John Robinson and Jennifer Robinson v Pittwater Council

[1998] NSWLEC 103

Land and Environment Court

of New South Wales

CITATION:	John Robinson and Jennifer Robinson v. Pittwater Council [1998] NSWLEC 103
PARTIES:	APPLICANT John Robinson and Jennifer Robinson Timothy Moon and Partners Pty Ltd RESPONDENT Pittwater Council
FILE NUMBER(S):	20128 of 1998
CORAM:	Talbot J
KEY ISSUES:	:-
LEGISLATION CITED:	Local Government Act 1993 ss 108, 109, 110, 178
CASES CITED:
DATES OF HEARING:	7 - 11/09/98, 16 - 25/09/98
DATE OF JUDGMENT:	10/22/1998
LEGAL REPRESENTATIVES:	APPLICANT Mr P R Graham QC Abbott Tout RESPONDENT Mr S B Austin QC (7, 8, 9 September) Dr G A Flick SC(16, 17, 24, 25 September) Ms S A Duggan (Barrister) Mallesons Stephen Jaques

JUDGMENT:

The Appeal

1. On 10 July 1998 the respondent council gave notices to the applicants pursuant to s 108 of the Local Government Act 1993 (the LG Act) that an approval of 17 September 1997 for a new residence in the course of construction at 22 Sunrise Road, Palm Beach was revoked. Omitting formal parts, the notices stated:-

Notice of Revocation of Building Approval under Section 108 of the Local Government Act 1993

Notice

Pittwater Council hereby revokes its approval 0974/96 dated 17 September 1997 (the "Approval") in respect of Lot B in DP 110414, known as 22 Sunrise Road, Palm Beach pursuant to section 109(a) of the Local Government Act 1993.

Circumstances of Revocation

The Council revokes the Approval under section 109(a) of the Local Government Act 1993 because the Approval was obtained by misrepresentation. Specifically:

1. The location of the existing dwelling at Lot 140 in DP 11552, known as 20 Sunrise Road, Palm Beach ("20 Sunrise Road") as shown on plans 9202-C1, 9202-C2, 9202-C3 and 9202-C4 dated 17 May 1997 the subject of the Approval (the "Plans"), was not correct;

2. The orientation of the existing dwelling at 20 Sunrise Road as shown on the Plans was not correct;

3. The effect of (1) and (2) is that the loss of views and sight lines from the dwelling at 20 Sunrise Road were misrepresented. The location of the dwelling under the Approval will cause loss of views from 20 Sunrise Road to:

a) Palm Beach/Surf Beach; and

b) Barrenjoey Headland and Barrenjoey Light House,

which views, the Plans misrepresented would be maintained; and

4. The Applicant (or agents on its behalf) represented to the owner of 24 Sunrise Road, Palm Beach that the building application lodged by or on behalf of the applicant which led to the Approval including a living pavilion adjacent to, in line with and not projecting forward of the most easterly aspect of 24 Sunrise Road, Palm Beach when, in fact, the living pavilion which is part of the development the subject of the building application is not adjacent to or in line with the most easterly aspect of 24 Sunrise Road, Palm Beach, but, rather, projects forward of those premises by 1.2 metres, with a consequential loss of view and privacy to 24 Sunrise Road, Palm Beach.

2. The applicants have appealed to the Court in accordance with s 178 of the LG Act.

3. Section 108 gives the council the relevant power to revoke or modify an approval in the circumstances set out in s 109.

4. The circumstances in s 109 relied upon are that the approval was obtained by misrepresentation.

5. By dint of s 110, the council must inform each person who will be disadvantaged by the revocation and give those persons the opportunity of appearing before the council to show cause why the approval should not be revoked.

6. The council is required by 108 to send reasons for the revocation to the Building Services Corporation but only for work which is not presently relevant. Otherwise there is no specific statutory requirement for reasons to be furnished with the actual notice of revocation.

7. The circumstance numbered 4 in the notice dated 10 July did not appear as a reason in an earlier notice issued to the applicants pursuant to s 110.

8. I agree with what Bignold J said in Masterbuilt Pty Ltd v Hornsby Council (1995) 87 LGERA 169 at 175 that there is no requirement in s 108 of the Act for a notice to include the grounds for revocation. Nonetheless on the hearing of an appeal against a notice of revocation it is necessary to establish the existence of one of the relevant circumstances set forth in s 109 of the LG Act in order to support the revocation.

9. In so far as there could be any issue of natural justice, any lack of precise correspondence between the statement of reasons in a notice of proposed revocation given pursuant to s 110 and the circumstances actually relied upon by the council is cured by the opportunity for the appellant to be heard on the appeal against the council's determination under s 108.

