MCC Energy Pty Limited v Wyong Shire Council

[2004] NSWLEC 16

Land and Environment Court

of New South Wales

CITATION:

MCC Energy Pty Limited v Wyong Shire Council and Others [2004] NSWLEC 16

PARTIES:

APPLICANT
MCC Energy Pty Limited (ACN 056 331 554)

FIRST RESPONDENT
Wyong Shire Council

SECOND RESPONDENT
Scott James Ford

THIRD RESPONDENT
Lorraine Gayle Ford

FILE NUMBER(S):

41031 of 2002

CORAM:

Cowdroy J

KEY ISSUES:

Development Consent :- consent granted pursuant to delegation - conditions of exercise of delegation not fulfilled - consent granted contrary to Council's policy and objectives - consent granted against significant public objection - consent granted to development application having minor differences to previous application for which refusal was recommended - considerations for refusal of previous application identical to subsequent application - grant of consent unreasonable in Wednesbury sense - order for removal of contravening structure.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979, s 79(1)(b), s 79A(2), s 79C(1)
Land and Environment Court Act 1979, s 69
Local Government Act 1993, s 378
State Environment Planning Policy No. 6, cl 3(a), cl 6(1),
Wyong Local Environmental Plan 1991

CASES CITED:

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223;
Attorney-General v Greenfield and Others (1961) 6 LGRA 230;
Auckland Lai v Warringah Shire Council (1985) 58 LGERA 276;
Glowpace Pty Ltd v South Sydney City Council (2000) 111 LGERA 84;
Hardi v Woollahra Municipal Council (unreported, Land and Environment Court of New South Wales, Cripps J, 17 December 1987);
Hornsby Shire Council v Malcolm (1986) 60 LGRA 429;
Hornsby Shire Council v Porter and Others (1990) 19 NSWLR 716;
Kioa and Others v West and Another (1985) 159 CLR 550;
Lyons v Sutherland Shire Council and Others (2001) 117 LGERA 334;
Marsh & Nass v North Sydney Council (Bignold J, Land and Environment Court New South Wales, 29 February 1996, unreported);
Parkes and Spencer v Rastogi and Newcastle City Council (1992) 78 LGERA 71;
Proprietors of SP 13318 & 13555 v Lavender View Regency Pty Ltd and North Sydney Council (1997) 97 LGERA 337;
Rowley v New South Wales Leather and Trading Co Pty Ltd and Woollahra Municipal Council (1980-82) 46 LGRA 250;
Somerville v Dalby (1990) 69 LGERA 422;
Tatem Steam Navigation Company Ltd v Inland Revenue Commissioners [1941] 2 KB 194;
Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335

DATES OF HEARING:

10/12/2003
11/12/2003
12/12/2003

DATE OF JUDGMENT:

02/18/2004

LEGAL REPRESENTATIVES:

APPLICANT
Litigant in person represented by
Mr K. Muir (Director)

FIRST RESPONDENT
Mr S. Berveling (Barrister)

SOLICITORS
Abbott Tout

SECOND RESPONDENT
Mr S. Singh-Panwar (Solicitor)

SOLICITORS
Aubrey Brown Partners

THIRD RESPONDENT
Mr S. Singh-Panwar (Solicitor)

SOLICITORS
Aubrey Brown Partners

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

41031 of 2002

Cowdroy J

18 February 2004

MCC Energy Pty Limited

Applicant
v

Wyong Shire Council

First Respondent

Scott James Ford

Second Respondent

Lorraine Gayle Ford

Third Respondent

Judgment

Introduction

1 The applicant seeks a declaration that development consent granted by Wyong Shire Council (“the council”) to development application DA 1370/02 in respect of lot 42 in deposited plan 27889, known as 26 Elizabeth Drive, Noraville NSW 2076 (“the consent”) is void and of no effect. A consequential order is sought for the demolition of the upper storey extension of the dwelling which has been partially erected pursuant to the consent.

Site history

Development Application 609/02

2 On 15 March 2002 the second respondent and third respondent (“Mr and Mrs Ford”) made development application 609/02 (“DA 609/02”) to the council to develop their land known as 26 Elizabeth Drive, Noraville NSW 2076 (“No. 26”). The application was described as “[p]roposed extension. Existing shed to be demolished.” The plans accompanying the application show the addition of a proposed upper floor extension to an existing dwelling, the demolition of a shed, and a proposed patio and storeroom to be constructed towards the south western boundary of the property. Four objections were received in respect of such development application including one from the applicant.

3 The applicant is the owner of 29 Budgewoi Road, Noraville (“No. 29”) which is located to the rear of No. 26 and slightly to the south thereof. The applicant objected to a loss of view, and raised numerous objections. The owners of 31 Budgewoi Road, Noraville (“No. 31”) also objected upon the ground that their view would be lost if the development proceeded. Mr and Mrs Wall who resided 33 Budgewoi Road, Noraville (“No. 33”) objected upon several grounds.

4 The objectors claimed that the extension would convert the existing dwelling into a three level house which would constitute an over-development for the site. Additionally they submitted the height of the proposed extension would eliminate the views north and east, the sea breeze and winter sun for the houses situated behind, namely No. 27 to No. 33 Budgewoi Road.

5 The Health and Development Department (“the Development Department”) of the council considered the objections. It recommended refusal of DA 609/02 upon the grounds that the development would cause excessive view loss from adjoining properties; would set an undesirable precedent and was not considered in the public interest in that excessive portions of existing view corridors would be lost; the proposed development was not sensitive to the site attributes; that the design was not considered to be in keeping with the adjoining properties in terms of design, height, bulk and scale.

