Fitzpatrick & Anor v Council of the City of Lithgow & Ors - [2004] NSWLEC 109 - NSWLEC 2004 case summary — Zoe

NSWNSWLEC

Fitzpatrick & Anor v Council of the City of Lithgow & Ors

[2004] NSWLEC 109

Land and Environment Court (NSW)|2004-05-20|Before: Pain J

View original source

At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2004-05-20

Before

Pain J

Source

Original judgment source is linked above.

Judgment (51 paragraphs)

[1]

CITATION : Fitzpatrick & Anor v Council of the City of Lithgow & Ors [2004] NSWLEC 109 APPLICANTS Ronald Damian Fitzpatrick and Catherine Judith Shead FIRST RESPONDENT Council of the City of Lithgow PARTIES : SECOND RESPONDENT Bell River Homes Pty Limited THIRD RESPONDENT Hartley Management Pty Limited FOURTH RESPONDENTS David Roy Archibald Sandeman and Grace Emily Sandeman FILE NUMBER(S) : 41073 of 2003 CORAM: Pain J KEY ISSUES: Development Consent :- meaning of "commercial premises" - whether development consent granted for prohibited use - legitimate expectation of notification of development consent - whether consent authority failed to consider heritage impacts - whether relevant matters taken into account by the Council Environmental Planning and Assessment Act 1979, s 12, s 73, s 79, s 79A, s 124 LEGISLATION CITED: Local Government Act 1993, s 12 Environmental Planning and Assessment Model Provisions 1980, cl 4 Lithgow Local Environmental Plan 1994 B & J Porter and Anor v Hornsby Shire Council (1989) 69 LGRA 101; Food Barn Pty Ltd v Solicitor-General (1975) 32 LGRA 157; Hawksbury City Council and Anor v Sammut (2000) 111 LGERA 208; Hillpalm Pty Ltd v Tweed Shire Council & Anor [2002] NSWLEC 17; CASES CITED: Hornsby Shire Council v Porter & Ors (1990) 70 LGRA 175 ; MLC Properties Pty Ltd v Camden Council (1997) 96 LGERA 52; Scott's Provision Stores Pty Ltd v Sydney City Council (1965) 11 LGRA 380; Valentina Parkes & Anor v Prem Narain Rastogi [1992] NSWLEC 108; Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 ; Warringah Shire Council v Jennings Group Ltd (1992) 75 LGRA 402 DATES OF HEARING: 3/12/03, 4/12/03, 11/12/03 (written submissions), 15/12/03 (written submissions), 17/12/03 (written submissions) DATE OF JUDGMENT: 05/20/2004

[2]

[24]

I find that the use of the proposed development for the purposes of a display home is prohibited under the Lithgow LEP. The declaration sought by the Applicants in par 2 of their Class 4 application is that: … the development at 22 Collits Place, Little Hartley, is a prohibited development of commercial premises within Rural Residential Zone 1c under the provisions of the Council of the City of Lithgow Local Environment Plan 1944 [sic] For reasons I will deal with later in this judgment I do not think a declaration in precisely these terms is appropriate. A declaration that use of the dwelling for the purposes of a display home is prohibited is appropriate. Should the consequential relief sought by the Applicants be granted? 24. The relief sought by the Applicants is an order that the Second Respondent demolish the construction work already carried out on the land pursuant to the development consent and be restrained from carrying out further work. An order that the Fourth Respondent be restrained from proceeding with the building of a "dwelling house" on the same site is also sought. 25. The Second and Fourth Respondents argue that the Court should exercise its discretion to decline to grant such relief. Before determining that issue I will review the other grounds raised by the Applicants as my findings in relation to the other grounds are relevant to the exercise of the Court's discretion to grant relief. The heritage ground 26. The Applicants also allege that the First Respondent failed to: (a) consider the heritage objectives contained in cl 39 of the Lithgow LEP; (b) have regard to cl 40(5) of the Lithgow LEP; or (c) consult its appointed heritage adviser as to the impact of the development application in relation to cl 39(b) and (d) of the Lithgow LEP; in determining whether to grant the development consent. 27. The evidence relied on by the Applicants in support of these arguments was contained in two affidavits of Professor Jack, a heritage consultant. Professor Jack gave evidence in his affidavits to the effect that the village of Little Hartley, in which the land is located, is a rare example of a historic linear village and its heritage value is of state significance. Further, Professor Jack was of the view that the buildings known as Ambermere, the Harp of Erin, Meads Farm and Kerosene Cottage, which are located within Little Hartley, also each have a heritage value of state significance independent of that of the village itself. (a) and (b) failure of the Council to consider the matters required by cl 39 and 40 of the LEP 28. Clause 39 of the Lithgow LEP provides as follows: The heritage objectives of this Plan are: (a) to conserve the environmental heritage of the City of Greater Lithgow, (b) to better integrate heritage conservation into the planning and development control processes, (c) to provide for public involvement in matters relating to the conservation of the area's environmental heritage, and (d) to ensure that new development is undertaken in a manner that is sympathetic to, and does not detract from, the heritage significance of heritage items and their settings, as well as streetscapes and landscapes and the distinctive character that they impart to the City of Greater Lithgow. 29. Clause 40 of the Lithgow LEP relevantly provides that: (1) In respect of a building, work, place, tree, relic or land that is a heritage item, a person must not, except with the consent of the Council: (a) demolish or alter the building or work, (b) damage, despoil or destroy the place, tree, or relic, (c) erect a building on, or subdivide, the land. … (5) The Council may decline to determine a development application required by this clause unless it has considered a conservation plan explaining the heritage significance of the item and the impact of the proposed development on the significance of the item and its setting. 30. "Heritage item" is defined in cl 6 of the Lithgow LEP to mean "a building, work, relic, tree or place described in schedule 1" . It was not disputed by the parties that the Lithgow LEP, which contains a list of heritage items in Sch 1, does not list either Kerosene Cottage or any item on the land as heritage items. The essential argument of the Applicants was that the First Respondent had failed to carry out a duty imposed by s 73 of the Environmental Planning and Assessment Act 1979 ("the EP&A Act"), to update the schedule of heritage items in the Lithgow LEP following the preparation of the heritage study by Professor Jack which identified Kerosene Cottage as an item of rare state and aesthetic significance. Section 73 of the EP&A Act provides that: The Director-General shall keep State environmental planning policies and regional environmental plans, and councils shall keep their local environmental plans and development control plans under regular and periodic review for the purpose of ensuring that the objects of this Act are, having regard to such changing circumstances as may be relevant, achieved to the maximum extent possible. This failure to update the heritage schedule, it was said, resulted in a breach of cl 39 and cl 40. 31. The Applicants also argued that the Council had misled the Applicants into believing that their home was a heritage item and would have the protection afforded to heritage items under the Lithgow LEP. This argument is beyond the scope of these proceedings. No other argument was advanced in support of this ground by the Applicants.

