Moss v Kiama Municipal Council - [2003] NSWLEC 165

Reported Decision: 127LGERA 83

Land and Environment Court

of New South Wales

CITATION: Moss v Kiama Municipal Council [2003] NSWLEC 165

PARTIES:
APPLICANT:
Moss
RESPONDENT:
Kiama Municipal Council

FILE NUMBER(S): 10408 of 2003

CORAM: Bignold J

KEY ISSUES: Question of Law :- preliminary determination-whether development consent may be granted where result involves a contravention of a condition of an existing development consent

LEGISLATION CITED: Environmental Planning and Assessment Act 1979, ss 80, 80A, 122-125

CASES CITED: Gray v Fairfield City Council (unreported 27 November 1987);
Hillpalm v Heaven's Door (2002) NSWCA 301;
Lee v Sydney City Council (1983) 50LGRA 382;
Mason Architects v North Sydney Council (1999) NSWLEC 176;
Parramatta City Council v Locker (1989) 68 LGRA 334;
Rao v Canterbury City Council (2000) 112 LGERA 360;
Rutland v Shoalhaven City Council (1997) 94 LGERA 370;
Silverwater Estate Pty Ltd v Auburn Council (2001) NSWLEC 60;
Wingecarribee Shire Council v Pancho Properties Pty Ltd (2001) 117 LGERA 104

DATES OF HEARING: 20/06/2003

DATE OF JUDGMENT:
07/04/2003

LEGAL REPRESENTATIVES:

APPLICANT:
Mr J Webster SC
SOLICITORS
Morton and Harris
RESPONDENT:
Mr P Moggach, Solicitor
SOLICITORS
Kearns and Garside

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Matter No . . 10408 of 2003

Coram : Bignold J

4 July 2003

J. L. MOSS

Applicant

KIAMA MUNICIPAL COUNCIL

Respondent

JUDGMENT

A. INTRODUCTION

1. The Court is required to determine three preliminary questions of law that have been raised by the Council in pending class 1 proceedings being an appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 (the EP&A Act) against the Council’s refusal of the Applicant’s development application to erect a dwelling-house on a rural lot situate at Gerringong and known as lot 103 Deposited Plan 1035721 (the subject land).

2. The preliminary questions of law are as follows:

1. Does condition 18 of development consent DA 112/97 granted on 18 March 1999 apply to Lot 103 DP1035721 which is the property the subject of the appeal (

2. Would the erection of a dwelling house on the property in the manner proposed by the applicant’s development application D247/02 involve a contravention of condition 18 of the development consent DA112/97?

3. If the answer to (2) is yes, is development application D247/02 capable of approval without prior modification of the development consent DA112/97?

3. Whereas all three questions are directed at the current effect of a condition of an existing development consent which approved a land subdivision creating inter alia the subject land, as will hereafter appear, it is only the third of those questions which is in dispute. The Council contends that that question should be answered in the affirmative while the Applicant contends that it should be answered in the negative. These competing submissions are based upon competing views of the effect (both original and current) of the relevant condition of the existing development consent, purporting to regulate the type of dwelling-house that may in the future…

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: [2003] NSWLEC 165
Decision Date: 07/04/2003

CaseChat Overview and Summary

Moss v Kiama Municipal Council is a decision of the Land and Environment Court of New South Wales concerning the effect of a condition of an existing development consent on the approval of a subsequent development application. The applicant sought to erect a dwelling-house on a rural lot, subject to a condition of an existing development consent that restricted the type of dwelling-house that could be built. The Council refused the development application, leading the applicant to appeal to the Court. The Court was required to determine three preliminary questions of law, all concerning the effect of the existing development consent on the proposed development. The first two questions were not in dispute, but the third was, as the Council argued that the proposed development would contravene the existing development consent and thus could not be approved, while the applicant contended that the condition of the existing development consent did not prohibit the proposed development and that the proposed development could be approved without modification of the existing development consent.

The Court determined that the condition of the existing development consent did not have an independent operation and effect, but rather depended on the creation of a restriction on user under the Conveyancing Act 1919. As the restriction on user had been created, the condition of the existing development consent had been satisfied, and thus the proposed development did not contravene the existing development consent. Even if the condition of the existing development consent had an independent operation and effect, the proposed development would still be capable of approval, as the Environmental Planning and Assessment Act 1979 allows for the modification of existing development consents. The Court therefore determined that the proposed development was capable of approval without prior modification of the development consent.

In summary, the Court found that the proposed development did not contravene the condition of the existing development consent, either because the condition had been satisfied or because the condition did not have an independent operation and effect. The Court rejected the Council's argument that the proposed development could not be approved because it would contravene the existing development consent, holding that the proposed development was capable of approval without modification of the existing development consent. The Court's decision highlights the importance of properly construing the conditions of development consents and the potential for modifying existing development consents to accommodate new developments.

Orders