Singh v Byron Shire Council

[2003] NSWLEC 265

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Land and Environment Court

of New South Wales

CITATION:	Singh v Byron Shire Council [2003] NSWLEC 265
PARTIES:	APPLICANT Gary Jasmale Singh RESPONDENT Byron Shire Council
FILE NUMBER(S):	10119 of 2003
CORAM:	Pain J
KEY ISSUES:	Question of Law :- appeal against an order issued under s 121B of the Environmental Planning and Assessment Act 1979 - whether the Court has power to consider the issues raised in the Applicant's Statement of Issues - whether the issues raised are relevant to the appeal
LEGISLATION CITED:	Byron Local Environmental Plan 1988 cl 15 Environmental Planning and Assessment Act 1979 s 80A, s 101, s 121B, s 121ZK, s 124
CASES CITED:	MLC Properties v Camden Council (1997) 96 LGERA 53; Swadling v Sutherland Shire Council (1994) 82 LGERA 431
DATES OF HEARING:	05/06/2003
DATE OF JUDGMENT:	06/11/2003
LEGAL REPRESENTATIVES:	APPLICANT Mr J Atkin (barrister) SOLICITORS Walters RESPONDENT Mr A Hudson (solicitor) SOLICITORS Wilshire Webb

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

10119 of 2003

Pain J

11 June 2003

GARY JASMALE SINGH
Applicant
v
BYRON SHIRE COUNCIL
Respondent
Judgment

1. This matter concerns an appeal pursuant to s 121ZK of the Environmental Planning and Assessment Act 1979 (the EP&A Act) against an order issued by the Council to the Applicant. The Council issued to the Applicant an order dated 7 January 2003 pursuant to s 121B of the EP&A Act, in particular order 15. The order requires the Applicant to comply with two conditions, conditions 2 and 5, of development consent 99/220 issued by the Council. Condition 2 requires the:

Consolidation of all separate parcels of land into one allotment under one title be registered with the Land Titles Office.
Condition 5 states:

The existing dwelling-house on the subject land, comprising Lot 1, DP 302830, Lot 1 DP 311201, and Lot 27 DP 870122, is required to be demolished and removed from the site prior to occupation of the proposed dwelling-house.
Development consent was granted on 30 July 1999 by the Council for the erection of a dwelling on Lot 1 DP 311201.

2. Extensive reasons for giving order number 15 are set out in the order. Fundamental to the reasons for giving the order and for the imposition of conditions 2 and 5 of the development consent 99/220 is the Council’s assertion that Lot 1 DP 311201 is part of an existing holding together with Lot 27 DP 870122 and Lot 1 DP 302830.

3. By way of background I note that on 11 August 1999 the development consent 99/220 was publicly notified under s 101 of the EP&A Act. A dwelling house was constructed on that land between September 1999 and February 2001. On 31 July 2000 the Applicant commenced a Class 1 appeal against condition numbers 2 and 5 of development consent 99/220. Preliminary questions of law and fact were identified and listed for hearing. These included the consideration of the existing holding issues referred to in these proceedings. The preliminary questions of law and fact were listed for hearing before a judge but the proceedings were discontinued by the Applicant prior to completion of the hearing and before any determination by the Court. The dwelling house which was the subject of that consent was completed and was being occupied in the meantime.

4. On 22 November 2002 the Council issued the proposed order in terms of order 15 under s 121B of the EP&A Act. On 7 January 2003 the Council issued the order pursuant to s 121B of the EP&A Act which is the subject of the current appeal, this appeal being commenced on 4 February 2003.

5. In the Amended Statement of Issues in relation to the appeal the Applicant has raised nine issues as follows:
1. Whether Lot 1 DP 311201 and Lot 1 DP 302830 comprise an existing holding within the meaning of Clause 15 Byron Local Environmental Plan 1988.

2. Whether Lot 27 DP 870122 was part of the existing holding at the date of Development Consent 99/220.

3. Whether conditions 2 and 5 of Development Consent 99/220, insofar as they relate to Lot 27, were valid because that Lot was not part of the existing holding.

4. If conditions 2 and 5 were valid, were those conditions appropriate in the circumstances insofar as they relate to Lot 27

5. Is condition 2 void for uncertainty.

6. If condition 2 is not uncertain, is it validly imposed under section 80A EPA Act.

7. Is condition 5 an appropriate condition when Lot 27 was not part of the existing holding.

8. The 121B Notice dated 7 January 2003 contains defects:

(a) Paragraphs number 1 and 2 assume Lot 27 forms part of the existing holding.
(b) The subject property is Lot 1 DP 311201 only.

9. In the circumstances there is no viable non-urban use of the land comprising the 3 lots and there is no planning merit in imposing the conditions 2 and 5.

6. The Amended Statement of Issues, issues 1 to 8, filed by the Applicant, essentially takes issue with conditions 2 and 5 in the development consent issued by the Council to the Applicant.

7. The Council has filed preliminary questions of law dated 4 June 2003 which are as follows:
1. Whether the Court has the power to consider the issues raised in the applicant’s [amended] statement of issues dated 30 May 2003 in the determination of this appeal.
2. Whether the issues raised in the applicant’s amended statement of issues dated 30 May 2003 are relevant to the determination of this appeal.

