J & J O'Brien Pty Ltd v South Sydney City Council

J & J O'Brien Pty Ltd v South Sydney City Council - [2002] NSWCA 259 - NSWCA 2002 case summary — Zoe

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Facts 4 The Marlborough Hotel is located within a heritage conservation area under the South Sydney Local Environmental Plan 1998 (the LEP). The ground floor street frontage of the hotel was clad in ceramic tiles which had existed since the construction of the hotel in 1940. Some of the tiles had become damaged over time and in 1998 the appellant decided to renovate the façade. The appellant was informed by the Council that since the hotel was located in a heritage conservation area, development consent would be required. 5 The appellant submitted a development application to the Council on 5 May 2000 seeking approval for the removal of tiles from the existing façade and to their replacement with new tiles. The application stated that the new tiles would match the pattern and tile dimensions of the existing tiles but the colours would differ from the original. A Statement of Environmental Effects prepared on behalf of the appellant stated that: 'The new tiles will match the dimensions of the original and the details of skirting course tiles and main body with the thin banding will be repeated'. 6 The Council granted consent to the development application on 30 May 2000 subject to conditions. Unsurprisingly, one of the conditions (No 3) provided that the 'new tiling is to replicate the pattern coursing, details and proportions of the original tiling'. 7 I say 'unsurprisingly' because the conditions echoed the appellant's documentation in support of the development application. 8 However, it seems that the appellant may have encountered difficulties in obtaining replacement tiles of the same size as those to be removed. The existing tiles were 150 mm by 300 mm. In a letter to the Council dated 28 June 2000 the appellant indicated that replacement tiles in the same dimensions as the existing tiles were not available. However, a larger tile (300 mm x 300 mm) was available. Council treated the appellant's letter as an application to amend the development consent. 9 An inspection of the hotel on 18 July 2000 revealed that all of the tiles had been removed from the façade. On 24 July 2000 the appellant wrote to the Council stating unilaterally that the re-tiling would take place using 300 mm by 300 mm tiles. On 27 July 2000 the Council indicated that the appellant's proposal was unacceptable. On the next day Council officers warned the appellant's representative, Mr Crawley, not to undertake the re-tiling with tiles of the wrong dimension. Mr Crawley indicated that the re-tiling would proceed. 10 On 10 August 2000 a committee of Council recommended that the application to amend the development consent be refused. Council refused the amendment application on 16 August 2000 and notified the appellant. The appellant did not appeal from this refusal. Neither did it appeal from any condition imposed on the development consent of 30 May 2000, in particular Condition 3. 11 The appellant went ahead with the re-tiling using 300 mm by 300 mm tiles, that is, tiles of a dimension in breach of Condition 3.

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Dear Sir/Madam You being the owner in respect of the property at abovementioned premises are ordered by South Sydney Council to comply with undermentioned item within 21 days after the service of this Order upon you as (a) The tiles on the front elevation of the Marlborough Hotel, a prominent building within a Heritage Conservation Area, are installed without development consent and should be removed as the tile size is inappropriate. The square tiles will destroy the horizontality of the façade and the pattern and type of tiling on front elevation of the hotel does not reflect the interwar character of the building. (b) Condition No 3 of Development Consent dated 30 May 2000 is not being complied with. You are ordered to:- 1. Remove the unauthorised 300 x 300 tiles from the front elevation; 2. Comply with condition No 3 of the Development Consent dated 30 May 2000. 13 The response of the appellant was to say that the re-tiling was completed. Moreover, the appellant contended that the development application and consent was unnecessary 'and we do not rely on it'. 14 Thereafter the appellant commenced the Class 4 proceedings in the Land and Environment Court seeking a declaration that the order of the Council dated 21 September 2000 was void and a declaration that the tiling of the façade of the hotel did not require development consent. The appellant also launched a Class 1 merit appeal against the order. The Judgment 15 In the Land and Environment Court Cowdroy J found that the re-tiling required development consent since it constituted the 'carrying out of a work' within the meaning of s 4 of the Environmental Planning and Assessment Act 1979 (the Act). He held that the order was valid. His Honour dismissed the Class 4 proceedings. 16 In the Class 1 proceedings, his Honour reviewed the expert evidence relating to the heritage significance of the hotel and its tiling. He said: The tiles as affixed are 300 mm x 300 mm; the coursing is different; and the details and proportions differ. A decorative band of tiles has been inserted in which tiles have been affixed diagonally which bears no relation to the original tiling. As a consequence, the appearance of the hotel is radically altered from its original state. 17 His Honour said that he was not satisfied that the tiles originally proposed by the appellant in its development application were unprocurable. Indeed, the tiles had been ordered by the appellant prior to 18 July 2000. His Honour considered that the appellant had apparently decided to proceed with tiles of its own selection despite Council's protestations. 18 Cowdroy J concluded from photographs of the previous 'Art deco' appearance of the hotel that it was apparent that the appearance had been significantly altered. He dismissed the Class 1 application.

