Csillag v Woollahra Council

EX TEMPORE Judgment 1By summons filed on 13 October 2009, Dr and Mrs Csillag sought a declaration that a development consent granted by Woollahra Council (the Council) on 6 July 2009, was invalid. That consent purported to authorise the carrying out of alterations and additions to a penthouse apartment known as 15/335 New South Head Road, Double Bay. The building in which that apartment was located also had an address known as 353 Edgecliff Road, Double Bay. 2On 21 February 2011 I determined that the development consent sought to be impugned by Dr and Mrs Csillag had not been validly granted (Csillag v Woollahra Council [2011] NSWLEC 17). The sole ground upon which that determination was made was that the Council had failed to advertise and notify the development application, as it was required to do by its development control plan, prior to determining to grant development consent. In both its notices and advertisements, the Council had failed to identify the apartment in question by reference to its Edgecliff Road address. 3Having made the determination that I did, the provisions of Div 3 of Pt 3 of the Land and Environment Court Act 1979 (the Court Act) were engaged. That is a consequence of the proper application of s 25E of the Court Act (Kindimindi Investments Pty Ltd v Lane Cove Council [2007] NSWCA 38; (2007) 150 LGERA 333). 4I determined that, in the circumstances, it was appropriate to apply the provisions of Div 3 of Pt 3 of the Court Act, with the consequence that the impugned development consent was suspended until any further order was made in accordance with s 25C of the Court Act (at [67]). On 25 February 2009, I made orders in terms agreed among the parties as to those steps required to be taken before any further application relating to the consent could be made. Those orders relevantly required: "1.The first respondent is to carry out the following steps ("the terms") compliance with which will validate development consent no. 256/2008/1 granted by the first respondent on 6 July 2009 ("the development consent") (whether without alterations or on being regranted with alterations) the operation of which was suspended in whole by order no. 1 made by the Court on 21 February 2011: (a) The development application for the development consent is to be re-notified and re-advertised in accordance with these orders and the Woollahra Development Control Plan for Advertising and Notification of Development Application and Applications to Modify Development Consents dated 19 March 2007 ("the DCP") (b) The method of re-notification referred to in (a) above is to be by way of letter and is to: i identify the building containing apartment 15 on a site plan attached to the letter and ii include in the address of the application site the alternate address of 353 Edgecliff Road Double Bay. (c) The re-advertisement referred to in (a) above is to include in the address of the application site the alternate address of 353 Edgecliff Road Double Bay. (d) The re-notification and re-advertisement referred to in (a) above is to specify a minimum period of 15 calendar days during which the development application will be available for public inspection to expire on a date no later than 25 March 2011. (e) The first respondent is to consider all written submissions lodged with it during the public exhibition period referred to in (d) in accordance with its functions under s 103 of the Environmental Planning & Assessment Act 1979 and is to determine the action to be taken by the first respondent in accordance with those functions by 23 May 2011." 5Although it was then contemplated that the matter would return for the making of final orders by the end of May 2011, this did not occur. The matter has since been before me on numerous occasions. While the process ordered by me has been considerably delayed, that delay has been explained. Part of the explanation lies in the fact that when the Council first notified and advertised the development application in purported compliance with my order, it misstated the time within which submissions could be made. This necessitated re-notification and re-advertising. 6Subsequently, the Council retained an independent consultant, Mr Ryan of City Plan Services, to assess and report upon the development application, including the submissions received in response to the advertising and notification of the development application. In his initial report, Mr Ryan recommended that the Council should not regrant development consent to the application, having regard to the form which the proposed alterations and additions then took. The third respondent, as owner of the apartment in question, was informed of Mr Ryan's recommendation and afforded the opportunity to address the concern that he had expressed. 7The third respondent then made amendments to the development application. Those amendments were, in turn, the subject of re-notification and re-advertising. This occurred on two further occasions. On each occasion upon which notification and advertising took place, a number of submissions were received by the Council directed to the amended form of proposed development. Among those who responded on each occasion were Dr and Mrs Csillag. 8Ultimately, the development application was amended three times. In its finally amended form, it came to be considered by the Council's Development Control Committee in April 2012. At that meeting, the Committee was addressed by a number of those who had responded to public notification of the application, including Dr Csillag. At the first meeting in April at which the matter was considered by the Committee, it deferred consideration pending the response of the third respondent to matters that had been raised before it. Subsequently, those matters were apparently satisfied and a report supporting the application in its further amended form was made by Mr Ryan, as well as by Council officers. 9A recommendation that, in substance, supported the amended application was made by the Committee on 23 April. The Committee's report came before the full Council on 30 April. As a result of legal advice provided to it, the Council did not resolve, in terms, to adopt the recommendation. Rather, it resolved to delegate to the Mayor and the General Manager - "the power to determine the matter under s 103 of the Environmental Planning and Assessment Act 1979, subject to the consideration of any further legal advice." That further legal advice is of no present relevance. 