CURREY v SUTHERLAND SHIRE COUNCIL and RUSSELL

FILE NUMBER(S) : CA 41198/02 B J Preston / J Jagot (Appellant) COUNSEL : J Ayling SC (First Respondent) P Thomasetti / M Fraser (Second Respondents) John C Dobson, Miranda (Appellant) SOLICITORS : J Reilly (First Respondent) Storey & Gough, Parramatta (Second Respondents)

LOWER COURT Land & Environment Court JURISDICTION : LOWER COURT 40027/02 FILE NUMBER(S) : LOWER COURT Lloyd J JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 41198/02

SPIGELMAN CJ SHELLER JA FOSTER AJA

Thursday 18 September 2003 Julie Ann CURREY v SUTHERLAND SHIRE COUNCIL and RUSSELL Judgment 1 SPIGELMAN CJ: This is an appeal from a decision of Lloyd J in the Land and Environment Court dismissing the Appellant's Class 4 application seeking a declaration that a decision of the First Respondent ("the Council") to grant development consent to a development application by the Second Respondents is void and of no effect. 2 The development application sought consent for alterations and additions to an existing dwelling house in Woolooware Road, Cronulla, in the Shire of Sutherland, of which the Second Respondents are the owners. The proposed development was to alter and add to an existing dwelling house in order to construct an attached dual occupancy and also for the strata subdivision of the attached dual occupancy. The land has a frontage to Woolooware Road and also has the benefit of a right of way over an adjoining lot. The development proposed would substantially retain the existing dwelling and add a new dwelling at the front of the land facing Woolooware Road. The front dwelling would have direct pedestrian and vehicular access to Woolooware Road. The rear dwelling would have pedestrian and vehicular access via the right of way adjacent to the boundary of the property. 3 The development application was made on 25 February 2000 and, after a long period of consideration by Council and its officers, to which it will be necessary to refer in more detail, by Notice of Determination a development consent was granted, subject to numerous conditions. It purported to be granted in the name of the Council, pursuant to a delegation to the Director of Environmental Services of the Council. 4 There are five grounds of appeal, two of them are related. It is convenient to deal with them under the following headings and to set out further relevant facts in their appropriate contexts: · The Delegation Issue (Grounds 1 and 5); · The Zoning Issue (Ground 2); · The Development Application Issue (Ground 3); · The Internal Lot Issue (Ground 4).

The Delegation Issue 5 The Appellant asserts that the delegate who purported to determine the development application had no delegated authority to do so and that the Notice of Determination issued on 31 October 2001 was not authorised by an operative decision of the Council. 6 The Notice of Determination was made by the Director of Environmental Services. There was a relevant delegation by the General Manager to the Director under s378 of the Local Government Act 1993. However, it was subject to an exception. It was, relevantly, in the following form: "9.1 To process, evaluate and determine any development application in accordance with Part 4, Division 5 of the Environmental Planning and Assessment Act , 1979 (NSW). EXCEPT THAT THIS DELEGATION IS NOT GRANTED WHERE: ...

