Jolly v District Council of Yankalilla - [2006] SASC 53

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
JOLLY v DISTRICT COUNCIL OF YANKALILLA
Judgment of The Full Court
(The Honourable Justice Perry, The Honourable Justice Sulan and The Honourable Justice Layton)
2 March 2006
LOCAL GOVERNMENT - TOWN PLANNING
Building work extensions undertaken to a shack without provisional development plan consent - application for consent lodged by the occupier of the shack after enforcement notice issued by Council - relying on a Land Management Agreement prohibiting the erection of a second storey, Council held that given that it was not prepared to waive the relevant provisions of the Land Management Agreement, the proposed development was hypothetical and consent should be refused - the Council's decision was upheld on appeal to the Environment, Resources and Development Court - held on further appeal to the Supreme Court, that the proposed development could not properly be described as hypothetical - furthermore, a second storey having previously been erected pursuant to a valid planning consent, the clause of the Land Management Agreeement prohibiting the erection of a second storey had become irrelevant - observations as to whether the Land Management Agreement was a valid agreement under the Development Act 1993, and whether the appellant, who was not the owner of the shack, was bound by it - appeal allowed and matter remitted to the Environment, Resources and Development Court for reconsideration in accordance with the decision of the Supreme Court.
Development Act 1993 s 57, s 83 and s 84, referred to.
Hackney Hotel Pty Ltd v Corporation of the Town of St Peters, Bleechmore & Ors (1983) 32 SASR 145; Tarca and Anor v Hambrook and Anor (1995) 86 LGERA 56, considered.

JOLLY v DISTRICT COUNCIL OF YANKALILLA
[2006] SASC 53
Full Court: Perry, Sulan and Layton JJ

PERRY J. This is an appeal from the judgment of a single judge of the Environment Resources and Development Court (“the ERD Court”) which in turn dismissed an appeal to that court from the decision of the respondent, District Council of Yankalilla (“the Council”) to refuse Provisional Development Plan consent to a development application made to it by the appellant.
Background
The appellant is the occupier of a shack situated at Lady Bay, Normanville, in the District Council area of Yankalilla. The shack is one of a group of 21 shack sites situated on the foreshore.
At one time the shack sites were owned by the Council. Mr Jolly and other occupiers of the shacks enjoyed rights of occupation pursuant to licences granted by the Council.
In about 1998, the occupiers of the shacks were instrumental in incorporating a company, Lady Bay Shores Pty Ltd (“Lady Bay Shores”). Their object was to create an entity to purchase from the Council the land upon which the shacks stood.
The purchase proceeded, and Lady Bay Shores became the owner of the land.
Each occupier of the shacks took up a parcel of shares in the company. Pursuant to the memorandum and articles of the company and by virtue of his or her shareholding, each shareholder was entitled to the exclusive use and occupation of a designated shack, together with the right to use the common property.
Ahead of settlement of the purchase by Lady Bay Shores of the land, by a deed made on 16 October 1998 described as a “Land Management Agreement” (“the LMA”), Lady Bay Shores and the Council agreed upon the terms of a scheme for the management of the land, to take effect as and from the settlement date.
I refer later to particular terms of the LMA and the statutory provisions pursuant to which it was noted on the title to the land.
On 19 September 2001, the appellant applied to the Council for approval for a proposed development taking the form of extensions to the shack occupied by him and his wife.[1] The proposed extensions included adding a second storey to the shack, which was at that time single-storey only.
[1] Development Application No 260:068:02.
On 25 January 2002, the Council granted consent to the proposed development, including the erection of the additional storey. The consent was expressed to be subject to conditions, part of which read as follows:
1.Development shall proceed in accordance with the plans and written documentation accompanying the application …
Following the grant of consent, the appellant undertook building work on the shack, including the erection of a second storey.
By letter of 27 August 2003, the Assistant Building Surveyor of the Council wrote to the appellant and Mrs Jolly as follows:
Re: Enforcement Notice: Lot 6, Lady Bay Shores, Normanville
On a recent inspection of the above building site it was noted that work had been undertaken that had not been granted Provisional Development Plan Consent or Final Development Approval. The variations to the original approved plans have not been granted full development approval.
The work undertaken without Approval is as listed with the attached enforcement notice.
Enclosed are copies of submitted and approved original Council altered plans (Private Certifier).
Should you require any further information please contact the undersigned.
