Southern Highlands Lifestyle Properties Pty Limited v Wingecarribee Shire Council

[2006] NSWLEC 46

Land and Environment Court

of New South Wales

CITATION:	Southern Highlands Lifestyle Properties Pty Limited v Wingecarribee Shire Council [2006] NSWLEC 46
PARTIES:	APPLICANT: Southern Highlands Lifestyle Properties Pty Limited RESPONDENT: Wingecarribee Shire Council
FILE NUMBER(S):	11150 of 2005
CORAM:	Watts C at 1
KEY ISSUES:	Development Consent :- Whether the development as modified is substantially the same
LEGISLATION CITED:	Wingecarribee Local Environmental Plan 1989, (WLEP) Environmental Planning and Assessment Act 1979, ss 4B, 79C, and 96
CASES CITED:	Houlton v Woollahra Municipal Council (1997) 95 LGERA 201; Masterton Homes Pty Limited v Pittwater Council (2003) 124 LGERA 216; Monnock v Pittwater Council and Anor 127 LGERA 66; North Sydney Council v Standley (1998) 97 LGERA 433; Sydney City Council v Ilenace Pty Limited 54 LGERA 217
DATES OF HEARING:	1/02/2006
DATE OF JUDGMENT:	02/14/2006
LEGAL REPRESENTATIVES:	APPLICANT: Mr C W McEwen, SC, instructed by Mr S N Griffiths, solicitor SOLICITORS: Pike Pike and Fenwick RESPONDENT: Mr J A Ayling, SC, instructed by Mr B Bilinsky, solicitor SOLICITORS: B Bilinsky & Co

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Watts C

14 February 2006

11150 of 2005 - Southern Highlands Lifestyle Properties Pty Limited v Wingecarribee Shire Council

JUDGMENT

1 This is an appeal under s 96(6) of the Environmental Planning and Assessment Act 1979, against the decision of the Wingecarribee Shire Council, (the council) to refuse a modification application to change conditions of consent contained in Development Consent No 04/0817, to enable the community title subdivision of a twenty-six (26) allotment company title subdivision of land for a multiple occupancy development on land identified as Lots 21/22 in Deposited Plan No 1049146 and Lot 2 in Deposited Plan No 1053805, ‘Lesson Park’, Canyonleigh Road, Canyonleigh.

2 I am satisfied that the development to which the consent as modified relates is not substantially the same development as the development for which the consent was originally granted by the council, [Note: Environmental Planning and Assessment Act 1979, s 96(2)]. Consequently the application must fail.

The land

3 The land is situated on the southern side of Canyonleigh Road and comprises about 259 ha of undulating rural land around 3 kilometres from the Hume Highway. (Note: 239.8 ha in the applicant’s written submissions and 260 ha in the report to works committee of 3 November 2004 in Exhibit 2, but nothing turns on the exact size of the land). The northern frontage of around 900m is to Canyonleigh Road and the southern boundary is defined by the centreline of Long Swamp Creek. The land varies in width between 500m and 1000m and is about 4000m deep.

Relevant planning controls

4 Under the provisions of the land is zoned Rural 1(a) under the provisions of the Wingecarribee Local Environmental Plan 1989, (WLEP), and the proposal is permissible with consent. In this zone the minimum subdivision size is 40 hectares.

5 Under cl 12 of the WLEP subdivision of land within the Zone No 1(a) is dealt with.

(1) This clause applies to land within Zone 1(a)…
(2) The council may consent to the subdivision of land to which this clause applies only if each allotment of land to be created by the subdivision will have:
(a) an area of not less than 40 hectares; and
(b) where the allotment has a frontage to a main or arterial road, a frontage to that road of not less than 200 metres.

6 Under cl 16 of the WLEP ‘multiple occupancy’ is described as:

(1) this clause applies to land within Zone No 1(a) or 1(b), other than land identified as being of prime crop and pasture potential for the purposes of Illawarra Regional Environmental Plan No 1;
(2) nothing in this plan prevents the erection, with the consent of the council, of more than one dwelling-house on an allotment, portion or parcel of land, having an area of 40 hectares or greater if the dwelling-houses form part of a multiple occupancy development;
(3) the council shall not grant consent to a multiple occupancy development referred to in subclause (2) unless it is satisfied that:
(i) adequate access is available to the land;
(ii) adequate water supply is available to the dwelling-houses;
(iii) adequate provision will be made for septic or other waste disposal;
(iv) the development will not have an adverse effect on the quality of local water resources;
(v) the development will not have an adverse effect on the present and potential agricultural use of the land and land adjoining that land;
(vi) the development will not have an adverse effect on the future expansion of residential or roll residential zones;
(vii) adequate consideration has been given to the visual impact of the development, particularly in relation to any expected loss of vegetation cover;
(viii) the land is not adversely affected by houses such as bushfire, flooding and slip; and
(ix) the intensity of development, particularly in relation to the siting of buildings, will not have an adverse impact on the amenity of the localities.

