Pselletes v Randwick City Council

Court of Appeal (NSW)|2009-08-18|Before: Ipp JA, Tobias JA, Sheahan J

CITATION: Pselletes v Randwick City Council [2009] NSWCA 262

JUDGMENT OF: Ipp JA at 1; Tobias JA at 2; Sackville AJA at 56

(a) Appeal dismissed. DECISION: (b) The appellant to pay the Council's costs of the appeal. (c) Note the Agreement signed by the parties and filed with the papers in the Registry on 3 September 2009 with respect to Points 2 and 3 of the Order issued by the Council under s 121B of the Environmental Planning and Assessment Act 1979 and referred to at [3] of the judgment of Sheahan J of 15 August 2008.

CATCHWORDS: ENVIRONMENT AND PLANNING - Environmental planning - Development control - Consents, approvals and permits - What constitutes consent - Development application for home renovations - Proposal to construct balcony subsequently withdrawn by applicant - Council determined to approve application exclusive of balcony - Notice of determination sent to applicant indicated inclusion of balcony in consent - Whether consent is constituted by determination of consent authority to approve development application under s 80(1) of Environmental Planning and Assessment Act 1979 or notification of determination under s 81

Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979

Alcoa Australia Rolled Products Pty Ltd v Weston Aluminium Pty Ltd [2006] NSWCA 273; (2006) 148 LGERA 439 Auburn Municipal Council v Szabo (1971) 67 LGRA 427 Elarosa Investments Pty Ltd v South Sydney City Council (1994) 83 LGERA 211 Hopkins v Tweed Shire Council [2001] NSWLEC 75; (2001) 113 LGERA 406 Jones v Dunkel (1959) 101 CLR 298 CASES CITED: Miller-Mead v Minister for Housing and Local Government [1963] 2 QB 196 Notaras v Waverley City Council [2007] NSWCA 333; (2007) 161 LGERA 230 Panagopoulos v Willoughby City Council (1992) 78 LGERA 270 Ryde Municipal Council v Royal Ryde Homes (1970) 19 LGRA 321 Stebbins v Lismore City Council (1988) 64 LGRA 132 Woolworths Ltd v Campbells Cash & Carry Pty Ltd (1996) 92 LGERA 244

PARTIES: Gary Pselletes Randwick City Council

COUNSEL: A: In Person R: M Henry

SOLICITORS: A: Newman & Associates, Sydney R: Shaw Reynolds Bowen & Gerathy, Sydney

LOWER COURT JURISDICTION: Land & Environment Court

LOWER COURT MEDIUM NEUTRAL CITATION: Pselletes v Randwick City Council [2008] NSWLEC 234

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40370/08 LEC 41243/04

IPP JA TOBIAS JA SACKVILLE AJA

Tuesday 8 September 2009 GARY PSELLETES v RANDWICK CITY COUNCIL

The appellant was the owner of property upon which a dwelling was erected. On 9 November 2006 the appellant lodged an application with the respondent Council that proposed various alterations to the dwelling, including the construction of a balcony over the roof of the existing garage. A council officer informed the appellant that a neighbour had objected to the application on the basis that the proposed balcony would overlook his property and impact its privacy. As a result, the appellant sent a letter to the Council on 12 December 2006 unconditionally withdrawing so much of the application as related to the balcony.

The council officer subsequently prepared an assessment report recommending the approval of the development application exclusive of the balcony. On 14 December 2006, the council officer's team leader under delegated authority determined to approve the application in accordance with the recommendation contained in the report. On the same day, the Council issued to the appellant a Notice of Determination that, on its face, purported to approve the entirety of the original development application, including the proposed balcony.

The appellant proceeded to construct the balcony. When this was drawn to the Council's attention, it served upon the appellant an order under Item 15 of s 121B(1) of the Environmental Planning and Assessment Act 1979 requiring him to comply with the development consent and take various steps to remove the balcony. The appellant appealed to the Land and Environment Court against the terms of this order and this appeal was dismissed by Sheahan J. The appellant appealed against this decision.

In the Court of Appeal, the primary issue for consideration was whether the development consent was constituted by the determination of the Council's delegate or by the notice of determination. As these documents were apparently inconsistent, resolution of this issue was necessary to establish whether the development consent extended to the balcony.

