Estate Project Developments Pty Ltd v City of Sydney Council [2005] NSWLEC 312 | Case summary

JUDGMENT 1 HIS HONOUR: The applicant has lodged a development application which seeks consent to redevelop a large parcel of land known as 830-840 Bourke Street, Waterloo. The land is commonly known as the "Sydney Gate Site". 2 Development of the site is proposed to proceed in four stages. The first stage involves the development of a building which is referred to as Block B and the amalgamation of the balance of the allotments that comprise the overall site. Block B is proposed to contain a mix of uses comprising 30,132 square metres of residential gross floor area, 538 square metres of commercial/retail gross floor area, car parking for 291 vehicles, landscaping, open space, site works, and pubic domain works. 3 A public road which takes the form of a cul-de-sac accessed from Bourke Street adjoins the site. The applicant's proposal incorporates some small sections of the road within the proposed development. The cul-de-sac is known as "Sydney Gate" and the proposal involves the opening of the cul-de-sac to provide a roadway through to the eastern boundary of the site. The development application also contemplates physical work to reconstruct both the turning area "bulb" to Sydney Gate and part of the existing shoulders to Bourke Street so as to prevent vehicular traffic in these reconstructed parts. To facilitate these works the closure of part of the road will be necessary. 4 The applicant prepared and lodged with the Council a master plan for the whole of the site together with the present development application. The development application has not been determined and an appeal has been brought to the Court. 5 The Council has raised as a question of law the following matter: "Whether development application No. U-04-00259 has been validly made?" 6 Because the application involves the development of small sections of the roadway the parties accept that the consent of the Council as the owner of the land is required pursuant to cl 49(1) of the Environmental Planning and Assessment Regulation 2000 (NSW). The question is whether or not, the Council, having failed to consent to the making of the development application the Court, may exercise that function pursuant to s 39(2) of the Land and Environment Court Act 1979 (NSW). The applicant's submission 7 Section 39(2) of the Land and Environment Court Act 1979 (NSW) states: "In addition to any other functions and discretions that the Court has apart from this subsection, the Court shall, for the purposes of hearing and disposing of an appeal, have 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." 8 This section was first considered by the Court of Appeal in Kogarah Municipal Council v Kent (1981) 46 LGRA 334. In that case the Court of Appeal held that when determining an appeal against a refusal by a council to grant approval for the erection of a building the Court had the power to approve a building which breached a building line fixed by resolution of the Council under the Local Government Act 1919. Under the Act a decision of a council to fix a building line could not be the subject of an appeal, but the Court held that, being a matter which the Council could itself vary when determining the development application, the Court had a similar power pursuant to s 39(2). 9 Many cases have been determined since Kent. For present purposes the case of greatest significant is the decision of the Court of Appeal in Sydney City Council v Claude Neon Ltd (1989) 15 NSWLR 724. In that case the Court of Appeal held that this Court could consider a development application in relation to a structure which protruded over a public road although the Council as owner of the road had not given its consent to the making of the application. The relevant principle was identified by Hope JA in the following terms at (731): "In my opinion the principle (that is, that an approval for one purpose may impliedly be an approval for another purpose) is to be applied where a council is asked to give consent to a structure which in part projects over a public road. If the council gives development approval to that structure, it is doing two things. It is consenting as owner of the road to the making of the application, and it is also approving the application. The first consent is necessarily implicit in the second consent, and in my opinion it does not matter that the council, when giving the second consent, is not conscious that it is implicitly giving the first consent also. There is no such difference between the nature of the act of the council in giving its consent as owner and the nature of the giving by it of development consent to enable it to be said that the actions have nothing to do with each other. If the council were in a position of an ordinary private owner of land in relation to the road, the actions would be completely different. However that is not the position, and if a council considers that it should give consent to a development application it must also consider that it should give consent to the making of the application." 