Land and Environment Court of New South Wales CITATION: Mason Architects v North Sydney Council [1999] NSWLEC 176 PARTIES APPLICANT Mason Architects RESPONDENT North Sydney Coucnil NUMBER: 10226 of 1999 CORAM: Lloyd J KEY ISSUES: Question of Law :- Development in contravention of previous development consent - whether such development permissible LEGISLATION CITED: DATES OF HEARING: 06/25/1999 DATE OF JUDGMENT DELIVERY: 07/30/1999 APPLICANT: Mr A Seton (Solicitor) SOLICITORS: Marsden Solicitors LEGAL REPRESENTATIVES: RESPONDENT: Ms S Duggan (Barrister) SOLICITORS: Mallesons Stephen Jaques JUDGMENT: IN THE LAND AND Matter No: 10226 of 1999 ENVIRONMENT COURT Coram: Lloyd J OF NEW SOUTH WALES Decision date: 30/07/99 MASON ARCHITECTS Applicant v NORTH SYDNEY COUNCIL Respondent JUDGMENT 1. This is the separate determination of a preliminary question of law in an appeal under s 176 of the Local Government Act 1993 against the refusal by the respondent of a building application for alterations and additions to an existing dwelling house. The separate determination of the question is permitted by Part 31 Rule 2 of the Supreme Court Rules and which form part of the rules of this Court (Land & Environment Court Rules 1996 Part 6 Rule 1). 2. The question of law was raised by the respondent and was as follows: Whether condition (b) of development consent 1437/87 applies to the proposal and whether the proposal may be approved having regard to the non-compliance with condition (b) of that consent. 3. At the commencement of the hearing the respondent reformulated the question as follows: (1) Does condition (b) of development consent 1437/87 endorsed on 21 March 1988 apply to the land the subject of the appeal? (2) Would the proposal the subject of the appeal involve a contravention of conditions (b) or development consent 1437/87?. (3) If the answer to (2) is yes, is the application the subject of the appeal capable of approval? The Relevant Facts 4. The question arises in the following circumstances. On 21 March 1988 the respondent granted development consent pursuant to s 92 of the Environmental Planning & Assessment Act 1979 to a development application (No.1437/87) for the subdivision of land. The plan of subdivision showed 4 proposed allotments each having an area respectively of 210 square metres (proposed lot 1), 233 square metres (proposed lot 2), 240 square metres (proposed lot 3) and 249 square metres (proposed lot 4). The development consent was subject to a number of conditions, including: (b) The applicant entering into a restriction as to user so as to limit dwelling size as to a maximum of 135m2 if any allotment in the subdivision is of an area of less than 232m2. 5. The linen plan for the subdivision which was approved by the respondent and is now registered shows each allotment as having an area respectively of 213.8 square metres (lot 1), 231.9 square metres (lot 2), 248.2 square metres (lot 3) and 246.7 square metres (lot 4). 6. The subject land is lot 2. It is immediately apparent that it has an area which is less than 232 square metres as described in condition (b) of the development consent. 7. The restriction as to user, also approved by the respondent and created pursuant to s 88B of the Conveyancing Act 1919, is in the following terms: No dwelling house erected on any lot herein indicated as the serviant tenement shall have an internal floor area of more than 135m2 if any lot herein indicated as the serviant tenement have an area of less than 232m2. 8. The lots indicated in the s 88B instrument as being burdened by the restriction as to user are lots 3 and 4 and the lots benefited are each of the other lots in the deposited plan. It is thus apparent that the restriction as to user approved by the respondent and now created pursuant to s 88B of the Conveyancing Act does not apply to the subject land, lot 2. (Neither, does it appear to apply to lots 3 and 4, since both lots have an area of more than 232 square metres). 9. The proposed alterations and additions to the existing dwelling house which are the subject of this appeal will result in a dwelling house having a floor area greater than 135 square metres. Since the subject land, lot 2, is not burdened by the restriction as to user as approved by the respondent and created pursuant to s 88B of the Conveyancing Act , the proposed alterations and additions will not infringe that restriction. The submissions of the parties 10. Miss S A Duggan, who appears for the respondent, made the following submissions. (1) Condition (b) of the development consent for the subdivision imposed a requirement that the size of a dwelling be limited where any lot in the subdivision was less than the nominated area and, in order to give effect to that proscription, a restriction as to user was to be created. (2) The effect of the instrument is not in conformity with the condition. (3) The development consent operates in rem and thus runs with the land, so that the instrument does not affect the necessity for ongoing compliance, neither does the instrument merge with the condition upon registration of the linen plan. (4) The condition remains on foot and compliance therewith is mandatory, so that a further consent cannot be granted in contravention of it. (5) The approval by the respondent of the form of the restriction as to user in the instrument could not operate as an estoppel ( Trimboli v Penrith City Council (1981) 48 LGRA 323). (6) The facts are analogous to those in Rutland v Shoalhaven City Council (1997) 94 LGERA 370 and the reasoning in that case would prevent the approval of the present application. (7) The reference in condition (b) to dwelling " size " is a reference to its gross floor area. 11. Mr A J Seaton, who appears for the applicant, made the following submissions: (1) It can be inferred that condition (b) was never intended to apply to lot 2 by reason of the following circumstances: (i) The notice of determination of 21 March 1988 specifically identifies the consent as referring to the plan lodged with the development application and which shows lot 2 as having an area greater than 232m2; (ii) The same plan was specifically referred to in the recommendation to the relevant committee of the respondent; (iii) The instrument setting out the restriction as to user approved by the respondent does not contain a restriction as to user burdening lot 2; and (iv) No action has been taken to require the creation of a restriction as to user burdening lot 2 in