Insofar as the letter refers to an “attached enforcement notice”, this was a notice issued pursuant to s 84 of the Development Act 1993 (“the Act”). Attached to the enforcement notice was a table which set out, inter alia, the difference between the works described in the Provisional Development Plan consent and what had actually been built on site.
Deviations from the approved plans included an additional dormer window, a change in the style of the roof above several dormer windows shown on the east elevation, the insertion of windows in the north elevation where none were included in the approved plan, and an enlargement of the balcony.
The enforcement notice directed Mr and Mrs Jolly to:
Cease all building work and undertake removal of altered construction back to approved Provisional Development Plan consent dated 22 November 2001.
After receiving the enforcement notice, the appellant contacted the Council. Subsequently, by letter of 29 August 2003, the Assistant Building Surveyor wrote to Mr and Mrs Jolly as follows:
Further to our phone contact on 29 August, 2003, I advise that you will be required to submit an application to Council for the amended building construction, to enable Council to assess the variations to the original approval.
In response to that letter, on 19 September 2003 the appellant made a further application for development approval.[2] Effectively, the application sought development approval for all of the variations which by then had been carried out to the works the subject of the previous Development Plan consent.
[2] Development Application No 260/104/04. Strictly, the application fell to be dealt with as an application to vary a development authorisation previously given: see s 39(6). As such, it was to be treated as a new application for development authorisation: see s 39(7).
By notice dated 27 January 2005, the Council notified the appellant that it had on 20 January 2005 refused consent to the proposed development.
The notice described the nature of the proposed development as “the addition of a second storey extension to a dwelling”. That was, of course, a misdescription of the application.
The notice was enclosed with a letter of the same date over the signature of Mr Brian Irvine, the Senior Planner of the Council, addressed to the appellant. The letter is as follows:
Re Site 6, Lady Bay Shores – Second Storey Extension
I write in respect to the extensions to your dwelling at site 6 at Lady Bay Shores and applications 260/104/04 and 260/551/04.
With respect to applications 260/104/04 and 260/551/04, I advise that Council has refused to waive compliance with clause 3.2(d) of the Land Management Agreement. This clause states “Any development relating to the land shall only allow or create buildings of a single storey”. Furthermore, the registered proprietor of the subject land, Lady Bay Shores P/L, has refused to consent to the applications. The applications are therefore purely hypothetical and as a consequence the Council has refused to process the applications further. Copies of the refusals are attached.
With respect to the work that has been undertaken, you would be aware that Council and Lady Bay Shores Pty Ltd have entered into a Land Management Agreement (LMA) controlling development over the land. A copy of the LMA which is registered at the Lands Titles Office is enclosed. I draw your attention to clause 3.2(d) which requires all buildings to be single storey. Council has not waived compliance with this provision and you are required to convert your dwelling back to single storey from two storey on or before 28th February 2005. Failure to comply with the requirements of the LMA may result in Council instituting proceedings against you in Court. In addition work has been undertaken on your dwelling without approval under the Development Act which is a separate control and procedure to that of the LMA. That unauthorized work must also be removed or rectified by the 28/2/05. Your cooperation in this matter would be appreciated.
If there are any matters requiring clarification, please contact me.
The appellant appealed to the ERD Court against the refusal of consent.
On 24 August 2005, a single judge of the ERD Court made an order dismissing the appeal.
It is from that order that the appellant now appeals to the Full Court.[3]
[3] See Environment, Resources and Development Court Act 1993 s 30.
In the decision of the Council refusing consent, in the reasons for judgment of the ERD Court dismissing the appeal to that court, and in the appeal to this Court, attention focused upon the LMA and the effect to be given to it.
It is convenient at this stage to deal with the LMA.
The Land Management Agreement
Specific provisions relating to Land Management Agreements in general appear in Part 5 of the Act, more particularly s 57.
Relevantly, the section provides as follows:
Part 5 – Land management agreements
57 – Land management agreements
(1)…
(2)A council may enter into an agreement relating to the development, management, preservation or conservation of land within the area of the council with the owner of the land.
(2a)The Minister or a council must, in considering whether to enter into an agreement under this section which relates to the development of land and, if such an agreement is to be entered into, in considering the terms of the agreement, have regard to-
(a) the provisions of the appropriate Development Plan and to any relevant development authorisation under this Act; and
(b) the principle that the entering into of an agreement under this section by the Minister or a council should not be used as a substitute to proceeding with an amendment to a Development Plan under this Act.
