Bentley & Ors -V- Drummoyne Council & Ors [1999] NSWLEC 84

Land and Environment Court (NSW)|1999-03-29|Before: Talbot J, Mr J, Miss J

Land and Environment Court of New South Wales CITATION: Bentley & Ors -V- Drummoyne Council & Ors [1999] NSWLEC 84

PARTIES Applicants: Bentley & Ors

Respondents: Drummoyne Council & Ors

:- Development consent - plan lodged with insufficient detail and innacurate information - Wednesbury unreasonableness Judicial Review:- Building consent - plans inconsistent with development consent - Wednesbury unreasonableness KEY ISSUES: Judicial Review:- Amendment of building consent - not in accordance with formal procedure Judicial Review:- Discretion

Development consent - plan lodged with insufficient detail and innacurate information - Wednesbury unreasonableness Judicial Review:- Building consent - plans inconsistent with development consent - Wednesbury unreasonableness LEGISLATION CITED: Judicial Review:- Amendment of building consent - not in accordance with formal procedure Judicial Review:- Discretion

DATES OF HEARING: 03/29/1999; 03/30/1999; 03/31/1999

DATE OF JUDGMENT DELIVERY: 04/08/1999

Applicants: Mr J Burrell (Solicitor) Solicitors: John Burrell Solicitors

First Respondent: Mr C McEwen (Barrister) LEGAL REPRESENTATIVES: Solicitors: Abbott Tout

Second & Third Respondents: Miss J Blackman (Barrister) Solicitors: Luis Porto Solicitors

Contents Paragraph Background 1 - 15 The Issues 16 - 17 The Evidence The neighbours 18 - 21 Expert witnesses 22 - 40 The second respondent 41 - 43 DCP No. 4 44 The Accuracy of the Information in Plan A01 45 - 54 Whether the Notification Procedure was Adequate 55 Whether the BA 55/98 Plans Conformed with the Approved DA Plans 56 - 71 Whether the Second and Third Respondents Complied with the Provisions of the DCP

72 - 74 The Legal Status of the Purported Approval of Amended Levels 75 - 79 Discretion 80 - 90 Determination 91 - 94 Matter No. 20009 of 1999 95 - 104 Costs 105 - 107 Orders 108 IN THE LAND AND Matter No. 40249 of 1998

Matter No. 40249 of 1998 Peter Michael Bentley, Sandra Alexandra Bentley, Stella Chen & Stephen Chen Applicants v Drummoyne Council First Respondent Calitry Pty Ltd, Bullbear Investments Pty Ltd & Petria Pty Ltd Second Respondents Joe Di Giulio Third Respondent Matter No. 20009 of 1999 Calitry Pty Ltd, Bullbear Investments Pty Ltd & Petria Pty Ltd Applicants v Drummoyne Council Respondent REASONS FOR JUDGMENT

By notice of determination dated 8 December 1997 the first respondent notified the first second respondent and the third respondent that a Development Application No. 117/97 (DA 117/97) for the construction of five two bedroom units with basement car parking at 16 Rokeby Road, Abbotsford had been determined by the granting of consent (DC 117/97) subject to conditions which included the following:-

The front building line setback of the residential flat building should be increased to a minimum of 7.5 metres. The amendments shall be shown on the required Building Application plans for the separate approval of Council's Group Manager Planning and Resources.

A profile for the driveway and is to be submitted to Council with the building plans. The profile shall be drawn between the kerb in Rokeby Road and Unit 2 garage, drawn to scale of 1:20. It should be noted that, the maximum gradient inside the property should not exceed 1:20 (5%) for the first 3 m. gradient changes shall not exceed 1 in 8 (12%) and the maximum gradient on the ramp shall not exceed 1 in 5 (20%). 19. There being a minimum clearance of 2.1 metres from the finished level of the driveway to the underside of any overhead beam or floor slab.

Subsequently, on 16 June 1998 the first respondent approved Building Application No. 55/98 (BA 55/98).

By facsimile transmission dated 22 September 1998, Ray Jaeger, a director of the first second respondent, submitted a plan of levels to the first respondent.

