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Windy Dropdown Pty Ltd v Warringah Council

Windy Dropdown Pty Ltd v Warringah Council

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Case Copied 17 November 2000 18 min read

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Land and Environment Court

of New South Wales

CITATION: Windy Dropdown Pty Ltd v Warringah Council [2000] NSWLEC 240

PARTIES:
APPLICANT:
Windy Dropdown Pty Ltd
RESPONDENT:
Warringah Council

FILE NUMBER(S): 10298 of 2000

CORAM: Talbot J

KEY ISSUES: Development Consent :- modification - whether retrospective - development already carried out otherwise than in accordance with development consent

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 76A, s 96 (s 102), s 124(3)

CASES CITED: Connell v Armidale City Council (Pearlman J, NSWLEC, 25 September 1996, unreported);
Herbert v Warringah Council (1997) 98 LGERA 270;
Hooper & Anor v Lucas & Ors (1990) 71 LGRA 27;
Ireland v Cessnock City Council (1999) 103 LGERA 285;
Jacklion Enterprises Pty Ltd v Sutherland Shire Council (Pearlman J, NSWLEC, 8 July 1998, unreported);
Kouflidis & Ors v City of Salisbury (1982) 29 SASR 321; 49 LGRA 17;
Lirimo Pty Ltd v Sydney City Council (1981) 66 LGRA 47;
Longa v Blacktown City Council (1985) 54 LGRA 422;
Steelbond (Sydney) Pty Ltd v Marrickville Municipal Council (1994) 82 LGERA 192;
Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335;
Woollahra Municipal Council v Alcaine (1986) 59 LGRA 40;
Woollahra Municipal Council v Barlow & Ors (1988) 66 LGRA 248

DATES OF HEARING: 07/11/2000, 08/11/2000, 09/11/2000

DATE OF JUDGMENT:
11/17/2000

LEGAL REPRESENTATIVES:

APPLICANT:
Mr C J Leggat (Barrister) with Ms L M Byrne (Barrister)
SOLICITORS:
David Trodden & Associates
RESPONDENT:
Mr D P Wilson (Barrister)
SOLICITORS:
Wilshire Webb

JUDGMENT:

IN THE LAND AND Matter No. 10298 of 2000
ENVIRONMENT COURT Coram: Talbot J
OF NEW SOUTH WALES Decision Date: 17 November, 2000

Windy Dropdown Pty Ltd

Warringah Council

Respondent

REASONS FOR JUDGMENT

1. The Application Class 1 filed in the proceedings states that the decision appealed against is a refusal of an application for variation of a s 88B instrument. At the commencement of the hearing neither Mr Wilson, appearing for the council, nor Mr Leggat, appearing for the applicant, could identify any provision in a s 88B instrument or even a condition of consent requiring the completion of a s 88B instrument that is relevant to what the applicant proposes.

2. This unsatisfactory situation was ultimately resolved by the parties agreeing that the issue raised in the appeal is whether the Court should exercise its discretion to approve an increase of fill in Lots 12, 13 and 14 (being part of the land in a subdivision approved by the respondent council) above the levels shown in approved works as executed plans. The increases range between 0.96 metres and 3.25 metres. The levels in the approved works as executed plans are different to the levels shown in the approved subdivision plan.

3. It is not necessary to go into the relevant history of the matter as that can be gleaned from the judgment of Cowdroy J in matter No 40027 of 2000 delivered on 14 June 2000, [2000] NSWLEC 110, unreported. In response to the council’s application, Cowdroy J…

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: [2000] NSWLEC 240
Decision Date: 11/17/2000

CaseChat Overview and Summary

The Land and Environment Court of New South Wales was tasked with determining whether the Warringah Council should grant Windy Dropdown Pty Ltd an increase in the fill levels on Lots 12, 13, and 14 of a subdivision. The applicant sought approval for an increase in fill levels that exceeded those shown in the approved works as executed plans but did not exceed the levels indicated in the approved subdivision plan. The primary legal issue was whether the Court should exercise its discretion to approve the increased fill levels, given that some of the development had been carried out without the required approval. The Court considered the relevant statutory provisions and case law, including the principle that there is no power to approve unauthorised work that has already been carried out.

The Court concluded that an application for modification of development consent could be made under section 96 of the Environmental Planning and Assessment Act 1979, even if the development had already been carried out. The Court found that the modification application related to the development consent itself, rather than the development itself, and that the modification could be prospective in nature. The Court also determined that the proposed increase in fill levels did not significantly impact the landscape character and public use and enjoyment of the coastal reserve, nor did it have a substantial adverse effect on the Windy Dropdown house.

As a result, the Court approved the application for modification of development consent, allowing Windy Dropdown Pty Ltd to increase the fill levels on Lots 12, 13, and 14, provided the levels did not exceed those indicated by the cement covers over the inspection pits. The Court directed the parties to prepare minutes of appropriate orders to reflect its decision.

Orders