Pselletes v Randwick City Council - [2009] NSWCA 262

NEW SOUTH WALES COURT OF APPEAL

CITATION:
Pselletes v Randwick City Council [2009] NSWCA 262

FILE NUMBER(S):
40370/08

HEARING DATE(S):
18 August 2009

JUDGMENT DATE:
8 September 2009

PARTIES:
Gary Pselletes
Randwick City Council

JUDGMENT OF:
Ipp JA Tobias JA Sackville AJA

LOWER COURT JURISDICTION:
Land & Environment Court

LOWER COURT FILE NUMBER(S):
LEC 11253/07

LOWER COURT JUDICIAL OFFICER:
Sheahan J

LOWER COURT DATE OF DECISION:
15/8/08

LOWER COURT MEDIUM NEUTRAL CITATION:
Pselletes v Randwick City Council [2008] NSWLEC 234

COUNSEL:
A: In Person
R: M Henry

SOLICITORS:
A: Newman & Associates, Sydney
R: Shaw Reynolds Bowen & Gerathy, Sydney

CATCHWORDS:
ENVIRONMENT AND PLANNING – Environmental planning – Development control – Consents, approvals and permits – What constitutes consent – Development application for home renovations – Proposal to construct balcony subsequently withdrawn by applicant – Council determined to approve application exclusive of balcony – Notice of determination sent to applicant indicated inclusion of balcony in consent – Whether consent is constituted by determination of consent authority to approve development application under s 80(1) of Environmental Planning and Assessment Act 1979 or notification of determination under s 81

LEGISLATION CITED:
Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment Regulation 2000
Land and Environment Court Act 1979

CATEGORY:
Principal judgment

CASES CITED:
Alcoa Australia Rolled Products Pty Ltd v Weston Aluminium Pty Ltd [2006] NSWCA 273; (2006) 148 LGERA 439
Auburn Municipal Council v Szabo (1971) 67 LGRA 427
Elarosa Investments Pty Ltd v South Sydney City Council (1994) 83 LGERA 211
Hopkins v Tweed Shire Council [2001] NSWLEC 75; (2001) 113 LGERA 406
Jones v Dunkel (1959) 101 CLR 298
Miller-Mead v Minister for Housing and Local Government [1963] 2 QB 196
Notaras v Waverley City Council [2007] NSWCA 333; (2007) 161 LGERA 230
Panagopoulos v Willoughby City Council (1992) 78 LGERA 270
Ryde Municipal Council v Royal Ryde Homes (1970) 19 LGRA 321
Stebbins v Lismore City Council (1988) 64 LGRA 132
Woolworths Ltd v Campbells Cash & Carry Pty Ltd (1996) 92 LGERA 244

TEXTS CITED:

DECISION:
(a)       Appeal dismissed.
(b)       The appellant to pay the Council’s costs of the appeal.
(c)         Note the Agreement signed by the parties and filed with the papers in the Registry on 3 September 2009 with respect to Points 2 and 3 of the Order issued by the Council under s 121B of the Environmental Planning and Assessment Act 1979 and referred to at [3] of the judgment of Sheahan J of 15 August 2008.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40370/08
LEC 41243/04
IPP JA
TOBIAS JA
SACKVILLE AJA
Tuesday 8 September 2009

GARY PSELLETES v RANDWICK CITY COUNCIL

HEADNOTE

FACTS

The appellant was the owner of property upon which a dwelling was erected. On 9 November 2006 the appellant lodged an application with the respondent Council that proposed various alterations to the dwelling, including the construction of a balcony over the roof of the existing garage. A council officer…

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: [2009] NSWCA 262
Decision Date: 8 September 2009

CaseChat Overview and Summary

The appeal concerned a dispute between the appellant, Pselletes, and Randwick City Council regarding a development consent. The core of the disagreement was whether the consent granted by the Council for home renovations at 93 Little Bay Road included a proposed balcony. The appeal was heard in the Court of Appeal of New South Wales.

The legal issues before the court were twofold: first, whether the development consent was constituted by the determination of the consent authority to approve the development application under s 80(1) of the *Environmental Planning and Assessment Act 1979*, or by the subsequent notification of that determination under s 81 of the Act; and second, whether the development consent, when properly construed, included the proposed balcony.

The court reasoned that the relevant consent was the determination made by the delegate of the Council, not the subsequent notification. Evidence, including the applicant's letter withdrawing the balcony proposal and the Council's assessment report which noted this withdrawal and recommended approval excluding the balcony, indicated that the intention was not to consent to the balcony. The court found that the primary judge had correctly determined that the consent did not extend to the balcony.

