Kingsbury-Carr v Marrickville Council

[2006] NSWLEC 467

Reported Decision: (2006) 147 LGERA 405

Land and Environment Court

of New South Wales

CITATION:	Kingsbury-Carr v Marrickville Council [2006] NSWLEC 467
PARTIES:	APPLICANT Neville Kingsbury-Carr RESPONDENT Marrickville Council
FILE NUMBER(S):	10456 of 2006
CORAM:	Preston CJ
KEY ISSUES:	Development Application :- notification to consent authority of proposed minor works - whether development application - opinion of consent authority that proposed development not minor work - not determination of development application - no appeal from determination available Jursidiction:- purported appeal from opinion that proposed development not minor works - not determination of development application - appeal incompetent
LEGISLATION CITED:	Land and Environment Court Act 1979 Environmental Planning and Assessment Act 1979
DATES OF HEARING:	21 July 2006
EX TEMPORE JUDGMENT DATE:	07/21/2006
LEGAL REPRESENTATIVES:	APPLICANT Neville Kingsbury-Carr SOLICITORS In person RESPONDENT Marrickville Council SOLICITORS Mr G Christmas

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

PRESTON CJ

21 JULY 2006

10456 OF 2006

KINGSBURY-CARR V MARRICKVILLE COUNCIL

JUDGMENT

1 HIS HONOUR: The applicant, Mr Kingsbury-Carr, is the owner of one of a pair of semi-detached dwelling houses at 2 Clarendon Road, Stanmore. He wished to install awnings on the eastern elevation of the dwelling house. He spoke to an officer of the relevant council, Marrickville Council, about the procedure for carrying out the desired works. After a number of discussions and a meeting, the applicant was advised that he could make an application entitled a “minor works application” under cl 49 of the applicable local environmental plan, namely Marrickville Local Environmental Plan 2001.

2 Clause 49 operates to relieve a person from a necessity to obtain development consent to carry out development identified on certain land if the matters in that clause are satisfied. Two of the matters in cl 49 are that the proponent of the works notifies the consent authority in writing of the proposed works (cl 49(b)) and the consent authority advises the proponent in writing before any work is carried out it is satisfied that the proposed development will comply with cl 49 and development consent is not required by any other clause of the plan (cl 49(c)). In order for the development to comply with cl 49 it has to, in the opinion of the consent authority, be of a minor nature or consist of maintenance of the item, or building, work, archaeological site, tree or place within a heritage conservation area and will not adversely affect the significance of the heritage item or the heritage conservation area (cl 49(c)).

3 In this case, the question was whether the installation of the proposed awnings could be classified as being of a minor nature.

4 The applicant completed the form that had been provided to him by the council officer which is entitled “Minor works application for building works only under cl 49, Marrickville LEP 2001”. Notwithstanding that title, the form itself has many similarities to a development application form. Nevertheless the information that is requested to be provided in the form is information designed to assist the council in forming the opinion required under cl 49 of whether the proposed development is “minor works”.

5 The applicant lodged the minor works application together with accompanying plans on or about 31 December 2005. The council acknowledged receipt of the application and the payment of the fee for the minor works application.

6 The council, although by its actions in providing the minor works application form initially may have been tempted to consider the proposed development to be minor works, nevertheless upon consideration of the plans came to the opinion that the proposed development was not minor works. Accordingly, the council wrote to the applicant on 7 March 2006 advising that the proposed development of installing awnings to show the eastern windows on the eastern façade could not be classified in council’s opinion as minor works.

7 Subsequently, the applicant lodged an appeal to this Court using the standard form for applications class 1, 2 and 3. In that form the applicant stated that the Acts of Parliament or other instrument under which the proceedings were brought was “Environmental Planning Act 1979 and/or Local Government Act 1993”.

