those days.]

It is proposed to have beverages - both alcoholic and non-alcoholic - and food available at the functions at all times. The beverages would be dispensed from temporary bars installed for the occasion while the food would be available from the kitchen/food servery area which is just inside the Hotel proper, adjacent to the carpark. In addition, from time to time, music - played by a solo performer or by an acoustic duo or trio - would be provided up until, say, 10pm.

12. In Section 5 of the Statement, the following is stated:

The Hotel is located on land zoned Residential 2(a) under the Newcastle LEP 1987, the relevant environmental planning instrument. The Hotel enjoys existing use rights.

13. In his second affidavit sworn on 26 June 2000, Mr Marler provides the histories of (i) the development site of the Hotel and (ii) the planning controls that have applied to the development site since the coming into force on 16 December 1960 of the Northumberland County District Planning Scheme. The relevant histories suggest that the land comprising the hotel carpark was acquired from the Council by the then owner of the hotel in 1963 ie at a time when the Planning Scheme was in force and when the land (and the adjoining land upon which the hotel was developed) was zoned Residential A. According to Mr Marler, there is no evidence in the Council’s records that he has searched of development consent having been granted for the use of the land as a car park except for the grant in 1999 of the development consent for the erection of the roof structure over the carpark.

14. On the hearing of the Council’s Motion, the Applicant indicated that its opposition to the Motion was not based upon the assertion of any existing-use entitlements. Rather, the Applicant’s case is founded upon the operation and effect of s 96 of the EP&A Act in respect of (i) the modification application and (ii) the development consent.

15. It is not entirely clear that the Council determined the modification application. Rather, it appears to have formed the opinion that the modified proposal was not substantially the same development as that which had been approved by the development consent and accordingly, it was considered that the application could “not be processed under s 96”.

16. Accordingly, the Council wrote to the Applicant on 9 May 2000 in the following terms:

I refer to the submission of an application to modify the above development consent, so as to allow certain functions organised by the hotel’s licensee to be accommodated in the hotel carparking area.

I am not satisfied that the modified proposal is substantially the same development as that originally consented to by Council. Under the circumstances, the modified proposal can not be processed under Section 96 of the Environmental Planning and Assessment Act 1979.

The correct application process for Council to deal with such a proposal is a new development application to change the use of the structure.

C. THE RELEVANT STATUTORY PROVISIONS

17. Although the principal relevant provision is s 96 of the EP&A Act it is necessary, for a proper understanding of the Council’s argument, to note some relevant provisions of the Act in respect of the development consent which is being sought to be modified.

18. Firstly, it is necessary to note the following definitions of the terms “development”, “development application” and “development consent” contained in the EP&A Act s 4(1):

development means:

(a) the use of land, and

(b) the subdivision of land, and

(c) the erection of a building, and

(d) the carrying out of a work, and

(e) the demolition of a building or work, and

(f) any other act, matter or thing referred to in section 26 that is controlled by an environmental planning instrument

but does not include any development of a class or description prescribed by the regulations for the purposes of this definition.

development application means an application for consent under Part 4 to carry out development but does not include an application for a complying development certificate.

development consent means consent under Part 4 to carry out development and includes, unless expressly excluded, a complying development certificate.

19. Secondly, it is necessary to note s 81A(1) which relevantly provides as follows:

A development consent that enables the erection of a building is sufficient to authorise the use of the building when erected for the purpose for which it was erected, if that purpose is specified in the development application, subject to section 109M.

20. Thirdly, it is necessary to note that s 80(1) empowers the consent authority to determine a development application by granting consent to the application, either unconditionally or subject to conditions and that s 80A(1) authorises the imposition of a condition of development consent if the condition inter alia—

(a) relates to any matter referred to in Section 79C(1) of relevance to the development the subject of the consent; or

(c) requires the modification or cessation of development….carried out on land (whether or not being land to which the development application relates).

21. The meaning and effect of the development consent, though principally to be deduced as a matter of construction, will to some extent be influenced by the operation of the provisions of the EP&A Act which I have noted. In particular, the development consent to the erection of the roof will by virtue of s 81A(1), also have authorised its use and Condition 5.4 was obviously imposed pursuant to s 80A(1)— probably par (a) but possibly par (c).

22. A final passing observation may be ventured in respect of the development consent, namely that in view of the currently applicable Residential A zoning of the carpark land, the only source of power that could legally sustain the grant of the development consent for the roof over the hotel carpark is the existing use entitlements conferred by the EP&A Act Div 10 Pt 4 and the Regulation made thereunder (vide cl 38 to cl 44 inclusive).

23. Section 96 as currently in force confers a power to modify a development consent in respect of three distinct circumstances—
(i.) in the case of a “minor modification” (subsection (1));
(ii.) in the case of modifications involving “minimal environmental impact” (subsection 1A); and
(iii.) in the case of “other modifications” (subsection (2)).

24. It is not suggested that the modification application in the present case falls within the “minor modification” power. The separate modification powers that are respectively conferred by subsections (1A) and (2) are predicated in each case upon the following condition—

it (ie the consent authority) is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all) under this section.

