Cherrybrook Victory Christian Church Inc v Hornsby Shire Council - [2004] NSWLEC 513 - NSWLEC 2004 case summary — Zoe

NSWNSWLEC

Cherrybrook Victory Christian Church Inc v Hornsby Shire Council

[2004] NSWLEC 513

Land and Environment Court (NSW)|2004-11-05|Before: Pain J, Ms J, Mr P

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2004-11-05

Before

Pain J, Ms J, Mr P

Source

Original judgment source is linked above.

Judgment (41 paragraphs)

[1]

The Applicant's Submissions 13 The Applicant argued that the development consent should not be interpreted as granting development consent to the works on the footpath and roadway. The Applicant argued that Order 2 made by the Senior Commissioner (see par 3 above) makes it clear that the development consent only consented to the carrying out of works on the land the subject of the Applicant's development application. The Applicant argued that the references made in conditions A and B to plans of works to be carried out on the footpath and the construction of a pedestrian refuge in the road do not constitute a grant of development consent for these works. Rather, conditions A and B are, according to the Applicant, merely deferred commencement conditions making it clear that the consent granted to the Applicant's development application does not commence until the works on the footpath and roadway have been carried out.

[2]

14 The Applicant argued in the alternative that if, on its proper construction, the development consent did in fact grant consent to the works to be carried out on the footpath and the construction of a pedestrian refuge in the roadway, the grant of consent to such works is within the jurisdiction of the Senior Commissioner as: (a) s 39(2) of the Land and Environment Court Act 1979 grants the Court on appeal all the "functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal" thus the Senior Commissioner was authorised to do whatever the Council, as consent authority, could in granting consent; and (b) s 80A(1)(f) of the EP&A Act makes it clear that a condition of consent can be imposed by a consent authority if "it requires the carrying out of works (whether or not being works on land to which the application relates) relating to any matter referred to in section 79C (1) applicable to the development the subject of the consent" .

[14]

26 I consider that the Council has essentially argued a "technical" legal point in regard to the pedestrian refuge and footpath. I agree with the Applicant's submissions that the Council's complaints on this ground are largely a matter of form over substance. I will uphold this ground of the appeal and I am requiring amendment of the development consent conditions because it is a legally binding document, but I do not anticipate that compliance with this judgment will affect the ability of the Applicant to obtain its development consent from this Court. Had this been the only issue where error was found it would not have been sufficient to warrant the matter being returned to the Senior Commissioner. As it is not entirely clear to me what the Senior Commissioner intended, I am of the view that the following options are available to him and the parties when the matter comes back before him: (a) amend condition A(d) and condition 1(c) to remove any reference to the grant of development consent for the footpath and pedestrian refuge, and draft conditions pursuant to s 80(1)(f) of the EP&A Act . If condition 103 is to remain it needs to be amended to recognise that the Council's consent as landowner and any necessary approval under the Roads Act 1993 must be obtained prior to the carrying out of the works; or (b) redraft the deferred commencement conditions to make it clear that the development consent is conditional on not only the obtaining of any requisite consent for the construction of the footpath and pedestrian refuge but also the completion of these works if that is what is intended. 2. The Inadequate Consideration Ground The Council's Submissions 27 The Council relied on Weal v Bathurst City Council & Anor (2000) 111 LGERA 181 to argue that by issuing a development consent subject to deferred commencement condition B, the Senior Commissioner failed to give proper consideration to the impacts of the works in respect of which condition B requires further plans to be provided. In particular, the Council argued that the Senior Commissioner had: (a) no plans of the proposed lift system to be installed on the footpath between the Applicant's land, which is elevated above the street, and New Line Road, and that accordingly he was not in a position to assess the adequacy and safety of the lift or its visual impacts; (b) no plans of the other works to be carried out on the footpath and roadway; and (c) no knowledge of the position of the Roads and Traffic Authority in relation to the works proposed to be carried out in New Line Road so that he was unable to assess the traffic impacts of these works. 28 The Council argued that the finalisation of the details of the above works was fundamental to the proposal as the proposal could not be adequately assessed without the requisite information and it was not therefore a matter which should be dealt with by way of deferred commencement consent conditions.