7 Under the Environmental Planning and Assessment Act 1979, (Act):

4B Subdivision of land

Conveyancing Act 1919 , or

Strata Schemes (Freehold Development) Act 1973 or the Strata Schemes (Leasehold Development) Act 1986.

Note: The definition of ‘plan of subdivision’ in section 195 of the Conveyancing Act 1919 extends to plans of subdivision for lease purposes (within the meaning of section 23H of that Act) and to various kinds of plan under the Community Land Development Act 1989.

(3) However, ‘subdivision of land’ does not include:
(a) a lease (of any duration) of a building or part of a building, or
(b) the opening of a public road, or the dedication of land as a public road, by the Crown, a statutory body representing the Crown or a council, or
(c) the acquisition of land, by agreement or compulsory process, under a provision of an Act (including a Commonwealth Act) that authorises the acquisition of land by compulsory process, or
(d) a division of land effected by means of a transaction referred to in section 23G of the Conveyancing Act 1919, or
(e) the procuring of the registration in the office of the Registrar-General of:
(i) a plan of consolidation, a plan of identification or a miscellaneous plan within the meaning of section 195 of the Conveyancing Act 1919, or
(ii) a strata plan of consolidation or a building alteration plan within the meaning of the

Strata Schemes (Freehold Development) Act 1973 or the Strata Schemes (Leasehold Development) Act 1986.

8 Under s 96 of the Act:

Modification of consents generally
(1) …
(1A) …
(2) Other modifications: A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if:
(a) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all), and
(b) it has consulted with the relevant Minister, public authority or approval body (within the meaning of Division 5) in respect of a condition imposed as a requirement of a concurrence to the consent or in accordance with the general terms of an approval proposed to be granted by the approval body and that Minister, authority or body has not, within 21 days after being consulted, objected to the modification of that consent, and
(c) it has notified the application in accordance with:
(i) the regulations, if the regulations so require, or
(ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and
(d) it has considered any submissions made concerning the proposed modification within the period prescribed by the regulations or provided by the development control plan, as the case may be.
Subsections (1) and (1A) do not apply to such a modification.
(3) In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 79C (1) as are of relevance to the development the subject of the application.
(4) The modification of a development consent in accordance with this section is taken not to be the granting of development consent under this Part, but a reference in this or any other Act to a development consent includes a reference to a development consent as so modified.
(5) Threatened species Development consent of the kind referred to in section 79B (3) is not to be modified unless the requirements of section 79B (3) (7) have been complied with in relation to the proposed modification as if the application for the proposed modification were an application for development consent.
(6) Appeals An applicant who is dissatisfied with the determination of the application or the failure of the consent authority to determine the application within 40 days after the application is made may appeal to the Court and the Court may determine the appeal.
(7) Subsection (6) does not enable an appeal to be made against the determination of, or the failure to determine, an application to modify a development consent, being a development consent granted by the Court.
(8) Modifications by the Court The provisions of this section extend, subject to the regulations, to enable the Court to modify a consent granted by it but, in the extension of those provisions, the functions imposed on a consent authority under subsection (1A) (c) or subsection (2) (b) and (c) are to be exercised by the relevant consent authority and not the Court.

9 The parties were in agreement, the verb ‘to modify’ means to alter without radical transformation: [Note: Sydney City Council v Ilenace Pty Limited 54 LGERA 217 at 222-223].

10 Also the parties were in agreement that the power conferred on the Court by s96 is both beneficial and facultative: Houlton v Woollahra Municipal Council (1997) 95 LGERA 201 at 203 as approved in North Sydney Council v Standley (1998) 97 LGERA 433 at 440.

The proposal and its history

11 In Exhibit A the development application form reveals that the original application was lodged with the respondent council on 26 May 2004 for ‘multiple occupancy’ valued at $1.3 mill.