6 On 9 May 2002 the Development Department reported such findings to the Development Assessment Panel, which is referred to in later reports as the Development Management Panel (“DMP”) of the council. By letter dated 9 May 2002 and received by council on 10 May 2002 Mr and Mrs Ford withdrew their application. Accordingly the council did not finally determine the application.

Development Application 1370/02

7 On 31 May 2002 Mr and Mrs Ford made a further development application to council to develop No. 26. The work described was “[p]roposed extension to existing dwelling. Shed to be demolished.” This development application was numbered development application 1370/02 (DA 1370/02”).

8 Objections were received by council to DA 1370/02 from the owners of No. 31, No. 33, 35 Budgewoi Road, Noraville (“No. 35”) and No. 28 Elizabeth Drive, Noraville (“No. 28”). In response to such objections by letter dated 3 July 2002 the council wrote to Mr and Mrs Ford requesting that they provide sight lines and view corridors from No. 31, No. 33 and No. 35. Such information was apparently never provided.

9 Neither Mr and Mrs Lane who reside at No. 27 Budgewoi Road (“No. 27”) nor the applicant were notified of DA 1370/02. However Mr Muir, a director of the applicant, learnt of it and by letter dated 16 June 2002 forwarded a detailed objection based upon the height of the proposed building, the destruction of views, and the alteration of the existing dwelling at No. 26 into a three storey dwelling.

10 A report from the Development Department to the DMP of the council dated 29 July 2002, states that the application had been reviewed. The report contains the following introduction:-

An application has been received for dwelling additions to an existing dwelling. The additions comprise of a bedroom, study, small terrace, and a storeroom. The existing dwelling consists of a garage and workshop on the ground floor and living space and bedrooms on the second storey. By definition, under State Environmental Planning Policy (SEPP) No.6, the proposed development is classified as two storeys.

11 Under the description of “history” the following is noted:-

The current building was approved in the late 1970’s and is sited towards the rear of the property. The building is currently two storeys high with the external materials of the building consisting of brick, weatherboard, timber and tiles.
The property is flat at street level but rises significantly towards the rear where the current dwelling is sited, to maximise ocean views.
Development Application No. 609/02 was lodged on March 15, 2002 for the erection of a third storey. Due to the bulk and scale of the proposal, that refusal was likely, resulting in the applicant withdrawing the application. [sic]
After further discussions with Council staff the applicant made considerable modifications to the original proposal and submitted the current application for consideration.

12 The following is then recorded:-

STATUTORY REQUIREMENTS
The subject site is currently zoned 2B [sic] Multiple Dwelling Zone. The proposed development is defined as a dwelling house and is permissible within the 2B [sic] Zone. The 2B [sic] Zone permits dwellings generally not exceeding two storeys. The proposed development will consist of two storeys.

13 The report then considered council policy and strategic implications, ecologically sustainable principles and dealt with relevant issues which were identified as context and setting. Under the heading of “Design, Bulk and Scale” the following passage is included:-

The height of the building is not considered excessive at a maximum height of 9.2 metres. The height of the building is less than the 12 metre maximum prescribed in the AMCORD document and will be contained wholly within the building envelope.

14 With respect to views, it was noted that the existing building was located on a high frontal dune with expansive views and continues:-

Properties fronting Bludgeon [sic] Road that abut the rear of the subject lot have developed over time with most constructing two storey dwellings to ensure they achieve ocean views across the allotments nearer the ocean. The applicant recognising that the original proposal had a significant impact upon the views of the property at the rear designed the current application to permit and entrench a view corridor across the subject allotment. This has been achieved by locating the liveable areas to the south of the current footprint and an open roofed porch atop of the north portion of the existing footprint.
The issue of view loss is always contentious with many people forming the opinion that they have the right of view ownership rather than view sharing. In this case, it is acknowledged that some views will be lost by the properties in Bludgeon [sic] Road, however, the applicant has presented a design that integrates with the fabric of the existing dwelling and provides view corridors for the properties at the rear.

15 Under the heading of “Public Interest” it was recorded that the application had been notified in accordance with the council’s policy and that five submissions were received:-

l Size, scale and bulk

Comment: At its highest point from natural ground level, the proposed development will have a maximum height of 9.2 metres. This height of the building is less than the maximum 12 metres and is contained wholly within the building envelope both of which are prescribed in the AMCORD document.
The design of the proposed development is contemporary and consistent with recent developments in the Noraville and Norah Head area. The proposed additions will integrate with the existing building and will be constructed using similar materials. The design incorporates architectural relief by the use of openings, verandahs and varied roofline to reduce the appearance of bulk.

l Loss of view

Comment : Digital photos and site lines of existing view corridors from affected properties have been used to assess the impact on views. The property directly affected by the development is No.33 Budgewoi Road, Noraville as a portion of the existing view will be lost, however, the design of the proposal allows for the retention of significant views from this property and has allowed for view sharing. Significant views from other surrounding properties will be retained. The photos over page show the existing view from No.33 Budgewoi Road, Noraville.
…

l Number of storeys

Comment : The proposed development will consist of 3 storeys, however, as the ground floor consists only of a garage and workshop, the definition of storey in SEPP6 excludes this area from the calculation. It is recognised as a 2 storey dwelling.

l Overshadowing

Comment : As the proposed development will be setback 6 metres from the rear boundary and to the east of the properties in Budgewoi Road, no unreasonable overshadowing will be experienced. The properties in Budgewoi Road will still receive 100% direct solar access for more than the recommended 2 hours by AMCORD.
Design
A storeroom has been proposed to be constructed on the southern boundary with a nil setback. Council’s Development Control Plan No 99 Building Lines requires a set-back of 900mm. It is also proposed to provide vehicular access to this area, which would result in excessive hardstand and a poor visual presentation. It is therefore Council’s intention to delete the storeroom from the proposal.

