Golden Paradise Corporation v Kogarah Municipal Council; Kogarah Municipal Council v Golden Paradise Corporation
[2003] NSWLEC 155
•08/29/2003
>
Land and Environment Court
of New South Wales
CITATION: Golden Paradise Corporation v Kogarah Municipal Council & Another; Kogarah Municipal Council v Golden Paradise Corporation [2003] NSWLEC 155 revised - 2/12/2003 PARTIES: APPLICANT
Golden Paradise CorporationFIRST RESPONDENT
Kogarah Municipal CouncilSECOND RESPONDENT
Blakehurst Properties Pty Ltd (ACN 074 318 424)APPLICANT
RESPONDENT
Kogarah Municipal Council
Golden Paradise CorporationFILE NUMBER(S): 40536 of 2002; 40148 of 2003 CORAM: Cowdroy J KEY ISSUES: Development Consent :- land dedicated to council to create rear lane access pursuant to condition of development consent - land transferred to council - land re-conveyed by council to private owner - restricted access to neighbouring property - whether land is operational land or community land - indefeasibility of title - whether development is in accordance with consent LEGISLATION CITED: Conveyancing Act 1919, s 88
Environmental Planning and Assessment Act 1979, s 94, s 122, s 123
Kogarah Local Environmental Plan 1998
Land and Environment Court Act 1979
Local Government Act 1919, s 526
Local Government Act 1993, s 32, s 45, s 672, s 674, Sch 7 cl 6
Real Property Act 1900, s 42, s 43CASES CITED: Bathurst City Council v PWC Properties Pty Ltd (1998) 195 CLR 566;
Breskvar and Another v Wall and Others (1971) 126 CLR 376;
Brisbane City Council and Myer Shopping Centres Pty Ltd v Attorney-General for Queensland [1979] AC 411;
Green v Kogarah Municipal Council (2001) 115 LGERA 231;
Heavens Door Pty Ltd v Hillpalm Pty Ltd (2001) 116 LGERA 138;
Hillpalm Pty Ltd v Heaven's Door Pty Ltd (2002) 55 NSWLR 446;
Iron Gates Developments Pty Ltd v Richmond-Evans Environmental Society Inc (1992) 81 LGERA 132;
Logue v Shoalhaven Shire Council [1979] 1 NSWLR 537;
Murray v Sutherland Shire Council [2001] NSWLEC 206;
Palais Parking Station Pty Ltd v Shea; State of South Australia v Palais Parking Station Pty Ltd; Palais Parking Station Pty Ltd v State of South Australia and the Registrar-General (1980) 24 SASR 425;
Zouki v Liverpool City Council (2002) 119 LGERA 424DATES OF HEARING: 12/08/2003 DATE OF JUDGMENT:
08/29/2003LEGAL REPRESENTATIVES:
40536 of 2002APPLICANT
Mr M. Neil QC
Mr G. Underwood (Barrister)SOLICITORS
Forshaws NeillFIRST RESPONDENT
Mr J. Ayling SCSOLICITORS
Abbott ToutSECOND RESPONDENT
Mr J. Ayling SCSOLICITORS
Gray & Perkins Lawyers40148 of 2003
APPLICANT
Mr J. Ayling SCSOLICITORS
Abbott ToutRESPONDENT
SOLICITORS
Mr M. Neil QC
Mr G. Underwood (Barrister)
Forshaws Neill
JUDGMENT:
IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
40536 of 2002/40148 of 2003
29 August 2003Cowdroy J
- Applicant
- First Respondent
- Second Respondent
Kogarah Municipal Council
- Applicant
- Respondent
Facts
1 In matter 40536 of 2002 Golden Paradise Corporation (“the Corporation”), incorporated in Belize Central America, claims declarations and orders against Kogarah Municipal Council (“the council’) and the second respondent Blakehurst Properties Pty Ltd (ACN 074 318 424) (“Blakehurst Properties”) concerning a six metre wide strip of land located within 637 to 643 Princes Highway, Blakehurst (“637 to 643 Princes Highway”).
