De Haas and Anor v Williams and Anor - [2004] NSWLEC 15 - NSWLEC 1996 case summary — Zoe

NSWNSWLEC

De Haas and Anor v Williams and Anor

[2004] NSWLEC 15

Land and Environment Court (NSW)|1996-12-02|Before: Cowdroy J, Stein J, Mr P, Mr J

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

1996-12-02

Before

Cowdroy J, Stein J, Mr P, Mr J

Source

Original judgment source is linked above.

Judgment (59 paragraphs)

[1]

CITATION : De Haas and Anor v Williams and Anor [2004] NSWLEC 15 FIRST APPLICANTS Tao and Lynne De Haas

[2]

SECOND APPLICANT Ronald Daubaras PARTIES : FIRST RESPONDENTS Paul Williams and Karin Williams

[3]

SECOND RESPONDENT Ku-ring-gai Council FILE NUMBER(S) : 40537 of 2003 CORAM: Cowdroy J KEY ISSUES: Development Consent :- validity of development application and modification application - consent granted of development application contrary to planning instrument - absence of SEPP 1 objection - power of delegate exceeded in respect of development application and of modification application - reissue of development consent in absence of new development application - delegate failing to form opinion before exercising power to grant consent - contentious development application - misdescription of address in notification Environmental Planning and Assessment Act 1979, s 72, s 76A, s 79C, s 80, s 96, s 101, s 104A Environmental Planning and Assessment Regulation 2000, cl 119, cl 124 LEGISLATION CITED: Ku-ring-gai Planning Scheme Ordinance 1971, cl 46 Land and Environment Court Act 1979, s 69(2) State Environmental Planning Policy No 1 - Development Standards, cl 6, cl 7 Botany Bay City Council v Remath Investments No 6 Pty Ltd (2000) 50 NSWLR 312; Cobden-Jones and Another v Woollahra Municipal Council and Others (2002) 118 LGERA 41; Develtor Property Group Pty Ltd v Newcastle City Council [2001] NSWLEC 47; Franklins Limited v Penrith City Council and Campbells Cash & Carry Pty Limited [1999] NSWCA 134; Lawrence Wilson v Iron Gates Pty Ltd and Richmond River Shire Council (Stein J, Land and Environment Court of New South Wales, 2 December 1996, unreported); Lend Lease Management Pty Ltd and Burns Philp Trustee Co Ltd v Sydney City Council, Heritage Council of New South Wales and New World Properties (NSW) Pty Ltd (1986) 68 LGRA 61; Levenstrath Community Association Inc v Tomies Timber and Another (2000) 108 LGERA 176; CASES CITED: Litevale Pty Ltd v Lismore City Council (1997) 96 LGERA 91; Lyons v Sutherland Shire Council and Others (2001) 117 LGERA 334; Manly Council v Hortis and Another (2001) 113 LGERA 321; Nelson and Others v Burwood Municipal Council and Another (1991) 75 LGRA 39; Proprietors of SP 13318 & 13555 v Lavender View Regency Pty Ltd and North Sydney Council (1997) 97 LGERA 337; Somerville v Dalby and Others (1990) 69 LGRA 422; Vaniga Pty Ltd v South Sydney City Council (1989) 74 LGRA 86; Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 DATES OF HEARING: 18/11/2003 19/12/2003 DATE OF JUDGMENT: 02/11/2004

[26]

21 Subsequently the council considered the issue of consent DC 3. By letter dated 27 June 2002 the council advised Mr Williams that it was seeking legal advice with regard to the validity of consent DC 3. The letter sought an undertaking from him not to commence work on the property, and threatened injunction proceedings to restrain any such work. 22 By letter dated 2 July 2002 the council informed Mr Williams that it had received legal advice that consent DC 2 would be held to be invalid because of the absence of a SEPP 1 objection in relation to the applicable height standard, and that consent DC 3 issued on 18 June 2002 was invalid. The council stated that consent DC 3 was void because no formal development application had been made to the council for such consent. The letter advised that the council was not permitted to reconsider DA 1754/01 and grant a second consent, and that the council considered that it was functus officio in relation to DA 1754/01 once consent DC 2 was granted. The letter advised Mr Williams "to lodge a fresh development application accompanied by an objection under SEPP 1 (if necessary) to commence the process again." 23 At this stage it appears that neither of the applicants were aware that the council had granted the modification consent. By letter dated 9 July 2002 Mr and Mrs De Haas wrote to the council advising that they were "…still none the wiser regarding the Section 96 application to change the original conditions of approval of the subdivision." 24 A confidential internal memorandum of council dated 15 July 2002 reviewed the process undertaken in the assessment of DA 1754/01 and the modification application and revealed the council's concern of the validity of such consents. It also confirmed that the height of the dwelling exceeded 8m and that no SEPP 1 objection had been submitted. It was noted that the modification application should have been resolved prior to the determination of DA 1754/01. 25 Despite the above matters, and contrary to the advice which the council provided to Mr Williams in its letter dated 2 July 2002, council later decided that consent DC 2 was valid. Accordingly the council published an advertisement of DA 1754/01 in the North Shore Times newspaper on 14 August 2002 ("the notification"). The notification was purportedly made pursuant to s 101 of the EP&A Act. Such section provides:-