HELD, dismissing the appeal A development consent is constituted by the actual determination of a consent authority under s 80(1) of the Environmental Planning and Assessment Act 1979 and not by the notice of determination issued pursuant to s 81(1) of that Act. Accordingly, in order to determine the development to which a consent extends, regard must be had to the minutes of the Council containing the relevant resolution or to the written decision of the Council's delegate in those circumstances where there is, as there was in the present case, a relevant difference between the development approved by the delegate and that described in the notice of determination as having been approved.

Hopkins v Tweed Shire Council [2001] NSWLEC 75; (2001) 113 LGERA 406; Panagopoulos v Willoughby City Council (1992) 78 LGERA 270, applied

Auburn Municipal Council v Szabo (1971) 67 LGRA 427; (2006) 148 LGERA 439; Stebbins v Lismore City Council (1988) 64 LGRA 132, distinguished.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40370/08 LEC 41243/04

IPP JA TOBIAS JA SACKVILLE AJA

Tuesday 8 September 2009 GARY PSELLETES v RANDWICK CITY COUNCIL Judgment 1 IPP JA: I agree with Tobias JA. 2 TOBIAS JA: Gary Pselletes (the appellant), who represented himself before this Court and who is a licensed builder, is the owner of a property situated at 93 Little Bay Road, Little Bay (the land). At all material times there was erected upon the land a substantial two-storey dwelling house (the dwelling). 3 On or about 27 September 2006 the appellant lodged with the respondent Council (the Council) Development Application No. 810/2006 (the first application) which proposed various alterations to the dwelling including the extension of the existing garage by two metres towards the street frontage. The Council approved that application on 2 November 2006. 4 On or about 9 November 2006 the appellant lodged with the Council Development Application No 964/2006 (the second application) which relevantly proposed the construction of a balcony over and for the full width of the existing garage and extending for a distance of three metres from the northern wall of the adjoining rumpus room on the first floor of the dwelling. However, an issue arose with the next-door neighbour who objected to the proposed balcony as it would, so it was alleged, overlook the front yard of his property and thus impact upon the privacy of its occupants. 5 As a consequence of a conversation between the appellant and the relevant council assessment officer, Mr Sacha Kaless, by letter dated 12 December 2006 the appellant unconditionally withdrew so much of the second application as related to the proposed balcony. 6 On 14 December 2006, pursuant to delegated authority, Mr Kaless' Team Leader, Mr Roger Quinton, determined to approve the second application in accordance with Mr Kaless' recommendation contained in his assessment report of that application of the same date (the report). 7 On that same day the Council issued to the appellant a Notice of Determination that, on its face, purported to approve the second application including the proposed balcony. 8 Thereafter the appellant proceeded to implement the approval of the second application and constructed the subject balcony upon a concrete slab that served as the roof to the garage. When this was drawn to the Council's attention by the neighbour on or about 12 November 2007, it served upon the appellant an order (the Order) under Item 15 of s 121B(1) of the Environmental Planning and Assessment Act 1979 (the EPA Act) requiring the appellant to comply with the development consent granted with respect to the second application by, relevantly, requiring him to "[1] Remove the brick balustrade to the unauthorised balcony that is located on the top of the concrete slab above the garage (approximately 900mm in height). [2] Demolish and remove [the] unauthorised concrete slab forming the roof to the garage and base for the balcony. [3] Reduce the size of the window opening located on the northern elevation (identified as elevation 1 on the approved plans) above the garage constructed so as to be consistent with DA/964/2006 in terms of width, location and number of openings." 9 Pursuant to s 121ZK of the EPA Act the appellant instituted a Class 1 appeal to the Land and Environment Court against the terms of the Order. That appeal was heard by Sheahan J who, on 15 August 2008, ordered that the appellant's appeal be dismissed. It is against that order that the appellant now appeals to this Court. 10 By virtue of the provisions of s 57(1) of the Land and Environment Court Act 1979, such an appeal is confined to a decision of the Land and Environment Court on a question of law. The only relevant question of law decided by the primary judge and which was in contest on the appeal was whether the development consent granted by Mr Quinton as delegate of the Council on 14 December 2006 included the balcony. The primary judge held that it did not and in my view he was correct in so finding.