2 In proceedings 40148 of 2003 the council seeks declarations and orders against the Corporation to restrain it from conducting building work upon 645 Princes Highway, Blakehurst (“645 Princes Highway”) without development approval.
3 Proceedings 40536 of 2002 and proceedings 40148 of 2003 have been heard together. The parties agreed that the evidence is relevant to both matters but the Court will address each proceedings separately below.
Proceedings 40536 of 2002
4 The principal issue in these proceedings concerns a rear lane on land known as 637 to 643 Princes Highway which had provided access to 645 Princes Highway. The premises known as 637 to 643 Princess Highway is situated on the corner of Princes Highway and James Street. Adjacent to the south lies 645 Princes Highway, and adjoining it on the southern side is 647 Princes Highway. Water Street is parallel to James Street and is the next cross street to the south of these properties.
5 As a result of the council’s concerns for traffic safety and the impact of “increased clearway restrictions”, it determined “to provide alternate vehicular access for commercial properties with a frontage to main roads” as evidenced by a letter of the council dated 28 March 1984 to the Leader of the Opposition, Mr Nick Greiner. The council has obtained rights for land to be dedicated to it from each of the owners of the above three properties to create rear lane access, the details of which are set out below.
645 Princes Highway
6 The Corporation is the registered proprietor of 645 Princes Highway. Upon such land is a building comprising a shop on the ground floor, a brothel on the first floor and rooms on the second floor.
7 On 19 December 1995 the council granted approval to the Corporation’s development application No. 191/95 (“DA 191/95”) to alter the second floor of 645 Princes Highway to a residence. Condition 5 of DA 191/95 requires dedication of land to form part of the rear lane access as follows:-
- 5. The dedication to Council of a 6.0 metre wide strip of land across the property offset at 7.0 metres from the rear boundary line for the purposes of the construction of a rear access lane without cost to Council.
8 Condition 10 of DA 191/95 requires provision of a parking area for not less than twelve vehicles. Condition 11 of DA 191/95 provides:-
- 11. The driveway crossing to and from Princes Highway shall be permanently closed off.
It is common ground that if condition 11 of DA 191/95 was implemented, the only means of vehicular access to 645 Princes Highway would be via the proposed rear lane access. Condition 21 of DA 191/95 provides that vehicular access must always be available. In this respect “any structures on or adjacent to the north-western boundary which restrict such access shall be removed permanently at the developer’s expense and to Council’s satisfaction.”
9 The Corporation has not transferred the title to land to be dedicated pursuant to condition 5 of DA 191/95. The evidence establishes that it has been ready, willing and able to do so.
637 to 643 Princes Highway
10 Blakehurst Properties is the owner of 637 to 643 Princes Highway which is comprised of the land contained in lot 1 in deposited plan 740823 (“lot 1”) and lot 2 in deposited plan 740823 (“lot 2”). Lot 2 comprises a strip of land located seven metres from the rear boundary of 637 to 643 Princes Highway. It bisects lot 1. The building on lot 1 comprises commercial premises, the current use of which is a fruit market.
11 On 3 March 1987 a previous owner of 637 to 643 Princes Highway, namely GHA Development Pty Limited (“GHA Development”) transferred lot 2 to the council for the consideration of $1.00. Such transfer was undertaken pursuant to condition 13 of approved development application No. 312/84 (“DA 312/84”) dated 23 January 1985. Condition 13 of DA 312/84 required dedication of land for the rear lane access as follows:-
- 13. The dedication to Council of a 6m wide strip of land located 7m from the rear boundary of the property for the purposes of a public laneway without cost to Council.
12 At a meeting held on 13 February 1989 the council resolved to prepare a draft local environmental plan (“the draft LEP”) and draft development control plan (“the draft DCP”) for the land bounded by the Princes Highway, James Street, Vaughan Street and Water Street, Blakehurst. Such instruments included provisions for the dedication of land to the council for the purpose of creating the proposed rear laneway behind the properties fronting the Princes Highway. The explanatory notes to the draft DCP and draft LEP state:-
Finally, it should be noted that the owners of properties 637-643 Princes Highway and 647 Princes Highway have already dedicated or are in the process of dedicating land to Council for laneway purposes. Additionally, the owners of properties 659-667 Princess Highway have indicated they have no objection to dedicating land for laneway purposes.
