Lu v Walding (No 2)

[2021] NSWLEC 21

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Lu v Walding (No 2) [2021] NSWLEC 21

Hearing dates:

22-24 July 2020 (hearing); 29 July 2020, 30 July 2020, 31 July 2020, 7 August 2020, 19 August 2020, 28 August 2020 (written submissions)

Decision date:

15 March 2021

Jurisdiction:

Class 4

Before:

Pain J

Decision:

See [272]-[276] of judgment

Catchwords:

JUDICIAL REVIEW – construction of garage on council owned land approved by local council as consent authority – applicant for garage development and local council as consent authority unaware that construction on council owned land when development application approved – absence of consent of council jurisdictional as development application not valid – proceedings commenced more than three months after public notice of grant of development consent – operation of s 101 Environmental Planning and Assessment Act 1979 bar to proceedings – Hickman principles satisfied – exercise of discretion to extend time under UCPR r 59.10 – exercise of discretion to grant relief

Legislation Cited:

Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth)

Commonwealth Constitution, Ch III (ss 73, 75)

Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) s 65

Customs Tariff (Anti-Dumping) Act 1975 (Cth)

Environmental Planning and Assessment Act1979 (NSW) ss 4.15, 4.59, 9.46, former ss 77, 79C, 101 104A, 109E, 124, s 149

Environmental Planning and Assessment Regulation 2000 (NSW) regs 49, 50, 124, Sch 1

Industrial Relations Act 1996 s 179

Interpretation Act 1987 (NSW) s 31

Judiciary Act 1903 (Cth) ss 78A, 78B

Land and Environment Court Act 1979 (NSW) ss 20, 25B, 39, 58, 71

Local Government Act 1993 (NSW) s 8

Local Government Act 1919 (NSW) ss 232

Manly Development Control Plan 2013

Migration Act 1958 (Cth) s 486A

Roads Act 1993 (NSW)

Uniform Civil Procedure Rules 2005 (NSW) r 59.10

Water Management Act 2000 (NSW) s 47

Cases Cited:

Abebe v The Commonwealthof Australia (1999) 197 CLR 510; [1999] HCA 14

Akpan v Minister for Immigration and Ethnic Affairs (1982) 58 FLR 47

Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 233 LGERA 170; [2018] NSWCA 245

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33

Bankstown City Council v Ramahi [2015] NSWLEC 74

Bodruddaza v Minister for Immigration and Multicultural Affairs (2007) 228 CLR 651; [2007] HCA 14

Broad Henry v Director-General of the Department of Environment and Conservation (2007) 159 LGERA 172; [2007] NSWLEC 722

Bromley London Borough Council v Greater London Council [1983] 1 AC 768

Brown v Randwick City Council (2011) 183 LGERA 382; [2011] NSWLEC 172

Bruce v Cole (1998) 45 NSWLR 163

Brunetto v Collector of Customs (1984) 4 FCR 92

Burwood Council v Ralan Burwood Pty Ltd (No 3) (2014) 206 LGERA 40; [2014] NSWCA 404

Canterbury City Council v Mihalopoulos [2010] NSWLEC 248

Carnley v Grafton Ngerrie Local Aboriginal Land Council [2010] NSWSC 837

Central Coast Council v 40 Gindurra Road Somersby Pty Ltd (No 2) (2019) 241 LGERA 133; [2019] NSWLEC 171

Clifford v Wyong Shire Council (1996) 89 LGERA 240

Coffs Harbour City Council v Arrawarra Beach Pty Ltd (2006) 148 LGERA 11; [2006] NSWLEC 365

Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389

Community Association DP 270253 v Woollahra Municipal Council (2013) 211 LGERA 412; [2013] NSWLEC 184

Conservation of North Ocean Shores Inc v Byron Shire Council (2009) 167 LGERA 52; [2009] NSWLEC 69

Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135; [2000] HCA 5

Currey v Sutherland Shire Council (1998) 100 LGERA 365

Director General, Department of Health (NSW) v Industrial Relations Commissioner (NSW) (2010) 77 NSWLR 159

Dyason v Butterworth [2015] NSWCA 52

F Hannan Pty Ltd v Electricity Commission of New South Wales [No 3] (1985) 66 LGRA 306

Fairfield City Council v Ly [2008] NSWLEC 322

Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22

Franklins Ltd v Penrith City Council [1999] NSWCA 134

Georges River Council v Stojanovski [2018] NSWLEC 125

Gett v Tabet (2009) 254 ALR 504; [2009] NSWCA 76

Glaser v Poole [2010] NSWLEC 143

GTE (Aust) Pty Ltd v Brown (1986) 14 FCR 309

Hortis v Manly Council (1999) 104 LGERA 43; [1999] NSWLEC 151

Hoxton Park Residents Action Group Inc v Liverpool City Council [2010] NSWLEC 242

Hoxton ParkResidents Action Group Inc v Liverpool City Council (2011) 81 NSWLR 638; [2011] NSWCA 349

Jeblon Pty Ltd v North Sydney Municipal Council (1982) 48 LGRA 113

King v Great Lakes Shire Council (1986) 58 LGRA 366

Kirkv Industrial Court (NSW) (2010) 239 CLR 531; [2010] HCA 1

Laremont v Minister for Immigration & Ethnic Affairs (1985) 9 ALN N13; [1985] FCA 602

Lesnewski v Mosman Municipal Council (2005) 138 LGERA 207; [2005] NSWCA 99

Lithgow City Council v NeweraDefendo Pty Ltd [2019] NSWLEC 188

Liverpool City Council v Roads and Traffic Authority (1991) 74 LGRA 265

Liverpool City Council v Roads and Traffic Authority [No 2] (1992) 75 LGRA 210

Lockwood v The Commonwealth (1954) 90 CLR 177; [1954] HCA 31

Maitland City Council v Anambah Homes Pty Ltd (2005) 64 NSWLR 695; [2005] NSWCA 455

Manly Council v Hortis (2001) 113 LGERA 321; [2001] NSWCA 81

Manning v Bathurst Regional Council (No 2) (2013) 199 LGERA 147; [2013] NSWLEC 186

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18

Moorebank Recyclers Pty Ltd v Liverpool City Council [2009] NSWLEC 100

Mosman Municipal Council v IPM Pty Ltd (2016) 216 LGERA 252; [2016] NSWLEC 26

Nader v Sutherland Shire Council [2008] NSWCA 265

Nominal Defendant v Gabriel (2007) 71 NSWLR 150; [2007] NSWCA 52

P W Rygate & West v Shoalhaven City Council (1996) 91 LGERA 417

Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, [2003] HCA 2

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28

Puhlhofer v Hillingdon LBC [1986] AC 484

R v Hickman; Ex parte Foxand Clinton (1945) 70 CLR 598; [1945] HCA 53

Randren House Pty Ltd v Water Administration Ministerial Corporation [2020] NSWCA 14

Re Refugee Review Tribunal; Ex parteAala (2000) 204 CLR 82; [2000] HCA 57

Rivers SOS Inc v Minister for Planning 178 LGERA 347; [2009] NSWLEC 213

Schroders Australia Property Management Ltd v Shoalhaven City Council [2001] NSWCA 74

Sezdirmezoglu v Acting Minister for Immigration and Ethnic Affairs (1983) 51 ALR 561

Sutherland Shire Council v Nader (No 3) [2007] NSWLEC 469

Sydney City Council v Claude Neon Ltd (1989) 15 NSWLR 724

Sydney City Council v Ipoh Pty Ltd (2006) 68 NSWLR 411; [2006] NSWCA 300

Tickner v Bropho (1993) 40 FCR 183

Tickner v Chapman (1995) 57 FCR 451

Toth v Director of Public Prosecutions (NSW) [2014] NSWCA 133

Trives v Hornsby Shire Council (2015) 89 NSWLR 268; [2015] NSWCA 158

Tweed Shire Council v Taylor [2019] NSWLEC 45

Vanmeld Pty Ltd v Fairfield City Council (1999) 46 NSWLR 78; [1999] NSWCA 6

VAW (Kurri Kurri) Pty Ltd v Scientific Committee (Established under s 127 of the Threatened Species Conservation Act 1995) (2003) 58 NSWLR 631; [2003] NSWCA 297

Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335

Waterford v The Commonwealth (1987) 163 CLR 54; [1987] HCA 25

WaterNSW v Harris (No 3) [2020] NSWLEC 18

Woollahra Municipal Council v Sahade [2012] NSWLEC 76

Woolworths Ltd v Bathurst City Council (1987) 63 LGRA 55

Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707; [2004] NSWCA 422

Ying v Song [2009] NSWSC 1344

Texts Cited:

Aronson, Groves and Weeks, Judicial Review of Administrative Action & Governmental Liability (6th ed, 2017, Thomson Reuters)

Category:

Principal judgment

Parties:

Lin Lu (First Applicant)
Frederick Woo (Second Applicant)
Adrian Walding (First Respondent)
Alexandra Walding (Second Respondent)
Northern Beaches Council (Third Respondent)
Attorney-General (Intervener)

Representation:

COUNSEL:
N Eastman and N Hammond (First and Second Applicants)
T Hale SC (First and Second Respondents)
Submitting appearance (Third Respondent)
J Emmett (Intervener)

SOLICITORS:
Bick & Steele (First and Second Applicants)
Mills Oakley (First and Second Respondents)
Wilshire Webb Staunton Beattie (Third Respondent)
Crown Solicitor’s Office (Intervener)

File Number(s):

19/48339

TABLE OF CONTENTS

Legislation

Environmental Planning and Assessment Act 1979 (NSW)

Environmental Planning and Assessment Regulation 2000 (NSW)

Land and Environment Court Act 1979 (NSW)

Water Management Act 2000 (NSW)

Combined statement of facts / chronology

Evidence

Plans and documents relevant to common boundary of Walding and Lu Properties

Ground 1– jurisdictional error due to absence of landowner’s consent

Ground 1 – absence of jurisdictional fact due to no landowner’s consent

Applicants’ submissions

Waldings’ submissions

Ground 1 established

Does s 101 bar these proceedings?

Applicants’ submissions

Waldings’ submissions

Attorney-General’s submissions

Section 101 does bar proceedings

Do Hickman principles apply to Ground 1 error?

Applicants’ submissions

Waldings’ submissions

Consideration

Ground 2 – Failure to Consider

Applicants’ submissions

Waldings’ submissions

Ground 2 not established

Ground 4 – Unreasonableness

Applicants’ submissions

Waldings’ submissions

Ground 4 not established

Uniform Civil Procedure Rules 2005 r 59.10 – extension of time to commence proceedings / exercise of discretion to grant relief

Lay evidence

Evidence of town planners

Applicants’ submissions on discretion under r 59.10

Waldings’ submissions on discretion under r 59.10

Applicants’ submissions on overall exercise of discretion to order demolition

Waldings’ submissions

Discretion to extend time under UCPR r 59.10 granted

Exercise of discretion – is demolition of garage or other relief warranted?

Judgment

1. The Applicants Ms Lu and Mr Woo have commenced judicial review proceedings challenging the grant of a development consent to their neighbours Mr and Mrs Walding (the Waldings), the First and Second Respondents, for a garage and other house alterations by the Northern Beaches Council (the Council), the Third Respondent, in May 2017. The Council has filed a submitting appearance.

