Hope v Council of the City of Bathurst

[1989] NSWLEC 161

Land and Environment Court

of New South Wales

CITATION:	Hope v Council of the City of Bathurst [1989] NSWLEC 161
PARTIES:	APPLICANT Mr. Hope RESPONDENT Council Of The City Of Bathhurst
FILE NUMBER(S):	20603 of 1985
CORAM:	Stein J
KEY ISSUES:	:-
LEGISLATION CITED:	Local Government Act Land and Environment Court Act Environmental Planning and Assessment Act
CASES CITED:	Howard Hargrave Pty. Ltd. v. Penrith Municipal Council ((1958) 3 LGRA 260 at 263); Doonside Properties Ltd. v. Holroyd Shire Council ((1958) 4 LGRA 337 at 338); Robson v. Wollongong Municipal Council (1934 12 LGR 49); Randwick Municipal Council v. Manousaki (NSW Court of Appeal Unreported 26 September 1988; Randwick Municipal Council v. Crawley 60 LGRA 277; DEK Investments Pty. Ltd. v. Sutherland Shire Council (1955); Ku-ring-gai Municipal Council v. Kuttner (1980) 41 LGRA 1)
DATES OF HEARING:
DATE OF JUDGMENT:	02/17/1989
LEGAL REPRESENTATIVES:

JUDGMENT:

HIS HONOUR: This is an appeal by Mr. Hope pursuant to s.56A of the Land and Environment Court Act against the decision of an Assessor imposing certain conditions on a subdivisional approval under the Local Government Act.

The application has had a somewhat chequered history. The matter was first heard by the Assessor in February 1987 and dismissed in April 1987. Mr. Hope appealed to the Court under s.56A and this appeal was upheld by the Chief Judge and the matter remitted to the Assessor for determination in accordance with the decision of the Court. Subsequently and on 20 April 1988 the Assessor published a decision which granted approval to the subdivision subject to a number of conditions, several of which are challenged by Mr. Hope in the present appeal as beyond power. In granting conditional approval the Assessor also ordered the appeal to be dismissed.

It is agreed by the parties, and indeed is obvious from the reasons for decision and the orders made by the Assessor, that this was a "slip" and the order should have stated that the application was upheld. There is also the necessity for the application of the slip rule to one other matter. In listing the conditions to the subdivisional approval the Assessor omitted to include a number of conditions which were not and are not in dispute. Both parties agree that these should have been included in the order and approval. This is obviously so and I will attempt to cure the omission by making a composite order including all conditions (subject to the determination of the particular conditions in issue in this appeal).

There is a further complication. Some of the conditions the subject of the appellant's Notice of Appeal are now conceded by the Council as being beyond power and may be deleted by consent. That is, subject of course to the Court being satisfied that the conditions are unlawful. These are conditions 3, 4, 5 and 19. The matter arises in this way. On 27 March 1987 the Bathurst Local Environmental Plan 1987 was gazetted. Clause 13 of the LEP provides that subdivision of land requires development consent (under the Environmental Planning and Assessment Act). Apparently the parties did not draw this to the attention of the Assessor who purported to rely on s.333(1A) of the Local Government Act in portions of his Judgment relating to the validity of certain conditions. Development consent under the EPA Act has been required since 27 March 1987, it therefore follows that s.333(1A) of the Local Government Act has no application. I accept this as the situation, and, at the invitation of the parties and with their conse

nt, I will delete the conditions. In doing so I am conscious that Mr. Hope submits that he has another and separate argument as to why the conditions are unlawful. However, in the circumstances, it is unnecessary for me to consider this submission.

The above discourse has at least, accurately I hope, isolated the conditions which are challenged in this appeal as disclosing errors of law. These are conditions Nos. 1, 6, 9, 10 and 16.

Condition 1

This provides as follows:-

"The wall of the existing shed on proposed Lot 2 is to comply with the requirements of Part 16.11 of Ordinance 70 made under the Local Government Act, 1919, as amended, which provides that any part of a wall of the shed which is within three (3) metres of a boundary of the allotment is to have a fire resistance rating of not less than one (1) hour."

It is the submission of Mr. Hope that the condition is not supported by s.333(1) of the Local Government Act. He relies in particular on statements by Sugerman J. in Howard Hargrave Pty. Ltd. v. Penrith Municipal Council ((1958) 3 LGRA 260 at 263), that "s.333 was intended as an exhaustive examination of the matters for consideration". Mr. Davison, on behalf of the respondent, submits that the condition is within power. He submits that one must look to the general condition making power in s.331(2) together with s.333 Local Government Act. Additionally, the Court should have regard to the circumstances of the case and the public interest (s.39(4) Land and Environment Court Act. Mr. Davison also relies on a decision of Sugerman J. decided after Howard Hargrave. In Doonside Properties Ltd. v. Holroyd Shire Council ((1958) 4 LGRA 337 at 338) Sugerman J. stated:-

"The cardinal principle is that the council, in exercising its power under s.331 of the Local Government Act 1919, as amended, is entitled to take into consideration the fact of subdivision itself and such changes as subdivision will produce in the character of the locality, and to impose such conditions as may be reasonably appropriate and necessary in consequence thereof."

Mr. Davison submits that the Assessor found on the facts that it was a direct consequence of the subdivision that an existing shed on Lot 2 could be within 3m of the boundary with Lot 3. This was a consequence of the size and shape of the parcels of land. The Assessor concluded that this could involve the public convenience in the event of fire and therefore imposed the condition. Mr. Davison argues that the presence of the shed on the land and its effect on the subdivision could not be ignored and had to be addressed by the Assessor. The Assessor chose to deal with it by a particular means which he considered appropriate.