the manner set out in condition (b) of the development consent for subdivision. (2) The approval of the present building application is not, as a matter of construction, prohibited by condition (b) because the condition merely requires the creation of a restriction as to user. A restrictive covenant is not a bar to the grant of a consent. (He referred to the judgments of Talbot J in Challister Limited v Blacktown City Council (1992) 76 LGRA 10 and in Herring Daw & Blake NSW Pty Ltd v Gosford City Council (1995) 87 LGERA 220). (3) Although the proposed alterations and additions would result in a dwelling having a gross floor area greater than 135 square metres, the condition refers to dwelling " size ", the ordinary meaning of which is a reference to the area of the site covered by the dwelling and which in this case does not exceed 135 square metres, so that the condition is not in any event infringed. Conclusions 12. In Rutland v Shoalhaven City Council , upon which reliance is placed by Ms Duggan, a development consent for the subdivision of land into two lots was granted subject to a number of conditions, including a condition requiring the creation of a restriction as to user under s 88B of the Conveyancing Act that there be no further subdivision of one of the proposed lots. Upon the registration of the deposited plan there was concurrently registered by the Registrar General an instrument pursuant to s 88B of the Conveyancing Act which included a restriction burdening the subject land and nominated to be for the benefit of the Council in the following terms: " There shall be no subdivision of the lot burdened without the consent of the Shoalhaven City Council ". The owners of the land wished to further subdivide the land. 13. Bignold J held that the substantive effect of the condition and the operation and effect of the condition did not merge in the s 88B instrument creating the restriction on the user, neither did the prescribed means of implementing the condition supplant or negate the effectiveness of the condition operating as a condition of the development consent. It followed that the development consent imposed a condition which absolutely prohibited any further subdivision of the subject land, notwithstanding the fact that the restriction as to user prescribed further subdivision conditionally or provisionally. The proposed further subdivision would be a contravention of the development consent, which was not capable of being defeated or nullified by either the terms or operation of the s 88B instrument (including any operation in consequence of any release, variation or modification of the restriction as to user). 14. Bignold J was also of the opinion that s 91(2) of the Environmental Planning & Assessment Act imposed an imperative duty to refuse the application for further subdivision. It provided that " the consent authority shall refuse an application where the development referred to therein, being the subdivision of land, would if carried out result in a contravention of an environmental planning instrument or of this Act, whether arising in relation to that or any other development ". Section 91(2) has, of course, no application to the present case, which does not relate to an application for the subdivision of land. Nevertheless, the conclusions of Bignold J which I have described in par 13 above conclusively resolve the questions which arise in the present case in favour of the respondent. 15. Neither of the authorities relied upon by Mr Seaton are relevant. In both Challister and Herring Daw and Blake , Talbot J held that a restrictive covenant which otherwise would have prevented a proposed development was not a bar to the grant of development consent or building approval. Unlike the restrictive covenant in those cases, the restriction as to user in the present case does not apply to lot 2. 16. Neither do I think that recourse may be had to the circumstances relied upon by Mr Seaton relating to the consent to the development application for subdivision, the subsequent approval of the form of the s 88B instrument by the respondent and the subsequent lack of action on the part of the respondent to require the creation of a restriction as to user in accordance with condition (b). The condition is clear and unambiguous on its face. In the absence of any ambiguity it is not permissible to go behind or beyond the condition for the purpose of construing it. 17. The condition of the consent to the subdivision refers to the " dwelling size " to be a maximum of 135 square metres. I accept the submission of Mr Seaton that the words " dwelling size " are to be given their ordinary meaning. I do not accept, however, his submission that the ordinary meaning of dwelling size is a reference to the area of the site covered by the dwelling. In ordinary parlance, when one is speaking of the size of a dwelling by reference to its area in square metres, one is referring to its floor area. If Mr Seaton's submission were to be accepted, it would mean that a tall residential tower could be built on the land provided its " footprint " was not more than 135 square metres. One would not say of such a building that the dwelling size was 135 square metres. In my view the construction urged by Ms Duggan is to be preferred, namely that dwelling size is a reference to its gross floor area. 18. The conclusion to which I have come is that the judgment of Bignold J in Rutland is determinative of the questions of law in this case. In choosing to prepare and in obtaining the registration of a linen plan showing lot 2 as having an area of less than 232 square metres, the owner voluntarily brought that lot within condition (b) of the subdivision consent. 19. For completeness I should note that Mr Seaton does not rely on the doctrine of waiver by the respondent in its approval of the form of the s 88B instrument and accordingly I do not consider it. (For the distinction between waiver and estoppel, see The Commonwealth v Verwayen (1990) 170 CLR 394). 20. I answer the questions of law as follows: 1. Does condition (b) of development consent 1437/87 endorsed on 21 March 1988 apply to the land the subject of the appeal? Answer: Yes. 2. Would the proposal the subject of the appeal involve a contravention of condition (b) of development consent 1437/87? Answer: Yes. 3. If the answer to (2) is yes, is the application the subject of the appeal capable of approval? Answer: No. 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.