Rushmist Pty Limited v Ballina Shire Council

[1998] NSWLEC 106

Land and Environment Court

of New South Wales

CITATION:	Rushmist Pty Limited v. Ballina Shire Council [1998] NSWLEC 106
PARTIES:	APPLICANT Rushmist Pty Ltd RESPONDENT Ballina Shire Council
FILE NUMBER(S):	20029 of 1998
CORAM:	Cowdroy J
KEY ISSUES:	:-
LEGISLATION CITED:	Supreme Court Rules 1970 Land and Environment Court Rules 1996 Environmental Planning and Assessment Act 1979 Local Government Act 1993 Local Government Act 1919 Environmental Planning and Assessment (Savings and Transitional) Regulation 1998
CASES CITED:	Meagher JA in Jack Ziade v Woollahra Council & Ors unreported: NSWCA, 40457/93, 28 April 1994); In Dalla & Anor v Kiama Municipal Council (unreported: NSWLEC, 20678/85, 22 August 1986); Condux Pty Limited v Leichhardt Municipal Council (unreported: NSWLEC, 20716/80, 27 February 1981); North Sydney Council v Michael Standley & Associates Pty Limited (1998) 43 NSWLR 468; 97 LGERA 433; Big Country Developments Pty Limited v Penrith City Council (unreported, 20062/98, 8 October 1998); Sydney City Council v. Zizza (1989) 67LGRA 224 espc at 235-236); Proprietors of S.P. 13318 and 13555 v. Lavender Regency Pty Ltd (1997) 97LGERA 337."
DATES OF HEARING:	14/10/98
DATE OF JUDGMENT:	10/28/1998
LEGAL REPRESENTATIVES:	APPLICANT Mr J B Maston Barrister Somerville Laundry Lomax RESPONDENT Mr P Lalich Solicitor Allen Allen & Hemsley

JUDGMENT:

1. The issue before the Court is a question of law under Part 31 of the Rules of the Supreme Court of New South Wales 1970 incorporated in the Rules of this Court pursuant to Part 6 Rule 1 of the Land and Environment Court Rules 1996.

2. On 8 September 1981 Ballina Shire Council ("the Council") issued Development Consent No 81/400 ("the development consent") to Mr R McKenzie pursuant to Section 92 of the Environmental Planning and Assessment Act 1979 ("the EPA Act") in respect of a development comprising three residential home unit buildings known as Block A, Block B and Block C containing fifty-two units at Grandview Street and Seaview Street, East Ballina. Rushmist Pty Limited ("the Applicant") now holds the benefit of such consent. The development was commenced within the requisite period prescribed by the above Act by the erection of Block A. On 30 January 1998 the Applicant lodged a Building Application No 490/98 pursuant to the Local Government Act 1993 for the construction of Blocks B and C. By Notice of Determination dated 3 March 1998 the Council refused the building application, and subsequently the Applicant filed its Class 2 application on 6 March 1998 against Council's refusal.

3. On 20 August 1998 the following question of law was raised by the Council:-

"Does the proposed building, the subject of these proceedings, require development consent pursuant to the Environmental Planning and Assessment Act 1979 or is it the same development as the building the subject of development consent no. 81/400 issued on 8 September 1981."

The Parties' Contentions

4. The Council submits that the building proposed in the rejected building application was not the "same development" as that referred to in its development consent. The reasons advanced by Council for rejecting the building application as set out in its letter of 3 March 1998 to the Applicant states as follows:-

* "The height, bulk and design of the building having an adverse impact upon the ridge line and general locality of the area.

* The external finishes of the building are inconsistent with the completed stage one building.

* Concerns of site stability due to the presence of uncontrolled fill material.

* Concerns with the method of anchoring the proposed pile walling, with the impact such excavation and anchoring will have on Council's footway and adjoining properties."

5. The Council has compared the plans submitted in support of the application for development consent with those contained in the building application and refers to numerous items in respect of which it is said that the proposal differs from that which was the subject of development consent. It has indicated numerous matters in the proposed Block B and Block C contained in the building application which differ from the earlier plans. Such differences relate to matters such as shape of balconies, rounding of various staircases, reconfiguration of bathrooms, reconfiguration of living rooms within the prospective units, relocation of the gymnasium, conversion of one room from a bedroom to an office on the ground floor of one of the buildings, alteration of the garbage collection arrangements, realignment of internal staircases in certain units, alteration of outside fire escapes and similar matters. The Council contends that the Applicant is required, pursuant to Section 102 of the EPA Act (as it as existed prio

r to the recent amendments) to apply to modify the development consent and that the Applicant must make such application to enable Council to consider the alterations contained in the building application. The Council claims that in the absence of such an application, it is prejudiced because it is unable to properly assess the proposal which is now made and that an assessor, in dealing with the matter as an appeal in Class 2 proceedings would not be able to give proper consideration to the matters now the subject of the proposed development. In particular, the need to advertise such changes would be circumvented.

6. The Applicant relies upon the development consent and claims that the building application is substantially in accordance with such consent. Further, it submits that even if the Court considered that the existing consent did not relate to the plans now contained in its building application, its seeks building approval even though there would be no development consent for Blocks B and C. Alternatively it has indicated that it is prepared to abandon many of the proposals contained in its building application and that it would be willing to revert to the original plan as submitted if the Court found that the building application was not found to be in accordance with the development consent.