10 His Honour considered previous decisions of the Court in particular North Sydney Municipal Council v P D Mayoh Pty Ltd (1988) 14 NSWLR 783 and continued (at 732): "The giving of its consent to the making of an application for development approval is undoubtedly a function of the council, and it is a function the exercise of which is basic to its function to grant development approval in such a case. If the view which I have expressed is right, namely, that a council can give its consent to the lodging of an application by giving development approval, in my opinion s 39(2) places the Land and Environment Court, upon an appeal, in the same position as the council. Section 39(5) provides that a decision of a court upon an appeal shall, for the purposes of the Land and Environment Court Act or any other Act or instrument, be deemed, where appropriate, to be the final decision of the body whose decision is the subject of the appeal and shall be given effect to accordingly. The decision of the court is thus, where appropriate, deemed to be the decision of the council, and in my opinion the subject case is an appropriate case. The court thus having the same powers as the council had when dealing with the application before it, it is empowered to give a consent which will operate as a consent by the council in its capacity as owner of the road to the lodging of the application for development approval." 11 The decision in Claude Neon has been followed and applied in a number of other cases including Shellharbour Municipal Council v Rovili Pty Ltd (1989) 16 NSWLR 104; McDougall v Warringah Shire Council (1993) 30 NSWLR 258; Sharreal Pty Ltd v Wyong Shire Council [1998] NSWLEC 300; Connery v Manly Council (1999) 105 LGERA 451 and Gibson v Mosman Municipal Council (2001) 114 LGERA 416. 12 In these circumstances the applicant submits the Court should follow the previous decisions and determine the question raised by the Council in the applicant's favour. The submissions of the Council 13 The Council submits that the decision in Claude Neon must be distinguished and the approach taken by Lloyd J in Hemmes Hermitage Pty Ltd v City of Sydney Council [2004] NSWLEC 539 followed. It is submitted that Claude Neon was determined at a time when the ownership of public roads was effected by the Local Government Act 1919 which provided that the Council was the owner of the road and could, exercising powers available to it under the Act, grant a lease which would enable the lawful erection of the structure proposed by Claude Neon. When the Local Government Act was repealed in 1993 and replaced by the Local Government Act of that year separate provision was made for public roads in the Roads Act 1993. Under that Act the council of a local government area is the roads authority for all public roads within its area (s 7(4)). Section 145(3) provides that all public roads within a local government area (other than freeways and Crown roads) are vested in fee simple in the appropriate roads authority - for present purposes the council. 14 Provision for the closure of a public road is made by Pt 4 of the Roads Act 1993. Although pursuant to s 33(1) the Minister may initiate the closure of a public road this may also be initiated by applications made pursuant to s 34. However, after a process of notification and public submission the Minister may determine to close a road pursuant to s 37 but, in the case of a road owned by the council, the Minister may not give effect to a decision unless the Council consents to the closure of the road (s 37(2)(b)). 15 Provision is made in the Roads Act 1993 for the leasing of land above or below a public road which may only be leased with the approval of the Director of Planning (s 149(2)). 16 The Council submits that because the Roads Act 1993 provides that a road may only be closed by the Minister and a lease of the road may only be undertaken with the consent of the Director of Planning a significant difference in the statutory regime now controls a public road to that which existed at the time of the decision in Claude Neon. Because the Council has no exclusive powers to deal with the road it is submitted that the function of the Council to consent to the lodgement of the development application may not be exercised by this Court pursuant to s 39(2). 17 Support for the Council's submission may be available from the decision of Lloyd J in Hemmes Hermitage Pty Limited v City of Sydney Council [2004] NSWLEC 539. In that case his Honour was asked to consider whether or not the Court could exercise the function of the Council as the consent authority in relation to an application to develop a building and the airspace above and in the subsoil below a public road. Lloyd J identified the application as being one in which the "proposed development amounts to an alienation of the airspace above the surface of the road and an alienation of the soil beneath the surface of the road" [18]. Elsewhere his Honour describes the applicant's proposal as: "…one which would require the exercise of the powers of the roads authority under s 149 of the Roads Act ; that is, a lease of the airspace above the road to be occupied by a multi-storey city building and a lease of the land below the surface of the road to be occupied by the basement of that building [26]." 18 His Honour held that the position in Hemmes could be distinguished from Claude Neon and the decisions in Connery and Gibson. 