Develtor Property Group Pty Ltd v Newcastle City Council [2001] NSWLEC 44

Land and Environment Court of New South Wales

CITATION : Develtor Property Group Pty Ltd v Newcastle City Council [2001] NSWLEC 44 APPLICANT: Develtor Property Group pty Ltd PARTIES : RESPONDENT: Newcastle City Council FILE NUMBER(S) : 40144 of 2000 CORAM: Bignold J KEY ISSUES: Injunctions and Declarations :- Approval granted to a building application in 1999 under the continuing operation of the Local Government Act 1993 - Whether approval operates as "development consent" - Respondent files submitting appearance save as to costs. LEGISLATION CITED: Environmental Planning and Assessment (Savings and Transitional) Regulation 1998, cl 36 and cl 45 CASES CITED: DATES OF HEARING: 18/12/2000 EX TEMPORE JUDGMENT DATE : 12/18/2000

APPLICANT: Mr W R Davison SC SOLICITORS Bilbie DanRespondent LEGAL REPRESENTATIVES: RESPONDENT: Submitting appearance SOLICITORS Sparke Helmore

JUDGMENT: IN THE LAND AND Matter No. 40144 of 2000ENVIRONMENT COURT OF Coram: Bignold J.NEW SOUTH WALES 18 December 2000DEVELTOR PROPERTY GROUP PTY LTDApplicantvNEWCASTLE CITY COUNCILRespondentJUDGMENTBignold J:1. By its class 4 proceedings commenced on 26 September 2000 the Applicant claims declaratory and consequential relief in respect of an approval granted by the Respondent Council to a Building Application No 582 of 1999 lodged by the Applicant with the Council on or about 23 March 1999.2. The Council, on 1 November this year, filed a submitting appearance, submitting to the orders of the Court save as to costs.3. The background to the commencement of the class 4 proceedings is detailed in the Affidavit of Bradley Ure, a Director of the Applicant, sworn 22 September 2000 and is supplemented by the Affidavit sworn 6 November 2000 by Martin Richard Ball, the Applicant's Solicitor.4. The affidavit evidence reveals, relevantly, the grant of development consent by the Council to an application made by the Applicant to carry out development comprising 48 single storey attached and detached dwellings with garages on property known as 292 Park Avenue, Kotara. The approval was granted on 9 February 1995 and endorsed on the notice of determination is the statement that development consent will lapse within five years of that date unless the development is actually commenced in the meanwhile.5. The associated building application was lodged by the Applicant on 23 March 1999 during the currency, within the non-lapse period that is, of five years specified in the endorsement on the development consent.6. The Council granted the building application between 25 November and 7 December 1999 as is recorded in the documents forming Exhibit 4 (being copies of extracts from the Respondent's file in respect of the subject premises). 7. The dispute between the parties which had arisen prior to the commencement of the proceedings (but did not continue after the filing of the Respondent's submitting appearance) concerned the status of the approval granted by the Council to the Applicant's Building Application, the respective positions adopted by the parties being fully documented in the correspondence passing between the parties' Solicitors.8. In short, it is the case of the Applicant that the approval is taken to be a "development consent granted under the Environmental Planning and Assessment Act 1979" as amended by Act No 152 of 1997, which latter Act introduced major amendments to the principal Act and major amendments (in the main by way of repeal of the provisions relating to building approval) to the Local Government Act 1993.9. Reliance is placed upon the provisions of Part 4 of the Environment Planning and Assessment (Savings and Transitional) Regulation 1998 (the Transitional Regulation) by the Applicant in support of its contention. That Part which is entitled "Provisions Arising From the Amendment of the Local Government Act 1993" provides in clause 36 and following, for the continuing operation in certain circumstances of the Local Government Act 1993 unamended by the amendments made by Act No 152 of 1997.10. These amendments, including the partial repeal of a number of provisions of the Local Government Act 1993 (and in particular, the provisions relating to building approvals) came into force on 1 July 1998. 11. Clause 36 of the Transitional Regulation provides for the continuing operation of the unamended Local Government Act 1993 in certain circumstances but is expressly limited to an "application made before 1 July 1999". That continuing operation is to the effect that the provisions of the Local Government Act 1993 unaffected by the aforesaid repeal will continue for a period of one year from 1 July 1998.12. Clause 36 provides that an application for approval of a "prescribed activity" (which is a term defined, and clearly covers the application the subject of the Applicant's Building Application made on 23 March 1999) may be made under Div 3 of Pt 1 of Chapter 7 of the unamended Local Government Act as if that Act had not been amended in certain circumstances.13. Two paragraphs of cl 36 set out the relevant "circumstances", one of them, para (a), applying where the application is "for the same development as a development consent granted under the unamended Environmental Planning and Assessment Act 1979 before the appointed day".14. The evidence in the present case indicates that the development, the subject of the Applicant's Building Application, is relevantly the "same development" as that the subject of the 1995 development consent. Accordingly, cl 36(1) of the Transitional Regulation applied to the Applicant's Building Application that had been made within the "12 months" transitional period.15. The consequence of that savings provision operating in respect of "an approval of such an application" is expressly provided for in the provisions of cl 45 of the Transitional Regulation, it relevantly providing that "an approval for a prescribed activity granted and in force under the unamended Local Government Act 1993, including an approval granted under Div 1" (which contains cl 36) is "taken to be a development consent granted under the amended Environmental Planning and Assessment Act 1979".16. In my opinion, cl 45 of the Transitional Regulation relevantly applies to the grant of the approval by the Council to the Applicant's Building Application No 582 of 1999. Accordingly, the Applicant has established its entitlement to the declarations claimed in pars 1 and 2 of its Class 4 Application. I have so concluded, without the benefit of contrary argument. However on the undisputed facts, I do not think there can be any real doubt as to the application of the relevant provisions of the Transitional Regulation.17. The declarations claimed will accordingly be made. However, the declaration claimed in par 1 I think, would be more aptly expressed by reference to the terms and effect of cl 45 of the Transitional Regulation so as to read as follows:-A declaration that the approval by the Respondent between 25 November 1999 and 7 December 1999 of building application No 99/582 is taken to be a development consent granted under the amended Environmental Planning and Assessment Act 1979 in accordance with cl 45 of the Environmental Planning and Assessment (Savings and Transitional Regulation) 1998."18. The declaration claimed in par 2 is granted, it being merely consequential upon the declaration previously made.19. The Applicant has sought an order for costs on an indemnity basis in the proceedings, notwithstanding the Council's filing of a submitting appearance.20. The matter has been argued but only by the Applicant with the Respondent (through its City Agent) seeking an opportunity to respond to that argument. Accordingly, I propose to reserve the question of costs as sought in order to give the Council the opportunity to file in written form any submissions it wishes to make in respect of the Applicant's claim to costs on an indemnity basis.21. In the circumstances the Council will be given an opportunity to file any written submissions on the question of costs, such submissions to be filed and served by Friday 19 January 2001 and any submissions in reply by the Applicant are to be served and filed by Friday 2 February 2001.22. In the event of the Respondent not wishing to avail itself of the opportunity, it is directed to notify the Applicant and the Court of its decision not to file any submissions in the proceedings.23. For all the foregoing reasons, the declarations in the terms announced at the hearing are made and the question of costs is reserved with the directions given for the filing of further submissions. (The terms of the declarations and orders are as set forth in the annexed copy of the Minute of Orders, signed and sealed on behalf of the Court).24. The exhibits are to remain with the Court papers.