13 On 20 June 1994 the council moved that ninety-four parcels of land listed in the Kogarah Council Management Plan dated 12 May 1994 be classified as “operational” land in accordance with Pt 2 of Chapter 6 of the Local Government Act 1993 (“the LG Act”). Lot 2 was included in that list. In the Kogarah Council Management Plan “operational” land is described as land for:-
- …civic functions, carparking, depots, administration buildings, income generation, investment, development, commercial business and other reasons relating to the effective management of Council assets.
14 An internal memorandum of council dated 12 March 2001 recommended that lot 2 be transferred to Blakehurst Properties. The memorandum states that lot 2 was being used as a “de-facto driveway” for 637 to 643 Princes Highway and also for parking by visitors to the neighbouring properties, such as 645 Princes Highway. The memorandum also records that Blakehurst Properties had requested the council to transfer lot 2 to it, to enable it to make improved parking arrangements on its premises.
15 On 15 February 2002 a deed was entered into between the council and Blakehurst Properties (“the Deed”). The Deed recited that the council as the owner of lot 1 had acquired such land for the purpose of providing rear lane access to the commercial properties having a frontage to Princes Highway between James Street and Water Street at Blakehurst. The council was described in the Deed as the registered proprietor of lot 1 and Blakehurst Properties was described as registered proprietor of lot 2. It is to be noted that the references to lot 1 and lot 2 have been erroneously interchanged. The recitals of the Deed state inter alia:-
- The Council has agreed to transfer the Council Land to the Company on the proviso that should the Council Land be required in the future for road purposes it will be transferred back to the Council at no cost.
The operative portion of the Deed relevantly contains the following provision:-
The Council agrees to transfer the Council Land to the Company for a nominal consideration of $1.00.
16 As provided by the Deed lot 2 was transferred by the council to Blakehurst Properties for nominal consideration of $1.00 by transfer number 8626609M dated 16 May 2002. Thereafter Blakehurst Properties constructed a wall on the boundary of 645 Princes Highway to prevent access being obtained by the Corporation via the rear lane.
17 Five months after the transfer, the council’s Urban Planning and Design Working Party prepared a report dated 2 December 2002 to justify the council’s transfer of lot 2 back to Blakehurst Properties. The report states that creation of the laneway was “highly unpopular with adjoining residents”; the redevelopment of the service station on the corner of the Princes Highway and Water Street was unforeseeable and the creation of a laneway through the service station was unfeasible; and the precinct was unlikely to re-develop in the foreseeable future. Accordingly on 9 December 2002 the council resolved “not to proceed with the Draft LEP and Draft DCP and in doing so abandon the idea of creating a laneway within the subject precinct.”
Corporation’s submissions
18 The Corporation claims the resolution of the council of 20 June 1994 to classify lot 2 as “operational” land was beyond its power and that the transfer of such land constituted a breach of cl 6 of Sch 7 of the LG Act. The Corporation maintains that lot 2 is “community” land because it is “land dedicated as a condition of development consent under s 94 of the EP&A Act 1979” (see cl 6(2)(c) of Sch 7 of the LG Act) on 1 July 1993 when the LG Act commenced.
19 Alternatively the Corporation submits that lot 2 was “subject to a trust for a public purpose” within the meaning of cl 6(2)(b) of Sch 7 of the LG Act and is accordingly “community” land. It also submits that s 45 of LG Act deprives the council of power to sell, exchange or otherwise dispose of “community” land and that the sale of lot 2 by council to Blakehurst Properties was therefore unlawful. The Corporation relies upon the decision of the High Court of Australia in Bathurst City Council v PWC Properties Pty Ltd (1998) 195 CLR 566 in support of its submissions.
