Giannaki v Waverley Council

[2010] NSWLEC 191

Land and Environment Court

of New South Wales

CITATION:

Giannaki v Waverley Council [2010] NSWLEC 191

PARTIES:

FIRST APPLICANT:
Tina Dionysiou Giannaki

SECOND APPLICANT:
Polixeni Dionysiou Giannaki

FIRST RESPONDENT:
Waverley Council

SECOND RESPONDENT:
Windesea Pty Limited

FILE NUMBER(S):

10688 of 2010

CORAM:

Biscoe J

KEY ISSUES:

APPEAL :- Class 1 proceedings - council modifies development consent - objectors' application for leave to appeal against modification determination under s 96AA(4) Environmental Planning and Assessment Act 1979 - leave granted.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979, s 96AA(4)

CASES CITED:

Harvey Woodhouse v Michael Schembri [2007] NSWLEC 861

DATES OF HEARING:

29 September 2010

EX TEMPORE JUDGMENT DATE:

29 September 2010

LEGAL REPRESENTATIVES:

APPLICANTS:
Mr R O'Gorman-Hughes, barrister
SOLICITORS
Yates Beaggi

FIRST RESPONDENT:
Ms K Thomas
SOLICITORS
Wilshire Webb Staunton Beattie

SECOND RESPONDENT:
Ms J Reid
SOLICITORS
Pikes Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

29 September 2010

10688 of 2010

GIANNAKI & ANOR v WAVERLEY COUNCIL & ANOR

EX TEMPORE JUDGMENT

1 HIS HONOUR: This is an application by Tina Giannaki and Polixeni Giannaki (“the objectors”) for leave to appeal against the determination of the first respondent, Waverley Council, to modify development consent DA 201/2007. The proponent is the second respondent, Windesea Pty Ltd.

2 The application is made under s 96AA(4) of the Environmental Planning and Assessment Act 1979 which provides:

“ 96AA Modification by consent authorities of consents granted by the Court
…
(4) A person who made a submission in respect of the application for modification and who is dissatisfied with the determination of the application by the consent authority may, in accordance with rules of court, apply to the Court for leave to appeal against the determination within 28 days after the date on which notice of the determination was given to the person and the Court may grant or refuse leave to appeal.”

3 The modification was for additional excavation for development on certain land. That land adjoins the land of the objectors who made submissions objecting to the modification application. They submitted, and their concern now is, that the modification presents a risk to the stability of the residential flat building on their land. Their other submissions to the council were resolved by conditions of the modification consent.

4 There is a threshold issue as to whether the leave application should be determined now or, as the objectors submit, with the hearing of the appeal. The respondents submit, and I accept, that it is desirable to determine the leave application now so that if it is unsuccessful they should not be put to the trouble and expense of preparing for the hearing of the appeal and because of the proponent’s commercial need to have the mater resolved as soon as is reasonably possible.

5 The council neither consents to nor objects to leave being granted. The proponent objects to leave being granted.

6 The proponent suggests that some guidance as to how such a leave application should be approached may be obtained by reference to the objects of the Environmental Planning and Assessment Act 1979. In particular, the object of encouraging the promotion and coordination of the orderly and economic use and development of land and the object of providing increased opportunity for public involvement and participation in environmental planning and assessment. I agree and would add the object of encouraging ecologically sustainable development.

7 The proponent then argues that a balance should be struck between increasing the opportunity for these objectors to be involved and participate in an appeal, on the one hand, and the delay which the proponent will suffer in getting on with this development by reason of the appeal process. The proponent points out, and this is factually correct, that the objectors had full opportunity to present their case to the council, including to an independent hearing and assessment panel of the council, and that they presented expert reports in support of their submissions to the council. The proponent argues that where such fulsome opportunity has been afforded to an objector, and that opportunity has been availed of, then the balancing of the relevant considerations weighs against the granting of leave to appeal. Indeed, the proponent argues that in such circumstances the process should stop upon the council determining the modification application.

8 The proponent and the council also express some concern arising from the fact that the objectors’ originating process seeks as substantive relief either that the application to modify the consent be refused, or alternatively that it be approved subject to such conditions as the Court sees fit. The point of concern is that the objectors’ contentions in their Statement of Facts and Contentions do not distinguish between which of those contentions are relevant to the prayer that the modification application be refused and which are relevant to the prayer that the application to modify be approved subject to conditions. If I have understood the concern, it is that the objectors should not be able to go behind the modification application to challenge the original consent. On that concern being expressed, there was an assurance given on behalf of the objectors that that would not occur. Therefore, for present purposes that can be put to one side although, if leave were to be granted, no doubt the respondents could reasonably require the objectors to inform them as to which of their contentions relate to which of the prayers.

9 According to the researches of the parties, the only case which has considered s 96AA(4) is Harvey Woodhouse v Michael Schembri [2007] NSWLEC 861. In granting leave to appeal in that case, Sheahan J took into consideration that leave would not cause the proponents or the council any prejudice provided leave did not open the way for the objector to widen his claim, and that the case related to designated development to which objectors had a right to appeal against development consent. The present case does not relate to designated development.

10 Because I have decided that I should determine this leave application immediately, I have not had opportunity to reflect on a principled approach to the discretion under s 96AA(4). However, with the assistance of the parties’ submissions I propose to take into account the following matters in this case.

11 First, the leave application may be considered in light of the objects of the Environmental Planning and Assessment Act, in particular the objects of encouraging the promotion and coordination of the orderly and economic use and development of land, increased opportunity for public involvement and participation in environmental planning and assessment, and ecologically sustainable development.

12 Secondly, there may be taken into consideration whether the matters proposed to be raised on the appeal go beyond the matters raised by the objectors before the council, thereby prejudicing the proponent. They do not.

13 Thirdly, there may be taken into consideration the opportunity that the objectors had and took to put their case to the council, particularly to an independent hearing and assessment panel of the council. They had good opportunity to put and did put their case to the council, including to an independent hearing and assessment panel. However, that is tempered by the fact that, as the minutes of the meeting of the panel record, the objectors’ planner was not aware of any additional geotechnical reports which addressed the increased excavation. In fact, it appears that there were such geotechnical reports.

14 Fourthly, there may be taken into consideration whether there is a serious question as to the adequacy of the council’s consideration of the issue which the objectors wish to raise on the appeal. There was a council report which said that the additional excavation posed no impact on the stability of adjoining buildings. The objectors’ expert evidence before the council was to very different effect. There is a serious question (but it would be inappropriate to resolve it on this application) whether the council officers gave adequate consideration to that evidence.

15 Fifthly, there may be taken into consideration whether there is a serious question that the modification will potentially and significantly impact on the objectors or their property. There is such a serious question. There is geotechnical evidence which the objectors put before the council indicating that the proposed excavations would pose a risk to the stability of the residential building on their adjoining property. It is inappropriate on this leave application to resolve any dispute in that regard.

16 Weighing up the various considerations, I consider that leave should be granted to the objectors to appeal against the modification determination. I so order.

17 Leave having been granted, the parties agree that their legal representatives should meet and endeavour to reach agreement on directions to progress the matter towards trial, including the preparation of a joint report or reports by experts and that the matter should be listed before the Registrar on Friday 1 October to make directions and fix the matter for hearing. Given the commercial imperatives of the proponent, I consider that the matter should be progressed towards a hearing as expeditiously as is reasonably possible and be heard as soon as is reasonably possible. I make the following directions:

(a) The parties’ legal representatives are to confer within the next 24 hours and endeavour to agree on pre-trial directions.
(b) The matter is listed before the Registrar on Friday 1 October 2010 for the purpose of giving directions and fixing a hearing date.