[31]

The Applicants relied on Cripps J in B & J Porter and Anor v Hornsby Shire Council (1989) 69 LGRA 101, which was followed by Justice Pearlman in Valentina Parkes & Anor v Prem Narain Rastogi [1992] NSWLEC 108, as supporting the argument that a legitimate expectation of notification could arise independently of the existence of any expectation arising as a result of a Council's notification practice or policy. Cripps J held, at first instance, that the provisions and purpose of s 313(1)(o) and s 312A of the Local Government Act 1919 lead him to the conclusion that: the expectation of a reasonably minded member of the public could be scarcely other than that adjoining owners would be notified of building applications in order that they could inspect plans and make submissions to the Council before a decision was made. Section 313(1)(o) of the Local Government Act 1919 required a council to consider the " likely effect of a building on adjoining land and buildings" in determining an application for building approval. S ection 312A of the Local Government Act 1919 gave the owners of land adjoining land on which it was proposed to erect a building a right to inspect the plans. On appeal the Court of Appeal held in Hornsby Shire Council v Porter & Ors (1990) 70 LGRA 175 at 185 that the proper construction of s 312A implied a duty upon the council to "inform adjoining landowners of the fact that an application likely to affect them detrimentally has been made." The Applicants submit that, whilst s 313(1)(o) and s 312A of the Local Government Act 1919 have been repealed, s 79 and 79A of the EP&A Act and s 12 of the Local Government Act 1993 have the effect that any person, including adjoining land owners, has the right to inspect development applications. Accordingly, adopting the reasoning in Porter , this gives rise to a legitimate expectation by adjoining land owners that they will be notified by the Council of any development applications made in respect of adjoining land. No case law in support of this argument in relation to the EP&A Act was presented to the Court and I consider it is contrary to the current legal position in relation to notification required by the EP&A Act. 42. I do not agree that the reasoning in Porter applies to the EP&A Act in the way argued by the Applicants' counsel. Sections 79 and 79A of the EP&A Act requires certain types of development namely, designated development, advertised development and other development required to be notified or advertised by the provisions of a development control plan, to be exhibited and notified as specified. Sections 79 and 79A of the EP&A have no application to the development at issue here. Section 12 of the of the Local Government Act 1993 is a broad provision which grants members of the public a right to inspect various documents, including development applications, free of charge. I do not accept the Applicant's submission that s 79 and 79A of the EP&A Act and s 12 of the Local Government Act 1993 combine to impose any duty on the Council to inform land owners of development applications made in respect of adjoining land or to give such land owners a legitimate expectation that they would be so informed.

