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[2014] NSWLEC 180
Land and Environment Court (NSW)
2014-11-06
Pepper J
Original judgment source is linked above.
The Council Seeks Orders Declaring the Validity of a Development Consent 1In this application, the fourth respondent, Warringah Council ("the council"), sought orders under s 25C(2) of the Land and Environment Court Act 1979 ("the LEC Act") declaring that development consent no DA 2012/1440 ("the consent") had been validly re-granted. 2The orders sought were consented to by the first respondent, Ms Joy Lambert, and the second respondent, Mr Barry Lambert ("the Lamberts"). The third respondent, Chateau Constructions (Australia) Ltd ("Chateau"), the builder engaged by the Lamberts, has filed a submitting appearance. 3Due to the lateness of the application, which came before me in my capacity as duty judge, and the unpreparedness of the moving party, while orders were made by the Court on that day, viz, 4 November 2014, it was not possible on that occasion to provide reasons. Accordingly, I do so today and I deal with the question of referral of the outstanding costs issue to mediation before the Acting Registrar.
The Council Fails to Notify Adjoining Property Owners of Amended Plans 4The Class 4 proceedings initially involved a judicial review challenge to the consent. The consent was for demolition works and the construction of a dwelling house and fence at 5 Seaview Parade, Collaroy ("the development"). The Lamberts are the owners of the land over which the development took place. The applicant, Ms Robyn de Gail, is the owner of the neighbouring land, at 7 Seaview Parade. 5The development application the subject of the consent was lodged with the council by the Lamberts on 29 November 2012 ("the DA"). 6The DA was notified in accordance with the Warringah Council Development Control Plan 2011 ("the DCP") on 7 December 2012. Two submissions were received in response, namely, one from Ms de Gail and the other from a relative of Ms de Gail. Ms de Gail's submission included an objection to privacy impacts as a result of a window ("window W10") on the north elevation. 7Following discussions with the council, amended plans were lodged by Chateau on 5 February 2013 ("the amended plans"). These amended plans comprised a site plan and a drawing depicting the elevation of the development. The drawing depicting the elevation was, however, incorrect insofar as it showed the original elevation of the development, and therefore, did not reflect the fact that window W10 had been moved 1.3m metres to the east. 8The amended plans were purportedly re-notified in accordance with the DCP on 7 February 2013, and one submission was received from Ms de Gail, essentially repeating her previous privacy objection. 9There was evidence to the effect that had Ms de Gail received the correct elevation drawing, she would have raised significant objection to the location of window W10 because the new positioning of that window had an even greater impact on her amenity by way of intrusion on her privacy than the original location of the window. In particular, the new location of window W10 permitted the Lamberts to see into the master bedroom of Ms de Gail's dwelling and towards the pool located to the rear of her property. 10It was not in dispute that the Lamberts and Chateau had provided the correct elevation drawing to the council for re-notification. It was also not in dispute that the council's website properly displayed the amended plans with the correct elevation drawing. However, it was the evidence of Ms de Gail that she never received the amended elevation drawing. The council maintains its records in electronic form and does not keep paper copies. For this reason the council was not in a position to confirm what plans were re-notified to Ms de Gail. Plans and drawings produced by Ms de Gail indicate that the wrong elevation drawing was forwarded to her by the council. 11The council granted the consent on 19 March 2013, and construction commenced shortly thereafter. The consent was modified on 25 July 2013, but nothing presently turns on the modification. 12On 6 February 2014, when construction was well advanced, Ms de Gail raised concerns in relation to the location of window W10 with the Lamberts. These went unresolved, and subsequently a summons commencing these proceedings was filed on 4 April 2014. The summons sought orders declaring the consent invalid and restraining the further carrying out of the development and the occupation of the dwelling. 13Because the summons sought orders declaring the consent to be invalid, Div 3 of Pt 3 of the LEC Act was engaged, and the Court was under a duty to consider whether an alternative order ought to be made under s 25B of that Act (see s 25E of the LEC Act). 14There can be no doubt that a failure to notify a development application as required by statute enlivens the discretion of the Court pursuant to s 25B of the LEC Act to consider suspending any consent in whole or in part, rather than declaring the consent invalid (see Csillag v Woollahra Council [2011] NSWLEC 17; (2011) 181 LGERA 141). 