20 The Corporation further submits that as the result of the purported transfer of lot 2, it is deprived of vehicular access to the rear of its property, thereby resulting in a contravention of condition 11 of DA 191/95.
21 The Corporation submits that the council can exercise its right to require a reconveyance of lot 2 to it from Blakehurst Properties pursuant to the Deed. Alternatively the Corporation submits that the transfer should be set aside. The Corporation claims that the indefeasibility provisions under the Real Property Act 1900 (“the RP Act”) do not prevent the Court from granting relief by requiring a re-conveyance of lot 2 from Blakehurst Properties to the council. The Corporation submits that the decision of the Court in Heavens Door Pty Ltd v Hillpalm Pty Ltd (2001) 116 LGERA 138 applies.
Council’s submissions
22 The council acknowledges that it transferred lot 2 to Blakehurst Properties pursuant to the Deed. The council concedes that if it is found that it erroneously reclassified lot 2 from “community” land to “operational” land, it accepts that it should have used the provisions in Pt 2 of Chapter 6 of the LG Act. Such provisions permit a council to make a local environmental plan to reclassify “community” land to “operational” land: see s 27 of the LG Act. The council submits that a mere failure to do something which is not a mandatory requirement under the LG Act does not constitute a breach of such Act by virtue of s 672 of the LG Act.
23 The council further contends that the ultimate issue for determination is whether the Court has power to rectify the consequences of the council’s actions. The council submits that since the transfer has been registered in favour of Blakehurst Properties, the principle of indefeasibility applies in consequence of s 42 and s 43 of the RP Act. It claims that Heaven’s Door is to be confined to its unique facts and that the principle of indefeasibility as determined by the High Court of Australia in Breskvar and Another v Wall and Others (1971) 126 CLR 376 and as referred to by the New South Wales Court of Appeal in Logue v Shoalhaven Shire Council [1979] 1 NSWLR 537; the Full Court of the Supreme Court of South Australia in Palais Parking Station Pty Ltd v Shea; State of South Australia v Palais Parking Station Pty Ltd; Palais Parking Station Pty Ltd v State of South Australia and the Registrar-General (1980) 24 SASR 425 and of this Court in Murray v Sutherland Shire Council [2001] NSWLEC 206, remains valid.
Findings of proceedings 40536 of 2002
24 Clause 6 of Sch 7 of the LG Act required the council to classify all public land as at 1 July 1993 being the date the LG Act commenced. Clause 6 of Sch 7 of the LG Act relevantly provides:-
- 6 Classification of existing public land
- (1) This clause applies to all public land within a council’s area as at the commencement of Part 2 of Chapter 6 (the relevant commencement ).
- (2) On the relevant commencement, the following land that is vested in or under the control of a council is taken to have been classified as community land:
- (a) land comprising a public reserve,
- (b) land subject to a trust for a public purpose,
- (c) land dedicated as a condition of a development consent under section 94 of the Environmental Planning and Assessment Act 1979 ,
- (3) Within 1 year after the relevant commencement, a council may, by resolution, classify, as community land or operational land, any public land that is vested in it or under its control and that is not classified by subclause (2).
25 Part 2 of Chapter 6 of the LG Act makes provision for local governments to either classify public land as “operational” land or “community” land. The scheme provided by such Act was designed to move “away from the current practice of negative management of land through control and regulation by councils, and encouraging positive land management in accordance with objectives spelt out in plans of management.”: see Local Government Bill, Second Reading Speech, Hansard, Legislative Assembly, 27 November 1992, 10385 at p 10390. The Second Reading Speech explained the difference between “community” land and “operational” land as follows at p 10390:-
Community land must not be sold. There are strict restrictions on the granting by councils of leases and licences of community land. There are no such restrictions on operational land.Community land will ordinarily comprise public parks and reserves. Operational land will ordinarily comprise land held as a temporary asset or investment, or land which a council uses to carry out its functions, for example, the town hall or a works depot.
