Parkes v Byron Shire Council [2003] NSWLEC 104 | Case summary

5 May 2003 JOHN PARKES Applicant v BYRON SHIRE COUNCIL Respondent JUDGMENT Introduction 1 The respondent, Byron Shire Council ("the council"), applies by notice of motion for an order that the proceedings commenced by the applicant, Mr J Parkes, be dismissed. It is alleged by the respondent that the proceedings are incompetent; that is, that the applicant does not have a cause of action. The relevant facts 2 The applicant has made three development applications to the council for consent to carry out erosion protection works on his property at No. 2 Don Street, Belongil ("the property"). The works are apparently intended to protect the property from storm wave attack from the beachfront to which the property has a boundary. The first development application was made on 9 May 2002. It was rejected by the council under cl 51(1) of the Environmental Planning and Assessment Regulation 2000 ("the EP&A Regulation") which states: (1) A consent authority may reject a development application within 7 days after receiving it if the application is illegible or unclear as to the development consent sought. 3 The effect of such a rejection is described in cl 51(3) of the EP&A Regulation which is as follows: (3) An application that is rejected under this clause is taken for the purposes of the Act [Environmental Planning and Assessment Act 1979] never to have been made. 4 The second development application was made on 8 August 2002 for the same purpose. It was again rejected by the council on the same basis. The third development application also for the same purpose was made on 23 August 2002. It was also rejected on the same basis. It is the third development application and the rejection thereof which is the subject of the proceedings, which are said to be an appeal under s 97 of the Environmental Planning and Assessment Act 1979 ("the EP&A Act") against the council's determination of that development application. 5 The letter by which the council rejected the third development application, dated 28 August 2002, was sent to the applicant within the period of seven days prescribed by cl 51(1) of the EP&A Regulation. That letter is as follows: [Address] Attention: [Name] RE: Proposed Development Application for erosion protection works at Lots 1 and 2, Sec 2, DP 1623, Don Street, BYRON BAY I refer to this development application received by Council on 23 August 2002. The above development application is once again returned as it is not a valid development application. Clause 50 of the Environmental Planning and Regulation 2000 states that a development application must contain the information, and be accompanied by the documents, specified in Part 1 of Schedule 1 . These documents are again deficient as set out below. · Approval from the relevant property owners is required for any works outside the property boundaries. Your assertion that no works would be occurring outside the subject land is still contradicted by the plans submitted and the additional information provided in the documents submitted. I note that you have deleted, by hand, the statement "Existing Geobag wall - joined into new wall" as shown on Figures 2 and 3 on one of the four copies of plans submitted with the application. However the plan still clearly shows this connection occurring outside Lot 1 and 2, and the additional information accompanying the statement of effects still refers to works required outside the subject land. The application therefore remains illegible and unclear as to the development consent sought. The plans need to be clearly amended to demonstrate that no works will be undertaken on adjoining land, and this clarified in the accompanying statement of effects. Alternatively, if works are proposed outside the subject land as is presently indicated on plan, then this land must be clearly described on the development application and the consent of the relevant property owners must be provided. · Plans still do not clearly identify the relationship of the proposed works to the existing public access to the beach. I note that your letter dated 23 August 2002 acknowledges that this is a correct observation. However, plans still have not been submitted that demonstrate the relationship at all. The survey plan submitted shows the existing beach access, whilst Figure 3 shows the proposed rock wall and realigned geobag wall. However, the Figure still fails to show where the beach access will be with regard to the realigned geobag wall. Therefore the application remains unclear as to the development consent sought and is returned. Until such a time as the above matters are satisfactory rectified, Council will not be in a position to accept the development application. Should you have any further enquires please do not hesitate to contact me on [telephone number] or the duty planner. Yours faithfully [Signature] [Name] ASSESSMENT OFFICER - PLANNING Enc: DA form and attachments, plans and elevations, Statement of effects, cheques x 2 6 It is to be noted that the letter refers to cl 50 of the EP&A Regulation (which describes what a development application must contain). No reference is made to cl 51(1). It is accepted by the parties, however, that the council may rely upon an alternative source of power, if available, to the stated source of power - in this case the power under cl 51(1) of the EP&A Regulation (Holster v Director-General of National Parks and Wildlife Service [1999] NSWLEC 102 at [88]-[111]). 