The Satellite Group (Ultimo) Pty Ltd v Sydney City Council

[1999] NSWLEC 248

Land and Environment Court

of New South Wales

CITATION:

The Satellite Group (Ultimo) Pty Ltd v Sydney City Council [1999] NSWLEC 248

PARTIES

APPLICANT:
The Satellite Group (Ultimo) Pty Ltd

RESPONDENT:
Sydney City Council

NUMBER:

10747F of 1994

CORAM:

Talbot J

KEY ISSUES:

Development Consent :- modification - amendment of plans to correct error in drawing

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979 s 96(1)

DATES OF HEARING:

10/01/1999

EX TEMPORE JUDGMENT DATE:

10/01/1999

LEGAL REPRESENTATIVES:

APPLICANT:
Mr J Bingham (Solicitor)

SOLICITORS:
Deacons Graham James

RESPONDENT:
Mr T To (Solicitor)

SOLICITORS:
Dunhill Madden Butler

JUDGMENT:

IN THE LAND AND Matter No. 10747F of 1994
ENVIRONMENT COURT Coram: Talbot J
OF NEW SOUTH WALES Decision Date: 1 October 1999

The Satellite Group (Ultimo) Pty Ltd
Applicant

v
Sydney City Council

Respondent

EX TEMPORE REASONS FOR JUDGMENT


1. HIS HONOUR: The critical element in the presentation of the subject windows, particularly in the context of the considerable number of objections dealt with at the hearing, is the prospect that the building may appear from the outside in such a way that it might be unacceptable to persons in the vicinity or adjacent property owners.

2. The changes now proposed are intended to bring the plans in respect of units 17 and 29 into a form which is consistent with the way the units are shown in elevation as having windows flush with the exterior wall rather than recessed as they are shown on plan.

3. Section 96(1) enables the Court as the consent authority, pursuant to the regulation, to modify a development consent to correct a minor error, misdescription or calculation. As I understand the council's argument, it is to say that there is no practical way in which the Court can determine whether the error occurred in elevation, or whether it occurred in plan. Similarly, if it is a misdescription, whether the misdescription occurred in one or other of the drawings. It is clearly not a miscalculation.

4. In the Court's view it is within the meaning of s 96(1) to regard the error as being the discrepancy between the drawing in elevation and the drawing in plan. It is not a question of reanalysing the consideration process to ascertain whether or not the Court as the consent authority accepted one drawing or the other as being properly descriptive of what the Court intended to approve.

5. There was an error and that is the inconsistency between the plan and the elevations. In the Court's view, the error is minor. I do not understand the council's case to strongly suggest that having determined that there was in fact an error, that it was not indeed a minor error. The council (subject to the technical point which it was justified in raising) does not otherwise oppose the modification being made on merit considerations.

6. In all of the circumstances I am satisfied that the elevation plan should prevail with the consequence that the drawing of the plan of units 17 and 29 be amended in accordance with Exhibit A.

7. The orders that I make are:


1. Development application No Z94.006.02 granted by the Court on 20 December 1999 as varied by orders of the Court dated 7 July 1995 and 22 December 1998 be further modified in accordance with plans SK01, SK02, SK03, SK04, SK05, SK06, SK07 and SK08 August 1999.

2. Exhibit A be retained.

3. The other exhibits may be returned.