MacDonald v Mosman Municipal Council

DATE OF JUDGMENT DELIVERY: 09/21/1999

APPLICANT: T S Hale (Barrister) SOLICITORS: Pike Pike & Fenwick LEGAL REPRESENTATIVES: RESPONDENT: P C Tomasetti (Barrister) SOLICITORS: Hill Thomson & Sullivan

JUDGMENT: IN THE LAND AND Matter No: 10166 of 1999 ENVIRONMENT COURT Coram: Lloyd J OF NEW SOUTH WALES Decision date: 21/09/99

This is an appeal under s 97 of the Environmental Planning & Assessment Act 1979 ("the Act") against the imposition of a condition of a development consent granted by the respondent, Mosman Municipal Council ("the Council") for entrance stairs to a house at 6 Coronation Avenue, Mosman. Following the filing of the application in the Court, the applicants filed a notice of motion for the determination of a preliminary question of law by a Judge, or alternatively, for the whole of the appeal to be heard by a Judge. The question of law sought to be raised is whether the imposition of the disputed condition is lawful; that is to say, whether the disputed condition is invalid or ultra vires . On 12 July 1999 Sheahan J made an order that the whole of the appeal be heard by a Judge.

The disputed condition is as follows: 1.2 An Instrument under Section 88B of the Conveyancing Act generally restricting any further development south of the proposed access steps and landing is to be registered. The name of the person empowered to vary or modify this restriction is Mosman Municipal Council. The applicant must meet Council's costs in the preparation of this instrument.

On 5 August 1997 the Council granted development consent for a dwelling house at 6 Coronation Avenue. On 16 October 1997 the Council granted building approval for the dwelling house. The plans which are the subject of the development consent showed an elevated walkway from Coronation Avenue to the upper floor of the proposed dwelling house as being deleted. The plans which are the subject of the building approval likewise show the same elevated walkway with the notation " deleted " across the walkway. The development consent had been granted after several meetings between the adjoining neighbours (the owners of Nos 4 and 8 Coronation Avenue) and the Council's staff which resulted in the neighbours' acceptance of the plans but with the deletion of the elevated entry structure. It seems that the construction of the dwelling house involved a number of departures from the standards required by the Council's residential development control plan, which the neighbours were prepared to accept provided the elevated walkway was deleted.

After the applicant commenced construction of the dwelling house he made a further development application for an elevated walkway from Coronation Avenue to the upper level of the dwelling. The Council refused its consent to the development application and the applicant appealed to the Court under s 97 of the Act. The appeal was heard by Commissioner Hussey who dismissed the appeal and refused development consent. In dismissing the appeal the Commissioner noted the previous concessions made by the adjoining owners to the departures from the residential development control plan on the understanding that the elevated walkway would be deleted. Commissioner Hussey was prepared to give considerable weight to the effect of this understanding. The applicants had taken advantage of an approval which incorporated extensive concessions by way of departures from the residential development control plan and which impacted adversely on the adjoining properties, on the understanding that the elevated walkway would be deleted. The Commissioner dismissed the appeal on the grounds that the elevated walkway which was the subject of the appeal was now proposed in disregard of the understanding and which, in any event, was unsatisfactory in that it was too bulky and imposed a high degree of intrusion on the neighbouring properties in terms of privacy and amenity. The Commissioner went on to state, however, that other design options were available to the applicant.

The present proposal is another design option indicated by Commissioner Hussey as being available. It provides access to the upper level of the new dwelling house by way of a porch and stairs to ground level. It seems that, in view of the history described in paragraphs 3 and 4 above, the Council sought to impose the disputed conditions to put prospective purchasers of 6 Coronation Avenue on notice that they could not automatically expect to be able to erect any substantial structure between the southern side of the dwelling house and Coronation Avenue.

Mr Tomasetti relies upon Doran Developments Pty Ltd v Newcastle City Council (1982) 13 APA 436 in support of the condition. That was a decision of Bignold J when he was the Senior Technical & Conciliation Assessor of the Court. In that case Bignold J referred to the legitimacy of the respondent Council's attempt to hold the applicant to an arrangement which had been made leading up to and surrounding the grant of a development consent. Bignold J held (at 449) that there is " the legitimate public interest in the exercise of development control powers of maintaining the integrity and efficacy of ' bargains ' conferring public benefits by virtue of planning gain entered into by planning authorities and applicants for development consents ". In Mr Tomasetti's submission, so also in the present case the condition should be imposed to maintain the integrity and efficacy of the agreement reached with the neighbours, under which the departures from the Council's residential development control plans were to be permitted provided that there was no elevated walkway between the house and Coronation Avenue.

There has been a number of cases in the Court which have raised for consideration the imposition of conditions requiring the registration of restrictions as to user under the Conveyancing Act . In S Y Holdings Pty Ltd v Warringah Shire Council (15 April 1981, unreported), another decision of Bignold J when he was the Senior Technical and Conciliation Assessor of the Court, the Council had sought to impose a condition requiring the applicant for development consent to consent to the creation, pursuant to s 88E of the Conveyancing Act 1919, of a restriction as to user of the subject land by limiting the use of the existing cottage on the land to purposes ancillary to the use of the new dwelling and limiting occupation of the existing dwelling to persons employed by the owner of the land in and about the care and maintenance of the land and forbidding subdivision of the land. The Senior Assessor said: As a matter of principle the Court is not favourably disposed to the view that restrictions on development operating by virtue of the Environmental Planning & Assessment Act 1979 or action taken thereunder (eg the imposition of conditions on the grant of development consent) should be, or need to be, supplemented or reinforced by action taken pursuant to the Conveyancing Act 1919 to create binding restrictions on user.

