Garey v Great Lakes Council - [2005] NSWLEC 563

Land and Environment Court

of New South Wales

CITATION:
Garey & Anor v Great Lakes Council [2005] NSWLEC 563

PARTIES:
APPLICANTS:
Maxwell John Garey
Kathleen Judith Garey
RESPONDENT:
Great Lakes Council

FILE NUMBER(S):
11027 of 2005

CORAM:
Pain J

KEY ISSUES:
Development Consent :- modification of development consent - whether conditions within power

LEGISLATION CITED:
Environmental Planning and Assessment Act 1979 s 96
Great Lakes Local Environmental Plan 1996

CASES CITED:
1643 Pittwater Road Pty Limited v Pittwater Council [2004] NSWLEC 685;
Gee v Port Stephens Council (2003) 131 LGERA 325

DATES OF HEARING: 14/09/2005

EX TEMPORE JUDGMENT DATE:
09/14/2005

LEGAL REPRESENTATIVES:
APPLICANT:
Mr C Gough (solicitor)
SOLICITORS:
Storey & Gough
RESPONDENT:
Mr I Hemmings (barrister)
SOLICITORS:
Peter Rees

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

14 September 2005

11027 of 2005 Maxwell John Garey & Anor v Great Lakes Council
EX TEMPORE JUDGMENT

1 Her Honour: This matter is a preliminary question of law in a Class 1 appeal against conditions imposed by Great Lakes Council (“the Council”) in relation to a modification of the DA for the Applicants’ property at 15 Headland Road, Boomerang Beach (“the property”) under s 96 of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”).

Background

2 I have been provided with an agreed statement of facts by the parties as follows:

1. The property at 15 Headland Road, Boomerang Beach is owned by the applicants and is more particularly described as Lot 2 DP 794423.
2. The property is zoned 2 village under the provisions of the

Great Lakes Local Environmental Plan 1996.

3. On 25 February 2003 the Council granted development consent to the applicants for Multiple Dwellings (2 units) at the property.
4. Construction of the development has commenced.
5. On 10 June 2005, the applicants lodged with the Council a Section 96 Application.
6. On 18 August 2005, the Council approved the Section 96 Application.

3 The Applicants provided the Court with the Notice of Determination granted by the Council on 25 February 2003 (“the development consent”) and the set of plans attached in exhibit B. Condition 8 of the development consent states:

The building being setback a minimum distance of 4.3 metres from the western boundary. The easterly setback of the building is not to be altered in the change to the setback.

4 Condition 9 of the development consent states:

The northern decks are to be set back a minimum 4.3 metres from the western boundary.

5 The Applicants also provided the Court with the Approval for Modification of Development Consent (“the s 96 consent”) granted by the Council on 18 August 2005 and the set of plans attached in exhibit D.

6 The s 96 consent states:

In accordance with s 96(1A) of the Environmental Planning and Assessment Act 1979 ¸ Development Consent No: DA-1075-2002 is modified by the following:

Condition No. 1 be varied to read:

The development being carried out in accordance with drawings……

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] NSWLEC 563
Decision Date: 09/14/2005

CaseChat Overview and Summary

Maxwell John Garey and Kathleen Judith Garey sought to appeal the conditions imposed by the Great Lakes Council in relation to the modification of a development application for their property at 15 Headland Road, Boomerang Beach. The applicants contended that certain conditions were beyond the Council's power under the Environmental Planning and Assessment Act 1979. The court was required to determine whether conditions 1(a) and 1(b) of the development consent, as amended by the Council, were void and of no effect as they were made outside the Council's power.

The court examined the conditions and plans related to the development consent and the Section 96 Application. It found that the conditions in question related to aspects of the proposal that did not relate to the application made under Section 96 of the Environmental Planning and Assessment Act 1979. However, the court held that the Section 96 consent was not limited by the words in the Section 96 application itself, and the consent was defined by the plans which form part of the application. The court concluded that the conditions 1(a) and 1(b) were within power and not beyond the Council's authority.

The court awarded costs to the Council, as the applicants were unsuccessful in their preliminary question of law proceedings. The court made an order that the applicants pay the Council's costs of the preliminary question of law proceedings, return the exhibits, and place the matter on the Registrar's callover list on 28 September 2005.

Orders