15Sections 25B and 25C of the LEC Act state that: 25B Orders for conditional validity of development consents (1) The Court may, instead of declaring or determining that a development consent to which this Division applies is invalid, whether in whole or in part, make an order: (a) suspending the operation of the consent in whole or in part, and (b) specifying terms compliance with which will validate the consent (whether without alterations or on being regranted with alterations). (2) Terms may include (without limitation): (a) terms requiring the carrying out again of steps already carried out, or (b) terms requiring the carrying out of steps not already commenced or carried out, or (c) terms requiring acts, matters or things to be done or omitted that are different from acts, matters or things required to be done or omitted by or under this Act or any other Act. 25C Orders for validity of development consents (1) On application by the Minister or any other consent authority for an order under this subsection on the grounds that the terms specified under section 25B have been substantially complied with and that it is not proposed that the relevant development consent be regranted with alterations, the Court may make an order: (a) declaring that the terms have been substantially complied with, and (b) declaring that the consent is valid, and (c) revoking the order of suspension. (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. 16Ultimately, the parties were able to agree to resolve the substantive matters in dispute between them, resulting in the Court making an order pursuant to s 25B of the LEC Act suspending part of the operation of the consent. 17Thus on 22 August 2014, the Court made the following consent orders: 1. In these Orders: (a) "DCP" means the fourth respondent's development control plan known as Warringah Development Control Plan No. 11 adopted by the fourth respondent on 8 June 2010 and which came into effect on 9 December 2011; (b) "Development Consent" means development consent no. DA2012/1140 for demolition works and construction of a dwelling house on the Land granted by the fourth respondent on 19 March 2013 and modified by modification approval no. MOD2013/0085 on 20 July 2013; (c) "Land" means the land comprised in Lot 6 Deposited Plan 6952 known as and situated at 5 Seaview Parade, Collaroy; (d) "Plans" means the following plans copies of which are attached to these Orders: (i) Floor and Roof Plans drawing number DA02 D prepared by Chateau Architects + Builders dated 6 February 2013; and (ii) Elevations and Sections drawing number DA03 C prepared by Chateau Architects + Builders dated 5 February 2013; (e) "Suspended Part" means that part of the Development Consent which relates to the treatment of window W10 shown on the Plans; 2. In accordance with s 25B(1)(a) of the Land and Environment Court Act 1979 (the "Court Act"), that part of the Development Consent no. DA2012/1440 which relates to the treatment of window W10 shown on the Plans is suspended until further order made in accordance with s 25C of the Court Act; 3. The fourth respondent is to carry out the following steps ("the terms") compliance with which will validate the Suspended Part of the Development Consent (whether without alterations or on being regranted with alterations) the operation of which is suspended in part by Order 2; (a) The development application so far as it relates to the Suspended Part of the Development Consent is to be re-notified to the Applicant in accordance with these Orders and the DCP; (b) The method of re-notification referred to in order 3(a) above is to be as follows: (i) A written notice will be sent to the Applicant by ordinary prepaid post at 7 Seaview Parade, Collaroy. (ii) The notification period is 14 days and is to commence three days after the written notice is sent to the Applicant by the fourth respondent. (iii) The written notice will include the following advice: A. identification of the Land, including the complete address of all street frontages and lot numbers; B. a description of the development; C. an A4 size copy of the Plans; D. the place and times the application can be inspected; E. the closing date for submissions; F. a statement that submissions will be disclosed to any person requesting information under the applicable legislation. (c) The fourth respondent is to consider all written submissions lodged with it during the notification period referred to in order 2(b)(ii) above 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 fourth respondent in accordance with those functions by 26 September 2014. 4. The proceedings are listed before the Court for further directions or in order to make an order under s 25C of the Court Act on 3 October 2014. 5. Costs reserved. 18The effect of the orders was to suspend the operation of the consent insofar as it related to the treatment of window W10. The suspended part of the consent was to then be referred back to the council to be notified to Ms de Gail, and following notification, for consideration by the council in accordance with s 103 of the Environmental Planning and Assessment Act 1979 ("the EPAA"), to revoke and re-grant that part of the suspended consent. 19Section 103 of the EPAA relevantly provides as follows: 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. (2) The consent authority may revoke a development consent to which this section applies, whether or not the terms imposed by the Court under section 25B of the Land and Environment Court Act 1979 have been complied with. (3) However, 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. (4) No preliminary steps need be taken with regard to the regrant of a development consent under this section, other than those that are required to secure compliance with those terms. 20The statutory scheme providing for the conditional validity of consents that would otherwise be declared invalid is contained in ss 25A to 25E of the LEC Act and ss 103 and 104 of the EPAA. Although the relevant provisions are contained in separate Acts, the provisions constitute a single scheme and must be read together (Kindimindi Investments Pty Ltd v Lane Cove Council [2007] NSWCA 38; (2007) 150 LGERA 333 at [38]). 21The history of these provisions, and an analysis of their operation was provided by Jagot J in Mid Western Community Action Group Incorporated v Mid-Western Regional Council (No 2) [2008] NSWLEC 143 (at [4]-[19]). I respectfully rely on that analysis, without repetition, for present purposes.