2. The Waldings’ garage is substantially built but not complete. The garage approved by the Council is located entirely on land owned by the Council being road reserve adjoining Clontarf Street at the front of the Waldings’ property at 107 Clontarf Street Seaforth (the Walding Property). It is agreed that the Waldings and the Council were unaware of this fact at the time development consent was granted by the Council.

3. The Council published a notice of determination of the development consent in the Manly Daily on 8 July 2017. Under s 101 (now s 4.59) of the Environmental Planning and Assessment Act1979 (NSW) (EPA Act) as in force in 2017 any challenge to a development consent must be commenced within three months of the appropriate public notice being given. The question whether these proceedings are time-barred therefore arises. A notice of a constitutional matter under s 78B of the Judiciary Act 1903 (Cth) was prepared by the Applicants on 17 July 2020, stating that a matter had arisen under the Commonwealth Constitution, being whether a privative clause such as s 101 of the EPA Act, which prescribes a time limit for bringing a judicial review action, can compromise or restrict the capacity of a state supreme court including this Court, to exercise its supervisory jurisdiction for review of a jurisdictional error, thereby ousting the jurisdiction of the High Court under s 75(v) of the Commonwealth Constitution. The Attorney-General of NSW (the Attorney-General) has intervened pursuant to s 78A of the Judiciary Act to make submissions on the scope of s 101.

4. Three grounds of judicial review are contended for by the Applicants. Firstly, that the absence of landowner’s consent, being the Council as the landowner, was an absence of a jurisdictional fact that must have had to exist to enliven the Council’s power to grant development consent under the EPA Act (Ground 1). Secondly, the Council failed to consider a mandatory relevant consideration as required by s 79C (now s 4.15) of the EPA Act (specifically the likely impacts of the development including environmental, social and economic impacts (subs (b)), the suitability of the site for the development (subs (c)), and the public interest (subs (e)) (Ground 2). Thirdly, the Council’s decision was manifestly unreasonable and illogical (Ground 4). The relief sought is a declaration that the development consent is ultra vires and otherwise invalid. If the Applicants are able to pursue these proceedings and are successful on their grounds of judicial review, the issue arises whether the Court should order demolition of the garage in the exercise of its discretion or make alternative orders.

Legislation

Environmental Planning and Assessment Act 1979 (NSW)

5. Relevant sections of the EPA Act as in force at 9 May 2017 provided:

Part 4 Development assessment

…

Division 2 The procedures for development that needs consent

…

79C   Evaluation

(1)   Matters for consideration—general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application:

(a)   the provisions of:

(i)   any environmental planning instrument, and

(ii)   any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and

(iii)   any development control plan, and

(iiia)   any planning agreement that has been entered into under section 93F, or any draft planning agreement that a developer has offered to enter into under section 93F, and

(iv)   the regulations (to the extent that they prescribe matters for the purposes of this paragraph), and

(v)   any coastal zone management plan (within the meaning of the Coastal Protection Act 1979),

that apply to the land to which the development application relates,

(b)   the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,

(c)   the suitability of the site for the development,

(d)   any submissions made in accordance with this Act or the regulations,

(e)   the public interest.

…

Division 9 Miscellaneous

…

101 Validity of development consents and complying development certificates

If public notice of the granting of a consent or a complying development certificate is given in accordance with the regulations by a consent authority or an accredited certifier, the validity of the consent or certificate cannot be questioned in any legal proceedings except those commenced in the Court by any person at any time before the expiration of 3 months from the date on which public notice was so given.

Environmental Planning and Assessment Regulation 2000 (NSW)

6. Relevant regulations of the Environmental Planning and Assessment Regulation 2000 (NSW) (EPA Regulation) as in force at 9 May 2017 provided:

Part 6 Procedures relating to development applications

Division 1 Development applications generally

…

49   Persons who can make development applications

(1)   A development application may be made:

(a)   by the owner of the land to which the development application relates, or

(b)   by any other person, with the consent in writing of the owner of that land.

…

50   How must a development application be made?

(1)   A development application:

(a) must contain the information, and be accompanied by the documents, specified in Part 1 of Schedule 1, and

…

Schedule 1 Forms (Clauses 50, 126 and 139)

Part 1 Development applications

1   Information to be included in development application

(1)   A development application must contain the following information:

…

(i)   evidence that the owner of the land on which the development is to be carried out consents to the application, but only if the application is made by a person other than the owner and the owner’s consent is required by this Regulation,

…

…

2   Documents to accompany development application

(1)   A development application must be accompanied by the following documents:

(a)   a site plan of the land,

(b)   a sketch of the development,

…

(2)   The site plan referred to in subclause (1) (a) must indicate the following matters:

(a)   the location, boundary dimensions, site area and north point of the land,

(b)   existing vegetation and trees on the land,

(c)   the location and uses of existing buildings on the land,

(d)   existing levels of the land in relation to buildings and roads,

(e)   the location and uses of buildings on sites adjoining the land.

(3)   The sketch referred to in subclause (1) (b) must indicate the following matters:

(a)   the location of any proposed buildings or works (including extensions or additions to existing buildings or works) in relation to the land’s boundaries and adjoining development,

(b)   floor plans of any proposed buildings showing layout, partitioning, room sizes and intended uses of each part of the building,

(c)   elevations and sections showing proposed external finishes and heights of any proposed buildings (other than temporary structures),

(4)   A statement of environmental effects referred to in subclause (1)(c) must indicate the following matters—

(a)   the environmental impacts of the development,

(b)   how the environmental impacts of the development have been identified,

(c)   the steps to be taken to protect the environment or to lessen the expected harm to the environment,

(d)   any matters required to be indicated by any guidelines issued by the Planning Secretary for the purposes of this clause.

…

Land and Environment Court Act 1979 (NSW)

7. Relevant sections of the Land and Environment Court Act 1979 (NSW) (LEC Act) provide:

Division 1 General

…

20 Class 4—environmental planning and protection, development contract and strata renewal plan civil enforcement

…

(2) The Court has the same civil jurisdiction as the Supreme Court would, but for section 71, have to hear and dispose of the following proceedings—

(a)   to enforce any right, obligation or duty conferred or imposed by a planning or environmental law, a development contract or a strata renewal plan,

(b)   to review, or command, the exercise of a function conferred or imposed by a planning or environmental law, a development contract or a strata renewal plan,

(c)   to make declarations of right in relation to any such right, obligation or duty or the exercise of any such function,

(d) whether or not as provided by section 68 of the Supreme Court Act 1970—to award damages for a breach of a development contract.

…

(3)   For the purposes of subsection (2), a planning or environmental law is—

(a)   any of the following Acts or provisions—

…

Environmental Planning and Assessment Act 1979,

…

Part 6 Miscellaneous

…

71 Proceedings in Supreme Court

(1) Subject to section 58, proceedings of the kind referred to in section 20(1)(e) may not be commenced or entertained in the Supreme Court.

(2) The jurisdiction conferred on the Court in respect of proceedings referred to in section 20(1)(e) is not limited by any provision of the Civil Procedure Act 2005 or the uniform rules under that Act.

Water Management Act 2000(NSW)

8. Section 47 of the Water Management Act 2000 (NSW) (WM Act) is relevant to the s 101 submissions of the parties. It provides:

Part 1 General

…

Division 11 Miscellaneous

…

47   Validity of management plans and exercise of plan-making functions

(1)   The validity of a management plan may not be challenged, reviewed, quashed or called into question before any court in any proceedings, other than before the Land and Environment Court in proceedings commenced within the judicial review period.

(2)   The judicial review period in respect of a management plan is—

(a)   the period of 3 months after the date the plan was published on the NSW legislation website, except as provided by paragraph (b), or

(b)   in relation to a provision of the plan that was inserted by an amendment of the plan (other than an amendment under section 45 (1) (c)), the period of 3 months after the date that the amendment was published on the NSW legislation website.

A judicial review period does not arise as a result of the extension of the duration of a management plan.

(3)   The judicial review period cannot be extended by the Land and Environment Court or any other court, despite any other Act or law.

(4)   Without limiting subsection (1), the exercise by a designated person of any plan-making function may not be—

(a)   challenged, reviewed, quashed or called into question before any court in any proceedings, or

(b)   restrained, removed or otherwise affected by any proceedings,

other than before the Land and Environment Court in proceedings commenced within the judicial review period.

(5)   The provisions of or made under this Act and the rules of natural justice (procedural fairness), so far as they apply to the exercise of any plan-making function, do not place on a designated person any obligation enforceable in a court (other than in the Land and Environment Court in proceedings commenced within the judicial review period).

(6)   Accordingly, no court (other than the Land and Environment Court in proceedings commenced within the judicial review period) has jurisdiction or power to consider any question involving compliance or non-compliance, by a designated person, with those provisions or with those rules so far as they apply to the exercise of any plan-making function.

(7)   This section is not to be construed as applying the rules of natural justice to the exercise of plan-making functions for the purposes of proceedings instituted within the judicial review period.

(8)   In this section—

court includes any court of law or administrative review body.

designated person means the Minister, a management committee, the Secretary or any person or body assisting or otherwise associated with any of them.

exercise of functions includes the purported exercise of functions and the non-exercise or improper exercise of functions.

judicial review period—see subsection (2).

management plan includes purported management plan.

plan-making function means—

(a)   a function under this Act relating to the making of a management plan (including relating to the amendment, replacement or repeal of a management plan or the extension of the duration of a management plan), or

(b)   a function under section 46 of this Act relating to the statement of the purpose for which any provision of a management plan has been made.

proceedings includes—

(a)   proceedings for an order in the nature of prohibition, certiorari or mandamus or for a declaration or injunction or for any other relief, and

(b) without limiting paragraph (a), proceedings in the exercise of the inherent jurisdiction of the Supreme Court or the jurisdiction conferred by section 23 of the Supreme Court Act 1970.

Combined statement of facts / chronology

9. The parties agreed a “Combined Statement of Agreed Facts / Chronology” (SOAF) which means that virtually all the relevant background facts concerning the grounds of review and most of the events relevant to the exercise of discretion are agreed as follows:

The parties

1   Lin Lu and Frederick Woo, the first and second applicants, own and occupy the property located at 105 Clontarf Street, Seaforth, legally described as Lot 179 DP 11162 (Lu Property). The first and second applicants purchased the Lu Property in November 2009.

2   Adrian Walding and Alexandra Walding, the first and second respondents, own and occupy the property located at 107 Clontarf Street, Seaforth, legally described as Lot 1 DP 119074 (Walding Property). The first and second respondents purchased the Walding Property in December 2014.

3   The Lu Property adjoins the Walding Property to the south. The Clontarf Street road reserve is located to the east of the Lu Property and the Walding Property. Clontarf Street is a council public road within the meaning of that term in the Roads Act 1993 (NSW).

4   Northern Beaches Council, the third respondent, is:

a.   the roads authority and owner of Clontarf Street (including the Dedicated Land referred to in paragraph 5 below); and

b.   the consent authority in respect of development application DA 359/2016 (DA) (described in paragraph 10 below) lodged by the first and second respondents.

Dedication of land to the third respondent for the purpose of road widening

5   Between late 1956 and mid-1957, part of Lots 178 to 183 of DP 11162 was dedicated to the third respondent (or its predecessor) for the purpose of widening Clontarf Street.

6   Under Memorandum of Dedication G628386 dated 26 April 1959, the then registered proprietor of the Walding Property dedicated part of the Walding Property (identified in the Plan Showing Proposed Road Widening within Lots 178-183 DP 11162 dated 16 November 1956) to the third respondent (or its predecessor) for the purpose of road widening (Dedicated Land).

