Gee v Council of the City of Sydney and Ors - [2004] NSWLEC 581 - NSWLEC 2004 case summary — Zoe

NSWNSWLEC

Gee v Council of the City of Sydney and Ors

[2004] NSWLEC 581

Land and Environment Court (NSW)|2004-08-19|Before: Pain J, Dr J, Ms J

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2004-08-19

Before

Pain J, Dr J, Ms J

Source

Original judgment source is linked above.

Judgment (71 paragraphs)

[1]

Background 3 It is necessary for me to briefly set out the history behind the development consent the subject of these proceedings. The Second Respondents first applied to South Sydney Council for consent to demolish the existing two storey building on the land and to erect a new two storey building in January 2002 ("the first development application"). In August 2002 South Sydney Council approved the first development application and granted the Second Respondents' development consent subject to conditions ("the first development consent"). On 14 August 2002 the Applicant commenced Class 4 proceedings in this Court challenging the grant of the first development consent. These proceedings were the subject of a mediation and on 18 February 2003 declarations were made by this Court, with the consent of the parties, to the effect that the first development consent was void and of no effect.

[2]

4 On 2 July 2003 the Second Respondents' agents lodged with South Sydney Council a second development application for consent to demolish the existing two storey building on the land and to erect a new two storey building with South Sydney Council. On 4 February 2004, South Sydney Council approved the further development application subject to conditions. It is this development application and development consent which are the subject of these proceedings. The building proposed in this development application is similar to that proposed in the first development application. In particular, the rear setbacks of the building the subject of the current development consent do not differ from those proposed in the first development application.

[11]

The Council's Submissions 14 The Council argued that South Sydney Council's file relating to the development application was before the Council and, accordingly, that the information contained in that file was able to be considered by the councillors at the meeting on 4 February 2004 in addition to the assessment report and the material provided by the Applicant to the councillors. The Council relied on the decision of the Court of Appeal in Schroders Australia Property Management Ltd v Shoalhaven City Council & Anor [2001] NSWCA 74 ("Schroders") as authority for its argument that as: (a) the development proposed in the development application is relatively modest in nature; (b) the relevant Council file contained information relating to the respective setbacks of the land and the adjoining property owned by the Applicant and that file was available for inspection by the councillors; (c) an assessment report had been prepared by a Council officer in relation to the development application and the councillors had been referred to this assessment report; and (d) the Council had already considered an earlier development application for the same property, which development application proposed the construction of a building with the same rear setbacks as that proposed in the development application, and the councillors had visited the land for the purpose of considering that earlier development application; the Court should presume, absent cogent evidence to the contrary, that the councillors who considered the development application did so in light of all the information available to them, including that contained on the Council's file. The Council did not rely on the principles promulgated in Carltona . Accordingly, the Council argued that Centro Properties , which concerned a council which did not have on its files or in its assessment report any information before it concerning a particular impact of a development application, has no application to the current facts.

[24]

28 The following facts are key to the Applicant's arguments in relation to this ground: (a) the land is located at the end of a cul de sac and immediately adjoins only two properties being the Applicant's two storey single residence at 9 Stewart Place and a residential flat building, located on a large lot, at 99 Stewart Street. The Applicant's property is the only dwelling which immediately adjoins the land as only the car parking area of 99 Stewart Street adjoins 11 Stewart Place; (b) the proposal the subject of the development application involved the demolition of the existing building on the land, which has a rear setback of 13.5m on the ground floor and 19m on the first floor, and the construction of a new building with a rear setback of 10.2m on the ground floor and 15.4m on the first floor. 29 Further, the Applicant relied on the fact that she had made a number of submissions to South Sydney Council, including: (i) a submission contained in a letter dated 29 July 2003 from the Applicant to South Sydney Council; (ii) a supplementary submission contained in a facsimile dated 23 January 2004 from Mr Brooks of Dickson Rothschild Pty Limited, the planning and architectural consultancy retained by the Applicant, to South Sydney Council; (iii) an undated letter which the Applicant hand delivered to Mr Furness, then the ward councillor for the area; (iv) a further undated letter sent by Mr Dickson of Dickson Rothschild Pty Limited to Mr Fowler, then a councillor on South Sydney Council; and (v) the oral submission and plan showing rear setbacks, referred to above at par 11, which Dickson Rothschild Pty Limited gave on behalf of the Applicant at the Council meeting on 4 February 2004; all of which submissions raised, amongst other things, the impact which the rear setbacks of the proposal would have on the Applicant's adjoining property at 9 Stewart Place. 30 The Applicant argued that the cumulative effect of the above is that the Council was required to specifically consider the impacts which the proposed rear setbacks of the building the subject of the development application would have on the amenity enjoyed by those occupying 9 Stewart Place in forming the opinion required by cl 10 of the LEP.