The relevant evidence 11 Apart from the appellant's letter to the Council dated 12 December 2006 withdrawing so much of the second application as related to the balcony and to which I have referred at [5] above, there were two critical documents before the primary judge on the construction of which the issue of whether there was consent to the balcony depended. The first was the report which contained an assessment by Mr Kaless of the merits of the application and a recommendation that it be approved subject to a number of conditions. 12 The document commenced by describing the "PROPOSAL" as being "Alterations and additions to the front of the existing dwelling including constructing a new bedroom at the first floor and increasing the width of the existing garage on the ground floor." 13 After describing the site and its locality under the heading "RELEVANT HISTORY", the report referred to the first application and that it provided, amongst other things, for alterations to extend the front garage by approximately two metres and noted that this application had been approved subject to conditions on 2 November 2006. 14 Under the heading "DESCRIPTION OF PROPOSAL" the report stated: "This application proposes alterations and additions to the front of the existing dwelling including constructing a new bedroom at the first floor and increasing the width of the existing garage at the ground floor. Note : The applicant submitted a letter to the Council stating that he would like to remove the proposed balcony from the application. This was after discussion regarding Council's determination including that the balcony in its current state was not acceptable and would have considerable privacy impacts on the neighbouring property at 95 Little Bay Road, Maroubra."

The letter referred to was that of the appellant referred to at [5] above. 15 After dealing with a number of matters not presently relevant, under the heading "NOTIFICATION AND SUBMISSIONS", the report noted that the owners of adjoining and neighbouring properties had been advised of the proposed development. As a result, a submission was received from the adjoining owner in respect of which the report relevantly stated the following: "Issue Comment Privacy impacts from overlooking by the proposed balcony, and previous ability of adjoining properties to overlook. This is an existing situation, however the applicant has withdrawn the balcony from the application and therefore issues of privacy are not a concern."

16 The report then dealt with a number of further issues not relevant to this appeal, concluding that the proposal was permissible with consent and that it was recommended for approval subject to conditions. 17 Under the heading "RECOMMENDATION" the report relevantly stated: " THAT Council's Team Leader under delegated authority from the General Manager, as the consent authority, grant development consent under Section 80 and 80A of the Environmental Planning and Assessment Act 1979 (as amended) to Development Application No. DA/964/2006 for alterations and additions to the front of the existing dwelling including constructing a new bedroom at the first floor and increasing the width of the existing garage at the ground floor at 93 Little Bay Road, LITTLE BAY NSW 2036 subject to the following conditions: 1. The development must be implemented substantially in accordance with the unnumbered plan dated 7 th November 2006 and received by Council on 9 th November 2006, the application form and on any supporting information received with the application, except as may be amended by the following conditions and as may be shown in red on the attached plans:" 18 In addition to the condition that I have set out above, the report recommended the imposition of a further 25 conditions which are not presently relevant. 19 Mr Quinton, as Team Leader, then endorsed the last page of the report in the following terms: "Having considered the report of the Assessment Officer and after having taken into account Council's Local Environmental Policies and Codes I determine that the application subject of this assessment report should be determined in accordance with the recommendation. I have exercised my delegation of authority, in accordance with the instrument of delegation, to determine this application. …(signature)……………. TEAM LEADER Roger Quinton DATE: 14/12/06" (Emphasis added) 20 The second document relevant to the primary issue in the appeal was the Notice of Determination of the second application issued by the Council to the appellant and dated 14 December 2006 (the Notice of Determination). It relevantly provided as follows: "Development Application No: DA/964/2006 G Pselletes 77 William Street EAST SYDNEY NSW 2010 Property Address: 93 Little Bay Road, LITTLE BAY NSW 2036 Description of Work: Alterations and additions to existing dwelling including construction of new bedroom and balcony at front of dwelling at first floor and extension of existing garages Determination: Approved Determination Date: 14 December 2006 Consent to operate from: 14 December 2006 Consent to lapse on: 14 December 2011 Conditions of consent 1. The development must be implemented substantially in accordance with the unnumbered plan dated 7 th November 2006 and received by [the Council] on 9 th November 2006, the application form and on any supporting information received with the application, except as may be amended by the following conditions and as may be shown in red on the attached plans: …" (Emphasis added)

This document then repeated the other 25 conditions that had been recommended by Mr Kaless in the report. The document was signed by Mr Quinton on behalf of the Director, City Planning. 21 The hearing at first instance proceeded upon the basis that, in compliance with cl 100(3) of the Environmental Planning and Assessment Regulation 2000 (the Regulation), the Notice of Determination included a copy of the relevant plans endorsed by the Council as having been approved. The Council accepted that that plan depicted the proposed balcony and that it had not been amended in red pursuant to Condition 1. In other words, there was nothing on the plan to indicate that the balcony was not the subject of the development consent or that its inclusion in the second application had been withdrawn by the appellant prior to its determination by Mr Quinton on 14 December 2006.