7   Memorandum of Dedication G628386 was registered by the Registrar General in the Register Book Volume 4317 Folio 206 on 26 April 1957. Upon registration of Memorandum of Dedication G628386, the Dedicated Land was vested in the third respondent (or its predecessor) and formed part of the Clontarf Street public road reserve.

8   On 30 September 1960, Certificate of Title Volume 4317 Folio 206 was cancelled, and on 7 October 1960, a new Title Volume 8002 Folio 186 was registered. The diagram contained in Certificate of Title Volume 4317 Folio 206 shows the new lot dimensions of the Walding Property (then described at Lot 180 DP 11162), with the Dedicated Land excised from that lot.

9   On 14 February 1989, Certificate of Title Volume 8002 Folio 186 was cancelled, and a new Certificate of Title was created, being Lot 1 DP 119074 (the current title of the Walding Property). This plan contains the same dimensions as Lot 180 DP 11162.

The Development Consent

10   On 26 May 2016, the respondents attended a pre-lodgment meeting with the third respondent in relation to proposed development on the Walding Property.

11   On 30 October 2016, David Frew prepared a survey plan of the Walding Property for the respondents.

12   On 20 December 2016, the first and second respondents lodged the DA with the third respondent. The DA sought development consent for additions and alterations to the existing dwelling including the construction of a new detached garage with roof terrace and associated landscaping (Proposed Development).

13   The DA was accompanied by documents including the following:

a.   the DA form;

b.   the Survey Plan dated 30 October 2016 (Survey Plan);

c.   the Existing Site Plan Drawing Ex 01 dated 8 August 2015 prepared by Sulivan [sic] Design and Construction;

d.   Notification Plan Drawing No DA 10 dated 8 August 2015 (Notification Plan); and

e.   the Statement of Environmental Effects dated 15 December 2016 prepared by Planning Approvals.

14 As indicated in paragraphs 5 to 7 above, the third respondent is the owner of the Dedicated Land. At the relevant times, clause 49(1) of the Environmental Planning and Assessment Regulation 2000 provided as follows:

49 Persons who can make development applications (cf clause 46 of EP&A Regulation 1994)

(1)   A development application may be made:

(a)   by the owner of the land to which the development application relates, or

(b)   by any other person, with the consent in writing of the owner of that land.

15   The DA was publicly notified between 21 December 2016 and 23 January 2017 (the “Notification Period”). The first and second applicants received a letter from the third respondent dated 21 December 2016 notifying them of the DA and the Proposed Development and inviting them to make written submissions. The letter was accompanied by a Notification Plan.

16   On 18 January 2017, the first and second applicants made a written objection to the DA.

17   Prior to the determination of the DA, on or about 9 May 2017, the third respondent’s delegate recommended in its Delegated Authority Report that the development proposed by the DA be approved, subject to conditions. (the “Delegated Authority Report”).

18   On 9 May 2017, the third respondent, by its delegate, determined to approve the DA (the “Development Consent”).

19   Notice of the Development Consent was published in the Manly Daily newspaper on 8 July 2017.

Construction of the Proposed Development

20   On 9 April 2018, Dan Goodwin of the third respondent sent an email to the second respondent advising on the requirement for a Sydney Water tap in check (Building Plan Approval) to confirm that any excavation would not affect the sewer main running in the location of the garage.

21   On about 19 April 2018, the first and second respondents received a plan dated 19 April 2019 [sic] from MGP Building & Infrastructure Services, as Sydney Water Servicing Co-ordinator, showing the location of sewers in the vicinity of the Walding Property.

22   On 1 May 2018, MGP Building & Infrastructure Services produced a Service Protection Report for the Walding Property.

23   On 23 June 2018, an updated Survey Plan of the Walding Property was prepared by David Frew.

24   On 13 July 2018, an updated Site Plan for the Walding Property was prepared by Blue Sky Building Designs.

25   On 19 July 2018, the third respondent issued construction certificate CC2018/0207 for the development the subject of the Development Consent (the “CC”) and advised the first and second respondents that the request to appoint the third respondent and Principal Certifying Authority for the works under the CC had been accepted.

26   At or around the start of September 2018, the first and second respondents commenced construction of the development the subject of the Development Consent.

27   On 18 September 2018, the third respondent performed a critical stage inspection of excavations and footings. On 20 September 2018, the third respondent performed a steel inspection for the garage slab.

28   On 20 September 2018, GZ Consulting Engineers conducted a site inspection relating to the concrete slab for the garage and confirmed that the concrete pour could proceed.

29   In about late September 2018, the concrete slab for the garage was poured.

30   On 2 October 2018, the third respondent carried out a critical stage inspection for the garage concrete blockwork.

31   In early October 2018, the applicants engaged a conveyancer to undertake searches to determine the location of the front boundary of the Walding Property.

32   On 9 October 2018, the first and second applicants wrote by email to the third respondent regarding its suspicion that part of the Proposed Development had been carried out beyond the front boundary of the Walding Property. This was followed by a series of emails (on 12 October 2018), letters and telephone calls with representatives of the third respondent. The third respondent confirmed by email on 12 October 2018 that the matter had been referred to Council’s Building Control Team.

33   The first and second applicants subsequently engaged Rygate Surveyors to undertake an Identification Survey to determine the location of the garage and roof terrace.

34   On 19 October 2018, the third respondent carried out a critical stage inspection of the steel for the garage roof slab. On 19 October 2018, GZ Consulting Engineers carried out a site inspection of the garage roof slab and confirmed that the concrete pour could proceed.

35   On 22 and 25 October 2018, the applicants contacted Mr Thomas of Council to express their concerns regarding the location of the development.

36   On 25 October 2018, the applicants sent an email to Dan Goodwin, Building Surveyor of the third respondent, expressing concern that a response had not been received from Council and that the garage appeared to be located 6m forward of the front boundary of the Walding Property.

37 On 29 October 2018, Dan Goodwin sent an email to the first applicant, indicating that the query had been referred to the Manager of Planning for comment and that he would advise of the outcome.

38   On 1 November 2018, Anita Ugarkovic, Manager Building Control of the third respondent, sent an email to the first applicant indicating that the works were progressing in accordance with the approvals and that Council was unable to stop the construction. The applicants responded to Ms Ugarkovic’s email, indicating that the works were carried out on the Dedicated Land, their privacy was affected and that it was Council’s responsibility to address this error immediately.

39   On 8 November 2018, the applicants sent an email to Nicki Adams, Executive Officer of the third respondent, providing an overview of the matter (including the applicants’ request to order cessation of construction) and requesting a meeting with the Mayor. On 10 November 2018, Nicki Adams responded, confirming that the applicants’ email of 8 November 2018 would be forwarded to the Mayor.

40   On 12 November 2018, the applicants sent an email to Anita Ugarkovic, indicating that a response to their previous emails had not been received and that the third respondent’s delay in addressing this matter would increase the cost to Council of removing the structure. On the same day, Anita Ugarkovic responded, indicating that the matter has been escalated and that Council’s Planning Team was investigating.

41   On 19 November 2018, the first applicant called Nicki Adams, Executive Officer of the third respondent, and also sent an email querying whether a meeting with the Mayor could be arranged soon, noting that construction was continuing to progress and that a response had not been received from Council. On the same day Nicki Adams sent an email to the applicants indicating that the Mayor’s diary was heavily committed and that it would not be possible to schedule a meeting at this time.

42   On 3 December 2018, a limited initial discussion took place between the first applicant and the second respondent regarding the development on the Dedicated Land.

43   On 7 December 2018, David Kerr, General Manager Planning, Place and Community of the third respondent, sent a letter to the applicants, indicating that:

a.   throughout the development application process, Council’s records and that of the LRS did not indicate the Walding Property was affected by road widening;

b.   the Development Consent is valid until it is declared invalid by a relevant Court; and

c.   the works are consistent with the DA and CC.

44   On 10 December 2018, Bick & Steele, solicitor for the applicants sent a letter to the third respondent, indicating that an independent survey was being obtained to confirm that development had been carried out on the Dedicated Land, alleging that due to the absence of landowner consent, the Development Consent was invalid and that proceedings would be brought if the Dedicated Land was not restored to its previous condition.

45   On 10 December 2018, Bick & Steele also sent a letter to the first and second respondents, requesting the cessation of all construction on the Dedicated Land until a survey had been obtained.

46   On 10 December 2018, Rygate Surveyors was engaged by the applicants to undertake an Identification Survey.

47   On 11 December 2018, Dan Goodwin of the third respondent sent an email to the first respondent advising that the first and second applicants had no power to force them to stop work and that only the third respondent or the Court has that power. Dan Goodwin on the same day also sent an email to the first respondent advising that “nothing illegal had occurred” and that the conduct of the second applicant was “over the top” and that if it continued the first and second respondent should “consider contacting the police”.

48   On 12 December 2018, field work was undertaken by Rygate Surveyors to position the garage and roof terrace relative to the Walding Property and the Clontarf Street road reserve.

49   On 14 December 2018, an Identification Survey report was prepared by Rygate Surveyors confirming that the garage and roof terrace were located on the Dedicated Land.

50   On 17 December 2018, Bick & Steele sent a letter to the third respondent, providing a copy of the Identification Survey and requesting a response from Council about what it proposed to do to address this matter. Bick and Steele also sent a letter to the first and second respondents, providing a copy of the Identification Survey, and requesting undertakings that works cease on the Dedicated Land and that the Dedicated Land be restored to its original condition.

51   On 21 December 2018, Moray & Agnew Lawyers, acting on behalf of an insurer for the third respondent, sent a letter to Bick & Steele indicating that instructions were being sought and that a response would be provided as soon as possible.

52   On 21 December 2018, the second respondent sent an email to Bick & Steele indicating that legal advice was being sought and that a response would be provided in the new year.

53   On 5 February 2019, Bick & Steele sent a letter to the first and second respondents (copied to the solicitor for the third respondent), attaching a draft Class 4 Summons and seeking urgent confirmation as to whether the requested undertakings would be provided.

54   On 6 February 2019, limited discussions took place between the first applicant and the second respondent regarding the development on the Dedicated Land.

55   On 11 February 2019, Mills Oakley, solicitor for the first and second respondents, sent a letter to Bick & Steele confirming that the first and second respondents undertake to cease all building and construction works on the Dedicated Land so that negotiations may ensue to resolving the matter without recourse to litigation.

56   On 12 February 2019, Bick & Steele sent an email to Mills Oakley, indicating that unless the first and second respondents provided the undertaking sought including that it would restore the Dedicated Land to its previous condition, the Class 4 Summons would be filed without further notice.

57   On 12 February 2019, Mills Oakley responded to Bick & Steele, indicating that a response would be provided by 13 February 2019 and seeking advice on need for urgency and insistence on demolition of the structures not on the Lu Property or posing a safety risk.

58   On 13 February 2019, Mills Oakley sent a letter to Bick & Steele, solicitor for the applicants, indicating that any development on the Dedicated Land would be “Council’s fixtures”, queried the basis on which the first and second respondents could demolish the structures, and stated that any claim should be made against the third respondent.

Proceedings Commenced

59   The proceedings were commenced by way of Summons filed on 13 February 2019.

60   On 3 October 2019, an open letter was sent by Mills Oakley to Bick Steele, setting out an approach by which the proceedings might be able to be resolved.

