Land and Environment Court of New South Wales CITATION : Smith v Randwick City Council [2001] NSWLEC 77 APPLICANT Smith PARTIES : RESPONDENT Randwick City Council FILE NUMBER(S) : 10827 of 2000 CORAM: Cowdroy J KEY ISSUES: Development :- Consent lapsing - application to extend time - 'good cause' required to be proved - good cause absent - no basis to extend time. LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 95A(2) Derodo Pty Limited v Ku-ring-gai Municipal Council (1992) 77 LGRA 1; Green v Kogarah Municipal Council (1998) 99 LGERA 24 ; CASES CITED: Nick Giannaras v Council for the City of Queanbeyan (Bignold J, NSWLEC, 4 November 1992, unreported); O'Brien v Randwick City Council (Bannon J, NSWLEC, 21 May 1993, unreported); Winer v Ku-ring-gai Municipal Council (Talbot J, NSWLEC, 22 June 1993, unreported) DATES OF HEARING: 3/11/00, 18/4/01 DATE OF JUDGMENT: 04/27/2001 APPLICANT Mr T Hale SC SOLICITORS Taylor Kelso LEGAL REPRESENTATIVES: RESPONDENT Mr A Thompson (Barrister) SOLICITORS Bowen & Gerathy JUDGMENT: IN THE LAND AND MATTER No. 10827 of 2000 ENVIRONMENT COURT CORAM: Cowdroy J OF NEW SOUTH WALES DECISION DATE: 27/4/01 Norman and Janelle Smith Applicants v Randwick City Council Respondent JUDGMENT 1. By application class one the applicants appeal pursuant to s 95A(2) of the Environmental Planning and Assessment Act 1979 ("the EP&A Act") against a deemed refusal of Randwick City Council ("the council") of an application to extend development consent 97/739 ("the consent"). This appeal has been heard simultaneously with a notice of motion filed by the council seeking summary judgment which came before the Court on 3 November 2000. 2. The consent related to substantial alterations to the applicants' residence at 4 Woli Place Malabar ("the site"). On 27 March 1998 the council granted the consent pertaining to such development subject to conditions. Condition 10 thereof stated:- The use of tinted or reflective glass is not permitted. 3. The applicants disagreed with condition 10 and sought to satisfy such condition by the use of glass known as Pilkington grade laminated 10.38 mm ("Pilkington glass"). Such issue was raised with council officers on 1 April 1998. The applicants thereafter sought information from Pilkington Australia Limited ("Pilkington") concerning the use of Pilkington glass and on 22 April 1998 a sample thereof was obtained. 4. The purpose of condition 10 was explained to the first named applicant ("Mr Smith") by council as necessary for two reasons. Firstly, the 'physiological privacy effect' from the rear of neighbouring premises 129 Bilga Crescent was recognised by council as requiring protection. This matter had been specifically identified by Assessor Watts (as he was then known, now Commissioner Watts) in his judgment of 30 June 1997 which dismissed an earlier development application for the site. The proposed alterations to the applicants' residence would overlook the swimming pool and rear yard of the neighbouring property. The neighbour wished to ensure that he would be aware if the privacy of his rear yard was being compromised by persons looking into it from the site property. The use of tinted or reflective glass was considered by council as inimical to such concern. The second reason given by council for the use of clear glass was aesthetic, namely to ensure the reduction of the appearance of bulk resulting from the proposed alterations. 5. On 27 July 1998 an application was made by the applicants to council pursuant to s 102 of the EP&A Act to delete conditions 5, 6 and 7 and to modify condition 11. On 1 October 1998 council agreed to the deletion of such conditions but refused to amend condition 11 which related to the blocking out of a window. No application was made to delete or amend condition 10. 6. No communication was made by the applicants to council concerning the use of the Pilkington glass between April 1998 and 22 February 1999. On 22 February 1999 the applicants lodged a building application for the proposed works the subject of the consent. The specification of building materials nominated the use of the Pilkington glass for windows as per the sample. 7. On 15 March 1999 Mr Smith was informed that the building application had been referred to the Planning and Environment Department of the council for consideration of the glass sample. He telephoned the Mayor of the council expressing concern with the manner in which his application was being processed urging that the Pilkington glass would be satisfactory. 8. On 22 March 1999 Mr Burke, an officer of the council, telephoned Mr Smith and informed him that the sample of Pilkington glass did not possess the requisite qualities to satisfy condition 10 and suggested a meeting on-site. 9. During the course of several conversations with council officers Mr Smith referred to the fact that he had selected Pilkington glass which, in his opinion, had greater safety features, lower reflectivity than clear glass and was more energy efficient. Mr Smith emphasised that such glass had been permitted in an adjoining residence known as 6 Woli Place. 10. Mr Smith arranged for Pilkington's development manager, Mr Ingham, to write directly to Mr Ian Burke of the council's town planning department concerning the use of the Pilkington glass and he duly wrote to the council by letter dated 27 April 1999 describing its features. On the 17 May 1999 Mr Burke responded to Mr Ingham and explained that council did not have a policy against the use of such glass but rather that condition 10 was imposed pursuant to objective 1(e) of Development Control Plan No 4 'in terms of visual privacy and visual and environmental amenity'. Mr Burke stated, 'In respect of the sample provided, I wish to confirm that the glass sample provided, namely Pilkington grade laminated 10.38 mm does not satisfy the above condition'. 