Townsend & Anor v Evans Shire Council & Ors

APPLICANTS: T F Robertson (Barrister) SOLICITORS: Booth Brown Samuels & Olney

FIRST RESPONDENT: P R Clay (Barrister) LEGAL REPRESENTATIVES: SOLICITORS: McIntosh, McPhillamy & Co

SECOND RESPONDENTS: N/A SOLICITORS: McPhee Kelshaw

IN THE LAND AND Matter No: 40011 of 2000 ENVIRONMENT COURT Coram: Lloyd J OF NEW SOUTH WALES Decision date: 17 August 2000

Colin William Townsend and Mary-Rose Townsend Applicants v

John Anthony Brennan and Judith Brennan Second Respondents

The applicants, Mr C W and Mrs M R Townsend claim a declaration that a development consent granted by the first respondent, Evans Shire Council ("the council") to the second respondents, Mr J A and Mrs J Brennan, on 1 October 1999 for a two-lot subdivision of land is invalid. The applicants also claim a declaration that a resolution of the council on 1 October 1999 rescinding a previous development consent for a two-lot subdivision which it had granted to the applicants on 6 September 1999 is invalid. The applicants seek orders setting aside the consent granted to Mr and Mrs Brennan and setting aside the resolution of 1 October of 1999. The second respondents, Mr and Mrs Brennan, have entered a submitting appearance, save as to costs.

The applicants are the owners of the property known as "Willow Vale", Evans Plains, comprising about four hundred (400) hectares. That property was an existing holding, a term defined by Interim Development Order No.1- Shire of Evans ("the IDO"). Previously "Willow Vale" included an area of about forty (40) hectares now owned by Mr and Mrs Brennan and presently known as "Willow Grove". In 1980, in reliance upon clause 15 of the IDO, Mr Townsend obtained consent from the council to create two (2) concessional allotments, one of which is now "Willow Grove". As the area of the existing holding, "Willow Vale", was more than thirty (30) hectares, the entitlement to concessional allotments from such existing holding is three. Since two concessional allotments had been created, there remained a right to one further concessional allotment.

On 8 April 1999, K Richardson & Associates Pty Limited, acting on behalf of Mr and Mrs Brennan, lodged a development application with the council seeking consent to subdivide the remaining concessional allotment from "Willow Grove". On 28 April 1999 Mr Townsend lodged a development application for subdivision with the council to create the remaining entitlement to a concessional allotment from "Willow Vale".

On 6 September 1999 both development applications came before the council. Mr and Mrs Townsend were present at the meeting and so was Mr Brennan. The council resolved to grant consent to the development application lodged by Mr and Mrs Townsend. At the conclusion of the meeting Mr and Mrs Townsend were told by the mayor: " Well, you have got your concessional lot …". A week after the meeting Mr Townsend contacted staff of the council to obtain the notice of determination, but was told that the notice would not be available because a rescission motion was coming in. On 17 September 1999 a rescission motion duly signed by three councillors was lodged with the council and by letter dated 23 September 1999 the council notified Mr and Mrs Townsend of that fact.

On 1 October 1999 the council rescinded its resolution to grant consent to the development application lodged by Mr and Mrs Townsend and then resolved to grant consent to the development application lodged on behalf of Mr and Mrs Brennan. On 14 October 1999 the council issued a notice of determination to K Richardson & Associates Pty Limited granting consent to that application.

The validity of the development consent granted to Mr and Mrs Brennan depends upon whether their property, "Willow Grove", had a concessional lot entitlement under the IDO. If it did not, then the resolution granting the development consent is invalid.

Clause 15(1) provides that the clause applies to all land within Zone No. 1(a) or 1(b) Both "Willow Vale" and "Willow Grove" are within Zone No. 1(a). Sub-clause (2) relevantly defines " concessional allotment " to mean an allotment referred to in sub-clause (5) (a) or (b). " Existing holding " is defined to mean -

(a) except as provided by paragraph (b) - the area of a lot, portion or parcel as it was at the relevant date; or (b) where, as at the relevant date, a person owns two or more adjoining or adjacent lots, portion or parcels, the aggregation of those lots, portions or parcels as they were as at the relevant date;

The " relevant date " is relevantly defined to mean 31 March 1967.

Sub-clause (4) provides that the council may consent to an application for subdivision if the separate allotment of land created by the subdivision has an area of not less than 100 hectares.