16 The report concluded that the proposed dwelling addition was consistent with the height and storey objectives of the 2(b) zone and the applicable development standards. The conclusion continued:-

The applicant has provided a design that enables properties at the rear to maintain views through corridors of the subject lot created by the design.
The application has been assessed against the relevant heads of consideration contained under Section 79C of the EP & A Act 1979, and is recommended for approval on this basis.


The report recommended that the development application be approved.

Further considerations of DA 1370/02

17 By memorandum dated 19 August 2002 the DMP made the following recommendations:-

That the application be referred back for further consideration and report with the advice that based on the information available to it, the Panel favours refusal of the application.

18 A file note dated 21 August 2002 records that Mr Scott Cox who made the original report met with two councillors to discuss the loss of view issues raised in the submissions. Mr Cox records that he informed both councillors that the photographs used for the assessment of view loss for No. 31 applied to DA 609/02 and not to DA 1370/02. The note records:-

DA 609/02 was withdrawn earlier and DA 1370/02 was a revised proposal that permits view sharing. That superimposed building envelope of this photo does not represent the current proposal.
See new photos for current impact.

Further report

19 A further report dated 16 September 2002 was submitted by the Development Department to the DMP. The report, which in its early portions is the same as the previous report, contains the following passage:-

At its meeting of August 26, 2002, DMP confirmed that it required additional information on the impact of views from the properties at the rear, in particular the cumulative impact of the current proposal and that of the adjoining allotment. No application currently exists for No. 28 Elizabeth Drive the adjoining property, however a two (2) storey addition has been superimposed on the current building to enable Council to assess the cumulative impact.

20 The report also contains the following additional paragraph which is not contained in the previous report:-

VIEW POLICY – OTHER LOCAL GOVERNMENT AREAS
DMP requested staff contact other local government areas to ascertain if policies on views or view sharing have been developed.
Council Officers contacted Hunters Hills [sic] , Lane Cove, North Sydney, Pittwater, Woollahra and Canada Bay, with only Hunters Hill having guidelines within a Development Control Plan.
These guidelines are general and encourage view sharing.

21 A new section entitled “View Corridor” has been included in the further report. It records resolution of the DMP to defer the application pending further investigation.

22 The further report refers to the fact that photos had been taken from the centre and north site of the deck of the property immediately behind No. 26 with the additions superimposed to indicate the impact of views. It recorded that attempts had been made to have Mr and Mrs Ford relocate the proposed verandah from the north to the east side to enable wider corridors across the applicant’s property, but that such requests had been rejected. It continues:-

As such, it is considered the additions as currently proposed will result in the loss of some views by properties to the west, however, this view loss is considered minimal, especially given that a stand of trees currently restricts much of the view to be lost.

In the circumstances, it is considered that the extent of view remaining from the property to the rear is reasonable.

23 With regard to the impact upon nearby residences the following is contained in the report:-

No. 29 Budgewoi Road
Current Situation
The building erected on the site has a verandah that runs east west with significant views from both ends of the verandah, although a large Banksia tree currently restricts the centre of this view.
Present Proposal
The view from the north east portion of the verandah will suffer minimal loss, as the proposed building will be located behind the existing Banksia tree.
The view from the north west corner of the balcony will be impacted with some ocean and bombora views lost but the view of Bird Island and the headland will remain.

Development of both 26 and 28 Elizabeth Drive, Noraville

The majority of the view from all positions on the verandah to the north west of the Banksia tree, including the bombora and headland will be lost should a second storey addition be placed atop of No. 28 Elizabeth Drive. The views from the verandah to the east of the Banksia will remain unimpeded.
Summary
The existing verandah has a variety of views from it [sic] entire length. The construction of the proposed second storey addition for No. 28 Elizabeth Drive will result in some views being lost, however the majority of views including the headland and Bird Island will remain. Should a second storey addition be added to No. 30 Elizabeth Drive the majority, if not all of the view, of the headland and Bird Island would be lost.

24 The impact upon other dwellings was considered. With regard to No. 31 it was noted that any view was obstructed by a large Banksia tree. It was also noted that a combination of the current proposal and the large Banksia tree would result in a loss of 90% of the view enjoyed. In regard to No. 33 it was noted that the current proposal would have an impact on the vistas presently enjoyed and if an addition was placed on No. 28 Elizabeth Drive the cumulative impact of both additions would have a significant impact on the view enjoyed from No. 33. With regard to No. 35 it was noted that there would be minimal impact of the views from that property. With regard to No. 37 Budgewoi Road it was noted that no view loss would result but if No. 28 were developed there would be significant impact upon the view corridor. No consideration was given to any view loss from No. 27.

25 The further report notes that the application had been notified in accordance with the council’s policy. It recorded that the building at its highest point from natural ground level was 9.2 metres, which was less than the 12 metres maximum prescribed by the “AMCORD document”. It also recorded that the property mostly affected was No. 33. Council concluded, inter alia,

CONCLUSION
The current application is consistent with the height and storey objectives of the 2(b) zone and replicates many of the buildings that currently exist on both sides of Elizabeth Drive, particularly in height, as owners endeavour to secure panoramic views of both the ocean and headland.

