Jacklion Enterprises Pty Ltd v Sutherland Shire Council

[1998] NSWLEC 145

Land and Environment Court

of New South Wales

CITATION:	Jacklion Enterprises Pty Ltd v. Sutherland Shire Council [1998] NSWLEC 145
PARTIES:	APPLICANT Jacklion Enterprises Pty Ltd RESPONDENT Sutherland Shire Council
FILE NUMBER(S):	10602 of 1997
CORAM:	Pearlman J
KEY ISSUES:	:-
LEGISLATION CITED:	36(5) of the Land and Environment Court Act 1979 Environmental Planning and Assessment Act 1979 Conveyancing Act 1919
CASES CITED:	Steelbond (Sydney) Pty Ltd v Marrickville Council (1994) 82 LGERA 192; Connell v Armidale City Council (Pearlman J 25 September 1996 unreported); Herbert v Warringah Council (Sheahan J 3 December 1997 unreported)
DATES OF HEARING:	17/06/98
DATE OF JUDGMENT:	07/08/1998
LEGAL REPRESENTATIVES:	APPLICANT Mr S Flanigan, Barrister RESPONDENT Mr S M Berveling, Solicitor Sutherland Shire Council

JUDGMENT:

A question of law has been referred for determination pursuant to s 36(5) of the Land and Environment Court Act 1979.

The question is as follows:

"Whether the Court has power to consider the application for modification pursuant to section 102 of the Environmental Planning and Assessment Act 1979, of condition 3 in consent dated 5 November 1997 in proceedings 10602 of 1997."

The question of law was raised before Assessor Murrell in the course of the hearing of the s 102 application.

Background

The relevant agreed facts are these:

* The applicant lodged a development application with the council seeking consent for the subdivision into two lots of land described as Lot 1 DP 816599 situated at 1 Turunga Place Bangor ("the land");

* The council refused to grant consent to the development application;

* The Court on 5 November 1997 upheld an appeal and granted development consent, subject to conditions, for subdivision of the land into two lots, lots 11 and 12;

* Condition 3 is in the following terms:

"3 Pursuant to the provision of section 88B of the Conveyancing Act 1919, a restriction on user shall be placed on the title of Lot 12 which maintains that any future dwelling on Lot 12 is to have minimum setbacks from the western boundary of 4.5 m if single storey and 6 m if two storey, other than minor encroachment of up to 500mm of that setback at the south western corner of such future two storey dwelling."

* On 17 December 1997, the council granted building approval subject to conditions for the erection of a two storey dwelling house on lot 12;

* The concrete slab for the dwelling on lot 12 has been constructed, and it is set back 5.16 metres from the western boundary (which is less than the setback specified in the proposed restriction on user);

* On 20 April 1998, the applicant lodged an application under s 102 for modification of condition 3;

* On 21 May 1998, the applicant lodged the plan of subdivision and a s 88B instrument at the Land Titles Office.

The council's case

Mr Berveling, for the council, submitted that the Court is not empowered to grant the modification sought under s 102, because, he claimed, that modification application seeks retrospective consent for works which have already been carried out.

Mr Berveling relied on a line of authority in this Court, principally Steelbond (Sydney) Pty Ltd v Marrickville Council (1994) 82 LGERA 192; Connell v Armidale City Council (Pearlman J 25 September 1996 unreported) and Herbert v Warringah Council (Sheahan J 3 December 1997 unreported), as establishing the proposition that the Court is not empowered to grant retrospective development consent.

The council claims that the development the subject of the development consent, that is, subdivision of the land, has already effectively been carried out by lodgment of the linen plan at the Land Titles Office for registration. The concrete slab has been constructed but not in conformity with the restriction on user contemplated by condition 3. Hence, it is said, the applicant, by its application to modify condition 3 so as to cover the points of non-conformity, in effect seeks a retrospective approval of development which has already been carried out.

The answer to the question of law

Although there was some debate during the hearing about the application and effect of the authorities cited by Mr Berveling, I am content to assume, but only for the purpose of determination of the question of law in this case, that those authorities establish the proposition that there is no power to grant retrospective consent for development already carried out.

But I have concluded that the proposition has no application in this case, because the modification application does not seek to obtain retrospective consent.

The development the subject of the development consent in this case is the subdivision of the land. The modification which is sought has no effect upon the subdivision.

Rather, what is sought to be modified is a condition which is designed to control the impact of the subdivision. The purpose and effect of the condition is to place a restriction on the use of one of the lots created by the subdivision, so that the lot can only be used for a dwelling which conforms with a specified setback. Mr Flanigan, appearing for the applicant, likened condition 3 to a condition which is imposed to control the hours of operation of an activity to which development consent is granted. That analogy is apposite. The development consent in this case permitted the subdivision, but upon the condition that steps be taken to ensure that one of the lots can only be used in a specified manner. Condition 3 is not, as Mr Berveling asserted, an inherent part of the subdivision. It is an important requirement because it is designed to minimise the impact of a dwelling subsequently erected, and the subdivision must be carried out in compliance with it, but the actual development, that is, subdivision, w

ill not be affected by the modification which is sought.

It is true that the erection of the dwelling on lot 12 has been partially completed in a way which would not conform to the restriction on user which is proposed by condition 3, but the erection of the dwelling is not the subject of the development consent. If the Court were to modify condition 3 in the manner sought by the applicant, it would not be granting retrospective approval to the construction of the slab. It would, rather, be modifying the details of a restriction on user which is to be placed upon the title to one of the lots created by the subdivision.

However, there is perhaps an additional reason for holding that the proposition advanced by Mr Berveling does not apply. I do not accept that development for the purpose of subdivision is simply carried out once the linen plan has been lodged for registration. Registration of the linen plan creates the subdivision as a matter of legal title, but physical infrastructure works (such as drainage, services, and vehicular access contemplated by the conditions of consent) are required to complete the development. The council based its case simply upon the lodgment of the linen plan for registration, and I do not know whether or not subdivision works have been completed. The lodgment of the linen plan does not in itself establish that the development has been carried out.

Conclusion

For these reasons, I conclude that the Court is empowered to grant the modification which is sought.

I formally answer the question of law as follows:

Question

Whether the Court has power to consider the application for modification, pursuant to section 102 of the Environmental Planning and Assessment Act 1979, of condition 3 in consent dated 5 November 1997 in proceedings 10602 of 1997?

Answer

Yes.

The hearing should proceed to its conclusion upon the basis of the answer to the question I have given. I grant leave to the parties to approach the Registrar to obtain a date for the resumed hearing.

I make no order as to costs.