10. The council now contends that:-

* the western boundary to No. 22 was wrongly represented in the drawings submitted to council for approval, namely it was represented as being both accurately depicted and located some 560mm further west than was in fact the case;

* it was represented that the eastern most protrusions of Nos 22 and 24 would be in alignment, whereas the fact is that No. 22 is some 1.5m further east than the other lot; and

* it was represented that No. 20 would maintain its views to the north, at least to the extent of the northern end of the beach area and the lighthouse, whereas in fact such views are not maintained.

The Application

11. Plans prepared by architect Timothy Moon of Timothy Moon & Partners Pty Ltd on behalf of the first and second applicants, Mr and Mrs Robinson, were first lodged with the council in support of an application for building approval on 9 December 1996.

12. The plans included a survey of the site prepared by Frank M Mason & Co Pty Ltd. This survey showed the existing house at 22 Sunrise Road and the adjacent grassed areas on its eastern and north eastern sides surrounded by stone walls. The survey indicated a boundary line on the western side of 22 Sunrise Road as the prolongation of the western edge of the existing garages at the front of 20 Sunrise Road.

13. Prior to the lodging the application for approval of the plans, Mr Robinson and Mr Moon discussed an earlier set of plans with John Phillip Daubney. Mr Daubney is an architect and a principal of the company Neydaub Pty Ltd, the owner of the existing residence erected immediately to the south of the Robinson property at No. 20 Sunrise Road, Palm Beach. This first discussion about the plans took place at Nos 20 and 22 in about November 1996. Mrs Daubney and Mrs Robinson were also present. Mr Daubney made it plain that the proposed projection of a study in the south east corner beyond the line of the existing house at No. 22 was unacceptable and that he would like to discuss what was an appropriate distance from the existing residence. Finally, after the discussion, Mr Daubney stated that, if an application was made for the erection of a building that was no further to the east than two metres at the south east corner, he would not object to that application.

14. According to Mr Daubney the two metre point had been established at the November meeting by placing a marking pole on No. 22 at a position where the pole was on a line between the corner of the lounge room at No. 20 and a palm tree on No. 24. That line intersected a point two metres forward of the eastern most point of the southern elevation of the existing dwelling on No. 22.

15. Mr Daubney said he told Mr Robinson the fixing of the two metre point would mean that views of the beach and the sand dunes up behind the beach, including the Barrenjoey Headland, from No. 20 across No. 22 would be retained. Mr Moon maintained in cross examination that the two metre mark was established while Mr and Mrs Daubney stood in various locations within their living area and dining area. There was no fixed point where they stood to assess the two metres.

16. At a further and subsequent meeting in the office of Mr Daubney, a second set of plans was produced to him by Mr Robinson and Mr Moon. These plans showed the new building placed two metres forward of the existing house. Mr Daubney agrees that he indicated at the second meeting that he would not object to the building. The second set of plans produced to Mr Daubney for his inspection were lodged with the council in support of the application for building approval made on 9 December 1996.

17. After considering a copy of the plans exhibited to him by council, Mr Daubney lodged an objection, notwithstanding his previous indication to the contrary. He explained in cross examination, that he had been misled when he saw the plans earlier in that he did not appreciate there was a terrace and a planter box in front of the two metre line.

18. A number of other objections were received by council, including one from the owner of No. 24 Sunrise Road and the owners of properties on the opposite side of Sunrise Road to the west, namely Nos 11, 13 and 15 Sunrise Road.

19. Mr Moon discussed eight issues at a site meeting with council officers, Mark Wysman and Wayne Treble, on 26 February 1997.

20. Faced with rejection of the plans in April 1997, Mr Moon and the Robinsons explored alternative design solutions to address the requirements of Mr and Mrs Robinson and, hopefully, at the same time, to address in a satisfactory manner the council concerns which obviously included some matters raised by the objectors.

21. On 20 May 1997 amended drawings numbered C1 to C6 were lodged with the council. The council forwarded copies of Drawings C4, C5 and C6 to adjoining owners.

22. Drawing C1 included the outline of the existing house at No. 22 transferred by computer from the Mason survey. It also showed the location of the north west part of the timber deck of No. 20 Sunrise Road and the roof line and adjacent eastern terrace of No. 24 taken from the Mason survey.

23. Mr Moon added to Drawing C1 an indication of the location of the north eastern corner of the Daubney living room at No. 20. This was adopted from a shadow study prepared in March 1997 for the purpose of the earlier drawings.

24. Mr Moon stated that the location of the Daubney living room corner on the shadow diagram was a "guesstimate" which was, in his opinion, adequate for the purpose. A copy of the shadow study had been forwarded to Mr Daubney with advice to that effect.

25. The evidence is that the Drawing C1 shows the north eastern corner of the Daubney living area approximately 560mm to the west of its true location. It also shows the orientation of the walls surrounding the living area incorrectly.

26. It is not disputed that the outline of the timber deck outside the living area at No. 20 is shown accurately on Drawing C1.

