Leichhardt Municipal Council v Datt

[1989] NSWLEC 220

Land and Environment Court

of New South Wales

CITATION:	Leichhardt Municipal Council v Datt [1989] NSWLEC 220
PARTIES:	APPLICANT Leichhardt Municipal Council RESPONDENT Chandra Datt
FILE NUMBER(S):	40254 of 1988
CORAM:	Cripps J
KEY ISSUES:	:-
LEGISLATION CITED:	Environmental Planning and Assessment Act
CASES CITED:
DATES OF HEARING:
DATE OF JUDGMENT:	07/28/1989
LEGAL REPRESENTATIVES:

JUDGMENT:

His Honour: There are two matters presently before the Court, a class 4 matter and also a class 2 matter. In the class 4 matter the council seeks a mandatory order that a condition of development consent be complied with. The class 2 matter as filed was an appeal against the council's refusal to issue a 317A certificate with respect to a development in Glebe Point Road being the same development that the class 4 proceedings is concerned with. The class 2 proceedings became an appeal against the refusal of the council to modify a consent pursuant to s 102 of the Environmental Planning and Assessment Act. It is said that if what took place was unlawful because it was in breach of a condition of a consent (which is denied) the condition ought to

be modified so as to make lawful what it claimed, but not admitted, to be presently unlawful.

It is not entirely clear to me just how the class 2 matter became a class 1 matter and why the 317A appeal was not pursued in its entirety. However I take cognisance of the fact that I do not know all the circumstances surrounding the litigation and it is evident that there are other disputes concerning the building and the development application. Or at least there were until recently. I am taking the course I do because both the legal representatives in the case have asked me to adopt the course of hearing the class 1 and the class 2 matter together and to treat the class 2 matter as an appeal against the council's refusal to modify the consent pursuant to s 102 of the Environmental Planning and Assessment Act.

Mr Datt is a solicitor. In March 1986 he received development consent to subdivide the land at 81-83 Glebe Point Road into two lots and to erect thereon professional consulting rooms with a residence upstairs. The consent was subject to a number of conditions. The relevant one (without going into detail) was that the external brickwork had to be bagged and rendered. The plans that accompanied the development application contained writing on them which suggested that the lower part of the building be covered in some form of slate. At all events, the condition was modified in April 1986 to limit the requirement to the facade of the building facing Glebe Point Road. In October 1986 it was further modified to require sandstone as an alternative to the covering and to apply to the external part of the development that was visible from Glebe Point Road. Later, in May 1988, it was further modified to remove the requirement that the external treatment be extended beyond the facade facing Glebe Point Road. By that tim

e the building had been commenced and was also completed.

It is the last condition that Mr Datt seeks to modify so that it can be made clear that the lower half of the facade can be covered with marble tile which is in fact what happened when the building was built sometime between the end of 1986 and the first few months of 1987. Mr Datt applied for a s 317A certificate in about June 1987. Thereafter the council asserted that he had not complied with the development consent because amongst other things the lower portion of the building facing Glebe Point Road was covered with marble tiles and not bagged, bricked or sandstoned as the condition required. Mr Datt said he is not in breach of the development consent but that if he is no order should be made in the class 1 proceedings.

The parties agree that if Mr Datt is in breach but that the modification appeal succeeds no order would be made in the class 1 proceedings although Mr Griffiths, on behalf of the council, has submitted that the modification should not be permitted. It would follow that if the modification were permitted and no order was to be made in the class 4 proceedings the class 4 proceedings should be dismissed subject to the question of costs.

As I mentioned in argument it is fairly clear that the development consent which was issued by the council did not permit marble tiles to cover the lower facade. Indeed, Mr Datt himself never thought it did because he says he asked for permission throughout the last part of 1986 and, according to him, he got it. He said that it was his understanding until about October or November 1986 that he needed the council's consent for the marble to be placed on the facade but he says this was given by Mr Threlfo firstly in a telephone conversation that followed a meeting when the sandstone was being selected and later confirmed second hand from the builder Mr Datt had on site at 83 Glebe Point Road.