[23]

The Applicant's Submissions 38 In relation to: (a) the lift and works to be carried out on the footpath the Applicant repeated the arguments which it made in relation to Ground 2 to the effect that, as the experts had agreed in relation to the requirements for these works, a condition requiring further details and plans in relation to these agreed requirements does not render the consent uncertain; (b) the works to be carried out in New Line Road, the Applicant argued that the experts had agreed on the changes required and the only outstanding matters related to the provision of "engineering details" of those works; and (c) the requirement for a "consistent and accurate" set of plans for the proposal, the Applicant argued that comments made by the Senior Commissioner at par 22 of his judgment make it clear that the poor quality of the plans accompanying the initial development application was overcome during the hearing and that, were it not for his desire to ensure that the task of the certifier was made easier, the Senior Commissioner would have consented on the basis of the amended plans filed during the hearing: During the hearing the applicant tendered amended drawings and its experts provided evidence that clarified inconsistencies to the effect that, by the end of the hearing, the Court (and anyone else who attended the hearing) could understand exactly what was proposed. There is thus no legal barrier to approving the proposal on the basis of the drawings before the Court. The reason why revised drawings would be preferable is that the Principal Certifier, who will approve the construction certificate drawings, was not present during the hearing. A clear set of drawings would make the task of the Principal Certifier easier and reduce the chance of inconsistency between construction certificate drawings and the development consent. The receipt of a revised set of drawings would be a suitable matter for a deferred commencement condition. 39 The Applicant relied on Transport Action Group Against Motorways Inc v Roads and Traffic Authority (1999) 104 LGERA 133 to argue that, given the above, the fact that condition B requires certain further technical information to be provided by the Applicant and agreed to by the Council prior to the consent becoming operative does not invalidate the development consent.

Parties

Applicant/Plaintiff:

Cherrybrook Victory Christian Church Inc

Respondent/Defendant:

Hornsby Shire Council

Cases Cited (13)

CITATION : Cherrybrook Victory Christian Church Inc v Hornsby Shire Council (No 2) [2004] NSWLEC 513 APPLICANT: Cherrybrook Victory Christian Church Inc PARTIES : RESPONDENT: Hornsby Shire Council FILE NUMBER(S) : 11102 of 2003 CORAM: Pain J KEY ISSUES: Appeal :- whether Commissioner's decision lacked jurisdiction - whether consent final and certain Environmental Planning and Assessment Act 1979, s76A(1), s 78A, s 80(3), s 80A(1)(f) LEGISLATION CITED: Environmental Planning and Assessment Regulation 2000, cl 49(1) Land and Environment Court Act 1979, s 39(2) , s 56A Roads Act 1993, s 138 Boral Resources v Wingecarribee Shire Council (2003) 124 LGERA 90 ; Cherrybrook Victory Christian Church v Hornsby Shire Council [2004] NSWLEC 178 ; Designlink International v Baulkham Hills Shire Council (1999) 105 LGERA 299 ; Gibson v Mosman Municipal Council (2001) 114 LGERA 416 ; Helman v Byron Shire Council and Anor (1995) 87 LGERA 349; Mison v Randwick Municipal Council (1991) 23 NSWLR 734; CASES CITED: North Sydney Council v Ligon 302 Pty Limited (1996) 185 CLR ; 470 ; Proprietors of SP 13318 v Lavender View (1997) 97 LGERA 337; Scott and Ors v Wollongong City Council and Anor (1992) 75 LGERA 112; Segal & Anor v Waverley Council [2004] NSWLEC 363; Sydney City Council v Claude Neon Ltd (1989) 67 LGRA 181; Transport Action Group Against Motorways Inc v Roads and Traffic Authority (1999) 104 LGERA 133 ; Weal v Bathurst City Council & Anor (2000) 111 LGERA 181 DATES OF HEARING: 13/08/2004 DATE OF JUDGMENT: 11/05/2004

JUDGMENT 1 Her Honour: This is an appeal pursuant to s 56A of the Land and Environment Court Act 1979 brought by the Council against the decision of Senior Commissioner Roseth in Cherrybrook Victory Christian Church v Hornsby Shire Council [2004] NSWLEC 178 to grant deferred development consent to the Applicant's development application. Such an appeal can only be made on the basis of errors of law made by the Senior Commissioner. The Council submits that the Senior Commissioner made four errors of law in that: (1) the Senior Commissioner exceeded his jurisdiction in purporting to grant development consent for works not on the Applicant's land, being works on the public footpath and the roadway outside the site ("the Excess of Jurisdiction Ground"); (2) there was not sufficient evidence before the Senior Commissioner to enable him to properly and adequately consider the impacts of the works to be carried out on land not belonging to the Applicant in granting consent ("the Inadequate Consideration Ground"); (3) the consent granted by the Senior Commissioner was not certain or final ("the Lack of Finality and Certainty Ground"); and (4) the Senior Commissioner had a misapprehension that he lacked the power to consent to the development application on the basis of amended plans if the Council did not consent to those plans being amended ("the Misapprehension of Jurisdiction Ground").

(2003) 124 LGERA 90

(1999) 105 LGERA 299

(2001) 114 LGERA 416

(1995) 87 LGERA 349

(1991) 23 NSWLR 734

(1997) 97 LGERA 337

(1992) 75 LGERA 112

(1999) 104 LGERA 133

(2000) 111 LGERA 181

(1996) 185 CLR 470

[2004] NSWLEC 363