In this case the applicant has significantly modified his proposal by placing the major portion of the additions on the southern side of the existing structure and providing a roofed but open deck that creates a significant view corridor across his property.
In assessing the application, Council not only considered the proposal currently before it, but also investigated the cumulative impacts of this proposal and adjoining allotment should an application be received at some time in the future.
In reaching a decision, the Council must endeavour to achieve a balance between the right to reasonably develop the subject site and the right to preserve views and amenity of adjoining properties.
This proposal on its own would allow Council to reach a decision that achieves the required balance. It is a fact that should a second storey addition be added at sometime in the future to No. 28 Elizabeth Drive views from the property behind will be impacted upon. However, Council as in this case, in assessment of an application will be in a position to create corridors that will preserve some views. Therefore the current application is worthy of support and is recommended for approval.

26 A diagram showing view corridors drawn by council officers from the properties immediately surrounding No. 26 is included in the file. It does not extend to a consideration of the applicant’s premises, nor of No. 27.

27 By memorandum date 16 September 2002 the DMP signed a recommendation that council grant consent to the application subject to conditions. On 18 September 2002 council issued its determination granting consent to development application 1370/02 (“the consent”). Notification thereof was published in the Central Coast Express Advocate on Wednesday 2 October 2002. The applicant was notified by letter dated the same day which he received on 11 October 2003. By letter dated 13 October 2002 the applicant informed council of his objection to the consent.

Applicant’s challenges

28 The applicant makes numerous challenges to the validity of the consent. It is convenient to deal with each individually, and simultaneously deal with the council’s response and the Court’s finding.

Absence of Current Delegation

29 The applicant submits that the council’s Manager Development Services Mr Daniel Smith did not hold a valid delegation of authority to enable him to grant the consent. Additionally the applicant submits that upon the basis of the documents supplied to him by council, any delegation had expired. Such allegations are denied by council.

30 The delegations contained in the council’s Delegation Manual establish that the council delegated several functions to its general manager, including but not limited to the following functions:-

1. The exercise of all discretionary functions which Council is capable of delegating and is not statutorily prohibited from so doing, but excluding any function which may, by resolution of Council or direction of the Mayor be reserved to Council.

31 Additionally, pursuant to s 378 of the Local Government Act 1993 (“the LG Act”) the General Manager was authorised to delegate wholly or partly the functions set out in Schedules 1 to 70 inclusive of the Delegation Manual to the holders for the time being of the office or position nominated in each such Schedule and revoke, wholly or partly, any delegation.

32 By Schedule 5.100 of the council’s Delegations Manual, the General Manager delegated various functions to the Manager Development Services. Clause 5 thereof provides:-

In accordance with the decisions of the Development Management Panel
a Determine applications for Development Consent up to a value of $5 million where:
Approvals
i the application largely complies with Council’s Codes, Policies, etc: or
ii the application is not subject to significant public objection; or
iii any legal agreements with Council have been completed; or
iv the application is not in respect of a designated development.

33 The delegation from the General Manager to the Manager Development Services was granted to Mr Smith on 10 August 1994. The evidence shows that the delegation was to expire on 31 July 2000. However it was renewed until 31 July 2002 and by staff memorandum dated 31 July 2002 the delegation was continued until further review. Mr Smith held the position of Manager Development Services until 21 September 2003. Accordingly the delegation to Mr Smith was valid and current when the consent was granted.

Failure to Satisfy Conditions of Delegation

34 The applicant contends that Mr Smith’s powers were exceeded because of two factors. Firstly the applicant submits that the delegation only applied to those situations where “the application largely complies with Council’s Codes, Policies, etc”, and that development did not satisfy such requirement. Secondly the applicant submits that the delegation only empowered approval where “the application is not subject to significant public objection”. The applicant submits that such requirement was not satisfied.

Non-compliance with Council’s, Codes, Policies, etc

35 The applicant claims that DA 1370/02 does not “largely comply” with the objectives of the Wyong Local Environmental Plan 1991 (“the LEP”) which affects the subject land. Objective (a) applying to Zone 2(b) land states as follows:-

(a) to cater for a wide range of housing types essentially domestic in scale and character and generally not exceeding a height of 2 storeys…

The applicant submits that the consent would authorise a building of three storeys. In response the council submits that DA 1370/02 did not breach such objectives, because the development would not exceed two storeys.

36 There is no height development limit contained in the LEP for development on land zoned 2(b). The objective of a zone does not constitute a development standard, and the objective is not expressed as a prohibition but gives power to the council to exercise a discretion. That is, it is a matter for the council to determine whether the application “largely complies” with its codes and policies. Assuming that the objectives of the LEP are to be included in the vague term “etc”, the delegate was entitled to determine whether the proposed development “largely complies”. Council expressly directed its attention to the issue of the number of storeys, as evidenced by the report of the Development Department to the DMP dated 16 September 2002. It stated, inter alia, “[b]y definition, under State Environment Planning Policy (SEPP) No. 6, the proposed development is classified as two storeys”. Under the paragraph entitled “Statutory Requirements”, the report concluded that the proposed development would consist of two storeys.

37 The council submits that the location of the purported third storey is located west of the garage underneath the main building and is partly below natural ground level. It submits that its existence does not have any impact on the design of the building and that submitted there is no breach of the objectives. The council submits that the proposal provides for a building generally not exceeding a height of two storeys, compatible for the two objectives of the 2(b) zone.

38 SEPP 6 seeks to remove “any confusion arising from the interpretation of provisions in environmental planning instruments which control the height of buildings by reference to the number of storeys, floors, or levels in which the buildings contain, by specifying the manner in which that number is to be determined”: see cl 3(a). Clause 6(1) of SEPP 6 provides:-

Determination of number of storeys which a building contains

(1) Where the application of a provision of an environmental planning instrument requires a determination of the number of storeys, floors or levels which a building contains, that number shall, for the purposes of applying the provision, be deemed to be the maximum number of storeys, floors or levels, as the case may be, of the building which may be intersected by the same vertical line, not being a line which passes through any wall of the building.