The findings of the primary judge 22 The primary judge noted (at [5]) that the second application sought approval for the construction of a balcony over the garage which involved the conversion of the flat garage roof approved by the first application into a balcony. After dealing with the evidence as to the conversation between the appellant and Mr Kaless with respect to the neighbour's objection to the balcony, his Honour accepted Mr Kaless' evidence that he had given the appellant, who was keen to obtain a quick approval of the balance of the works proposed in the second application, the option of either withdrawing the balcony from the application or the Council imposing an appropriate condition to have it removed. His Honour found (at [16]) that the appellant adopted the first of these alternatives in his letter to the Council of 12 December 2006 which, his Honour concluded, clearly withdrew the balcony proposal from the application. His Honour continued in the following terms: "That much is admitted by the [appellant] … and the evidence establishes that that letter was received by the Council on that date [12 December 2006], that it was specifically noted as part of the proposal examined in the assessment report prepared by Mr Kaless … and that it was then considered by Mr Kaless's supervisor, Mr Quinton, before he (Quinton) granted the approval of 14 December 2006. Mr Quinton had authority to reject the recommendation Mr Kaless made to him, but chose to approve it." 23 The primary judge then referred to s 80(1) of the EPA Act which relevantly provided as follows: "(1) A consent authority is to determine a development application by: (a) granting consent to the application, either unconditionally or subject to conditions, or (b) refusing consent to the application." 24 His Honour then observed (at [17]) that that provision "mandates that Council must determine whatever is the subject of the development application at hand, by either consent or refusal. Where an amendment is made or a part is withdrawn, as allowed by the Regulation, the balance is there for decision." 25 The relevant provision of the Regulation to which his Honour was referring and upon which the appellant placed some reliance on the hearing of the appeal, was cl 55 which relevantly provided as follows: "(1) A development application may be amended or varied by the applicant (but only with the agreement of the consent authority) at any time before the application is determined. (2) If an amendment or variation results in a change to the proposed development, the application to amend or vary the development application must have annexed to it written particulars sufficient to indicate the nature of the changed development." 26 The primary judge then noted the appellant's reliance on the terms of the Notice of Determination and his submission that it indicated approval of the proposed work described on the front page of the document which included the balcony. His Honour then continued: "22. The authorities clearly spell out how consents are to be construed, and, once the letter of 12 December 2006 withdrew the [appellant's] development application for the balcony, the Council had statutory power, indeed duty, to consent to, or refuse, only the proposal as so amended (under s 80(1)). 23. Accordingly, I hold that the works associated with the balcony do not enjoy the consent of the Council, and that the challenge to its Order based on the consent properly construed must fail." (Emphasis in original)