On 23 September 1998, an officer of the first respondent made the following notation on a copy of the abovementioned facsimile transmission:- Discussions with the applicant resolved that the change to levels is necessary to achieve the required 2.1 metre clearance for the basement carpark, in accordance with the BC. Revised levels are therefore satisfactory.

In an interoffice memo dated 12 October 1998 the Group Manager Planning & Resources confirmed to the General Manager that RL 10.55 had been approved for the finished ground floor levels. He made the following further observations:- The builder is working to this level and as the basement block walls have already been constructed a further lowering of the basement floor level is not possible.

At the approved RL the ground floor is between 750 and 950mm above the courtyard level and therefore, additional stairs will be required for access. This floor level is also approximately 1.1m above the rear ground floor level of the adjoining block of units (18 Rokeby Road). I have written to the solicitors acting on behalf of the owners of that property and a copy of that letter is on file.

The RL of 10.55 contrasts to an RL of 10.27 shown in the ground floor drawing and RL 10.53 in the elevation drawing submitted with the building application.

At its meeting on 19 January 1999 the first respondent considered a report by its General Manager and its Manager Development and Regulatory Services dated 13 January 1999 in respect of the consideration of the question whether the building approval should be revoked.

The report referred to a pre-construction survey prepared for the architect on 18 July 1997 by Warren Eldridge and Associates. The survey was said to indicate the lowest point at the rear (north) as RL 8.69 in the north western corner of the site. This plan was prepared prior to lodgment of both the BA and the DA but not provided to council until an on-site meeting was held on 9 October 1998. The report also referred to a further survey prepared for council and dated 21 December 1998 which confirmed that the natural ground levels in the vicinity of the northern boundary ranged from RL 8.6 to 8.7.

The report further noted that the approved building plan clearly identified natural ground level and that RL's of both 10.27 and 10.53 were shown for the proposed ground floor. Retaining and topsoil fill were shown at the rear boundary with the finished ground level to a maximum of 600 mm above the common boundary with 13 Marmion Road. Various spot levels were also identified.

The report mentioned an on-site meeting which took place on 17 December 1998. Following this meeting and further investigation, according to the report, it became apparent to council officers that plans submitted had misrepresented the ground level and consequently the height of the building in relation to existing ground is much greater than shown on any plan. It is stated the ground floor slab at the rear is constructed up to approximately two metres above natural ground level.

On 24 December 1998 a notice of intention to revoke BA 55/98 was issued.

The report concluded:- Notwithstanding the history of discussions and negotiations regarding 16 Rokeby Road Abbotsford, all considerations have been based on information provided by the Applicant. The information relied upon has since been shown to be incorrect, and furthermore, it seems the correct information has been available to the Applicant since July 1997 (prior to the lodgement of both the DA and the BA). As a result, the building, is much further out of the ground than depicted by plans and elevated well in excess of the level above natural ground, generally considered acceptable by Council and, as such, would be unlikely to be approved by Council if accurately depicted. The interpretation was at all times based on the plans submitted by the applicant's architect, which clearly did not show the height of the building above natural ground being of such distance to necessitate steps to the rear courtyard of Unit No 5.

On 19 January 1999 a notice of revocation of BA 55/98 was issued by the first respondent.

An appeal against the notice of revocation has been lodged in this Court in proceedings No. 20009 of 1999.

The report of 13 January 1999 serves to provide a background explanation of part of the history of the dispute regarding the identification of levels on the site.

The applicants, who are adjoining owners, commenced these proceedings by application class 4 filed on 24 December 1998 and raise the following issues:-

i) Whether consent granted to DA 117/97 is valid because the council relied on an inadequate assessment based on misleading and inaccurate information in respect of relevant relative levels and the height of the proposed building.

ii) Whether the procedure of notification of the proposal which was inadequate and flawed effectively negated the purpose of the procedure because the council only provided a reduced copy of the plan which contained the misleading, inaccurate and inadequate information.

iii) Whether approval granted to BA 55/98 is invalid because the plans did not conform to DC 117/97 and contained incorrect and inconsistent information.

iv) Whether a purported approval to an amendment of BA 55/98 which increased the level of the ground floor is lawful.