8. Issues 1, 2, 3, 4, 7 and 8 seek to raise what constituted the relevant existing holding and, particularly, whether Lot 27 DP870122 was part of the existing holding comprising Lot 1 DP311201 and Lot 1 DP302830 at the date of the development consent 99/220 and, as a consequence, whether conditions 2 and 5 were valid or appropriate in relation to Lot 27. Issue 7 is the same as issue 4 and does not need to be considered separately.

9. I note the basis for the Applicant’s argument is essentially that Lot 27 is not part of the existing holding as the boundaries of this Lot were varied, firstly, by compulsory acquisition by the Department of Main Roads of a small part of the land and, secondly, because of a boundary readjustment involving the neighbour’s land causing the boundaries of Lot 27 to alter. Consequently the Applicant argues that Lot 27 does not satisfy the definition of existing holding found in cl 15 of the Byron Local Environmental Plan 1988 as it applied in 1999 when development consent was granted.

10. I note that the issues raised in issues 5 and 6 concern whether condition 2 is void for uncertainty or, if not, whether it is validly imposed under s 80A of the EP&A Act. Submissions to that effect were made by the Applicant and opposed by the Council.

11. I note in relation to issue 9 that it raises essentially merit issues suggesting that conditions 2 and 5 of development consent 99/220 ought not be imposed and I think, although it was not fully argued before me, that it seeks to challenge one of the reasons given in the order the subject of this appeal.

12. The difficulty with all the issues raised by the Applicant’s Amended Statement of Issues is that they are essentially an attack on the existing consent conditions of development consent 99/220 issued by the Council. Even issue 9, which is expressed to be a merit issue, could be interpreted as seeking to challenge the basis on which conditions 2 and 5 were made, rather than the order itself. The relevant Class 1 challenge to the conditions of development consent 99/220 was commenced but not proceeded with by the Applicant. It was discontinued in May 2001 and any such challenge is now out of time. As the Council’s submission pointed out, development consent 99/220 is a development consent under Pt 4 of the EP&A Act and until it is declared invalid all parties and the Court must treat it as valid: see Swadling v Sutherland Shire Council (1994) 82 LGERA 431 and MLC Properties v Camden Council (1997) 96 LGERA 53. In this Class 1 appeal against an order made under s 121B of the EP&A Act the Court has no power to declare or find invalid the conditions of a development consent. This argument, with which I agree, would seem to be a bar to all the matters raised by the Applicant, except possibly a redrafted issue 9.

13. While the Court has broad powers under s 121ZK of the EP&A Act, including the power to modify and revoke the order, and the Applicant is ultimately seeking that the order be revoked, I do not see any basis on which the Court could do so in terms of the issues raised in issues 1 to 8 of the Amended Statement of Issues, given the existence of the valid development consent 99/220.

14. While the Applicant’s counsel argued the Court’s powers in relation to appeals under s 121ZK of the EP&A Act are of a very similar nature to that exercisable under s 124 of the EP&A Act, I do not think that can be said to extend, in the way the Applicant argues in this case, to find the consent conditions in the valid development consent are not enforceable. Even if the Court had the power the Applicant urges in these Class 1 proceedings, which I doubt, it is not appropriate in my view that the recipient of a development consent seek, through the s 121ZK appeal process available under the EP&A Act, to challenge the terms of development consent in the way that is sought to be done in this appeal.

15. Much of the argument before me revolved around the issue of whether at the time development consent 99/220 was granted there was an existing holding which included Lot 27. I do not intend to make any finding on that matter given my reasoning that the consent conditions must stand. The Applicant is therefore unable to raise a number of the issues in this appeal, particularly issues 1 to 4, 7 and 8, in relation to what constitutes the existing holding. In relation to issues 5 and 6, concerning whether condition 2 of consent 99/220 is void for uncertainty or validly imposed, I also do not consider it is open to the Court to consider those issues in these Class 1 proceedings. I do not consider the Court’s power in these proceedings are similar to the powers exercisable under s 124 of the EP&A Act.

16. The Council has indicated that if issue 9 is pressed it would not need to rely on the relevant reason given in the order which the Applicant is apparently seeking to challenge. This matter was not fully argued before me and I do not intend to make any conclusive finding on issue 9. I will allow the Applicant the opportunity to recast issue 9 so that if there is an issue which is appropriately the subject of this appeal that can be raised. I repeat again that the current formulation of issue 9 can be interpreted as seeking to raise issues as to whether conditions 2 and 5 of development consent 99/220 ought to have been imposed at all and it is not appropriate to raise these in this appeal. The Applicant will need to be mindful of that in recasting issue 9.

17. Accordingly, I answer the preliminary questions of law raised by the Council and dated 4 June 2003 as follows:


Question 1: Whether the Court has the power to consider the issues raised in the Applicant's statement of issues dated 30 May 2003 in the determination of this appeal.
Answer 1: The Court does not have power to consider issues 1 - 8 raised in the Applicant's statement of issues dated 30 May 2003 in this appeal.

Question 2: Whether the issues raised in the Applicant's statement of issues dated 30 May 2003 are relevant to the determination of this appeal.
Answer 2: Issues 1 - 8 raised in the Applicant's statement of issues dated 30 May 2003 are not relevant to the determination of this appeal.

Orders
18. The Court orders that:
1. Issue 9 in the Applicant's statement of issues dated 30 May 2003 may not be pressed in its current form.
2. The Applicant is granted leave to redraft issue 9 in its statement of issues dated 30 May 2003.
3. The exhibits may be returned, except exhibit A.
4. The matter is stood over for callover before the Registrar on 20 June 2003.