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Consideration 34 In my opinion, the reference in s 75(1) of the unamended Act to 'for the purposes of Part 4' means no more than the development control mechanisms in that Part were applicable, except where the subject matter was not amenable to those controls. It must be kept steadily in mind that when the LEP was made, this section was in the Act. It must be taken to have informed the meaning and content of the instrument. It is difficult to understand how s 75(1) could not have affected the meaning of 'development' within s 4 when 'development' is pivotal to the operation of Part 4 of the Act. 35 It should be noted in passing that the appellant does not submit that cl 23 of the LEP is ultra vires. Rather, Mr Hale submits that cl 23 regulates 'development' within its own terms. He submits however that parts of cl 23 may be ineffective so as to require development consent. In my opinion, the submission gives no recognition to s 75(1) or subpara (f) of s 26 of the unamended Act. 36 The transposition of the words in s 75(1) of the unamended Act to subpara (f) of the definition of development in the amended Act did not, in my view, alter the outcome of cl 23 of the LEP. 37 The parties are in dispute as to whether the LEP operates in an ambulatory fashion. The appellant submits that the words in the instrument must have the meaning that they were intended to have at the time the LEP was made. It is submitted that to hold otherwise would defeat the consultation and public participation processes inherent in the making of the LEP. Those provisions in the Act would, in effect, be bypassed. 38 There are two answers to this proposition. First, while the public consultation process is important, the process is not, as Mr Ayling notes, sacrosanct. For example, an LEP may be substantially affected by a decision of the Minister. Moreover, State Environmental Planning Policies, the highest form of planning instruments, do not have to be preceded by any public participation. 39 The second answer is one of manifest inconvenience. If the appellant's submission is correct, then in order to facilitate the amendments made to the Act, many hundreds of LEPs would have to be amended. 40 However, because of the view I take as to the effect of s 75(1) of the unamended Act and subpara (f) of the definition of development in the amended Act, it is unnecessary to determine the ambulatory nature of the LEP and the application of Birch v Allen (1942) 65 CLR 621.

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55 Mr Hale accepts that the appeal is an appeal de novo. However, he submits that it is confined to the circumstances which gave rise to the giving of the order in the first place. He submits that it cannot be used to empower the court to by-pass the requirements of ss 121D to S of the Act and, in effect, to serve another order altogether. In other words, he submits that the hearing of the appeal is confined to the reasons articulated in the order. 56 The submission cannot be accepted. It derives no support from the words of s 121ZK itself. There is no doubt that the appeal is a hearing de novo. That is the way in which it proceeded before Cowdroy J and the parties called evidence from expert witnesses who were not before the Council. 57 In my opinion, there is no reason to confine the appeal to the reasons articulated in the order in the first place. The width of the powers of the court in s 121ZK(4) belie the submission of the appellant. The hearing of the appeal is not confined in the manner suggested by the appellant. 58 The appellant further submits that the trial judge's discretion miscarried in that his consideration extended beyond the reason for the giving of the order in the first place. In view of what I have just said, this submission has no legs. Further, I cannot see that his Honour took into account matters which were outside his purview, given the nature of the appeal and the powers in the court set forth in s 121ZK(4). Nor am I able to understand how it can be said that he failed to exercise his discretion. He clearly did. 59 Lastly, it is submitted that his Honour erred in finding that the evidence of Ms Van Aierop suggested that the required tiles were readily available at the time, in that it was a finding not open on the evidence. However, this misstates his Honour's finding, which was that he was 'not satisfied that the tiles … were unobtainable'. This refusal to find the fact was available on the evidence and cannot be regarded as an error of law. 60 The appeal against the dismissal of the Class 1 proceedings should also be dismissed.

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