WORLD WINGS PROPERTY INVESTMENT CO PTY LTD v THE COUNCIL OF THE SHIRE OF WARRINGAH SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL GLEESON CJ, CLARKE JA and SHELLER JA 11 March 1992, 11 March 1992 [1992] NSWCA 283 LAND AND ENVIRONMENT — LOCAL GOVERNMENT — LEGAL REPRESENTATION LEGAL REPRESENTATION — The appellant company was not legally represented as required by Supreme Court Rules Pt4 (1). One of its directors and its major shareholder, Mr Valassis, sought leave to appear for it. Held: The Court declined to grant leave but invited Mr Valassis to say whatever he wished in support of the appeal. LAND AND ENVIRONMENT — The respondent, Warringah Shire Council, approved an application for subdivision of land adjoining some land owned by the appellant. The appellant sought a declaration that the approval was null and void. The appellant based its application for relief on two bases: 1. That the Council's approval did not comply with the Council's Subdivision Code; 2. That approval should not have been granted by reasons of consideration of planning merit. Held: The appellant had failed to establish that the Council's decision was vitiated by legal error or was not one that was reasonably open to it. Local Government Act Land and Environment Court Act Bay Marine Pty Ltd v Clayton Country Properties Pty Ltd (1986) 5 ACLC 38 KuRingGai Municipal Council v Gormly (1974) 2 NSWLR 102 Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24 Sheller JA The appellant, World Wings Property Investment Company Pty Ltd commenced class 4 proceedings in the Land and Environment Court by an application made on | March 1989. In that application it sought amongst other things a declaration that the approval purported to have been given by the first respondent, which was the Warringah Shire Council, on or about 8 March 1983 to subdivide the property known as 34-36 Delmar Parade, Dee Why was null and void. Relief against other parties, including the owners of 34-36 Delmar Parade was also sought in the proceedings but abandoned by an amendment which was made by leave before the hearing in the Land and Environment Court commenced. The only question ultimately before the Land and Environment Court and in this Court on appeal is whether or not the declaration to which I have referred should have been made. The appellant company owns the adjoining property 38-30 Delmar Parade on which there is a dwelling house, which has been occupied since about 1978 as a residence by Mr Dennis Valassis, who is a director of the appellant company and also its major shareholder. The subdivisional approval of 34-36 Delmar Parade was granted under Pt12 of the Local Government Act. The appellant alleged that it was contrary to the Council statutory subdivisional requirements. 2 UNREPORTED JUDGMENTS The matter came on for hearing before Mr Justice Bignold who, on 31 January 1990, dismissed the appellant's application and on 9 March 1990 made orders that the appellant pay the costs. This appeal, which is brought pursuant to s58 of the Land and Environment Court Act is from his Honour's decision. At the commencement of the hearing of the appeal, Mr Dennis Valassis sought leave to appear for the appellant. Such leave is not normally granted, except in special circumstances, for reasons which were explained in this Court in Bay Narine Pty Ltd v Clayton Country Properties Pty Ltd (1986) 5 ACLC 38. However, without granting such leave we invited Mr Valassis to say whatever he wished in support of the appeal and he has availed himself of that opportunity. The appellant complained of the construction of a concrete driveway on 34-36 Delmar Parade from Delmar Parade alongside the common boundary, with the appellant's land, for a distance of some 45 metres involving a steep gradient. This driveway provides access to the rear lot of the subdivision approved by the Council in March 1983. During the excavation works for the driveway construction carried out in September 1983 the foundations of a brick boundary wall on the appellant's land were said to have been damaged, causing - it was said - its eventual collapse in 1984. The appellant, in September 1983, made representations to the Council and to the adjoining property owners seeking to avoid anticipated damage to this property. The adjoining property owners in September 1983, gave written acknowledgement to the appellant of the damage already caused to the common boundary wall and an assurance that the wall would be repaired. The Council adopted the position that it was not involved in the matter which it regarded as essentially involving the interests of the adjoining property owners. When further and greater damage to the wall was sustained in March 1984 the appellant made similar representations to the Council and the adjoining property owners. After a sustained flow of correspondence the Shire President wrote to the appellant on 13 August 1984 advising that the driveway construction had been completed to the Council's satisfaction. He denied the change caused to the appellant's property had been caused by want of care on the part of the Council and concluded his letter by saying that any surviving dispute involving the neighbouring property owners must be resolved by them without Council intervention. In 1985 the appellant commenced proceedings in the District Court against the adjoining property owners. The proceedings with which we are here concerned were commenced by the appellant some six years after the grant of approval of the subdivision