9.1.3 The Council, the Mayor or any Councillor requests that the development application be referred to the Environment and Health Committee or the Council for evaluation and determination." 7 On 6 October 2000 a Councillor furnished a handwritten request to the Shire President asking that the development application be referred to the Council "for consideration". Council officers regarded this request as a request "for determination". A computer generated version of this request, in a standard form, used the terminology "for determination". 8 Lloyd J noted that the handwritten request by the Councillor was that the matter be referred "for consideration" and that this was to be distinguished from the terms of the exception from the delegation, i.e. a request "for evaluation and determination". His Honour did not refer to the printed version. 9 His Honour also held, against the submissions of the Appellant, that even if there had been a request which activated the exception, that request had subsequently been withdrawn by the conduct of the Councillor who had made the request. That Councillor had moved resolutions which referred the matter expressly to the delegate, namely, the Director. In view of this alternative basis for the finding, I do not find it necessary to consider the submission that a reference "for consideration" should be understood as, in substance, the equivalent of "for evaluation and determination". 10 After the Councillor's request of 6 October 2000, consideration was given to the development application, including the obtaining of legal advice and the preparation of reports to the Council's Environment and Health Committee, on which the Councillor who made the original request served. It was that Councillor who, on four subsequent occasions when the matter was under consideration, namely, on 6 November 2000 at the Environment and Health Committee, on 29 January 2001 at the Committee, on 5 January 2001 at the Council meeting and again at the Environment and Health Committee on 7 May 2001, successfully moved motions stating that the Council should either approve or be prepared to favourably consider the proposal, subject to certain conditions. However, each such resolution concluded with the following paragraph: "That Development Application No 3108 for an attached dual occupancy and strata sub division at Lot 2 DP 205947 (No. 405) Woolooware Road, Cronulla, be referred to the Director - Environmental Services for assessment and determination in accordance with the authorities delegated by the General Manager dated 30 August 2000 pursuant to Section 378 of the Local Government Act 1993." 11 Whatever may have been the Councillor's intention when requesting that the Council itself "consider" the development proposal, his Honour was justified in concluding that the Councillor "withdrew his request". That is implicit in the resolutions that the Councillor proposed which expressly acknowledge that the "determination" would be made pursuant to the delegation by the Director of Environmental Services. I agree with Lloyd J. Assuming there was once a request which made the delegation inoperative, the delegation became effective again once the request was withdrawn. 12 The Council, both in Committee and in full session, considered the development application and indicated a view as to the conditions to which it should be subject, which conditions were not, in the event, implemented by the Director in the final Notice of Determination. The significant difference in this respect was that the final approval gave authority for the original dwelling to use the right of way for access to Woolooware Road, whereas the earlier Council resolutions indicated that entry and exit should be directly to Woolooware Road as presently existed. 13 In my opinion, Lloyd J was correct to conclude that these early expressions of view at the Council or Council Committee level were merely "preliminary operative resolutions". They did not constitute a determination which qualified that part of the resolution which referred the Application to the Director "for assessment and determination". 14 Counsel for the Appellant sought to characterise the part of each resolution which referred the matter to the Director as a "pro forma". I do not see why such a characterisation is appropriate, but the reference to the Director would be none the less effective if it were to be so characterised. The Appellant put forward no logical reason why this part of the resolution should be ignored. 15 The resolution by the Council of 21 May 2000, on which the Appellant primarily relied, included the paragraph referring the matter to the Director. The Appellant also relied on consideration by the Council and its Committee of the development application subsequent to the resolutions to which I have referred. This occurred at a meeting of the Environment and Health Committee on 20 August 2001, the resolution of which was noted by the full Council on 3 September 2001. However, each of these resolutions repeated in full the paragraph that I have quoted above, referring the matter to the Director "for assessment and determination". 16 The Appellant also submitted that the Council had in fact assumed carriage of the matter and, accordingly, that the delegation could not operate. The express reference to the delegate rebuts the suggestion. Similarly, the text of each resolution, by the express reference to the Director rebuts, in terms, the suggestion that the Council itself had approved the application subject to conditions. 17 The terminology of the first part of the relevant resolutions, including such expressions as "approved subject to conditions", "preliminary consideration", "favourably consider", are all intrinsically more general and ambiguous than the precise terms of the reference to the Director for both "assessment" and "determination". If there is any inconsistency between the two, and I don't believe the two are inconsistent, the latter would clearly apply to the qualification of the former. 18 The resolutions on each occasion contained indications of Council's views as to the conditions on which the development should be permitted to proceed, relevantly, the provision of direct access to Woolooware Road. Nothing in any resolution indicated that the delegate was bound by this indication of views. The terms of the reference to the Director being for "assessment and determination" contradict the suggestion that the Council was intending to restrict the discretion of that delegate, let alone that the Council itself had assumed complete carriage of the matter, or, even less likely, that it had actually determined the matter. 19 Grounds 1 and 5 should be rejected.

The Zoning Issue 20 I turn to the zoning issue. The Appellant submits that cl 25(1) of the Sutherland Shire Local Environment Plan 1993 ("1993 LEP") precluded the grant of development consent for the strata subdivision. 21 Clause 25 of the 1993 LEP provides: "1) On and after the day on which Sutherland Shire Local Environmental Plan 1993 (Amendment No. 37) commences, consent must not be granted for a subdivision which creates separate allotments for each of the two dwellings comprising dual occupancy housing. 2) This clause does not apply to dual occupancy housing created in accordance with a consent granted before, on or after the day on which Sutherland Shire Local Environmental Plan 1993 (Amendment No. 37) commenced if: a) the application for consent was made before 19 May 1995 and each allotment in the subdivision has an area of at least the minimum are applying at the date of the application for consent; or b) the application for consent was made on or after 19 May 1995 but before the day on which Sutherland Shire Local Environmental Plan 1993 (Amendment No. 37) commenced and each allotment in the subdivision is an area of at least 450 sq. m. (3) This clause does not apply to dual occupancy housing created in accordance with a granted development consent where the application for that consent was made on or before 28 February, 2000."