(2b)Agreements entered into under this section after the commencement of this subsection must be registered in accordance with the regulations (and any such agreement will have no force or effect unless or until it is so registered).
(2c)A register must be kept available for public inspection (without charge) in accordance with the regulations.
(2d)…
(2e)…
(3)…
(3a)…
(3b)…
(4)An owner of land must not enter into an agreement under this section unless all other persons with a legal interest in the land consent.
(5)The Registrar-General must, on an application of a party to an agreement made for the purposes of this section, note the agreement against the relevant instrument of title or, in the case of land not under the provisions of the Real Property Act 1886, against the land.
(6)An agreement under this section has no force or effect under this Act until a note is made under subsection (5).
(7)Where a note has been entered under subsection (5), the agreement is binding on the current owner of the land whether or not the owner was the person with whom the agreement was made and notwithstanding the provisions of the Real Property Act 1886.
(8)The Registrar-General must, if satisfied on the application of the Minister, the greenway authority, the council or the owner of the land that an agreement in relation to which a note has been made under this section has been rescinded or amended, enter a notice of the rescission or amendment against the instrument of title, or against the land.
(9)…
(10)…
(11)…
(12)The existence of an agreement under this section may be taken into account when assessing an application for a development authorisation under this Act.
(13)…
The Act does not provide for any particular form of land management agreement.
As I have said, the LMA in question in this case is in the form of a deed between the Council and Lady Bay Shores.
In the recitals to the LMA, it is expressly noted that as at the date of the deed the Council was the “registered proprietor of an estate in fee simple” in respect of the land; that the Council had agreed to sell the land to Lady Bay Shores, which had agreed to purchase the Council’s estate and interest in the land “on the Settlement Date”; that from the Settlement Date, Lady Bay Shores would assume management of the land, “including the use, occupation and development of the Dwellings”; and that the Council and Lady Bay Shores had agreed various matters referred to in the balance of the LMA as to the “management, preservation and conservation of the land” … “after the Settlement Date”.
“Settlement Date” is defined in the LMA as the date upon which settlement of the contract is effected.
Clause 3 of the LMA deals with “development relating to the land”.
Relevantly, clause 3 provides:
3.DEVELOPMENT RELATING TO LAND
3.1 The Owner shall not cause or allow any Development relating to the Land unless such Development is conducted in accordance with the terms and conditions set out in this Deed.
3.2 Any Development relating to the Land:
(a)shall comply with any conditions, requirements and approvals imposed under the Development Act;
(b)shall result in no more than 21 Dwellings upon the Land;
(c)shall follow generally the configuration (as to the location of the Dwellings) laid out in the plan attached to this Deed as Annexure C;
(d)shall only allow or create buildings of a single storey;
(e)… (my emphasis)
The question arose in this case as to whether or not the LMA in question was a valid Land Management Agreement for the purposes of the Act. I deal with that question in due course.
Assuming the LMA in question to be a valid Land Management Agreement for the purposes of the Act, there are various consequences which follow.
In the first place, pursuant to s 57(12), the existence of the LMA “may be taken into account” when an application for a development authorisation under the Act, is assessed. Furthermore, pursuant to s 83 of the Act, a contravention or threatened contravention of an LMA amounts to a breach of the Act, which in turn could result in the issue of an enforcement notice pursuant to s 84.
Apart from those provisions in the Act, the provisions of an LMA no doubt give rise to contractual obligations which may be enforced between the parties to the agreement.
The existence of the LMA and the effect to be given to it in this case were central elements in the reasoning of both the Council and of the ERD Court in reaching the decisions which they made.
I will deal with that reasoning now.
The reasons for the decision to refuse consent and for the dismissal of the appeal
I have already set out the terms of the letter from the Council to the appellant dated 27 January 2005, setting out the reasons why the Council had refused consent to the proposed development.
From that letter it would have been seen that the decision of Council was predicated upon clause 3.2(d) of the LMA and the fact that Lady Bay Shores had refused to consent to the application for approval. The letter goes on to state:
The applications are therefore purely hypothetical and as a consequence the Council has refused to process the application further.
The suggestion that the Council had refused to “process the application further” does not sit quite squarely with the fact that the formal notification of its decision stated that consent had been refused. A refusal of consent meant that the application had been processed to a conclusion.
It may be that the expression used in the letter should be understood to mean that, once becoming aware of the refusal of Lady Bay Shores to consent to the application, Council did not have regard to any other planning considerations.