Sub-clauses (5) and (6) of clause 15 are relevantly as follows:

(5) Subject to subclause (6), the council may grant consent under this order in respect of an application to subdivide land to which this clause applies (not being land which forms the whole or part of an existing holding of less than 10 hectares in area) for either or both of the following purposes: (a) to create an allotment of less than 100 hectares in area but not less than 2 hectares if the council is satisfied [of certain development standards] ; (b) to create an allotment of less 100 hectares but not less than 1,000 square metres if the council is satisfied that a dwelling-house is or will be erected on the allotment…

(6) The total number of concessional allotments that may be created (whether by one or more subdivisions made at any time on or after the relevant date) from an existing holding is - (a) where the area of the existing holding is less than 20 hectares but not less than 10 hectares - 1; (b) where the area of the existing holding is less than 30 hectares but not less than 20 hectares -2; or (c) where the area of the existing holding is not less than 30 hectares - 3. 10. Sub-clause (8) provides:

(8) The council shall not grant consent under this order in respect of an application to subdivide land to which this clause applies so as to create an allotment other than an allotment referred to in subclause (4), (5), (7) or (9). 11. It follows from the terms of sub-clause (8) that clause 15 is the exclusive source of power to subdivide land in Zone No.1 (a) and (b).

Mr T F Robertson, who appears for Mr and Mrs Townsend, made the following submissions. No concessional allotment may be created in the circumstances of the present case by subdivision other than one referred to in sub-clause (5). An allotment created pursuant to sub-clause (5) is a concessional allotment. Concessional allotments are created from an existing holding, subject to the right to re-subdivide the residue of the existing holding after it has already yielded one or more concessional allotments. This right flows either from the bracketed words in sub-clause (6) - " (whether by one or more subdivisions made at any time on or after the relevant date) " - or from the definition of subdivision in clause 2 (1A) which includes re-division of land. What yields a concessional allotment is an existing holding. The two concepts are different and clause 15 provides no authority for the subdivision of a concessional allotment, unless that allotment satisfies the development standards in other (presently irrelevant) parts of the clause, such as one which satisfies the minimum area requirement of 100 hectares in sub-clause (4). The entitlement to create a concessional allotment depends upon there being an existing holding and once a concessional allotment is created it ceases to retain its identity as part of an existing holding.

Mr P R Clay, who appears for the council, submits that the term " existing holding " is defined by reference to an area as at the relevant date; that "Willow Grove" was part of "Willow Vale" as at that date and so was part of an existing holding from which a further concessional allotment may be created.

The concessional allotment entitlement remain vested in the retained land

In my opinion the submissions of Mr Robertson are to be preferred. The entitlement to create a concessional allotment attaches to an existing holding. The land known as "Willow Grove" is not and cannot be an existing holding. "Willow Grove" did not exist at the relevant date as a " lot, portion or parcel of land " and it lacked the necessary degree of precise delineation or description so as to qualify as a lot, portion or parcel of land at the relevant date. Alternatively, if it did exist, it was at the relevant date owned by the same person who also owned adjoining lots, portions or parcels and it is the aggregation of those lots, portions or parcels at the relevant date which comprises the existing holding and from which the prescribed number of concessional allotments may be created. There is nothing in clause 15 nor in sub-clause (6) in particular which suggests that the concessional lots themselves enjoy the entitlement described therein. These considerations, together with those relied upon by Mr Robertson (and which I have summarised in paragraph 12 above) lead me to the conclusion that the concessional allotment entitlement remains vested in the retained land. This conclusion is consistent with that of Bignold J in Fencott Drive Pty Limited v Lake Macquarie City Council [2000] NSWLEC 146 at [29]-[41].

The resolution to rescind the first consent is valid

Mr Robertson's submissions on this issue were as follows. The council's resolution to grant consent to Mr and Mrs Townsend's development application was a determination of that development application within section 80(1) (a) of the Environmental Planning and Assessment Act 1979 ("the EP&A Act"). A consent is granted when it is determined, but is beyond recall upon communication to the applicant. Mr and Mrs Townsend were present at the meeting and the consent was communicated to them by the Mayor (albeit orally). The requirement for a formal communication is to authenticate the decision and that requirement is satisfied where the act which amounts to the granting of consent occurs at a properly constituted meeting of a council in the presence of the applicant. Section 81 of the EP&A Act, which deals with post-determination procedures, cannot change the legal character of what the council did.

Mr Clay relies upon section 81 of the EP&A Act, which requires the council to notify its determination of a development application in accordance with the regulations. He referred to clauses 68A and 69 of the Environmental Planning and Assessment Regulation 1994 ("the Regulation"), to which I refer in paragraph 18 below. The only formal notification given to Mr and Mrs Townsend was the letter of 23 September 1999 notifying them that a rescission motion has been lodged. Since there was no formal notice of determination of Mr and Mrs Townsend's development application, there was no consent thereto.