25. Subsections (3) and (4) , which apply to all modification applications, provide as follows:

(3) In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 79C (1) as are of relevance to the development the subject of the application.

(4) Modification of a development consent in accordance with this section is not to be construed as the granting of development consent under this Part but a reference in this or any other Act to a development consent is a reference to the development consent so modified.

26. Finally, it is to be noted that subsection (6) provides for an appeal to this Court by an applicant “dissatisfied with the determination of the application or the failure of the consent authority to determine the application within 40 days after the application is made…”.

D. THE COMPETING ARGUMENTS ON THE COUNCIL’S CLAIM FOR SUMMARY DISMISSAL

27. The Council’s argument for summary dismissal of the proceedings is founded upon three propositions—
(i.) the distinction made in the definition of “development” contained in the EP&A Act between (a) the erection of a building; and (b) the use of the land upon which the building is erected;
(ii.) the development consent granted in 1999 was for the erection of a building, namely the roof structure to the existing carpark; and
(iii.) the object and intent of the modification application is for the obtaining of development consent for the use of the roofed carpark on the two specified days each year for a purpose that is different from its use as a hotel carpark.

28. So founded, the Council’s argument is to the effect that it is simply not legally possible to obtain development consent to so use (on two specified days each year) the carpark by making a modification application to modify a development consent that only sanctioned the erection of the carpark roof structure.

29. As a matter both of logic and legal principle (derived from the operation of the EP&A Act), it can, I think, be categorically asserted that a development consent to erect a building is incapable of being modified so as to result in that modified consent itself granting development consent for the use of the land upon which the building is erected for a purpose different from the use for which the building was erected.

30. However, this legal theorem simply does not fit the facts of the present case as I have stated them, because it is clear that it is the existence of condition 5.4 imposed upon the grant of the development consent, that constitutes a bar upon the non-carparking use of the roofed carpark area that is proposed by Applicant on the two specified days each year.

31. The Applicant, correctly in my opinion, recognised Condition 5.4 of the development consent, as being a relevant source of prohibition, when it stated in the supporting Statement of Environmental Effects:

In years past, the Hotel has conducted similar functions on what was, formerly, its open air carpark. On these occasions, a large marquee was erected to house the functions. At those times, the hotel was not subject of any consent which prevented that being done.

By imposing Condition 5.4….the Council for the first time - exercised control over the use of the carparking area and thereby, in effect, prevented these annual events being held.

32. In these proceedings, the Applicant has not sought to challenge the validity of the condition. (In making this observation, I am not suggesting that it is legally impugnable.) Rather, it has accepted the existence of the condition, perceived its effect to be a legal bar to the proposed non-carparking use of the roofed carpark area on the two specified days each year and accordingly has sought by the modification application to remove the legal bar to that proposed use. In so acting, the Applicant’s conduct has been unexceptional.

33. It is true that instead of seeking a modification of the development consent, the Applicant could have sought development consent for the proposed use of the roofed carpark in the manner that was suggested by the Council. However, even if it had taken this alternative action and the result had been the grant of development consent, the Applicant would nonetheless have been confronted with the intractable fact that development consent granted for the carpark roof remained subject to condition 5.4. This fact would be apt to present difficulties for the Applicant in terms of the EP&A Act—eg see s 122 - s 124; s 125.

34. In these circumstances, I can see no justification for the Council’s submission that the Applicant’s appeal pursuant to the EP&A Act s 96(6) should be summarily dismissed because it is seeking a result (namely the grant of development consent for the use on the two specified days each year of the roofed carpark for a non-carparking purpose) by an impermissible means (namely the modification of a development consent that only granted consent for the erection of the roof to the carpark).

35. Rather, when the facts are properly analysed, as I have endeavoured to demonstrate, the Applicant is seeking the modification of the development consent in order to remove the legal bar that was created by the imposition of condition 5.4 to the proposed use of the roofed carpark on two specified days each year for a non-carparking purpose.

36. However, it is quite a different question whether the result of the modification application process, is the grant of development consent to so use the roofed carpark area on the two specified days each year. With respect, I think that the Council’s argument has overlooked this vital difference.

37. It is one thing for a modification application to seek to remove a restriction on the use of the land that exists by virtue of a condition imposed upon the grant of development consent for the erection of a roof over the carpark area, it is a different think to conclude that the removal of that restriction is tantamount to the grant of development consent sanctioning the proposed use.

38. The Council’s argument has failed to distinguish between the different sources of potential prohibition on the proposed use—namely (i) condition 5.4 of the development consent; and (ii) the EP&A Act s 76B prohibiting the carrying out of specified development (eg for hotel purposes) subject to other provisions of the Act eg the “existing use” provisions contained in Div 10 Pt 4. It has likewise failed to fully appreciate that the grant of a modification application is not tantamount to granting development consent: vide s 96(4). This last mentioned conclusion is not at odds with earlier decisions which have recognised that a modified development consent may legitimately overcome the prohibition on development now contained in the EP&A Act s 76B—see Valhalla Cinemas Pty Ltd v Leichhardt Municipal Council (1986) 60 LGRA 240 and North Sydney Council v Michael Standley and Associates Pty Ltd (1998) 97 LGERA 433.