The judge constituting the ERD Court adopted a similar process of reasoning. This appears from the following passage in her reasons:
[30]… Mr Jolly, however, acknowledges that he is bound by the terms of the LMA. Pursuant to Clause 3 and Clause 12 of the LMA, Mr Jolly cannot proceed with the development applied for without a waiver by the Council of Clause 3.2(d). Lady Bay Shores Pty Ltd clearly has no intention of seeking such a waiver and the Council has no intention of granting it. Mr McElhinney quoted from the judgment of Wells J in Hackney Hotel Pty Ltd v Corporation of the Town of St Peters, Bleechmore & Ors[4] in relation to a Council’s obligation to assess a planning application:
They cannot be expected to embark upon a lengthy and expensive inquiry into the developer’s intentions and his chances of carrying out his plans if they are approved. The Council and the Authority are not, however, powerless. If it reasonably appears to them that the practicability, or the intention, of beginning the scheme in earnest within a reasonable time is in real doubt, the Council or the Authority would be quite justified in asking to be furnished with information or material sufficient to demonstrate such practicability or intention; and if it is not persuaded of either, or both, in refusing the application.
[31]On all of the evidence in this matter, the Council, having decided that it would not waive the provisions of Clause 3.2(d), concluded that the development applied for had no practical prospect of proceeding lawfully. The Council was justified in finding, and I find, that Development Application No 260/104/04 is hypothetical.
[4] (1983) 32 SASR 145 at 150.
With respect to Her Honour, the reasoning which led her to the conclusion that the application was “hypothetical” is flawed.
The Hackney Hotel[5] case cited by Her Honour was a very different case.
[5] Hackney Hotel Pty Ltd v Corporation of the Town of St Peters, Bleechmore & Ors (1983) 32 SASR 145.
In that case, the applicant for consent to a proposed development did not have title to a parcel of land critical to the development, and had no reasonable prospect of obtaining a sufficient interest to enable the proposed development to take place.
It was held by Wells J (whose decision was upheld on appeal to the Full Court[6]) that in those circumstances the application should be refused.
[6] See (1984) 36 SASR 265.
The application in this case might have been in the relevant sense “hypothetical”, if the appellant was not in a position to carry out works the subject of an application for approval, even if approval was granted. So much was decided in the Hackney Hotel case. There may be other situations in which it would be proper to characterise an application as “hypothetical”.
But in the circumstances of this case, the appellant’s application could in no sense be described as “hypothetical”.

The appellant clearly had status to apply for planning consent and had exclusive occupation of the shack in question. He had already carried out extensive extensions to the building, including extensions which had been the subject of planning approval and the extensions which are the subject of the application in question.
In my view, both the Council and the ERD Court failed properly to construe the effect of the LMA in the process of dealing with the application for variation of the previous approval.
As I have already pointed out, under s 57(12) of the Act, the existence of an LMA may be taken into account in assessing an application for a development authorisation. No doubt that section means that it must be taken into account by a relevant authority within the meaning of the Act in dealing with an application for approval.[7]
[7] See definition of “relevant authority” in s 4 and provisions as to “relevant authority” in s 34.
The question as to what regard should be paid to the provisions of an LMA, will vary according to the circumstances surrounding an application for development approval.
As was pointed out in Tarca and Anor v Hambrook and Anor,[8] LMAs are of limited relevance in the determination of applications for development approval where a third party, that is, a party other than the parties to the LMA, is in occupation of the land. In that case, Debelle J observed:[9]
The question whether development should be permitted to proceed should, as a general rule, be determined without reference to a land management agreement. The purposes for which land management agreements should be used are, I think, relatively limited. They should not, generally speaking, be used where parties other than the owner have rights of occupancy over the land. This case exemplifies many of the problems with land management agreements.
[8] (1995) 86 LGERA 56.
[9] Ibid 60.
Later in the same case, he observed:[10]
A land management agreement … [of the kind considered in that case] … should, as a general rule, be used where the only parties affected are the owner or the relevant Council or the Minister.
[10] Ibid 62.
Against the background of those general observations as to the limited utility of LMAs in the context of applications for development approval, there were three more particular questions in relation to the LMA in question which were agitated during the course of the hearing of the appeal to this Court.
They were the question whether or not the LMA in question is a valid LMA for the purposes of the relevant provisions of the Act; whether the appellant is in any event bound by the terms of the LMA; and whether the Council must be taken to have waived the application of clause 3.2(d) of the LMA to the proposed development.
I will deal with each of those questions in turn.