12 Development Consent No 04/0817 refers to a development for the purposes of multiple occupancy twenty-six (26) new dwellings - in accordance with plans prepared by Integrated Site Design Pty Limited and statement of environmental effects, (SEE), prepared by EcoSearch Environmental Consultants Martens & Associates and Traffix Transport Planners dated June 2004, except where amended by any conditions imposed by the council. [Note: SEE, Exhibit B]. The multiple occupancy included the manager’s residence bringing to twenty-seven the dwellings on the land.

13 The original development application proposed company title to create a framework which recognised the core activities and easements to provide certainty for the provision of services and to allow access between the three area types, [Note: Exhibit B, p 31]. Consent was granted by the council to the proposed ‘multiple occupancy’ development by the notice of determination dated 18 January 2005, subject to forty-seven (47) conditions. The modification application lodged with the council on 4 July 2005 seeks to delete Condition 15 and substitute a new Condition 15A and to amend Condition 17.

14 The original consent was issued with one (1) stamped and signed plan referred to as per Drawing No 7, dated June 2004. As approved by the council, the proposal comprised a ‘multiple occupancy/ rural land sharing community’ development of twenty-six (26) new dwellings, and included the retention of the existing farmhouse and managers’ cottages on a consolidated parcel of land. That plan showed in a key at the side of the plan the 450m2 building zone, (with an additional 750m2 curtilage that is variable in size and not shown), the location of proposed agricultural lands, existing dams, existing trees, ‘common areas’, riparian zone, existing buildings. The entitlement areas were arranged in four clusters known as A, B, C and D and each entitlement area was shown as a spot with the land area not defined by metes and bounds.

15 Section 5.4 of the SEE described the ‘Company Structure and Future Management’ of the development proposal, and more detail was provided in ‘Appendix 1: Rights and Obligations of owners of the land.’

16 The SEE stated, [Note: Exhibit B, p 31], “At the outset, the company will own the land and all the improvements”.

17 Management of the total parcel of around 259 ha would be categorised in the SEE as around 70% agricultural, 24% environmental and 6% residential land.

18 In particular, the SEE notes that the environmental areas being those areas of high conservation value will be the responsibility of the company, and managed under a management plan and conservation agreement.

19 Vehicular access would be off Canyonleigh Road as presently.

20 The objectives of the original proposal [Note Exhibit B, p 18] are:

· To retain, enhance and protect the environmental biodiversity of the site;

· To retain, enhance and ensure the long term agricultural viability of the site;

· To provide for residential living environments which support the above objectives and which are ecologically sustainable;

· To ensure that the prevailing character and amenity of the locality are not detrimentally affected.

21 The council’s assessment concluded: “The proposal offers the opportunity of communal living whilst consolidating a substantial holding for agricultural use.”

22 The applicant suggested that:

Such an outcome is entirely consistent with the Rural 1 (a) zone objectives as stated under Clause 8 of the Wingecarribee Local Environmental Plan 1989 (LEP 1989).

23 The ‘multiple occupancy’ development is described in:

· Drawing No 7 - Entitlement/Dwelling Locations (approved DA plan - refer Attachment A);

· Appendix F: Cluster Siting Guidelines - Stage 1 (Drawing No 8);

· Appendix I: Rights and Obligations of owners of the land (under Company Title Scheme).

24 As shown in the development application each dwelling would occupy an entitlement area of varying size to a maximum of 1200m2 with a building area of 450m2. However, the council aware of the need to provide individual waste management facilities asked for the entitlement area to be increased to about 2000m2 per dwelling and the council’s planning assessment recommended approval on this basis, “…each residential entitlement will have a maximum area of 2000m2”. The building area of 450m2 was to remain unchanged. The entitlements were proposed clustered on elevated parts of the land and according to the applicant, would have no adverse impact upon the agricultural and environmentally sensitive land on the consolidated site.

25 Each occupation was to be ‘defined’ by landscaping and fencing around the perimeter of the entitlement area in accordance with Drawing No 8.

26 The applicant explained that any variation in the size of entitlement areas is in response to individual site factors such as access, topography, proximity to property boundaries, and, to ensure that a sufficient disposal area for on-site sewerage is available to meet the council's requirements.

27 The applicant prepared a community title concept drawing consistent with the approved location and clustering of the entitlement areas, together with their environmental capacity to accommodate individual waste management facilities.

28 The council’s assessment acknowledged that the proposal was for separate ‘entitlements’, and stated:

Under the rural 1(a) zone, there is no opportunity to create individual allotments of less than 40 hectares, hence title arrangements for each building entitlement will be via a company title arrangement, whereby prospective residents, buy a share in the company, which will manage the development.

