Hemmes Hermitage Pty Limited v City of Sydney Council [2004] NSWLEC 539 | Case summary

Withdrawal 3 The two development applications were lodged with the council in December 2003. At its meeting on 17 May 2004 the council resolved to refuse to grant consent as owner of Palings Lane to the lodgment of the development applications. The council wrote to the applicant on 19 May 2004 stating that in the absence of owner's consent the development application cannot be considered and suggesting that the applications be withdrawn, otherwise they would have to be refused. By letter, dated 20 May 2004, the applicant's chief executive officer wrote to the council stating: "I confirm that, as suggested, we wish to withdraw the above two Development Applications". Thereafter the council sent a refund of the unexpended portion of the application fee to the applicant. The applicant in the interim, however, submitted amended plans to the council and asked the council to proceed with determination. Upon receiving the council's refund cheque the applicant returned it to the council. 4 The question for determination is whether, following the applicant's withdrawal of the development applications, such withdrawal can be revoked. The position is governed by cl 52 of the Environmental Planning and Assessment Act Regulation 2000 ("the EP&A Regulation"), which states: 52 Withdrawal of development applications (1) A development application may be withdrawn at any time prior to its determination by service on the consent authority of a notice to that effect signed by the applicant. (2) An application that is withdrawn is taken for the purposes of the Act (section 79 (6) of the Act and clause 90 (3) of this Regulation excepted) never to have been made. 5 Ms A Pearman, appearing for the applicant, submits that cl 52 of the EP&A Regulation is procedural and beneficial to an applicant and accordingly an applicant can validly revoke a withdrawal of a development application. Ms Pearman alternatively submits that because the subject development applications were lodged without the consent of the owner of Palings Lane (as required by cl 49(1)(b) of the EP&A Regulation), then no development application had been made to which cl 52 could apply, so that there was no development application to be withdrawn (Songkal Pty Limited v Warringah Council (2001) 117 LGERA 237 at 247, Rose Bay Marina Pty Ltd v Minister for Urban Affairs and Planning (2002) 122 LGERA 255 at 259). The council is not prevented from considering the development application in the meantime, however, provided that the application is perfected by the furnishing of the owner's consent before the application is determined (Rose Bay Marina at 259-260). 6 There are three answers to these submissions. Firstly, cl 52 of the EP&A Regulation does not refer to a revocation of a withdrawal of a development application. The clause is self-executing - an application that is withdrawn is taken "never to have been made". Since the application is taken never to have been made then there is nothing on foot which can be revoked. This is the consequence of the clear language of the clause. 7 Secondly, the applicant's letter of 20 May 2004 withdrawing the two development applications amounts to an election. The doctrine of election between two inconsistent rights would seem to apply in the present circumstances (Sargent v ASL Developments Ltd (1974) 131 CLR 634). The doctrine of election applies to interests in property as well as to contracts (Sargent at 658). Once an election is made it cannot be retracted (Sargent at 656). 8 Thirdly, if neither of the development applications has been "made" because they did not have the consent of the owner of Palings Lane, then no right of appeal could arise under s 97 of the Environment Planning and Assessment Act 1979 ("the EP&A Act"), which only gives a right of appeal to the Court "with respect to the applicant's development application". That is, there is no development application which can be the subject of an appeal. The lack of owner's consent can, however, be rectified at any time prior to the determination of the application and the consent authority can consider the application in the meantime (Rose Bay Marina at 259-260, Maule v Liporoni (2002) 122 LGERA 140 at 154-55), but the application must be perfected (that is, validly made) by the furnishing of the owner's consent prior to its determination (Currey v Sutherland Shire Council (2002) 129 LGERA 223 at 230-231). 9 Whichever way one looks at it, there is currently no valid development application which can be the subject of an appeal in the present case. If the development applications were validly made, they were then withdrawn, with the consequence that they are deemed "never to have been made" (cl 52(2) of the EP&A Regulation). Alternatively, whatever may be the status of the applications, the applicant elected to withdraw them. Further alternatively, there is no valid development application at all unless, or until, accompanied by the owner's consent, although such consent may be furnished at any time prior to the determination. 