[25]

31 Counsel for the Applicant argued at par 37 - 38 of their written submissions that: 37. Sub-clause [12] (c), as the only relevant zone objective relating to built form, includes a number of components. 37.1 The first obligation is for the Council to be satisfied that the proposal is consistent with the objective of ensuring that the built form is one which is in character with the surrounding built environment. 37.2 The second obligation is that the Council is satisfied that the proposal is consistent with the objective of ensuring that the built form does not detract from the amenity enjoyed by nearby residents. It is immediately apparent that the reference to "nearby residents" operates at a greater level of particularity than, for example, the reference to the medium density residential areas in sub-clause (a). Sub-clause (c), in respect to the second obligation, requires a more specific focus - on nearby residents. 37.3 The third obligation is for the Council to be satisfied that the proposal is consistent with the objective of ensuing that the built form does not detract from the existing quality of the environment (again, moving to a higher level of generality than the second obligation). 37.4 Each of the obligations is characterised by the opening words "to ensure". Contrast, for example, the words "to facilitate" and "to provide" which qualify some of the other sub-clauses. Only sub-clause (c) is qualified by the words "to ensure". 38 This analysis is relevant to the nature of the obligation imposed by clause 10(3), read in conjunction with clause 12(1)(c). The content of the objective (as to which there must be an opinion of consistency) is expressed in mandatory terms (to ensure …). The content relates to one specific aspect of development - its built form. The content, relevantly, is to ensure that the built form does not detract from the amenity enjoyed by a particular and narrow class - namely, nearby residents. The opinion to be formed, therefore, had a well defined and quite specific character. 32 Accordingly, the Applicant argued that the assessment report misdirected the Council in a key matter when it concluded that the proposal "is consistent with the zone objectives" and "Specifically the proposal meets the requirements of Clause 10 and Clause 12(1)… (c) of LEP 1998 in that the amenity and character of the locality will be maintained by the proposal." To make good its argument that the Council had misdirected itself or failed to correctly form the necessary opinion, the Applicant's submissions were directed to demonstrating the inadequacies of the Council's assessment report which it argued was the only document from the Council's file which it could be assumed was considered by the councillors in determining to grant the development consent.

[46]

50 While the Applicant sought to argue that cases such as Currey, Franklins and Hortis supported her case I consider they do not apply because the facts are quite different to those before me. Currey concerned the issue of whether the relevant council had addressed a clause in the relevant local environmental plan which contained a prohibition on the grant of consent unless the Council was satisfied of certain matters in granting a development consent to which the relevant clause applied. Stein JA accepted the principle enunciated in Hale that the collegiate body of the council may be aware from its general knowledge of the relevant considerations under the particular local environmental plan and further held that individual councillors may be assumed to bring their individual expertise and local knowledge to the consideration of the particular development application. However Stein JA (with whom Mason P and Handley JA agreed) noted that inferred knowledge can only play a limited role and held at p 375 that, as the relevant officer's report and its appendices merely referred to the relevant clause in local environmental plan and did not contain any information regarding the prohibition and the need to overcome it before granting consent, the inference should be drawn that the council failed to address the pre-condition. These facts are materially different to those before me. 51 In Franklins the Court of Appeal found that the pre-condition for approval, being the satisfaction of a particular situation, had not been met. Further, the Court of Appeal held that local knowledge held by the Councillors was irrelevant because what was required was actual knowledge of the pre-condition about which the Council had to be satisfied and that knowledge was lacking. That circumstance is quite different to that before me where the proposed development was relatively modest in the context of this LEP, the councillors are presumed to have local knowledge and in addition several had been to the site of the proposed development, and they had documents before them alerting them to all the relevant issues.

Parties

Applicant/Plaintiff:

Gee

Respondent/Defendant:

Council of the City of Sydney and Ors

Cases Cited (18)

CITATION : Gee v Council of the City of Sydney and Ors [2004] NSWLEC 581 APPLICANT: Elizabeth Gee PARTIES : FIRST RESPONDENT: Council of the City of Sydney SECOND RESPONDENT: Shauna Alexander and William Hywall Clark FILE NUMBER(S) : 40508 of 2004 CORAM: Pain J KEY ISSUES: Judicial Review :- whether all documents on the relevant council file should be regarded as being before the council in determining to grant consent - whether council properly considered if a condition precedent contained in the LEP was met - whether council gave real consideration to the provisions of its DCP - whether the council's decision that the proposal satisfied the precondition in the LEP and the requirements of the DCP was manifestly unreasonable. LEGISLATION CITED: Environmental Planning and Assessment Act 1979, s 79C South Sydney Local Environmental Plan 1998, cl 10, cl 12(1) Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223; Carltona Limited v Commissioner of Works [1943] 2 All ER 560; Centro Properties v Hurstville City Council & Anor [2004] NSWLEC 401; Clifford v Wyong Shire Council (1996) 89 LGERA 240; Cobden-Jones & Anor v Woollahra Municipal Council & Ors (2001) 118 LGERA 41 ; Currey v Sutherland Shire Council (1998) 100 LGERA 365 ; Franklins Limited v Penrith City Council & Anor [1999] NSWCA 134; CASES CITED: Jones v Dunkel (1959) 101 CLR 298; Manly Council v Hortis (2001) 113 LGERA 321; Minister for Aboriginal Affairs v Peko Wallsend Limited (1986) 162 CLR 24; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; North Sydney Council v Ligon 302 Pty Limited (1995) 87 LGERA 435; Parramatta City Council v Hale (1982) 47 LGRA 319 ; Schroders Australia Property Management Ltd v Shoalhaven City Council & Anor [2001] NSWCA 74; Weal v Bathurst City Council (2000) 111 LGERA 181; Zhang v Canterbury City Council (2001) 51 NSWLR 589 DATES OF HEARING: 19/08/2004 20/08/2004 DATE OF JUDGMENT: 11/23/2004

(1996) 89 LGERA 240

(2001) 118 LGERA 41

(1998) 100 LGERA 365

(1959) 101 CLR 298

(2001) 113 LGERA 321

(1986) 162 CLR 24

(1996) 185 CLR 259

(1995) 87 LGERA 435

(2000) 111 LGERA 181

(2001) 51 NSWLR 589

(1999) 197 CLR 611

(1990) 170 CLR 1