Fitzgerald v City of Canada Bay Council and Ors

Land and Environment Court (NSW)|2004-04-27|Before: Pain J, Mr J

Background 3. This land is currently owned by the Third Respondent who purchased the land from the Second Respondent. The Second Respondent did not appear in these proceedings and I need not refer to it again.

The Applicants own the land next door to the Third Respondent, which land is Lot 32 in DP 1048035 and is known as 22 Medora Street, Breakfast Point.

If unsuccessful, the Applicant's Class 4 proceedings must end as a valid notice published pursuant to s 101 of the Environmental Planning and Assessment Act 1979 ("the EP&A Act") means their challenge is out of time as their Class 4 proceedings were not filed within three months of the s 101 Notice being published. I have been provided with a Statement of Agreed Facts, pars 1-20 of the Statement of Agreed Facts usefully sets out relevant details as follows: The Property

"Street Numbering of Lots 31, 32 & 33 The street numbering of the lots shall be as following: Lot No. Street Address Lot 31 Admiralty Drive Lot 32 22 Medora Street Lot 33 20 Medora Street" 3. 19 - 21 Tennyson Road was all of the land comprised in Breakfast Point being all the land comprised in Lot 1 deposited plan 716536. On 17 November 1999 the Council approved development application 232/99 to subdivide lot 1 in deposited plan 716536 into 7 'super lots'. 4. Lot 3A2 (also known as super lot 3) was all of the land comprised in lot 52 in deposited plan 1040487 and was partly subdivided to create lots 31, 32 and 33 pursuant to the development consent referred to in 1 above.

The Council issued subdivision certificate no. 1439 in respect of DA 307/2002 on 25 November 2002. 6. On 8 January 2003 the plan of subdivision endorsed with certificate no. 1439 was registered by the Land & Property Information Office NSW as Deposited Plan 1048035. 7. Deposited Plan 1048035 created three lots being Lots 31, 32 and 33. 8. Each of lots 31, 32 and 33 were shown in the deposited plan to have a boundary adjacent to Medora Street.

The Applicants are the registered proprietors of the land comprised in Folio Identifier 32/1048035 being Lot 32 DP 1048035, which land is:

(a) Known as 22 Medora Street, Breakfast Point. (b) Bounded by Lot 33 to the south which is known as 20 Medora Street. (c) Bounded by Lot 31 to the north. (d) Bounded by Medora Street and Mimosa Circuit. 10. The Second Respondent is the registered proprietor of the then Lot 31. The Second Respondent is the owner of land now known as lot 13 in deposited plan 270347, being the land comprised in Folio Identifier 13/270347 ("the land"). 11. Deposited Plan 270347 was registered with the Land and Property Information Office NSW on 10 August 2003.

The Development Application 12. Development application no. 710/02 ("DA 710/02") was lodged with the Council on 18 September 2002 and sought approval for a dwelling on the Land ("the Development Application"). 13. Deposited Plan 1048035 had not been registered at the time of submission of DA 710/02.

On the development application form the land is described as: Cnr Medora St & Admiralty Drive. 15. The plans submitted with the Development Application have a heading:- BREAKFAST POINT Lot 3A2 Residence End of Medora Street Breakfast Point. 16. The Applicants, and neighbouring owners, were publicly notified of the Development Application by a letter from the Council on or around 8 October 2002. The heading of this letter was:- "Development Application No: 710/02 Property: 19 - 21 Tennyson Road, Breakfast Point." 17. On 20 December 2002 the Council prepared a Development Assessment report describing the land as 2 (Lot 31) Admiralty Drive, Breakfast Point. 18. On 15 January 2003 Council determined the Development Application by approving the development application subject to conditions. Section 101 Notice

On or about 4 February 2003 the Council, by public notice ("the public notice") pursuant to section 101 of the Environmental Planning and Assessment Act 1979, notified the determination of the Development Application. 20. The public notice:

(a) was published by the Council in the "District News" on Tuesday 4 February 2003; (b) described the land and the development the subject of the development consent as: " DA No 710/02 Property 2 (lot 31) Admiralty Drive, Breakfast Point Description of Development New two storey dwelling"; and

(c) contained a statement that the development consent is available for public inspection free of charge, during ordinary business hours at the Council. … 6. At issue is whether the s 101 Notice published by the Council in relation to Development Consent 710/02 complied with cl 124 (1)(b) of the Environmental Planning and Assessment Regulation 2000 ("the Regulation") which requires that the Notice "describe the land and the development the subject of the Development Consent". I note that the Third Respondent's property, Lot 31, is bounded by Medora Street, Mimosa Court and Admiralty Drive.