The applicants' claim is based in law upon the grounds of Wednesbury unreasonableness and the council's failure to afford natural justice by its omission to adhere to declared procedure.

The neighbours 18. The first and second applicant did not respond to an invitation from council to make written submissions in relation to the development proposal, although Mrs Bentley attended the council offices and inspected the full size plans. They nevertheless objected to a subsequent proposal to modify the approved development by reinstatement of balconies deleted by a condition of development consent.

Mrs Bentley gave evidence that the construction of the building at a greater height than allowed for in plan A01 lodged with the development application creates unacceptable impacts on her property at 13 Marmion Road as follows:-

i) The building at 16 Rokeby Road will be of an unacceptable size, bulk and scale. ii) There would be unacceptable impacts on my privacy as any person in the proposed living area and kitchen of Unit 5 and outdoor area at the rear of 16 Rokeby Road would be able to look into my rear yard. iii) I am also concerned about the height of any retaining wall and the level of backfill on the boundary between my property and the site.

When she originally inspected the plans, she assessed the ground floor level as being no more than half a metre above natural ground level.

Stephen Chen, a director of the company Miage Pty Ltd, the owner of the adjoining property 18 Rokeby Road, told the Court that he took no objection to the height and position of the building as it appeared to be generally of the same bulk and scale as the development undertaken by his company. He determined from the plans that the ground floor level would not be inconsistent with the development already built next door. It was not until September 1998 when he observed block walls constructed on the site that he instructed the company's solicitor to write and object to an increase in height of up to one metre.

Expert witnesses 22. Neil De Bruyn, the applicants' consultant town planner, noted the only dimension shown on the plan A01 relative to natural ground level was 5300 to under the eaves at a point towards the rear of the building.

He observed the land sloped down from the Rokeby Road frontage to the rear northern boundary.

Mr De Bruyn calculated from other dimensions that the height of the finished floor at ground level, where the dimension of 5300 is shown, would be 544 mm above natural ground level.

He also observed that surveys undertaken on three dates showed a difference in relative levels between the front and rear of the site ranging from 1.11 metres down to 0.94 metres on the western boundary and 0.88 metres down to 0.87 metres on the eastern boundary.

Mr De Bruyn calculated that west and east elevations on plan A01 show a drop in ground level of approximately 0.80 metres.

Mr Surveyor Keen, who carried out the third and latest of the surveys on 11 February 1999, determined by an exercise undertaken in the witness box that the respective falls of natural ground level deduced from plan A01 were 0.85 metres on the western boundary and 0.90 metres on the eastern boundary.

By adopting a relative level obtained by Mr Keen at the point near where Mr De Bruyn ascertained a slab height of 544 mm above natural ground level, Mr De Bruyn translated the slab level to an RL of 9.424.

Plan A01 shows the slab at approximately natural ground level in the south west corner of the site nearest Rokeby Road. By reference to the survey plans Mr De Bruyn deduced that if the height of 544 mm is correct, the top of the ground floor slab in the south western corner will be below ground level by approximately 200 mm in contrast to the plan.

Mr De Bruyn concludes that the line of natural ground level is incorrectly depicted in plan A01.

Accordingly he states that the plan contains misleading and inaccurate information or does not convey the RL's of natural ground level and the height of the proposed building to allow proper assessment for the following reasons.

i) Plan A01 does not show any benchmark for assessing relative levels nor does Plan A01 show any relative levels of the natural ground level or the proposed building; ii) The slope of the site from south to north is not accurately represented on Plan A01; iii) The development application did not include prior to approval any survey report or plan that accurately shows the natural ground level of the site relative to the proposed building and therefore at the time of approval, the relative level of the ground floor and other levels of the building were not known.

Mr De Bruyn next identified discrepancies in the BA plans wherein ground floor RL's are shown as 10.53 and 10.27 in different places. Furthermore he says the building plans are not consistent with the approved development plans because the deduced RL of 9.424 for the finished ground floor slab level shown on A01 is significantly less than either RL of 10.27 and 10.53 contained in the building plans.