7 As noted above, the applicant has appealed under s 97(1) of the EP&A Act against the council's rejection of the third development application. The argument of Mr I J Hemmings, appearing for the respondent council, in support of the present notice of motion, is attractively simple: the court can only consider an appeal with respect to a development application; following the rejection of the development application the effect of cl 51(3) of the EP&A Regulation, however, is that the development application is taken for the purposes of the EP&A Act to have never been made; and since the development application is taken to have never been made, then there can be no right of appeal with respect to a non-existent development application. 8 Mr T S Hale SC (with him Ms J Soares), appearing for the applicant, made the following submissions. (a) The grounds upon which the council rejected the development application are not valid - the development application was made with respect to the applicant's land, notwithstanding that consequential works may be required on adjoining land. In those circumstances the consent of the owner of the adjoining land is not required. (Reference was made to North Sydney Council v Ligon 302 Pty Ltd (1996) 185 CLR 470.) (b) In any event, the absence of an owner's consent to a development application may be cured at any time up until the determination of the application by the court (Botany Bay City Council v Remath Investments No. 6 Pty Ltd (2000) 56 NSWLR 312). (c) Section 97 of the EP&A Act gives a right of appeal to an applicant "who is dissatisfied with the determination of a consent authority with respect to the applicant's development application". The rejection of the development application under cl 51(1) of the EP&A Regulation was such a determination with respect to the applicant's development application. (d) Section 39(2) of the Land and Environment Court Act 1979 ("the Court Act") confers upon the Court all the functions and discretions of the person or body whose decision is the subject of the appeal in respect of the subject matter of the appeal. Reliance was placed on the definition of "functions" in that Act (s 4) as including powers, authorities and duties. Hence the Court on a de novo appeal could itself decide whether to exercise the council's powers under cl 51(1) of the EP&A Regulation. (Reference was made to North Sydney Municipal Council v P D Mayoh Pty Ltd (1988) 14 NSWLR 740 and Sydney City Council v Claude Neon Ltd (1989) 15 NSWLR 724.) Conclusions 9 I accept Mr Hales' submission that the absence of the consent of the owner of the adjoining land is not a valid basis for rejecting the development application under cl 51(1) of the EP&A Regulation. The authorities upon which Mr Hale relies lend support to this conclusion. It seems to me that there are three reasons for coming to this conclusion. Firstly, according to the applicant's consultant, "the works have been redesigned so that they can be carried out totally within the confines of Lots 1 & 2". (The reference to "Lots 1 & 2" is to the applicant's property.) If the applicant intends to carry out work totally within his own land, then that is the land to which the development application relates, so that the need for the consent of the owner of the adjoining land does not arise (North Sydney Council v Ligon No. 302 Pty Ltd, at 476). Secondly, even if such consent were required, it can be furnished at any time until the determination of the development application; and where there is an appeal to the Court, then the owner's consent can be furnished at any time until determination of the application by the Court (Botany Bay City Council v Remath Investments No. 6 Pty Ltd, at 315). Thirdly, cl 51(1) of the EP&A Regulation allows the consent authority to reject a development application if is "illegible or unclear" as to the development consent sought. The clause says nothing about whether there is the presence or absence of an owner's consent to a development application. The presence or absence of such consent does not make the development application illegible or unclear. The development cannot be rejected under cl 51(1) of the EP&A Regulation if all that is said to be wrong is the absence of an owner's consent to the development application. 