Land and Environment Court of New South Wales CITATION : Pemberton v Muswellbrook Shire Council [2001] NSWLEC 144 APPLICANTS PARTIES : David William Pemberton and Vicki Annette Pemberton RESPONDENT Muswellbrook Shire Council FILE NUMBER(S) : 10974 of 2000 CORAM: Sheahan J KEY ISSUES: Question of Law :- demolition order - construction of consent - estoppel - power of modification of consent LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Brickworks Ltd v Council of the Shire of Warringah (1963) 108 CLR 568; Byron Shire Council v Vaughan (No.2) (2000) 110 LGERA 424; CASES CITED: Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 92 ALR 9; Pearson v Leichhardt Council (1997) 93 LGERA 206; Ryde Council v Royal Ryde Homes (1970) 19 LGRA 321 DATES OF HEARING: 18/04/2001 DATE OF JUDGMENT: 07/09/2001 APPLICANTS BARRISTER Mr C J Leggat SOLICITORS Halletts Solicitors LEGAL REPRESENTATIVES: RESPONDENT BARRISTER Mr J Connors SOLICITORS Sparke Helmore JUDGMENT: IN THE LAND AND Matter No: 10974 of 2000 ENVIRONMENT COURT Coram: Sheahan J OF NEW SOUTH WALES 9 July 2001 DAVID WILLIAM PEMBERTON and VICKI ANNETTE PEMBERTON Applicants v MUSWELLBROOK SHIRE COUNCIL Respondent JUDGMENT Introduction 1. This is a class 1 appeal against an order issued by the Council requiring the two applicants to demolish a large building ("the shed") erected on the land they own at the corner of Acacia Drive and Beech Street, Muswellbrook (lot 1058 DP 262816). 2. The court notes from photographs (Exhibit C1) that the Pembertons have designed their "front" gardens to incorporate the nature strips between their land and both Acacia Drive and Beech Street, and to blend with the kerb alignments. 3. The applicants' single storey brick home faces Acacia Drive, and is known as 59 Acacia Drive, but the shed faces Beech Street, and has been built very close to the boundary between the applicants' land and the road reserve (see survey by C R Murray, Annexure 'H', pp 27-28, C. Gidney affidavit 12 April 2001). 4. Three questions of law have been raised, and, on 27 February 2001, Bignold J ordered that the first two of them be determined by a judge as preliminary questions. Those two questions are as follows: 1. Whether, on the proper construction of Development Consent 148/99, the garage has been constructed on that part of Lot 1058 identified as being the location for the garage, in the plan attached to and forming part of the Development Consent 148/99. 2. Whether the Respondent is estopped from denying that the garage has been constructed on that part of Lot 1058 identified as being the location for the garage, in the plan attached to and forming part of the Development Consent 148/99. 5. The remaining question posed is: 3. Whether an order for compensation should be made in favour of Mr and Mrs Pemberton pursuant to s 121ZL(1) of the Environmental Planning and Assessment Act, 1979, and if so, for what amount. 6. The merits of the shed are not at issue in this appeal (see T31 L16-18). Factual Background 7. The parties agreed upon a "statement of facts" ("the statement"), with attachments, which also indicated some factual matters on which the parties disagreed. Mr Connors, Counsel for the Council, also relied on an affidavit by Council's Manager of Environmental Services, Christopher Gidney (see par 3 above). 8. From those documents the court has distilled the following summary of relevant facts and events. 9. The Council, on 13 May 1996, adopted Development Control Plan No.3 "Muswellbrook Urban Housing" ("the DCP" – Exhibit C2), section 3.4 (pp9-10) of which deals with streetscape and setbacks. Guideline G2 (p10) says: New development on sites in excess of 400m2 should be set back 5.5m from the front boundary and 3m from a secondary frontage (on corner sites). 10. On 11 November 1998, the first applicant (Mr Pemberton) lodged, with the Council, development application ("DA") 148/99 seeking consent ("DC") for construction of a Colorbond metal garage 7m x 7m on the subject land. 11. Pemberton submitted with the DA a sketch plan (Attachment 'A' to the statement), based on a survey diagram. 12. It is clear from the evidence that his intention was to build the shed approximately 1m from his homesite's western boundary, approximately 1m from the boundary between that land and the Beech Street road reserve, and 6050mm from the Beech Street kerb. 13. The Council, pursuant to authority delegated to Gidney, granted DC on 26 November 1998, subject to conditions (Attachment 'C' to the statement). Gidney carried out no site inspection before or at the time of granting the approval. 14. When the applicants' contractor (Wasson) was about to pour the concrete slab on the site chosen by the applicants, Council officer Woollard, who is junior to Gidney, inspected that proposed slab site on 11 January 1999. In her presence the contractor measured the distance from that site to the kerb of Beech Street at 6050mm. She asked for a short delay while she checked the consent, and, on 12 January 1999, she approved the pour in the position that she had been shown. 15. Gidney himself visited the Pemberton property on 25 January 1999, and told the applicants that they had built the shed in the wrong location. He informed them that his notation on the approved plan (p5 of Attachment 'C' to the statement) required that the shed be built 6050mm from the property boundary with, rather than 6050mm from the kerb of, Beech Street. He then wrote to them in similar terms (Attachment 'D' to the statement). 16. After some negotiations the demolition order was eventually issued by Council to the applicants on 12 September 2000. 17. Gidney deposes (in par 9 of his affidavit of 12 April 2001): Neither myself nor Ms Woollard hold or have ever held delegated authority from the Council to approve a development application or an application for a construction certificate which was not in accordance with the provisions of the Muswellbrook Urban Housing DCP. 18. Copies of the relevant Council delegations to Woollard and Gidney, operative at the relevant times, are before the court (Annexures 'E' and 'F' to Gidney's affidavit). Paragraph 19.2 of Gidney's delegation provides as follows: Approve applications for development consent (other than major development proposals or those likely to be controversial) which are: (a) in accordance with the Council's Planning Instrument, Local Environmental Plans and Development Control Plans. (b) in accordance with accepted Town Planning principles. (c) generally in accordance with Council's policies and Codes. 