respondent. Both proceedings dismissed. In 2018/00289697 (civil enforcement) the proceedings are dismissed and, unless an application is made by notice of motion before 12 June 2020, the applicants are to pay...
Key principles
The rooftop area designated as a 'roof garden' in the 1984 development consent and landscaping plan was not "designed for use by the occupants of the building" within the meaning...
A planning authority may impose conditions under s 80A of the EPA Act that restrict or regulate use, provided the conditions have a proper planning purpose, fairly and reasonably...
No duty of procedural fairness required Council to consult the applicants before imposing the challenged conditions in circumstances where the practical effect of the consent did...
Issues before the court
Whether the 1984 development consent and building permit (incorporating Ordinance 70) required the Owners Corporation to install a protective...
Whether Council's imposition of conditions C4, A4, G3 and I1 on Development Consent 266/17 was invalid because the conditions did not fairly and...
Whether the applicants were denied procedural fairness by Council because they were not consulted before imposition of the challenged conditions...
Plain English Summary
Robson J dismissed both the applicants' enforcement claim and their judicial review challenge. The Court found the 1984 consent and landscaping plans show the roof garden was intended as a vegetated, non-trafficable feature separated from the terrace by a concrete upstand and handrail, and therefore not "designed for use by the occupants" so Ordinance 70 did not require a perimeter balustrade there. Separately, Council's 2017 consent conditions limiting new balustrades to the terrace were lawful under the Newbury/Wednesbury tests, addressed planning concerns (privacy, safety, amenity), and did not breach any procedural fairness obligation to consult the applicants.
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Cited legislation
7 cited instruments linked from this judgment.
Deep Dive
1,979 words · generated 25/07/2026
What happened
This dispute involved two consolidated Land and Environment Court proceedings brought by the owners of Unit 3 (William and Olivia Northcott). The applicants sought (a) civil enforcement orders requiring the Owners - Strata Plan No 31143 (the Owners Corporation) to install a protective balustrade around the perimeter edge of a landscaped rooftop area described in the 1984 consent and plans as a "roof garden" (proceeding 2018/00289697), and (b) judicial review of North Sydney Council's Development Consent No 266/17 (10 October 2017) which approved glass balustrades but limited them to the tiled terrace and stipulated that the roof garden remain landscaped and non-trafficable (proceeding 2018/00358115). Both matters were heard together and Robson J dismissed both summonses, ordering costs against the applicants unless otherwise applied for (orders recorded at the end of the judgment).
Key procedural facts:
1984: Development Consent No 1285/83 (15 May 1984) and Building Permit No 329/84 (13 August 1984) were issued referencing plans (WD02-WD06) and requiring compliance with Ordinance 70 (the Local Government Ordinance then in force) (see Background and cl 53.9 reproduced at [13] in the judgment).
1985: A s 102 modification was approved (15 May 1985) increasing terrace area "to be used by the occupants" and reducing landscaped roof garden ([17]).
2017: Owners Corporation lodged DA (7 August 2017) proposing frameless glass balustrades around the roof gardens/terraces; Council granted consent on 10 October 2017 but imposed conditions (C4, A4, G3, I1) confining balustrades to the terrace and requiring the roof garden be maintained as landscaping and non-trafficable ([27]).
2018–2020: Applicants pursued enforcement and judicial review; hearing occurred August 2019 and judgment delivered 29 May 2020.
Why the court decided this way
The decision turns on two interrelated legal strands: (1) construction of the 1984 consent (and the effect of the 1984 Building Permit and landscaping plan) to decide whether Ordinance 70 required a perimeter balustrade for the roof garden; and (2) administrative law principles testing the validity of Council's 2017 consent conditions (Newbury/Wednesbury) and the existence of any duty of procedural fairness to consult.
Construction of the 1984 consent and application of Ordinance 70
Ordinance 70 required protective balustrades on roofs "designed for use by the occupants of the building" where the side is not bounded by a wall and more than 1 metre above adjoining level (text quoted at [13]). The legal question was whether the roof garden was "designed for use by the occupants".
Robson J emphasised that answering this requires construing the 1984 consent and incorporated plans, bearing in mind the consent's enduring public-document character (citing the principles summarised from Canny and other authorities) and using admissible extrinsic evidence only to identify physical things or places referred to in the consent ([60]-[64] quoted, applied in Consideration).
The Court examined the 1984 architectural and landscape plans (WD02-WD06 and WD06 landscaping plan), noting essential features: terraces surrounded by handrail on a concrete upstand; the roof garden bounded by a reinforced concrete upstand, higher soil levels, continuous planting and no paths or openings; and the 1985 modification expressly increasing terraces "to be used by the occupants" by reducing the landscaped roof garden ([16]-[18]).
From these physical and documentary indicators the Court inferred the handrail on the upstand was intended to prevent access to the roof garden and that the roof garden was designed as a planted, non-trafficable area. The lack of any gate or path from the terrace to the roof garden, the planned dense planting, and the cross-section elevations were significant factual indicators ([12]-[15], [18]).
Robson J rejected the applicants' focus on later "trafficability"/occupational-safety arguments and their expert evidence equating maintenance access with design for occupation; the Court drew a clear distinction between occasional maintenance access and a design intent for occupant use ([18], [23-24]).
Conclusion on Ordinance 70: the roof garden was not "designed for use by the occupants" and accordingly Ordinance 70 did not require a perimeter balustrade there. That disposes of the enforcement claim.
Judicial review of the 2017 consent conditions: Newbury/Wednesbury test and procedural fairness
Applicants argued the conditions (C4, A4, G3, I1) (i) unlawfully regulated use of private land beyond the 2017 proposal for works and thus failed Newbury's second limb (conditions must fairly and reasonably relate to the permitted development), and (ii) were unreasonable in the Wednesbury sense; they also argued procedural unfairness because they were not consulted and the conditions affected proprietary interests.
Robson J applied the Newbury framework (condition must have a planning purpose; must relate to the permitted development; and must be reasonable in the Wednesbury sense) and noted s 80A of the EPA Act authorised the imposition of conditions addressing s 79C matters ([80A] reproduced in the judgment).
On the facts, Council had reasonably assessed that removing the handrail and replacing it with balustrades around the roof garden would increase the intensity and accessibility of the roof garden (and concomitant privacy, acoustic, and safety impacts); the imposed conditions curtailed that increase by confining the balustrade to the terrace perimeter and maintaining the roof garden as non-trafficable ([3-6] in the Judicial review consideration).
The Court concluded the conditions fairly and reasonably related to the development, served planning purposes (privacy, safety, amenity) and were a rational exercise of power under s 80A; they were not manifestly unreasonable ([5-9], Manifest unreasonableness analysis).
On procedural fairness, the Court held no implied consultation duty arose: the consent did not materially affect proprietary rights, any council order to effect works would still require lawful authority to enter or obtain consent, and practical safety measures (Owners Corporation resolution for gate and anchor points) meant consequences were not sufficiently serious to trigger an implied duty ([Denial of procedural fairness paras 3-8]).
Overall result: applicants lost both claims.
Before and after state of the law
Before this decision:
Authority required courts to construe development consents as enduring public documents; Newbury/Wednesbury principles governed validity of planning conditions; and the interpretation of building ordinances (like Ordinance 70) depended on the phraseology such as "designed for use by occupants".
After this decision:
The judgment reinforces that interpretation of historical consents and incorporated plans is inherently fact‑sensitive and that physical plan features (upstands, handrails, absence of accessways, landscaping detail) are vital evidence of intended use.
It confirms that planning authorities may impose conditions on works that have predictable consequences for intensity and nature of use, provided conditions relate to planning matters and are not manifestly unreasonable.
It underscores the high threshold for implying a duty of consultation where statutory processes do not expressly require it; consequences must be sufficiently grave to warrant such implication.
Practical takeaways:
When assessing historical consents, pay careful attention to contemporaneous plans and modifications; wording like "to be used by the occupants" in a later modification is powerful evidence of intended allocation of use.
A DA for physical works that would materially alter accessibility or intensity of use invites Council to consider and lawfully condition the permitted use as part of its s 79C assessment.
Key passages with plain-English translation
"I consider that it can be inferred that the handrail over the concrete upstand was intended to prevent access to the roof garden from the terrace..." (finding paragraph)
Plain English: The design feature (handrail on a raised concrete edge) was meant to stop people going from the terrace into the planted roof garden; thus the garden was not meant to be used like a balcony or backyard.
"The notice dated 15 May 1985 ... 'To increase the area of the roof terraces ... to be used by the occupants ... by reducing the area of the landscaped roof garden'." (use of the modification wording)
Plain English: The 1985 approval specifically made terraces larger for occupant use and reduced the planted rooftop area, confirming the garden was not intended for general use.
"The imposition of the conditions confining the use that otherwise would have been extended, was fairly and reasonably related to the development..." (planning condition validity)
Plain English: Council could lawfully limit the new balustrade to the terrace because the change in physical arrangement would have otherwise increased the amount of space people could use, and that potential increase justified the conditions.
"Taking a practical and reasonable view, the fact that on occasion there may be need for maintenance of the landscaped area does not imply that the area has been designed for the general use of the occupants..." (maintenance vs use)
Plain English: Just because gardeners might need occasional access does not mean the place was planned as somewhere residents could hang out.
What fact patterns trigger this precedent
Cases where an historical development consent and building permit reference an old building ordinance that requires a safety element if an area was "designed for use by the occupants" and the factual question is whether the area was so designed.
Situations where a DA for physical works (balustrades, removal of barriers) will alter accessibility or intensity of use of an adjoining private or common space, and the council imposes conditions to manage privacy, amenity or safety impacts.
Disputes where applicants claim a duty to consult before conditions are imposed because conditions affect proprietary interests; this judgment is relevant where the authority’s decision does not materially change proprietary rights or have sufficiently serious consequences.
In short: where plans show a physical separation (concrete upstand, handrail, landscaping) and a later modification explicitly reallocates area "to be used by occupants", expect courts to find no ordinance-triggered safety obligation for the landscaped area.
How later courts have treated it
This judgment is a 2020 Land and Environment Court decision applying established NSW planning and administrative law principles (Newbury, Wednesbury, Li, Temwood). Subsequent courts will likely treat it as an application of those principles to facts where intent is drawn from contemporaneous plans and modifications. It is not a novel legal proposition but a careful application: later courts will cite it when the key issue is interpreting "designed for use" in historical consents and when testing validity of conditions that limit usage arising from physical changes. The decision reinforces the evidential importance of plans and modifications and underscores the high bar for procedural-fairness-based challenges to planning conditions.
Still-open questions
Margin cases on what level of access for maintenance converts an area to being "designed for use": Robson J drew a line between occasional maintenance access and design for occupancy, but the precise threshold can be evidentially contestable where plans show limited hard-surfaced paths or intermittent stepping stones.
Interaction between modern building standards and historical consents: the Court declined to order modern compliance where historical consent controlled; tension remains about when and how modern safety codes can be enforced against legacy designs, particularly where safety upgrades may be required under separate statutory maintenance or workplace health and safety regimes.