The Council's evidence is that Admiralty Drive is part of a large parcel of community title land which remains private land and is not a public road as defined under the Roads Act 1993. This is said to be in accordance with p 9 of the Master Plan for Breakfast Point which is before me as Exhibit A, under the heading Internal Road Hierarchy.

The Applicants essentially put forward three arguments to the effect that the Notice did not comply with the Regulation.

The Applicants argued that while the land could have been referred to by its Lot and DP number to satisfy cl 124 of the Regulations, this had not been done in this case, but rather the Council had referred to a street address in the s 101 Notice. The Applicants also argued that the street address referred to in the s 101 Notice was not the correct or proper address, and accordingly cl 124 of the Regulations was not complied with. Rather, according to the Applicants, the correct address was one of 19-21 Tennyson Road, or Lot 3A2 Medora Street, or 24 Medora Street, Breakfast Point (Argument 1).

While condition 7 of Development Consent DA 307/02, being the DA dealing with the three-lot subdivision, required Lot 31 to have a street address of Admiralty Drive, the Applicants argued that this condition only indicated an intention by Council that this would occur. The condition could only come into effect, according to the Applicants, once a community plan was registered, and this did not occur until 18 August 2003.

Further and in the alternative, the Applicants argued that the description in the s 101 Notice was not adequate because it did not refer to Medora Street in any way, and as this was the address by which the property was well-known, the Notice should have referred to it (Argument 2).

A further argument put by the Applicants was that the s 101 Notice was misleading in that it did not contain any reference to Medora Street (Argument 3).

Argument 1 - was the address in the s 101 Notice proper or correct? 13. In relation to my finding on these three arguments to the effect that the address given in the s 101 Notice was misleading, there are numerous grounds that I must deal with. (i) Firstly, does cl 124 require the description of land to be a reference to the proper address in the Notice? If it does, what does "proper address" mean? I note that cl 124 of the Regulation does not refer to the address of land at all, in contrast to this is cl 89(a) of the Regulation which imposes a requirement for an address to be included in a published notice relating to advertised development. I am unable to agree with the Applicants' submission that what cl 124 requires is that, if a street address is used in a s 101 Notice, that address must be the so-called "proper address".

Whilst I am unable to determine from the Applicants' submissions what precisely it argues constitutes a "proper" or "correct" address, I understand that the Applicants intend that it is the address by which a property is most commonly known in an area, or that by which it is referred to in the Council's records. Such a requirement is not specified in cl 124 of the Regulation. I agree with the Council's submissions that, provided the description of land is accurate then the requirements of cl 124 are met. The question is not whether the street address used in the notice is that by which the property is most commonly known. Where there are several possible descriptions of land available any one description will do, provided it is accurate. In any event, in my view, when the s 101 Notice was published in February 2003 there was no evidence to support the Applicants' contention that there was indeed a "proper" or "correct" address other than the one referred to in the s 101 Notice. I will deal with this more extensively later in this judgment.

(ii) Another argument put forward by the Applicants was that the street address must refer to a public road. For the reasons set out below I cannot agree with this submission either. There clearly must be addresses which include private roads, given these are well-known to exist. It was agreed by the parties that Admiralty Drive is not a public road. The parties also agreed that whilst there is a regime whereby public roads are named and numbered, no similar regime apparently exists for private roads. The provisions of the Roads Act 1993 ("the Roads Act") to which I was referred, relate to the numbering and identification of street numbers in public roads. As Admiralty Drive is not a public road those provisions of the Roads Act do not apply in relation to it. The Applicants did not otherwise refer me to any relevant statutory or other provision concerning addresses on private roads. There is no suggestion in the Roads Act that only an address on public roads can be considered as a street address.