19. In summary, and putting the position in the most simplistic terms, the facts are that: (i) Pemberton drew his submitted plan on the basis of separation from the kerb; (ii) Gidney made his notation, and granted Council's DC, on the basis of separation from the lot boundary; and (iii) Woollard interpreted the DC, on the basis of her site inspection, so as to accord with the Pembertons' consistent intention regarding the shed's location. The parties contentions 20. The applicants assert, in the statement, that, at the relevant time, they had no knowledge of the contents of the DCP or the limits of Council delegations. 21. On the other hand, the Council says that its DC means what Gidney intended, and that Woollard's delegation did not extend to modifying it when approving the pour. Hence, the shed was erected illegally and should be demolished. 22. The applicants say that: (i) to construe the DC as Gidney intended, and the Council contends, would work a nonsense or a mischief, as a shed of the approved dimensions would occupy land already covered by the Pembertons' house. Such a consequence is clear from the photographs ( Exhibit C1 ), and would have been clear to Woollard on her inspection. The court should avoid such a mischief. (ii) it was open to Gidney, within his delegation, to approve the shed in the location in which it has been built. Woollard clearly saw the issue, went back to Council to check the DC, and then approved the pour in that location. It was perfectly reasonable for the applicants to rely, and act, upon her response. Council has no power to vary the consent without an application for modification (under s 96 of the Environmental Planning & Assessment Act 1979 (" EP&A Act ")). (iii) there is no doubt that Council had the power to approve the development, albeit that the DCP counselled against it. As the applicants did not know of Council's limitation on Gidney's delegation, in circumstances where the DCP's terms are infringed, no breach of the EP&A Act occurred in the grant of DC. See Pearson v Leichhardt Council (1997) 93 LGERA 206. (iv) it is only in the circumstances where Council lacked the power to grant the approval that the Council would not be estopped from denying the consent. Brickworks Ltd v Council of the Shire of Warringah (1963) 108 CLR 568. 23. The Council notes that Pemberton's submitted sketch plan was obviously based on a survey, even showing site boundary measurements, and not following the kerb line. The Council says that: (i) the approving officer acted reasonably in inferring from the DA that the actual site boundaries were the lines from which the setback should be prescribed in granting the DC. (ii) in terms, the DC allowed the applicants to construct the shed 1m from the western boundary, and 6050mm from the Beech Street boundary, and Woollard had no power, either by statute, or under the terms of her delegation, to modify the consent to re-site the building. (iii) approval in Pemberton's preferred location, not clearly indicated in his application, involved a breach of the DCP, and so was beyond Gidney's delegation. (iv) Council has a statutory obligation to enforce the terms of its consent and that obligation cannot be fettered by an estoppel. Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 92 ALR 9. Discussion 24. The court has some sympathy for the situation in which the Pembertons find themselves, in that it was, and remains, simply not possible for them to build the shed they want in the position in which the Council would prefer them to do so. 25. However, the DC granted by Council must be construed and enforced. The DC makes clear, on its face, that the Council intended the applicants to site their shed 6050mm from the boundary of their land. The plan submitted with a DA can sometimes be relied on to help construe the DC, but only in very limited circumstances when the DC itself is not clear. Ryde Council v Royal Ryde Homes (1970) 19 LGRA 321. 26. In this case the court does not need to resort to such extraneous documents, but even if it did, and/or should, so resort, the applicants' plan is less clear than the "amended" version of it which forms part of the DC, and so cannot assist in the construction of the DC. 27. Further, Mr Connors is correct in his submission that the development site approved by that DC could not be, and was not, modified by Woollard's decision on the pour. 28. I would, therefore, answer the first question "no". 29. That being so, there is really no need for the court to deal with the second question, but as it was fully argued at the hearing, and lest I be wrong on the first issue, I should do so briefly. 30. The court is fortunate to have the advantage of the learned exposition of the relevant principles of estoppel in the judgment of Lloyd J in Byron Shire Council v Vaughan (No.2) (2000) 110 LGERA 424. 31. I accept and follow the tests and principles enunciated by His Honour, without reservation, but I agree with Mr Connors' submission that Vaughan is of no assistance to the applicants in this case, as they were not induced by the Council's actions or decisions to "alter their position" in any way (see Lloyd J's point (6), at 433). Indeed, on the question of their development, the Pembertons' position has never altered, save for some possible slight adjustment in the location of the slab/shed, so that the point of the slab closest to the kerb, rather than a point further west, was 6050mm from it (Attachment 'A' cf p 5 of Attachment 'C' to the statement). 32. In those circumstances no estoppel can arise in favour of the applicants. 33. I would, therefore, answer also the second question "no". Conclusion 34. Questions 1 and 2 are answered in the negative. 35. The parties should now consider their respective positions in the light of this judgment, and I, therefore, order that the appeal be listed for callover, and, if appropriate, further directions by the Registrar, on Friday 10 August 2001. 36. 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. 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