Extent to which a council, when authorising works on common property, may lawfully impose conditions that have incidental impacts on private lots: this judgment permits such conditions if they relate to s 79C matters, but the boundary between incidental regulation and impermissible regulation of private use will require further fact-specific adjudication.
The scope for implied consultation duties under planning statutes: Robson J declined to imply a consultation requirement in these circumstances; whether different factual matrices (e.g., clearer, immediate deprivation of property use without alternative remedies) will generate such a duty remains an open question for future cases.
Concluding practical note for practitioners: carefully assemble and emphasise contemporaneous plans, design sections, and modification notices when construing historical consents. When advising owners or strata bodies, analyse whether proposed works will materially extend accessibility or intensity of use because that is the trigger point at which councils can lawfully impose conditions directed at privacy, safety and amenity.
Catchwords
ENVIRONMENT AND PLANNING - Consent - Conditions - Whether installation of a protective balustrade around a roof garden required - Whether area designed for use by occupants
Judgment (26 paragraphs)
[1]
Olivia Gillo Northcott (Second Applicant)
The Owners - Strata Plan No 31143 (First Respondent)
North Sydney Council (Second Respondent)
Representation: Counsel:
In proceedings 2018/00289697
S Nash (Applicants)
A M Pickles SC with M Foran (Respondent)
[2]
In proceedings 2018/00358115
S Nash (Applicants)
Submitting Appearance (First Respondent)
T To (Second Respondent)
[3]
Solicitors:
Lawyers Chambers on Riley Pty Ltd (First and Second Applicants)
Strata Specialist Lawyers (First Respondent)
Sparke Helmore (Second Respondent)
File Number(s): 2018/00289697; 2018/00358115
Publication restriction: Nil
[4]
Judgment
Before the Court are two separate proceedings commenced by William and Olivia Northcott ('applicants') which relate to their concerns regarding the current absence of a protective balustrade around a landscaped rooftop area (being a "roof garden") in one of five two-storey townhouses/units within a strata-titled building in Neutral Bay.
Proceedings 2018/00289697 are civil enforcement proceedings in which the applicants seek an order requiring the respondent, being the Owners - Strata Plan No 31143 ('Owners Corporation'), to erect a protective balustrade or guard along the rooftop edge of the applicants' roof garden, being part of Lot 3 ('Unit 3') in Strata Plan No 31143. The applicants claim that by force of Building Permit No 329/84 dated 13 August 1984 ('1984 Building Permit') issued by North Sydney Council ('Council'), the Owners Corporation, as the owner of the common property comprised in Strata Plan No 31143, is required to install a protective balustrade on the common property rooftop edge which encloses the roof garden.
Proceedings 2018/00358115 are judicial review proceedings in which the applicants seek orders invalidating Development Consent 266/17 (or certain conditions attached thereto) granted by Council on 10 October 2017 in favour of the Owners Corporation for works comprising the provision of a balustrade relating to, but not surrounding, the roof garden ('2017 Consent').
For the reasons that follow, I have determined that the applicants are not entitled to the relief sought in either proceedings and that each summons should be dismissed.
[5]
Introduction
The Owners Corporation is a respondent party in both the civil enforcement proceedings and the judicial review proceedings, whereas Council is only a respondent in the judicial review proceedings. The Owners Corporation has entered a submitting appearance in the judicial review proceedings. At the request of the parties, and in accordance with an order sought in the judicial review proceedings, the hearing of both matters proceeded concurrently.
Mr S Nash of counsel appears for the applicants, Mr A M Pickles of senior counsel with Mr M Foran of counsel appears for the Owners Corporation, and Mr T To of counsel appears for Council. With the agreement of the parties and subject to some limited concerns as to relevance, the evidence in each proceeding became the evidence in the other.
[6]
Background
An understanding of the background facts, including the historical planning and regulatory framework and various development approvals in relation to the building, provides the necessary context to consider the issues that arise in each proceedings. The factual narrative, but not the legal implications thereof, in this section is mostly undisputed.
Since November 2005, the applicants have been the registered proprietors of Unit 3, being one of the five two-storey townhouses/units within the building situated at 24 Harriette Street (also known as 12 Raymond Road), Neutral Bay ('Building'). The Owners Corporation is a body corporate constituted by the owners of each of the five lots in the Building, pursuant to s 8 of the Strata Schemes Management Act 2015 (NSW).
Development Consent No 1285/83 for the Building was issued by Council on 15 May 1984 ('1984 Consent') and the notice issued pursuant to (then) s 92 of the Environmental Planning and Assessment Act 1979 (NSW) ('EPA Act') provided:
" …
The Development Application has been determined by granting of consent subject to the conditions, D1-D46, attached to this notice.
The reason for the imposition of the conditions is to protect the existing and likely future amenity of the neighbourhood.
ENDORSEMENT OF DATE OF CONSENT: 15th May, 1984
The consent mentioned herein refers to Drawing Nos. 8316 DA01-05 dated December 1983, drawn by Peter Duffield & Associates and received by the Council on 28th December, 1983.
This consent is NOT a BUILDING APPROVAL under Part XI of the Local Government Act, 1919, and building approval is REQUIRED prior to the commencement of any work on site.
… "
Relevant to the matters presently in issue, the 1984 Consent contained the following conditions:
"BUILDING APPLICATION:
D1. A formal Building Application accompanied by plans and specifications SHALL BE submitted in accordance with Part XI of the Local Government Act and Ordinances made thereunder and the specific conditions of this consent.
...
LANDSCAPING:
D22. The unbuilt-on portion of the allotment together with all roofs over basement parking and the like SHALL BE landscaped and/or paved to a plan and specification approved by Council's Director of Development.
D23. Planting over concrete slabs of basements, roofs, etc. SHALL have a minimum depth of soil of 0.5m for proposed lawns or gardens and 1.0m for shrubs or trees.
...
D30. The roof gardens are to be constructed to the reasonable satisfaction of the Director of Development. Full landscape and construction details of the roof gardens are to [sic] provided with the building application.
..."
[7]
2017 Consent
On 11 January 2017, the Owners Corporation resolved to make a development application in relation to the installation of balustrades on the common property rooftop edge surrounding the roof garden of Units 2 and 3. On 7 August 2017, the Owners Corporation lodged a development application with Council seeking development consent for the "construction of glass balustrades on the common property walls surrounding the existing roof gardens and terraces of units 2 and 3" ('2017 Proposal').
The 2017 Proposal was accompanied by a statement of environmental effects dated June 2017 prepared by Sarah McNeilly, town planner, and a set of architectural plans. The existing handrail/balustrade separating the terrace and the roof garden was to be removed and a one metre frameless glass balustrade installed around the whole of the roof garden including the end of the terrace. The location of the proposed one metre balustrade was similar to that which the applicants contend in the civil enforcement proceedings was required under Ordinance 70.
During Council's consideration of the 2017 Proposal and prior to the granting of development consent, Council communicated with Sarah McNeilly, the town planner representing the Owners Corporation, who noted that she "[understood] that Council is happy to approve the application subject to the relocation of the balustrades to the existing location" and sought confirmation "that Council remain happy to condition that "the balustrade be located on the perimeter of the existing balcony…"".
On 10 October 2017, Council issued the 2017 Consent however Council imposed conditions which required the one metre glass balustrade be installed around the perimeter of the terrace of Units 2 and 3 and not the whole of the roof garden. Council imposed the following four conditions which are the subject of the applicants' challenge in the judicial review proceedings:
"Terms of Consent
A4. Approval is granted for the following works to Unit 2 and Unit 3 tenancies as shown on drawings numbered DA1.00 Issue A, DA2.00 Issue A, DA3.00 Issue A, DA3.01 Issue A, DA3.03 Issue A, dated 04.08.17, drawn by Arch Media Solutions Pty Ltd:
(a) Installation of glass balustrades for existing roof decks within an existing residential flat building.
No approval is granted or implied for the removal of the existing landscaping and/or the use of the landscaped terrace as a terrace for any form of access other than for maintenance purposes.
(Reason: To ensure that the terms of the consent are clear.)
…
Relocation of Glass Balustrades
C4. The glass balustrades may only be installed around the perimeter of the tiled terrace area of Units 2 and Unit 3. The existing Roof Garden for Units 2 and 3 must be maintained as landscaping and be non-trafficable. Plans and specifications complying with this condition must be submitted to the PCA prior to the issue of the construction certificate.
(Reason: To minimise any adverse visual or acoustic privacy impacts for adjoining properties)
…
Compliance with Certain conditions
G3. Prior to the issue of any Occupational Certificate, Condition C4 must be certified as having been implemented on site and complied with.
(Reason: To ensure the development is completed in accordance with the requirements of this consent)
…
I1. Nothing in this consent authorises the removal of the landscaping from the existing roof garden to units 2 and 3. The existing roof garden to units 2 and 3 must remain non-trafficable except for maintenances purposes. No access for any other purpose at any time is permitted.
(Reason: To ensure compliance with the terms of the consent)"
[8]
Anchor Point System
On 30 May 2018, the Owners Corporation resolved by special resolution in a general meeting to "install complaint balustrades around the tiled terraces of Units 2 and 3 as per the [2017 Proposal] determination by [Council] and install compliant securable outward opening gates as part of the balustrades to allow access to the rooftop gardens for maintenance purposes".
At the same meeting, the Owners Corporation also resolved to install an anchor point system for both fall arrest and rope access systems attached to the perimeter walls of the rooftop landscaped garden of Units 2 and 3, to ensure safe access during maintenance of the roof garden and walls ('Anchor Point System').
The Anchor Point System has not yet been installed by the Owners Corporation.
[9]
Evidence
The applicants read the affidavits of William John Northcott sworn 12 April 2019 and 21 May 2019 which collectively annex historical material comprising approximately 675 pages.
Mr Northcott provides extensive detail of his concerns and conduct regarding the lack of a balustrade around the roof garden over a number of years, including the time between 2006 and 2013 when he was Secretary of the Owners Corporation, and thereafter, discussions between interested parties including the various owners of other units; detailed correspondence both from Mr Northcott personally and on behalf of the Owners Corporation to various parties; and details of the various interactions with and between the Owners Corporation and Council. He also provides details of legal advice that the applicants received in relation to obligations and liabilities in relation to the use of the roof garden, and the applicants' attempts to facilitate mediation of various disputes in relation to the manner in which the Owners Corporation was treating the applicants' concerns.
More particularly, the material annexed to Mr Northcott's affidavits included extensive correspondence to and from Council in relation to the applicants' views regarding the use of the roof garden. Council consistently maintained that the roof garden was not a "trafficable area" and that it was a "landscaped area of roof". Extracts from Council's files attached to Mr Northcott's affidavit indicate Council's opinion that the balustrade surrounding the terrace was compliant with the building regulations at the time of construction and that the roof garden was never intended for occupation. Council indicated to Mr Northcott that it had undertaken inspections and that it was the responsibility of the property owners to ensure that the Building is maintained in a safe condition. To this end, Council also sent correspondence to both the applicants and to the Owners Corporation suggesting that upgrading of the existing balustrade around the terrace to meet current safety standards "be considered". Council maintained that a balustrade was not required around the roof garden as that area is not on any delineated pathway to the Building and that public access is not provided. In support, Council provided details of the then equivalent regulations being the Australian Building Codes Board, Building Code of Australia 2014, Volume 1, cll D2.16 (Barriers to prevent falls) and D2.18 (Fixed platforms, walkways, stairways and ladders) ('Building Code').