8 The council has raised as an issue in the proceedings that this Court has no jurisdiction to determine the matter because the appeal is incompetent. The particulars to that issue that the council identifies are that:

“The application lodged with the class 1 application is not a development application within the meaning of s 4(1) of the Environmental Planning and Assessment Act 1979 (the EPA Act) and there is no right of appeal pursuant to s 97 of the EPA Act. As such, the Land and Environment Court Act 1979 (the LEC Act) does not give jurisdiction to the Court to hear and dispose of the appeal pursuant to s 17 (or any other section) of the LEC Act.”

9 The Registrar determined that it was appropriate that this issue be determined prior to the hearing of the main appeal. Accordingly, the matter has come before me today. To formalise the matter, I ordered that issue 1 dealing with jurisdiction be heard separately from the balance of the appeal and that that issue be heard and determined today. I ascertained that both the applicant and the council were able to deal with the matter today.

10 I have determined that the appeal is incompetent for the reason that there never was a development application lodged with the council. In order for there to be an appeal to this Court there must be a decision, either actual or deemed, of a consent authority in relation to an application for development consent under the Environmental Planning and Assessment Act 1979 (“EPA Act”).

11 In this case, the application that was made was an application for a determination by the council of whether proposed development constituted minor works so as to enliven the dispensatory power under cl 49 of Marrickville Local Environmental Plan 2001. As I have noted, cl 49 operates to dispense with the necessity to obtain development consent that would otherwise be required.

12 In this case, development consent would be required because, firstly, the installation of the awnings is of sufficient magnitude as to constitute development within the meaning of that word in s 4(1) of the EPA Act, secondly, the land in which the proposed development is to be carried out is zoned residential 2(a) under the Marrickville Local Environmental Plan 2001 and in that zone development for the purpose of dwelling house is permissible but only with development consent, and thirdly, the carrying out of the proposed development and installation of the awnings could properly be characterised as being for the purpose of a dwelling house. Accordingly, a development consent would be required for the proposed development.

13 Clause 49 could operate to relieve an applicant from the necessity to obtain development consent but only if the matters in cl 49 are satisfied.

14 As a matter of fact, the matters in cl 49 were not satisfied because the council formed the opinion that the proposed development did not constitute minor works. Accordingly, cl 49 was not enlivened to dispense with the requirement to obtain development consent.

15 The application under cl 49 cannot be considered to be a “de facto” development application because of its very nature. A development application is an application for consent under Pt 4 of the EPA Act to carry out development: see s 4(1) of the EPA Act. An application under cl 49, however, is an application to be relieved of the obligation to apply for consent under Pt 4 of the EPA Act. Accordingly, an application under cl 49 is the antithesis of a development application.

16 For these reasons, unfortunate though it may be, the only conclusion that can be reached is that there never has been the making of a development application to the council to carry out the proposed development of installation of the awnings on the dwelling house. There never having been a development application to enliven the council’s powers as consent authority to consider and determine a development application, there can be no decision, actual or deemed, by the council which can found an appeal under s 97 of the EPA Act to this Court. Accordingly, the appeal is incompetent and ought to be dismissed.

17 The unfortunate outcome of this conclusion is that the applicant will have no alternative but to start the process again. However, it would be hoped that the council would facilitate the expeditious lodgement, processing and determination of a development application for the proposed development.

18 Although I have concluded that the appeal is incompetent, and ordinarily that can be a reason for making a costs order against an applicant, in the unique circumstances of this case it would be both unfair and unreasonable to make such an order. The applicant has found itself in this unfortunate position by reason of the invitation of the council to make a minor works application and the unusual nature of the form which, as I have noted above, has a great degree of similarity with a development application. A lay person could well misunderstand the nature of the application and consider it to be a form of development application, albeit an application for development that constitutes minor works. In these circumstances, it would be, as I have said, unfair and unjust to make an order against the applicant. The proper order is that each party pay their own costs of the appeal.

Orders

19 Accordingly, the orders of the Court are as follows:

(1) The appeal is dismissed;

(2) Each party is to pay their own costs of the appeal.

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