39 Applying the provisions of SEPP 6 to the plan forming part of development application 1370/02, a portion thereof constitutes a three storey development, at least on the east and north elevation but not on the south nor the west elevation, resulting from the fact that the existing dwelling was erected on sloping land.

40 The report of the Development Department dated 29 July 2002 classified the development as “two storeys”. However, when referring to the history of the building it states that “the building is currently two storeys high”. Since the development proposed an additional floor of habitable space, it follows that the building when completed would be in excess of two storeys.

41 The remark contained in the report dated 29 July 2002 that “as the ground floor consists only of a garage and workshop the definition of storey in SEPP6 excludes this area from the calculation”, cannot be sustained. No such exclusion is contained in SEPP 6 and no exemption is provided as referred to in the report. The author of such report acknowledges that save for such reason, the “proposed development will consist of 3 storeys”. Pursuant to SEPP 6 the completed building would be classified, at least in part, as a three-storeyed building. Accordingly the conclusion of the Development Department cannot be accepted, and that the development would create a three-storeyed building.

42 It follows that the finished building would not “largely comply” with “Council’s Codes, Policies, etc” as required by Schedule 5.100 of the council’s Delegation Manual since the objective of zone 2(b) permits housing “generally not exceeding a height of 2 storeys”. The building would only comply if the council treated it as an exception to the objectives stated in the LEP. The proposed development did not satisfy the condition of the exercise of the power by the delegate. As such the approval under the delegation was beyond the power of the delegate and therefore void: see Lyons v Sutherland Shire Council and Others (2001) 117 LGERA 334 per Stein JA at p 338.

Public objection

43 The applicant submits that there was “significant public objection” to the development as evidenced not only by the five objections to DA 1370/02 but also by evidence of the previous objections to DA 609/02. The applicant submits that the delegate exceeded his power when he granted the consent.

44 The word “public” is to be given its ordinary meaning, as was recognised by the DMP. The term public has been defined to mean “members of the community”: see Tatem Steam Navigation Company Ltd v Inland Revenue Commissioners [1941] 2 KB 194 per Scott LJ at p 203. In this instance the same consideration applies and the objections were thus received from “the public”.

45 The council submits that the objections are not “public” and further submits they are not significant. The council submits that the word “public” in the phrase “significant public objection” qualifies the word “objection”, so that the objection must be of significance to the community as a whole and not significant to only a single or very small section of the community.

46 Despite council’s submission, the DMP when assessing DA 609/02 acknowledges that submissions were received “from the public”. To uphold the council’s submission, the Court would have to find that the amorphous mass of the general public would need to raise objection before the qualification to the delegate’s power would operate. However such interpretation would fail to recognise that objections from “the public” are made by individuals.

Were the objections significant?

47 The council submits that the objections “indicate concerns relevant and peculiar to the individual landowners, rather than significant issues pertaining to the people of a locality”. Accordingly the council submits that such objections “cannot be said to comprise ‘significant public objection’ because they do not pertain to the people of a locality, nor are they done or made by or on behalf of, the community as a whole; the [sic] do not represent the community”.

48 The relevant dictionary meaning of the word “significant” contained in the Macquarie Dictionary 3rd ed is “important; of consequence”. The delegate was empowered to determine DA 1370/02 whether if the public objections were not important or not of consequence. The delegate did not give evidence although he remains in the employment of the council. Accordingly the Court has no direct evidence to know whether any consideration was given by him to such question. In the absence of such evidence the Court is required to make its own assessment.

49 The council file in respect of DA 1370/02 incorporates the previous development application namely DA 609/02. Accordingly it can be inferred that the delegate must have been on notice of the objections to DA 609/02, and of the reasons for the recommendation for the refusal of DA 609/02. The report of Development Department dated 29 July 2002 referred to the objections, and made the observation that “view loss is always contentious”.

50 Council was aware when it granted approval to DA 1370/02 that previous attempts to develop the site had attracted controversy, particularly because of the view loss being sustained by neighbouring properties. The council file for that development application was consolidated with the file relating to DA 1370/02. Accordingly council was aware of the previous application and of the fact that a recommendation was made for its refusal.

51 The recommendation for refusal of DA 609/02 was based upon the conclusion that the development would cause excessive view loss, that it was not in the public interest, that it could set an undesirable precedent and was unsuitable for the site in its proposed position because excessive portions of view corridors would be lost.

52 Taking into consideration these findings, the objections, the fact that the DMP required further information and that two councillors made specific enquiries, the Court concludes the issues raised were not unimportant and not inconsequential. The council’s conduct of DA 1370/02 shows that the objections were treated as being significant. Accordingly the condition of the exercise of the delegate’s power, namely “that the application is not subject to significant public objection” was not fulfilled.

53 The Court concludes that the objections were of significance. It follows that the delegate did not possess the power to approve the development application 1370/02.

Failure to Notify

54 The applicant submits that the council did not comply with the notification requirements contained in Development Control Plan No 70 (“DCP 70”) nor with the requirements of s 79(1)(b)(ii) nor 79A(2) of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”).