10The power of the Council to determine a development consent following orders made in accordance with Div 3 of Pt 3 of the Court Act are found in s 103 of the Environmental Planning and Assessment Act 1979. That section relevantly provides: "103 Revocation or regrant of development consents after order of Court (1) This section applies to a development consent granted, or purporting to be granted, by a consent authority, to which an order of suspension applies under section 25B of the Land and Environment Court Act 1979. ... (3) ... if the terms imposed by the Court have been substantially complied with, the consent authority may revoke the development consent to which this section applies and grant a new development consent with such alterations to the revoked consent as the consent authority thinks appropriate having regard to the terms themselves and to any matters arising in the course of complying with the terms. Such a grant of a development consent is referred to as a regrant of the consent." 11I have before me an affidavit sworn by Nicholas Economou to which is exhibited a large number of documents. These documents include not only documents demonstrating the manner in which the development application was processed following my orders, but also includes minutes recording the way in which the Council dealt with the application. Mr Economou has been responsible for what he describes as "the daily supervision of this matter" following the orders that I made on 25 February 2011. It has been an application which has occupied his time on a very regular basis culminating in the recommendation and ultimate resolution of the Council on 30 April last. 12The evidence which Mr Economou gives demonstrates two matters that were essentially the subject of the orders that I made. First, his evidence amply demonstrates that the requirement for advertising and notification of the development application that resulted in the impugned decision of the Council has been undertaken conformably not only with my orders but also in accordance with the Council's relevant development control plan. 13Moreover, his evidence demonstrates that following the initial recommendation made by Mr Ryan, there was detailed consideration given by him to the subsequent amendments made to the development application by the third respondent. It was, as I have said, by reference to those amendments and their subsequent public notification that resulted in further submissions, both written and oral, being made to and considered by the Development Control Committee and ultimately by the Council through its delegates. 14In exercising the function of the Court under Div 3 of Pt 3 of the Court Act, I am not called upon to determine, as a matter of merit, whether the amended development application should be the subject of the Council's approval. Rather, the function that I am performing is to determine whether the orders that I made on 25 February 2011 for advertising, notification and reconsideration have been observed. 15That function requires me to be satisfied that the advertising and notification of the development application has been undertaken and that there appears to have been a substantive reconsideration of the development application, including a consideration of those submissions received as a consequence of further public notification. My assessment of the conclusion reached by the Council, once the process has been observed, is not called up by the statutory provisions that I am applying. 16For the reasons indicated, I am satisfied that the terms of the orders made by me on 25 February 2011 have been substantially complied with. The steps so ordered having been taken, it was open to the Council to resolve as it did on 30 April, first to delegate the function of determination to the General Manager and Mayor and secondly for those delegates to resolve as they did on 4 May. Their resolution of that date is in the following terms: "1.pursuant to s103(3) of the Environmental Planning & Assessment Act 1979, development consent no. 256/2008/1 which Council granted on 6 July 2009 is revoked; 2.pursuant to s 103(3) of the Environmental Planning & Assessment Act 1979, development consent no. 256/2008/1 which Council granted on 6 July 2009 is regranted with alterations to the conditions of that consent which are attached as "Appendix A"; 3.pursuant to s 25C(2) of the Land & Environment Court Act 1979, Council is to apply to the Land & Environment Court of New South Wales for orders validating the regrant of development consent no. 256/2008/1 and for any other orders; and 4.the persons who lodged submissions in relation to the application are to be advised as to the making of this resolution." 17By notice of motion filed on 4 May 2012, the Council seeks an order pursuant to subsection (2) of s 25C of the Court Act. That subsection relevantly provides as follows: "(2) On application by the Minister or any other consent authority for an order under this subsection on the ground that the terms specified under section 25B have been substantially complied with and that the development consent has been regranted with alterations as referred to in section 103 of the Environmental Planning and Assessment Act 1979, the Court may make an order: (a) declaring that the terms have been complied with, and (b) declaring that the development consent has been validly regranted, and (c) declaring that the suspended development consent has been revoked, and (d) revoking the order of suspension." 18For the reasons that I have indicated, I am prepared to make the orders which the Council seeks. Before pronouncing my formal orders, I record that Dr and Mrs Csillag were legally represented on the hearing of the Council's motion before me. On their behalf, it was announced by their solicitor that they consented to the orders which the Council sought. However, as the provisions s 25C(2) require that I make a number of declarations, it was not open, or at least not appropriate, that I make declarations by consent. Before making those declarations it was necessary that I consider in some detail the evidence presented before me. Accordingly and independently of that consent, I have satisfied myself that it is appropriate to make the declarations sought by the Council, albeit that I find support for so doing by the consent provided by the legal representative of Dr and Mrs Csillag. 19The orders that I make are therefore as follows:

1. Declare that the terms specified under s 25B(2) of the Land and Environment Court Act 1979 as set out in paragraphs (a) to (e) of Order 1 made by the Court on 25 February 2011 have been complied with.
2. Declare that development consent no. 256/2008/1 granted by Woollahra Municipal Council on 6 July 2009 was validly regranted on 4 May 2012.
3. Declare that the development consent 256/2008/1 granted by Woollahra Council on 6 July 2009 which was suspended in accordance with s 25B(1)(a) of the Land and Environment Court Act 1979 by order 1 made by the Court on 21 February 2011 has been revoked.
4. Revoke Order 1 made by the Court on 21 February 2011 which suspended development consent no. 256/2008/1 granted by Woollahra Council on 8 July 2009.
5. By consent order that the first respondent pay the costs of the applicants in the agreed sum of $28,000, such costs to include the costs ordered to be paid on 21 February 2011. 6.Exhibits may be returned.

---

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. Decision last updated: 22 June 2012