Janadele Ryman v Shoalhaven City Council - [1999] NSWLEC 89

Land and Environment Court

of New South Wales

CITATION:

Janadele Ryman v Shoalhaven City Council [1999] NSWLEC 89

PARTIES

APPLICANT
Janadele Ryman

RESPONDENT
Shoalhaven City Council

NUMBER:

40010 of 1998

CORAM:

Cowdroy A J

KEY ISSUES:

:- Development consent - lapse of consent - subdivision -substantial commencement - discretionary considerations

LEGISLATION CITED:

Development consent - lapse of consent - subdivision -substantial commencement - discretionary considerations

DATES OF HEARING:

02/01/1999; 02/02/1999; 02/03/1999; 03/08/1999; 03/09/1999; 03/23/1999; 03/24/1999

DATE OF JUDGMENT DELIVERY:

04/16/1999

LEGAL REPRESENTATIVES:

APPLICANT
Mr D P Wilson (Barrister)
SOLICITORS
EnviroLawyers
RESPONDENT
Mr J J Webster (Barrister)
SOLICITORS
Morton & Harris

JUDGMENT:

Facts

1. In these proceedings Janadele Ryman (“the applicant”) seeks a declaration that the subdivision for which Development Approval No. 3758 was granted by Shoalhaven City Council (“the respondent”) on or about 27 June 1974 in respect of Lot 73, 74, 78 and 79 in Deposited Plan 4468 (“the land”) has substantially commenced. The applicant also seeks a declaration that the subdivision approval is valid and she is entitled to proceed with the subdivision of the land.

2. The land is located on the fringe of the township of Berry. Part of the land which was known as the “Dugald Park Estate” was zoned within the township and the remainder was zoned Non-urban (A) and Non-urban (B) pursuant to the provisions of the Shoalhaven Interim Development Order No. 1 (“the IDO”). The IDO was made pursuant to the provisions of s345u contained in PtXIIA of the Local Government Act 1919 (“the Act”).
3. On 17 October 1973 the Council issued subdivision application Certificate No. 3758 to the surveyors, Hagan Associates Pty Limited (“Hagan”), recording payment of interim development fees for a proposed subdivision of 459 lots in respect of lots 73 and 74 in Deposited Plan No. 4468. No mention was made of lots 78 and 79 but it is obvious that they were to be incorporated. Such proposal was not approved. Hagan again wrote to the council on 21 May 1974 seeking approval for a proposal to subdivide the land into 285 residential lots, a medium-density development consisting of 189 dwellings together with 30 strata title dwellings, and concluded:-

We would be pleased if Council would:

1. Approve the proposal for all that part of the plan which conforms with current zoning.
2. Put in hand such zoning amendments as would allow the remainder of the proposal to proceed.
On 27 June 1974 the council wrote to the developer. The introductory paragraphs state:

At a meeting of Council held on the 24th June, 1974 consideration was given to the Subdivision Application submitted by your office seeking Council’s permission to subdivide the above parcel of land.
After carefully considering your application, Council resolved to approve the subdivision subject to the following conditions...

This letter is critical to the applicant’s claim, as it is relied upon as constituting subdivision approval pursuant to PartXII of the Act and interim development consent under Part XIIA thereof. Such letter (“the consent”) contained numerous…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1999] NSWLEC 89
Decision Date: 04/16/1999

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, Janadele Ryman sought to have a declaration that the subdivision of certain land was substantially commenced and that she was entitled to proceed with the subdivision. The Shoalhaven City Council opposed the claim. The court had to determine whether the consent granted by the Council was valid and if the applicant had substantially commenced the development. The court found that the consent granted by the Council was invalid as it was conditional and not final, and therefore not in compliance with the Local Government Act 1919. Additionally, the court found that there was no substantial commencement of the development as the work undertaken was of a preparatory nature and not referable to any approved plans. Therefore, the court dismissed the applicant's claim and declared that there had been no final grant of subdivision approval for the land in question. The court also noted that the circumstances surrounding the application were unusual, and that changes in environmental and planning legislation and zoning of the land would impact any proposed development. Finally, the court ordered that no order for costs would be made unless either party made an application for a contrary order within 14 days of the date of judgment.

Orders