55 The relevant portion of DCP 70 provides as follows:-

2.3 Persons to be notified – General coverage
Written notice of an application received will be sent to the owners of land adjoining or neighbouring the land which is the subject of the application. This includes:

l Persons who own land abutting the site and land on the opposite side of a creek or river, road, pathway or similar thoroughfare; and

l Persons who own land within the Cities of Gosford, Greater Cessnock or Lake Macquarie which adjoins the boundary of Wyong Shire and the site which is the subject of the development application.

…
2.4 Circumstances for extended coverage
Where, in the opinion of Council, the owners of other land are likely to be affected by the proposal, they shall also be notified of the application. In forming such opinion Council shall consider the following criteria:

l impact on views;

l overshadowing;

l impact of noise or lighting;

l privacy;

l hours of use;

l traffic generation;

l the streetscape;

l means of access;

l impact on residential amenity; and

l potential for landuse conflict.

Following preliminary assessment of an application or inspection of a site, the Council may determine to broaden the extent of notification to that originally given.

56 Pursuant to the policy, the council notified the owners of No. 31, No. 33 and No. 35 Budgewoi Road and the owners of No. 23, No. 24, No. 25 and No. 28 Elizabeth Drive of DA 1370/02. In addition an advertisement relating to DA 1370/02 was published in the Central Coast Express Advocate on 7 June 2002. Such advertisement was published pursuant to cl 2.8(ii) of DCP 70 which provides:-

(ii) Notification in local newspaper
All applications which are subject to a written notification to one or more property owners shall be advertised in a local newspaper on one occasion. The advertisement shall contain advice of when and where the application plans may be inspected.

57 The council submits that it was not required to notify the owners of No. 27 nor No. 29 Budgewoi Road because their lands were neither “adjoining” nor “neighbouring”. The applicant submits that as the owner of No. 29, it should have received notification of the proposed development application as should all residents affected by the proposal.

58 It is an established principle that the existence and observation by a council of a policy of notifying adjoining owners of development applications creates a legitimate expectation that such notice will be given and any representations made considered before development consent is granted, and failure to do so denies adjoining owners natural justice or procedural fairness: see Hardi v Woollahra Municipal Council (unreported, Land and Environment Court New South Wales, Cripps J, 17 December 1987); Somerville v Dalby (1990) 69 LGERA 422; Kioa and Others v West and Another (1985) 159 CLR 550; Glowpace Pty Ltd v South Sydney City Council (2000) 111 LGERA 84.

59 Whether a property is “adjoining” or “neighbouring” has been the subject of judicial consideration: see Auckland Lai v Warringah Shire Council (1985) 58 LGERA 276; Hornsby Shire Council v Malcolm (1986) 60 LGRA 429; Parkes and Spencer v Rastogi and Newcastle City Council (1992) 78 LGERA 71; Hornsby Shire Council v Porter and Others (1990) 19 NSWLR 716; Marsh & Nass v North Sydney Council (Bignold J, Land and Environment Court of New South Wales, 29 February 1996, unreported). These authorities show that an expansive definition is given to the word “adjoining”. Land separated by public road or public footway has been held to be adjoining. However council apparently decided that the applicant’s land was outside the scope of the persons to whom the notification, by letter, was required. Since council already knew from DA 609/02 that the applicant had lodged objections, it is surprising that council did not form the opinion that the applicant should receive notification of DA 1370/02, as well as all other residents who had objected to that application. Each claimed to be affected by the development.

60 However these considerations become inconsequential in view of the evidence that the applicant became aware of the development application and lodged a written objection by letter dated 16 June 2002. Accordingly no injustice was caused to the applicant, and the failure to provide notice would not in such circumstances be sufficient to vitiate the decision of the council.

Whether council failed to consider a specific relevant issue, namely the suitability of the site for the development

61 The applicant claims the council failed adequately to assess the proposed development in relation to the site, in breach of s 79C(1)(c) of the Act. In particular, the applicant submits No. 26 did not lend itself to the type of development proposed in either DA 609/02 or DA 1370/02 “without excessive impact on neighbouring properties, remembering that there are only minor differences between the designs for the two applications and those minor differences do not address the site’s difficulties in any way.” This submission is associated with another submission of the applicant which follows.

The council made a decision which was unreasonable in the Wednesbury sense.

62 The applicant submits that the council’s decision is unreasonable in the Wednesbury sense, namely that it was so unreasonable that a council, properly advised, could not have made such a decision: see Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.

63 The reports prepared in respect of DA 1370/02 demonstrate that the council investigated the development application in considerable detail. A view assessment was undertaken of the impact of the proposed development from the houses No. 29 to No. 37 Budgewoi Road, and on 12 June 2002 a meeting was convened with two council officers, at No. 33 Budgewoi Road with Mrs Wall and Mr Wall, who were representing adjoining property owners. Certain councillors personally undertook a site inspection. The development application was referred three times to Council’s DMP, which included three senior council staff.

64 The report prepared in relation to DA 609/02 recommended its refusal because the development, inter alia, would set an undesirable precedent and was not considered to be in the public interest. A similar development on No. 28 Elizabeth Drive did not proceed for such reasons. Council however considered that the development proposed by DA 1370/02 would have a lesser impact upon the view corridors of surrounding houses than the development proposed in DA 609/02.

65 The applicant contends that the plans forming part of DA 1370/02 are virtually identical to the plans which the Development Department had recommended refusal when it assessed DA 609/02 and the accordingly there was no justification for the approval of DA 1370/02.

66 No expert evidence has been tendered from either party to assist the Court to determine whether the applicant’s contention is correct. However, a comparison of the plans for both DA 609/02 and DA 1370/02 shows that the alterations appear to be minor. The north-south profile of the uppermost level of the proposed dwelling has been slightly reduced, but otherwise the plans appear to be identical.