It seems to me that when one reads the provisions together (ss.331, 333(1) Local Government Act and s.39 Land and Environment Court Act), and approaches the condition with the cardinal principle expounded by Sugerman J. firmly in mind, one arrives at the conclusion that the condition is supportable as a valid exercise of power and one open to the Assessor on the facts found by him. This is not to introduce new heads of consideration as submitted by the appellant. In my opinion the condition is within power.

Mr. Hope then argues that the condition should not have been imposed because he is thereby deprived of choice as to how to deal with the situation. He relies on Robson v. Wollongong Municipal Council (1934 12 LGR 49). I have some difficulty with this submission. It seems to me that the condition does not seek to deprive the appellant of his choice. For example, he may if he wishes demolish the shed. In that event the condition will become redundant. Alternatively, he could shift the boundary away from the shed or move the shed. Additionally, I fail to see the relevance of whether or not the Assessor considered the shed to be a class 8 building under Ordinance 70. In my opinion this was not a matter which the Assessor needed to determine bearing in mind his assessment of the consequences which might flow from the subdivision. He was obviously concerned with matters of public convenience and safety.

Alternatively, the appellant submits that the imposition of the condition was against the weight of the evidence. However, this does not amount to an error of law, relative weight being a matter for the Assessor, (Randwick Municipal Council v. Manousaki (NSW Court of Appeal Unreported 26 September 1988). It seems to me that the Assessor's conclusion was one which was open to him on the evidence. I also reject the further alternative submission of the appellant that the imposition of the condition was manifestly unreasonable. In my view there was evidence to justify the finding and it cannot be said to be manifestly unreasonable in so far as that may be available as a ground for challenge, (see Randwick Municipal Council v. Crawley 60 LGRA 277)

Condition 6

This condition provides as follows:-

"The subdivider is to provide access strips in the access handle of the hatchet shaped lot in accordance with Council's standards and to the satisfaction of the City Engineer."

The Assessor relied on s.333(1)(d) Local Government Act to support this condition and this is supported by the Council on this appeal. On the other hand the appellant submits that (d) cannot be relied on because it speaks of means of access to each separate parcel and not to means of access within a parcel, i.e., in the hatchet handle. Mr. Hope refers to the decision of Hardie J. in DEK Investments Pty. Ltd. v. Sutherland Shire Council ((1955) 20 LGR 283 at 286). At the same time the appellant seeks to distinguish certain comments by Sugerman J. in Howard Hargrave (infra at p.265) relative to that decision. However, principally the appellant argues that the access in question in the condition is within the parcel of land and sub-para. (d) does not relate to this situation.

The Council submits that the access strip of the battleaxe block is just that - an access strip to the rear block and is therefore within s.333(1)(d) as being a "means of access to each separate parcel". In Mr. Davison's submission subpara. (d) should not be read down and should be given its full meaning. The Council also refers to the Court of Appeal discussion of the meaning of the words "separate parcel" in another context, (Ku-ring-gai Municipal Council v. Kuttner ((1980) 41 LGRA 1)).

In my opinion "separate parcel" where it appears in subpara. (d), and indeed elsewhere in s.331(1), means a piece of land which is physically divided from other parcels of land. Lot 3 of the proposed subdivision is such a "separate parcel" in its entirety and including the access handle. I cannot accept Mr. Davison's submission that in determining the "separate parcel" of land one must ignore the access handle which is part of that parcel, thereby permitting subpara. (d) to operate to permit a condition requiring concrete strips within the access handle to the main portion of the parcel at the end of the handle. I cannot appreciate how the rear portion of Lot 3 can be seen as a "separate parcel" under subpara. (d). It follows, in my view, that the condition is beyond power.

Conditions 9 and 10

The challenges to these conditions may be dealt with together. The conditions imposed are as follows:-

"9. Council will accept a reduced road width of 8m between kerbs provided that the road is paved with 40mm thick hotmix paving and layback kerbs are used.

10. The subdivider is to provide 4.5m wide footpaths, except for the road serving proposed Lot 3 where the footpath is to be 3.6m wide."

Mr. Hope concedes that these conditions were not raised as issues before the Assessor and were therefore not dealt with by him in the decision. Indeed, I can find no reference to the conditions in the Notice of Appeal. Mr. Davison goes further and says that the conditions were never in issue at any time in the proceedings and ought not to be able to be raised as an issue now. As I understand the appellant's attack on the conditions he says that the conditions may be unenforceable, relate to future development and are not appropriate to be imposed at this stage. I do not understand the appellant to submit that the conditions are ultra vires. It seems to me that I should not now allow the conditions to be challenged in this appeal, they being prima facie supportable by the Local Government Act, in particular s.333(1)(d).

Condition 16

Mr. Hope suggests that this condition is ambiguous and now unnecessary. He proposes alternative wording in an effort to "tidy-up" the situation. In my opinion the condition may still have work to do and is unambiguous. It also seems to me that the condition is within power. No error of law has been demonstrated.

The remaining conditions imposed by the Assessor are not in dispute, nor are those conditions accidentally omitted from the Assessor's decision. It is the wish of the parties that I republish the subdivisional approval with all conditions. This seems to be a sensible course to adopt bearing in mind the history of the litigation. The conditions appear to be numbered 1, 9, 10, 13, 14, 16, 21 and 22 from those set forth in the Assessor's Judgment of 20 April 1988 together with previous conditions 7, 8, 12, 17 and 18. I ask that the parties bring in Short Minutes of Order confirming the subdivisional approval and the conditions attaching thereto.

In the result the appeal is upheld in part and it is appropriate in the light of my decision that costs be reserved for argument. The exhibits may be returned.