11. On 18 May 1999 Mr Smith received a copy of Mr Burke's reply to Pilkington and he thereupon made contact with the Mayor. Mr Smith explained to the Mayor that the premises at 6 Woli Crescent contained the same glass as he wished to use and maintained that council had made a mistake in refusing to accept Pilkington glass in satisfaction of condition 10. 12. Between May 1999 and 10 November 1999 nothing was done towards resolving the issue of condition 10. On 10 November 1999 a building surveyor of the council telephoned Mr Smith to inquire into the state of the applicants' building application. Mr Smith responded by re-iterating his belief that Pilkington glass should be acceptable. Mr Smith was advised to speak to the Mayor, a suggestion he refuted. 13. On 3 March 2000 Mr Smith wrote to the Mayor pressing his belief that the Pilkington glass complied with condition 10 and that the council officers were mistaken in rejecting such glass. The letter was highly critical of council officers, and of the fact that correspondence had passed between council and Pilkington, even though Mr Smith had initiated such dialogue. 14. On 22 March 2000 a building surveyor of council telephoned Mr Smith to advise him of the fact that the consent would expire on 27 March 2000 and that he should seek an extension of time. On 24 March 2000 the applicants lodged with council an application to extend development consent. The ground for such extension is stated as follows:- Incorrect decision by council in assessing building application. The application referred to the letter dated 3 March 2000. 15. The council has made no determination of the application and accordingly it is from the deemed refusal of that extension that this application has come before the Court. 16. To complete the history of this matter, the Court notes that on 27 July 2000 the applicants made an application to modify the consent to use Pilkington glass and that such application is deemed to have been refused. By application class one filed 7 September 2000, the applicants also appeal to this Court against council's deemed refusal of the application to modify the consent. Findings 17. The applicants were aware of their right to seek modification of the consent from May 1999. Such application was made in respect of several conditions but no application was made in respect of condition 10, even though they were aware that Pilkington glass was unacceptable to the council. The impasses between the applicants and the council has resulted solely from the applicants' insistence that council was in error in rejecting Pilkington glass as a means of fulfilling condition 10. 18. There was in fact no error by council. The expert evidence of both parties clearly establishes that Pilkington glass does not contain qualities which would conform to the requirements of condition 10. 19. Section 95A of the EP&A Act relevantly provides:- (1) If, in granting a development consent, the consent authority reduces the period after which the consent lapses to less than 5 years, the applicant or any other person entitled to act on the consent may apply to the consent authority, before the period expires, for an extension of 1 year. (2) The consent authority may grant the extension if satisfied that the applicant has shown good cause. The applicants' appeal against the deemed refusal to approve an extension raises no new matter. The letter of 3 March 2000 addressed to the Mayor which is relied upon as the basis of the application merely re-iterates the applicants' opinion that the council was wrong in its refusal to accept the Pilkington glass. 20. 'Good cause' is required to be shown to justify the Court granting any extension: see Derodo Pty Limited (in liquidation) v Ku-ring-gai Municipal Council (1992) 77 LGRA 1; Nick Giannaras v Council for the City of Queanbeyan (Bignold J, NSWLEC, 4 November 1992. unreported); Winer v Ku-ring-gai Municipal Council (Talbot J, NSWLEC, 22 June 1993, unreported); O'Brien v Randwick City Council (Bannon J, NSWLEC, 21 May 1993, unreported); and Green v Kogarah Municipal Council (1998) 99 LGERA 24 at 28. 21. The consent was valid for two years. The time limits prescribed by the EP&A Act are obviously imposed for the purpose of maintaining orderly planning and development. The applicants had ample time to implement the conditions of consent, or alternatively to make an application to vary such condition during the currency of the consent. In the circumstances of this case the Court is satisfied that 'good cause' for an extension is absent. In such circumstances, the Court finds that there is no basis to grant the extension sought. Costs 22. On the first day of the hearing the Court was concerned with council's motion to summarily dismiss the application for the extension of time. The applicants submit that the council's motion could not have succeeded and that they should have an order for their costs of that day. The applicants maintained that Pilkington glass satisfied the requirements of condition 10. No expert evidence was led on this issue at that hearing and it has transpired subsequently that the applicants' contention was erroneous. 23. The Court considers that no order for costs should be made in respect of the first day of hearing because the hearing of the motion was adjourned to enable the applicants the opportunity to adduce expert evidence. As to the second day of hearing the Court considers that the appropriate order is that the applicants pay the respondent's costs since the application for extension has been unsuccessful. Orders 24. The Court orders:- 1. The appeal be dismissed. 2. The applicants pay the respondents costs of the hearing on 18 April 2001. 3. The exhibits 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.