(Amendment No 37 came into effect on 1 September 1995.) 22 Clause 25(3) was added by Amendment No 106 which commenced on 23 June 2000. The application for consideration in the present case was made shortly before 28 February 2000 and, accordingly, was entitled to the protection of cl 25(3). 23 This ground of appeal focuses on the use of the word "created" in cl 25(3). It propounds an approach to the construction of the clause, which would divide it into two separate and distinct parts. The latter part specifies a time restriction with respect to when an application for consent had to be made. The first part, and relevantly the part said not to have been satisfied in the present case, specifies circumstances in which the prohibition in cl 25(1) does not apply, i.e. "dual occupancy housing created in accordance with a granted development consent". 24 The Appellant submits that subdivision was only permissible if dual occupancy housing had in fact been created, i.e. there must be in physical existence buildings constituting dual occupancy housing. In the present case, the consent to dual occupancy was part of the same Notice of Determination as granted consent to the subdivision. Needless to say, dual occupancy housing was not in physical existence at the time of the consent. 25 His Honour rejected the submission that the language of cl 25(3) requires that dual occupancy housing be already in existence before a development application can be made for subdivision. 26 It is apparent that the drafter of cl 25(3) used the pre-existing cl 25(2) as a model. The reference to "dual occupancy housing created" appears in each subclause, so does the reference to a consent that is "granted". The difference is that, in cl 25(2), the reference to a "granted" development is in the following form: "a consent granted before, on or after the day on which" the amendment commenced, relevantly, 1 September 1995. 27 The use of the word "created" in cl 25(2) is intended to encompass not only dual occupancy housing in existence at the time of consent but extends to future construction. The word is used in a sense that encompasses "to be created", pursuant to a development consent for which an application was made either before 19 May 1995, or in more limited circumstances, after 19 May 1995, in accordance with cl 25(2). The use of cl 25(2) as a model for cl 25(3) did not extend to setting out in full the reference to "before, on or after" a particular day, but instead used a rolled up reference to "granted development consent". 28 Where the word "created" was used in both sections, but in one extends to incorporate the sense of "to be created", the subsequent use of the same word would, in my opinion, have the same meaning, I can see no reason why the word "granted", with respect to a development consent, should not also encompass the same sense of "to be granted". The drafter of cl 25(3) was employing more economical language to the same effect of cl 25(2), i.e. a consent to be granted "before, on or after" cl 25(3) commenced. 29 The relevant period in each case was the date upon which an application for consent was made. The terminology of "created" and "granted" was not intended to impose a separate requirement that a building would be in existence. 30 The second submission made under Ground 2 turned on the fact that the development application sought consent for prohibited development. Clause 25(3) was gazetted on 25 June 2000. Accordingly, when the development application was in fact made on 25 February 2000, it was for a development which was, at that stage, prohibited by cl 25(1) of the 1993 LEP in services it applied to the subdivision. 31 The Appellant relied on s77 and s78A of the Environmental Planning and Assessment Act 1979, which relevantly provide: "77 This Division: (a) applies to development that may not be carried out except with development consent ... 78A(1) A person a may, subject to the regulations, apply to a consent authority for consent to carry out development." 32 It was submitted that the combined effect of these two provisions was to prohibit a development application being made with respect to development which is prohibited. Nothing in either section, or in their combination, suggests any such prohibition. The purpose and object of the sections and of the Division of which these sections are part is entirely permissive and procedural. 33 As Lloyd J concluded: "[42] ... [T]here is nothing to suggest that the development application is not valid if, during the course of its consideration by the Council, the suggested invalidity is cured before it is determined. It seems to me that ss 77 and 78 of the EP&A Act are procedural. ... Finally, it seems to me that if the provisions of the EP&A Act are ... procedural, any defect or irregularity may be cured by regarding the development application as having been made nunc pro tunc ... " 34 In my opinion, there is no basis for inferring a prohibition from a permissive and procedural scheme. Where the application is made to a body which is not a relevant consent authority (as in Chambers v Maclean Shire Council [2003] NSWCA 100) then the application is of no legal effect. That does not mean that all applications, not finally disposed of, can never have legal effect. If the law changes, so can the efficacy of the application. 35 I see very little, if any, scope in this legislative scheme for the concept of a "valid" application. Citizens are entitled to apply to authorities for whatever they like. The relevant prohibition in the legislative scheme is found in s 76A, which prohibits development without consent, where an environmental planning instrument provides that development may not be carried out except with consent. There is no relevant prohibition, express or implied, which impinges upon the application making process. 36 It is not necessary to determine the issue of severance. However, I can see no reason why the application to subdivide should not be treated separately from the application for dual occupancy housing. As that would involve further consideration by the Council of the subdivision application, I would not decide the case on that basis. 37 Ground 2 should be rejected.