(a) Was the LMA a valid agreement for the purposes of the Act?
Mr Tredrea, counsel for the appellant, based his contention that the LMA was not a valid agreement for the purposes of the Act by reference to s 57(2) of the Act. I repeat the terms of that subsection:
A Council may enter into an agreement relating to the development, management, preservation or conservation of land within the area of the council with the owner of the land.
Put shortly, Mr Tredrea contended that because the Council was the “registered proprietor” of an estate in fee simple in respect of the land (which fact is acknowledged in the recital to the LMA), the LMA could not be an agreement between the Council and the “owner” of the land within the meaning of s 57(2).
The contrary argument put by Mr Henry for the respondent, was that in the relevant sense the LMA was not intended to come into effect until the settlement date, when the title to the land would pass to Lady Bay Shores. Mr Henry relied on the terms of the recital which are as follows:
RECITALS
A.As at the date of this Deed, the Council is the registered proprietor of an estate in fee simple in respect of the Land.
B.Pursuant to the Contract, the Council has agreed to sell to the Owner, which has agreed to purchase, the Council’s estate and interest in the Land on the Settlement Date.
C.As and from the Settlement Date, the Owner will assume the management of the Land, including the use, occupation and development of the Dwellings.
D.The Council and the Owner have agreed various matters relating to the management, preservation and conservation of the Land after the Settlement Date, as set out in this Deed.
Having regard to the terms of the recitals, one construction of the agreement is that the contract was entered into in October 1998 while the Council was the registered proprietor of the land, and it was only the management of the land and related matters which was to take effect on the settlement date.
It is, however, unnecessary to resolve in this case the difficult issues which this question raises.
The question was not argued in the ERD Court, and Mr Henry objects to the point being raised now in support of the appeal, and also having regard to the fact that Lady Bay Shores is not a party to the appeal.
I think that the latter point is a good one. I do not think that this Court should determine the issue as to whether or not the LMA is a valid agreement for the purposes of the Act, in the absence of Lady Bay Shores.
If it was necessary for the determination of the appeal, I would have suggested that the Court adjourn the matter to enable Lady Bay Shores to participate in the appeal if it wished to do so, at least on this issue.
However, as will be seen from the conclusions which I reach later in these reasons, the appeal may be determined without deciding this point.
(b) Was Mr Jolly bound by the agreement?
Apparently this point was conceded by counsel for Mr Jolly during the course of the hearing before the ERD Court.
However, the concession was not maintained on the hearing of the appeal.
A party is not bound to maintain a concession made by counsel on his or her behalf. Such a concession may be withdrawn during the course of the hearing. The concession was made without the appellant having the benefit of advice on the issues raised during the hearing of this appeal.
The LMA was an agreement entered into between the Council and Lady Bay Shores. The fact that Mr and Mrs Jolly were shareholders of Lady Bay Shores, standing alone, neither made them a party to the agreement, nor had the effect of causing them to be bound by it.
Mr Henry put a number of other arguments in an endeavour to sustain the proposition that the appellant was bound by the agreement. He endeavoured to construct an argument based on an analogy with equitable principles relating to acquiring an interest in land with notice of an equitable interest. In my view, the analogy is not appropriate.
Land management agreements are a creature of statute, more particularly of the relevant provisions of the Development Act. Relevantly, such an agreement may be entered into between the council and the owner of the land. Here, the owner was Lady Bay Shores.
As I have explained, enforcement provisions of the Act come into play, inter alia, when there is a contravention or threatened contravention of a land management agreement. Such a contravention is a breach of the Act which may be remedied by an enforcement notice issued pursuant to s 84 of the Act.
With respect to the further development the subject of the application for consent in question, Lady Bay Shores was not in breach of the LMA, as it opposed the further development. Neither Mr Jolly nor Mrs Jolly were in contravention of the agreement, as they could not contravene an agreement to which they were not a party. The enforcement provisions of the Act could not be invoked against Mr and Mrs Jolly.
The question remains whether in any respect Mr and Mrs Jolly were in some way bound to comply with the terms of the LMA in their dealings with the subject land. Although I am not satisfied that counsel identified any basis upon which such a conclusion might be drawn, I am equally not satisfied that the Court had before it all of the relevant evidence and the benefit of the more considered argument which might have been put if the matter had been agitated in the ERD Court.