61   On 24 October 2019, an open letter was sent by Bick & Steele to Mills Oakley, providing a written “assurance” and in-principal agreement to consider any design solution prepared by the first and second respondents.

Evidence

10. The Applicants tendered the “Agreed Tender Bundle” (Ex A) and Ex LL-1 to the affidavit of Ms Lin Lu affirmed 19 June 2019 (Ex B).

11. The Waldings tendered Ex AW-1 to the affidavit of Mrs Alexandra Walding affirmed 9 August 2019 (Ex 1) and a letter from Moray & Agnew Lawyers to Bick & Steele dated 14 March 2019 addressing the issue of the limitations period. The Waldings also provided a letter from Mills Oakley to Bick & Steele dated 24 July 2020 in relation to the demolition order sought by the Applicants (MFI-1).

12. The Applicants read the affidavit of Mr Alexander Brown, director of Rygate Surveyors and registered surveyor, affirmed 20 June 2019. Annexed to the affidavit was Mr Brown’s independent expert report dated 20 June 2019.

10. Other lay and expert evidence is summarised below in relation to the parties’ arguments on discretion and relief (see [171]-[230] below).

Plans and documents relevant to common boundary of Walding and Lu Properties

14. Several plans and documents which purport to show the location of the front boundary of the Walding Property are in evidence.

15. The dimensions in Lot 1 DP 119074 of the southern side and northern side boundaries of the Walding Property are 36.575 metres. This follows the dedication of land to the Council for the widening of Clontarf Street, as described in the SOAF at pars 5-9. The “Dedicated Land” excised from Lot 1. DP 119074 is extracted below:

16. On or about 20 December 2016 the Waldings lodged development application (DA) 359/2016 (the DA) with the Council. The DA form identifies the Walding Property as Lot 1 DP 119074. The site area is stated to be 504.1 square metres.

17. The DA form was accompanied by:

1. A survey plan dated 30 October 2016 (the Frew Survey Plan). The Frew Survey depicts the southern side boundary measurement as 36.575 metres. The purported front boundary of the Walding property has been drawn on the nature strip between Clontarf Street and the garden at the front of the Waldings’ house. The Frew Survey Plan includes a notation that states “[n]o boundary survey has been undertaken. Bearings and dimensions are from title only and are subject to confirmation by boundary survey”. The purported front boundary is incorrect. It is unknown how the front boundary as depicted on the Frew Survey Plan was located by the surveyor.

2. An existing site plan drawing (Existing Site Plan) dated 8 August 2015 prepared by Sullivan Design & Construction depicts the southern side boundary measurement as 36.575 metres. The location of purported front boundary is incorrect.

3. A “Notification Plan” drawing prepared by Sullivan Design & Construction dated 8 August 2015 (Notification Plan). The southern side boundary dimension is shown as 36.575 metres. The purported front boundary is incorrect.

4. The Statement of Environmental Effects (SEE) dated 15 December 2016 prepared by Planning Approvals includes an aerial view of the Walding Property sourced from the “SIX Maps” viewer as extracted below. The SEE includes the words “side boundary (South) 36.575m”. On the Six Maps image the purported front boundary has been drawn incorrectly as follows:

18. The DA was approved by the Council on 9 May 2017 including five plans affixed to the Council’s Notice of Determination being:

1. Approved site analysis plan dated 8 August 2015 prepared by Sullivan Design & Construction (reflecting the Notification Plan described in [17(b)] above) which depicts the southern side boundary as 36.575 metres and has the same purported front boundary error.

2. Proposed garage floor plans dated 8 August 2015.

3. Proposed floor plans dated 8 August 2015.

4. Proposed elevations dated 8 August 2015.

5. Landscape plan dated 29 September 2016, with the southern side boundary measurement depicted as 36.575 metres.

19. On 23 June 2018, an updated survey plan of the Walding Property was prepared by David Frew which shows the southern side boundary measurement as 36.875 metres (I assume that figure is an error, 36.575 metres being otherwise shown on other plans in evidence). No reference was made to this survey plan by the parties.

20. On 13 July 2018, an updated site plan for the Walding Property was prepared by Blue Sky Building Designs (2018 Site Plan). The 2018 Site Plan depicts the southern side boundary measurement as 36.875 metres (I assume that figure is an error, 36.575 metres being otherwise shown on other plans in evidence). No reference was made to the 2018 Site Plan by the parties.

21. Emails sent from the Applicants to the Council dated 9 October 2018 and 22 October 2018 stated that the garage on the Walding Property extended 4.573 metres beyond the boundary of the Walding Property, extending to 41.148 metres level with the southern boundary of 105 Clontarf Street Seaforth (the Lu Property), the boundary not shared by the Walding Property. An identification survey of the Walding Property in evidence showed the southern boundary to be 41.148 metres. The error of depicting the purported front boundary too close to Clontarf Street was made in all the plans and documents accompanying the DA and in the plans approved by the Council.

22. The Applicants engaged Rygate Surveyors in December 2018 to undertake an identification survey (the Rygate Survey) of the Walding Property. The Rygate Survey depicts the southern side boundary measurement of the Walding Property as 36.575 metres. The Rygate Survey identifies that the concrete garage under construction does not fall within the boundary of the Walding Property.

Ground 1– jurisdictional error due to absence of landowner’s consent

23. Ground 1 of the Amended Summons alleges absence of a jurisdictional fact as no written landowner’s consent was provided by the Council for that part of the garage to be located on the Council-owned Dedicated Land. The parties agree that Clontarf Street is a Council public road as defined in the Roads Act 1993 (NSW) (Roads Act).

24. A fundamental question that arises in these proceedings is whether they are statute-barred by operation of s 101 given that notice of the grant of development consent was published on 8 July 2017. To answer all the arguments made in relation to that question requires consideration of the nature of the error in Ground 1 inter alia, assuming that the Applicants are successful. I will therefore first determine Ground 1

Ground 1 – absence of jurisdictional fact due to no landowner’s consent

25. The summons states in relation to Ground 1:

21.   Written consent from the owners of the land on which the Proposed Development is to be carried out is a jurisdictional fact that must exist to enliven the Third Respondent’s power to grant the Development Consent.

Particulars

i. Clause 49 of the Environmental Planning and Assessment Regulation 2000 (EP&A Regulations)

ii. Clause 50(1)(a) and Part 1 of Schedule 1 of the EP&A Regulations.

22.   The Development Consent purportedly authorised the Proposed Development to be carried out on the Walding Property and the Dedicated Land.

23.   The Third Respondent erred by determining to grant the Development Consent in the absence of written consent from the owner of the Dedicated Land.

24.   The purported decision of the Third Respondent to grant the Development Consent was ultra vires.

Applicants’ submissions

26. The development consent as identified in the stamped plans purports to authorise construction on the Council’s land. Prior to the determination of the DA, written consent by all owners of the land to which the DA relates including written consent by the Council in respect of the Dedicated Land on which the block garage and roof terrace were proposed to be located, was not obtained. Such written consent is required by regs 49 and 50(1)(a) and Pt 1 of Sch 1 of the EPA Regulation.

27. It is well accepted that the requirement for landowner’s consent is jurisdictional: Jeblon Pty Ltd v North Sydney Municipal Council (1982) 48 LGRA 113 at 120 and King v Great Lakes Shire Council (1986) 58 LGRA 366 cited in Sydney City Council v Ipoh Pty Ltd (2006) 68 NSWLR 411; [2006] NSWCA 300 (Ipoh) at [37], and most recently Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 233 LGERA 170; [2018] NSWCA 245 (Al Maha). It follows that subject to any discretionary factors, the Court ought to declare the development consent invalid if it is satisfied in relation to Ground 1.

28. The Waldings rely on the decision in Sydney City Council v Claude Neon Ltd (1989) 15 NSWLR 724 (Claude Neon). The Court of Appeal held that in relation to a DA made to a council for consent to the erection of a structure which projected over a public road the council, as owner of the road under the Local Government Act 1919 (NSW) (LG Act 1919), was empowered to give its consent to the making of the application as required by s 77(1)(b) of the EPA Act, the predecessor to reg 49 of the EPA Regulation. The decision in Claude Neon and the other cases relating to the same issue (or an extension of the issue being whether the Court on appeal may exercise the same power under s 39 of the LEC Act) do not deal with circumstances in which a council was not aware that part of the land was not the applicant’s land, but in fact owned by the council. That is a significant distinguishing feature. On the Waldings’ case, the Court must accept, in application of Claude Neon, that “consent” can be given unconsciously or unknowingly. It appears to be accepted, by the Waldings’ admission in its pleadings, that the Council was not aware that the DA included Council land. It is accepted that Hope JA stated at 732 in Claude Neon that the giving of development consent is a function of a council, which is basic to the function of granting development consent. The exercise of administrative power conferred by statute requires that the consent authority be conscious of the fact that development was proposed over public land. Claude Neon and Ipoh make clear that a council may knowingly give its landowner’s consent by the grant of development consent. They are not authority that this can be done unknowingly.

29. It is imperative for the exercise of administrative power conferred by statute that the basic ingredients of the exercise of that power are met. In Claude Neon and Ipoh there was no question that the consent authority was conscious of the fact that development was proposed over public land. The Council as a landowner of public land is regulated under the EPA Act, the LG Act and the Roads Act.

30. The administrative law principle stated in Lockwood v The Commonwealth (1954) 90 CLR 177; [1954] HCA 31 (Lockwood) by Fullagher J was “that an act purporting to be done under one statutory power may be supported under another statutory power…”. In VAW (Kurri Kurri) Pty Ltd v Scientific Committee (Established under s 127 of the Threatened Species Conservation Act 1995) (2003) 58 NSWLR 631; [2003] NSWCA 297 (VAW) whether the decision to list a species under relevant legislation when the governing power was incorrectly described by the relevant committee was in issue. Spigelman CJ considered that the essential exercise of statutory power in that case was not invalid as:

56   To use the terminology of the cases quoted above, the initiating mechanism:

•   “in no way affected ... the proceedings ... so that all the conditions on which the right of the (Scientific Committee) to exercise jurisdiction depended were in fact fulfilled". (R v Bevan; Ex parte Elias and Gordon)

•   “the power is to determine (a proposal for inclusion) and that is the power which the (Committee) exercised.” (Brown v West)

•   “…no consequence attached to the specification of a source of power that did not in fact exist. The circumstances relevant to the proper exercise of the power were exactly the same whether the source of power was (s18(1) or s18(2)(b)) ... it was quite immaterial whether the source was (s18(1) or s18(2)(b)).” (Mercantile Mutual Life Insurance per Black CJ)

•   “Nor does reliance upon one rather than another head of power lead to any difference in the consequences for third parties.” (Mercantile Mutual Life Insurance per Gummow J)

•   “There was no distinction required by the procedures ... dependent upon whether (the proposal was initiated under s18(1) or s18(2)(b)).” And “The environmental aspects of the (proposal) are in truth the same whether the proposal was (initiated under s18(1) or s18(2)(b)).” (Rosemount Estates)

57   On the other hand, it could not be said that:

•      “the scope of relevant considerations differed” (Abbott v Shire of Heidelberg)

•      “what was done … differed markedly” (Newcrest Mining)

•      “the consequences … of each exercise of power are different” (Saatchi & Saatchi)

58   There is no aspect of the scope and purpose of the statute, or of its content, which suggests that an act done in reliance on a process initiated by nomination, if not supported under such process but which could be supported by a process commenced or continued on the initiative of the Committee, should be invalid (Project Blue Sky).