10 I now turn to Mr Hale's remaining submissions. Reliance is placed on North Sydney Municipal Council v P D Mayoh Pty Ltd. In that case cl 10(2) of the North Sydney Planning Scheme Ordinance provided: (2) Where it appears to the responsible authority that the purpose for which the land is reserved cannot be carried into effect within a reasonable period the responsible authority may approve in connection with such land the erection thereon of buildings and the carrying out of works and the making of excavations thereon. … 11 An appeal was made to the Land and Environment Court against the deemed refusal of a development application. The council contended that it was the only body which was entitled to determine whether the purpose for which the land was reserved could or could not be carried into effect within a reasonable period. McHugh JA (Hope and Samuels JJA concurring), after referring to s 97 of the EP&A Act and s 39(2) of the Court Act, noted (at 745) that the council's contention raised the question whether the opinion of the council which is the essential basis of the condition contained in the opening words of cl 10(2) of the North Sydney Planning Ordinance was a function or discretion which the council had in respect of the subject matter of the appeal (quoting from s 39(2) of the Court Act). McHugh JA went on to note the wide meaning given to the words "in respect of" in s 39(2) and concluded (at 746) that the formation of the opinion or conclusion is a matter "in respect of the subject matter of the appeal": it was a function of the council which it had "in respect of the matter the subject of the appeal". McHugh JA was accordingly of the opinion that the Land and Environment Court was empowered to exercise that function and form an opinion as to whether the purpose for which the land is reserved could not be carried into effect within a reasonable period. 12 North Sydney Municipal Council v P D Mayoh Pty Ltd was applied by the Court of Appeal in Sydney City Council v Claude Neon Ltd (1989) 15 NSWLR 724. The council had rejected an application for an illuminated advertising sign on the top of a building. The floodlights attached to the advertising structure projected into the air space above the street, the title to which was vested in the council. The council submitted that since it was the owner of the air space into which part of the structure projected and had not given its consent, the development application was a nullity. Hope JA (Preistley and Meagher JJA concurring), after referring to s 39(2) of the Court Act, said (at 731): If the power of the council to consent to the lodging of the application is a function or discretion which it has in respect of the matter the subject of the appeal, then the council would have the power not only to grant development approval but to exercise the power of the council to consent to the lodging of the application. 13 After referring to North Sydney Municipal Council v P D Mayoh Pty Ltd, Hope JA said (at 732): If the view which I have expressed is right, namely, that a council can give its consent to the lodging of an application by giving development approval, in my opinion s 39(2) places the Land and Environment Court, upon an appeal, in the same position as the council. … The court thus having the same powers as the council had when dealing with the application before it, it is empowered to give a consent which will operate as a consent by the council in its capacity as owner of the road to the lodging of the application for development approval. 14 In the light of these authorities I turn to the present case. If the power of the council to reject a development application under cl 51(1) of the EP&A Regulation is a function or discretion which it has in respect of the subject matter of the appeal, then the Court would also be able to exercise the same function or discretion (cf Hope JA in Sydney City Council v Claude Neon Ltd at 731). In both North Sydney v P D Mayoh Pty Ltd and Sydney City Council v Claude Neon Ltd the words "in respect of" are given a wide meaning: (see McHugh JA in Mayoh at 745-746 and Hope JA in Claude Neon at 732). The exercise by the council of its power and discretion under cl 51(1) of the EP&A Regulation was the exercise of a function of the council "in respect of the subject matter of the appeal" (the word "function" being defined as including powers, authorities and duties: s 4 of the Court Act). By s 39(2) of the Court Act, it was and is a function (that is, a power and discretion) which can be exercised by the Court. Section 39(2) places the Court, upon an appeal, in the same position as the council. Moreover, the decision of the Court upon an appeal is deemed to be the decision of the council (s 39(5) of the Court Act). 