A number of peripheral issues can be disposed of 27 The appellant submitted that it was not open to the Council to issue the Order as the development consent to the second application was protected by s 101 of the EPA Act. That section is a privative provision which provides that upon the giving of public notice of the granting of a consent, its validity cannot be questioned in any legal proceedings except those commenced in the Land and Environment Court within three months from the date on which the public notice is given. The development consent to the second application had been so notified and the three months had expired before the Order was issued. 28 The appellant therefore submitted that the effect of the Order was to challenge the validity of the development consent, a submission which his Honour rejected (at [9]) upon the basis that the Council was in fact relying upon the development consent and not seeking to undermine its validity. This finding was clearly correct. 29 The issue before the primary judge was to, firstly, identify the Council's development consent and, secondly, construe that consent for the purpose of determining whether it extended to the balcony. No question of the validity of the consent arose. Accordingly, the appellant's reliance upon s 101 of the EPA Act was misconceived. 30 Before the primary judge and repeated before this Court, the appellant complained that the Council should have called Mr Quinton as a witness and that its failure to do so invoked the principle of Jones v Dunkel (1959) 101 CLR 298. His Honour rejected this submission at [20] of his judgment. Before this Court the appellant's argument, based upon his Honour's alleged error in failing to apply that principle, was difficult to follow. 31 Ultimately, it was submitted that as Mr Quinton had signed both his endorsement of Mr Kaless' recommendation in the report and the Notice of Determination, and as the latter purported on its face to approve the balcony, an inference was available that between the signing of the former and the signing of the latter, Mr Quinton had changed his mind and had determined to approve rather than reject the balcony. In my view no such inference is available from the facts relied upon by the appellant and his Honour was correct in rejecting the appellant's argument based on Jones v Dunkel. 32 The appellant next relied upon the provisions of cl 55(1) and (2) of the Regulation which I have extracted at [25] above. He submitted that his letter of 12 December 2006 failed to comply with sub-clause (2) of that provision in that there was nothing in the letter that provided particulars sufficient to indicate the nature of the changes to the development proposed in the second application as a consequence of the deletion of the balcony. In my view this submission is without merit. There can be no doubt, and the appellant ultimately conceded, that his letter of 12 December 2006 constituted an amendment to the second application within the meaning of cl 55(1). No doubt it would have been open to the Council to reject an amendment which failed to comply with cl 55(2), but it did not do so in the present case. It accepted the amendment deleting the balcony which, in my view, it was entitled to do. 33 The appellant in his written submissions raised a number of other points but I find it is unnecessary to deal with each of these subsidiary points as none is of any substance. 34 The appellant's written submissions also referred to so much of the Order as required the removal of the brick balustrade, the demolition of the concrete slab forming the roof of the garage and the reduction in size of the window openings to the rumpus room. He submitted that these terms were unreasonable and, in the case of the window openings, ambiguous. 35 Notwithstanding that it is highly doubtful whether any of these submissions involved a decision of the primary judge on a question of law, at the suggestion of the Court the parties negotiated and reached agreement on alternative terms to those of the Order under challenge which required the appellant to take certain action depending upon whether or not this Court determined that the development consent to the second application extended to the balcony. Accordingly, the issues raised by the appellant with respect to the terms of those paragraphs of the Orders to which I have referred need not be determined.