31. Here, the scope of considerations differed as between the decision to grant consent exercising the power under s 79C as against the decision made under s 8 of the LG Act and its own considerations as a landowner. For example, if the Council is unknowingly allowing for consent to apply to develop its own land, it has not considered:

1. whether that impedes future acquisition plans;

2. if a Roads Act approval is required and / or is in place;

3. if it intends to permanently dispose of the land; and

4. what the consequences of allowing for private development on public land in this location are, and whether that will provide a precedent or form for it to occur further.

32. Not only did “the scope of considerations differ” in the words used in VAW extracted directly above, but clearly the “consequences of each exercise of power differed”.

33. The line of authority in Claude Neon and Ipoh make clear that while a council may knowingly give its landowner’s consent by the grant of development consent, there is no authority for the proposition that it could do so unknowingly. The exercise of an administrative power unwittingly or unknowingly would at least have to meet the criteria in VAW / Lockwood as set out above, and clearly this is not the case in relation to the grant of consent in these proceedings, for inter alia, the reasons set out in [31] above.

34. The concept of “consent” (that is, allowing for something to occur) imports with it an element of knowledge about what is to occur, and control by that person or entity, to then allow or authorise it. It is illogical to suggest that any type of “consent”, being by necessity an informed process, could ever occur unknowingly.

Absence of owner’s consent jurisdictional in nature

35. The absence of owner’s consent was the reason the Court of Appeal invalidated the development consent in Al Maha. That result was not contested: Al Maha at [82]. That absence of consent is jurisdictional.

Waldings’ submissions

Claude Neon answers Ground 1

36. The Waldings submitted that the Applicants’ case is contrary to Claude Neon per Hope JA at 731:

In my opinion the principle (that is, that an approval for one purpose may impliedly be an approval for another purpose) is to be applied where a council is asked to give consent to a structure which in part projects over a public road. If the council gives development approval to that structure, it is doing two things. It is consenting as owner of the road to the making of the application, and it is also approving the application. The first consent is necessarily implicit in the second consent, and in my opinion it does not matter that the council, when giving the second consent, is not conscious that it is implicitly giving the first consent also. There is no such difference between the nature of the act of the council in giving its consent as owner and the nature of the giving by it of development consent to enable it to be said that the actions have nothing to do with each other. If the council were in a position of an ordinary private owner of land in relation to the road, the actions would be completely different. However that is not the position, and if a council considers that it should give consent to a development application it must also consider that it should give consent to the making of the application.

I have thus far been dealing with the position where the council gives development approval to the proposed structure. If it does not give that approval, either by refusing the application or by failing to deal with it, it cannot be said that it has given its consent to the making of the application. (emphasis added).

37. In granting development consent, the Council granted landowner’s consent in consenting to the application, whether or not it was conscious of doing so. Giving consent is an incident of land ownership. It is irrelevant whether the Council was conscious of giving that consent. By parity of reasoning, the Council’s “Delegated Authority Report” in recommending approval of the DA was also recommending that the Council give its consent to the application, whether or not the officer was conscious of doing so. The acceptance of the recommendation and the issue of the development consent was consent in writing of the owner to the making of the application for the purposes of reg 49(1)(b) of the EPA Regulation and evidence of consent for the purposes of Sch 1 Pt 1 cl 1(1)(i).

If absence of landowner’s consent not jurisdictional

38. To the extent there was a breach of the EPA Regulation, that breach was technical and does not render the decision to grant development consent invalid (although such a breach could be restrained through court action). In Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 (Project Blue Sky), the majority stated at [91] (see also Burwood Council v Ralan Burwood Pty Ltd (No 3) (2014) 206 LGERA 40; [2014] NSWCA 404 (Ralan Burwood) per Sackville AJA at [155]):

An act done breach or a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous. circumstances. There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issue.

39. In the present case, the Applicants contend that there has been a failure to comply with an antecedent condition expressed in positive language. As such, the provision would be regarded as directory unless the purpose of the provisions can only be achieved by invalidating the result of the departure.

If breach, development consent not invalid

40. To the extent there is a breach of reg 49 and Sch 1 of the EPA Regulation, it is not due to the absence of the consent of the Council to the making of the DA for development on its own land, but the form in which the consent is evidenced.

41. Further, an evident purpose of reg 49 of the EPA Regulation is one of property rights. A DA is not to be lodged for consideration unless it is lodged with the consent of the owner of the land. It is obvious that if development consent is granted, it cannot be carried out on the land without the owner's consent. As Hodgson JA observed in lpoh at [5], Santow JA agreeing at [10]:

In my opinion, the requirement of consent of the owner to a development application under the Act and Regulation is to be considered as a means of supporting the objects and the functioning of that legislative scheme; for example by ensuring that consent authorities are not troubled by applications that are pointless because title requirements for carrying them out will not be satisfied, and by ensuring that owners are not prejudiced by having development consents associated with their land which cause unwelcome increases in the value of land and thus in rates and taxes payable on it.

42. In the present proceedings, if there is a breach of reg 49 of the EPA Regulation, the consequences of the breach will not be significant in their impact. Public convenience is a relevant factor in determining whether the legislature intended a breach to invalidate its decision. In Project Blue Sky the majority judgment said at [97] that (see also Ralan Burwood at [176]):

... it is unlikely that it [is] a purpose of the legislation that an act done in breach of a statutory provision should be invalid if public inconvenience would be a result of the invalidity of the act.

43. Adopting and adapting the reasoning in Ralan Burwood at [177] and [178], if such a breach were to render the consent invalid, the public inconvenience that would flow from the failure to properly evidence owner's consent is likely to include the consequence that an innocent developer carries out development in breach of the EPA Act, thereby committing an offence against the EPA Act. Such an inconvenience would be disproportionate to the mischief sought to be protected by reg 49 of the EPA Regulation. This is a strong indicator that such a breach would not render the development consent invalid.

44. For these reasons, the breach of the EPA Regulation would not render the development consent invalid.

45. Al Maha does not address the question of whether after three months s 101 protects a decision to grant development consent notwithstanding the absence of owner’s consent. Woolworths Ltd v Bathurst City Council (1987) 63 LGRA 55 (Woolworths v Bathurst) is directly on point.

46. In Woolworths v Bathurst, Cripps CJ held that a challenge to the validity of a development consent based upon the absence of owner's consent was precluded from challenge by the equivalent of s 101 (then s 104A). He said:

Mr McClellan submitted that failure of an owner to consent to a development application necessarily renders the application void. In his submission, it follows that if the correspondence referred to above fell short of the consent required (and if the challenge was brought within 3 months), the development consent would be void. He thereupon submits that if the development application was void, any consent granted by the council was a decision in excess of jurisdiction or ultra vires and could not be protected by the privative clause referred to above. I accept that privative clauses must be read strictly and it is the policy of the courts to give them no greater width than is warranted in all the circumstances. However, the meaning of the clause must be determined in the context of the legislative enactment. Its main purpose is to remove any uncertainty that might exist concerning the validity of development consents. Development consents run with the land. The mischief sought to be cured by precluding challenges (other than those based on bad faith, denial of natural justice and perhaps, manifest excess of jurisdiction) is, I think, obvious. It would seem to me, therefore, that s 104A precludes a challenge to the validity of the development consent and, in my opinion, precludes a challenge to the development application where such a challenge is based upon circumstances referred to in this judgment.

47. The correctness of this passage in Woolworths v Bathurst has not been doubted in more than 30 years. This approach has been consistently applied, for example in P W Rygate & West v Shoalhaven City Council (1996) 91 LGERA 417. Pearlman J applied Woolworths v Bathurst when her Honour said at 422:

In my opinion, the conclusion that s 104A operates and takes effect in relation to a challenge to a development consent on the basis of s 83 is consistent with the scope and purpose of s 104A, which was stated by Cripps J in Woolworths Ltd v Bathurst City Council as follows:

Its main purpose is to remove any uncertainty that might exist concerning the validity of development consents. Development consents run with the land. The mischief sought to be cured by precluding challenges ... is, I think, obvious.

48. It is also consistent with what Spigelman CJ said in Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707; [2004] NSWCA 422 (Pallas Newco) at [66].

49. Unless s 101 is construed differently from the construction in Pallas Newco, the absence of owner’s consent would be protected by s 101 three months after the requisite notice.

Ground 1 established

50. The facts of this case raise matters which are complex to unravel in a legal sense. Al Maha identified at [85]-[94] the legal framework under the EPA Act and EPA Regulation for providing landowner’s consent for a DA. Preston CJ (Leeming and Basten JJA agreeing) identified how land on which development is intended to be carried out is identified:

91 The land on which the development is to be carried out is to be determined not only from the address and formal particulars of title shown on the development application form but also from the documents that must accompany the development application. The Regulation requires the development application to be accompanied by specified documents, including “a site plan”, “a sketch of the development”, and “a statement of environmental effects” (in the case of development other than designated development or State significant development) or “an environmental impact statement” (in the case of designated development or State significant development) (cl 2(1)(a),(b),(c),(e) of Sch 1 of the Regulation). The site plan must indicate, amongst other matters, “the location, boundary dimensions, site area and north point of the land” (cl 2(2)(a) of Sch 1 of the Regulation). The sketch must indicate the following matters:

(3)   The sketch referred to in subclause (1) (b) must indicate the following matters:

…

92 A statement of environmental effects must indicate, amongst other matters, “the environmental impacts of the development”, which necessarily involves a description of the development and the environment that the development will impact (cl 2(4) of Sch 1 of the Regulation).

…

93   These accompanying documents describe the development to be carried out and the land on which the development is to be carried out.

94   If the accompanying documents reveal that part of the proposed development extends to land other than the land whose address and formal particulars of title are shown in the development application form, that other land is also the subject of the development application: see Owners – Strata Plan 37762 v Pham [2005] NSWLEC 500 at [32]. Conversely, the description of the land on which the development is to be carried out in the accompanying documents (such as the statement of environmental effects) can also confine the land to which the development application relates to be a lesser parcel of land than is described in the development application form: see Rose Bay Afloat Pty Ltd v Woollahra Council (2002) 126 LGERA 36; [2002] NSWLEC 208 at [60]-[63].

51. In Al Maha no issue arose of a site plan showing incorrect boundaries being lodged in support of a DA.

52. The DA form lodged with the Council referred only to Lot 1 DP 119074 as the land where development was proposed. As identified above in [17]-[22], none of the plans lodged with the DA showed the Waldings’ front boundary in the correct location.

53. The Frew Survey Plan lodged with the DA stated expressly that it did not indicate the boundaries of the Walding Property. The notation states that bearings and dimensions are from title only and are subject to confirmation by a boundary survey. It identifies (being the same figure as the deposited plan dimensions) the side boundary length of the Waldings’ northern and southern boundaries as 36.575 metres. Wherever 36.575 metres is measured from the rear boundary would be the correct front boundary. The survey indicates a line purporting to represent a front boundary. On the assumption the rear boundary is generally accurately located on the survey, if 36.575 metres is measured accurately the Waldings’ land cannot include the approximately 4.5 metres of Dedicated Land. The marked front “boundary” line has apparently been interpreted as showing the front boundary but includes the Dedicated Land. It is difficult to understand what the survey purports to show at the front of the Waldings’ property given these inconsistencies.