[10]
Overview
It is clear that the applicants have expressed concerns to many parties including other unit owners, Council officers, and the Owners Corporation itself over many years on their own behalf and on occasions on behalf of the Owners Corporation; obtained numerous quotations for work to be done to the roof garden; made various applications; and attempted to resolve what were otherwise differences in opinion regarding the applicants' views regarding the historical conduct of Council and the Owners Corporation. The applicants' concerns ultimately manifested in the Owners Corporation resolving, in January 2017, to make a development application to Council for the installation of balustrades on the common property rooftop edge surrounding the roof gardens of both Units 2 and 3 in the Building which, but for the approach taken by Council in imposing the conditions of the 2017 Consent the subject of challenge in the associated judicial review proceedings, would have satisfied the applicants' concerns. It is clear from the applicants' evidence that Council has, over the years, expressed concerns in relation to the applicants purported use of the roof garden for purposes other than maintenance and further, that Council, as the relevant regulatory authority, has not issued an order or required compliance with Ordinance 70 or the Building Code of Australia (nor the NCC).
I will deal first with the civil enforcement proceedings before turning to the judicial review proceedings.
[11]
Civil enforcement proceedings
Having regard to the pleadings and the parties agreed list of issues, the issues in the civil enforcement proceedings are confined to whether the roof garden was "designed for use by the occupants of the building", thereby triggering the application of Ordinance 70, and, if so, whether there are any discretionary reasons to decline the relief sought by the applicants.
[12]
Applicants' position
The applicants contend that the 1984 Building Permit designated an area in the approved plans as "roof garden" which, upon the registration of Strata Plan No 31143, became part of the freehold title of Unit 3, such that the roof garden therefore can be lawfully used by the owners and occupiers of Unit 3 from time to time. Further, a specific obligation pursuant to the conditions attached to the 1984 Building Permit that the Building be designed in accordance with Ordinance 70 requires a protective balustrade or guard to be installed around the roof garden as that area was "designed for use by the occupants of the building", and this constitutes an enduring obligation (residing with the Owners Corporation) to build a protective balustrade around that area.
As the roof garden is depicted in the approved plans as a "landscaped area", the applicants submit that regard must be had to the 1984 Permit and the approved landscape plan ("Landscaping Details W.D.06" - Annexure A) under the 1984 Building Permit, which does not require the whole of the area to be landscaped in such a way that it would prevent or limit the occupants to use the area and that the area is in fact is the applicants' "backyard".
The applicants further submit that there was no obligation under the 1984 Building Permit (or the landscape plan) which required the installation of a balustrade between the roof garden and the terrace, such that the roof garden is in no different a category to that of the terrace.
In response to the Owners Corporation's argument that the originally approved plans in the 1984 Consent were modified to reduce the area of the roof garden and increase the size of the terrace, the applicants submit that this fact is not relevant to the question of whether the roof garden was "designed for use".
The applicants further submit that the Owners Corporation confuse or conflate the terms "use" and "trafficability" in circumstances where there is nothing in the 1984 Building Permit (or the landscape plan) which imposes an obligation to keep the roof garden non-trafficable or limits the access to the roof garden for maintenance purposes only.
In the circumstances and, in particular, given the lack of specific quantitative or qualitative limits in the approved plans or any other material indicating the use to which the roof garden can be put, the applicants submit that it necessarily follows that the roof garden was "designed for use" by the occupants of Unit 3 and, as such, Ordinance 70 operated (and continues to operate) to require the installation of a protective balustrade or guard along the roof top edge of the roof garden. Further, because the roof top edge of the roof garden is the common property of the Building and is controlled only by the Owners Corporation, the applicants submit that the Owners Corporation, as beneficiary of the 1984 Building Permit, should be ordered to comply with Ordinance 70 and construct the required balustrade.
[13]
Owners Corporation position
The Owners Corporation denies that the applicants are entitled to any relief and maintain that it is not in breach of any provisions of the 1984 Building Permit. The Owners Corporation primarily submits that the 1984 Building Permit does not require the installation of a protective balustrade or guard along the roof top edge of the applicants' roof garden or that any such building work in that location is required under Ordinance 70 because the "roof top edge" surrounds an area that was not "designed for use of the occupants of the building". Further, the Owners Corporation maintains that, as a matter of discretion, the Court would not grant relief because, first, the roof garden is being used unlawfully (that is, contrary to the development consent), and, second, that any maintenance of the roof garden could be undertaken by use of appropriate safety apparatus and therefore does not require a balustrade as sought by the applicants. In addition, the Owners Corporation points to the significant delay in the applicants seeking relief and the fact that Council has not issued any order for non-compliance with Ordinance 70.
The Owners Corporation submits that there are strong indicators that the roof garden was not "designed for use by the occupants of the building" and therefore was never required to be bounded by a balustrade. Further, the 1984 Consent, as modified in 1985 to extend the terrace, expressly and necessarily imposed a condition relating to the reduction of the roof garden and a consequential increase in the area of the terraces using the words "to be used by the occupants" at [17] above, and the plans accompanying the modification make it clear that the terrace was increased in dimensions. In these circumstances, the Owners Corporation submits that there is a clear inference to be drawn that the roof garden was not to be used by occupants whereas the terrace was to be so used.
The Owners Corporation further submits that the approved plans show a handrail around the terrace while the roof garden was to have only a reinforced concrete upturn, and that it can therefore be inferred that the handrail structure was to prevent access to the roof garden from the terrace such that the roof garden was not intended to be trafficable and used by the occupants. The Owners Corporation further points to the absence of a gate or opening in the handrail and that, in the circumstances, in order to gain access to the roof garden it is necessary for an occupant to climb over the handrail.
[14]
Consideration
Both the applicants and the Owners Corporation approached the primary issue by accepting that, at the relevant time in 1984, Ordinance 70 was in the form set out at [13] above and that whether a protective balustrade or guard was (and remains) required depends to a significant extent on the Court finding that the roof garden was "designed for use by the occupants of the building". Expressed in that way, the issue for determination has an attractive simplicity however I consider that so expressed it conflates the question of appropriate construction of the development consent and the application of Ordinance 70 (and likely its present day equivalent) and it is with that concern that I approach the consideration of the primary, somewhat confined, issue. As such, I consider that the essential issue requires consideration commencing with the original development consent (as modified and incorporating the 1984 Building Permit) to determine what activity was envisaged at that time, and thereafter consideration of the application of Ordinance 70 and the triggering words therein.
The present position is nuanced in that the 1984 Consent (or more particularly the obligations arising from conditions in relation to the manner of use) was granted 35 years ago in circumstances where the regulation imported, being Ordinance 70, is no longer the applicable regulation. Further, there is a question of some nicety as to whether the presently applicable regulatory instrument, agreed between the parties to be the NCC 2019, would dictate a different form (at least in relation to height/size) of handrail/balustrade than that otherwise required under Ordinance 70 be it either around the terrace itself or, as contended by the applicants, around the roof garden.
In determining the "designed for use by the occupants" issue I am conscious that "use" is a protean word and I note the comments of Barrett AJA in Chief Commissioner of State Revenue v Metricon Qld Pty Ltd [2017] NSWCA 11; (2017) 224 LGERA 236 at [45]:
"Decided cases are replete with statements that "use" is a word of variable meaning and that the construction of one statutory provision concerning "use" of land may well be an unreliable guide to the correct construction of another such provision. For that reason, approaches taken in cases about different statutory contexts in which the word "use" is employed with respect to land must be treated with caution. It must nevertheless be accepted that "use", in relation to land, has a core meaning independent of statutory context."
[15]
Discretionary and other matters
Although the Court does not need to consider discretionary matters as detailed submissions were made in relation to discretion, I consider that a significant contributor to the applicants' ongoing concerns has been a misunderstanding of the manner in which the roof garden was able to be used. Although the position of the applicants varied over the years and although they received legal advice as to their respective rights and obligations, I have found that the roof garden should not be (or have been) used for purposes other than maintenance and the like. While no view is expressed in relation to the applicants' conduct apart from noting that it would appear, to the extent that the applicants' have been using the area other than for maintenance purposes, such use was not envisaged nor in accordance with the development consent applying to the land. If I had been of a different opinion, I would have maintained a concern in relation to the delay in seeking the relief now sought relating to work which the applicants contend should have been undertaken 35 years ago.
In relation to concerns regarding the maintenance of the landscaped area and the safety of those involved therein, it is an agreed fact that on 30 May 2018, the Owners Corporation resolved by special resolution, to install an Anchor Point System for both fall and arrest and rope access systems attached to the perimeter walls of the roof gardens of both Units 2 and 3, and that this was undertaken to ensure safe access to those areas during maintenance of the "roof garden areas and walls". The evidence is that the Anchor Point System has not been installed. There was some evidence in the report of Mr Knox that the provision of and use of harnesses and anchor points, while a form of control otherwise permissible, use of "personal protective equipment" should be relied upon only after other forms of eliminating the risk have been found to be not reasonably practical substitutes. While no submissions were received in this regard, it would appear, accepting that the Owners Corporation has resolved that an Anchor Point System is to be installed, that any such system would be installed in accordance with the appropriate regulations.
Finally, to the extent that there is a dispute in relation to the balustrade/handrail presently surrounding the terrace, and noting that there are competing opinions as to whether the balustrade in its present position complied with that which was required by the 1984 Building Permit, I prefer the evidence suggesting that the balustrade that was built at the time was compliant (and Council's conduct and records would appear to confirm this view). While it is clear that the requirements under the NCC 2019 would necessitate a slightly higher (and differently configured) balustrade to ensure the safe use of the terrace, it is not within the Court's power in these proceedings, given my findings above, that such conduct be ordered. Further, there is evidence before the Court, subject to findings in the associated judicial review proceedings to which I shall shortly come, that Council has given consent for a new balustrade around the terrace apparently complying with the current NCC 2019 requirements which, but for the current proceedings, may well have been implemented.
[16]
Conclusion
For the reasons above, as I do not consider that the Owners Corporation is in breach of the 1984 Consent (incorporating the 1984 Building Permit), the applicants are not entitled to the relief sought in the summons and the proceedings are therefore dismissed.
The general rule in Class 4 proceedings is that costs follow the event: Uniform Civil Procedure Rules 2005 (NSW) r 42.1. However, as there may be other circumstances in relation to costs which have not been the subject of evidence or submissions, unless an application is made by notice of motion before 12 June 2020, I will order that the applicants pay the Owners Corporation's costs of the proceedings.
I note that my determination in relation to these proceedings has some effect upon, but is not determinative of, the separate judicial review proceedings brought by the applicants against Council which I now consider.
[17]
Judicial review proceedings
As noted above, the parties to the judicial review proceedings are the applicants and Council, with the Owners Corporation filing a submitting appearance. As the applicants continue to rely upon the evidence in the civil enforcement proceedings and noting the factual background in both proceedings is relatively identical, the background facts are not repeated.