The Applicants submit that in the absence of such a regime for private roads, 2 (Lot 31) Admiralty Drive, Breakfast Point could not be the correct street address of the land. This was because, the Applicants argued, Admiralty Drive did not come into existence as a road until firstly the community plan was registered as provided for by s 5 of the Community Land Development Act 1989 ("the Community Land Development Act") and secondly a community management statement was registered. In this case the community title plan was registered on 18 August 2003. It was not disputed by the parties that at the time the s 101 Notice was given, no community management statement was registered.

The Council and the Third Respondent submitted that the area of privately owned land known as Admiralty Drive came into existence as a result of a combination of events. These were firstly an indication shown in the Breakfast Point Master Plan that the relevant parcel of land was to be a road, secondly the actual formation of the road and finally, the erection of signage indicating that the road was to be known as Admiralty Drive.

The evidence adduced by the Respondents, particularly the Council, is that the street signs for Admiralty Drive were erected in November 2002 and the roadway to be known as Admiralty Drive was formed at least three months prior to this. Further, an extract of a street directory dated August 2002 was tendered to show that Admiralty Drive is identified on it.

I consider that the question of whether Admiralty Drive is made a road under the Community Lands Development Act is irrelevant to the question before me. Whether it is or is not part of a registered community title plan does not affect the reference to Admiralty Drive in the s 101 Notice being an accurate description of land for the purpose of cl 124 of the Regulation. On the Second Respondent's evidence the road was formed and clearly identifiable at the time development consent was granted to Development Application 710/02 and accordingly, at the time the s 101 Notice was published.

(iii) onus of proof 20. While the parties agreed that the Council had the onus of proving that the s 101 Notice satisfied cl 124 of the Regulation the Applicants sought to argue that, as there was no evidence from the Council as to what the proper address of the Second Respondent's land was, the Council had failed to discharge its onus. As no evidence had been adduced by the Council which showed Lot 31 being addressed in the same way as it was described in the s 101 Notice, the Applicants submitted that the Council had failed to discharge the onus on it, according to the Applicants.

Further, the Applicants argued that adverse inferences could be drawn from the failure of the Council to provide such evidence in the form of extracts from the Council's rating register or similar record. I do not accept that submission.

The Council relied on the fact that the notice of determination of Development Application 710/02 referred to the same address as that used in the s 101 Notice, and further, that condition 7 Development Consent No 307/02 specified that the street address for Lot 31 must be Admiralty Drive. Development Consent No 307/02 became enforceable under s 123 of the EP&A Act when DP 1048035 was registered on 8 January 2003, so that condition 7 required that Lot 31 have a street address of Admiralty Drive and took effect from that date. The notice of determination of 307/02 and DA 710/02 was available for public inspection at the Council's chambers as required by the EP&A Act.

Further, the plans accompanying the letter of notification of DA 710/02, which was sent in October 2002 to neighbours, showed the location of the property as being beside Admiralty Drive in addition to references to Medora Street and Mimosa Court. It was also clear from those plans that the entrance to the proposed house was intended to be in Admiralty Drive. The Council therefore argued there can be no suggestion that the s 101 Notice did not refer to the correct description of the land in these circumstances.

I consider that the Council has discharged the onus of proof it bears in these circumstances and I decline to draw any adverse inference such as the Applicants urged on me in relation to lack of any other evidence as to a so-called "proper" address.

(iv) Lastly in relation to this argument the question arises as to what indeed is a "proper address" other than that contained in the s 101 Notice. It is not clear to me that there was an address which could have been referred to by the Council other than the address used in the s 101 Notice. The other addresses by which the property was referred to during the development consent processes for DA 307/02 and DA 710/02 were arguably not accurate. No 19-21 Tennyson Road comprises the whole of the land formerly occupied by the Australian Gaslight Company, being some 51.82 hectares in size. This land was subdivided into super-lots and part of one of these super-lots, being No 3, was further subdivided into Lots 31, 32 and 33 when DP 1048035 was registered in January 2003. 19-21 Tennyson Road could not be a proper description of the land.