In any event, I am not sure whether it matters whether Mr and Mrs Jolly were in a strict technical sense bound in any way by the LMA. I say that, because under s 57(12) of the Act, “the existence of an agreement under [the section] may be taken into account when assessing an application for a development authorisation” under the Act. In my opinion, the subsection operates whether the application for the development authorisation was brought by a party to the agreement or not.
Development authorisations are often brought by agents of owners or by other third parties. Once the LMA has been noted on the title to the land pursuant to s 57(5), a relevant authority may take it into account, to the extent that it may have a bearing upon the assessment of the application.
At the same time, as was pointed out in Tarca (supra), when parties other than the owner have rights of occupancy over the land, the use which may be made of the provisions of an LMA may be relatively limited.
In this case, the relevance of the LMA to the process of assessment of the application in question was severely circumscribed, in that I am unable to see that clause 3.2(d) had any application at all, given that the shack is no longer a single-storey development.
Although it is not obvious to me that any other provision in the LMA could be regarded as relevant to the determination of the application in question, I think that it should be left to the ERD Court to determine whether any other provision ought to be taken into account, and with what result.
So that my answer to the question whether Mr Jolly was bound by the agreement is that, although counsel were not able to identify during the course of argument a basis which satisfies me that he was bound, I do not exclude the possibility that in some way both he and Mrs Jolly may in some way be liable to answer to obligations arising under the LMA.
However, in the context of this case, the important provision in the LMA, namely that which finds expression in clause 3.2(d) and which provides that any development shall “only allow or create buildings of a single storey”, is no longer of application, as the building in question has ceased to be a single storey by reason of an earlier lawful development.
Whether any other provision in the LMA might have a bearing upon an assessment of the application in question, will be a matter for the ERD Court when it reconsiders the application.
Of course, when the matter is reconsidered by the ERD Court, it would be open to the appellant to renew his argument that the LMA is not a valid agreement for the purposes of the Act.
(c) Waiver
In my view, the argument as to waiver was misconceived.
Under clause 12 of the LMA, the Council may waive compliance by the owner with the whole or any part of the obligations on the part of the owner set out in the deed.
Clause 3 of the deed deals with “development relating to land”. Clause 3.1 provides that the owner “shall not cause or allow any development relating to the land” unless the development is conducted in accordance with the terms and conditions set out in the deed.
Those terms and conditions include that which finds expression in clause 3.2(d) which provides that any development relating to the land “shall only allow or create buildings of a single storey”.
In this case, the actions of the appellant in securing consent to the erection of an upper storey, and in subsequently applying for consent to the works which exceeded the original consent, did not attract the direct application of any of the clauses of the LMA, including clauses 12 and 3.3. Clause 3 relates to development “caused or allowed by the owner”, clause 12 to waiver by the Council of obligations which otherwise might fall on the owner.
Although it might be argued that the owner, Lady Bay Shores, in consenting to the erection of the upper storey in the first place might be taken to have “allowed” that development, it opposed consent being given to the works which exceeded the ambit of the consent given for the first part of the development.
But no question of waiver applies to the subject matter of the present application for consent, as the proposed works are not works which Lady Bay Shores “caused” or “allowed”. No question of “waiver” as between the appellant and the Council could arise. Clause 12 only related to waiver by the Council of obligations otherwise attaching to the owner.
In any event, in my view, for the reasons already given, the second storey having already been erected, there is simply no room for the further operation of clause 3.2(d). The building is no longer a building of a single storey.
That it is no longer a building of a single storey has resulted from the implementation of planning consent properly and lawfully given on an application by the appellant to the Council.
Any question now of “waiver” is, therefore, irrelevant.
Conclusion
The Council, in the first instance, and the ERD Court on the appeal to it, should have dealt with the matter on the basis that there was a lawfully erected two-storey shack, with respect to which planning consent was sought for extensions to the second storey. The application fell to be determined by reference to ordinary planning considerations. Whatever limited relevance the LMA had to that process, if any, is a matter for the ERD Court to consider.
To the extent necessary, I would give leave to appeal.[11]
[11] Leave to appeal is required on a question of fact: see Environment, Resources and Development Court Act 1993 s 30(2).
I would allow the appeal and quash the order of the ERD Court the subject of the appeal.
I would order that the matter be remitted to the ERD Court for the appeal to it to be reconsidered by that court in accordance with these reasons.
SULAN J: I would allow the appeal. I agree with the reasons of Perry J, and the orders that he proposes.
LAYTON J: I have had the opportunity of reading the draft reasons for decision of Perry J. I agree that the appeal should be allowed and with the orders proposed by his Honour.