Mr De Bruyn also notes that the levels of fill above natural ground level at the rear of the site as shown on the building plans are not consistent with each other, or plan A01; ranging between 0.3 metres and 1.13 metres in the north east corner and between 0.5 metres and 1 metre in the north west corner.

It has also been alleged that fill has been placed at levels inconsistent with the plans and an existing structure has been used to retain backfill notwithstanding no reference to it in the plans. It is not within the issues raised in these proceedings to determine the full extent of the work carried out otherwise than in accordance with the approved plans to date.

Finally Mr De Bruyn has calculated that the top of the ground floor slab at the south western corner has been constructed 0.99 metres above natural ground level contrasting with approximately 0.2 metres as calculated by scale from plan A01 and the building plans. The top of the slab at the north western corner is, at 1.83 metres above natural ground level, correspondingly approximately 0.6 metres higher than shown in plan A01 and the building plans.

If the building is completed at the levels already constructed, Mr De Bruyn says it will impact greatly on privacy and amenity of adjoining buildings due to overseeing and overshadowing.

Michael Neustein, architect and town planner, gave evidence on behalf of the second and third respondents. The council did not call any witnesses.

Mr Neustein disputed the following evidence by Mr De Bruyn:

i) Mr De Bruyn adopted a wrong level to determine the fall along the western side so that the correct fall using the correct level at the north western corner is approximately 0.82 metres rather than 1.11 metres.

ii) The scaled height of the ground floor slab above designated natural ground level at the northern boundary shown in plan A01 is 1.0 metres in the north western corner giving a FL of 9.98 which differs from the level of 9.42 deduced by Mr De Bruyn. In Mr Neustein's opinion a ground floor level of FL9.98 is a reasonably accurate description of the project at the development application stage.

iii) Adopting the levels calculated by Mr De Bruyn for the southern end of the slab would place it below natural ground level. Such an outcome is not consistent with meeting the council's car parking access ramp gradients which, on a site falling away from the street, and with an approved setback of 7.5 metres (condition 4 of DC 117/97), effectively requires that the ground floor slab be higher than the level at the south west corner of the site - RL 9.80.

iv) The need to meet conditions 18 and 19 of DC 117/97 required a redesign of the access ramp and hence possibly the building, particularly in regard to meeting the minimum height standard under the beams supporting the ground floor slab.

v) To meet condition 19 (minimum 2.1 metres head height), the ground floor slab needed to be raised to RL 10.53.

vi) The development can be seen in the following stages:

Stage Ground Floor FL Development Application 9.98 approximately by scaling Development Consent 10.53 set according to conditions 18 and 19 Building Application 10.53 As built 10.53 The cumulative error, described in the De Bruyn affidavit, does not properly represent the process of elaboration of the development application to become a building application. To the extent that the development application drawing A01 of 5 August 1997 does not represent the levels ultimately required by the council, the discrepancy is limited to the 0.55 metres extra height needed to satisfy conditions 18 and 19.

This difference would have been 2.5 mm on plan A01 at a scale of 1:200 Such a difference is not unreasonable and, indeed, hardly discernible.

Having checked the levels, recalculated the parking access ramp grades and perused the structural drawing Mr Neustein concludes that a lower general level, particularly a ground floor slab level of 9.42 cannot be build on the subject site.

Overall Mr Neustein could not agree with Mr De Bruyn that the impact will be much greater than if the building were constructed to the level shown in the development application.

The second respondent 41. Mr Jaeger gave evidence in his capacity as a director of the first named second respondent. He also has experience as a project manager.

In a conversation with council officers on 12 October 1998, following the issue of a stop work order, after referring to the facsimile transmission dated 22 September 1998, he explained " (t)he driveway is the steepest that we can have if we are to meet the Council requirements. The basement therefore cannot be any lower than the RL of 7.77 in that sketch. You know that the minimum headroom which we can have in the basement to comply with your requirements is 2.1 metres. For these two reasons the ground floor slab has to be the 10.555 shown on that sketch. "

Following that conversation he was given advice that work could continue notwithstanding a stop work notice issued on 9 October 1998.