I find Mr Datt may have mentioned to Mr Threlfo that he would like to use marble tiles on some parts of the building and it is possible he referred to the lower facade and I accept that he may have been told by his own builder that Mr Threlfo saw a tile and agreed that it could be put on the building. But I am satisfied that Mr Threlfo neither told the builder nor Mr Datt in terms that the council had approved the marble tiles to be placed on the facade. No explanation has been proffered as to why Mr Threlfo would have done such a thing at that time and to me it is inherently unlikely he did. I mentioned in argument that I might not have shared Mr Threlfo's view about the cataclysmic consequences of a piece of marble on the facade of a building in Glebe Point Road but that does not mean that I do not have the view that it was a matter of some significance to Mr Threlfo. It is inherently unlikely he would have agreed to this modification.

The builder may have believed he had that permission. Having heard Mr Lara give evidence I am of the opinion that his recollection of the events is not that clear. He had no real reason for directing his mind I think to the question. I do not know what took place in the telephone conversation between Mr Threlfo and Mr Datt referred to by Mr Datt in paragraph 6 of his affidavit. Mr Datt does not say in terms that he had been given council's approval to modify his consent. He said that the builder told him Mr Threlfo had seen the tiles and said the sandy colouring was acceptable. It may have been that both witnesses were referring to different conversations. At all events I am satisfied that Mr Threlfo did not tell Mr Datt in terms he had consent to do what he did. It follows therefore that what occurred put Mr Datt in breach of the planning and building laws. The question is what the court should do about it.

It has been argued that in the exercise of the court's discretion the application should be dismissed because the breach is not significant. As I have said, I have an application to modify the condition and if that modification is allowed it would make lawful what I have just held to be unlawful. In assessing that application, as it seems to me, I should not allow Mr Datt to get any advantage from the circumstance that he pre-empted the planning provisions by putting the marble there in the first place. I do not think that I ought pay a great deal of attention to Mr Datt's conduct unless I am satisfied that that conduct has been demonstrated to be high-handed or devious or in some way morally culpable. It seems to me, with respect to people who have other views, that I should decide the class 2 application by reference to planning considerations alone and only allow Mr Datt's conduct to intrude into that consideration if I think that a matter of significance to planning generally in the enforcement of laws in

the State require it. In the present case, as I have said, I am of the opinion that he may not have attached the significance to the putting of tiles to the front of his building that Mr Threlfo did or indeed he may have attached significance to it but thought that it was more a matter for him than the council. At all events, I do not think that his conduct is to be characterised in such a way that it should preclude him from having a proper section 90, if I can use that loose description, assessment of his modification application that is now presently before the court.

I have had regard to the provisions of s 102 and of course s 90 and clause 17 of the local environmental planning instrument as well as to the evidence of Mr Yenson and Mr Threlfo. I accept as genuine the views expressed by Mr Threlfo concerning the impact of the facade on Glebe Point Road. However, in the exercise of my planning discretion, I think it is appropriate that I should allow the consent to be modified so as to make in terms permissible that which has occurred viz that the present marble on the building be permissible . Accordingly, I make that order.

It follows from the orders that I have made and the findings that I have made that I should dismiss the class 4 application. There is no utility in making an order or a declaration of breach because there is to be no further consequential order. The question however remains as to what I should do about costs. I think I should order that the respondents pay council's costs for one day. The matter proceeded for a day and a half. However, a significant part of that time has been taken with the question of what I might describe as the class 1 application and I do not think that there are circumstances that would warrant departure from the court's rule in that regard. The reason why I order costs on the first day is because the council established its breach as it claimed. It was successful in a matter that was agitated factually most of the time, namely whether or not there was communicated a valid approval to Mr Datt in about November or October 1986 and that was decided adversely to Mr Datt. That the circumstan

ces were decided adversely to him without a reflection on his credit I do not think affects the question of costs. So accordingly, the order I make is that the respondent pay the council's costs of the proceedings for the first day, otherwise no order as to costs in either proceedings.