39. In the present case, what must not be overlooked is the fact that the development consent sanctioned the erection of a building, namely the roof over an existing hotel carpark and that consent was subject to a condition (Condition 5.4) limiting the use of the land upon which the building was erected to carparking purposes.

40. Accordingly, any modification of that condition does not and cannot result in the grant of development consent to anything more than that which was approved by the development consent, namely the roof over the hotel carpark.

41. For all the foregoing reasons, the Council’s Motion for summary dismissal of the proceedings must be dismissed.

E. THE COMPETING ARGUMENTS ON THE QUESTION OF LAW WHETHER THE MODIFIED CONSENT IS FOR SUBSTANTIALLY THE SAME DEVELOPMENT AS WAS ORIGINALLY CONSENTED TO

42. As earlier noted, the Applicant did not oppose the Court entertaining the Council’s claim to alternative relief, provided that the question was determined solely as a question of law.

43. The Council could not be heard to complain about the limited nature of the Court’s preliminary determination for two reasons—firstly, the alternative claim had not been included in the Council’s original Notice of Motion which had been confined to the Council’s claim for summary dismissal of the proceedings and secondly, when the Council filed its Amended Notice of Motion, it propounded the question for preliminary determination as a question of law.

44. It is, I think, unfortunate that the Court has not been allowed to wholly determine the question because as I pointed out in Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298 at 309:

The relevant satisfaction required by s 96(2)(a) to be found to exist in order that the modification power be available involves an ultimate finding of fact based upon the primary facts found.

45. Accordingly, being limited to a determination of a question of law, the relevant question in the present case comes down to the following (cf Hope v Bathurst City Council (1980) 144 CLR 1 at 10; Australian Gas Light Co v Valuer General (1940) 40 SR (NSW) 126 at 138; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156.

Are the primary facts necessarily outside the statutory condition stipulated in s 96(2)(a) ?

46. To recapitulate the relevant primary facts, they are as follows:

(i.) the development in respect of which the consent was originally granted was the erection of a roof over the existing hotel carpark subject to the condition that the existing carparking area be used only for the parking of the hotel staff and patrons’ cars and hotel delivery vehicles;

(ii.) the development, in respect of which the modified consent is to be granted, is the same building subject to the same condition on the use of the carparking area except for use for different purposes connected with the hotel on two days per year (namely, Anzac Day and Melbourne Cup day).

47. Can it be fairly said of these primary facts that they necessarily fall outside of the statutory condition. That is, can it be fairly said that the development in respect of which the modified consent is granted is necessarily not “substantially the same development as the development for which the consent was originally granted”.

48. In Moto I discussed in the following passages at 309 the nature of the comparative task required to be undertaken for the purposes of s 96(2)(a):

The requisite factual finding obviously requires a comparison between the development, as currently approved, and the development as proposed to be modified. The result of the comparison must be a finding that the modified development is “ essentially or materially ”” the same as the (currently) approved development.

The comparative task does not merely involve a comparison of the physical features or components of the development as currently approved and modified where that comparative exercise is undertaken in some type of sterile vacuum. Rather, the comparison involves an appreciation, qualitative, as well as quantitative, of the developments being compared in their proper contexts (including the circumstances in which the development consent was granted).

49. In the present case, the sole difference yielded by the relevant comparison is the exception provided on two specified days each year to the general limitation on the use to be made of the carpark area.

50. Does this difference necessarily mean that the compared developments are not “substantially the same” developments?

51. In my judgment and notwithstanding Mr Marler’s opinion, the primary facts “reasonably admit of different conclusions” as to whether the compared developments are “substantially the same” and it therefore becomes ultimately necessary “to decide which is the correct conclusion—this being a question of fact”: see the judgment of Kitto J in NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation (1956) 94 CLR 509 at 512 cited with approval by Mason J in Hope v Bathurst City Council at pp 7 - 8.

52. For all the foregoing reasons, I must determine the question of law raised by the Council in the negative by holding that the question whether the compared developments are “substantially the same” developments reasonably admits of different conclusions and that the ultimate decision as to which conclusion is correct is a finding of fact.

53. It may be that in the light of those reasons for judgment, the parties may reconsider their respective positions.

54. For example, the Council may seek a determination as a preliminary matter of the ultimate factual question posed by the EP&A Act s 96(2)(a). On the other hand, the Applicant may decide to obtain any requisite development consent for the proposed non-parking use of the hotel carpark by making a development application in addition to or supplementary to its current modification application, which in any event will require assessment under the EP&A Act s 79C of the existing development as it is proposed to be modified: see Michael Standley at 441 per Mason P.

F. CONCLUSIONS AND ORDERS

55. For all the foregoing reasons, the Council’s Amended Notice of Motion must be dismissed and I so order.