[37]

33 A SEPP 1 objection was required to be made before the council's power could have been enlivened to grant the development consent which contravened the height restrictions in the KPSO. The council is not excused merely because it made an incorrect assessment of DA 1754/01 and did not realise that part of the dwelling was greater than 8m in height as specified in cl 46(2) of the KPSO. The Court is satisfied that the height of the proposed dwelling exceeded the height of 8m prescribed by cl 46(2) of the KPSO. It follows that in the absence of a SEPP 1 objection, consent DC 2 was granted contrary to cl 46(2) of the KPSO and is accordingly invalid. Invalidity of consent DC 3 34 Section 80(1) of the EP&A Act requires a consent authority to determine a development application by a grant of consent, either unconditionally or subject to conditions, or by refusing consent. Consent can only be granted or refused if the council is provided with a development application. Accordingly if a development application or, in cases of a modification application, an application to modify a consent under s 96 of the EP&A Act is not made to council, the council "has no jurisdiction to grant another or modified development approval.": see Somerville v Dalby and Others (1990) 69 LGRA 422 at p 430. In Somerville Hemmings J said at p 430:- The jurisdiction of Council to be a consent authority for the purpose of granting development consents is vested by statute. Unless and until council is in receipt of a development application, it has no power to grant any form of development consent. Upon determination of the development application and giving of notice thereof, council has no further function or jurisdiction with respect to its terms or conditions. Subject to rescission of its resolution in accordance with the provisions of the Local Government Act and ordinances, a consent authority has no power to unilaterally rescind, review or modify its determination of a development application: see Ku-ring-gai Municipal Council v Little (No 2) (1970) 91 WN (NSW) 434; 18 LGRA 380. 35 Such principle was confirmed by the New South Wales Court of Appeal in Botany Bay City Council v Remath Investments No 6 Pty Ltd (2000) 50 NSWLR 312, namely that if a development application is not made or remains incomplete it cannot provide the foundation for a lawful consent. 36 When the council granted consent DC 2 on 12 June 2002 it fulfilled its statutory obligations pursuant to s 80 of the EP&A Act. It could not issue a later consent in the absence of a development application being made to it. In the absence of the making of a new development application the EP&A Act does not authorise a consent authority to issue a second consent. 37 On 19 June 2002 when Mr Williams returned consent DC 2 in exchange for consent DC 3 at the request of the council the EP&A Act did not contain a provision which would entitle a consent authority to require a consent to be surrendered. It follows that consent DC 3 which was issued by the council to Mr Williams dated 18 June 2002 is invalid. The Court notes that the EP&A Act has recently been amended by the insertion of s 104A which provides for voluntary surrender of development consent. Invalidity of delegation to approve consent DC 2 38 The Court has found that consent DC 2 is invalid but will make the following observations in response to the applicants' submission that the delegate lacked power to grant consent DC 2. Delegation No. AO30 relevantly permits the delegate to approve with or without conditions, or to refuse development applications unless, inter alia, the development application "may in the opinion of the Director Environmental and Regulatory Services be contentious".

[38]