In the circumstances of the particular case before the Court, the Court is satisfied that the decision of the Court in relation to the use of the existing cottage can be satisfactorily secured by the implementation and enforcement of the law now contained in the Environmental Planning & Assessment Act 1979 and the integrity of that decision does not require reinforcement in the manner contended for by the respondent.

The order of the Court, in allowing the appeal, included the imposition of a condition limiting the use of the existing cottage to " purposes ordinarily incidental to the use and enjoyment of the approved new dwelling or to the use of the subject land for agriculture ". The applicant was not required to create any restriction of user under s 88E of the Conveyancing Act .

In Carr v Goulburn City Council (Cripps J, 21 June 1983, unreported) the applicant sought to subdivide his land. The Council refused his application because it was not satisfied that the allotments were intended to be used for the purpose of agriculture as required under the relevant environmental planning instrument. The Council sought, as an alternative to a refusal of the application in the event that the appeal was allowed, to impose a restrictive covenant on each resulting allotment to provide " that no dwelling house be erected thereon without the consent of the Council and unless ancillary or subsidiary to the use of the lots for agriculture " and that the covenant provide that the Council's consent be required to any relief, variation or modification thereof. Cripps J said (at 7): I do not propose to impose these conditions. Condition 1 merely repeats cl. 28 and the purpose of it is, presumably, to warn prospective purchasers of the existence of that clause. Although there is provision for modification of the covenant with the Council's consent, the condition requires that a restrictive covenant be placed on each lot notwithstanding that, in the future, the ordinance may be amended. In my opinion, it is not appropriate to impose such conditions.

Lean Lackenby and Hayward Pty Ltd v Wollondilly Shire Council (20 July 1994, unreported) is another decision of Bignold J when he was the Senior Technical & Conciliation Assessor. The applicants, on behalf of the landowner, had sought to subdivide rural land in order to provide accommodation for rural workers who were employed on the estate. The Council approved the application subject to three conditions. The condition in dispute required the owners to execute a restriction on user pursuant to s 88E of the Conveyancing Act , to be registered on the title, in respect of the three concessional lots forbiding their use " for any purpose other than the purpose of agriculture ". The Council's draft local environmental plan provided that dwelling houses on agricultural allotments could be erected only where the use of the house was ancillary and subsidiary to the development of that allotment for the purposes of agriculture. After referring to the judgment of Cripps J in Carr v Goulburn City Council , the Senior Assessor (as he then was) said: The Court is of this opinion notwithstanding the other attempted practical justification advanced by the Respondent for its policy namely the difficulties encountered by the Respondent in enforcing its planning controls by virtue of its small planning staff (3) and vast geography (1,000 square miles). These severe practical problems cannot justify what if practised liberally could amount to an abdication of planning responsibility, by virtue of an excessive reliance on land title registrations.

The Senior Assessor concluded that there was no justification for imposing a condition limiting future use of the allotments by way of a registered restriction as to user. A condition giving effect to the draft local environmental plan was substituted.

Willoughby Municipal Council v Huxley Homes Pty Ltd (Stein J, 16 November 1989, unreported) was an appeal against the decision of an assessor who granted approval to a building application. There had previously been a subdivision approval of the subject land which contained a condition in the following terms: In the interest of the equitable owner of the lots fronting Neridah Street and in particular to preserve the amenity of the area a suitable covenant is to be placed on the lots fronting Bertram Street in favour of the lots fronting Neridah Street restricting any building to be erected thereon to single storey construction.

An instrument under s 88B of the Conveyancing Act creating, inter alia , a restriction on user which conformed to the condition was duly registered.

In allowing the appeal and granting building approval the assessor included the following order: ... and insofar as the consent of the Council is required for a release or variation of the restriction as to user preventing a two-storey dwelling on the subject land, that consent is hereby given for the purpose of permitting the erection of the approved dwelling.

The Council submitted that the Assessor had erred in law because the Court had no power to make such an order .

Stein J said as to the condition of the subdivision approval: I have severe doubts as to the validity of the condition. In my opinion it may well be ultra vires of the Council's authority.

The abovementioned statement of Stein J must be regarded as obiter , because his Honour was not concerned with an appeal against the imposition of the condition. Stein J held that the Council, as an incident to the consideration of the building application, has the power to release the restriction on user. The power of the Council falls to the Court under s 39(2) of the Land & Environment Court Act 1979. That section provides: 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 .

Stein J held that since the Court can exercise the Council's power to release the restriction as an incident to the power to grant or refuse the building application, the Assessor had made no error of law.

I am prepared in this case to follow and apply the principles explained in the abovementioned cases. I am not satisfied that the power of the Council to either grant or withhold development consent for the erection of any further or additional structure on the southern side of the applicant's dwelling house needs to be reinforced in the manner contended for by the Council. The Court has not, in the past, been favourably disposed towards conditions requiring registered restrictions as to user. In particular, Cripps J in Carr v Goulburn City Council held that it was not appropriate to impose such a condition. The abovementioned cases show that such a condition is neither necessary nor generally appropriate. I agree. In the present case, on a consideration of the merits, there is nothing in the present case that takes the matter outside those principles. The condition will not be imposed.

Mr T S Hale, who appears for the applicant, submits that the condition is ultra vires and that the Court should so find. As noted above, Stein J in Willoughby Municipal Council v Huxley Homes Pty Ltd was inclined to doubt the validity of such a condition. In view of my decision to delete the condition on the merits, however, I do not need to determine the question of its validity. The resolution of that question can await a more suitable vehicle than the present case, in which any finding by me would be only obiter .

Accordingly the formal orders of the Court are: 1. The appeal is allowed.

2. Development consent is granted to development application No 8.1988.652.1 in the form of and subject to the conditions set out in Annexure "A" to the affidavit of Vasili Conomos sworn 18 June 1999, other than condition 1.2 which is deleted.

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