Mosman Municipal Council v Denning - [2002] NSWLEC 227

Land and Environment Court

of New South Wales

CITATION: Mosman Municipal Council v Denning & 2 (Ors) [2002] NSWLEC 227

PARTIES:
APPLICANT:
Mosman Municipal Council
FIRST RESPONDENTS:
Elizabeth Jane Denning and Alastair John Davidson
SECOND RESPONDENT:
Jon Hall

FILE NUMBER(S): 40517 of 2002

CORAM: Lloyd J

KEY ISSUES: Construction and Interpretation :- condition of development consent - ambiguity - glazing

LEGISLATION CITED:

CASES CITED: Ryde Municipal Council v The Royal Ryde Homes (1970) 19 LGRA 321;
Wollongong City Council v Australian Iron & Steel Pty Ltd (1988) 67 LGRA 51;
Woolworths Ltd v Campbells Cash and Carry Pty Ltd (1996) 92 LGERA 244

DATES OF HEARING: 04/10/2002

EX TEMPORE
JUDGMENT DATE :
10/04/2002

LEGAL REPRESENTATIVES:

APPLICANT:
Mr P C Tomasetti (barrister)
SOLICITORS:
Pike Pike & Fenwick
FIRST RESPONDENTS:
Ms S Duggan (barrister)
SOLICITORS:
Michell Sillar
SECOND RESPONDENT:
N/A

JUDGMENT:

- 5 -

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

40517 of 2002

Lloyd J

4 October 2002

Mosman Municipal Council

Applicant

Elizabeth Jane Denning and Alastair John Davidson

First Respondents

Jon Hall

Second Respondents

EXTEMPORE JUDGMENT

HIS HONOUR:

1 This is a case about the construction of a development consent. The specific relief sought by the applicant, Mosman Municipal Council (hereafter “the council”), is as follows:

A declaration that in the circumstances and events which have happened on the true construction of condition 1.6 of development consent No. 8.2000.440.0 granted by the Applicant in respect of the property on 8 August 2001(“the development consent”) there may be no changes to the fenestration and the glazing thereof on the southern facade of the premises at 34A Bullecourt Avenue, Mosman (“the premises”) from that which existed on 12 June 2001.

2 The council also seeks a declaration that construction certificate CC59/2002 dated 15 June 2002 in respect of the premises and issued by Jon Hall is invalid.

3 The relevant facts may be briefly described. The council is the consent authority for the purpose of the granting of development consent under the Environmental Planning & Assessment Act 1979 (“the EP&A Act”) for development proposed within its local government area. The first respondents are the owners and occupiers of premises situated at and known as No. 34A Bullecourt Avenue, Mosman (hereafter “the property”). The property is within the local government area of the applicant.

4 On 14 November 2000 the first respondents caused to be lodged with the applicant a development application seeking consent to develop the property by way of carrying out alterations and additions to it. Applications for consent to develop the property were, at all material times, subject to the provisions of the Mosman Local Environment Plan 1998. The subject development application included a number of documents. It included the development application form, a heritage impact statement, architectural plans, a notification plan and a statement of environmental effects.

5 On 12 June 2001 the applicant resolved to grant conditional development consent to the development application pursuant to the EP&A Act. By a notice of determination dated…

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.

Keep reading for free

Create a free CaseChat account to read Mosman Municipal Council v Denning and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2002] NSWLEC 227
Decision Date: 10/04/2002

CaseChat Overview and Summary

Mosman Municipal Council sought a declaration that it could not change the fenestration and glazing on the southern facade of the premises located at 34A Bullecourt Avenue, Mosman. The Council argued that the condition in its development consent meant that no new glazing could be provided on the southern facade of the building. The respondents, the owners and occupiers of the property, contended that the condition allowed for the type of glass to be used in the proposed alterations and additions to be the same as that existing on 12 June 2001, or that the glazing on the southern facade to remain the same and that the proposed glazing must have the same properties. The court held that the condition was ambiguous, and that in such circumstances the principle established in Ryde Municipal Council v The Royal Ryde Homes applied. The court held that the legal qualities a consent possesses are so important that care should be taken to ensure that consents are framed in clear terms and conditions are specified with certainty. The court held that the condition, if ambiguous, must be construed against the council. The court held that a proper reading of the condition in the light of all of the conditions and the plans which have been incorporated into the consent is that the reference in condition 1.6 to glazing is a reference to the glass, that is to the kind of glass, in the southern façade. The court dismissed the application and ordered the Council to pay the respondents’ costs.

Orders