Did the Council consent to the balcony? 36 I have already set out at [23] above the terms of s 80(1) of the EPA Act. It is clear that that provision required the Council or, in the present case, its delegate Mr Quinton, to determine the second application by either granting or refusing consent. The Notice of Determination finds its statutory underpinning in s 81 of the EPA Act which relevantly provides as follows: "(1) The consent authority must, in accordance with the regulations, notify its determination of a development application to: (a) the applicant, (b) … (c) …" 37 Section 100 of the Regulation relevantly provides as follows: "(1) For the purpose of section 81(1) of the Act, a notice of the determination of a development application must contain the following information: (a) whether the application has been granted or refused, (b) if the application has been granted, the terms of any conditions … on which it has been granted, (c) … (d) the date on which the determination was made, (e) the date from which any development consent that is granted operates, (f) the date on which any development consent that is granted lapses, …" 38 There are numerous authorities in this Court dealing with the extent to which, if at all, regard can be had to a development application and accompanying documents for the purpose of construing a development consent. It is sufficient for present purposes to refer to the principles stated in Woolworths Ltd v Campbells Cash & Carry Pty Ltd (1996) 92 LGERA 244 at 249 per Sheller JA (with whom Beazley JA agreed) and at 251-252 per Cole JA. A more recent statement of the relevant principles is that of Basten JA, with whom Spigelman CJ and McColl JA agreed, in Alcoa Australia Rolled Products Pty Ltd v Weston Aluminium Pty Ltd [2006] NSWCA 273; (2006) 148 LGERA 439 at 448-450 [34]-[39]. 39 However, the primary issue in the present case is not so much one concerning the construction of the development consent granted by the Council to the second application but one of identification of that consent: was it the decision of Mr Quinton which I have recorded at [19] above or was it the Notice of Determination, the relevant part of which I have extracted at [20] above? 40 The appellant conceded that Mr Quinton had not consented to the balcony when he endorsed Mr Kaless' recommendation contained in the report but maintained that the relevant development consent was that embodied in the Notice of Determination. In this respect he relied upon the decision of this Court (Mahoney, Priestley and Clarke JJA) in Stebbins v Lismore City Council (1988) 64 LGRA 132. In that case the issue was whether the development consent granted by the council extended to the entrance from the relevant property to the Bruxner Highway as shown on the plans which accompanied the application. The notice of determination did extend to the entrance to the highway but the council's resolution granting the consent did not. In a joint judgment the Court explained the issue and its approach to it in the following terms at 134 (omitting citations): "The sole ground argued upon the appeal was that the Council, by giving to the appellants notice in the prescribed form of the development consent in the manner which it did, must be taken to have approved the development application in its entirety. To put it another way the action of the Council in notifying the appellants of the granted development consent and in failing to specify that the consent did not extend to the entrance to the Bruxner Highway shown on the plans which accompanied the application should be taken, despite the terms of the resolution of 11 October 1984, to have approved the development application including the new entrance. The appellant's submissions require the court, in effect, to disregard the Council's resolution and to consider only the notification of development consent in determining whether the Council had, as the appellants urged, granted consent to the whole of the development application. Mr Tamberlin QC, senior counsel for the appellants, referred the court to a number of authorities in support of the proposition that the form of notification itself constituted the relevant development consent. In addition he directed the court's attention to s 104 of the Environmental Planning and Assessment Act 1979 which requires Councils to keep a register, open to the public during ordinary working hours, of such consents. This was, he contended, important, because it emphasised the fact that development consents operate, in effect, in rem and may be availed of by subsequent owners and other occupiers of the land. Assuming in the appellants' favour, but without deciding, that these submissions are correct, it becomes necessary to consider whether the prescribed notice of the grant of development consent sent by the Council to the appellants constituted a consent to the development of the relevant part of the site by the placing upon it of an access way to the Bruxner Highway." (Emphasis added) 41 In the above passage their Honours refer to the reference by senior counsel for the appellants to a number of authorities in support of the proposition that the form of notification itself constituted the relevant development consent. My research has not unearthed any such authority. True it is that in Auburn Municipal Council v Szabo (1971) 67 LGRA 427 (referred to by Basten JA in Alcoa at 448 [36]) Hope J stated at 433, after reference to earlier authority: "It is apparent from these decisions that in determining what a Council has approved one primarily looks at the document constituting the approval, and construes it." 42 The earlier decisions referred to by his Honour were that of Else-Mitchell J in Ryde Municipal Council v Royal Ryde Homes (1970) 19 LGRA 321 and the English Court of Appeal in Miller-Mead v Minister for Housing and Local Government [1963] 2 QB 196. But neither in those cases nor in Szabo was there an issue as to the identification of the development consent in circumstances such as the present where Mr Quinton's decision (being that of the Council) on the one hand is at odds with the Notice of Determination on the other, in that the former excluded the balcony from the approval whereas the latter included it. Where there is no distinction between the terms of a council's resolution on the one hand and the notice of determination on the other, then it matters not whether one construes the consent by reference to the terms of the resolution or to the terms of the notice of determination. In these circumstances it is no doubt convenient to look at the notice of determination as constituting the relevant development consent. 