29 By notice dated 22 September 2005 the council refused the modification application for the following reasons:

Environmental Planning and Assessment Act 1979 is not appropriate. (Condition of refusal imposed having regard to Section 96(2)(a) of the Environmental Planning and Assessment Act 1979).

Wingecarribee Local Environmental Plan 1989. (Condition of refusal imposed having regard to matters listed for consideration under Section 79C(1)(a) and (i) of the Environmental Planning and Assessment Act 1979).

The hearing

30 The appeal was filed on 30 September 2005 and is within time.

31 Mr R J Brown, solicitor and ex Strata Title Commissioner gave evidence on behalf of the applicant.

32 Mr A Smith, consultant town planner for the applicant was available to give evidence and was not called.

The issues

33 On 1 November 2005 the council filed a statement of issues.

Whether the development as modified is substantially the same development as the development for which consent was originally granted?
The development as originally approved was for a multiple occupancy designed for a communal living arrangement on a single consolidated parcel of land with no division of title for each dwelling contemplated. The modification is in the form of a subdivision, which departs from the original approval and ceases to be a multiple occupancy involving a communal living arrangement.

The council’s case

34 Mr Ayling, SC, on behalf of the council maintained that the modification application is not substantially the same application as was originally approved.

35 Firstly, he submitted that if the Court were to accede to the applicant’s request to modify the original development application, which did not involve subdivision of the land, it would be giving in effect ‘de jure’ (by right) subdivision approval. Condition 1, required three lots to be consolidated into one parcel of land not subdivided.

36 Mr Ayling, SC, submitted that proposed Condition 15A was “…beyond jurisdiction” of the Court. He submitted that if the land were held in community title as proposed by the applicant in the modification application, separate allotments and community land would be held by the corporate owners and this outcome would not be substantially the same development as was granted consent by the council. He submitted that the original consent involved “…no splitting of the land”, and secured the rights of individual owners, by way of the rules or regulations and not subdivision. He submitted that unless the test under s 96(2) of the Act is met “…there is no power to approve the modification application and it falls in limine”. (The council's consent is not disturbed).

37 The second submission of Mr Ayling, SC, was that if, and in so far as, Condition 15A were substituted to afford approval of a community title subdivision in accordance with the drawings (and he submitted, that it is not agreed that would be the consequence) the development would not be substantially the same as that carried out with the original conditions in place. He submitted that this would result in subdivision with the erection of dwellings on defined areas of land and thus would be not ‘multiple occupancy’ development. He submitted that the original consent was made possible only by the operation of cl 16 of the WLEP.

38 He submitted that Condition 17 of the consent would require a plan of management to be registered as restriction as to user, and the proposed change would amend that condition to require a community management statement to be prepared, and this would presuppose the registration of a subdivision.

39 To lend support to his submissions he referred to the decision of his Honour Talbot J in Monnock v Pittwater Council and Another 127 LGERA 66 at p 69, para 9, and distinction of subdivision of land under cl 21F of the Pittwater environmental planning instrument and use of a company title scheme to effect a right of disposition for dual occupancy. In that case his Honour stated the argument, [Note: Para 15],

…appeared to be based upon the wide definition of subdivision contained in s 4B of the EP&A Act, particularly s 4B(1)(b) where there is reference to any agreement or instrument rendering different part of the land available for separate occupation, use or disposition.

40 At para 16 of Monnock his Honour stated,

It is trite law that the ownership of shares in a company, which owns land, does not lead to an interest in the land. The legal interest of the holder of the shares is in the shares and the rights attached thereto, not in the assets of the company.

41 At para 19 he Honour stated:

In Masterton Homes Pty Limited v Pittwater Council (2003) 124 LGERA 216, Bignold J had cause to consider the validity of a condition similar to condition D1 in the present case, which also relied upon the provisions of cl 21F. His Honour concluded that the particular intended company title proposed in that case fell within the scope of the statutory definition of subdivision applicable to the operation of the LEP and in particular of cl 21F. This, he said, is because the company title arrangement will relevantly render the dual occupancy development “obviously adapted for separate …disposition” within the meaning of the statutory definition in s 4B of the EP& A Act.