The Development Application Issue 38 I turn to the development application issue. 39 Ground 3 was that the development application as lodged was so deficient with respect to the subdivision that, to that extent, it could not be characterised as a development application at all. The basis of this application was the alleged inadequacy of the division of the site on the site plan lodged with the Council. 40 The plans do not expressly identify a number for separate lots, or otherwise comply with the requirements for registration of a strata plan under the Strata Schemes (Freehold Development) Act 1973. 41 I agree with the reasons of Lloyd J when he dismissed this submission in the following terms: [47] "... This was not an application for registration of the strata plan. The requirements of the Strata Schemes (Freehold Development) Act for a location plan, a floor plan and a schedule of unit entitlement do not apply to a development application. An examination of the site plan submitted to the council with the development application clearly shows a division of the property into two lots along the line of the common wall and extending to the property boundary (although not assigning a lot number to each). It is self evident that this is how the physical subdivision was understood by the council." 42 The plan to which his Honour refers uses the terminology "Unit 1" and "Unit 2" rather than "Lot 1" and "Lot 2" and the strata subdivision was the delineation between the two dwellings as extended across the property. A sketch provided by the Second Respondent relating to the consent application was clearly for such a subdivision. 43 His Honour went on to identify a number of matters, including conditions of the development consent, which may require greater specificity and, of course, a strata plan, as registered, would require such specificity. None of these matters, for the reasons given by Lloyd J, are such as to call into question the legal capacity of the Council to give consent to the application as submitted.

The Internal Lot Issue 44 Ground 4 was to the effect that the carrying out of the development would be development for the purpose of dual occupancy housing on an internal lot, being development prohibited in the zone. 45 The relevant zoning for the premises was 2(e2) Residential. The zoning table permitted development with consent for "dual occupancy housing, except on internal lots". "Dual occupancy housing" is defined in the 1993 LEP as follows: "Dual occupancy housing means two dwellings on land that is or was one allotment at the time of granting of development consent for those two dwellings."

"Internal lot" is also defined: "Internal lot means a lot the only means of access to which is an access corridor (a hatchet shaped lot) or a right-of-carriageway over another lot." 46 His Honour rejected this submission in the following terms: "[51] ... Dual occupancy housing is defined as meaning two dwellings on land that is or was one allotment at the time of granting of development consent . The focus of the definition is the words "at the time of granting of development consent". At the time of granting of the development consent in this case the whole of the property known as No. 405 Woolooware Road was one allotment. That allotment was not and is not an " internal lot " as defined. It was and is an allotment having a direct means of access to Woolooware Road. If the subdivision proceeds in due course then the rear lot will, of course, become an internal lot, having its only means of access by a right of carriageway over another lot. The rear lot will not have dual occupancy housing upon it. The purpose of the prohibition against dual occupancy housing on an internal lot is to ensure that two dwellings on a single lot do not have, as the only means of access, an access corridor or a right of carriageway over another lot. Such purpose is not infringed by the present proposal. Alternatively, if the attached dwelling, although on separate lots, remains " dual occupancy housing " as defined, it is on land that is or was one allotment, such allotment having access to Woolooware Road. Accordingly, the development consent is not unlawful on this ground." 47 In my opinion, his Honour was correct. The Appellant's case construes the reference in the zoning table as if it said "dual occupancy housing, except if an internal lot is created". That is not how the exception to the permissible use is expressed. At the time of the granting of the development consent, there was no "internal lot" as defined. The exception did not operate. Development of the character proposed was permissible. 48 The appeal should be dismissed with costs. 49 SHELLER JA: I agree. 50 FOSTER AJA: I also agree. **********

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