19 Having identified the application in these terms his Honour held that the case before him was unlike Claude Neon and was similar to the factual situation considered by the Court of Appeal in Strathfield Municipal Council v Drew (1985) 1 NSWLR 338. Drew concerned an application to set up a crematory which required not only development consent of the Council under the relevant local planning instrument but also the consent of the Council under the Public Health Act 1902, s 51(2). That section provided that a crematory should not be erected unless the proposed site has been approved by the Minister and also by the Council. 20 The Court of Appeal held that s 39(2) did not authorise the court to exercise the powers given to the Council under the Public Health Act. Samuels and McHugh JJA held (at 344-345) that the exercise of power under the Public Health Act had nothing to do with the appeal under the Environmental Planning and Assessment Act 1979 and was not a matter the subject of the appeal. 21 Because the application as described by Lloyd J involved the alienation of part of the roadway which required the approval of the Director of Planning his Honour found that the case should be considered to be like Drew. His Honour said (at [26]): "This is not a question of mere landowner's consent, but it is one which involves the alienation of significant airspace above the public road and of the land below the surface of the public road by a substantial and permanent structure. Applying what was said by Talbot J in Gibson (par [26] above), that the exercise of a function pursuant to s 39(2) of the Court Act must be considered in the context of the individual case, it seems to me that the exercise of the power under s 149 of the Roads Act involves considerations which are not necessarily the same as those which relate to the subject matter of the appeal. Section 39(2) of the Court Act does not apply in the context of the present case." Resolution of the problem 22 In my opinion, the present matter is not relevantly different from the position in Claude Neon and the cases which follow that decision. All that the applicant seeks is development consent for a parcel of land which includes small sections of the public roadway. It accepts that if the Court is minded to grant that consent, conditions will be imposed which will have the consequence that the consent could only be implemented if the relevant sections of the roadway are closed and sold or otherwise conveyed to the applicant. Accordingly, the applicant seeks that the Court exercise the function of the Council as owner of the roadway for the limited purpose of consideration of whether development consent should be granted. The fact that under the Roads Act the Council is constrained from disposing of title to the land is not to the point. The Court is not being asked to exercise the Council's powers of disposition. 23 With respect to the decision in Hemmes, his Honour was, of course, bound by the decision in Claude Neon. Accordingly, his Honour must be understood to have been considering a development application which required the court, if consent was granted, to exercise powers beyond that of an owner for the limited purpose of the lodgement of a development application but in some manner dispose of title to the relevant land. Unless his Honour is understood in this manner, the decision cannot be reconciled with Claude Neon. 24 It follows, in my opinion, that the Court, in the present case, may receive and consider the appeal. If development consent is granted, the consent of the Council to the making of the application will have been given by the Court exercising its powers under s 39(2). Some further thoughts 25 Lloyd J referred to the decisions in Connery v Manly Council (1999) 105 LGERA 451 and Gibson v Mosman Municipal Council (2001) 114 LGERA 416. In the latter case Talbot J reviewed the existing authorities and, in particular, the observations by Kirby P in McDougall to the effect that the exercise of a function, pursuant to s 39(2) of the Court Act must be considered in the context of the individual case. 26 While this statement is not controversial, care must be taken in its application. Whether or not the capacity to exercise a function pursuant to s 39(2) is available in the circumstances of any case is not a matter amenable to the exercise of a discretion. Either the function, which it is suggested the Court may exercise, falls within the power afforded by s 39(2) or is outside of it. The only point at which discretionary considerations could arise would be if the relevant power is available but a question arises as to whether it should be exercised. 27 Because the fundamental question in any appeal to the Court is whether or not the application warrants approval it is difficult to contemplate a case where the Court would conclude, the power being available, that approval was appropriate but would not exercise the function of the Council to consent to the lodgement of the application. Orders 28 For these reasons I am of the opinion that the appeal lodged with the Court may be heard and determined. However, as this is not the question asked by the parties I will invite counsel to address me as to the appropriate form of any orders. **********

Estate Project Developments Pty Ltd v City of Sydney Council

At a glance

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Judgment (11 paragraphs)

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Legislation Cited (2)

Cases Cited (9)