15 I have referred to the reliance by Mr Hemmings on cl 51(3) of the EP&A Regulation that an application that is rejected under that clause is taken for the purposes of the Act never to have been made. That, however, is a consequence of the exercise of the power and discretion under cl 51(1) to reject the development application. The power and discretion under cl 51(1) is, however, being exercised afresh by the Court on appeal (s 39(3) of the Court Act). Only if the Court decides to reject the application under s 51(1) will it have the consequence described in cl 51(3); that is, the development application will be taken for the purposes of the EP&A Act to have never been made. 16 It follows that I accept the submissions of Mr Hale SC. The council's rejection of the development application under cl 51(1) of the EP&A Regulation is not determinative of the appeal. It remains, however, open for the Court to exercise afresh the power and discretion under cl 51(1). In other words, the question remains as to whether in the opinion of the Court the development application is illegible or unclear. In my opinion the development application is unclear. I have come to this view for the following reasons: (a) There is an existing rock and concrete rubble wall which is adjacent and largely outside the applicant's property boundary; that is, it is mostly outside the applicant's property boundary although a small part of it is within the applicant's property. (b) The existing rock and concrete wall is contiguous with existing "geobag" walls on each side of it and which are also outside the applicant's property boundary. (c) The development application proposes the construction of a new rock wall adjacent to the applicant's property boundary but wholly within the applicant's property. According to the Statement of Environmental Effects which accompanies the development application, the proposal is "the removal of the existing rubble wall back from the beach into the property…". (d) The site plan shows the existing "geobag" walls on either side of the applicant's property as being joined to the proposed new wall. It is unclear how, or by whom, this is to be done. (e) Again, according to the Statement of Environmental Effects: The new wall alignment at 2 Don Street [the applicant's property] is further landward than the present wall and the adjacent existing walls to southward including the recently constructed Council wall at the end of Don Street. (f) It is unclear how the new wall now proposed and which will be landward of the adjacent existing walls will relate to those existing walls. Although the site plan shows the adjacent walls being re-aligned to join the ends of the proposed new wall, it is unclear how and by whom this is to be done. (g) In relation to both (d) and (f) above, the Statement of Environmental Effects states that the proposed new wall will need to be joined to the existing "geobag" walls on the adjacent properties. The Statement of Environmental Effects then continues: As the new wall is deeper and further landward at the property boundaries than the existing geobags walls, some undermining will occur. If approval cannot be obtained from DLWC [Department of Land and Water Conservation] to remove and rebuild a small section of the adjacent geobag walls to abut into the new wall, the excavation will need to be stabilised at the ends with temporary sheet piling during construction. The rebuilding of the adjacent "geobag" walls is not the subject of the development application. It is unclear where the temporary sheet piling is intended to be placed and none is shown on the site plans. The provision of sheet piling is inconsistent with the plans which form part of the development application. (h) Following the rejection of the development application by the council on 28 August 2002, the applicant submitted a further (amended) plan showing the proposed new wall wholly within the applicant's property and adjacent to the property boundaries, with no proposed works shown outside the applicant's property. The existing rubble wall and existing "geobag" walls on the adjoining Crown land are shown as remaining where they are at present. It remains unclear, however, what effect the construction of the proposed new wall this would have upon those existing walls, particularly since part of the proposed new wall includes the removal of that part of the existing rubble wall which stands partly on the applicant's property and which forms part of the wall which stands on the adjoining Crown land. 17 It follows that in exercising afresh the council's power and discretion under cl 51(1) of the EP&A Regulation, the Court again rejects the development application on the ground that it is unclear. The consequence is that the development application is taken for the purpose of the Act to have never been made (cl 51(3)). It also follows that the proceedings must be dismissed. 18 I conclude by making the following additional observation. It is self-evident that any erosion protection works along the beachfront should include a co-operative and co-ordinated approach by the various property owners. A piecemeal approach as proposed by the applicant will be unsatisfactory. It may involve different owners adopting different approaches to the problem, none of which may complement the other and which, on the contrary, may have adverse consequences overall. Orders 19 I make the following orders: (1) The application is dismissed. (2) Costs reserved.

Parkes v Byron Shire Council

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