P S Graham & Associates v Hornsby Shire Council

Civil Procedure Act 2005, s 94 LEGISLATION CITED: Environmental Planning and Assessment Act 1979, ss 78A, 80(3), 95(6) Environmental Planning and Assessment Regulation 2000, cll 49(1)(b), 50(1)(a), Sch 1

Jeloudev v Lohman (unreported, Supreme Court, 20 September 2010, No 288002 of 2010, Brereton J) CASES CITED: Mulyan Pty Ltd v Cowra Shire Council [1999] NSWLEC 212, 105 LGERA 26 Rainbowforce Pty Ltd v Skyton Holdings Pty Ltd [2010] NSWLEC 2, 171 LGERA 286 Sertari Pty Ltd v Nirimba Developments Pty Ltd [2007] NSWCA 324

APPLICANT: Mr I Hemmings, barrister SOLICITORS Hunt & Hunt LEGAL REPRESENTATIVES:

RESPONDENT: Mr T Pickup SOLICITORS Storey & Gough

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT 1 HIS HONOUR: This is a Class 1 appeal under the Environmental Planning and Assessment Act 1979 (EPA Act) by P S Graham & Associates against Hornsby Shire Council's refusal of development application DA 1366/2009 for the carrying out of construction works in right of carriageway on 29B Albert Road, Beecroft, as required by a deferred commencement condition to development consent DA 2311/2003. 2 Development consent 2311/2003 was granted by this Court on 6 October 2005 in upholding the applicant's appeal against the council's refusal of development consent for the subdivision of one lot into two lots at 29B Albert Road, Beecroft, on conditions which included the following deferred commencement condition: "Pursuant to s 80(3) of the Environmental Planning and Assessment Act 1979 this consent does not operate until such time as all necessary consents have been obtained to enable the driveway works in the right of carriageways (as shown on the above-mentioned plan and which are not part of the site owned by the applicant) to be carried out."

3 The right of carriageways referred to in that condition were over lands at 29, 29A and 29C Albert Road, Beecroft. 4 The object of this appeal is to satisfy the deferred development condition. The matter is urgent because the 2005 development consent lapses if the applicant fails to satisfy the consent authority as to the matter specified in the deferred commencement condition within five years from the grant of the consent, and that five year period expires in less than a week, on 5 October 2010: s 95(6) EPA Act. 5 The applicant's client, Ms Tamara Jeloudev, is the registered proprietor of 29B Albert Road, which is Lot 105 in Deposited Plan 601734. There are two other lots on that plan being Lots 106 and 107 at, respectively, 29 and 29A Albert Road. There is also an adjoining lot at 29C Albert Road being Lot 103 in Deposited Plan 579028. Each of these four lots has access to Albert Road over a right of carriageway constituted by four adjacent access handles, each 3.05 metres wide, together creating an access handle 12.2 metres wide at the widest but progressively narrowing towards the rear to 6.1 metres. Each lot is benefited by an easement over the access handle of each other but so that Lot 105 (29B Albert Road) has the benefit of a right of carriageway over the access handles to Lots, 103, 106 and 107 (respectively, 29, 29A and 29C Albert Road).

6 The works proposed by the development application the subject of this appeal are for the reconstruction of the driveway over the carriageway and involve the replacement of the existing driveway and the widening of the driveway at two locations to provide for passing bays.

7 There was an impediment to the power of the Court to grant development consent because cl 49(1)(b) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation) provides that a development application may be made by a person other than the owner of the land but only with the consent in writing of the owner. See also the related provisions in the EPA Act s 78A(1) and (9); EPA Regulation cl 50(1)(a) and Schedule 1 Part 1 cl 1(1)(i). Thus, the legislation affords a veto to the owner of land to which a development application refers: Mulyan Pty Ltd v Cowra Shire Council [1999] NSWLEC 212, 105 LGERA 26 at [26], [32] which concerned earlier but equivalent legislation. The subject development application relates to so much of the said four lots as are affected by the reciprocal rights of carriageway. The owners of Lots 103 and 106 have consented to the development application, but the owner of Lot 107, Mr William Lohman, did not. Unless Mr Lohman's consent is obtained, the council as consent authority and this Court on appeal are each powerless to grant the development consent.

8 However, in some circumstances, an owner of land may be ordered, at least by the Supreme Court, to provide a written consent to a development application relating to his or her land. It is established that the owner of an easement for right of carriageway is entitled to construct improvements on the servient tenement where this is necessary or convenient for the exercise of the rights conferred by the easement, and that the Supreme Court may order the owner of the servient tenement to consent to the lodgement of a development application for the construction of improvements which are reasonably necessary for the proper enjoyment of the easement. In such a case, the easement impliedly obliges the servient owner to give consent, and the servient owner's refusal of consent obstructs the dominant owner in the exercise of rights under the easement just as much as by direct physical obstruction: see Mulyan at [27] - [31]; Sertari Pty Ltd v Nirimba Developments Pty Ltd [2007] NSWCA 324 at [9] - [11]; Rainbowforce Pty Ltd v Skyton Holdings Pty Ltd [2010] NSWLEC 2, 171 LGERA 286 at [195] - [196]; Jeloudev v Lohman (unreported, Supreme Court, 20 September 2010, No 288002 of 2010, Brereton J); and the authorities cited in those cases. 9 Acting under that principle, recently on Monday 20 September 2010 the Supreme Court made the following orders in proceedings by Ms Jeloudev against Mr Lohman: (a) that by 27 September 2010 Mr Lohman consent for the purposes of the EPA Regulation cl 49(1)(b), to the lodgement of the subject development application and do all things and execute all documents necessary for that purpose; (b) pursuant to s 94 of the Civil Procedure Act 2005, that upon the plaintiff filing an affidavit proving service of the orders and that Mr Lohman had not complied, that consent be given and executed by the Registrar in Equity in the name of and on behalf of Mr Lohman; and (c) for substituted service on Mr Lohman: Jeloudev v Lohman (above, Brereton J).

10 On Wednesday 22 September 2010 the present appeal was before me for hearing but the hearing could not conclude because the Supreme Court's orders still had some days to run before Mr Lohman's consent could be obtained. I therefore adjourned the matter part heard to today, Thursday 30 September 2010. There has now been produced an instrument of consent of Mr Lohman executed on his behalf by the Registrar of the Supreme Court.

11 Consequently, there is no longer any legal impediment to the power of the Court to grant development consent. As the consent of Mr Lohman has been obtained, the council consents to the appeal being allowed and to development consent being granted on conditions which have been agreed between the parties.

12 That leaves for consideration the submissions by objectors. There were seven submissions by objectors to the development generally and on the following grounds (I leave out of account the absence of Mr Lohman's consent which has now been resolved):

(a) uncertainty of what is proposed; (b) stormwater drainage impact; (c) easement through riparian zones; (d) consistency with consent conditions for DA2311/2003; (e) removal of trees. 13 The proposed conditions of consent (including the plan of management referred to therein) agreed between the parties were revised in light of objectors' submissions and following discussions with objectors at the hearing. Consequently, the objectors in attendance at the hearing no longer pressed their objections and were content for development consent to be granted subject to the revised conditions. I am satisfied that the revised conditions adequately address the submissions made by objectors and that consent should be granted subject to the revised conditions.

14 Accordingly, the orders of the Court are as follows: 1. Appeal allowed. 2. Development consent is granted subject to the attached conditions to development application 1366/2009. 3. The exhibits may be returned except for Exhibit C. [

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