Consideration of the Application

27. On 29 May 1997 Mr Moon attended a site meeting with Robert Purves, a director of Purfield Investments Pty Ltd the owner of No. 24, and his architect Angela Kent.

28. The issue discussed was the conflict between the desire of the Robinsons to preserve the northern view up the beach from the new lounge pavilion and the threat to privacy by overlooking the Purves property. Mr Moon suggested to Mr Purves that the issue of privacy could be resolved by modifying the planting proposed in the planters to the pool terrace. Mr Purves was pessimistic about the prospect of growing shrubs to an acceptable height in that location.

29. Although Mr Purves gave evidence that Mr Moon said, "We aren't proposing to build out beyond your living area", Mr Moon firmly denied that he made such a statement. However, Mr Moon agrees that he did identify the position of the eastern most point of the proposed lounge for Mr Purves, during the meeting on 29 May 1997.

30. An objection dated 2 June 1997 was forwarded to council by Mr Purves on behalf of Purfield Investments Pty Ltd. His concerns were confined to issues of privacy which he suggested could be resolved by moving the proposed lounge pavilion back in line with the balcony at No. 24 or by extending an existing balcony screen.

31. Mr Daubney drafted a letter dated 3 June 1997 to the council noting that, provided parameters established with the owners and their architect have been maintained in the current proposal, no objection would be raised. He requested the erection, following survey, of location poles to establish the deletion of views that would result. The letter appears not to have reached the council file.

32. On or about 5 June 1997 Mr Daubney carried out an exercise while standing at the north east corner of the wall of the living room at No. 20 in order to establish the possible loss of view as a consequence of the construction of the building proposed in the second set of drawings. He first had a meeting with Mr Wysman at the council office and reviewed all the drawings. Mr Daubney made a tracing of one part of one drawing.

33. He noted Drawing C1 showed the corner point of the lounge of his home at No. 20 together with a point marked by a notation on the drawing which he described as "line of 200m projection existing house". He took the notation to mean two metres forward.

34. He also observed a line running from the corner of his lounge room through that point and across the eastern most point of the proposed dwelling. That was sufficient to satisfy him that the proposal was in accordance with his understanding of the agreement between himself, his wife and Mr and Mrs Robinson. Nonetheless he undertook one further secondary check by scaling from the drawings that point of the balcony through which he believed the line on Drawing C1 passed. He then physically placed a mop stick at that position on the balustrade and sighted from the corner of the lounge room across the palm tree which was the subject of the initial discussion.

35. Shortly thereafter Mr Daubney claims he telephoned Mr Wysman and had a conversation in words to the following effect:-

I said: "Mark, I've checked that from my premises. You're right, the proposal is in accordance with my agreement with the Robinsons. I'm happy that we aren't loosing (sic) a significant amount of our view. We won't be lodging an objection to the proposal."

Mr Wysman said: "Good. I'll note that you have no objection."

36. Mr Moon met with council officers Treble and Wysman at the site on 26 June 1997.

37. They discussed issues relating to privacy, view loss and landscaping.

38. Mr Moon held a staff while standing on the roof of the existing dwelling to enable Messrs Treble and Wysman to assess the potential for view loss from the properties on the western side of Sunrise Road.

39. The council officers were anxious to establish the relationship between the eastern extremity of the three properties Nos 20, 22 and 24. Mr Treble referred to a de facto building line.

40. Steps were taken at the site meeting to establish the eastern most corner of the new residence for the purpose of an assessment of the likely loss of view and privacy by the adjoining properties at Nos 20 and 24.

41. Mr Moon and Mr Wysman consulted Drawing C1. They measured 7.5 metres from the northern retaining wall surrounding the northern most grass terrace and 1.5 metres west of the inside edge of the eastern most wall surrounding the same terrace. The point of intersection established the eastern most point of the proposed lounge pavilion.

42. The point was double checked by Mr Wysman and Mr Moon by measuring the distance from the eastern wall of the existing house.

43. Dr Flick tried to persuade Mr Moon in cross examination that he consciously set about establishing a point for the column of the lounge pavilion as far west as possible and that he either deliberately, erroneously or negligently misread the location of the inside of the terrace wall from Drawing C1. Mr Moon explained, to the Court's satisfaction, that the reason for the check measurement against the house was to obviate any possible error arising from an ambiguity in the plans in respect of the features of the retaining wall.

44. Mr Treble did not become directly involved in the measurements and was vague about his recollection of the steps taken by Mr Wysman with Mr Moon. Mr Wysman was not called to give evidence.

45. If there was an error in the establishment of the eastern most point by Mr Moon and Mr Wysman, the Court can only infer that it was a joint one. Apart from the suggestion regarding the correct location of the inside line of the terrace wall, it has not been disputed that the distances measured by Mr Moon and Mr Wysman were according to the scaled distances shown on Drawing C1.