- Public land may be reclassified by a local environmental plan. A council must arrange a public hearing under section 68 of the EPA Act in respect of a proposal to reclassify community land.
26 In PWC Properties Pty Ltd the High Court of Australia considered the reclassification of land from “community” land to “operational” land pursuant to provisions of the LG Act by Bathurst City Council. The High Court determined that Bathurst City Council had no power to reclassify land pursuant to cl 6(3) of Sch 7 of the LG Act where that land was already held for a public purpose within the meaning of cl 6(2)(b) of Sch 7 of the LG Act.
27 The facts in PWC PropertiesPty Ltd are, for all relevant purposes, similar to the present. A notable difference is that condition 13 of DA 312/84, which provides for the dedication of lot 2, is indicative of a clear intention to constitute the council as a trustee of lot 2: cf PWC PropertiesPty Ltd at p 574. The Privy Council in Brisbane City Council and Myer Shopping Centres Pty Ltd v Attorney-General for Queensland [1979] AC 411 observed at p 421:-
- The relevant intention, if a trust is to be held to be created, must be that the council’s legal ownership of the land is to be held beneficially, in the case of a private trust, for ascertained persons, or in the case of a permanent public trust, for charitable purposes.
The words in condition 13 of DA 312/84 are consistent with an intention to create a trust binding the land in the council’s ownership.
28 The High Court in PWC PropertiesPty Ltd stated at p 586 that the phrase “public purpose” as it appears in cl 6(2)(b) of Sch 7 of the LG Act should not be interpreted narrowly. Therefore the use of the word “trust” in cl 6(2)(b) is “broader than that a trust of a public nature which qualified as a charitable trust within the spirit and intendment” of the Preamble to the Statute of Elizabeth: see PWC PropertiesPty Ltd at p 587. The High Court in PWC PropertiesPty Ltd concluded at p 592:-
- The term “trust” in cl6(2)(b) of Sch 7 is apt to include those governmental responsibilities which, whilst not imposing a trust obligation as understood in private law, may fairly be described as a “statutory trust” which bound the land and controlled what otherwise would have been the freedom of disposition enjoyed by the registered proprietor of an estate in fee simple. The trust was “not a trust for persons but for statutory purposes” (see Fouche v The Superannuation Fund Board (1952) 88 CLR 609 at 640. See also Harmer v Federal Commissioner of Taxation (1991) 173 CLR 264 at 274). It would be no answer to the existence of such a constraint that there was lacking a beneficial owner of the nominated lots with standing in a court of equity to enforce observance by the Council of the dedication of the nominated lots to the provision of parking spaces. It had been within the competence of the Attorney-General to seek to restrain action incompatible with “the due exercise of the powers of the [C]ouncil or the due discharge of its duties” (see Attorney-General v The Council of the City of Parramatta (1949) 49 SR (NSW) 283 at 291).
29 The High Court in PWC PropertiesPty Ltd held at p 587 that the relevant public purpose was as follows:-
- Here, the nominated lots, as part of the car parking site, were conveyed to and held by the council “for” a public purpose, namely the achievement, or at least the advancement ( Clunies-Ross v Commonwealth (1984) 155 CLR 193 at 198), of the town planning purpose which led to the imposition by the council of the conditions upon the granting of the development consent on 21 December 1979. That town planning purpose was the acquisition of land for a public car park to accommodate the increased demand for parking which would be created by the surrounding commercial development, including what became the Payless Plaza Shopping Centre.
The High Court found that the public purpose for which the land had been dedicated still endured when the LG Act commenced operation on 1 July 1993. In these proceedings lot 2 was dedicated to the council for a public purpose, namely the creation of a public laneway.
30 Lot 2 was vested in the council when the Local Government Act 1919 was in force. Section 526 of such Act provided that the council may hold “any real or personal property conveyed, assigned, devised, or bequeathed to it for any charitable purpose.” Lot 2 was subject of a trust pursuant to s 526 of the Local Government Act 1919, in the same way as the subject land was held in PWC Properties Pty Ltd. The High Court in PWC PropertiesPty Ltd said at p 587:-
- It is a fair construction of cl6(2)(b) that it embraced lands held under the authority conferred upon the Council by s526 of the 1919 Act when the new legislation commenced on 1 July 1993.