The applicants and Council have agreed that the issues for determination comprise first, whether the imposition of conditions C4, A4, G3, and I1 (collectively, 'challenged conditions') of the 2017 Consent (noted at [27] above) is contrary to the principles in Newbury District Council v Secretary of State for the Environment [1981] AC 578; [1980] 1 All ER 731 ('Newbury') and unreasonable in a Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] 2 All ER 680 ('Wednesbury') sense, and therefore unlawful; second, whether there was a denial of procedural fairness as the applicants were not consulted prior to the imposition of the challenged conditions; and third, whether, if the challenged conditions are unlawful and invalid, those conditions are severable from the 2017 Consent or alternatively, whether the consent should be declared invalid in its entirety.
In essence, the applicants submit that the challenged conditions are unlawful and invalid because, first, the conditions purport to regulate the use of the roof garden on the applicants' private land despite the development application made on 7 August 2017 (2017 Proposal) seeking development consent simply for the physical construction of a handrail/balustrade on common property; and second, the effect of the challenged conditions is that the approved balustrade is to be located in the precise location where the 2017 Proposal had sought consent to remove an existing handrail structure.
Further, in circumstances where the challenged conditions affect the proprietary interests of Unit 3, as the approved balustrade runs through the applicants' property, the applicants submit that they were denied procedural fairness as they were not consulted in relation to the conditions which Council at the time was intending to impose.
The applicants primarily seek for the challenged conditions to be severed from the 2017 Consent with the effect that the originally proposed location of the balustrade would be restored. The applicants submit that the challenged conditions are capable of being severed as they were not fundamental to the decision to grant development consent and that there were no valid town planning or merit reasons justifying their imposition.
[18]
Validity of conditions C4, A4, G3, and I1
The applicants submit that the challenged conditions fall foul of the second and third limbs of the test espoused in Newbury for validity, as the conditions do not fairly and reasonably relate to the permitted development under the 2017 Consent and, further, are unreasonable in the sense espoused in Wednesbury.
The applicants submit that the development for which development consent was sought was limited to the physical construction of glass balustrades to resolve safety concerns relating to the roof garden, with the benefit of the consent being for the Owners Corporation and concerning common property, and that the 2017 Proposal has no connection to the regulation of the use of the roof garden which is within the private ownership of the applicants. The applicants note that the "carrying out of a work" and "use of land" are each separate "development" for the purposes of the EPA Act.
The applicants repeat and rely upon their submissions made in the civil enforcement proceedings that there is no historical limitation on the "trafficability" of the roof garden. As such, Council's imposition of the challenged conditions was an "opportunistic and unlawful attempt by the Council" to regulate the roof garden and limit its use to access for landscaping and maintenance purposes, despite no material change to the roof garden being proposed in the 2017 Proposal. Further, a consequence of the challenged conditions is that the applicants will no longer be able to "passively recreate" within the roof garden, despite (as per the applicants' argument in the civil enforcement proceedings) there being no historic limitation on the use of the roof garden.
The applicants further note that they have not given their consent to the Owners Corporation to move the glass balustrade to the new location or to regulate the use of the roof garden.
The applicants submit that the challenged conditions are unreasonable in the Wednesbury sense as, first, the conditions allow the glass balustrade to be built through the middle of Lot 3; second, it was "entirely contradictory" to relocate the glass balustrade the subject of the development application to a location where the Owners Corporation had sought to remove an existing handrail; and third, the challenged conditions contradict condition A1 of the 2017 Consent which requires the balustrade to be constructed in the location originally proposed in the 2017 Proposal. The applicants submit that these legal errors are material as the effect of the conditions is to destroy the applicants' proprietary interests: Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 at [29].
[19]
Consideration
Section 80A (now, in similar terms, s 4.17) of the EPA Act authorised a consent authority to impose conditions of a development consent in a range of specified circumstances including, relevantly, the following:
80A Imposition of conditions
(1) Conditions - generally
A condition of development consent may be imposed if:
(a) it relates to any matter referred to in section 79C (1) of relevance to the development the subject of the consent, or
…
(c) it requires the modification or cessation of development (including the removal of buildings and works used in connection with that development) carried out on land (whether or not being land to which the development application relates), or
…
(f) it requires the carrying out of works (whether or not being works on land to which the application relates) relating to any matter referred to in section 79C (1) applicable to the development the subject of the consent, or
…
The Newbury principles relied upon by the applicants refer to those formulated by the House of Lords to test the validity of what was at the time an apparently unlimited statutory power to impose planning conditions. Although often summarised, it is appropriate to record that, in Newbury (at 607-608), Lord Fraser held the power to impose conditions was nevertheless subject to certain conditions:
"In order to be valid, a condition must satisfy three tests. First, it must have a planning purpose. It may have other purposes as well as its planning purpose. But if it is imposed solely for some other purpose or purposes, such as furtherance of the housing policy of the local authority, it will not be valid as a planning condition: see Reg. v. Hillingdon London Borough Council, Ex parte Royco Homes Ltd. [1974] Q.B. 720. Second, it must relate to the permitted development to which it is annexed. The best known statement of these two tests is that by Lord Denning in Pyx Granite Co. Ltd. v. Ministry of Housing and Local Government [1958] 1 Q.B. 554 which has been followed and applied in many later cases. Lord Denning said. at p. 572:
Although the planning authorities are given very wide powers to impose 'such conditions as they think fit,' nevertheless the law says that those conditions, to be valid, must fairly and reasonably relate to the permitted development. The planning authority are not at liberty to use their powers for an ulterior object, however desirable that object may seem to them to be in the public interest.
… Thirdly, the condition must be "reasonable" in the rather special sense of Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 K.B. 223, 229. Thus it will be invalid if it is "so clearly unreasonable that no reasonable planning authority could have imposed it" as Lord Widgery C.J. said in Kingston-upon-Thames Royal London Borough Council v. Secretary of State for the Environment [1973] 1 W.L.R. 1549, 1553."
[20]
Manifest unreasonableness
The applicants submit that Council's imposition of the challenged conditions lacked any evident and intelligible justification, was also illogical and irrational, and thus legally unreasonable because first, the conditions were "so plainly beyond power that the decision to impose them was devoid of plausibility" and, having regard to the legal framework in which the decision to impose the conditions was made, there was "no plausible way in which the decision could have been made in a procedurally fair way".
The bar is set high to establish legal unreasonableness, as confirmed by French CJ in Li at [28], [30]:
"[28] [The concept of unreasonableness] reflects a limitation imputed to the legislature on the basis of which courts can say that parliament never intended to authorise that kind of decision. After all the requirements of administrative justice have been met in the process and reasoning leading to the point of decision in the exercise of a discretion, there is generally an area of decisional freedom. Within that area reasonable minds may reach different conclusions about the correct or preferable decision. However, the freedom thus left by the statute cannot be construed as attracting a legislative sanction to be arbitrary or capricious or to abandon common sense.
…
[30] The requirement of reasonableness is not a vehicle for challenging a decision on the basis that the decision-maker has given insufficient or excessive consideration to some matters or has made an evaluative judgment with which a court disagrees even though that judgment is rationally open to the decision-maker. Gleeson CJ and McHugh J made the point in Eshetu that the characterisation of somebody's reasoning as illogical or unreasonable, as an emphatic way of expressing disagreement with it, "may have no particular legal consequence..." (Citations omitted.)
Legal unreasonableness was further considered by the High Court in Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 357 ALR 408 wherein Kiefel CJ stated at [10]-[11]:
"[10] In the joint judgment in Minister for Immigration and Citizenship v Li it was explained that a decision made in the exercise of a statutory power is unreasonable in a legal sense when it lacks an evident and intelligible justification. That may be so where a decision is one which no reasonable person could have arrived at, although an inference of unreasonableness is not to be drawn only where a decision appears to be irrational…
[11] Statements such as that made in the Wednesbury case, that a decision may be regarded as unreasonable if no reasonable person could have made it, may not provide the means by which a conclusion of unreasonableness may be arrived at in every case. But it serves to highlight the fact that the test for unreasonableness is necessarily stringent. And that is because the courts will not lightly interfere with the exercise of a statutory power involving an area of discretion. The question is where that area lies." (Citations omitted.)
[21]
Denial of procedural fairness
The applicants submit that, having regard to the legal framework of the EPA Act within which the decision to grant the 2017 Consent was made, it was incumbent upon Council to consult with the applicants prior to imposing the challenged conditions. The applicants submit that the relevant question is whether Council's decision could have been made fairly absent such consultation with the applicants. The applicants also submit that a denial of procedural fairness offends the Newbury tests for validity and therefore constitutes a jurisdictional error.
Although there is no express statutory obligation on Council to engage in consultation before imposing conditions upon a consent, the applicants submit that circumstances may arise (such as the present) which can give rise to such an obligation. In particular, the applicants submit that the challenged conditions had "significant and substantial implications" for the applicants, in circumstances where the applicants had previously indicated that their support was limited to the carrying out of balustrade works on the common property and did not consent to extend works on their private land. The applicants submit that Council would have power to issue an order pursuant to s 9.34 the EPA Act for the completion of balustrade installation on the applicants' land if the works were commenced by the Owners Corporation on the common property.
The applicants submit that the consequences arising as a result of the challenged conditions were serious as, first, the new conditions purport to restrict any use of the roof garden, including passive recreational use, which was a restriction not apparent under the historical consents; second, the applicants cannot simply lodge a new development application in the hope that the roof garden would be approved for use by the occupants, as the position of the Council in relation to the usability of the roof garden has become clear through the 2017 Consent; and third, the erection of the new balustrade is plainly a different circumstance to the current handrail which is "easily navigable".
The applicants further submit that, in light of what has been described as a "jurisdictional prerequisite" that Council obtain owner's consent prior to granting development consent (Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 365 ALR 86; [2018] NSWCA 245 at [79], [82]), it was plainly incumbent upon Council to consult with the applicants who would be directly affected by the imposition of conditions in a manner which was contradictory to what had been proposed in the 2017 Proposal. As such, the applicants submit that the EPA Act does not operate to preclude the implication of a requirement to fulfil the duty of procedural fairness.
[22]
Consideration
The applicants do not submit that the duty to accord procedural fairness arises because of a legitimate expectation or any obligation arising under the EPA Act or any policy of Council, however contend that it was solely on the basis that the grant of consent would have serious consequences for the applicants and thereby generated an obligation on Council to consult the applicants.
I do not accept that the 2017 Consent would have such significant consequences as to generate the obligation contended by the applicants. Without disrespect to the careful submissions made on the applicants' behalf, my reasons may be briefly stated.
First, although it is submitted that an effect of the 2017 Consent is an interference with, or an abrogation of, the applicants' property rights which is said to be the prospect that Council may issue an order (under the EPA Act) to undertake works on the applicants' land, I do not accept this submission. Even if an order could be, and was, issued by Council to cause or perfect the works otherwise the subject of the 2017 Consent, any such order would be subject to an implied condition that any requisite authority, at common law or under statute, to enter upon and carry out works specified in the order, be obtained before doing the works specified in the order: Mailey v Sutherland Shire Council [2017] NSWCA 343; (2017) 226 LGERA 188 at [48]. Further, as the work would be conducted on the common property, there is no requirement for the separate consent of the applicants.