[37]

Finding in relation to the amenity ground 50. If the argument raised by the Applicants is that there was a failure to consider a relevant consideration, namely, the impact of the proposed development on the Applicants' amenity, it is the oral evidence of the Council officer Mr Lemcke that he assessed the impacts which the proposed development would have on the amenity enjoyed by the Applicants. The assessment report prepared by Mr Lemcke shows that next to the question "is there any impact on neighbouring land uses?" Mr Lemcke had written the word "no" . As the Council's written submissions note, it was not put to Mr Lemcke in cross-examination that he had failed to have regard to heritage issues or amenity issues of the kind complained of by the Applicants. In my view the Applicants have failed to establish to the requisite standard of proof that the Council did not consider the impacts of the proposed development on the amenity of Kerosene Cottage. Accordingly, the Applicants are unsuccessful on this ground. Exercise of the Court's discretion to grant relief 51. The relief sought by the Applicant is as follows: … (c) An order that the Second Respondent is restrained from carrying out development and construction work in accordance with the development consent. (d) An order requiring the Second Respondent to demolish the construction work already carried out on the land pursuant to the development consent. (e) An order that the Fourth Respondents be restrained from proceeding with the building of a "dwelling house" on the same site as that specified in the development application. 52. Order (e) seeks to restrain the Fourth Respondents, the sole shareholders and directors of the Second Respondent, which owns the land, from ever building a dwelling house on the site selected for the proposed development. I do not think it is open to the Court to constrain future activity on the site as this open-ended order seeks. Even if the Court could make such an order it would not be appropriate to so do as the current proceedings relate to the proposed development only. There is also no legal or evidentiary basis for making such an order. While there was some evidence from the Second Respondent about the siting of the dwelling and the Applicants' counsel undertook some cross-examination of Mr Splithof, the Second Respondent's builder, as to the site selected, the Court does not draw any conclusions on the appropriateness of the site for a dwelling house nor is it necessary that it do so. It is not an issue which arises under the Applicants' four grounds I have dealt with above and was not raised in the Applicants' submissions or pleadings.

[39]

Section 124 of the EP&A Act provides that: Where the Court is satisfied that a breach of this Act has been committed or that a breach of this Act will, unless restrained by order of the Court, be committed, it may make such order as it thinks fit to remedy or restrain the breach. Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 is authority for the propositions that the discretionary power conferred on the Court by s 124 is wide and unfettered and that the Court is not limited in the circumstances which it may take into account in the exercise of its discretion. Kirby JA in Sedevcic sets out at p 339-341 a number of guiding principles , which I do not need to repeat here, which should be considered by the Court in exercising the discretion granted by s 124. These include: (1) the width and unfettered nature of the discretion granted to the Court by s 124; (2) the fact that the orders sought are the enforcement of a public duty imposed by an Act of Parliament regulating development and the use of the environment; (3) that fact that the EP&A Act permits any person to bring proceedings in the Court for an order to remedy or restrain a breach; (4) that there is a legislative purpose of upholding, in the normal case, the integrated and co-ordinated nature of planning law, in order to secure equal justice; (5) that where orders are sought by a Council the Court may be less likely to deny relief than it would in litigation between private persons; and (6) that where relief is sought against the erection of a building which, once having occurred can only be remedied at great cost or inconvenience, the discretion is more readily exercised than in circumstances where a continuing breach by conduct exists. 55. The Council argued that the Court should exercise its discretion to decline relief for the following reasons: (a) a DUAP circular entitled "Department of Urban Affairs and Planning Circular 24" of May 1993, issued after the decision in Jennings Group , states that display homes are important and appropriate in residential zones; (b) the adverse impacts on Kerosene Cottage which the Applicants assert will result from the proposed development do not relate to the display home use but are objections to the building per se; (c) there are other buildings in the neighbourhood which conduct business or commercial uses; (d) the breach of the LEP will be transitory because it will cease at some future point when the Second Respondent elects to sell the display home as a residence; and (e) Council officers assessed the display home use and considered its impacts to be acceptable.

[42]

The Applicants rely on Kirby JA in Sedevcic at 339 where he states that: In exercising the discretion, it must be kept in mind that the restraint sought is not, in its nature, the enforcement of a private right… It is the enforcement of a public duty imposed by or under an Act of Parliament, by which Parliament has expressed itself on the public interest which exists in the orderly development and use of the environment. Further, the Applicants submit that: (a) the opinion expressed in "Department of Urban Affairs and Planning Circular 24" does not have the force of law and the public benefit of display homes is not such that it outweighs the need to uphold the planning law; (b) the impact of the proposed development on the Applicants will be increased by its use as a display home compared to its use as a dwelling; (c) the breach was a deliberate one in which the Second Respondent sought to gain a commercial advantage; (d) the Applicants acted in a timely manner in bringing proceedings once aware of the proposed development; and (e) the Second Respondent was aware that the validity of the development consent was being challenged by the Applicants at the time it commenced construction. Finding in relation to Orders (c) and (d) 59. This Court has wide discretion in relation to both whether it grants relief and the nature of that relief if granted. The reasons put forward by the Respondents as to why relief should be refused in circumstances where I have found that the proposed development is prohibited are not compelling in suggesting that I should allow the prohibited use to continue. Regardless of the conduct, opinions or motives of the Respondents and regardless of whether display homes are sympathetic to rural residential uses, the fact remains that this use is prohibited under the terms of the LEP. It is important that planning instruments be correctly applied and there is a strong legislative purpose served by upholding planning laws to ensure justice is afforded.