by the Council and nearly three years after the deposited plan was registered on 22 May 1986. Needless to say, Mr. Justice Bignold, in the course of his judgment, was concerned with the discretionary question of whether, after this lapse of time and in the light of what had happened in the interval - the orders sought by the appellant should be made. However, his Honour went on to deal with the substance of the matter as it was presented to him and said in effect that that application was based on two grounds, which as I understand the submissions put to us today, are maintained in this Court. WRAIRLD WINGS PROPERTY INVESTMENT CO PTY LTD v THE COUNCIL OF TH SHIRE OF WARRINGAH (Sheller JA) Firstly, it was submitted that the approval did not comply with the Council's Subdivision Code. Secondly, it was submitted that the approval should not have been granted by reason of considerations of what his Honour called compendiously planning merit. In his Honour's view neither ground provided a legal basis for sustaining the attack made by the appellant on the validity of the subdivision. As his Honour pointed out and as appears from the material which is included in the appeal book, the matter of noncompliance with the Council's subdivision Code was something of which the Council was aware. By that I mean that it was aware that the proposed subdivision did not comply with the requirements of both the Warringah Planning Scheme Ordinance and the subdivision Code in respect of the width of the lot having street frontage and the width of the access corridor to the rear lot. However, as his Honour said such non-compliance was not legally fatal because the Warringah Planning Scheme Ordinance requirements under CL45(2)(b) and CL45(2)(c) applied in terms to "the erection of a dwelling house" and hence not to the subdivision of land and the Subdivision Code does not operate as a fetter on the Council's statutory discretion conferred by s333, which is part of Pt12. In that regard his Honour made reference to the decision of Mahoney JA in KuRingGai Municipal Council v Gormly (1974) 2 NSWLR 102 at 104. His Honour went on to say that in other words there being no legal or mandatory obligation on the part of the Council to disapprove the application on account of its noncompliance with either the relevant planning scheme ordinance or the subdivision Code it necessarily followed that it could grant approval to the application in accordance with the wide discretion conferred upon it. His Honour said, and again I have examined the documents in the appeal book and they entirely support this, that the documents evidencing the Council's consideration and determination of the subdivision application clearly indicate that the Council understood the nature of its discretion and the decision it made was clearly open to it in law. The second basis of attack founded on considerations of planning merit, his Honour dealt with it by referring to the general nature of the discretion available to a Council in making decisions on subdivision approval applications. His Honour said that in proceedings such as those before him considerations such as the adverse affect of the subdivision on the appellant were not sufficient in law to sustain an attack upon the subdivision unless it could be demonstrated that the Council's decision was vitiated by some legal error, as for example failing to take into account relevant considerations or taking into account irrelevant considerations, or was so unreasonable that no Council understanding its duty could have reached such a decision. In this regard his Honour referred to the decision of the High Court in Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24. The appellant in the course of its submissions by Mr Valassis to us has asserted a number of adverse consequences to the enjoyment of its property by reason of its development and the location of the driveway on the common property boundary. Amongst other things, reference was made to noise and vibration. It was also asserted that there was error on the Council's part in accepting from the respondents the subdivision approval and their assurance that they would accept responsibility for any restoration works required in the event of damage being caused in the driveway construction process. 4 UNREPORTED JUDGMENTS His Honour was of the view that the applicant had failed to establish that the Council's decision was vitiated by any legal error or was not one that was reasonably open to it. He pointed out what was undoubtedly, if I may say so, correct that it is not the function of the Court in proceedings such as those before his Honour to pass judgment on the planning merits of the Council's decision in exercising its relevant statutory discretion. It was not, therefore, to the point for the appellant merely to assert dissatisfaction with the result of the Council's consideration and determination of the application. For these reasons his Honour dismissed the application. T have listened to Mr Valassis' submissions to us today. In my opinion, having closely considered the judgment given by his Honour it is correct and discloses no error. Accordingly, in my opinion, this appeal should be dismissed with costs. Gleeson CJ I agree with the orders proposed by Mr Justice Sheller and with hisHonour's reasons and his orders. Clarke JA I also agree. Appeal dismissed with costs. Counsel for appellant: D Valassis appearing for Company Counsel for respondent: D Wilson Solicitors for respondent: Wilshire Webb