67 Two councillors were concerned that view loss would result from the development proposed by DA 1370/02. However they were deflected from further enquiry after being informed that certain photographs of view loss examined by them related to the previous application. There is no evidence to show that the councillors examined the revised plans to determine whether they would reduce the view loss which was apparent in DA 609/02, nor whether there was in fact any significant difference in the proposal contained in DA 609/02 compared with DA 1370/02.

68 The report of 29 July 2002 did not satisfy the DMP. It required further information relating to the impact of views from the properties at the rear. A further report is dated 16 September 2002 and refers to communications purportedly made with other councils concerning their policies relating to views and view sharing. The latter report acknowledges that the proposal would “result in the loss of some views by properties to the west, however, this view loss is considered minimal, especially given that a stand of trees currently restricts much of the view to be lost.” With regard to No 31, 90% of its view would be lost arising from the impact of the development and the Banksia tree. No reference was made with regard to the view loss from the applicant’s property, nor from No. 27.

69 The report dated 19 August 2002 to the DMP prepared by the Development Department contains the following statement:-

Privacy
The addition consists of a bedroom and a small terrace and as use of this part of the dwelling will be mainly at night, the impact on privacy to adjoining properties is considered minimal.

70 This statement is misleading. The upper level extension, according to the plans included a terrace, a bedroom, a bathroom, large walk-in-wardrobe and study. The plans prepared for DA 609/02 included a “sitting area” in the upper level. In the plans accompanying DA 1370/02 such area has been deleted but the size of the terrace, which is covered by a roof, has been increased. The north-south solid walls have been shortened, but the east-west dimensions remain unchanged. As a result there has been little practical difference of the impact of the development upon neighbouring properties.

71 When assessing DA 1370/02, the council officer concluded in the September report:

The design of the building is contemporary and compatible with recent developments in the Noraville and Nora Head area. The proposed addition will integrate with the existing building and will be constructed using similar materials. The design provides architectural relief by the use of openings, verandahs and a varied roofline to reduce the appearance of bulk.

72 However the report for DA 609/02 stated:

The site is suitable for two-storey development at the front of the property where the impact to adjoining properties will be lessened. The proposed position of the second storey addition will reduce the amenity of the adjoining properties significantly as vast proportions of existing view corridors will be lost.

It is apparent from the above extracts from the reports of the Development Department that the assessment of DA 609/02 took into consideration the impact of the development upon the amenity of the adjoining properties. In contrast, the assessment of DA 1370/02 referred, not to the adjoining properties but to “ developments in the Noraville and Norah Head area ”. Such a generalisation does not address the impact of the proposed development upon the adjoining properties.

73 The September report on DA 1370/02 referred to the objectives of the 2(b) zone and to the fact that in such zone dwellings “generally not exceeding two storeys” were permissible. The report does not address any reason for departing from the statutory objective, except to classify the proposed dwelling as two storeys. As the Court has already found such a statement to be untenable. Additionally the conclusion that the development was “consistent with the height and story objectives of the 2(b) zone” is wrong.

74 Accordingly the concern expressed in the assessment for DA 609/02, namely that the development was “not sensitive to the site attributes” and that an undesirable precedent would be created, remains. Similarly the conclusion as stated in the recommendation against the approval for DA 609/02 remains, namely that the proposal was of “a design which is not in keeping with those of adjoining properties, in terms of overall height, design, bulk and scale.” The plans for DA 1370/02 did not alter the height of the proposed building. The bulk remains virtually unchanged, thereby confirming the Development Department’s concern that an undesirable precedent would be created.

75 In the Court’s consideration, the decision to grant consent to DA 1370/02 was so unreasonable that the council, properly advised could not reach the decision to grant consent.

76 Having considered the photographs of the partly finished development, and the gross interference with the view corridors of the properties in Budgewoi Road, the Court is confirmed in its conclusion that the reasons the Development Department relied upon for their recommendation to refuse DA 609/02 were well founded. The reasons justifying the recommendation for refusal of DA 609/02 should have applied with equal force to DA 1370/02.

Other issues

77 The applicant made other submissions concerning the identity of the classification of the development and the failure to provide notification of the grant of the consent. The Court has considered such submissions but finds there is no merit in them and that it is unnecessary to deal with them in view of the findings made above.

Discretion

78 The council submits that if the Court determines that the consent to DA 1370/02 has been granted beyond power, the Court would exercise its discretion by refusing relief. It relies upon the principles referred to in Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335. The council and Mr and Mrs Ford raise hardship, namely the fact that the third storey of the development is partially constructed.

79 When Mr Muir became aware of the grant of consent on 11 October 2002, he immediately wrote to the council and to Mr Ford advising that the validity of the consent would be challenged in this Court. On 13 October 2002 he took a copy of his letter and placed it in the letterbox of No. 26, and another copy was given to Mrs Wall, the occupant of No. 33, for delivery to Mr and Mrs Ford. These proceedings were instituted on 16 December 2002, namely approximately nine weeks after the applicant was notified of the grant of consent made on 18 September 2002. By 13 October Mr Muir of the applicant observed that the construction work “was well advanced, with the frame and roof for the upper storey completed.”

80 The affidavit of Scott James Ford sworn 14 October 2003 establishes that No. 26 was purchased in approximately 1999. Mr and Mrs Ford and their children vacated the dwelling in July 2002. Demolition work, according to Mrs Lane, the occupant of No. 27, began on 20 September. Mr Ford says that construction work commenced in late September 2002 and ceased on 23 December 2003 when Mr and Mrs Ford were informed by the council that these proceedings had commenced. Mr Muir believes that no work on the upper extension has taken place since 13 October 2002. Construction has taken place, the cost of which Mr Ford estimates to date to amount to $92,562. Mr Ford estimates that a further $217,420 would be required to restore the house to its pre-development state. Additionally, Mr and Mrs Ford had entered into contracts which have had to be postponed.