Lot 3A(2) Medora Street, Breakfast Point, was part of super-lot 3, 19-21 Tennyson Road. On registration of the plan of subdivision for DP 1048035, the land in Lot 31 was no longer part of Lot 3A2. Once again this description could not therefore be considered accurate for the purposes of the s 101 Notice.

I agree with the Council that there is no evidence before me to suggest that the Council had referred to the land at 24 Medora Street, Breakfast Point at the time the s 101 Notice was published. While the Council's draft assessment report for DA 307/02 referred to 24 Medora Street, this was clearly amended to Admiralty Drive while the assessment report was still in draft. This address could not therefore be considered to be an accurate description of the land, given the consent condition No 7 for DA 307/02.

Argument 2 - is s 101 Notice adequate or accurate? 28. The second argument put forward by the Applicants related to the adequacy and accuracy of the address referred to in the s 101 Notice. The Applicants argued that there must have been a Medora Street address referred to in the s 101 Notice in order for it to be adequate, due to the history of the land as having a Medora Street address. The Applicants argued that the failure to refer to Medora Street meant that the notice was inadequate notification for the general public.

I agree with the Council description, and that the s 101 Notice is adequate and accurate. Given the Development Consent condition No 7 in Development Application No 30702, the street address is correct at the time of the s 101 Notice. From the date of registration of DP 1048035 on 8 January 2003, the land in Lot 31 was required to be described in that manner by the Development Consent conditions. The registration of that Deposited Plan pre-dated the s 101 Notice. The Lot number referred to in the s 101 Notice was the lot number of the land created at the time of the subdivision.

Further, a member of the general public whom the s 101 Notice is intended to inform is able to identify Admiralty Drive after cursory enquiries. The road was then formed and signposted and identified in a widely available street directory. Further, attending the Council chambers to view the Development Consent No 710/02 would have also enabled identification of the land the subject of the Development Application by reference to the plans accompanying Development Consent. Provided the requirements of cl 124 are met by the notice and there is no material error of fact on the face of the notice, the Regulation is satisfied. I consider the decision of Talbot J in Johnson v Lake Macquarie City Council (1999) 103 LGERA 278 at p 282 [31] supports the Council's argument.

I was referred by the Applicants to a number of cases in the matter. No case referred to by the Applicants deals precisely with the issue raised by the Applicants about what is the "proper" address in the context of a s 101 Notice. Cases such as Woolworths Limited v The Warehouse Group Australia Pty Limited [2003] NSWLEC 350 , Levenstrath Community Associations Inc. v Tomies Timber (2000) 108 LGERA 176 , De Haas v Williams [2004] NSWLEC 15 and Proprietors of SP 13318 v Lavender View Regency Pty Limited (1997) 97 LGERA 337, to which I was referred, all emphasise the necessity for the description of land to be accurate. I accept the Respondents' submissions that in this case that the description of the s 101 Notice is accurate.

Argument 3 - is the s 101 Notice misleading? 32. The last argument with which I must deal is that of whether the Notice is misleading. The key argument of the Applicants in relation to whether the Notice was misleading was that, as the s 101 Notice did not have the same address as was used in: Development Application 7/102 or the Council's notification to seven neighbouring residents, including the Applicants', it was misleading. The Development Application refers to the land as the corner of Medora Street and Admiralty Drive, amongst other references. The letter to neighbours from the Council dated 8 October 2002 included in the heading reference to 19-21 Tennyson Road, Breakfast Point. The plans accompanying the letter from the Council referred to Lot 3A2, end of Medora Street. I note that at the time that the Development Application was lodged and the notification to neighbours was given in October 2002, Lot 31 did not yet exist as the relevant DP 1048035 was not registered until 8 January 2003, so a reference to it would have been difficult.

