Mason Architects v North Sydney Council - [1999] NSWLEC 176

Land and Environment Court

of New South Wales

CITATION:

Mason Architects v North Sydney Council [1999] NSWLEC 176

PARTIES

APPLICANT
Mason Architects

RESPONDENT
North Sydney Coucnil

NUMBER:

10226 of 1999

CORAM:

Lloyd J

KEY ISSUES:

Question of Law :- Development in contravention of previous development consent - whether such development permissible

LEGISLATION CITED:

DATES OF HEARING:

06/25/1999

DATE OF JUDGMENT DELIVERY:

07/30/1999

LEGAL REPRESENTATIVES:

APPLICANT:
Mr A Seton (Solicitor)
SOLICITORS:
Marsden Solicitors
RESPONDENT:
Ms S Duggan (Barrister)
SOLICITORS:
Mallesons Stephen Jaques

JUDGMENT:

IN THE LAND AND Matter No: 10226 of 1999

ENVIRONMENT COURT Coram: Lloyd J

OF NEW SOUTH WALES Decision date: 30/07/99

MASON ARCHITECTS

Applicant

NORTH SYDNEY COUNCIL

Respondent

JUDGMENT

1. This is the separate determination of a preliminary question of law in an appeal under s 176 of the Local Government Act 1993 against the refusal by the respondent of a building application for alterations and additions to an existing dwelling house. The separate determination of the question is permitted by Part 31 Rule 2 of the Supreme Court Rules and which form part of the rules of this Court (Land & Environment Court Rules 1996 Part 6 Rule 1).

2. The question of law was raised by the respondent and was as follows:

Whether condition (b) of development consent 1437/87 applies to the proposal and whether the proposal may be approved having regard to the non-compliance with condition (b) of that consent.

3. At the commencement of the hearing the respondent reformulated the question as follows:

(1) Does condition (b) of development consent 1437/87 endorsed on 21 March 1988 apply to the land the subject of the appeal?
(2) Would the proposal the subject of the appeal involve a contravention of conditions (b) or development consent 1437/87?.
(3) If the answer to (2) is yes, is the application the subject of the appeal capable of approval?

The Relevant Facts

4. The question arises in the following circumstances. On 21 March 1988 the respondent granted development consent pursuant to s 92 of the Environmental Planning & Assessment Act 1979 to a development application (No.1437/87) for the subdivision of land. The plan of subdivision showed 4 proposed allotments each having an area respectively of 210 square metres (proposed lot 1), 233 square metres (proposed lot 2), 240 square metres (proposed lot 3) and 249 square metres (proposed lot 4). The development consent was subject to a number of conditions, including:

(b) The applicant entering into a restriction as to user so as to limit dwelling size as to a maximum of 135m2 if any allotment in the subdivision is of an area of less than 232m2.

5. The linen plan for the subdivision which was approved by the respondent and is now registered shows each allotment as having an area respectively of 213.8 square metres (lot 1), 231.9 square metres (lot 2), 248.2 square metres (lot 3) and 246.7 square metres (lot 4).

6. The subject land is lot 2. It is immediately apparent that it has an…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1999] NSWLEC 176
Decision Date: 07/30/1999

CaseChat Overview and Summary

The Land and Environment Court of New South Wales was presented with an appeal by Mason Architects against a decision by North Sydney Council to refuse a building application for alterations and additions to an existing dwelling house. The core issue before the court was whether the proposed development contravened a previous development consent, and if so, whether such a development could still be permissible. The legal principles in question involved the interpretation of development consent conditions and the effect of a restriction as to user under the Conveyancing Act 1919.

The court examined the development consent granted in 1988, which included a condition that limited the size of any dwelling to a maximum of 135 square metres if any allotment in the subdivision was less than 232 square metres. The subject land, lot 2, had an area less than 232 square metres, and the proposed alterations would result in a dwelling larger than 135 square metres. The central legal debate hinged on whether the restriction as to user, which did not burden lot 2, could override the development consent condition. The court held that the condition remained mandatory and that the development consent operated in rem, meaning it ran with the land and did not merge with the s 88B instrument upon registration of the linen plan. Therefore, compliance with the condition was still required, and a further consent could not be granted in contravention of it.

In delivering the judgment, Lloyd J concluded that the development consent condition applied to the subject land and that the proposed development would indeed contravene that condition. The court found that the condition was clear and unambiguous, and it rejected any argument that the condition could be construed beyond its literal terms. Lloyd J also clarified that the term "dwelling size" referred to the gross floor area rather than the area of the site covered by the dwelling. Consequently, the court determined that the application was not capable of approval due to the non-compliance with the development consent condition.

Orders