42 After including a further quote from the decision of his Honour Bignold J, his Honour Talbot J stated in Monnock:

I am unable to find in his Honour’s outline of the competing arguments in Masterton, or the reasons for judgment, any express reference or consideration of the effect of the critical phrase in s 21F, namely “…subdivision which creates separate allotments”. In my opinion these words are critical to the determination of the issues in this case. They confine the definition of subdivision in s 4B to those circumstances where the subdivision of land actually creates separate allotments rather than a mere division into two or more parts that after the division would be obviously adapted for separate occupation, use of disposition. Furthermore, I cannot be satisfied that an allocation or acquisition of shares with specific rights attached to them necessarily [has] the effect of a division of the land into two or more parts.

43 Mr Ayling, SC, submitted that Talbot J in Monnock provides guidance in this case, and that the modification application should be refused consent. He was of the view that the issue involved largely a question of fact.

44 Mr Ayling, SC, later replied to Mr McEwen’s submissions, “…that there is no substantial difference because what was originally approved was subdivision under s 4B of the Act”. Mr Ayling, SC, submitted that the applicant seeks to escape the consequences of [the 40 ha minimum allotment size under] cl 12 [of the WLEP]. If subdivision of the land were originally involved, how could [that application] be originally approved without an SEPP1 objection? He submitted that this analysis by the applicant is not correct as the proposal is for physical separation.

45 Both parties agreed that if I found for the applicant there would be no need for an SEPP 1 objection to the 40 ha development standard under cl 12 of the WLEP, [Note: North Sydney Council v Standley (1998) 97 LGERA 433].

The applicant’s case

46 Mr McEwen, SC, provided written submissions in which he stated:

…the only relevant differences [brought about by the modification application] involve a change to the method of titling of the approved entitlement areas and the alteration from one allotment into a number of allotments. In substance, and upon an examination of the indicia of the respective developments, they remain substantially the same and both before and after modification will comprise multiple occupancy development and incorporate subdivision.

47 He submitted that s 4B of the Act is a wide definition. It is plain from the wording of s 4B that ‘division’ is an outcome and division can be effected by “…any agreement, …or instrument” that renders the land “…available for separate occupation”. Thus, he submitted, that as the consent as granted allowed for separate individual occupation and the proposed modification would do the same, the development to which the consent as modified would relate must be substantially the same development as the development for which consent was originally granted. He submitted that the appeal be upheld.

48 Mr McEwen, SC, submitted:

The issue of shares in a Company Title scheme with specific occupation rights attached to such shares is relevantly a division …by any agreement, dealing ... or instrument rendering different parts of the land available for separate occupation, use or disposition. In Masterton Homes Pty Limited v Pittwater Council (2003) 124 LGERA 216 at para 23 and 24 Bignold J held that a proposed Company Title arrangement fell within the definition of subdivision.
In my opinion, the intended ‘company title’ arrangement relevantly falls within the scope of the statutory definition of ‘subdivision’... This is because the ‘company title’ arrangement will relevantly render the dual occupancy development ‘obviously adapted for separate ... disposition’ within the meaning of the statutory definition.

In Monnock v Pittwater Council (2003) 127 LGERA 66 Talbot J declined to follow Masterton Homes but it is submitted that this was because of a difference in interpretation of the effect of clause 21F of the Pittwater LEP rather than any finding regarding whether company title amounted to subdivision pursuant to s4B of the EP&A Act.

49 Mr McEwen, SC, stated:

Clause 16 [of the WLEP] specifically anticipates the erection of multiple dwellings on an aggregated land holding (having an area of 40 ha or greater) provided such dwelling houses form part of a multiple occupancy development. It is submitted that a multiple occupancy development is one which is co-ordinated and controlled to ensure a combined and managed approach to substantial land holdings in a way which increases the benefit to the individual owners and yet spreads the economic burden of management of the land. This outcome is achieved whether ownership is by company title or community title. The essential requirement of clause 16 is that the dwelling houses form part of a multiple occupancy development. Clause 16 does not oblige such development to take place on a single allotment. This can be confirmed by reference to clause 16(2), which refers only to an allotment, portion or parcel of land having an area of 40 hectares or greater (emphasis added).

Whether the development as modified is substantially the same

50 If I interpret the definition of subdivision by giving full force to the words in s 4B of the Act, I almost inevitably come to the conclusion that the development application as approved, has already been subdivided under company title as submitted by Mr McEwen, SC.

51 This agrees with the interpretation given to s 4B of the Act in Masterton Homes Pty Limited v Pittwater Council (2003) 124 LGERA 216, by his Honour Bignold J that subdivision could be effected by company title.