Secondly, given Council's view in effect that the roof garden was only for landscaping purposes pursuant to the 1984 Consent (a view which I have separately accepted), the practical outcome of the 2017 Consent does not materially alter the status quo.
Thirdly, the evidence marshalled by the applicants and relied upon in both proceedings (although the subject of disagreement in the civil enforcement proceedings), is that the existing handrail/balustrade around the terrace is marginally less than 860mm in height that was required under Ordinance 70. The provision of the new balustrade (according to the 2017 Consent) will, it appears, make the act of "climbing over" the balustrade more difficult, however in circumstances where the applicants' expert, Mr Doherty had recommended that the height of the existing handrail/balustrade should in any event be increased such that it achieves a minimum of 860mm to comply with Ordinance 70 and that any such work to upgrade the existing handrail/balustrade must satisfy D2.16 of the NCC 2019, and the balustrade now approved is required to be one metre in height, the difference in height is not significant (leaving aside any consideration of activity or use to be undertaken on the roof garden) and would bring the balustrade around the terrace into compliance with the presently applicable standard.
[23]
Conclusion
For the reasons I have explained above, I do not consider that conditions C4, A4, G3 and I1 of Development Consent 266/17 issued by North Sydney Council on 10 October 2017 are unlawful or invalid, nor were the applicants denied procedural fairness by Council in granting the consent.
As the applicant has therefore not established any of its grounds for relief, the applicable order is that the Class 4 application be dismissed.
As I noted in relation to the civil enforcement proceedings, given that the general rule in Class 4 proceedings is that costs follow the event, I will order that the applicants pay the Council's costs of the proceedings unless an application is made for an alternate order by notice of motion before 12 June 2020.
[24]
In proceedings 2018/00289697:
1. The proceedings are dismissed.
2. Unless an application is made by notice of motion before 12 June 2020 for an alternate order, the applicants are to pay the Owners Corporation's costs of the proceedings.
[25]
In proceedings 2018/00358115:
1. The proceedings are dismissed.
2. Unless an application is made by notice of motion before 12 June 2020 for an alternate order, the applicants are to pay Council's costs of the proceedings.
[26]
Annexure A (410110, pdf)
Annexure B (99815, pdf)
Annexure C (249216, pdf)
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 01 June 2020
Parties
Applicant/Plaintiff:
Northcott
Respondent/Defendant:
The Owners - Strata Plan No 31143
Legislation Cited (7)
Environmental Planning and Assessment (Savings and Transitional) Regulation 1998(NSW)cl 46
Local Government Act 1919(NSW)
Strata Titles Act 1973(NSW)s 37
Environmental Planning and Assessment Regulation 2000(NSW)
Both proceedings dismissed. In 2018/00289697 (civil enforcement) the proceedings are dismissed and, unless an application is made by notice of motion before 12 June 2020, the applicants are to pay the Owners Corporation's costs. In 2018/00358115 (judicial review) the proceedings are dismissed and, unless an application is made by notice of motion before 12 June 2020, the applicants are to pay Council's costs (Orders at end of judgment).
A building application was made on 14 June 1984 in accordance with condition D1. The 1984 Building Permit for the "construction of five (5) townhouses" was then approved on 13 August 1984, subject to and in compliance with the following conditions:
"1. The conditions (if any) of Development Consent No. 1285/83 dated 15th May, 1984, issued under the Environmental Planning and Assessment Act, 1979.
...
4. All work SHALL comply with the requirements of the Local Government Act and Ordinances thereunder.
5. The building shall be designed under Ordinance 70 in Type 5 construction in accordance with Table 16.11.
Also enclosed are approvals in relation to:-
i) Structural Engineers Details Drawing Numbers 84084 1A, 2B, 3A, 4A, 5, 6, 7A, 9 and 10, which are approved subject to the applicant submitting a certificate by an independent firm of structural engineers on the completion of the building certifying that the structural elements of the building have been erected in accordance with the details which were subject of the original certificate and as approved by Council.
ii) Landscaping Details W.D. 06.
…"
As noted above, the 1984 Building Permit, presumably in accordance with conditions D22, D23 and D30 of the 1984 Consent, provided that the Building (and relevantly the roof garden) be constructed in accordance with various identified plans including the plan styled "Landscaping Details W.D. 06". An extract of this plan is annexed to this judgment and marked "A".
Relevant to conditions 4 and 5, at the time of the issue of the 1984 Building Permit, cl 53.9 of Ordinance No. 70 ('Ordinance 70') made under the Local Government Act 1919 (NSW) ('1919 LG Act') relevantly provided:
"(1) A protective balustrade or guard shall be provided along the side of any roof that is designed for use by the occupants of the building and along the side of any stairway, ramp, corridor, hallway, balcony, verandah, bridge, and the like attached or appurtenant to or included in a building if that side-
(a) is not bounded by a wall; and
(b) is more than 1 metre (or 5 risers in the case of a stairway) above the finished level of the adjoining floor or ground.
(2) The Council may require the provision of a protective balustrade or guard along the side of any portion of a building to which persons may ordinarily gain access and which is not subject to subclause (1), and along the side of any path of access to a building, if that side-
(a) is not bounded by a wall;
(b) is more than 1 metre above the finished level of the adjoining floor or ground; and
(c) the Council considers the absence of a balustrade or guard would represent an undue hazard to persons having access to that portion or path.
(3) A required balustrade or guard shall be not less than 860mm in height…" (Emphasis added.)
It is relevant to note that a substantive issue in both proceedings concerns the words italicised above.
By operation of cl 46(1) of the Environmental Planning and Assessment (Savings and Transitional) Regulation 1998 (NSW), a building permit issued under the 1919 LG Act (such as the 1984 Building Permit) is taken to be a "construction certificate" and, by operation of s 4.16(12) of the EPA Act, the (deemed) construction certificate is taken to form part of the 1984 Consent.
Unit 3 is comprised of internal living areas over two levels of the unit; a small outdoor courtyard on the lower level of the unit; a double car space in the basement garage area; and a larger outdoor area on the upper level of the unit consisting of a tiled terrace (hereafter referred to as the 'terrace') and a roof garden. As depicted in an extract from approved plan WD02 below (prior to an amendment expanding the terrace area), the terrace is surrounded on three sides by a "handrail" (over a concrete upstand) and the roof garden is bounded by what is described on the plan to be a concrete upstand constructed to engineering detail. The surface of the roof garden, as will be considered below, is materially higher than the terrace.
On 15 May 1985, Council approved a modification application made pursuant to s 102 (now s 4.60) of the EPA Act to increase the area of the terrace and reduce the area of the roof garden to Units 2 and 3 with the notice of determination of the modification stating that consent was granted:
"* To increase the area of the roof terraces to Units 2 & 3 to be used by the occupants of those units by reducing the area of the landscaped roof garden.
The conditions attached to the Development Consent as issued on 15th May, 1984, still apply.
The consent mentioned herein refers to Drawings 8316 undated drawn by Peter Duffield and Associates and received by the Council on 8th March, 1985, and 10th April, 1985.
…"
Following the modification, the relationship between the terrace and the roof garden, and the position of the "handrail" and "concrete upstand" separating the terrace from the roof garden in Unit 3 are now as follows:
The following photographs taken from a residential flat building immediately to the east of the Building provide an understanding of the presently built elements and depict the relationship between the roof garden and the tiled terrace. The roof garden is five or so metres above the finished level of the adjoining floor or ground (not including the adjoining floor of the terrace). As will be later considered, the roof garden was markedly more densely vegetated in about 2005. As seen below, the surface of the roof garden is higher than the adjacent terrace.
As can be seen from the above photographs, and adopting the nomenclature of Ordinance 70 as it was at the time the 1984 Building Permit was issued (noted at [13] above), three sides of the area noted in the approved plans as roof garden are "not bounded by a wall", and the roof garden (and the eastern side of the terrace) is "more than one metre above the finished level of the adjoining floor or ground". A metal tubular handrail over a concrete upturn, referred to in the evidence as "balustrade", surrounds the terrace. Although there is a dispute as to whether this handrail/balustrade complies with Ordinance 70, because according to one of the experts retained by the applicants, it is less than 860mm in height in some areas, more relevant to the applicants' claim is that no protective balustrade or guard is (or has been) installed along the rooftop edge of the roof garden. The applicants contend that conditions 4 and 5 of the 1984 Building Permit (which requires the Building to be designed "under Ordinance 70") required a protective balustrade or guard to be erected on the Owners Corporation common property on the rooftop edge of the roof garden in accordance with Ordinance 70 because the roof garden is "designed for use by the occupants of the building".
The land on which the Building is located was subdivided by Strata Plan No 31143, which was registered on 17 July 1986 following Council issuing a certificate pursuant to s 37 of the Strata Titles Act 1973 (NSW) on 21 February 1986. An extract of the strata plan depicting the second floor plan relating to the relevant area is annexed to this judgment and marked "B". The lot numbers in Strata Plan No 31143 correspond to the unit numbers in the Building. The reference to "T" in the extract is defined in the plan as "TERRACE".
The Building includes areas of common property and it is agreed by the parties that the rooftop edge surrounding the roof garden and the wall around the terrace comprise part of the common property.
As considered below, from about 2008, the applicants expressed concerns regarding the absence of a balustrade around the roof garden.
The effect of condition C4 was to approve the proposed glass balustrade only around the terrace, being generally in the present location of the handrail/balustrade as shown in the photograph at [19] above, and not around the perimeter of the roof garden.
The applicants also rely upon an expert report of Anthony Doherty, building surveyor, dated 17 May 2019 who considers the compliance status of the existing balustrading in relation to both current building regulations and those applicable at the time of construction of the Building; and an expert report of Ben Knox dated 6 May 2019 who considers occupational health and safety aspects of the use of the terrace and the roof garden.
Mr Doherty states that the balustrade (being the concrete upturn with metal tubular handrail above) presently installed around the perimeter of the terrace does not (and did not) satisfy cl 53.9 of Ordinance 70 as "the height of the balustrade above the tiled floor finish [of the terrace] is less than 860mm". He states that to satisfy Ordinance 70 the height of the balustrade would be required to be increased - however he opines that any such work to upgrade the balustrade would, in any event, need to satisfy the present regulation being the NSW Department of Planning, Industry and Environment's National Construction Code 2019 ('NCC 2019') (which would require a slightly higher element). It is clear that in considering the perimeter edge of the roof garden, Mr Doherty formed the view, on the basis that "the owners of the subject units are required to maintain such spaces", that the roof garden was a "trafficable area" and therefore Performance Requirement DP3 of the NCC 2019 requires a balustrade around the roof garden. Mr Doherty additionally states that "a fall arrest anchor point system would not satisfy NCC Requirements" as he considers that the roof garden is generally accessible in accordance with cl D2.16 of the NCC 2019.