( 1) General A consent authority is to determine a development application by: (a) granting consent to the application, either unconditional or subject to condition, or (b) refusing consent to the application. 18. Section 81(1) (a) of the Act provides that the consent authority must, in accordance with the regulations, notify its determination of a development application to the applicant. Clause 68A of the Regulation prescribes the form of the notice of determination of a development application and further provides that the date on which the development application was determined and the date from which the development consent operates (if development consent is granted) must be endorsed on the notice. Clause 69(1) of the Regulation provides that the notice of determination must be sent to the applicant within fourteen (14) days after the date of determination of the development application. (In Mr Robertson's submission the council is in breach of clause 69(1) because it failed to send to the applicants the notice of determination within fourteen days or at all). Sub-clause (2) of clause 69 provides that failure to send a notice within fourteen-day period does not affect the validity of the notice or the development consent (if any) to which it relates. As Mr Clay pointed out, however, sub-clause (2) of clause 69 merely validates a late notice.

19. The provisions of the Act and Regulation to which I have referred show that there is no effective development consent until a formal notice of determination is given to the applicant. It is necessary that the communication of the consent have some formal character as being authenticated on behalf of the council ( Shanahan v Strathfield Municipal Council [1973] 2 NSWLR 740 at 744, Panagopoulos v Willoughby City Council (1992) 78 LGERA 270 at 273). In Shanahan , Street CJ in Eq. held (at 744) that a mere informal ascertainment of a member the council of what had taken place in the council was not notice to the applicants so as to tie the council hands. In the present case it cannot be said, in my opinion, that the statement made by the Mayor to the applicants following the meeting was of such formal character as to tie the council hands.

20. In ex parte Renouf (1924) 24 SR (NSW) 463 , a local government council rescinded a resolution approving an application for the subdivision of land. Street ACJ said at 466-467):

Before a decision on an application has been communicated to the applicant, and therefore, before it can have been acted on in any way, I can see no reason why the council should not reconsider any determination it may have come to. Without alleging anything in the nature of want of good faith, circumstances will readily suggest themselves in which in the interests of good municipal government it would be proper and desirable that an application should be reconsidered, and it would be unreasonable that the council should not have the power of reconsideration. I do not overlook the argument that applications of this kind are not matters of mere domestic or internal concern, but that, in such cases, the council is exercising a statutory power of interfering with individuals in the exercise of their rights of ownership over land, and that no power of reconsideration is conferred in terms by the Act; but I do not think that this concludes the matter. I think, on the contrary, that as long as the council acts in good faith it has an inherent power to reconsider its determination before notifying its decision to an applicant, and the Legislature seems to have contemplated this, and to have provided against undue delay, by enacting in s 341 that if a decision is not given within 40 days an applicant may appeal to a district court judge, whose decision shall be deemed to be the final decision of the council. It must arrive at a decision within 40 days after an application is made, but a decision is not effective until the applicant is notified of it, and, as long as the council keeps within the period of 40 days mentioned in s 341, I see nothing in the language of the Act to prevent it from reconsidering an uncommunicated determination, which may have been ill-considered or too hastily formed. 21. I see no reason why the above-mentioned judgement of Street ACJ should not be as valid today as it was then. Moreover, section 372 of the Local Government Act 1993 expressly allows the rescinding or altering of resolutions of a council. In present case the rescission motion was lodged with the council within 14 days of the resolution to grant consent to Mr and Mrs Townsend's application. That is to say, the rescission motion was lodged before the council was required by clause 69(1) of the Regulation to issue a notice of determination. In my opinion the council was not acting unlawfully in failing to issue a notice of determination pending the outcome of the rescission motion, particularly since the determination of the development application is not effective until formally communicated to the applicants. Moreover, sub-clause (2) of clause 69 of the Regulation recognises that there may be circumstances when the notice of determination may not be issued within 14 days. It follows that the resolution to rescind the first consent is valid.

22. The first declaration sought by the applicants should be made. The second declaration sought by the applicants should be refused. An order should be made setting aside the second consent purportedly granted to Mr and Mrs Brennan's development application.

Orders 1. A declaration that the consent granted by notice of determination dated 14 October 1999 by the first respondent to K Richardson & Associates Pty Limited on behalf of the second respondents for a two-lot subdivision, DA No. 126/99, subdividing lot 1 in DP 620809 is invalid. 2. The consent described in the declaration in paragraph 1 hereof is set aside. 3. The question of costs is reserved. 4. The exhibits may be returned.

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.

1. A declaration that the consent granted by notice of determination dated 14 October 1999 by the first respondent to K Richardson & Associates Pty Limited on behalf of the second respondents for a two-lot subdivision, DA No. 126/99, subdividing lot 1 in DP 620809 is invalid.

2. The consent described in the declaration in paragraph 1 hereof is set aside.