Accordingly lot 2 is “land subject to a trust for a public purpose” pursuant to cl 6(2)(b) of Sch 7 of the LG Act.
31 The Court also accepts the Corporation’s submission that lot 2 is “land dedicated as a condition of consent under s 94 of the” Environmental Planning and Assessment Act 1979 (“the EP&A Act”) pursuant to cl 6(2)(a) of Sch 7 of the LG Act. Section 94 of the EP&A Act relevantly provides:-
s 94 (1) Subject to subsection (2), if a consent authority is satisfied that a development, the subject of a development application or of an application for a complying development certificate, will or is likely to require the provision of or increase the demand for public amenities and public services within the area, the consent authority may grant consent to that application subject to a condition requiring:
- (a) the dedication of land free of cost, or
- or both.
32 In PWC PropertiesPty Ltd it was held at p 576 that s 94 of the EP&A Act did not apply because the subject consent was granted prior to the commencement of such section. In these proceedings DA 312/84 was approved on 23 January 1985, therefore s 94 of the EP&A Act is applicable. The dedication of lot 2 on 3 March 1987 was made for a public purpose as is evidenced by condition 13 of DA 312/84 (relating to 637 to 643 Princes Highway). Such condition, which is similar to condition 5 of DA 191/95 applying to 645 Princes Highway, requires a “dedication of land free of cost”, the consideration of $1.00 being a nominal value. Accordingly condition 13 of DA 312/84 is a condition made under s 94 of the EP&A Act deeming lot 2 as “community” land pursuant to cl 6(2)(c) of Sch 7 of the LG Act.
33 Section 32(2) of the LG Act enables the council to reclassify land on satisfaction of the criteria specified therein and provides:-
- (2) A council may make such a resolution only if it is satisfied that the land has been found to be unsuitable for the provision, extension or augmentation of public amenities and public services because of any one or more of the following:
- • the size of the land
- • the shape of the land
- • the topography of the land
- • the location of the land
- • the difficulty of providing public access to the land.
34 The Court draws the inference, consistent with the Corporation’s submission, that the council’s resolution of 9 December 2002 only resulted from the institution of this litigation. Such resolution did not address any of the critical matters prescribed by s 32(2) of the LG Act which are essential for a valid resolution to reclassify lot 2. Further the resolution was made five months after the transfer of lot 2 and the resolution clearly had no bearing on the council’s decision to transfer lot 2 to Blakehurst Properties. An internal memorandum of the council’s Urban Planning and Design Working Party dated 2 December 2002 infers that council reviewed the draft LEP and the draft DCP due to this litigation. A paragraph of such memorandum states:-
- The need to raise this matter with Council now stems from legal proceedings presently being conducted over properties in the precinct and this action would benefit from a clear statement regarding Council’s position in relation to the Draft LEP and DCP referred to above. As noted above, Council’s resolution in 1992 left open the opportunity to recommence work on draft Plans.
Accordingly the council’s resolution does not constitute a resolution within s 32(2) of the LG Act.
35 It follows that the 1994 resolution of the council to reclassify lot 2 from “community” land to “operational” land is invalid and that as at the date of the transfer of such land it remained “community” land. The council had “no power to sell, exchange or otherwise dispose of community land” pursuant to s 45 of the LG Act. It follows that the transfer of lot 2 was made in breach of s 45 of the LG Act. Accordingly, the council’s attempted reclassification of lot 2 was invalid.