The Council has Carried Out the Necessary Steps Validating the Suspended Part of the Consent 22Through the affidavit of Mr David Auster, sworn 3 November 2014 (Mr Auster is a Development Assessment Officer with the council), the council demonstrated that the development application, insofar as it relates to the suspended part of the consent, had been properly re-notified to Ms de Gail in conformity with the 22 August 2014 consent orders and the DCP. 23At paragraph 3 of Mr Auster's affidavit, he deposed that: (a) The Fourth Respondent renotified Development Application no. DA2012/1440 ("the Development Application") to the applicant in accordance with Order 3(a) of the Orders on September 2014 (the Renotification"). (b) The Renotification commenced on 2 September 2014 and ended on 19 September 2014. (c) During the Renotification Period the fourth respondent received a submission on behalf of the applicant ("the Applicant's Submission"); (d) The Fourth Respondent's Application Determination Panel considered the suspended part of the Development Consent and the Applicant's submission at its meeting on 21 and 22 October 2014 in accordance with its functions under s.103 of the Environmental Planning and Assessment Act 1979 ("the EP&A Act") and determined to take the following actions pursuant to s.103 of the EP&A Act: (i) revoke the Development Consent suspended by Order 2 of the Orders ("Revoked Consent"); and (ii) grant a new development consent ("the Regranted Consent") on the same terms of the Revoked Consent save and except that the Regranted Consent includes a new condition 1A which requires the bottom 750mm of window W10 to be obscure glass. 24On 22 October 2014, therefore, the council determined the development application relating to the suspended part of the consent, subject to conditions. Relevantly, one of those conditions was condition 1A "Privacy" which stated that: Window W10 is to be treated to minimise overlooking by installing an obscure film to the inside of the window. The obscure film is to have a minimum height of 750mm from the sill side of the window. Reason: To protect the privacy of neighbours. 25In this application the council came before the Court seeking declarations and an order under s 25C(2) of the LEC Act that the terms specified under s 25B as set out in Order 1 of the 22 August 2014 consent orders had been complied with; that the part of the consent that was suspended by those consent orders had been revoked; and that the part of the consent granted by the council which related to the treatment of window W10 had been validly re-granted on 22 October 2014. Further, the council sought verification of the Court's order for suspension in respect of part of the consent. 26Having regard to the evidence contained in the affidavit of Mr Auster, I was satisfied under s 25C(2) of the LEC Act that the terms specified in the 22 August 2014 consent orders, made pursuant to s 25B of the LEC Act, had been complied with and that the consent had been properly re-granted with alterations (s 103 of the EPAA). Accordingly, in the exercise of my discretion, I made the orders sought by the council.
Costs 27The parties requested that the costs be reserved. Regrettably, the issue of who bears the liability for the costs incurred by the parties in these proceedings has not been resolved. 28When the proceedings came before the Court on the last occasion, the parties sought directions in order to prepare the matter for a costs hearing. In my opinion, the costs of such a hearing are likely to be disproportionate to the complexity and length of the issues to be determined. It is not difficult to envisage that considerable additional costs will be incurred by the parties in the resolution of this remaining issue. 29A preferable course, therefore, which was ultimately agreed to by the parties, is to order the parties to attend a mediation before the Acting Registrar pursuant to s 26 of the Civil Procedure Act 2005 ("the CPA"), in the hope that the outstanding costs question can be answered absent the need for a hearing. Such a course is especially appropriate when regard is had to the matters contained in ss 56 to 60 of the CPA. 30In ordering mediation, the Court relieves the parties from compulsorily attending the mediation in person (see r 20.6(1) of the Uniform Civil Procedure Rules 2005). This dispensation is granted on the basis that the attending legal representatives have full authority to engage, in good faith, in the mediation process.
Orders 31In repetition of the orders made by the Court on 4 November 2014, by consent, the Court declares that: (1)the terms specified under s 25B of the Land and Environment Court Act 1979 as set out in paragraphs (a) to (e) of order 1 made by the Court on 22 August 2014 have been complied with; (2)part of development consent no 2012/1440 granted by Warringah Council on 19 March 2013, which was suspended in accordance with s 25B(1) of the Land and Environment Court Act 1979 by order 1 made by the Court on 22 August 2014 has been revoked; and (3)part of development consent no 2012/1440 granted by Warringah Council on 19 March 2013 which relates to the treatment of window W10 has been validly re-granted on 22 October 2014. 32In addition, by consent the Court orders that: (4)the Court's order of suspension in respect of that part of development consent no 2012/1440 granted by Warringah Council on 19 March 2013 is revoked; 33With respect to the orders made by the Court today, they are that: (5)costs are reserved; (6)the question of costs is set down for mediation before the Acting Registrar, such mediation to take place on 12 December 2014 at 10am (estimate of two hours). The parties are relieved from attending the mediation in person; and (7)liberty to restore is granted on two 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. Decision last updated: 07 November 2014
de Gail
Lambert