DCP No. 4 44. The applicant relies on the following clauses of DCP No. 4 - Residential Flat Buildings:-

10(e) For the purpose of ascertaining the minimum permissible set-back of an external wall of a residential flat building from a side or rear boundary of the allotment on which it is erected, the height of any part of such a wall shall be measured from the natural ground surface level of the allotment at various points on the side or rear boundary nearest to that part of the external wall.

Provided that where any alteration is made to the natural ground surface level between an external wall and a side or rear boundary, the height of any part of that wall shall be measured from the natural ground surface level at a point on the side or rear boundary nearest to that part or from the finished ground surface level adjacent to that wall, whichever is the lower. 10(f) The natural ground surface level and the finished ground surface level shall be shown on a plan which shall be submitted to the Council together with the plans of the building.

Provided that, where there is any doubt as to the natural ground surface level, such level shall be determined by Council.

Notwithstanding the obvious difficulty of scaling accurately at the scale of 1:200 used in plan A01, it is apparent from the evidence of Mr Keen and Mr Neustein that it is reasonably possible to make measurements of levels and heights for the purpose of assessment in the context of a two storey residential flat building.

Mr Neustein explained that it must always be assumed there is some margin of error in plans. He would not expect greater accuracy than 200 mm either way. If that 200 mm is critical to allow proper assessment of the proposal, then he would expect a survey to be called for. In a block of flats an error of 200 mm either way is not so critical to require greater degree of precision for the purpose of s 90 of the EPA Act.

The Court is satisfied that it is not necessary in every case for a survey to be provided. If there is sufficient information in the plans to identify the relationship to identified points then there will be a reasonable opportunity to assess the potential impacts of the development by an informed visit to the site.

Reference to an appropriate benchmark is desirable but not essential.

The applicants' case depends largely upon establishing that plan A01 was inaccurate. For this Mr De Bruyn relied heavily on the survey information subsequently made available to council.

Plan A01 must be considered in the context of a development application.

The falls depicted in plan A01 along the eastern and western boundaries, as demonstrated by Mr Neustein and Mr Keen, are sufficiently consistent with the information provided by subsequent survey to be acceptable for the purpose of assessment of the impact of the development.

The Court agrees with Mr Neustein that it is reasonable to adopt a level of RL 9.98 for the ground floor slab before any adjustment is made to meet the requirements of the conditions of consent.

It follows therefore that it was open for the council to carry out an adequate assessment based on the information provided in the plan that accompanied the development application and an inspection of the site.

The Court accepts the council's submission that what it was asked to and did approve was a building 600 - 700 mm above natural ground level and 300 - 400 mm above top soil level at the northern facade.

Mr Burrell acknowledges that if the Court finds that the plan A01 contained adequate information then the procedure of notification was not flawed except to the extent of the difficulty caused by providing a reduced copy of the plan with the notice. The reduced copy was not the only opportunity offered to the applicants and other persons notified by the council. As the evidence of Mrs Bentley demonstrates, the persons notified were able to inspect the original plans at the council's office.

Whether the BA 55/98 Plans Conformed to the Approved DA Plans

On the one hand Mr De Bruyn says the building could be re-designed in order to comply with conditions 18 and 19 while maintaining the ground floor slab at a level of RL 9.42. He says that in order to comply with conditions 18 and 19 and maintain the slab height of RL 9.42 it would require deeper excavation and a longer ramp.

On the other hand, Mr Neustein says that such a re-design would result in a different development at the basement car park level. He even goes so far as to say that the building could not be built on the subject site with a slab level of RL 9.42. To maintain the building depicted in the development application plan it became necessary to lift the height to meet conditions of consent. The Court sees no reason to disagree with Mr Neustein's practical assessment in that respect. However, that is not necessarily an end to the matter.