Mr Knox conducted a risk assessment of "work health and safety" hazards that workers and residents may be exposed to in relation to the use of the terrace and the Building. Considering the six metre drop from the east and west side of the roof garden to the ground below, and that the roof garden is accessed by the applicants in addition to gardeners and landscapers, Mr Knox opines that the roof garden provides a high-risk working environment for gardeners, landscapers and other persons as there are no guardrails. Mr Knox makes recommendations which include the construction of a "guardrail" around the roof garden, being a railing in accordance with Australian Standard AS 1657:2018 (Fixed platforms, walkways, stairways, and ladders - Design, construction and installation) ('AS/NZS 1657-2018'), for certain procedures to be complied with during landscaping works such as the establishment of exclusion zones and disposal of plant waste, and to "adjust existing balustrades to meet National Construction Codes 2019".
The Owners Corporation reads the affidavit of Richard Chaplain sworn 17 May 2019. Mr Chaplin, the owner of Unit 1 since 2016, provides both a response to a number of the factual matters raised by Mr Northcott and further background material dating from 2016 including details of correspondence between the Owners Corporation, Council, and the applicants; details of attendances upon tradesmen providing quotes for balustrade installation; and various attendances on Council officers.
The Owners Corporation also reads the affidavit of Craig Nisbet, building consultant, affirmed 25 June 2013 who considers the design of the roof garden with reference to the Building Code and other regulations. Mr Nisbet observes that there are no steps or gate access from the terrace to the roof garden and that the balustrade "requires to be climbed or straddled to gain access to the garden". Mr Nisbet opines that the existing balustrade is constructed "for the intention of guarding against risk of fall to the eastern and western elevations and to guard against assess[sic] to the roof area" and, further, that the existing balustrade complies with the requirements of Ordinance 70 but not the current requirements of the Building Code. He notes that an upgrade of the existing balustrade may be required for the reason of risk management, by operation of the requirements contained in cll 93 and 94 of the Environmental Planning and Assessment Regulation 2000 (NSW), or through a Council order under s 9.34 of the EPA Act.
The Court also received a joint expert report of Mr Doherty and Mr Nisbet wherein there is disagreement in relation to whether the handrail/balustrade presently around the terrace complies with Ordinance 70 (with Mr Nisbet considering that it does), and the extent of the use that may be undertaken on the roof garden, which Mr Doherty considers as trafficable and therefore non-compliant with Ordinance 70, whereas Mr Nisbet opines that only a "perimeter barrier" or "roof anchors" would be required to allow safe access for maintenance purposes.
Council tendered a bundle of documents comprising historical documents relating to building and development applications and approvals including Council's internal assessment in relation to the 2017 Consent ('Assessment Report').
Apart from some concerns in relation to relevance, the essential background facts were agreed between the parties and are summarised above. No witnesses were required for cross-examination.
Further, the applicants' suggestion there was no requirement for a balustrade to separate the roof garden from the terrace ignores the fact that the existing handrail was shown on both the development consent and the modification plans and it was thus obviously designed for the purpose of preventing access to the roof garden for everyday use.
The Owners Corporation further points to the fact that the approved landscape plan shows a "completely landscaped" rooftop with no provision for any hard surfaces, grassed areas, or stepping stones. Further, the combined effect of conditions B4, B5 and D30 of the 1984 Building Permit show that Council was satisfied that the approved plans, without a balustrade around the roof garden, complied with the conditions of the 1984 Building Permit and thus Ordinance 70.
The Owners Corporation further submits that the fact that the roof garden is attached to and forms part of Unit 3 in the strata plan has no bearing on the relevant question as the registration of the strata plan post-dated the development consent. As such, the later strata plan does not regulate the manner and use of the Building. Further, the existence of a vinculum between the terrace and the roof garden in the strata plan is indicative that the roof garden forms part of Unit 3, but that it is separated by a structure which is common property. The Owners Corporation submits that the structure depicted is the concrete upturn and existing handrail separating the terrace and the roof garden, and the fact that there was never a gate or other door-like structure separating the terrace and the roof garden when the strata plan was registered supports the proposition that the roof garden was never intended to be accessed by occupants such that the handrail and the concrete upturn provide a fundamental indicator that the roof garden was intended to be separated from the terrace.
The Owners Corporation submits that the applicants' expert, Mr Doherty, has assumed that the roof garden is "trafficable" and therefore D2.16 of the NCC 2019 applies, when the fact is that the critical requirement in the relevant section of the NCC 2019 for balustrades, which is different to Ordinance 70, is where there is "… a roof to which general access is provided" or a "delineated path of access to a building, if the trafficable surface is 1m or more above the surface beneath", in circumstances where the roof garden is not a place where "general access" is provided and there is no "delineated path" or "trafficable surface".
His Honour then referred to New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (2016) 260 CLR 232; [2016] HCA 50 (French CJ, Kiefel, Bell and Keane JJ) at [34]:
"True it is that the words 'used' and 'occupied' might be said to take much of their meaning from context. But that is not to say that they are devoid of a commonly understood meaning in ordinary parlance. They require an examination of activities undertaken upon the land in question and, in the case of 'occupied', factors such as continuous physical possession must be taken into account."
In the present circumstances, although consideration of the 1984 Consent is required, the Court is not dealing with use in the sense of development planning purpose as explained by Preston CJ in LEC in Chamwell Pty Ltd v Strathfield Council [2007] NSWLEC 114; (2007) 151 LGERA 400 at [27]. It is common ground between the parties that the whole of the subject site (and Building) is being used or has approval for use for residential purposes. In this sense, using nomenclature such as passive or active recreation use is not of particular assistance. What is required to be considered is what activity in respect of the roof garden was envisaged by the 1984 Consent.
Further, although there has been debate about whether the existing handrail/balustrade was physically constructed in strict compliance with Ordinance 70, it is clear that the approved plans depict a handrail on the top of a concrete upstand that is only on the perimeter of a designated terrace area. The 1984 Consent clearly required that the Building was to "be designed under Ordinance 70" and "comply with the Local Government Act and all Ordinances thereunder" and, I interpolate, construction was to comply with Ordinance 70. The task of determining what activity was envisaged for the roof garden must proceed on the basis that an Ordinance 70 compliant handrail or balustrade was to be in the position around the terrace. Thus, any debate about whether the height of the handrail or balustrade around the terrace strictly complied with Ordinance 70, while not without some importance, is not determinative for the purposes of determining whether the roof garden was "designed for use by the occupants of the building" and also determining what the consent approves. As such, I proceed on the basis that what was to be built pursuant to the 1984 Consent was to be a compliant balustrade. Thus, in considering the 1984 Consent care must be taken to consider what was approved in 1984 so as to avoid construing the consent by reference to any modern standards such as the NCC 2019.
While principles concerning the construction of a development consent are frequently more easily stated than applied (Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103; (2013) 195 LGERA 182 at [44]), they are nonetheless well-known (Bunderra Holdings Pty Ltd v Pasminco Cockle Creek Smelter Pty Ltd (Subject to Deed of Company Arrangement) (2017) 96 NSWLR 434; [2017] NSWCA 263 at [158]) and are conveniently summarised by Leeming JA in The Owners - Strata Plan No 4983 v Canny [2018] NSWCA 275; (2018) 233 LGERA 432 at [60]-[64]:
"[60] First, the nature and extent of the approved development must be determined by construing the document of approval, including any plans or other documents which it incorporates, aided only by that evidence admissible in relation to construction which establishes, or helps to establish, the true meaning of the document as the unilateral act of the relevant authority, not the result of a bilateral transaction between the applicant and the Council. Thus evidence of the nature of the site would always be admissible for this purpose, as would be, in appropriate cases, evidence as to the meaning of the marks on plans, or indeed, the meaning of the absence of particular marks: Parramatta City Council v Shell Co of Australia Ltd [1972] 2 NSWLR 632 at 637 per Hope JA;
[61] Secondly, a development consent is to be construed according to its terms, having regard to its enduring nature. A development consent has an enduring nature because it is not personal to the applicant but is a public document operating for the benefit of third parties such as subsequent owners, occupiers and security holders, and in some respects is equivalent to a document of title: House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498; [2000] NSWCA 44 per Mason P at [23]; Winn v Director-General of National Parks and Wildlife [2001] NSWCA 17; (2001) 130 LGERA 508 per Spigelman CJ at [4].
[62] Thirdly, the enduring nature of a development consent encourages a fair but liberal reading of the rights it confers upon a landowner who may spend considerable money acting upon it and who is likely to wish to sell the land sooner or later: House of Peace per Mason P at [41].
[63] Fourthly, a development consent is to be construed not as a document drafted with legal expertise, but to achieve practical results: Westfield Management Limited v Perpetual Trustee Company Limited [2006] NSWCA 245 per Hodgson JA at [36]; Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Ltd (2009) 167 LGERA 395; [2009] NSWCA 160, per Tobias JA at [105].
[64] Fifthly, as a general rule, a development consent, being a public document operating for the benefit of third parties, should be construed without reference to extrinsic evidence other than to identify a thing or place referred to in it. That extrinsic evidence is not led to vary the consent but to identify a thing or place referred to in it. Evidence as to the nature or physical features of the land may also be admissible for that purpose, at least those features observable by a third party at the time of the consent: Allandale Blue Metal Pty Ltd v Roads and Maritime Services (2013) 195 LGERA 182; [2013] NSWCA 103 per Meagher JA at [44]; Parramatta City Council v Shell Co of Australia at 637."
Although the essential issue is not solely a construction of development consent issue simpliciter, I have given consideration to the principles noted above in my analysis of the issues before me, particularly in the light of the submission of the applicants that absent words of specific limitation with respect to the use of the landscaped area, none should be implied.
To consider and determine the manner of activity or use of the roof garden permitted by development consent, reference may be legitimately made first, to the document of approval and then to other documents it incorporates, and thereafter if necessary, to circumstances surrounding the grant of consent. The question is then whether the roof garden area, accepted by the parties to be a "roof", is designed for use "by the occupants of the building" such that Ordinance 70 is engaged.
Drawings titled "8316 DA01-05" dated December 1983 were referenced in the notice of the 1984 Consent issued by Council on 22 May 1984 and before the Court is a copy of the later plans titled "WD02, 03, 04, 05 and 06" stamped by Council and identified as accompanying the building application. Both parties referred to these plans. As submitted by the Owners Corporation, these plans appear to be the same series of plans as the landscape plan "WD06" explicitly referred to in the 1984 Consent and being Annexure A to this judgment. I consider that these plans are of assistance in determining the manner of use and activity and, more particularly, whether the roof garden was "designed for use by the occupants" and I make the following observations.
Plan WD02 (an extract of which is at [16] above) shows a handrail on top of a small wall around the terraces of Units 2 and 3 adjacent to the area depicted on the plan as a "roof garden". The bounds of the roof garden have the marking "r. c upstand to eng detail", which I accept, as submitted by the Owners Corporation, in conventional engineering terms means "reinforced concrete upstand to engineering detail". More relevantly, the terrace (only) is surrounded on three sides by walls and a structure noted as "handrail". Relevantly, there is no opening or gateway or any other indication of a dedicated path of access from the terrace to the roof garden which is shown in other plans as being at a higher level than the terrace.
Plan WD03 has similar notes for an analogous relationship between the roof garden and terrace on the upper level of Unit 2. The Court has not received discrete submissions in relation to Unit 2.