10 This conclusion is determinative of the council's motion for dismissal of the appeals, but since the second question was argued I should, out of deference to counsel's arguments, decide it. Moreover, I am informed by counsel that there is a further appeal pending between the same parties in which the same question arises, so that there is clear utility in now resolving that question. The council as owner has withheld and continues to withhold its consent, so that there is no prospect, according to the council, of a valid development application. Absence of owner's consent 11 As noted above, a development application may be made only by the owner of the land to which the development application relates, or by another person with the consent in writing of the owner (cl 49(1) of the EP&A Regulation). 12 The applicant relies, however, on s 39(2) of the Land and Environment Court Act 1979 ("the Court Act"), which states: 39 Powers of Court on appeals … (2) 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. 13 Ms Pearman, on behalf of the applicant, submits that that this provision enables the Court itself to grant the owner's consent where it is the council that is the landowner whose consent is required. A number of authorities are said to support the submission. In Sydney City Council v Claude Neon Ltd (1989) 15 NSWLR 724 the Court of Appeal considered the absence of consent of the council, as owner of a road, to a development application for an advertising sign on the roof of a building, which had floodlights that projected into the air space above the road. The Court of Appeal held (at 732, per Hope JA, Priestley and Meagher JJA concurring) that the Land and Environment Court, having the same powers as the council when dealing with the application before 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. Ms Pearman also relies on Shellharbour Municipal Council v Rovili Pty Ltd (1989) 16 NSWLR 104 where the owners of land, which abutted a public road, had submitted a development application in respect of a bridge for access to be partly situated on the road, but the council had declined to consent to the lodgment of the development application. The Court of Appeal applied Claude Neon, holding (at 111-112, per Clarke JA, Samuels and Meagher JJA concurring) that the power of the Land and Environment Court to review that action in an appeal under s 39(2) depends upon whether the giving of consent is a necessary incident to the power of the council to grant development approval. 14 In the present case Ms Pearman submits that the power to give a landowner's consent is more than an incident in respect of the subject matter of the appeal - it is at the heart of the matter, so that s 39(2) of the Court Act would apply with full force in a situation such as the present. 15 Ms Pearman also relies upon Parkes v Byron Shire Council (2003) 129 LGERA 156, in submitting that a function or discretion which the council had in respect of the subject matter of the appeal may also be exercised by the Court. In that case the Court exercised the power of the consent authority under s 51(1) of the EP&A Regulation to reject a development application where it was illegible or unclear. 16 Despite Ms Pearman's carefully formulated submissions, there is a number of answers which mean that I am unable to accept them. 17 The first answer is found in the Roads Act 1993. This Act was enacted after the decisions in Claude Neon and Rovili upon which Miss Pearman relies. 18 By ss 7(4) and 145(3) of the Roads Act all public roads within a local government area (other than freeways and Crown roads) are vested in fee simple in the relevant local council. There is no suggestion that Palings Lane is either a freeway or a Crown road. Section 146(1)(e) of the Roads Act provides that, except as otherwise provided by the Act, the dedication of land as a public road does not authorise the owner of the road to dispose of any interest (other than an easement or covenant) in the land. The dictionary to the Act defines "road" as including the airspace above the surface of the road and the soil beneath the surface of the road. In the present case the applicant's 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. 19 The objects of the Roads Act are set out in s 3. These objects relevantly include - "(a) to set out the rights of members of the public to pass along public roads" and "(c) to establish the procedures for the opening and closing of a public road". Section 5(1) states that a member of the public is entitled, as of right, to pass along a public road. 20 Part 4 of the Roads Act deals with the closing of public roads. It states that only the Minister has the power to close a road (ss 33 and 37). Part 9 deals with the regulation of works, structures and activities on roads. This allows a council to grant "an approval" for the use of part of a footway of a public road for the purpose of an adjacent restaurant (s 125). It also allows a council to "authorise the holder of an approval" to erect and maintain structures in, on or over any part of the footway the subject of the approval (s 126(1)(a)). The reference to the "holder of an approval" is a reference to an approval for the use of part of a footway for the purposes of an adjacent restaurant. None of these provisions apply to the kind of structure proposed by the present applicant. 