EMERITUS PTY LTD v SOUTH SYDNEY COUNCIL SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL GLEESON CJ, POWELL and COLE JJA 23 November 1994, 23 November 1994 [1994] NSWCA 89 No enforceable expectation. Gleeson CJ In this matter I will ask Cole JA to give the first judgment. Cole JA On 9 August 1989 South Sydney City Council granted development consentfor the demolition of an existing building and the erection on the property known as 28 Billyard Avenue, Elizabeth Bay, of seven residential units. On 11 August 1989 Emeritus Pty Ltd (Emeritus), the owner of 26 Billyard Avenue Elizabeth Bay, commenced proceedings in the Class Four Jurisdiction of the Land and Environment Court seeking a declaration that the resolution of Council was void, and an order that the Council be restrained from dealing with the building application lodged by the developer, Hopkins and Dyer Pty Ltd, in respect of the proposed development. That application by Emeritus was dismissed by the Land and Environment Court in a judgment dated | February 1990. An appeal was lodged on 28 February 1990 and has come on for hearing today. The original development consent granted on 9 August 1989 would have expired on 9 August 1991 in consequence of the provisions of s99(1) of the Environment Planning Assessment Act 1979. However, in accordance with the provisions of subs3 of that section the developer obtained a one year extension of that development consent, which thus lapsed on 9 August 1992. According to an affidavit filed on behalf of the second respondent in connection with a notice of motion by the second respondent developer seeking orders that the appeal be dismissed and that the appellant pay the respondent's costs, the developer has been unable to obtain finance to proceed with the development. The notice of motion seeking that relief came before the court on 14 November 1994 and was adjourned to the hearing date of this appeal. As the development consent, which the appellant seeks to have declared void, has lapsed, the appeal has no utility. There is now no extant development consent in consequence of the resolution granting such consent which the appellant wishes to have declared void. There remains, however, an outstanding order for costs. Notwithstanding the absence of utility of the appeal, the Court has heard full argument on the merits of the appeal and it is possible to deal with the substance of the matters in issue briefly. The appellant pressed only grounds one, two, five, seven and ten. Those grounds raised, in substance, two matters. Grounds one, two and five contended that Cripps J was in error in finding and inferring that, at the time of granting consent, the Council was aware of the effect of the proposed development on the appellant's property, in particular in relation to its effect upon views, overshadowing, and privacy. 2 UNREPORTED JUDGMENTS The second matter raised was that a resolution of Council that "planks and poles be erected so that the height and bulk of the site may be seen on inspection by aldermen and by residents" constituted a condition precedent to the Council validly exercising a power to grant consent, and gave rise to a "legitimate expectation of benefit" in the appellant which was enforceable.! Having set forth in some detail the history of representations made on behalf of the appellant both in writing and orally by his solicitor, counsel and friends of Mr Ganke, who controls Emeritus, and reciting a history of the inspections, and a history of the erection and marking of poles, absent planks but with ribbons to mark heights, Cripps J at 524 of the appeal book found: "Tn my opinion, the above short description of events leading to the grant of development consent demonstrates the artificiality of Mr Genke's claim that he was denied natural justice by not being given the opportunity to be heard, or that the Council failed adequately to understand the effect of the proposed development on his property." It is unnecessary to recite the detailed factual findings of Cripps J which were not contested by the notice of appeal. They adequately support the passage I have quoted. The written submissions of the appellant contend that CL33 of LEP101 require Council to take into consideration "the impact of the bulk, height and materials of the proposed development" of 28 Billyard Avenue on 26 Billyard Avenue. It may be doubted whether that is the effect of CL33 (page 81 of the appeal book) which is, as Cripps J found, primarily directed to Elizabeth Bay House (page 520 of appeal book). It is unnecessary to decide that matter. However, even if it be correct that CL33 requires Council to have regard to "the bulk, height and materials of the proposed development" in relation to their effect upon 26 Billyard Avenue, the finding of Cripps J that "I am not satisfied that the council did not take into account to the extent required by law the effect on Mr Genke's property of the proposed development" (see appeal book page 526) is supported by the evidence and has not been successfully challenged. It follows that the first ground of substance contained in grounds one, two and five fails. Regarding the second contention that there was an enforceable legitimate expectation that Council would not approve the development without carrying into effect the resolution to erect poles with planks so that the height and bulk of the site might be seen on inspection by aldermen and by residents, in my view Cripps J was correct in holding that the passing of such a resolution did not give rise to any enforceable legitimate expectation such as to invalidate any subsequent consent. The resolution directed attention to a manner in which the height and bulk of the site might be appreciated by aldermen and residents but it did not constitute the only manner by which those aspects could be appreciated or considered, nor did it constitute a condition precedent to further consideration of or granting of consent. As Cripps J made clear, the Council had plans of the development, experts' reports dealing with the height and bulk of the proposed development, it conducted inspections, and it received representations from Mr Genke, his lawyers, and his friends. Poles were erected bearing ribbon markings presumably designating heights. It cannot be said that the absence of planks gave rise to any "legitimate expectation" giving rise to an entitlement to "procedural fairness or natural justice in the exercise of the statutory power or authority" to 1. Hardi v Woollahra Municipal Council (unreported, Cripps JA 17 December 1987); Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648. URJ EMERITUS PTY LTD v SOUTH SYDNEY COUNCIL (Powell JA) 3 grant consent.? In any event it is apparent, as Cripps J found, that the appellant was accorded procedural fairness in relation to the hearing of his objections to the development. Accordingly, the second substantive matter raised by grounds seven and ten of the appeal also fails. I would propose that the appeal be dismissed with costs. In my view the second respondent's motion should also be dismissed with costs but such costs should be limited to those incurred on 14 November 1994, the notice of motion having been brought at a time shortly before this hearing when it had no utility. Gleeson CJ. I agree. Powell JA I agree with the orders which Cole JA has proposed and with the reasons for so doing, which his Honour has indicated. I would add that, in my view, on the proper construction of CL33 of LEP 101 the matters referred to in that clause insofar as they affected 26 Billyard Avenue were not a relevant matter for consideration by the Council. But even if I be in error in that view, the fact is the provisions of s90(c), (e) of the Environment Planning and Assessment Act 1979 required the Council to take into account matters similar to those referred to and the evidence disclosed that it did so. Gleeson CJ: The orders of the Court will be as proposed by Cole JA. Appeal dismissed with costs. COUNSEL: Appellant: P Skinner First Respondent: S Donaldson Second Respondent: T Hale SOLICITORS: Appellant: Nugent Wallman and Carter First Respondent: Pike Pike and Fenwick Second Respondent: Allen Allen and Hemsley 2. Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648 at 651 per Deane J.