Notwithstanding that he did not regard the production of a survey essential to the proper consideration of the building application given the information provided on the plan, Mr Neustein recognised in cross examination that, based on knowledge now available from three surveys of the site, the relative position of natural ground level to the ground floor level is inaccurately depicted in the BA plan.

Reference to the survey plan prepared for the developer prior to submission of the DA or BA, but not produced to the council, discloses the location of a benchmark in Rokeby Road. This was used as the reference point for relative levels on the BA plans. The benchmark is not identified in the plans and there is no reference to its adoption.

Part of the information on the plan is the deduced height of the slab above the depicted ground level. By scaling, it is shown to be reasonably consistent with the height shown on plan A01.

The RL's of 10.53 and 10.27 where they appear on the BA plans on their face convey no relevant information except to show relationship to other RL's on the BA plan itself.

Mr McEwen for the council submits that the council was entitled to assume that the natural ground level shown had been carried through from plan A01. In plan A01 the height of the slab above natural ground level scales in the order of 700 mm which compares to the scaled height of the west elevation in the order of 650 to 700 mm as shown in the building plan A05. It follows that what was approved was a building at the height deduced by scaling above the depicted natural ground level.

The Court is persuaded that because the benchmark was not identified on the approved plans, there was no entitlement to erect a building at a height referable only to the benchmark.

When the building approval was issued to the second and third respondents the council was entitled to be satisfied that the conditions of the development consent had been complied with and that by reference to the natural ground level the height of the building would be reasonably consistent with the height of the building approved by DC 117/97. For example, no steps down were shown from the outside door of the rear unit at the northern end of the building.

If it was intended to show a building to be built by reference to the benchmark adopted by the second and third respondents' surveyor then the plan lodged in support of the building application clearly misrepresented the relationship to natural ground level. Alternatively if the natural ground level was adopted to establish a reference for the height of the building, then the evidence suggests the building has been built otherwise than in accordance with the plans.

The misrepresentation of the relative position of natural ground level to the slab contained in the building plans and implied in the sketch subsequently submitted has been relied upon by the council to justify revocation of the building approval.

If, as Mr Neustein suggests on behalf of the second and third respondents, it was reasonable for the council to accept that the building was higher, then the additional height, whatever that might actually be, flows out of the necessity to comply with development consent conditions. The configuration of the floor space in the basement and the floors above was retained so that as a building it is acceptably the same development, albeit higher out of the ground than that originally designed, and therefore, according to Mr Neustein, conforms with the development consent.

However Mr De Bruyn may well be right when he says that the RL 10.27, or 10.53, contrasts with RL 9.424 for the slab established by him from plan A01, or even RL 9.98 adopted by Mr Neustein. This deduction involves reference back to the benchmark shown in the survey which was not made available to the council.

The only consistent reference point available to council was the natural ground level. The slab heights are sufficiently consistent relative to that level for the BA plans to be a proper reflection of plan A01. The Court is satisfied that it was open and proper for the council to address the BA plans on this basis.

The approval of the building application by the council cannot, in the circumstances, be regarded as so unreasonable that no reasonable council could have exercised the power ( Associated Provincial Picture Houses, Ltd v Wednesbury Corporation [1948] 1 KB 223).

The discrepancy observed by Mr De Bruyn between the depiction of the deduced scale height of retained fill at the rear of the site in the two sets of plans is not, in the Court's opinion, of itself sufficiently material to make the BA plans relevantly inconsistent with the approved development plans.

Whether the Second and Third Respondents Complied with the Provisions of the DCP

During the hearing, an amendment to the claim was allowed whereby it was alleged that the approved plans did not comply with the provisions of cl 10(e) and cl 10(f) of DCP No. 4.

There is no requirement arising directly from those provisions which demand the lodgment of a survey. The plans demonstrated the position of natural ground level, as required, and relative heights could be determined by scaling. Any question of doubt as to the natural ground level did not arise at the time the plans were being considered.

The Court is satisfied that there was, in the circumstances, reasonable compliance with the DCP.

The Legal Status of the Purported Approval of Amended Levels

The applicants admit that what has been built is in accordance with the sketch submitted. However, they dispute that any lawful approval has been given to the amendments shown in the sketch.

