Kilpatrick v Wollongong City Council

[2005] NSWLEC 658

Land and Environment Court

of New South Wales

CITATION:

Kilpatrick v Wollongong City Council [2005] NSWLEC 658

PARTIES:

APPLICANT
Richard Kilpatrick

RESPONDENT
Wollongong City Council

FILE NUMBER(S):

10808 of 2005

CORAM:

Moore C

KEY ISSUES:

Development Application :-
Inconsistency between registered strata plan and original development consent
.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
.

CASES CITED:

Hillpalm Pty Ltd v Heaven's Door Pty Ltd [2004] HCA 59;
.

DATES OF HEARING:

17 November 2005

EX TEMPORE JUDGMENT DATE:

11/17/2005

LEGAL REPRESENTATIVES:

APPLICANT
Mr G Gleeson, solicitor
Morton & Harris

RESPONDENT
Mr M Mantei, solicitor
Kells the Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Moore C

17 November 2005

05/10808 Richard Kilpatrick v Wollongong City Council

JUDGMENT

This decision was given as an extemporaneous decision at an on-site hearing. It has been revised and edited prior to publication.

The consequence of the Court’s decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but will be available for inspection at the Council. In addition, a copy the Court’s Orders and the conditions may be obtained from the Court’s registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court’s web site at

1 Commissioner: This is an appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 - initially against the deemed refusal and the subsequent actual refusal by Wollongong City Council (the council) of an application to erect a carport and to erect a wall on the western boundary of Unit 4/28 Smith Street, Wollongong. However, the matter finally came for consideration on the basis of proposed consent orders.

2 Bound up in the issues relating to the appeal is the matter of whether or not, in historic terms, the approval for the strata subdivision of 28 Smith Street dedicated the space (proposed to be enclosed as the carport) as a visitor parking area on the common property or alienated it to Unit 4.

3 It is clear, from an examination of the registered strata plan, that that area has been allocated to and alienated to Unit 4 - contrary to the original decision of the council consenting to the strata subdivision.

4 However, the recent decision of the High Court in Hillpalm Pty Ltd v Heaven's Door Pty Ltd [2004] HCA 59 makes it clear that the registered strata plan prevails over the conditions of consent. The necessary consequence is that I have no jurisdiction, despite the concerns expressed by the other residents of the strata plan, to consider whether or not there ought be any adjustment or requirement with respect to the ownership or use of that car parking space.

5 The position also is that there is a consent of some decade and a half old that permits the space to be used for car parking purposes so that, too, is not a matter capable of being revisited in this decision despite the concerns of the other residents of 28 Smith Street about the safety of reversing down the full length of the driveway.

6 What I am required to address and be satisfied is appropriate is that the structures to be erected in conjunction with that car parking space are acceptable.

7 I am satisfied, from an inspection of the site and consideration of the plans, that the carport elements of the application do not create any unreasonable or unacceptable impacts.

8 However, a matter arose during the course of the proceedings (raised by one of the residents of No. 28) questioning the use of the car parking space for the parking of two vehicles in lieu of a single vehicle (being that which is clearly implied as a term of the original strata subdivision). I am satisfied from my inspection of the site that such a restriction is a desirable safety limitation. As a consequence, I have required that the proposed agreed conditions of consent be amended so that a condition of this consent will be that that car parking space can only be used for the parking of one vehicle.

9 With respect to the proposed western wall element, after an inspection of 30 Smith Street, it became obvious to me (as I had earlier reached the preliminary conclusion from the plans of the proposed dividing wall – and so advised the parties at the commencement of the hearing) that this wall was to be erected partially on the common property of 30 Smith Street and that there was no owner’s consent from the body corporate of the strata plan of those premises for that purpose.

10 Following my raising of that matter (and other matters arising from the lack of survey of this boundary), Mr Gleeson, solicitor for the applicant, sought and was granted leave (which was not opposed by Mr Mantei, solicitor for the council) to amend the plans so that the plans deleted the proposed masonry block wall on the western boundary of lot 4 in the 28 Smith Street strata plan.

11 The amendment proposes to replace it with a 1.8 m high paling fence that will come from the western boundary at the point on the drainage reserve where the 28 and 30 Smith Street boundaries meet (running parallel to the brick wall of Unit 4 but along the common boundary with 30 Smith Street) to a point some 1100 mm to the south then returning to the brick wall of Unit 4 at right angles to that wall.

12 That amendment satisfies the concerns of the residents of 30 Smith Street with respect to a tree on the common boundary and the necessity which might have otherwise arisen for them to replace their clothes line.

13 As a consequence, the orders of the Court, by consent, will be that:

1. The appeal is upheld; and
2. Development consent will be granted on the basis of the application as amended and subject to conditions which remain to be settled between the parties but which will be incorporated in the orders of the Court;
3. No order as to costs; and
4. The exhibits will be returned.

14 It remains, therefore, for me to give the following directions:

1. The respondent is to file and serve agreed revised conditions of consent by 22 November;
2. The applicant is to file and serve, by 22 November, revised plans reflecting the amendment to the fencing with 30 Smith Street;
3. The matter is set down for callover before the Registrar on 29 November;
4. If agreed revised plans are filed prior to that date and agreed revised conditions are filed electronically in accordance with Practice Direction 2 of 2005 prior to that date, I will make orders in Chambers and vacate the callover.

Commissioner of the Court