Legal Principles

7. Pursuant to Regulation 39 of the Environmental Planning and Assessment (Savings and Transitional) Regulation 1998, Sections 176 and 177 of the unamended Local Government Act 1993 continue to apply in respect of any determination of an application for approval for prescribed activity under that Act as if the amended EPA Act had not been enacted. Accordingly this appeal is to be determined pursuant to the EPA Act as it existed immediately prior to 1 July 1998.

8. The central issue is whether the buildings proposed in the Applicant's building application can be categorised as ones which properly fall within the development consent. In addressing this issue, it is important to adhere to the principle that it is not essential for the building application to do otherwise than to "reflect the development consent" (see Meagher JA in Jack Ziade v Woollahra Council & Ors unreported: NSWCA, 40457/93, 28 April 1994). In Dalla & Anor v Kiama Municipal Council (unreported: NSWLEC, 20678/85, 22 August 1986) Bignold J considered an appeal under the analogous provisions of the Local Government Act 1919. In the course of His Honour's judgment he quoted from earlier decisions of this Court in Condux Pty Limited v Leichhardt Municipal Council (unreported: NSWLEC, 20716/80, 27 February 1981). In that decision the Court stated the general principle (for the purposes of Section 314(1)(b) of the Local Government Act 1919) that where the consent to the erection of a proposed building is

required a Council may be satisfied that the proposed building would be in accordance with the provisions of that Act if the subsisting development consent related to the erection of a building which was either identical to that proposed in the building application or of a building which was not identical but was "substantially the same as that building". The same principle should apply to development under the EPA Act. The New South Wales Court of Appeal in North Sydney Council v Michael Standley & Associates Pty Limited (1998) 43 NSWLR 468; 97 LGERA 433 has adopted an analogous test in relation to the application of Section 102 of the EPA Act.

9. A consent issued pursuant to Section 92 of the EPA Act is directed to the development of land. A consent issued pursuant to the provisions of the Local Government Act is directed to a different issue, namely the activity of building. As stated by Bignold J in Big Country Developments Pty Limited v Penrith City Council (unreported, 20062/98, 8 October 1998):-

"an application for approval under part 1 of Chapter 7 of the LG Act is not dependent upon the existence or pre-existence of any requisite development consent for the carrying out of the same activity under the EP&A Act. In this respect, the LG Act is materially different from the Local Government Act 1919 by virtue of the absence from the LG Act of any counterpart to s.314(1)(b) and s.314(4) of the former Act, (as to which see Sydney City Council v. Zizza (1989) 67LGRA 224 espc at 235-236) cf. Proprietors of S.P. 13318 and 13555 v. Lavender Regency Pty Ltd (1997) 97LGERA 337."

10. The development consent conditions including a requirement that when the building application was submitted, provision would have to be made for matters pertaining to building standards. There was no requirement, contained in the consent, that it was mandatory for the building to be identical to that referred to in the plans submitted with the application for development consent. Indeed, it would have been extraordinary for such a requirement to have been required since it is not the function of a development consent to dictate the exact manner in which a building is to be constructed. In the building application process, all that is required is that the proposed building comply with the requirements of the development consent in relation to the specific conditions set out therein, and that it be substantially in accordance with the building for which development consent has been issued.

The Proposed Building

11. Having conducted a detailed examination of the plans submitted as part of the application for building approval and comparing those with the plans lodged with the application for development consent under Section 92 of the EPA Act, the Court concludes that they are "substantially" the same. Such comparison obviously involves a value judgment, but the detailed comparison shows that the discrepancies are, in the scale of things, of minor nature. Most of the changes are internal or, if external of such a nature as not to alter the proposed buildings in any major way. Put another way, there is no major departure from the buildings as proposed. The Applicant has indicated that it is prepared to re-consider some of the differences, which can be fully considered before an assessor of this Court.

12. The Applicant has submitted that in the event that the development consent did not extend to the subject buildings Block B and Block C, it would nevertheless submit that it was entitled to obtain building approval even though there was no development consent for such development. In view of the findings, it is unnecessary to decide this issue. It should be observed, however that, by virtue of the repeal of Section 314(4) of the Local Government Act 1919, and the absence of any equivalent in the Local Government Act 1993, a strong argument could be made in support of the Applicant's submission that a building approval under that Act can be obtained even though no development consent exists under the EPA Act. Such conclusion is supported by the observations of Bignold J in Big Country Developments Pty Limited (supra). However, such procedure would be a futile exercise, at least in so far as any practical result could be achieved, since any development could not proceed in the absence of development consent,

even if building approval had been obtained: see Proprietors of SP 13318 and 13555 v Lavender View Regency Pty Limited (supra).

Conclusion

13. The Council submitted that it may be entitled to greater contributions under Section 94 of the EPA Act than that originally considered appropriate in 1981, and it is deprived of the opportunity of seeking greater contributions if the construction now proceeds. This matter is irrelevant. The sole issue for determination is whether, upon a proper construction of the proposal as contained in the development consent, it can be said that the building approval sought by the Applicant can be properly categorised as being in respect of the development consent.

14. In respect of the particular question posed as set out in paragraph 3 above, the Applicant does not dispute that development consent is required for the proposed building pursuant to the EPA Act. The real question to be answered is whether the proposed building, the subject of the appeal now pending before the Court can be said to be the "same development" as that which is the subject of the development consent. Such question is answered in the affirmative.