21 Section 138 of the Roads Act states that a person must not erect a structure or carry out a work in, on or over a public road (sub-s (1)(a)) or dig up or disturb the surface of a public road (sub-s (1)(b)). Section 139, however, allows a roads authority to grant consent to a particular structure, work or tree, or to structures, works or trees of a specified class. (The council is the roads authority for public roads within its area.) 22 Finally, s 149(1) of the Roads Act allows a roads authority to lease the airspace above, or land below the surface of, any public road (other than a Crown road) that is owned by the authority. However, such a lease may not be granted by a roads authority, other than the Roads and Traffic Authority, except with the approval of the Director of Planning. 23 The Court powers under s 39(2) of the Court Act have been considered in a number of cases. In Strathfield Municipal Council v Drew (1985) 1 NSWLR 338 there was 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 shall not be erected unless the proposed site has been approved by the Minister and also by the council. Mahoney JA held (at 342) that the section was not impliedly repealed by the enactment of the EP&A Act. His Honour did not express a final conclusion on the effect of s 39(2) of the Court Act, but nevertheless expressed the obiter view that it does not go as far as suggested; that is, it did not enable the Court to exercise the power of the council under s 51(2) of 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 EP&A Act and was not a matter the subject of the appeal. 24 In McDougall v Warringah Shire Council (1993) 30 NSWLR 258 the Court of Appeal held that s 39(2) of the Court Act enabled this Court, on an appeal against the refusal of a building application relating to a pigeon loft, to also vary, modify or rescind a resolution made under s 289(e) of the Local Government Act 1919 ("the LG Act") controlling and regulating the keeping of pigeons. In that case, however, the Court was exercising an appellate power granted to it under s 317 of the LG Act and the question was whether the regulation of the keeping of pigeons under s 289(e) of the same Act was also in respect of the matter the subject of the appeal. 25 In Connery v Manly Council (1999) 105 LGERA 451 Cowdroy J held, after reviewing the authorities, that s 39(2) enables the Court to grant an approval under s 138 of the Roads Act for the construction of an access road to the applicant's property over an unformed section of the adjoining public road. The judgment of Cowdroy J was followed by Talbot J in Gibson v Mosman Municipal Council (2001) 114 LGERA 416, in holding that s 39(2) enables the Court to grant consent for the rebuilding of existing public stairs and construction of a new driveway in the public road adjacent to the applicant's property. In so holding Talbot J also reviewed the authorities including Claude Neon, Drew, Rovili and McDougall. Talbot J also said (at 424): Although the observations made by Kirby P in McDougall have not been expressly adopted by others, it nevertheless must be accepted that the authorities establish 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, even to the extent that a function and discretion might be properly exercised in one case but not necessarily in another… 26 In the present case, the applicant's proposal is 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. Unlike the case of Claude Neon, it is not a permission to erect a means of lighting for an illuminated sign. Unlike Connery and Gibson, it is not a permission to construct a means of access on the public road to a private property. And unlike those cases it also requires the approval of the Director of Planning. The present case is more like Drew. 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. 27 For completeness, I do not regard Parkes v Byron Shire Council, relied upon by Ms Pearman, as being of any assistance. In that case the question was whether a development application which was illegible or unclear could be rejected by the Court. Clause 51(1) of the EP&A Regulation states that a consent authority may reject a development application of it is illegible or unclear. It was held that on an appeal to the Court, s 39(2) of the Court Act enables the Court to exercise the power of the consent authority to reject a development application pursuant to cl 51(1). That was clearly the exercise of a power which was directly related to the subject of appeal. After all, how could the Court determine an appeal if the development application was illegible or unclear? And the power to reject a development application under cl 51(1) is given to the consent authority, which on an appeal is the Court.

Hemmes Hermitage Pty Limited v City of Sydney Council

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