Plan WD04 shows, in Section A-A, "handrail" (depicting the cross-section of the tubular hand rail) over a wall that is built up to the corresponding height of the soil surface in the roof garden at the southern edge of the terrace of Unit 3, and a "metal rail" is shown, in Section B-B, along the width of the terrace. As noted above, the surface of the roof garden is higher than the terrace.
Plan WD05 also shows, in the south elevation, a "metal rail" along the width of the terrace.
Plan WD06 (Annexure A) shows, the landscaping plan for the roof gardens adjacent to both Units 2 and 3. There are no paths or hard surfaces shown in the landscape plan for any roof gardens (including Unit 3) in contrast to a number of pathways shown at ground level. Continuous planting is shown around the perimeter of the roof garden with no discernible break or separation.
In relation to the required landscaping vegetation, the evidence before the Court shows that the apparent clear areas on the landscape plan are, in fact, to be vegetated by species that are ground covers (such as juniperus conferta and mesambryanthemum) and photographs of those species are before the Court as Exhibit G.
While I accept that more recent photographs (such as those at [19] above) show sparser planting and the provision of stepping stones and other items, the earlier photograph (Annexure C) taken before 2005 clearly depicts quite dense planting (with no paths, hard surfaces or stepping stones). As such, I do not consider that the more recent photographs assist my consideration of the primary issues except to note that the earlier photograph appears to reflect the landscape plan more respectfully than the more recent photographs.
It is clear that the handrail shown on the plans around the roof terraces is in sharp contrast to the construction of the outer edges of the roof garden area which was to have only a reinforced concrete upstand.
From the above material, I consider that it can be inferred that the handrail over the concrete upstand was intended to prevent access to the roof garden from the terrace. It follows that the roof garden was not intended or designed to be trafficable and used by occupants of the Building. It is clear that, and I find, that the landscape plan intended to provide for extensive planting of shrubs and ground covers over the whole of the roof garden and that, given the density of the vegetation envisaged and the requirement for a balustrade effectively surrounding the terrace, the roof garden as designed does not invite or allow, in a practical sense, either access to or use of the area by the occupants of Unit 3. Further, the absence of a gate or opening of any kind makes it necessary for an occupant to climb over the handrail/balustrade structure in order to access the roof garden. Put simply, the actual design of the area and the physical construction of the handrail structure and the concrete upturn which is in accordance with the plans, I consider militate against any suggestion that the roof garden was designed for use by the occupants in any practical sense.
Accordingly, I do not accept the applicants' submission that the handrail around the roof terraces "merely divides the terrace from the roof garden". It is obvious that the handrail structure is meant to perform the function of preventing people from falling from either side of the terrace and/or accessing the landscaped area, and therefore, as the handrail over the concrete upstand is the same construction around the entire terrace (that is, also separating the terrace from the roof garden), it is similarly indicative that the area beyond the handrail is not designed for use by the occupants and is otherwise unsafe to access. The fact that the handrail may be, with some effort, relatively navigable in that it is able to be climbed over, is a reflection only of the fact that it was built to the standards of the time, rather than the current NCC 2019 requirement for height and access, and is not indicative that the handrail over the concrete upturn was intended to allow, or invite, passage to the landscaped area by being climbed over. As such, I accept that the handrail is a "physical manifestation of the design" as submitted by the Owners Corporation and that, although it may have been constructed in accordance with less effective regulations compared to those now in effect, the design nonetheless shows an intention for the structure to separate the occupants from the roof garden.
I am also of the view that the modification approved on 15 May 1985 further illustrates that there was a clear demarcation between the use of the terrace and the roof garden. The relevant details of the earlier plans considered above, which I consider indicate that the roof garden was not designed to be used by the occupants, are clearly repeated in the modification plan, part of which is reproduced at [18] above. Again, the notation on the plan "new location" refers to the concrete upstand and handrail and the continued (or extended) separation of the roof garden from the increased area of the roof terrace.
Further, the notice dated 15 May 1985 issued by Council granting consent to the modification application uses words (at [17] above) "To increase the area of the roof terraces … to be used by the occupants … by reducing the area of the landscaped roof garden". I accept the submission that this constitutes a relatively clear expression of a delineation between what was to be used from that which was not to be used, and that "use" in this sense relates to an increase in the area of the terrace for the activity to recreate.
I consider that the material above assists the conclusion that the roof gardens (in both Units 2 and 3), which are clearly separated from each of the terraces by the Ordinance 70 balustrades or guards, were not areas designed for use by occupants of the Building.
In summary, there is little doubt that the landscaped area must be, on occasion, "used" in the sense that the landscape vegetation is likely to require maintenance. There is no doubt that the roof garden, which is separated from the terrace by what the applicants submit is an easily navigable barrier is, in a practical sense, trafficable in the sense that it may be accessed by climbing over the handrail. However, this does not suggest that the area was either "designed" for use by the occupants, or that it was permitted to be used in any manner other than for maintenance purposes. It is clear that the roof garden was not designed to allow the occupants to "use" the roof garden in any other manner other than for maintenance, if at all. The existence of a continuous balustrade between the terrace and roof garden and the ends of the terrace which are some metres above the ground, that had been built to comply with the regulations of its time, is clear evidence to that effect.
Taking a practical and reasonable view, the fact that on occasion there may be need for maintenance of the landscaped area does not imply that the area has been designed for the general use of the occupants of the Building. For example, simply because a roof area of a building may require occasional maintenance, such as, for maintaining roof tiles, is not indicative that the area was "designed for the use of the occupants", such that other uses of that area become available to the occupier.
Although not determinative, there is force in the submission of the Owners Corporation that the combined effect of condition D30 of the 1984 Consent and conditions B4 and B5 of the 1984 Building Permit combined with inferences that can be drawn from the approved landscape plan are that Council was satisfied that the approved plans, without provision for a balustrade around the roof garden, complied with the relevant conditions (being B4 and B5), which invoked Ordinance 70. Further, I consider that the physical construction shown in the photographs at [19] above, appears to accord with the plans which provide that the level of the concrete upturn around the perimeter of the roof garden to be higher than the level of the terrace was designed to accommodate the soil otherwise required for the roof garden, and is therefore also indicative that the roof garden was never intended to be used by occupants of the adjoining units.
Taking the above matters into account, I consider that the various plans and the conditions attached to the development consent lead ineluctably to the view that the plans and the development of the Building did not provide for, or anticipate, general access to or use of the roof garden. As such, although it was only raised as a matter which may influence the Court's discretion to grant relief (which is not necessary to consider giving my findings above), I also do not consider that D2.16 of the NCC 2019 is of relevance as the roof garden cannot be said to be an area to which "general access is provided".
In addition, and again not determinative in my view, I consider that it is clear that the provision of the roof gardens attached to Units 2 and 3 provide amenity in the sense of an outlook and presentation of the Building, primarily to the occupants of Unit 3, but more generally to other occupants in the Building and/or neighbours or those who otherwise would view the Building, and that the provision and enjoyment of that amenity did not involve the use of the area either for active or passive recreation.
Although there was some controversy between the parties, I do not consider that the strata plan assists the applicants' argument. The registration of the strata plan post-dated the development consent and it is clear that a strata plan does not regulate the manner and use of a building which is the role of a development consent and planning law. As such, the approval by Council of Strata Plan SP31143 on 21 February 1986 could not constitute approval for the use of the Building (or parts thereof) and the creation of separate lots in a strata title pursuant to the then applicable Strata Titles Act 1973 (NSW) has little to do with the use of such lots once they are created and simply cannot affect the correct construction of the development consent.
In addition, I consider there is a tension existing between the terms "trafficability" and "designed for use by the occupants". This tension, and the apparent conflation of these terms, is obvious when the Court considers the expert evidence. For example, Mr Doherty concludes that Ordinance 70 requires a balustrade to be constructed on the perimeter of the roof garden on the basis that he considered that it was "trafficable" by maintenance personnel. However, this is a different question to that which is posed by Ordinance 70 which, as noted previously, is concerned with whether the area was "designed for use by the occupants". The distinction between these terms is clear. While the question of trafficability primarily requires consideration as to whether an area is physically able to be accessed, this question is not the same as whether an area has been specifically designed so that the area could be "used" by the occupants.
The approach I have taken in determining whether the roof garden was "designed for use" is consistent with the decision of South Sydney Municipal Council v James (1977) 35 LGRA 432, where the Court of Appeal was required to consider the definition of dwelling-house under Ordinance 70, being "a building designed for use as a dwelling for a single family" and Reynolds JA (with Glass JA agreeing) stated at 439:
"Without attempting to paraphrase the word "designed" in [Ordinance 70], it is my view that the appropriate question which the responsible authority should ask itself in considering a matter related to the alteration or erection of a building claimed to be a dwellinghouse within the meaning of the table to cl. 23 is whether as a matter of fact the plans and other available information show that the layout of the proposed building or the building altered is such that it is appropriate for a family unit to live in it in the accepted way."
Relevantly, his Honour also described the nature of Ordinance 70 at 441:
"It needs to be taken into account that Ordinance 70 is the building ordinance and is concerned with prescribing the requirements and standards for various types of building which differ widely. A decision as to the class into which a particular building falls is essentially a question of fact…"
Similarly, Samuels JA also considered the necessity of looking to the physical characteristics of the building as follows (at 444):
"Once the correct meaning of "designed" is applied, it follows that "dwelling-house" is defined not in terms of use or intended use, but by reference to the character or physical structure of the building. The definition points to a building of a particular physical identity, rather than to the use to which it may, or must, be put. The inclusion of the words "designed for use as a dwelling for a single family" requires the building to demonstrate a particular physical character. Once that requirement is satisfied its function is complete and its influence exhausted; it cannot then be made to determine the manner in which such a building must be used."
The approach I have taken places similar emphasis upon the physical character of the Building and the practical limitations on both access and use which such a design would have.
The applicants also submit that the imposition of the challenged conditions "lacked any evident and intelligible justification" as the conditions were so plainly without power that the decision to impose them was devoid of plausibility, and, further, because there was no plausible way that the decision could have been made in a procedurally fair way without having invited comment from the applicants: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 ('Li') at [72], [76].
In response, Council submits that the imposition of the challenged conditions confining the use of the roof garden, in circumstances where the development application was effectively seeking to "enlarge and extend" the usable and accessible terrace area to include the roof garden, was fairly and reasonably related to the permitted development and thus the applicants' challenges based upon the principles in Newbury and Wednesbury are without merit.
Council submits that the challenged conditions were imposed for the obvious planning purpose of protecting the privacy of adjacent premises, as expressly noted in the Assessment Report, and the imposition of these conditions could not therefore be said to be "lacking evident or intelligible justification". Council notes that the conditions imposed were a valid exercise of statutory power pursuant to s 80A of the EPA Act (as it then was), as the conditions sought to address concerns including in relation to safety, amenity and privacy which were relevant matters to be considered in relation to the proposed development in accordance with s 79C of the EPA Act at the time.
