Griffin v Hurstville City Council

[2003] NSWLEC 355

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Land and Environment Court

of New South Wales

CITATION:	Griffin v Hurstville City Council [2003] NSWLEC 355
PARTIES:	APPLICANT John Griffin RESPONDENT Hurstville City Council
FILE NUMBER(S):	10850 of 2003
CORAM:	Pain J
KEY ISSUES:	Question of Law :- whether development consent permits erection of light-coloured colorbond roof
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 s 121B Environmental Planning and Assessment Regulation 2000 cl 145, cl 161
CASES CITED:
DATES OF HEARING:	27/08/2003
EX TEMPORE JUDGMENT DATE :	08/27/2003
LEGAL REPRESENTATIVES:	APPLICANT Mr C Newport (barrister) SOLICITORS Dan Simpson & Associates RESPONDENT Mr P Rigg (solicitor) SOLICITORS Deacons

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

10850 of 2003

Pain J

27 August 2003
JOHN GRIFFIN
Applicant
v
HURSTVILLE CITY COUNCIL
Respondent
Judgment
1. The Applicant is appealing against an order issued by the Council pursuant to s 121B of the Environmental Planning and Assessment Act 1979 (the EP&A Act). The order requires compliance with a development consent issued by the Council to the Applicant. A preliminary point of law has arisen concerning the construction of the development consent as follows:
Whether the terms of development consent 20010742 endorsed by the Council on 11 February 2002, empower the erection of a light - coloured colorbond roof.


2. The key issue to be determined is whether the tiled roof specified in the plans referred to in condition 2 in the development consent can be amended by condition 18 of the development consent. I note the parties handed up an agreed statement of facts as follows:
1. On 30 January 2002 (bearing a date of endorsement dated 11 February 2002) Hurstville City Council ("the Council") determined Development Application 200 10 742 a Mixed Commercial/Residential Development comprising 10 x 2 bedroom units and 1 shop premises at Lot 1 - 3 Section 2 DP 3181, nos 53 - 55 Morts Road, Mortdale ("the subject premises") by grant of conditional development consent ("the Consent").

2. Relevantly Conditions 2 and 18 of the Consent provide:


"2. Approved plans - the development shall be implemented in accordance with the details set out on the application form, supporting information received with the application and the schedule of plans and details below except as amended by the conditions of consent.
…

"18. Building Materials - All building materials shall be compatible in colour and texture throughout the whole project and materials and colours shall accord with a schedule to be submitted with the Construction Certificate."

3. On 8 July 2002 a Construction Certificate was issued by a private certifier Paul Gearin of INSPECT showing a metal deck roof.

4. Thereafter the development was constructed in accordance with a Construction Certificate with a metal deck being a light colour bond roof.

5. On 27 June 2003 the Council served an order pursuant to s 121B EPA Act and an Order in terms of Item 15 requiring compliance with the terms of the Order being:

"1. Comply with development consent by the provision of a tile roof as indicated on the approved plans attached to Consent 20010742, endorsed by the Council on 11 February 2002."


3. I also note that I was requested to make an assumption by both parties that the plans in question do show a tiled roof, the assumption being necessary because neither party have been able to access the plans at the Council and check that fact. I have indicated that I am prepared to proceed on the basis of that assumption.

4. The Applicant’s counsel argues that condition 2 allows for the modification of the consent by the conditions in the consent which it clearly does, given its wording.

5. Condition 18, it was argued by the Applicant, should be interpreted as allowing the amendment of the plans referred to in condition 2 by the schedule of building materials in the construction certificate referred to in condition 18. In this case the amendment was to allow a metal Colorbond roof rather than a tile roof, as the plans referred to in condition 2 had provided for. Council opposed this interpretation of the development consent.

6. I do not accept the Applicant’s submission that the consent operates in this way. Condition 18 is simply not worded to enable it to be interpreted as allowing a modification to the plans referred to in condition 2. The Applicant’s counsel argued condition 18 was not limited only to the colour and texture of building materials, but was also directed to the actual materials to be used with the proviso that such building material be compatible in colour and texture throughout the project. I think this interpretation of condition 18 is not open on its face. It is clearly directed to ensuring the compatibility of the colour and texture of building materials throughout the project only, not of the actual nature of the building materials to be used in the project. It does not provide for amendment of the building materials referred to in the plans in the schedule to condition 2.

7. Condition 18 cannot be used as a basis for arguing the construction certificate may specify building materials different to those specified in the plans referred to in condition 2. I do not think such an interpretation reads down the scope of condition 18 as the Applicant’s counsel submitted.

8. While I heard some argument on the scope of construction certificates pursuant to cl 145 of the Environmental Planning and Assessment Regulation 2000 (the EP&A Regulation) which provide that construction certificates must not be issued unless the certifying authority is satisfied "that the design and construction of the building … are not inconsistent with the development consent" . I do not need to consider the application on this clause as it seems to me the consent is clear. The more general question of the scope of the construction certificate to amend the development consent does not arise for determination here either.

9. The Applicant also sought to rely on cl 161 of the EP&A Regulation which specifies those matters about which the certifying authority can be satisfied. These include the external finish of the building. The Applicant is not assisted by the application of that clause in this case because I consider the development consent does not allow the construction certificate to amend the plans referred to in condition 2 as the Applicant has argued that it can.

10. The question posed must therefore be answered no. The terms of the development consent 20010742 endorsed by the Council on 11 February 2002 do not empower the Applicant to erect a light - coloured Colorbond roof.

Orders
11. The Court makes the following orders:
1. The question of costs is reserved.
2. Exhibit A may be returned, exhibit B to remain on the Court’s file.
3. This appeal (matter no. 02/10850) and matter no. 03/10982 are to be heard together.
4. Both matters are returnable before the Registrar on 3 September 2003.
5. The callover on 25 September 2003 (in matter no 03/10982) before the Registrar is vacated.