36 The Court will order the council to take all necessary steps to obtain a reconveyance of lot 2 as provided by the Deed. It is unnecessary to make findings concerning the question of indefeasibility of the title of Blakehurst Properties to lot 2 because its status as “community” land was never validly altered and the Deed makes provision for a re-conveyance to the council. However the Court finds that it would have been prepared to hold that the principle in Heavens Door which was upheld by the Court of Appeal in Hillpalm Pty Ltd v Heaven’s Door Pty Ltd (2002) 55 NSWLR 446 would apply. Such principle established that the fulfilment of a condition of a development consent granted pursuant to the EP&A Act cannot be frustrated by the doctrine of indefeasibility recognised by the provisions of the RP Act. Meagher JA observed in Hillpalm Pty Ltd at p 449:-
- In my view the Environmental Planning and Assessment Act 1979 must take precedence over the system of registration of titles regulated by the Real Property Act 1900. This is not only because it is a later enactment, but also because it partakes more of a public law enactment compared to the Real Property Act’s private law complexion; and also because the almost aggressive wording of s 122 and s 123 display an intention that they are to be of universal force.
37 Although Hillpalm Pty Ltd related to the EP&A Act, these proceedings were brought pursuant to the provisions of s 674 of the LG Act alleging a breach of s 45 of such Act. Section 674 of the LG Act is similar to s 123 of the EP&A Act. Additionally s 122(a) of the EP&A Act is identical to s 672(a) of the LG Act. Accordingly the reasoning of the Court in Heaven’s Door would apply with equal force to the present facts.
Proceedings 40148 of 2003
38 The council seeks a declaration that the Corporation has conducted building work to the second floor of 645 Princes Highway without consent contrary to the provisions of the EP&A Act and Kogarah Local Environmental Plan 1998 (“the Kogarah LEP”). The consent granted pursuant to DA 191/95 permitted alterations and additions to the second floor of 645 Princes Highway subject to conditions.
39 The council claims that building approval has never been obtained as required by condition 2 of DA 191/95 which states:-
- 2. The submission of a Building Application accompanied by complete plans and specifications conforming with the Local Government Act, the Building Code of Australia, and any other relevant Acts and Regulations.
The council seeks orders restraining the Corporation from conducting such work until a development consent and construction certificate have been obtained.
40 Additionally the council submits that work which has been performed on the second level of the building at 645 Princes Highway is so different to that for which consent was granted that it does not constitute work approved by DA 191/95.
41 The Corporation submits that the Kogarah LEP does not apply because DA 191/95 was approved prior to the commencement of the Kogarah LEP. The Corporation claims that the work performed on the second floor of the building is substantially the same as that for which development consent had been granted.
Findings in proceedings 40148 of 2003
42 The evidence establishes that no building approval in satisfaction of condition 2 of DA 191/95 has ever been sought or granted. Accordingly none of the work performed is lawful and the Corporation cannot rely on DA 191/95: see Iron Gates Developments Pty Ltd v Richmond-Evans Environmental Society Inc (1992) 81 LGERA 132; Green v Kogarah Municipal Council (2001) 115 LGERA 231; Zouki v Liverpool City Council (2002) 119 LGERA 424.
43 The Court has also considered the evidence adduced by Mr Paul James Cox, compliance co-ordinator of the council and of Mr John James Forrest, engineer on behalf of the Corporation relating to the work that has been performed in purported fulfilment of DA 191/95.
44 The departures from the approved plans are numerous and significant. For example, contrary to the approved plans a sliding glass wall has been replaced by a solid wall and a sliding door; the dimensions of the living/dining room have been altered; the layout of the bedrooms and bathrooms have been changed; there is no bathroom access from the hallway; the kitchen has been omitted; windows have been in filled; and a laundry has been placed in the position of a bedroom.
45 The configuration of the rooms is such that it would not be suitable for a dwelling for which consent was granted. The Court can readily infer that the building work was carried out for a use associated with the brothel on the first floor of the building, and not for the purpose of a dwelling.
46 The Court accordingly finds that the work, as constructed, is not the same work as that for which DA 191/95 was granted. Accordingly, even if building approval had been obtained, the work which has been carried out is not the work which has been authorised.
47 It is noted in DA 191/95 that it “will lapse 2 years from the date it becomes effective, unless the development to which it refers is commenced by that date.” The consent provided by DA 191/95 has lapsed since no lawful work authorised by such consent has been performed within two years from the date of the consent.