54. All the other documents lodged in support of the DA showed the southern side boundary dimension as identified in Lot 1 DP 119074 of 36.575 metres but that was not the accurate measurement of the land as intended to be encompassed by these plans. Unfortunately the site plan lodged arguably did not comply with reg 50(1)(c) of the EPA Regulation which specifies that a DA must be accompanied by documents specified in Pt 1 of Sch 1. Under Sch 1 Pt 1 cl 2(1)(a) and (b) a DA must be accompanied by a site plan of the land and a sketch of the development. Under cl 2(2)(a) the site plan required by subcl (1)(a) must indicate the location, boundary dimensions and site area inter alia. Under subcl (3)(a) the sketch of the development must include the location of any proposed buildings or works in relation to the land’s boundaries and adjoining development inter alia. The accurate boundaries of Lot 1 DP 119074 were not identified in any site plan or the sketch of the development.

55. A Six Maps “plan” was also lodged with the DA in the SEE. Such a plan is not required by the EPA Regulation. Another version also appears in the Council’s Delegated Authority Report. This incorrectly depicts the location of the Waldings’ front boundary as incorporating the Dedicated Land. The Six Maps extract in evidence annexed to the affidavit of Mrs Walding contains a written caveat that Land and Property Information (LPI) “does not warrant or represent that the information is free from errors or omission, or that it is exhaustive. LPI gives no warranty in relation to the information, especially material supplied by third parties”.

56. The Council approved the DA including five plans identified in [18] above. The approved site analysis plan repeats the length of the side boundaries in the Frew Survey Plan, which in turn repeats the side boundaries of the deposited plan but shows the purported front boundary beyond that identified length. It has presumably been prepared for, and been interpreted by the Council as seeking approval for development on land which includes the Dedicated Land. The boundary measurement of 36.575 metres is not correct in showing the side boundary length of the land for which development consent was sought.

57. These circumstances inform the essential issue of whether landowner’s consent could be granted implicitly by the Council. Clearly no written consent was provided explicitly. The Council has filed a submitting appearance and not participated in the hearing. It is an agreed fact that the Council was unaware that the DA sought development consent to erect a permanent structure on the Dedicated Land which was a public road reserve. In other words, the Council understood the DA to seek consent for development on private land. This agreed fact suggests that the inference can be made that the Council was unaware that its consent as landowner was required for the DA before it.

Landowner’s consent absent when development consent granted

58. Regulation 49(1)(b) of the EPA Regulation provides that a DA may be made by any person with the consent in writing of the owner of land to which the DA relates. It is settled law that landowner’s consent must be provided by the time a council determines whether to grant development consent. Not having landowner’s consent at the time of lodging a DA is not fatal to the validity of a DA: Al Maha at [96]-[98].

59. In Claude Neon Hope JA held that in granting consent to a DA under the EPA Act to undertake development (hanging an advertising sign projecting over a public road) involving a public road vested in the control (title) of the council under s 232 of the LG Act 1919, a council does two things. It consents as owner of the road to the making of the application and it also approves the application. The consent to the development implicitly provides consent to the application concerning the use of a public road, at 731C. It does not matter that the council when giving approval is not conscious that it is implicitly giving consent to the application as the relevant landowner of the public road. This conclusion was based on the applicability of the principle that a council can impliedly exercise two powers when all it purports to do is exercise one, at 730C. The LG Act 1919 specifies functions and duties local councils may or must exercise in relation to the control of public roads including the regulation of advertisements which extend over the alignment of a road. A licence for such structures can be issued. Hope J discussed the difference between a private landowner and the owner of publicly controlled land at 731D as part of his reasoning that a council can give consent implicitly in accepting and approving a DA which affects public land under council control.

60. While landowner’s consent of a public authority can, according to Claude Neon, be given implicitly through the acceptance of a DA that explicitly relates to a public road, the important distinction the Applicants seek to make in this case is that the Waldings’ DA on its face did not purport to relate to a public road. The Applicants’ DA purported to relate only to their land. The Council was unaware when it granted development consent to the DA that it was consenting to development on land reserved for a public road. While Claude Neon is authority that landowner’s consent can be given impliedly by the action of granting development consent, in Claude Neon the parties were aware that development over a public road was in issue.

61. It was unnecessary to address in Claude Neon the issue that arises here of an unknowing council as owner of public land. It would seem fundamental to the exercise of statutory power, whether exercised expressly or by implication, that a consent authority understand that it is exercising a function of its statutory power. Surprisingly perhaps no authority directly on this point has been identified, the Applicants relying on Lockwood and VAW to emphasise that when exercising statutory power relevant considerations must be applied by a decision-maker. In VAW it was found that the necessary considerations were undertaken in relation to the relevant head of statutory power despite a different, incorrect statutory power being identified by the decision-maker, resulting in a finding that a statutory decision was not invalid. By analogy, and as the Applicants argued, considerations relevant to whether development consent to a permanent structure being built on a public road here the Dedicated Land should have been considered by the Council as part of its assessment of the DA in its role as the owner and manager of a public road.

62. In accepting the Applicants’ DA the Council was not implicitly providing landowner’s consent because it was unaware that it needed to do so. It did not purport to undertake considerations necessary to the exercise of its statutory power to give landowner’s consent in relation to public land, being land reserved under the Roads Act. Accordingly, no landowner’s consent was given by the Council to that part of the DA proposed on the Dedicated Land at the time it approved the DA.

Absence of landowner’s consent jurisdictional error

63. AlMaha, the most recent Court of Appeal decision on the effect of the absence of landowner’s consent for the validity of a DA, there in the context of private land, held that the giving of owner’s consent to a DA in relation to the owner’s land is an essential prerequisite to a consent authority granting development consent, at [95] per Preston CJ (Leeming and Basten JJA agreeing), citing Ipoh at 34(c) and (e). In reaching that conclusion the statutory framework under the EPA Act and EPA Regulation is identified at [85]-[90], including that the owner whose consent to the making of a DA is required is the owner of the land on which the proposed development the subject of the DA is to be carried out. Why that is the case is further elucidated at [97]-[98]:

97 The development application will be “ineffective and incomplete” whilst so ever the development application does not contain the information and is not accompanied by the documents that the EPA Act and the Regulation require to be provided in order for the consent authority to validly exercise the power to determine the development application. There can be no valid determination of the development application until there is substantial compliance with such statutory prescriptions: McGovern v Ku-ring-gai Council (2008) 72 NSWLR 504; 161 LGERA 170 at [189].

98 Substantial compliance may be satisfied by the later provision of the required information or documents: Botany Bay City Council v Remath Investments No 6 Pty Ltd at [14], [18] and McGovern v Ku-ring-gai Council at [187]-[200]. In particular, the lack of owner’s consent to a development application can be cured at any time up until the determination of the application: see Botany Bay City Council v Remath Investments No 6 Pty Ltd at [5]-[7] and cases therein cited.

64. It was not disputed that landowner’s consent to carrying out development is a jurisdictional prerequisite to a valid development consent, at [82]. “Jurisdictional” means the existence of a precondition to the engagement of statutory power: Trives v Hornsby Shire Council (2015) 89 NSWLR 268; [2015] NSWCA 158 (Trives) at [17].

65. The Waldings’ submissions did not directly address AlMaha, apart from submitting that it did consider the application of s 101, which is correct that not arising on the facts. Their submissions cite well-known principles of statutory construction in Project Blue Sky and Ralan Burwood to submit that a breach of the EPA Regulation would not give rise to invalidity of the DA is not supported by Al Maha. Further while obiter observations of Hodgson JA at [10] in Ipoh are cited to identify principles for identifying the purpose of reg 49 as a matter of property rights the context for these was consideration of the power of the Court under s 39(2) of the LEC Act to give consent to a DA. The development consent the subject of Al Maha was declared invalid because it involved jurisdictional error due to the absence of power to grant development consent when no owner’s consent had been obtained inter alia, at [279]. Ipoh Tobias JA (Santow JA and Hodgson JA agreeing with additional observations) at [34(d), (e)] states precisely that.

66. Woolworths v Bathurst, which the Respondents also relied on, considered quite different facts including that the council was informed that owner’s consent had been given. I agree with the Applicants that the facts of that case informed the outcome and are relevantly different from this matter. Woolworths v Bathurst pre-dates Pallas Newco and adopted the approach to s 101 which was confirmed in Pallas Newco. In that sense it represents one of the several cases before Brown where s 101 was applied strictly to prohibit the commencement of proceedings three months after public notice was given. That approach was confirmed in Pallas Newco. It does not assist in resolving whether that approach must of necessity change because of the impact of Kirk, a significant matter I turn to next.

Does s 101 bar these proceedings?

67. As I have upheld Ground 1 and found the absence of landowner’s consent was a jurisdictional error, meaning a precondition to the valid determination of the Waldings’ DA was not identified, a threshold issue arises of whether these proceedings are maintainable given s 101 of the EPA Act, a difficult question. They were commenced on 13 February 2019. A notice of the grant of development consent was published on 8 July 2017. Under s 101, proceedings are required to be commenced within three months of that notice being published. I did not allow an amendment of the Applicants’ summons during the hearing alleging that the public notification did not comply with the EPA Act and EPA Regulation. The Applicants’ counsel submitted orally that I needed to be separately satisfied that the notice was valid for the purposes of s 101. I do not agree this is necessary where the issue is not otherwise before me, see also by analogy Nominal Defendant v Gabriel (2007) 71 NSWLR 150; [2007] NSWCA 52 at [109] concerning the effect of a formal admission.

1. Six Maps is a website published by the NSW Government to be used by the public to identify the boundaries of land on aerial photographs. The boundaries in the screenshot in evidence (EB p 70) is the same as in the SEE dated 15 December 2016 and in the Council’s Delegated Authority Report dated 9 May 2017. Mrs Walding viewed the Six Maps website to see the location of the front boundary. No such disclaimer as identified by the Applicants appears when viewing property boundaries on the Six Maps website.

The Applicant commented on this submission to the effect that the evidence at EB p 70 is an undated screenshot of a Six Maps image of the Walding Property. A disclaimer does appear at the bottom of the image, indicating that the report is provided for information purposes only and that LPI does not warrant or represent that the information is free from errors or omissions, or that it is exhaustive.

3. At all relevant times since the publication of Six Maps, Lot 1 DP 119074, as it appeared on the website, showed the street frontage extending to a position which included the Dedicated Land. This is confirmed by the evidence of Mrs Walding that she looked at the Six Maps website in about mid-2015 as identified in her affidavit. The SEE and the Council’s Delegated Authority Report all show the same front boundary location as including the Dedicated Land.

The Applicants commented on this submission to the effect that Mrs Walding deposed that she checked Six Maps in mid-2015 and it (incorrectly) showed the road reserve as being part of Lot 1 DP 119074.

4. On physical inspection when observed from Clontarf Street, the street frontage boundary appears to be as identified by Six Maps. The statement under “Objective 2” in the Council’s Delegated Authority Report also supports this, together with all the Six Maps plans in evidence.

The Applicants commented on this submission to the effect that none of the documents referred to by the Waldings support the assertion that “on physical inspection when observed from Clontarf Street the street frontage boundary appears to be as identified by Six Maps”.