Consequently, the appeal was dismissed, and the appellant was ordered to pay the Council's costs. The court also noted an agreement between the parties concerning specific points of an order issued by the Council.

Orders

Orders of the court

(a) Appeal dismissed.

(b) The appellant to pay the Council’s costs of the appeal.

(c) Note the Agreement signed by the parties and filed with the papers in the Registry on 3 September 2009 with respect to Points 2 and 3 of the Order issued by the Council under s 121B of the Environmental Planning and Assessment Act 1979 and referred to at [3] of the judgment of Sheahan J of 15 August 2008.

Background

Background to the litigation

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Evidence

Evidence Before The Court

By virtue of the provisions of s 57(1) of the Land and Environment Court Act 1979, such an appeal is confined to a decision of the Land and Environment Court on a question of law. The only relevant question of law decided by the primary judge and which was in contest on the appeal was whether the development consent granted by Mr Quinton as delegate of the Council on 14 December 2006 included the balcony. The primary judge held that it did not and in my view he was correct in so finding.The relevant evidence Apart from the appellant’s letter to the Council dated 12 December 2006 withdrawing so much of the second application as related to the balcony and to which I have referred at [5] above, there were two critical documents before the primary judge on the construction of which the issue of whether there was consent to the balcony depended. The first was the report which contained an assessment by Mr Kaless of the merits of the application and a recommendation that it be approved subject to a number of conditions. The document commenced by describing the “PROPOSAL” as being “Alterations and additions to the front of the existing dwelling including constructing a new bedroom at the first floor and increasing the width of the existing garage on the ground floor.” After describing the site and its locality under the heading “RELEVANT HISTORY”, the report referred to the first application and that it provided, amongst other things, for alterations to extend the front garage by approximately two metres and noted that this application had been approved subject to conditions on 2 November 2006. Under the heading “DESCRIPTION OF PROPOSAL” the report stated:“This application proposes alterations and additions to the front of the existing dwelling including constructing a new bedroom at the first floor and increasing the width of the existing garage at the ground floor.Note: The applicant submitted a letter to the Council stating that he would like to remove the proposed balcony from the application. This was after discussion regarding Council’s determination including that the balcony in its current state was not acceptable and would have considerable privacy impacts on the neighbouring property at 95 Little Bay Road, Maroubra.”The letter referred to was that of the appellant referred to at [5] above. After dealing with a number of matters not presently relevant, under the heading “NOTIFICATION AND SUBMISSIONS”, the report noted that the owners of adjoining and neighbouring properties had been advised of the proposed development. As a result, a submission was received from the adjoining owner in respect of which the report relevantly stated the following: The report then dealt with a number of further issues not relevant to this appeal, concluding that the proposal was permissible with consent and that it was recommended for approval subject to conditions. Under the heading “RECOMMENDATION” the report relevantly stated:“THAT Council’s Team Leader under delegated authority from the General Manager, as the consent authority, grant development consent under Section 80 and 80A of the Environmental Planning and Assessment Act 1979 (as amended) to Development Application No. DA/964/2006 for alterations and additions to the front of the existing dwelling including constructing a new bedroom at the first floor and increasing the width of the existing garage at the ground floor at 93 Little Bay Road, LITTLE BAY NSW 2036 subject to the following conditions:1.The development must be implemented substantially in accordance with the unnumbered plan dated 7th November 2006 and received by Council on 9th November 2006, the application form and on any supporting information received with the application, except as may be amended by the following conditions and as may be shown in red on the attached plans:”

Decision

Reasons for decision

Accordingly, for the foregoing reasons in my opinion the primary judge was correct to find, firstly, that the relevant consent which he was required to construe was the determination of Mr Quinton and not what was contained in the Notice of Determination and, secondly, when properly construed, Mr Quinton’s determination to grant development consent to the second application did not extend to the balcony.Conclusion It follows that the appellant’s challenge to his Honour’s finding that the development consent granted by the Council in respect of the second application excluded the balcony fails with the consequence that his appeal against his Honour’s decision should be dismissed with costs. I would therefore propose the following orders:(a) Appeal dismissed.(b) The appellant to pay the Council’s costs of the appeal.(c)Note the Agreement signed by the parties and filed with the papers in the Registry on 3 September 2009 with respect to Points 2 and 3 of the Order issued by the Council under s 121B of the Environmental Planning and Assessment Act 1979 and referred to at [3] of the judgment of Sheahan J of 15 August 2008. SACKVILLE AJA: I agree with Tobias JA. **********

Ratio Decidendi

Legal Principle Established

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