48 It follows that the council is entitled to the declarations and orders sought. The Court has been informed that an application has been made for a building certificate and that until a decision is made by the council, no order for the demolition of the work should be made. Accordingly the Court will grant liberty to the parties to apply following the council’s determination.
Orders
49 The Court makes the following declarations and orders:-
Proceedings 40536 of 2002
1. A declaration that, as at 16 May 2002, lot 2 in deposited plan 740823 being the whole of the land in folio identifier 2/740823 was, within the meaning of cl 6 of Sch 7 of the Local Government Act 1993, land subject to a trust for a public purpose;
2. A declaration that, as at 1 July 1993 and 20 June 1994, lot 2 in deposited plan 740823 being the whole of the land in folio identifier 2/740823 was “community” land within the meaning of the Local Government Act 1993;
3. A declaration that the resolution of the first respondent of 20 June 1994 is invalid in so far as that resolution purported to classify lot 2 in deposited plan 740823 being the whole of the land in folio identifier 2/740823 as “operational” land within the meaning of the Local Government Act 1993;
4. A declaration that the transfer registered No 8626609M of lot 2 in deposited plan 740823 being the whole of the land in folio identifier 2/740823 by the first respondent to the second respondent was made in breach of the provisions of the Local Government Act 1993 and was unlawful;
5 An order that the first respondent do all such things necessary to secure a transfer of lot 2 in deposited plan 740823 being the whole of the land in folio identifier 2/740823 from the second respondent to the first respondent pursuant to the Deed between the first respondent and second respondent dated 15 February 2002 and s 88 of the Conveyancing Act 1919;
6. An order that the second respondent do all such things necessary to secure a transfer of lot 2 in deposited plan 740823 being the whole of the land in folio identifier 2/740823 from the second respondent to the first respondent;
8. An order that the second respondent its servants and agents be restrained from causing any construction work of any kind to be carried out on lot 2 in deposited plan 740823 being the whole of the land in folio identifier 2/740823;7. An order that the second respondent, its servants and agents remove any construction work of any kind from lot 2 in deposited plan 740823 being the whole of the land in folio identifier 2/740823;
9. The first respondent and the second respondent pay the applicant’s costs in such sum as agreed or otherwise assessed in accordance with the regulation made pursuant to the Land and Environment Court Act 1979;
11. The exhibits be returned.10. The Court grants leave to the second respondent to apply for indemnification of its costs by the first respondent;
1. A declaration that the respondent by itself, its servants and agents has carried out or has caused to be carried out or suffered or permitted to be carried out building work to the second floor of the building located on lot 1 in deposited plan 152332 known as 645 Princes Highway, Blakehurst without the consent of the applicant in breach of the Environmental Planning and Assessment Act 1979 and the Kogarah Local Environmental Plan 1998;
2. A declaration that the respondent by itself, its servants and agents has carried out, caused to be carried out or suffered or permitted to be carried out building work on the second floor of the building located on lot 1 in deposited plan 152332 known as 645 Princes Highway, Blakehurst without having obtained a construction certificate in breach of the Environmental Planning and Assessment Act 1979;
4. An order restraining the respondent by itself, its servants and agents from carrying out or causing to be carried out or suffering or permitting to be carried out building works at lot 1 in deposited plan 152332 known as 645 Princes Highway, Blakehurst until such time as a construction certificate has been obtained from the applicant;3. An order restraining the respondent by itself, its servants and agents from carrying out or causing to be carried out or suffering or permitting to be carried out building works at lot 1 in deposited plan 152332 known as 645 Princes Highway, Blakehurst until such time as a development consent has been obtained from the applicant;
5. Leave is granted to the parties to apply for further orders upon two days’ notice;
6. The respondent pay the applicant’s costs including reserved costs of these proceedings in such sum as agreed or otherwise assessed in accordance with the regulation made pursuant to the Land and Environment Court Act 1979.
0
10
7