46. Mr Treble told the Court that by "eyeballing" he established the line of a bay window at No. 24 with the eastern most point established by Mr Moon and Mr Wysman. He was satisfied that the new building would be in line with the southern prolongation of the bay window which comprised the most easterly point of the residence at No. 24.

47. Mr Moon's recollection is that Mr Treble, when asked by Mr Moon whether it was close enough, replied that it was roughly in line. Mr Treble could not agree that he used the word "roughly". The distance between the point where Mr Treble was standing and the southern extremity of the bay window is about twenty five metres.

48. On 3 July 1997 Mr Moon prepared an amended sketch for the planters to the pool terrace and forwarded a copy of that sketch to the council. Subsequently, on about 11 July 1997, Mr Wysman spoke to Mr Moon and suggested, "Purves would probably settle for a 2 metre extension of the screen". The screen referred to is an existing screen covered with bougainvillea which runs in an east-west direction along the southern edge of the balcony on the eastern side of the Purves house.

49. During a telephone conversation with Mr Purves on 14 July 1997, Mr Moon advised him that the Robinsons were not agreeable to the extension of the bougainvillea screen. He suggested that he could modify the planting in the planters on the pool terrace or relocate the additional bougainvillea screen further to the north. Mr Moon offered to prepare a sketch to show what he had in mind. He rejected the suggestion of moving the lounge pavilion back a couple of metres.

50. Mr Purves explained the issue to Mr Moon as being that he did not want to look into the Robinson's lounge room and he did not want them to be able to look back at him.

51. The sketch was forwarded to Mr Purves on 14 July 1997. It showed an outline of the lounge room and terrace on the Purves property and the view line across the front of that property from a sitting position in the proposed lounge room at No. 22.

52. In a letter to Mr Moon, Mr Purves rejected the idea for an alternative screen location and reiterated his suggestion for moving the proposed building further west. He also noted that he had already compromised on the width of the bougainvillea screen by reducing it from three metres to two metres.

53. Mr Moon advised the council by letter on 17 July 1997 that agreement with the adjoining owner of No. 24 Sunrise Road could not be reached. He submitted the two sketches produced to Mr Purves and a photograph demonstrating the position of the line of the two metre extension to the existing screen.

54. The Development Unit of the council considered the application at its meeting on 21 August 1997.

The Approval

55. The determination to grant building approval was made by the Council Development Unit under delegated authority.

56. The Development Unit considered the application at its meeting on 21 August 1997. The Unit was comprised of Mrs Regina Miller, who was Chairperson, two Senior Development Officers, namely Wayne Treble and Sam Renauf, and Development/Services Engineer, Paul Brisby.

57. Mr Purves and Mr Moon addressed the meeting.

58. The architectural plans prepared by Mr Moon and the two sketches which accompanied his letter dated 17 July 1997 were presented to the meeting by Mr Wysman.

59. Mr Wysman prepared a written report which Mr Treble had previously signed off on his behalf. Mr Treble explained in his evidence that he only signed the report in order to facilitate its going forward to the meeting. He understood it to be an expression of Mr Wysman's perception of the facts. The views and recommendations were Mr Wysman's.

60. Apart from Mr Treble, the recollection of what occurred at the meeting by the members of the Development Unit is sketchy and unreliable. However, they all recalled that there was an issue of privacy raised by Mr Purves.

61. Mr Treble told the Court that in his consideration of the application at the Development Unit meeting, it was his understanding that the sketch plan showing the relationship between Nos 22 and 24 submitted to council by Mr Moon under cover of a letter dated 17 July 1997, "clearly indicated and was intended to indicated that both properties ... were in line and would maintain the same easterly projection". He asserted that this understanding was also consistent with his discussions held with Mr Moon on 26 June and at the Development Unit meeting.

62. The minutes of the meeting indicate that Mr Treble moved that the recommendation in the report by Mr Wysman to approve the application be accepted subject to the addition of two conditions. The motion was seconded by Mr Renauf. A decision to accept the recommendation was unanimous.

The Set Out

63. On 21 November 1997 Surveyor Paul Keen was commissioned by the builder to set out, during construction, a dwelling proposed to be constructed on the site.

64. On 19 and 20 December 1997 Mr Keen established the boundaries of No. 22 and proceeded to mark the set out on the site.

65. On 13 January 1998 he was advised by a representative of the applicants that there may be a discrepancy in the position of the western boundary as previously established. He carried out extensive checking work. He was satisfied that the boundaries, as established by him, were correct.

66. He said he explained to Mr Moon that it may involve forcing the proposed building 560mm to the east.

67. Rather than adopting the prolongation of the line of the garage wall at No. 20, as Mr Mason did, Mr Keen set out the building using the correct boundary line.

68. He told the Court that when he was contracted by Mr Moon on 14 January he was aware that the relationship of the set out to the fixed features would change if the relationship to the boundary was changed. He said Mr Moon told him it would not be a problem. Mr Moon explained in cross examination that he considered the change would have insignificant impact. He did not inform any other person about the change at that time because he said he believed they were setting out the building in accordance with the approval, in relation to the boundaries.