81 Mr and Mrs Ford submit that they have acted at all times in good faith and only upon the basis of the validity of the consent issued by the council. They rely upon the decision in Attorney-General v Greenfield and Others (1961) 6 LGRA 230 especially at p 236 in which the Full Court of the Supreme Court of New South Wales upheld a decision by Myers J refusing an order to demolish a building erected pursuant to a council’s consent. They also rely upon the judgment of Cripps J in Rowley v New South Wales Leather and Trading Co. Pty Ltd and Woollahra Municipal Council (1980-82) 46 LGRA 250. At p 261 His Honour referred to the discretion to be exercised by the Court and said:

The discretion to be exercised in these proceedings involves the weighing up of all relevant factors – not only the public interest, but also the rights and interests of the parties including matters of conduct, hardship and convenience. It is also relevant to determine the extent of the breach and whether the breach was the result of deliberate flouting of the law or whether, as in this case, it has resulted from a misunderstanding by a local authority of its obligations under the legislation. Finally the court must decide to do what is fair and just as between the parties and in the public interest.

82 The applicant provides numerous reasons to explain the delay in the institution of the proceedings against the council. Those reasons include the fact that Mr Muir was not a resident in the area and that his occupation requires him to travel interstate and his principal office is a Milperra which is located inconveniently. Mr Muir sought to obtain a legal opinion and apparently had difficulty in locating a legal practitioner with expertise in local government issues. He consulted a solicitor in Gosford using the New South Wales Law Society’s website but could not obtain an appointment at an early date. Mr Muir did not receive the legal opinion until 4 December 2002. Mr Muir required documents from the council before commencing these proceedings, and obtaining them contributed to the delay.

83 The applicant initially did not join Mr and Mrs Ford as respondents despite the fact that the applicant sought an order seeking demolition of the upper storey extension. There is no evidence to explain the failure to join Mr and Mrs Ford as respondents in the proceedings. On 31 March 2003 the Registrar of this Court allocated a three day hearing of the proceedings for 28 July 2003 to 30 July 2003. On the first day fixed for the hearing before Talbot J the proceedings were adjourned for the purpose of joining Mr and Mrs Ford.

84 Mr and Mrs Ford were placed on notice from 13 October 2002 that the consent would be challenged. They could have enquired of Mr Muir concerning the challenge, but did not do so. They continued with the development in the knowledge that they were potentially at risk that the consent could be set aside. The delay in their joinder as parties has not resulted in further construction work occurring, since construction ceased shortly after these proceedings were instituted.

85 The Court concludes that the delay in the institution of the proceedings and any possible prejudice to Mr and Mrs Ford is outweighed by the public detriment in permitting the upper floor extension to remain. The view loss affects numerous other parties and, unless rectified, will be permanent. Permitting such structure to remain will set the very precedent which the Development Department of the council was anxious to avoid, as stated in its reports relating to DA 609/02. The change to the plans has not alleviated the substantial view loss which would have been a consequence of DA 609/02. The Court also observes that the costs of the works includes construction and fit-out costs which do not involve the upper extension. For example, the cost of a new kitchen has been included, but this will not be affected by the removal of the third storey.

86 The Court has considered the competing interest of the parties. In Proprietors of SP 13318 & 13555 v Lavender View Regency Pty Ltd and North Sydney Council (1997) 97 LGERA 337 Talbot J observed that to decline relief would be tantamount to “condoning a serious breach of a fundamental obligation of the council, and the Court, to uphold the orderly administration and enforcement of planning law”: see p 355.

87 Whilst the Court is mindful of the expenses incurred by Mr and Mrs Ford, they may have a remedy in another jurisdiction; see Lavender View Regency at p 355 where His Honour stated:-

The Court may feel sympathetic towards the position of the first respondent. However any remedy in that respect does not arise here, although it is possible it may arise in some other jurisdiction.

88 Mr and Mrs Ford may have other options to extend their house, such as erecting a two-storey addition to the front which does not involve the creation of a third storey and which would reduce the adverse environmental impact, as referred to in the assessment report for DA 609/02.

89 In the circumstances, the Court considers it appropriate to make the declaration and order as sought.

Costs

90 In the exercise of the Court’s discretion pursuant to s 69 of the Land and Environment Court Act 1979 costs are usually awarded in favour of the successful party. Costs have not been argued, but prima facie the usual rule should apply and an order to this effect will be made subject to liberty to apply to vary such order. By this order the costs of a further hearing confined to costs may be avoided. The Court notes that the applicant has not been legally represented and infers that any costs which might be recoverable would not be substantial. The applicant is not entitled to the costs of its appearance: see Cachia v Hanes and Another (1993-1994) 179 CLR 403.

Orders

91 The Court makes the following declaration and orders:-

1. DECLARATION that the Development Consent granted on 18 September 2002 by Wyong Shire Council to Development Application 1370/02, in respect of Lot 42 DP 27889, 26 Elizabeth Drive, Noraville NSW 2076, is invalid;

2. ORDER that the third storey extension of the dwelling at 26 Elizabeth Drive, Noraville erected pursuant to development consent 1370/02 be removed within 90 days of the date of this order;

3. ORDER that the respondents pay the applicant’s costs unless within 21 days of the date of this order an application is made to vary such order;

4. ORDER that the exhibits be returned.