43 In Stebbins it was unnecessary for the Court to determine this issue as it was able to resolve the matter without deciding whether it was the terms of the council's resolution which constituted the relevant development consent or the formal notification of that consent. 44 However, in my view there are authorities to the contrary of the proposition advanced by the appellants in Stebbins, which establish that the development consent is the actual determination of the relevant consent authority under s 80(1) of the EPA Act which should be regarded as quite distinct from the notification of that determination under s 81. Thus in Hopkins v Tweed Shire Council [2001] NSWLEC 75; (2001) 113 LGERA 406 at 410 [26], Talbot J accepted the submission that the council's decision (granting development consent) was its resolution represented in written form by a council minute. Where, however, the s 81 notice does not correctly reflect the council's decision as so represented, then that notice is invalid as a consequence whereof the consent does not become operative for the purpose of s 83(1) of the EPA Act. 45 In this latter respect Hopkins was cited with approval by Hodgson JA, with whom Mason P and myself relevantly agreed, in Notaras v Waverley City Council [2007] NSWCA 333; (2007) 161 LGERA 230 at 235 [13]. 46 Furthermore, in Elarosa Investments Pty Ltd v South Sydney City Council (1994) 83 LGERA 211 at 214 Stein J, then a judge of the Land and Environment Court, agreed with the analysis of the relevant statutory provisions by Bignold J in Panagopoulos v Willoughby City Council (1992) 78 LGERA 270 at 273 where his Honour said: "In my opinion the combined effect of sections 91, 92 and 93 of the Environmental Planning and Assessment Act [the then equivalents of the current ss 80, 81 and 83] in respect of the grant of development consent, is that the determination of the consent authority though made under s 91 when the consent authority passes the relevant resolution, is not effective until communicated in a notice given under s 92 bearing the endorsement of the 'date of the consent' under s 93." 47 Although dealing with a different issue, the authorities to which I have referred in the preceding paragraphs make it clear that as a matter of statutory construction it was the determination of the consent authority under s 80(1)(a) to grant consent to a development application which constitutes the development consent and that the notice of determination issued pursuant to s 81(1) does not itself constitute that consent but is merely evidence of it. The juxtaposition, as well as the text of each of these provisions, make this clear as a matter of statutory interpretation. 48 Section 81(1) refers to the consent authority notifying its determination of a development application, this being a reference back to the authority's determination, if such it be, to grant consent pursuant to s 80(1)(a). The latter precedes the former and it is the latter that constitutes the terms of the authority's consent to the relevant application. The notice of determination is no substitute for that determination although an inconsistency between the terms of the authority's determination under s 80(1)(a) and those of the notification under s 81(1) may have legal consequences such as those referred to in Hopkins. 49 To the extent, therefore, that the Notice of Determination does not reflect Mr Quinton's determination of the second application under s 80(1), it is the latter and not the former to which regard must be had for the purposes of determining the development to which the consent relates. 50 Accordingly, in my view, to determine whether the development consent granted by Mr Quinton under delegated authority extended to the balcony, one is required to construe his decision as recorded at [19] above. The Notice of Determination upon which the appellant relied can, therefore, be put to one side. However, it is relevant to note that the Council did not seek to suggest that any incongruity or inconsistency between Mr Quinton's determination of the second application and the terms of the Notice of Determination should attract the consequence that the consent granted by Mr Quinton on 14 December 2006 had not commenced to operate: see Hopkins. 51 In my view there can be no doubt that Mr Kaless' recommendation, which I have recorded at [17] above, was one that related to the second application minus the balcony. This is so notwithstanding the terms of Condition 1 and the fact that the plans to which reference is there made did not carry any endorsement in red which indicated that the balcony had been deleted from the application. It is patently clear from the report that the application that he was assessing, and in respect of which he was making a recommendation, excluded the balcony. 52 Equally, in my view Mr Quinton's determination to approve the application in accordance with Mr Kaless' recommendation was one that did not extend to the balcony. In that part of his determination which I have recorded at [19] and emphasised, Mr Quinton expressly identifies the application which he was determining as being that the "subject of this assessment report" which, in turn, was the second application excluding the balcony. 53 Accordingly, for the foregoing reasons in my opinion the primary judge was correct to find, firstly, that the relevant consent which he was required to construe was the determination of Mr Quinton and not what was contained in the Notice of Determination and, secondly, when properly construed, Mr Quinton's determination to grant development consent to the second application did not extend to the balcony.

Conclusion 54 It follows that the appellant's challenge to his Honour's finding that the development consent granted by the Council in respect of the second application excluded the balcony fails with the consequence that his appeal against his Honour's decision should be dismissed with costs. 55 I would therefore propose the following orders:

(b) The appellant to pay the Council's costs of the appeal.

(c) Note the Agreement signed by the parties and filed with the papers in the Registry on 3 September 2009 with respect to Points 2 and 3 of the Order issued by the Council under s 121B of the Environmental Planning and Assessment Act 1979 and referred to at [3] of the judgment of Sheahan J of 15 August 2008. 56 SACKVILLE AJA: I agree with Tobias JA. **********

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.

(2006) 148 LGERA 439

(2001) 113 LGERA 406

(2007) 161 LGERA 230

At a glance

Court

Decision date

Before

Source

Judgment (35 paragraphs)

Parties

Cases Cited (11)

Cited By (13)