The Revocation

69. Mr Daubney visited his home at No 20 on 23 May 1998 and made observations which suggested to him that the dwelling under construction was projecting forward well past the point that he understood had been agreed to and shown on the council approved plans.

70. Within the next two days he spoke in turn to Mr Treble, Mr Moon and Mr Robinson and caused his solicitor to write a letter to the council. At a site meeting with Mr Moon on 27 May Mr Daubney overlaid drawings of his own house with scale drawings of the proposed development. It became clear to him that there was a discrepancy which meant that the point in his premises which he used to establish a sightline in June 1997 was shown some 500mm to the west of where it actually is on the approved architectural plans.

71. In a letter written to council on 27 May 1998 by Neydaub Pty Ltd, the company explained the position as follows:-

We are now satisfied that drawings submitted to Council in support of the amended application for 22 Sunrise Road, Palm Beach, contained fundamental inaccuracies in the representation of the position of this company's premises (that is, 20 Sunrise Road, Palm Beach). The result of those inaccuracies is that the site lines (sic) contained on the drawings fundamentally misrepresent the extent of the interruption of the views and amenities of 20 Sunrise Road, Palm Beach by the proposed dwelling on 22 Sunrise Road, Palm Beach.

In consequence of the foregoing, it appears to us that Council has, when considering the application in respect of 22 Sunrise Road, Palm Beach, had regard to fundamentally inaccurate and misleading information. That, in our submission, goes to the very core of Council's consideration of the application and indeed, the validity of the approval subsequently issued.

72. Following a meeting at the council offices on 3 June 1998 at which Mr and Mrs Robinson, Mr Moon and Mr and Mrs Daubney were present, the Manager Planning and Assessment, Lindsay Dyce, requested Mr Daubney to write a letter formally asking the council to stop the works. The solicitors for Neydaub Pty Ltd wrote a detailed and comprehensive submission to council on 5 June 1998.

73. Notwithstanding a request from Mr Daubney to Mr and Mrs Robinson to stop work, concrete slabs were poured.

74. On or about 10 June 1998 the council issued a notice to the applicant dated 11 June 1998 pursuant to s 110.

75. The council's Legal Services Committee considered the matter and heard submissions from individuals representing the interests of the owners of Nos 20, 22 and 24 Sunrise Road at meetings held on 22 and 29 June and 2 July 1998.

76. On 2 July 1998 the Committee resolved:-

That the Council is satisfied, having heard representation from the parties concerned, that the Building Approval was obtained by misrepresentation and accordingly, that approval be and is hereby revoked under Section 109(a) of the Local Government Act, 1993.

77. On or about 10 July 1998 the council served the Notices of Revocation on the applicants.

The Representation of the Location of the Proposed Building in the Architectural Plans

78. Gregory Crone is an architect who was asked by the applicants to review Drawings C1 to C6 and the survey plan prepared by Frank M Mason & Co in March 1996. In his opinion there is sufficient detail provided on the drawings to locate with a reasonable degree of accuracy the proposed residence and in turn to establish its relationship to structures on the adjoining properties on the northern and southern boundaries. It is clear to him that the proposed residence can be compared in location with the original house and major retaining walls.

79. Given the level of detail on those drawings when comparing the original residence to the proposed residence and with the locations of the adjoining buildings identified, the adjoining owners would, in Mr Crone's opinion, have sufficient information to establish, with a reasonable degree of accuracy, the impact on sightlines or view corridors as a consequence of the erection of the proposed new residence.

80. In particular he said Drawing C1 indicated that the sightline from the north eastern corner of 20 Sunrise Road would pass to the east of the eastern extremities of the study and of the lounge room of the proposed residence and that it would cross the line of the northern retaining wall on the eastern side of the old house marginally to the west of the eastern end of that retaining wall.

81. It is significant to observe that Drawing C1 shows a point which is 2000 mm from the eastern face of the wall of the existing building at No. 22 in an easterly direction. The sightline referred to by Mr Crone runs through this point.

82. The evidence does not establish that Drawing C1 shows any relevant discrepancy between the relationship of the footprint of the existing building at No. 22 and the proposed new residence. The alleged discrepancy in the approved plans relates only to the location of the western boundary established by transmission from the Mason survey onto the architectural plans drawn by Mr Moon.

83. The council has not shown that there was a misrepresentation of any kind in respect of the relationship between the footprint of the existing residence and the eastern grass terraces on the one hand, and the footprint of the new residence on the other hand. This is important because neither the council nor the adjoining residents placed any emphasis on the western part of the building. It is not surprising, given the sensitivity of the site, that the acute focus of the council, the applicants and the neighbours at Nos 20 and 24 was on the eastern aspect of the proposed building and its potential to impact on views and privacy.