39 Either ten or eleven objections (the evidence is not clear) to DA 1754/01 were received by the council. The applicants had supported their objections by the expert opinion of a town planner. DA 1754/01 was made in respect of local development within the meaning of s 76A(4) of the EP&A Act and was one to which the delegation applied. Accordingly the delegate, was bound to form the relevant opinion whether the development was "contentious" before he exercised his power to determine DA 1754/01. 40 In the absence of any authority defining the word "contentious" in the relevant context, the Court will apply a dictionary meaning. According to the Macquarie Dictionary (revised 3rd ed) "contentious" means "given to contention" or "characterised by contention". "Contention" is relevantly defined as:- 1 . struggling together in opposition; strife. 2 . a striving in rivalry; competition; a contest… 5. in contention, a. under dispute; at issue 41 The development application proposed development which breached consent DC 1 and the height plane provided by DCP 38. The objections were supported by the opinion of an expert town planner. If the objections were sustained the development proposed in DA 1754/01 was likely to have an impact upon adjoining land and surrounding residents, including the applicants. Accordingly the Court accepts the applicants' submissions and finds that DA 1754/01 constituted a contentious development application. 42 There is no evidence that the delegate considered the impact of conditions 4 and 10 of consent DC 1 prior to making his determination to grant approval to DA 1754/01. Nor is there any evidence that the delegate considered whether DA 1754/01 was contentious. The memorandum of 1 June 2002 of Mr Drew supported the development application "…notwithstanding the ten objectors to the proposal." 43 The absence of consideration whether DA 1754/01 was contentious leads the Court to draw the inference that the Director Environmental and Regulatory Services did not form the requisite opinion, and therefore did not fulfil a prerequisite to excercise of power pursuant to Delegation No. A030: see Franklins Limited v Penrith City Council and Campbells Cash & Carry Pty Limited [1999] NSWCA 134; Manly Council v Hortis and Another (2001) 113 LGERA 321. 44 The issue of delegation arising in these proceedings is similar to that considered by the New South Wales Court of Appeal in Lyons v Sutherland Shire Council and Others (2001) 117 LGERA 334. In Lyons the relevant delegation permitted a delegate to process, evaluate and determine a development application except, inter alia, where there were objections which could not be satisfied by conditions of consent or which related to matters that were reasonable grounds for refusal, as stated in par (iv) of the delegation instrument. Stein JA said at p 338:- The situation is plain. Either the officer had a delegation to grant the approval or he did not. If he acted in excess of the delegation and outside it, he had no power to grant the approval. The delegate is given power to determine development applications but this power is very specifically circumscribed as not to include the applications, among others, which come within par (iv) of the instrument.

[49]

Advertisement pursuant to s 101 of the EP&A Act 58 The Williams rely on s 101 of the EP&A Act to submit that the applicants cannot challenge consent DC 2 and consent DC 3. Section 101 of the EP&A Act requires publication in accordance with the Regulations. Clause 124 of the Regulations relevantly provides:- 124 What are the public notification procedures for the purposes of section 101 of the Act? (1) The granting of a development consent is publicly notified for the purposes of section 101 of the Act if: (a) public notice in a local newspaper is given: (i) by the consent authority, or (ii) if the consent authority is not the council, by the consent authority or the council… 59 The advertisement published by the council on 14 August 2002 identified the property as "1 Kalang Avenue" and not "1A Kalang Avenue". The identification of the land is not otherwise described by lot or title reference. Number 1 Kalang Avenue comprises separate land. Accordingly, there is a clear misdescription in the advertisement. In Cobden-Jones and Another v Woollahra Municipal Council and Others (2002) 118 LGERA 41 Sheahan J determined that an advertisement which described the address of a development approval in different terms to that for which approval had been granted failed to comply with the requirement of the Regulations. 60 The purpose of the advertisement prescribed by s 101 of the EP&A Act is to give notice to the public of the granting of development consents to enable the public to investigate the development consent and an opportunity to question its validity. The participation of the public is an essential factor in the approval process: see Levenstrath Community Association Inc v Tomies Timber and Another (2000) 108 LGERA 176 at p 179. For this purpose it is essential that the notice accurately describe the land. 61 Cripps J in Lend Lease Management Pty Ltd and Burns Philp Trustee Co Ltd v Sydney City Council, Heritage Council of New South Wales and New World Properties (NSW) Pty Ltd (1986) 68 LGRA 61 observed at p 77 to p 78 in relation to s 104A of the EP&A Act (which was repealed and replaced by the current and analogous s 101 of the EP&A Act):-

[51]