Mr McEwen points out that although council accepted RL 10.55 as a proper level to which the ground floor slab could be built, there was no indication that there was a change to relationship between natural ground level and the slab. Accordingly, it was reasonable to assume the ground floor slab would remain approximately 700 mm above natural ground level as shown in the previously approved plans.

It is not possible to see how the informal presentation, consideration and approval of the purported amendment undertaken with a total lack of regard to the procedure prescribed in s 106 of the Local Government Act 1993 can have the effect of amending the building approval to allow the building to be built to a height of RL 10.55 at the top of the ground floor slab. Even if the benchmark of RL 10.00 is accepted, this represents an increase of at least 250 mm above the most prevalent level of RL 10.27 in the BA plans. Significantly greater if reference is made only to the natural ground level depicted in the approved plans. It is not possible, from the information provided in the sketch, to deduce the height by reference to anything other than natural ground level as previously adopted by the building plans.

The crucial matter is that the Court is not satisfied that the amendment is lawful to the extent of authorising a building with a ground floor slab height of RL 10.55 relative to the benchmark at RL 10.00.

As that is what the second and third respondents contend in response to the claim made by the applicants and the submission made on behalf of the first respondent, then to that extent at least, the applicants are entitled to a declaration to the contrary.

Miss Blackman submits, on behalf of the second respondents, that because actions by the council subsequent to the giving of development consent and building approval show that it did not know what it was approving, then the respondents should have the benefit of the exercise of the Court's discretion not to make any orders in the circumstances.

If it is true that the council did not know what it was approving at any time, then the fault lay with the second and third respondents who failed to provide full and complete details of how relative levels had been determined and further how the plans should be understood in that respect. This omission carried through into the so-called application for and approval of the amended levels and the decision to allow work to continue after the stop work order was issued.

The council acted promptly when it finally became aware of the discrepancies and acted to revoke the building approval in accordance with its statutory power.

Ever since the council was alerted to the problems arising as the building progressed it has intervened by calling on-site meetings, issuing stop work orders and following procedure to the ultimate end of revoking the building approval.

It is correct that the second and third respondents have been allowed to incur expense and to proceed with the erection of a building that is in accordance with the building approval at levels expressly approved by council officers. But this has only occurred because the council had assumed, as the Court has held it was entitled to do, that the relativity between natural ground level and the ground floor slab height was being maintained. It was the second and third respondents who had the information that entitled them to believe the building would be higher using the survey information in their possession. This information was not made available to the council until after a dispute had arisen on 9 October 1998.

Discussions and negotiations centred on the reduction in height of the ground floor slab at Unit 5.

The evidence of the misrepresentation did not appear to crystallise until a meeting on 17 December 1998 which is the subject of the report to council on 19 January 1999 as follows:- On 17 December 1998, an on-site mediation meeting was held. Following this meeting and further investigation, it became apparent that plans submitted have misrepresented the ground levels and consequently the height of the building in relation to existing ground is much greater than shown on any plan. The ground floor slab at the rear is constructed up to approximately 2 metres above natural ground level.

Following that meeting a note of intention to revoke the building approval was issued.

Apart from the expense the second and third respondents may have incurred, there are no mitigating circumstances in this case which persuade the Court not to grant relief in accordance with its findings. There is clearly some impact on the amenity of adjoining properties if the building is erected at the higher level and this has not been considered by the council. The conflict in levels at the northern boundary needs to be addressed.

Even Mr Neustein is of the opinion that a consequence of the height of the ground floor of the project, as currently constructed, is that the privacy of the townhouses adjoining to the west, and to a lesser extent the houses to the north and east, should be reconsidered. The greater impact of bulk and scale, although only to a small extent, will be material to the sides opposite Units 4 and 5. He says the ultimate impact will not be able to be determined until a method of dealing with privacy concerns is chosen.

The Court is not prepared to exercise its discretion in favour of the second and third respondents in the circumstances of this case.

DA 117/97 and BA 55/98 were validly granted by the first respondent.