84. In the Court's opinion, if the building had been constructed in accordance with the plans, so far as the relationship to the existing residence is concerned, there would be no problems. The owners of Nos 20 and 24 were given every opportunity to, and did, give consideration to the impact on their amenity using that criteria.

85. The question is whether the failure of the applicants' architect to accurately depict the location of the western boundary constituted a relevant misrepresentation for the purposes of ss 108, 109 and 110 of the LG Act. In the absence of any other identifying material in the plans, the accurate location of the boundary could be critical. But that is not the present case. The neighbours and the council, and for that matter any other interested person, were left in no doubt as to where the proposed residence would be constructed by reference to the accurate depiction of the outline of the existing building transposed to the architectural plans from the Mason survey. Any discrepancy between the limited outline of the adjoining houses at Nos 20 and 24 on the approved plans and their actual location relative to the existing residence does not, in the Court's opinion, give rise to a potential misunderstanding or apprehension of such magnitude that amounts to a misrepresentation.

86. The approved plans made a clear representation that the building proposed by the applicants would be erected on the site in the position identified by reference to the features of the built forms already on the site. The capacity to make a relevant and accurate check against that criteria was clearly available. Even though the line of the western boundary was shown incorrectly, the relationship between the line adopted as the boundary by surveyor Mason and the proposed dwelling was consistent with the relationship between that line and the existing dwelling.

87. Following the approval of the plans, all of the checking, assessment and consideration has been rendered futile because the building has not been constructed in accordance with the criteria adopted by Mr Moon from the Mason survey. The relationship to the existing building has been changed.

88. When the correct location of the western boundary of No. 22 was established for the first time in January 1998, the position of the new residence was thereupon physically changed in its relationship to the existing landmarks by the decision to set it out further towards the east to accommodate the discrepancy arising from the erroneous assumption made by Mr Mason.

89. Although the architectural plans showed the assumed western boundary line, it was never asserted that it was correctly shown. The Mason survey contained an express statement to the effect that the boundary had not been established by accurate survey. A copy of that original survey was lodged with the council. The architect was entitled to assume that the information on the survey plan could be relied upon within the terms of the disclaimer.

90. The change to the location of the boundary made no difference to the actual location of the existing residence and its relationship to the adjoining houses. That relationship remained constant irrespective of the misunderstanding in regard to the western boundary of the land.

91. The nexus between the existing residence and the proposed new dwelling was not broken until the architect Mr Moon made the decision to adopt the actual boundary line at the western extremity. That decision effectively moved the whole development eastward. Until that moment the plans showed that the new building would be in a particular location which could be readily established and verified. The relationship between the new building and the line shown as the western boundary on the plans was correct and consistent with the relationship between the existing building and the proposal.

92. The adoption of the correct boundary line did not of itself mean the location of the new building had to be changed in any material respect. It may have had the consequence that the location of the building needed to be changed to enable construction to take place within the boundaries of the site. If that proved to be necessary then it could follow that the building might have to be moved to accommodate the constraints imposed by the correct boundaries. Any movement in that respect may have demanded a new application for approval or an application for amendment to the approval already given. Neither application was made.

93. The subsequent decision to build in a location that accommodated the correct boundary line is distinct from an alleged misrepresentation in the plans that the building would be built at a particular location.

94. Any common sense reading of the plans submitted to the council discloses an intention to build a building that would be confined by its relationship to the existing building on the site and the structures on the adjoining land to the north and south. Mr Daubney, Mr Treble, Mr Purves, Mr Moon and presumably Mr Wysman all accepted that as the position. None of them contemplated at the time the plans were under consideration that the new building would be built in a location dictated by a western boundary in a different location to the one assumed by Mr Mason. None of them contemplated that the building would be constructed anywhere except at the physical location established by reference to the features of the existing building and other structures already on the site.

95. In the circumstances the representation by the applicants was that they intended to construct a new dwelling in the location assumed to be correct by Mr Treble, Mr Wysman, Mr Purves and Mr Daubney. There is not the slightest inference to be drawn, let alone any direct evidence that, during the period up to the date of approval of the plans, Mr Moon, or his principals Mr and Mrs Robinson, ever intended that the building proposed would be built other than as disclosed on the plans by reference to the existing built forms.

96. The incorrect depiction of the western boundary takes the argument no further because its location was not a material or relevant factor. It only became relevant when the Keen survey disclosed the error. Its relevance then was related to whether or not the plans should be amended and re-submitted to council. The decision made to relocate the building in January 1998 cannot be related back to the middle of 1997 in order to constitute a misrepresentation made to any person at that earlier time. The approval of the plans was not obtained as a consequence of the decision made in January 1998.

The Representation made by the Moon Sketches

97. Although the Notice of Revocation does not contain any reference to an alleged misrepresentation made by the presentation of the sketches by Mr Moon, it is part of the council's case that the approval was obtained relying upon the alignment shown between the eastern most point of the bay window at No. 24 with the eastern most prolongation of the proposed building as depicted in the second sketch.