His Honour accepted such submissions at p 79 as the preferred construction of s 104A of the EP&A Act. The need for strict compliance with the notification requirements was succinctly explained by Stein J in Lawrence Wilson v Iron Gates Pty Ltd and Richmond River Shire Council (Stein J, Land and Environment Court, 2 December 1996, unreported) at p 6 as follows:- In my view, the effect of the statute barring of legal proceedings leads to a requirement that the section be strictly complied with. It may be seen that the provision itself stresses the need for the public notice to comply with the regulation. In view of the draconic effect of the section, this is understandable. I think that compliance with the regulation is mandatory, ( Tasker v Fullwood [1978] 1 NSWLR 20). It is apparent that the public notice did not comply with the regulation. It did not describe the land to which the development application related. Rather it referred to the wrong land. The notice failed in its legislative purpose. 62 Section 101 of the EP&A Act should be similarly construed thereby requiring public notice of consent DC 2 to be given in accordance with the Regulations to preclude a challenge to its validity, unless such challenge is commenced with three months from the date on which public notice was given. 63 Since public notification was not made in accordance with cl 124 of the Regulations the Court retains jurisdiction to determine the validity of consent DC 2. Even if the correct description of the property had been published, the requirement of s 101 of the EP&A Act would not have been satisfied. A valid development consent must exist to enable s 101 of the EP&A Act to operate. 64 The advertisement fails to draw to the public's attention the fact of the purported development consent which was granted to the property. Accordingly the notification in the North Shore Times does not satisfy the requirements of s 101 of the EP&A Act and cl 124 of the Regulations. Summary 65 The Court has found that the council has not fulfilled its statutory duties under the EP&A Act. Talbot J observed in Proprietors of SP 13318 & 13555 at p 355 if the Court did not grant relief "it would be condoning a serious breach of a fundamental obligation of the council, and the Court, to uphold the orderly administration and enforcement of planning law." His Honour also commented at p 355 that:- The Court may feel sympathetic towards the position of the first respondent. However any remedy in that respect does not arise here, although it is possible it may arise in some other jurisdiction.

[52]

The Court has also considered the principles relating to discretion referred to by the New South Wales Court of Appeal in Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335. 66 The Williams have demolished an existing shed located on the property and have incurred expense in the planning for the development. There is no evidence that construction of the proposed dwelling has commenced. Nor is there any evidence that hardship would result if the declaration and orders as sought, were made. The works carried out to date are not sufficient to warrant the Court declining to grant the relief sought. It follows that the applicants are entitled to the declarations and orders sought in the amended points of claim. Costs 67 The applicants seek their costs of the proceedings against the respondents and submit that the council should bear the costs thereof. The Williams seek an order that any costs which they might be liable to pay to the applicants be paid by the council. 68 The council defended the proceedings and filed points of defence on 9 July 2003. The council's points of defence denied that the development consent was invalid and relied upon the publication of consent DC 2 which was purportedly made pursuant to s 101 of the EP&A Act. The council also denied that the approval to the modification consent was invalid. On 1 October 2003 the applicants filed an amended application class 4 and an amended points of claim, followed by a further amended points of claim filed on 30 October 2003 and a second further amended points of claim filed on 18 November 2003. The council did not file any amended points of defence. The Williams also did not file any amended points of defence and relied upon their original points of defence filed 23 July 2003. 69 The council submits that it has taken no active part in the proceedings. It has filed no evidence. On the first day of the hearing it filed a notice of submitting appearance, submitting to any order which the Court might make, save as to costs. It says that it should not be penalised for its conduct not relevant to the conduct of the proceedings. 70 In exercising the discretion provided by s 69(2) of the Land and Environment Court Act 1979 the Court is invested with a broad discretion to award costs, but such discretion must be exercised judicially. Additionally the usual practice of the Court in class 4 proceedings is to award costs to the successful party. 71 Bignold J in Develtor Property Group Pty Ltd v Newcastle City Council [2001] NSWLEC 47 considered whether a party who files a submitting appearance should be liable for costs. His Honour held at par 42:- In my judgment, the effect of the Respondent's submitting appearance in the present case, where that appearance has not been challenged or impugned, is that the submitting party is generally to be regarded as immune from any liability for costs incurred in the proceedings after the filing of the submitting appearance save as to costs (although conformably to principle and case law, the submitting party will be liable for costs incurred by the plaintiff up to the date of the filing of the submitting appearance). 72 In the present circumstances, two considerations arise. The Court has found that the conduct of the council has resulted in the Court finding that consent DC 2,consent DC 3 and the modification consent are invalid. The conduct of the party prior to the institution of litigation may give rise to a right to damages to an aggrieved party in other proceedings. However, that conduct is separate and distinct from the conduct of a party of the litigation. 73 Each of the respondents defended the proceedings. The council's defence remained until the notice of submitting appearance was filed. Notification that the council would take that course was not communicated to the applicants until the afternoon of the day preceding the commencement of the hearing. In these circumstances the applicants' costs had already been incurred for the hearing. 74 The Court is satisfied in these circumstances that the respondents must pay the applicants' costs. The Court cannot order a Bullock order or Sanderson order as its findings do not exculpate one of the respondents.