The purported amendment of BA 55/98 on 23 September 1998 was not a lawful amendment and in terms did not authorise the construction of a building with a ground floor slab at RL 10.55 by reference to a benchmark of RL 10.00 established by Surveyor Eldridge on 18 July 1997.

The applicants seek an order that the second and third respondents demolish any works on the site not constructed in accordance with DC 117/97 or that no work be carried out otherwise than in accordance with that consent. It is open for the Court to make such an order based on the evidence before it notwithstanding that no declaratory relief in respect of the compliance or non-compliance of existing work is sought. It is clear that the building has been erected to levels consistent with RL's relative to the surveyor's benchmark rather than to ground level depicted in the plans. The prospect that the council might be asked to entertain an application for modification of development consent and further building approval must be taken into account in framing any order.

The plans of work carried out to date confirm that there is fill at the rear of the site which ultimately will be placed at a height contrary to the approved development plans.

The second and third respondents ask that the Court determine the appeal against the revocation of BA 55/98 on 19 January 1999 on the basis of the evidence in the class 4 proceedings notwithstanding that the rules of evidence do not apply in class 2. The council resists this course but, if the Court proceeds, then Mr McEwen contends that the council was entitled to revoke because it is apparent that there was misrepresentation of the relationship between natural ground level and the ground floor slab in the BA plans.

In contrast to the class 4 proceedings, where the Court was entitled to disregard the bench mark adopted by the architect, because the fact was unknown to the council, in these class 2 proceedings, the true meaning of the plans presented to the council in support of the development application and the building application is the focal issue.

The evidence of the second and third respondents' witnesses specifically recognises that the numerical levels shown on the building plans are not consistent with the depiction of the natural ground level. They are intended as actual levels relative to the benchmark in Rokeby Road.

The report dated 13 January 1999 demonstrates how the plans misled the council to the extent that the height of the building relative to ground level is much greater than shown on any plan.

The council was entitled to believe that the rear of the building was to be at or adjacent to the ground. That is confirmed by the fact that no steps were shown to the rear courtyard of Unit 5.

There is no evidence from the second and third respondents which convinces the Court that if the misrepresentation had not occurred, the council would have approved the building application. It follows therefore that the approval was obtained by misrepresentation within the meaning of s 109 of the Local Government Act 1993 ( Robinson & Ors v Pittwater Council unreported 20128 of 1998 22 October 1998).

There is a clear conflict between Mr De Bruyn and Mr Neustein in many respects, but the Court is left with the conclusion, having heard from both of them, that it is possible to comply with conditions 4, 18 and 19 of the development consent within acceptable height limits, albeit with a redesign of the basement area.

The council was lulled into a false position when it approved building plans which to it, based on the information on the plans, met the conditions of development consent and depicted a building which maintained a reasonably consistent relationship to natural ground level.

The Court is satisfied that it was reasonable for the council to revoke the building approval by reason of the established fact that it was obtained by misrepresentation of the intended levels for the height of the building. No other issue has been raised in the class 2 proceedings.

The parties agree that if the respondents are successful in Matter No. 40249 of 1998 then, in the exercise of the Court's discretion, any order for costs should follow the event. Otherwise costs should be reserved.

Although arguably the applicants have not been wholly successful in respect of every aspect of the claim, it is appropriate to note at this stage that, notwithstanding the unsuccessful attack on the validity of the development consent and building approval, they nevertheless have been wholly successful in obtaining relief in regard to compliance with the approved plans. Overall their attack on the lawfulness of the building as constructed to date has brought about the desired result from their point of view.

In Matter No. 20009 of 1999 no submissions were made in relation to the question of costs. Accordingly, it is appropriate to leave the issue of costs to be determined in the light of any application that might be made in that regard by either party.

The parties are granted leave to bring in draft consent orders, which properly reflect the Court's determination in both matters, within seven days. Otherwise, each party has liberty to apply to settle the form of final orders on five days' notice.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

At a glance

Court

Decision date

Before

Source

Judgment (145 paragraphs)

Cited By (1)