98. The purpose of the sketches prepared by Mr Moon was to address the privacy issues raised by Mr Purves. The first sketch purported to illustrate the effect of proposed plantings in the subject property. The second sketch was intended as a demonstration of claimed benefits which might accrue from adjustments to a vegetative screen on the Purves property.

99. The sketches were not dimensioned in any relevant way. They were presented as what they were, namely hand drawn sketches.

100. If Mr Treble used the second sketch for the purpose of checking the alignment of the two adjoining buildings, he exaggerated the worth of a sketch for that purpose. The Court accepts that Mr Treble may have gained some comfort for his appreciation of the proposed alignment from the second sketch but he was not entitled to rely on it as confirmation.

101. No person with the extent of experience in the assessment and appraisal of architectural plans held by Mr Treble as a Senior Development Officer should regard the second sketch as a representation of anything except the level of screening proposed by the applicant's architect. The sketch must be seen in the context of the previous site inspections and personal discussions between council officers, the respective property owners and their representatives.

102. The rough outline of the eastern section of the house at No. 24, including the bay window, reflected the understanding reached by Mr Treble following the establishment of the eastern most point of the proposed building by Mr Moon and Mr Wysman on 26 June 1997. However, the Court rejects the invitation by the respondent to take the matter further and to adopt Mr Treble's evidence that he was entitled to rely on the sketch for the purpose of verifying the alignment between the two buildings. When Mr Treble nevertheless fell into error by relying on the depiction in the sketch, it was not as a consequence of anything represented to him by Mr Moon.

103. Mr Purves conceded that loss of view was never an issue for him. There can be no suggestion that Mr Purves took into account the alignment between the buildings shown on the second sketch. The question of whether he relied on oral statements which he claims Mr Moon made to him is a different issue which will be dealt with separately.

The Representation of the Location of the Daubney Living Area in the Architectural Plans

104. The evidence suggests that Mr Daubney scaled the point on his balcony where the sight line shown on Drawing C1 crossed the railing. He then lined that point up with the corner of his lounge room. He did not attempt to relate those two points to the point which was two metres out from the existing building as shown on the plan. If he had attempted to line up the three points, it would have become apparent that there was a discrepancy.

105. Reference to the two metre mark and the scaled distance from the column on the balcony rail would have established the line of sight to Barrenjoey Headland through the eastern most point of the proposed lounge pavilion. Adopting the corner of his living room as the reference point had the physical effect of moving the path of the sightline across No. 22 further to the west, thereby opening up a wider view of the Barrenjoey Headland in the direction of the light house than was, in reality, the case.

106. The incorrect location of the living room at No. 20 accounted for Mr Daubney's error. The question is whether the erroneous placement of the living room corner on Drawing C1 was relevantly a misrepresentation for the purposes of s 109. For reasons I will explain, the Court does not agree that there was a misrepresentation in this respect.

The Alleged Oral Representation made to Robert Purves

107. The Court is required to choose between the recollection of Mr Purves that he was told by Mr Moon there was no proposal to build out beyond his living area at No. 24 and Mr Moon's emphatic denial that he made such a statement. In this respect the unexplained failure to call Angela Kent who was present at the meeting, and possibly Mr Wysman, leads to an inference that their evidence would not have been helpful to the respondent's case.

108. Even if Mr Moon did make the statement, the Court is not persuaded that such a representation enabled the applicants to obtain the approval.

109. Mr Moon gave a physical demonstration of where the eastern most point of the proposed building would be located to enable Mr Purves to make his own observation and assessment.

110. In cross examination Mr Purves agreed that the only issue at the time the application was considered was privacy. He is satisfied now there will be no loss of view that he would wish to maintain caused by the completion of the building off the existing slab.

111. The issue of privacy was fully canvassed as a consequence of the objection and submissions made by Mr Purves. The approval was granted notwithstanding the objection.

112. Although Mr Purves was reluctant to accept the proposition that he was persuaded by Mr and Mrs Daubney to join in their protest to council, he was not sufficiently concerned to arrange for any legal representation until after the meeting on 29 June 1998. Thereafter his company was represented by the same solicitors and counsel retained by Neydaub Pty Ltd. His company and Neydaub Pty Ltd are meeting the fees for senior counsel at this hearing. Until he joined forces with the Daubneys, he felt that, up to that stage, there was nothing he could do.

113. Mr Purves was well aware of the subject matter being discussed on 29 June 1998 and expected the decision would be made that day. The Court is satisfied that at that time his outrage did not extend to a committed belief that the building approval should be revoked on the ground that it had been obtained by any misrepresentation made to him.

114. In the whole of the circumstances it is reasonable to draw the inference that Mr Purves was persuaded by Mr or Mrs Daubney, or both of them, to join in their submission to council. If he had not been approached, he would not have taken the matter further on behalf of Purfield Investments Pty Ltd.