The Newbury principles were considered in Western Australian Planning Commission v Temwood Holdings Pty Ltd (2004) 221 CLR 30; [2004] HCA 63 ('Temwood') at [57] per McHugh J, [155] per Callinan J. The test was similarly followed by the NSW Court of Appeal in Westfield Management Ltd v Perpetual Trustee Co Ltd [2006] NSWCA 245 although I note that Basten JA at [78] cautioned that "care must be taken not to treat a succinct statement of principles as a formulaic test". Further, at [155] of Temwood, Callinan J, having stated that the third limb of the Newbury test replicated the language in Wednesbury, in considering the second limb stated:
"The condition must fairly and reasonably relate to the proposed development, it must be a condition not simply justifiable as one which a reasonable planning authority could impose, but one which is fair and reasonable in the circumstances of the particular case." (Emphasis in original.)
I note that in Dogild Pty Ltd v Warringah Council [2008] NSWLEC 53; (2008) 158 LGERA 429 ('Dogild'), Biscoe J, having considered the authorities, concluded at [52]:
"Although this line of authority indicates that such a benefit is sufficient to satisfy the second Newbury test, it may not be inconsistent to envisage cases where a condition is fair and reasonable in the circumstances of a particular case (to use Callinan J's description) even if it does not benefit the permitted development."
Although the applicants do not rely upon the first limb of Newbury and do not submit that the challenged conditions were not imposed for a valid planning purpose, I consider that there is overlap between the three Newbury limbs in that each is not wholly separate. The applicants also confirmed that the conditions are not challenged on the basis that they are not authorised by s 80A of the EPA Act. There is some tension in the applicants' position. As I understand their submission, they submit that the application was made for works and not use and that, although the conditions imposed affecting both works and use are accepted as being expressly authorised by s 80A, they are contrary to and fail the Newbury tests. Despite this, I consider it would be unusual for the common law Newbury test to strike down something that is expressly authorised by the EPA Act in clear terms.
I am of the view that the conditions were imposed for a proper planning purpose and this is borne out by the consideration adverted to in the Assessment Report. In accordance with the aforementioned authorities, the question therefore arises as to whether each of the challenged conditions related to the development and was fair and reasonable.
While the challenged conditions provide a different result than that which was envisaged by the 2017 Proposal, it is clear from the Assessment Report that, in considering the development application, Council adopted a particular view regarding the nature of activity and/or use of the roof garden (a view not shared by the applicants) and Council considered that the removal of the handrail separating the terrace from the roof garden would inevitably increase activity on the roof garden. As submitted by Council, "the intensity of that use together with the privacy relationships that that carries with it …" are matters which plainly arise from the 2017 Proposal.
With the above comments in mind, I consider that, contrary to the applicants' submission, it was open for Council to take into account that the works proposed would potentially lead to increased intensity of use which is obvious from the fact that the roof garden would be opened up and be significantly more accessible. The 2017 Proposal sought the complete removal of the handrail/balustrade which, as considered earlier, was meant to be a form of protective enclosure in accordance with Ordinance 70. Whatever use or activity that would have been conducted on the terrace would now be likely able to be conducted within the whole of the roof garden area as the removal of the handrail would facilitate relatively unrestricted access to the roof garden. As noted above, the second limb of Newbury, and the manner which it has been considered, is that the condition must "relate", being a word of wide import.
I do not accept that simply because discrete physical "works" were sought, and that what was effected by the 2017 Consent imposes a restriction on the extent of use, to be demonstrative of a lack of the requisite relationship. Although the 2017 Proposal related only to physical works (which relevantly included the removal of the handrail/balustrade separating the terrace from the roof garden and construction of a balustrade around the perimeter of the roof garden) and did not per se seek any further use or activity to be undertaken within the roof garden, and disregarding my findings in relation to the concept of "designed for use" considered in the civil enforcement proceedings, in considering the 2017 Proposal, I find Council was entitled to take into account the likely increase in the use of the roof garden. In the circumstances, I consider that the challenged conditions "related" because, put simply, the change of position of the physical elements effected an increase in intensity of activity.
As a result, I do not consider that the imposition of the challenged conditions was an "opportunistic and unlawful attempt by the Council to regulate the use of the roof garden" as submitted by the applicants.
Considered as such, the effect of the 2017 Proposal was to enlarge and extend the area able to be accessed and used from the terrace only to include the roof garden. Seen in this light, I consider that the imposition of the conditions confining the use that otherwise would have been extended, was fairly and reasonably related to the development the subject of the 2017 Proposal. Further, I find that the conditions imposed were a valid exercise of statutory power under the then s 80A of the EPA Act referred to above and in particular subss (1)(a), (1)(f) and (1)(g).
The existence of a "benefit" derived from the imposition of a condition may indicate that a condition fairly and reasonably relates to the permitted development. Although I do not consider it determinative, the Assessment Report included a consideration that "the existing safety and security of the residents would be improved by the proposal as it provides for compliant balustrades" and recorded objections received to the 2017 Proposal and that there had been "site visits" by Council officers to the subject site and an objector's property. The replacement of an existing handrail/balustrade, which the applicants at relevant times maintained was not in accordance either with Ordinance 70 or the NCC 2019 and was specifically described in the statement of environmental effects accompanying the 2017 Proposal as "existing non-compliant rails …", with a balustrade around the terrace designed to "comply with Part 3.9.1 of BCA", would provide a benefit of increased safety and security.
Further, Council was entitled to consider, as it did, that the location of the proposed balustrade on the terrace perimeter, which although would restrict the activity on the roof garden to maintenance, was nonetheless of benefit as it provided an improved environmental outcome in terms of acoustic, visual and privacy impacts.
Further, the applicants maintain that Council adopted a position regarding that which was approved in relation to the activities envisaged on the roof garden pursuant to the 1984 Consent and, because the applicants have maintained that the 1984 Consent was not so constrained, Council's conduct pursuant to its opinion regarding the 1984 Consent invalidates the challenged conditions. Council submits that it did not rely significantly upon a particular interpretation of that which was permitted under the 1984 Consent, but considered other matters set out more particularly in the Assessment Report which, combined, provided the bases of the grant of consent.
Given that I do not accept the applicants' view in relation to the extent of their entitlement to the use of the roof garden, I consider Council's view in relation to the benefits was properly maintainable.
In summary, I do not accept the applicants' position that the conditions do not fairly and reasonably relate to the permitted development, which I consider is primarily based upon their understanding of the nature and extent of use otherwise permitted in the roof garden. In any event, I do not accept the applicants' submission that there were no merit reasons identified by Council as to the need to relocate the balustrade such that it did not fulfil the Newbury test, in circumstances where Council had before it evidence of objectors' concerns which Council was required to consider. The objectors' concerns, which related to such matters as reduced visual and acoustic privacy; whether the roof garden was suitable for gatherings; whether there would be amenity implications by the loss of the landscaped area; and/or the noise implications from the use of the landscaped area; and concerns in relation to the loss of visual amenity regarding the provision of a glass balustrade which may detract from the landscape setting, were matters which Council was entitled (if not required) to take into consideration.
At [79], Nettle and Gordon JJ said:
"[79] That task requires the court to assess the quality of the administrative decision by reference to the statutory source of the power exercised in making the decision and, thus, assess whether the decision was lawful, having regard to the scope, purpose and objects of the statutory source of the power."
I consider that it was open to Council to impose the challenged conditions and their imposition does not materially affect the applicants' proprietary interests. In forming this view, I note the distinction between a justifiable opinion and a sound opinion: Parramatta City Council v Pestell (1972) 128 CLR 305; [1972] HCA 59 (Menzies J) at 323. In addition to the matters I have considered above, my reasons may be shortly stated.
First, I do not accept the applicants reliance on the fact that the 2017 Consent sought to regulate use of the roof garden "even though no part of the 2017 DA related in any way to the use of the land" and changed the location of the glass balustrade to a position not sought. In the circumstances, I do not accept, as implied by the applicants' position, that the use of the roof garden as an area of recreation was permitted by the 1984 Consent. The 2017 Proposal sought to enlarge and extend the area able to be accessed and, for the reasons above, I consider that the imposition of the challenged conditions fairly and reasonably relate to the development the subject of the 2017 Proposal (which necessarily involved an extension of the area able to be actively used for private recreation) and similarly I do not consider that their imposition was manifestly unreasonable.
Secondly, the conditions were imposed for reasons as noted above including to protect the privacy of adjoining premises and these aspects were expressly adverted to in the Assessment Report.
Thirdly, the reasoning and consideration of the matters taken into account in Council's Assessment Report indicates that Council's assessment officer gave consideration to the protection of privacy of adjacent premises and, given the other matters referred to above, in my view this reasoning was orthodox and could not be said to be "lacking evident or intelligible justification" such that it was open to a consent authority to come to a view that the restrictions were warranted.
Fourthly, the conditions were a valid exercise of statutory power under s 80A of the EPA Act. The challenged conditions addressed concerns in relation to such matters as privacy, being a matter of relevance under (then applicable) s 79C of the EPA Act and, as considered below, were not imposed in the manner which could be considered to be procedurally unfair.
Council submits that the duty or obligation asserted by the applicants is novel and notes that Hillpalm Pty Ltd v Tweed Shire Council (2002) 119 LGERA 86; [2002] NSWLEC 17 at [123], specifically concluded that the EPA Act "precluded the implication of any further requirements to fulfil the duty of procedural fairness".
Council submits that, even if there was an implied obligation to consult as suggested by the applicants, the circumstances here were not sufficiently serious to give rise to a legitimate expectation that the applicants be consulted. In advancing this submission, Council notes first, that the practical effect of the conditions is no different to the position under the historical consents; second, that the applicants are nonetheless able to apply for consent to use the roof garden in the manner sought; third, no interference with proprietary rights arises as the approved balustrade is in the same location as the existing handrail which is on common property; and fourth, that a grant of development consent does not alter a property right such that the applicants' argument wrongly equates one with the other.
Council further submits that even if such an obligation existed and was indeed breached, it should not be assumed that this would necessarily invalidate the conditions of the 2017 Consent and that the applicants have not explained the reason for this conclusion.
Fourthly, it follows from the above, that the conditions to the extent that they "restrict" use of the roof garden by making access somewhat more difficult, correspondingly add to the safety of the applicants' terrace area by bringing the balustrade on the common property into current regulatory standard.
In the above circumstances, I do not consider that there was an implied obligation to consult as suggested by the applicants, and in any event, the circumstances are not sufficiently serious (and do not materially affect the applicants' proprietary interests) such that they generated an obligation on Council to consult the applicants.
To the extent that the 2017 Consent restricts other activities in the roof garden (apart from maintenance), I also take the following matters into account. First, that the Owners Corporation has passed a special resolution providing for a compliant securable gate as part of the balustrade to ensure safe access during maintenance of the roof garden and has resolved to install the Anchor Point System on the perimeter of the roof garden. Second, given the limited use to which the applicants appear to desire to use (and have used) the roof garden area, there is nothing to stop a development application being made to Council by the applicants for some limited use of the roof garden area, which may involve an area within the roof garden itself for limited activity which could be reasonably controlled in relation to size of area, possibly by a limited glass balustrade; number of persons; hours of operation; or such other matters usually the subject of reasonable restraints. Third, overall, if the 2017 Consent is implemented, there will be a compliant barrier where that which is presently surrounding the terrace is not compliant with the presently applicable standards.
In light of my findings above that the challenged conditions are valid, it is neither necessary nor appropriate to consider the severability of the challenged conditions from the 2017 Consent.