5. The SEE, which accompanied the DA, contained a colour photograph of the Six Maps map of Lot 1 DP 119074.

6. The Delegated Authority Report prepared by the Council also contained a colour photograph which depicts Lot 1 DP 119074 as shown on the Six Maps map, and states that an inspection took place on 11 April 2017. Photographs of the garage location were taken and are contained under a statement that the proposed garage is consistent with other properties on the street where the garage is located on the front boundary.

7. Both the DA and accompanying SEE and the Council in considering the DA, relied upon Lot 1 DP 119074 as it was depicted in the Six Maps map as accurately identifying the boundaries of that lot. There is no evidence the mistake was intentional. There is no evidence that the Council’s erroneous belief was based on its reliance on the survey and other drawings supplied by the Waldings. The Council’s letter to the Applicants dated 7 December 2018 (EB p 233) acknowledges that the Council’s own records were incorrect, suggesting that any error in relation to the location of the front boundary of the Walding Property was not caused by material from the Waldings.

The Applicants commented on this submission to the effect that the Council relied upon the erroneous survey and other drawings provided to it by the Waldings.

8. The Council was the owner of the Dedicated Land.

9. The Dedicated Land was zoned R2 “Low Density Residential” under the Manly LEP, as was Lot 1 DP 119074, and was not zoned as to indicate it was part of a road or road reserve. Garages are permissible in the R2 zone. Removal or demolition is not required on the basis of impermissibility. The LEP zoning map could not have alerted the Waldings, their agents or the Council to the error in the records.

The Applicants commented on this submission to the effect that all roads in the vicinity of the Walding Property are included within zone R2 (rather than some special purpose zone for roads).

10. The Council was appointed as the principal certifying authority (PCA) pursuant to s 109E of the EPA Act on 2 February 2018 and, pursuant to its function as the PCA, issued construction certificate CC2018/0207 (the CC) on 7 August 2018 for the works in respect of the garage on the Dedicated Land and those on the Walding Property, and at no time doubted that Lot 1 DP 119074 extended to the street frontage shown in the Six Maps map. The mistake was not intentional. The evidence does not establish that the Council’s erroneous belief of the position of the front boundary arose from reliance on the survey and other drawings supplied by the Waldings, given the Council’s admission that its own records were incorrect and what was shown on Six Maps.

The Applicants commented on this submission to the effect that it is clear that in issuing the CC, the certifier relied upon the survey plan and other drawings prepared by the Waldings.

11. In April 2018, prior to when the CC was initially about to be issued, the Council first noticed that Sydney Water infrastructure was located on what is now known to be the Dedicated Land and, acting on the assumption that the pipes were on the Walding Property, advised the Waldings to apply to Sydney Water for building plan approval.

12. On 9 April 2018, Sydney Water wrote a letter with Ref No 428568 in response to the building plan assessment application made by the Waldings containing a map showing the location of the garage within the boundaries of the site.

The Applicants commented on this submission to the effect that what the Waldings assert is not visible on the evidence.

13. The Sydney Water map shows the lot extending to the street frontage as shown in the Six Maps map. The letter advised that the construction of the garage in the proposed location required further assessment as it may impact its infrastructure assets and referred the Waldings to a Sydney Water servicing coordinator.

The Applicants commented on this submission to the effect that what the Waldings assert is not visible on the evidence.

14. The Sydney Water servicing coordinator was engaged to prepare and carry out a service protection report which also contained a plan that showed the lot extending to the street frontage as shown in the Six Maps map. The mistake was not intentional nor does the evidence establish that the Council’s understanding of the front boundary was based on its reliance on the survey and other drawings supplied by the Waldings, including Six Maps and the Council’s own records.

The Applicants commented on this submission to the effect that the service protection report expressly relies on the survey plan prepared by the Waldings for boundary depiction.

15. The accompanying design required the Waldings to have the Sydney Water sewer pipes encased in concrete under the garage extending one metre past external walls and provided for an exclusion zone around the manhole cover in what was assumed to be the Waldings’ front yard which has since been completed.

16. The Council has no plans to widen the formed part of the road that is Clontarf Street to extend to the actual front boundary of Lot 1 DP 119074 and, to the extent that there was a proposal to widen the road into the Dedicated Land, the proposal had long since been abandoned. When the s 149 certificate was issued on 18 December 2015 the Council considered the Dedicated Land was part of Lot 1 DP 119074. The certificate did not indicate the lot was subject to road widening. The inference to be drawn is that the land dedication took place more than 60 years ago. Clearly the road widening did not take place and was abandoned long ago and seemingly forgotten as the Council records do not appear to record it.

17. On 18 January 2017 the Applicants made a written objection to the DA but it made no reference to or allegation that the proposed garage was to be constructed on land not owned by the Waldings but on land dedicated to the Council. Ms Lu’s oral evidence was that she was aware of the location of the Waldings’ front boundary at the time she considered the notification plans and then made her objection.

18. At or around July 2018, the Council as PCA carried out necessary inspections including utilities, driveway, formwork and concrete pouring, and the garage was completed, apart from cosmetic finishing, in November 2018.

19. In December 2018, at or after the completion of the construction of the garage on the Dedicated Land:

1. the Applicants first claimed that the garage had been constructed on land not owned by the Waldings but on land dedicated to and owned by the Council and claimed that the development consent was invalid; and

2. the Waldings only became aware that the garage may not have been constructed on land owned by them in December 2018.

The evidence of Ms Lu suggests that she was aware, or certainly should have been aware at the time the DA was notified, of the location of the garage intended on the Walding Property. Her evidence of when she first learned of the true position of the front boundary of the Walding Property in relation to the garage and of her own property is contradictory.

The Applicants commented on this submission to the effect that they do not agree with the dates relied on by the Waldings. After making inquiries about property boundaries, they sent an email to the Council on 9 October 2018 raising their submission that development was being carried out beyond the Waldings’ front boundary.

20. These proceedings were not commenced until 13 February 2019:

1. the development consent having been granted on 9 May 2017, almost two years before; and

2. the construction of the garage on the Dedicated Land having been commenced on July 2018 and nearly completed in November 2018. The Applicants could have reasonably known earlier as they were aware that the Waldings’ boundary was roughly in line with their letterbox, viewed the notification plans and could have determined the location of the garage from these.

The Applicants submitted that they could not have known earlier than September 2018 when the concrete slab was poured that the garage was being built on the Council’s land.

247. The Applicants’ evidence is that their main concern is the impact of the development on their privacy. The Applicants bear the onus of persuading the Court to exercise its jurisdiction to order demolition. The evidence adduced by the Waldings, including the evidence of Mr Betros, is that an order for demolition should not be made. The impact of the garage on the Applicants’ enjoyment of their property can be addressed by orders consistent with the recommendations of Mr Betros. The Waldings have made reasonable open offers to ameliorate the impacts of the garage. No real environmental utility would be served by making an order for demolition of the garage. No adverse consequences flow from the error as to land ownership. The impact of the garage on the Applicants’ land was lawfully assessed by the Council and no challenge is made to the grant of consent based on the Council’s consideration of the impacts on the Applicants’ land.

248. It is a significant discretionary factor that the proceedings were not commenced until the garage was effectively completed.

249. The Waldings submitted that alternatively the Court should make orders under s 25B of the LEC Act specifying compliance through the Waldings obtaining development consent for the use of the garage.

250. The Applicants seek to rely upon alleged inadequacies in the DA and the Council’s assessment of the DA (see Applicants’ submissions summarised in [240] above). The Applicants sought to raise these matters on the first day of the hearing. These matters had not previously been raised in submissions or pleadings. The Court ruled that the Applicants were not allowed to raise these matters and rejected paragraphs in Mr Kosnetter’s report on that basis. The Applicants should not be permitted to raise these matters now, contrary to the Court’s ruling.

Discretion to extend time under UCPR r 59.10 granted

251. Most relevantly for the application of UCPR r 59.10 is whether the delay in commencing these proceedings by the Applicants outside the three month period should preclude them being commenced, or at this stage proceeding to final determination. The Applicants bear the onus of demonstrating why time to commence these proceedings should be extended. Under subr (3), matters the Court can consider include (a) any particular interest of the plaintiff in challenging the decision; (b) possible prejudice to other persons caused by the passage of time, if the relief were to be granted including but not limited to prejudice to parties to the proceedings; (c) the time at which the plaintiff became or, by exercising reasonable diligence, should have become aware of the decision; and (d) any relevant public interest. This list is not exhaustive given the chapeau of subr (3) of matters that the Court can consider. As identified in Bankstown City Council v Ramahi at [74] citing Toth v Director of Public Prosecutions (NSW) [2014] NSWCA 133 at [9] and Dyason v Butterworth [2015] NSWCA 52 at [65], additional considerations can include the length of delay, the reasons for the delay and whether an applicant has a fairly arguable case.

252. The competing submissions on discretion to extend time are finely balanced in this matter. The starting point for the events that have unfolded is that the Waldings applied for development consent over land which they did not own at the front of their property. Their error was compounded by the Council’s inadequate records in relation to the road reservation executed in the early 1950s which resulted in council staff not identifying the error. The Waldings, the person who prepared the SEE and the Council relied on Six Maps to locate the front boundary. Apparently Sydney Water also relied on Six Maps. Indeed much of the Waldings’ submissions set out in [246(a)], [246(b))], [246(c)], [246(d)], [246(e)], [246(f)], [246(g)], [246(j)], [246(m)] above is focussed on the use of Six Maps, suggesting this was reasonable on their part. The website has a disclaimer on it when a map is printed suggesting it should not be so used. No boundary survey plan of the Waldings’ property is in evidence. I therefore infer none was obtained at the time of purchase of their property in 2014, in the absence of which the precise boundaries were not identified to them or by them at that time. The various plans in evidence are discussed above in [14]-[22].

253. No boundary survey or site plan was prepared for the Waldings’ DA despite the requirement in Sch 1 Pt 1 cl 2(1)(a) and (2) of the EPA Regulation with the result that their front boundary was not identified correctly at the time their DA was submitted. All the plans lodged in support of the Waldings’ DA show their front boundary in the wrong location. The perils of relying on Six Maps to identify legal property boundaries as the Waldings and the Council’s assessing officers did are well and truly highlighted by these events. While the Respondents submitted that Six Maps is published by the NSW Government for use by the public to identify boundaries of land on aerial photographs, that is clearly not correct for all purposes. Use of Six Maps does not necessarily comply with the EPA Act and EPA Regulation concerning the identification of property boundaries.

254. The Waldings’ counsel sought to suggest that the Council relied on its own inquiries rather than the plans attached to the Waldings’ DA. It is difficult to draw any conclusion on that issue but I have noted above in [21] that the error in the southern boundary dimension in plans lodged with the DA also appears on the site analysis plan approved by the Council, suggesting reliance on the plans lodged with the DA.

255. The Waldings’ counsel endeavoured in cross-examination to suggest that Ms Lu should have noticed the front boundary error in the notification plan sent out by the Council. The notable matter that the Waldings’ submissions do not acknowledge is the reference to the southern boundary measurement of 36.575 metres as identified on Lot 1 DP 119074 on a number of plans, as set out above in [14]-[22]. This boundary measurement is identified in Ms Lu’s evidence as an important piece of information. The southern boundary measurement on the notification plan shows the deposited plan boundary length, not the actual boundary length for the land intended to be the subject of the Waldings’ DA. The same errors appear in the plans approved by the Council. These are the circumstances against which Ms Lu’s actions should be considered.