Was there a Misrepresentation within the Meaning of s 109?

115. The meaning of the word "misrepresentation" in its ordinary sense is simply a representation that is untrue. A representation generally refers to a statement or an assertion made in regard to some matter or circumstance. The state of mind or the degree of carelessness on the part of the representor are not relevant, except to determine the type of misrepresentation.

116. No distinction is drawn in s 109 between one type of misrepresentation and any other type of misrepresentation.

117. Accordingly the concept of wilful falsehood or intent is not necessarily imparted. The misrepresentation therefore may be innocent. The separate reference in s 109(1)(a) to "fraud" and "concealment of facts", which respectively involve a mental element, reinforces that conclusion.

118. However a misrepresentation will not always occur each time there is an error or a mistake. In order to determine whether there is misrepresentation by a mistake or error in a plan or set of drawings, it will, in general, be necessary to look at the whole of the plan or the complete set of drawings to determine whether the effect is to mislead. Where there are other criteria presented by the plan or the drawings, then reference to that criteria could negate the prospect of a relevant misrepresentation occurring.

119. For example, in the context of the present case although the western boundary of No. 22 was wrongly identified, the proposed location of the new residence could be checked against the physical features of the existing house and terraces. This was done by Mr Moon and Mr Wysman and even to an extent by Mr Treble. Demonstrations made to Mr and Mrs Daubney and Mr Purves by council officers and Mr Moon were all based upon the proposed relationship to the existing house and terraces.

120. Further, notwithstanding that the location of the eastern point of the living room at No. 20 was inaccurate, the projection of the so called sightline shown on Drawing C1 could be checked by reference to other identified physical features at Nos 20 and 22 as well as the line of projection 2000mm forward of the existing house. The latter point was specifically established and marked on the drawing in response to Mr Daubney's reaction to the earlier submission. If Mr Daubney had used a third reference point, it would have become apparent that the line he established using a mop stick did not represent the true line of the sightline shown on Drawing C1.

121. The relevant information provided to council by the plans and drawings, including the Mason survey, was sufficient to enable the formation of a proper understanding of where the proposed residence would be built and in particular its most easterly projection.

122. The decision in January 1998 to move the set out of the building further towards the east is not consistent with the approved plans.

123. The proposed building was depicted in the approved plans according to its proper relationship with:

1. The existing house;

2. The line which is the prolongation of the garage wall at No. 20 which was assumed to be the western boundary;

3. The identified outline of the external extremities of the Daubney house at No. 20; and

4. The marked extremities of the Purves house at No. 24 (which did not include the bay window).

124. The Court has not been satisfied that the approval was obtained by the misrepresentation or error in respect of the wrong location of the western boundary of No. 22.

125. There was no misrepresentation that the buildings at Nos 22 and 24 would be in alignment and which led to approval being obtained. Mr Treble made his own assessment and assumed that was the case, whereas Mr Purves did not rely on the fact for any relevant purpose.

126. The criteria for assessing the retention of views from No. 20 to the Barrenjoey Headland, including the lighthouse, was set by Mr Daubney by reference to the two metre prolongation from the eastern most point of the southern elevation of the existing dwelling. This criteria was respected in the approved plans. Furthermore, there is no reference on the drawings to any point of view beyond the site.

127. Lindsay Dyce the Manager for Planning and Assessment employed by council is a surveyor who has attempted to identify the various points in contention by overlaying the relevant information taken from an independent survey conducted for council by surveyors Hill and Blume. Mr Dyce has superimposed on the overlay a line which is the southern prolongation of the line of the bay window at No. 24. He also attempted to estimate the southern prolongation of the line of the bay window developed from the second sketch submitted by Mr Moon in July 1997. The overlay confirms that the adjustment for the western boundary has taken the building approximately 560mm east of the point shown as the eastern extremity of the lounge pavilion on the approved plans.

128. The "eyeball" exercise by Mr Treble was not an accurate determination and cannot be accepted as determinative of any issue in these proceedings in respect of an alleged misrepresentation.

129. The Court has been satisfied by the work and evidence of Mr Dyce that the building under construction is 560mm forward of the location shown on the approved plans in an easterly direction. However, there was no representation on the plans that it would be built at that forward point for the reasons already given.

130. In summary, none of the alleged misrepresentations relied upon by the council in either of the Notices issued pursuant to s 110 or s 108 or in these proceedings have been made out.

131. The applicants are entitled to have the Notices of Revocation cancelled as the grounds for the decision to revoke have not been sustained.

Orders

1. Appeal upheld.

2. Instruments by way of Notice of Revocation of approval under s 108 of the Local Government Act 1993 dated 10 July 1998 addressed to the applicants by the respondent are cancelled pursuant to s 178 of the Local Government Act 1993.

3. The exhibits may be returned.