Is the s 101 Notice misleading because it does not include the same references as those contained in the notification letter and accompanying documents sent to the neighbours? I do not think so. There is no requirement in the EP&A Act or Regulations that the same description as appeared in any earlier public notification must also appear in the s 101 Notice. Further, the case relied on by the Applicants in support of this argument, Cobden-Jones v Woollahara Municipal Council (2001) 118 LGERA 41, does not suggest that such a requirement exists. Rather that case dealt with an inadequate description of a property in a s 101 Notice. As part of the relevant evidence in Cobden-Jones the address referred to in the public notification was referred to and considered by Cowdroy J in his judgment but his findings are not those attributed to the case by the Applicants' counsel.

In this case the public notification letter and accompanying plans contain several descriptions of the subject property which, at that stage consisted of Lots 31, 32 and 33, because the three-lot subdivision plan was yet to be registered. I accept the Respondents' submissions that, relying on Canterbury District Residents and Ratepayers Association Inc. v Canterbury Municipal Council (1991) 75 LGRA 317, a s 101 Notice would not mislead a reasonable member of the public examining the notice. Nor, relying on Litevale v Lismore City Council (1997) 96 LGERA 91 does it contain incomplete or inaccurate information . While both cases consider different provisions of the EP&A Act to those before me, namely the notification required under s 66 of the EP&A Act in relation to the making of environmental planning instruments, in those cases it was found that misleading material additional to the legislative requirements had been included and that therefore the notice was invalid. I consider that these cases are nevertheless applicable in support of the Respondents' submissions, rather than the Applicants'.

There may be circumstances where the fact that the s 101 Notice uses an address different to those used in the earlier public notification process may be misleading, but that is not the circumstance before me. I do not need to decide this question conclusively, given the facts that I am considering here.

So finally, by way of conclusion, the answer to the question of law posed is that the public notice of the granting of Development Application 710/02 published in The District News on Tuesday 4 February 2003 has the effect that the validity of the consent cannot be questioned in these proceedings.

Orders 37. The Court makes the following orders: 1. Proceedings no. 41322 of 2003 are dismissed. 2. The exhibits with the exception of Exhibit D may be returned. 3. The Applicants are to pay the First and Third Respondents' costs as agreed or assessed in relation to these proceedings. Liberty is given to the Applicants to apply within 48 hours if they wish to raise issues in relation to this order.

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.

CITATION : Fitzgerald v City of Canada Bay Council and Ors [2004] NSWLEC 293 APPLICANTS Peter Anthony Fitzgerald and Marie Elizabeth Fitzgerald FIRST RESPONDENT PARTIES : City of Canada Bay Council SECOND RESPONDENT Breakfast Point Pty Limited THIRD RESPONDENT Geraldine Kay Carter FILE NUMBER(S) : 41322 of 2003 CORAM: Pain J KEY ISSUES: Question of Law :- whether notice published pursuant to s 101 of the Environmental Planning and Assessment Act 1979 referred to proper address - whether address given in notice accurate or misleading - whether address given in notice must be a public road Community Land Development Act 1989, s 5 Environmental Planning and Assessment Act 1979, s 66, s 101, s 123 LEGISLATION CITED: Environmental Planning and Assessment Regulation 2000, cl 89(a), cl 124(1)(b) Roads Act 1993 Supreme Court Rules, Pt 31 Canterbury District Residents and Ratepayers Association Inc. v Canterbury Municipal Council (1991) 75 LGRA 317; Cobden-Jones v Woollahra Municipal Council (2001) 118 LGERA 41; De Haas v Williams [2004] NSWLEC 15; CASES CITED: Johnson v Lake Macquarie City Council (1999) 103 LGERA 278; Levenstrath Community Associations Inc. v Tomies Timber (2000) 108 LGERA 176; Litevale v Lismore City Council (1997) 96 LGERA 91; Proprietors of SP 13318 v Lavender View Regency Pty Limited (1997) 97 LGERA 337; Woolworths Limited v The Warehouse Group Australia Pty Limited [2003] NSWLEC 350 DATES OF HEARING: 27/04/2004 28/04/2004 EX TEMPORE 04/30/2004 JUDGMENT DATE :

(1999) 103 LGERA 278

(2000) 108 LGERA 176

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