52 This is because the subdivision, being the division of land may be, (but need not be) effected any agreement, dealing, plan or instrument rendering different parts of the land available for separate occupation, use or disposition. The company owns the amalgamated parcel of land forming the land, as shown on a map accompanying the development application, and in one sense, the further division of the land could be effected by distribution of shares in a company. Thus, as originally approved, the land would be capable of separate occupation use or disposition by shareholders in the company under company title. However, it must be remembered that the company occupies the whole of the land and not the separate shareholders.

53 There is also a difficulty for the applicant in that under the present consent, the dwelling curtilage is not defined. The place where a dwelling house would be erected under the present company title consent, is shown in plan No 7 as a ‘spot’ with a note that indicates the building envelope is 450m2 and the curtilage is 1,200m2. The council subsequently amended this curtilage to be 2,000m2, to allow an extensive area for on-site disposal of effluent. However, the actual houses site are not defined in metes and bounds, as would be the case under community title.

54 The essence of the second submission of Mr Ayling, SC, was that the conditions of the original consent would need to be changed to accommodate community title. He submitted that in so doing the character of the division would be different and again the development to which the consent as modified would relate would not be substantially the same development as the development for which consent was originally granted. Under community title there would be more than one division of land. There would be the division, being the amalgamation of the three original portions of land that make up the land as a whole. Then there would be the division of land into twenty-seven lots being twenty-six for the residents and one for the manager’s cottage. I am satisfied that if this above interpretation were given to the words defining subdivision in s 4B of the Act, the development as modified under community title would not be substantially the same as was originally granted consent under company title.

55 However, in the alternative, if I were to give the words of s 4B of the Act a meaning circumscribed by the legislative context, I would come to the same conclusion that the development as modified under community title would not be substantially the same as was originally granted consent under company title. This is because of the force of the words in s 4B of the Act would be tempered by cll 12 and 16 of the WLEP.

56 Under cl 12(2) of the WLEP the council, or the Court on appeal, may consent to the subdivision of land to which this clause applies in the rural 1(a) zone only if each allotment of land to be created by the subdivision will have an area of not less than 40 hectares. This land size was obtained, in one sense, by company title subdivision, as under Condition 15 of the original consent, the three portions of land are to be amalgamated as one parcel.

57 Under cl 16 of the WLEP ‘multiple occupancy’ may be erected, with the consent of the council, or the Court on appeal, so that there is more than one dwelling-house on an allotment, portion or parcel of land, having an area of 40 ha or greater if the dwelling-houses form part of a ‘multiple occupancy’ development. Under cl 5 of the WLEP ‘multiple occupancy’ development means development carried out in accordance with cl 16.

58 It is clear from the description of ‘multiple occupancy’ that the area of land upon which such development stands must be 40 ha or greater in area. In the case of company title, the land being in excess of 40 ha, would be adapted for separate occupation, use or disposition by the company over the whole of the land. In the case of community title separate occupation of the individual lots by individual owners or occupiers would be effected and thus the land would be subdivided into lots less than 40ha. This would not be the same development as was originally consented to by the council and fails the test under s 96 of the Act. This is the thrust of the first submission of Mr Ayling, SC, which I accept. Support for this view is found in the decision of his Honour Talbot J in Monnock. His Honour made a distinction between division of land by shares and by title. The modification application would fail, as the titling would be different under community title and company title.

59 It is interesting to note that Mr Browne, who gave evidence on behalf of the applicant, did not disagree with the finding of his Honour Talbot J, that a person involved in a company title scheme obtains an interest in shares and not land.

60 As a consequence of the differences between the two forms of title, I am satisfied that the land would not remain as one parcel when subdivided under community title and divided into twenty-seven lots. I am persuaded by the submissions of Mr Ayling, SC, that the development to which the consent as modified relates would not be substantially the same development as the development for which consent was originally granted. Thus the application must fail.

61 There was no issue between the parties as to the merits of the application. For the above reasons, the appeal is dismissed.

Costs

62 I understand that the parties have reached agreement that each will pay its own costs.

Orders
63 My orders are:
1. The appeal under s 96 of the Environmental Planning and Assessment Act 1979 is dismissed.

2. Modification application in respect of a consent granted by the council for development application No 04/0817 to erect a multiple occupancy of twenty-six (26) new dwellings under company title on land identified as Lots 21/22 in Deposited Plan No 1049146 and Lot 2 in Deposited Plan No 1053805, ‘Lesson Park’, Canyonleigh Road, Canyonleigh is refused.

3. The exhibits are returned except for Exhibit A.

S J Watts

Commissioner of the Court

sw