256. In terms of the matter identified in subr (3)(c), the Applicants’ interests are as neighbours who have a substantial building located next to their front boundary on land which they knew to be owned by the Council and which they did not understand was the subject of the Waldings’ DA. I accept their evidence that the location of the garage with a rooftop trafficable deck very close to their living area at the front of their house is having substantial privacy impacts upon them. That is clear from the photographs attached to Mr Lu’s affidavit.

257. In relation to subr 3(b), there is substantial prejudice to the Waldings caused by the passage of time if the relief sought of demolition of the garage is granted, given they have now nearly completed expensive construction of a substantial garage and undertook additional expensive works to comply with Sydney Water requirements. The Waldings built their garage in reliance on their development consent and it was largely complete in November 2018 before these proceedings were commenced in February 2019.

258. In relation to subr 3(c), the time when the Applicants should have been aware that the Council granted development consent in May 2017 exercising reasonable diligence is the relevant event to which the subsection refers, as the Waldings rely on. There is no evidence about when Ms Lu became aware that development consent had been granted and that notification of the DA had taken place.

259. The factors in subr (3) are not exhaustive. Other relevant matters that may be considered includes the strength of the Applicants’ case. I have found that the absence of owner’s consent at the time development consent was granted is a jurisdictional error.

260. Turning to the length and reason for the delay, on the Applicants’ case the relevant time to consider is when they became aware that the Waldings’ development consent purported to allow them to build on the Council’s land. This occurred only after construction commenced, on Ms Lu’s undisputed evidence, in late September 2018. Ms Lu then arranged for a search of property boundaries. Ms Lu alerted the Council of her concerns on 9 October 2018 and had several email exchanges with council officers in relation to her request that they take action. The discovery that the garage was built on council land did not come to light until the Applicants took action. The Applicants’ solicitor gave notice of intention to the Waldings to commence proceedings in the Court unless an undertaking to demolish the garage was received on 10 December 2018. The Rygate Survey was prepared on or about 12 December 2018. Discussions were held between the parties. Ultimately these proceedings were commenced on 13 February 2019.

261. The Waldings submitted that Ms Lu, if exercising reasonable diligence when she received the notification plan from the Council in December 2016, should have noticed the incorrect front boundary on the notification plan for the DA. This plan showed the side boundary measurement which she understood was the correct length. Ms Lu was cross-examined about this. Her evidence was that she assumed that the information she received from the Council was correct. She did not notice the distance between the front of her house and the garage as shown on the notification plan. Her evidence is that she is not experienced in reading plans. As a result of her conversation with the Waldings before the DA was submitted, she understood that they understood where their front boundary was and the common boundary length identified in the notification plan was correct. As Ms Lu was not then aware of the proposed location of the Waldings’ garage beyond their legal boundary, she did not comment on that issue to the Council in her submission during the notification of the DA period.

251. Ms Lu’s affidavit evidence summarised above in [172]-[192] is to the effect that she understood there was some restriction on the use of the land at the front of her property. While there were some changes in her precise evidence about when she understood her boundary did not extend beyond her letterbox, that does not undermine her overall evidence. I have already identified the errors in the plans submitted with the Waldings’ DA. I accept Ms Lu’s evidence that she was not aware at the time of the notification plan of the DA of the error in the location of the front boundary of the Walding property and there was no failure to exercise reasonable diligence on her part.

252. Mr and Mrs Waldings’ affidavits refer to them not being made aware of a road reservation at the front of their property at the time of purchase. Whatever gave rise to that situation, it was certainly not caused by the Applicants. Mrs Walding refers in her affidavit to advice from Cunningham’s Real Estate agency at the time of their purchase. A plan of the Walding property prepared by that agency essentially for marketing purposes is attached to her affidavit. That plan states that it is indicative only and should not be taken as an exact representation of the property, its accuracy has not been verified and prospective purchasers must rely on their own enquiries and verify the accuracy of the information before proceeding. Mrs Walding relied on Six Maps to identify her front boundary when the DA was being prepared. That also has a caveat upon it that it should not be relied upon for boundary purposes. If a boundary survey had been prepared which measured the side boundary dimension shown on the deposited plan, plans and documents lodged with the DA and in the plan approved by the Council when development consent was granted would presumably have had the front boundary correctly identified. The form of development sought and approved would of necessity have been different if confined to the Waldings’ property.

253. Balancing these many factors, I consider that leave to commence and continue these judicial review proceedings should be granted.

Exercise of discretion – is demolition of garage or other relief warranted?

265. The circumstances of this case are unfortunate to say the least. The Waldings sought and obtained development consent from the Council, the latter being aware that it was assessing an application for land which turned out to include land in front of the legal boundary of the Walding property. As I have found that a jurisdictional error has occurred given the absence of landowner’s consent when development consent was granted, the issue arises whether the relief the Court grants should include a declaration of invalidity of the development consent and separately whether demolition of the garage or some other order ought to be made. The Applicants argued private advantage to the Waldings, environmental impacts on the Applicants as a result of the garage and criticised the Council’s assessment. While the last argument is recorded in the Applicants’ submissions above in [240], parts of it are contrary to the ruling I made during the hearing that a challenge to the granting of development consent by the Council on the grounds of inadequate assessment was not permitted in a discretionary argument. Nevertheless the Applicants’ evidence does establish that they are suffering substantial privacy impacts as a result of the trafficable roof area on top of the Waldings’ garage and I will take that evidence into account.

266. The broad discretion of the Court to grant the relief it sees fit is identified in the Applicants’ submissions in [237] above, citing the well-known authorities of Hannan at 311 and Sedevcic at 339. The Court can order demolition and has done so on numerous occasions but each case must be determined on its own facts. A number of matters relevant to the exercise of the Court’s discretion in relation to the relief sought of demolition of the garage have already been canvassed above in terms of delay in commencing these proceedings as was necessary to consider in relation to the application of UCPR r 59.10. I will not repeat them again but take them into account to the extent they are relevant to the exercise of the Court’s wider discretion.

267. In relation to the Applicants’ submission that the Waldings obtained a private advantage, their doing so was unintentional. This case is quite unlike two cases relied on by the Applicants where the Court ordered demolition. In Taylor building work without development consent partly on Crown reserve land was carried out and in Stojanovski no development consent was obtained for environmentally harmful works. The gaining of private advantage by the Waldings was certainly not deliberate and was not identified by the Council, the relevant land owner, who as the consent authority considered the DA. This submission has limited relevance in the peculiar circumstances here.

268. I should also note that the Council has filed a submitting appearance so that there is no direct evidence of its intentions in relation to the Dedicated Land in light of the circumstances before me. Mr and Mrs Walding attested in their affidavits to conversations with council officers about the Council being favourably disposed to the Waldings purchasing the Dedicated Land where the garage is located. On 21 May 2019, the Waldings made enquiries about their intention to purchase the Dedicated Land by the proper application process from the Council with the “Land Dealings Officer, Property Commercial & Tourist Assets”. The initial review by the “Transport Civil & Infrastructure Assets Team” is underway. The Applicants commented on this submission to the effect that in a letter to them the Council stated that it is not considering disposal (by means of sale, lease or licence) of the Council land. Ms Lu was told by a council officer that no sale would occur while court proceedings were on foot and such a sale would require a formal public process including a council resolution. The evidence discloses that the Council’s own records do not indicate that it owns the Dedicated Land and apparently also referred to Six Maps to identify land boundaries. The Council assessed and approved the Waldings’ DA in the usual course of business, was appointed the certifying authority for the development consent and approved the work undertaken. No evidence of the Council wishing to retain the Dedicated Land is before me. No basis to order demolition arises from the Council’s actions.

269. The key issue in relation to whether demolition ought to be ordered as relief is that the Applicants delayed in commencing these proceedings in the sense that the building the subject of the challenge was largely complete by the time proceedings commenced. The substantial financial prejudice to the Waldings is significant given these circumstances.

270. While the Applicants attempted to have the Council address the problem, the Council was not able to unilaterally change or withdraw the DA. The Applicants should have commenced proceedings earlier, given that they knew the Waldings were continuing with building work in reliance on what they were entitled to consider was a valid DA. This is an important consideration in the exercise of discretion as the financial hardship for the Waldings is very substantial if demolition of their nearly complete garage is ordered in circumstances where they held a valid development consent at the time of building and the Council had acted as the private certifier for the project.

271. Considering the evidence of the town planners set out above in [220]-[230], as I ruled during the hearing, Mr Kosnetter’s opinion of whether the Council should have approved the DA on merit grounds is not able to be read in relation to discretion, given that the DA was not otherwise subject to any substantive challenge in these judicial review proceedings. The planners agreed that measures to address the privacy impacts on the Applicants’ property could be implemented. They otherwise differed in their opinion of whether the garage did fit within the streetscape along Clontarf Road. Given the limited scope to consider planning issues in these judicial review proceedings, the Applicant has not demonstrated through its planning evidence that demolition is warranted.

272. Balancing up all these factors, I do not consider that demolition is warranted. Measures to ameliorate the privacy impacts on the Applicants from the use of the rooftop deck on top of the garage should be implemented with appropriate orders made to achieve that outcome. One proposal made by the Respondents was the application of s 25B of the LEC Act. I do not consider that such an approach is warranted given that appropriate orders can otherwise be made.

273. I will also discuss with the parties whether I should make a declaration of invalidity of the Waldings’ development consent. As identified in Liverpool City Council (No 2) at 212, a finding of a breach of the EPA Act does not automatically give rise to a declaration being made. Nor do I consider a declaration is necessary to found the making of remedial orders. I should note, given the Waldings’ counsel’s reliance on the outcome in Liverpool City Council v Roads and Traffic Authority where proceedings in which a breach of the EPA Act was established were dismissed, that I do not consider the circumstances of this case to be at all similar. The Applicants’ delay is not disentitling to any relief being granted to them.

274. The Court was not taken to the details of the ameliorative measures proposed by Mr Betros to relieve privacy impacts. It will be necessary to consider how much, if any, of the rooftop area of the garage should be allowed to be trafficable. The parties will need to discuss ameliorative measures to propose to the Court to enable final orders to be made.

275. Costs generally follow the event in judicial review proceedings. The Applicants have been successful in many of their legal arguments with more limited success in relation to the exercise of discretion. Costs will need to be considered by the parties and submissions made in the absence of agreement as to an appropriate costs order once final relief has been determined.

276. A timetable for consideration of appropriate final orders, including to facilitate ameliorative measures to be undertaken by the Waldings and costs will be discussed with the parties.

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Addendum made on 5 August 2021

277. Further to [276] of my judgment of 15 March 2021, the parties agreed on the following orders:

1. The First and Second Respondent must carry out in a proper and workman like manner within 6 months of the date of these orders the ameliorative measures to the garage rooftop terrace in accordance with the sketch plan prepared by Anthony Betros dated 15 July 2021 and contained at Attachment “A” to these orders (Sketch Plan).
2. Costs are reserved.
3. The parties have liberty to restore on seven days’ notice with respect to Order 1.
4. Subject to Orders 1, 2 and 3 the proceedings are otherwise dismissed.

ANNEXURE A -  lu walding attachment a_2021_08_05_16_34_00_929 (28239, pdf) lu walding attachment a_2021_08_05_16_34_00_929 (28239, pdf)

Amendments

05 August 2021 - Addendum to judgment added 5 August 2021

Decision last updated: 05 August 2021