Reported Decision : 115 LGERA 181 Land and Environment Court of New South Wales CITATION : Ben-Menashe & Anor v Ku-ring-gai Municipal Council [2001] NSWLEC 168 APPLICANTS: Ilan & Linda Ben-Menashe PARTIES : RESPONDENT: Ku-ring-gai Municipal Council FILE NUMBER(S) : 10179 of 2001 CORAM: Lloyd J KEY ISSUES: Question of Law :- preliminary question of law - application for Torrens title subdivision - condition imposed requiring strata title subdivision - not a valid condition - not a consent to the application made LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 79 and s 80A CASES CITED: Carr v The Minister for Land and Water Conservation (2000) 109 LGERA 175; Mison v Randwick City Council (1991) 23 NSWLR 734 DATES OF HEARING: 06/07/2001 EX TEMPORE JUDGMENT DATE : 07/06/2001 APPLICANT: Mr D T Miller (Barrister) SOLICITORS: PricewaterhouseCoopers Legal LEGAL REPRESENTATIVES: RESPONDENT: Ms L Finn (Solicitor) SOLICITORS: Abbott Tout JUDGMENT: 1 . IN THE LAND AND Matter No.: 10179 of 2001 ENVIRONMENT COURT Coram: Lloyd J OF NEW SOUTH WALES Decision date: 6 July 2001 Ilan and Linda Ben-Menashe Applicants v Ku-ring-gai Municipal Council Respondent EXTEMPORE JUDGMENT 1. HIS HONOUR: This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 ("the EP&A Act") against the imposition of a condition on the grant of development consent for a subdivision of land. The respondent, Ku-ring-gai Municipal Council ("the Council") has raised, as a preliminary issue, the following question: whether s 80A of the EP&A Act permits the imposition of a condition that subdivision be by strata title, upon an application for Torrens title subdivision? 2. The facts may be briefly described. The Council had, in 1999, granted consent to the applicant to undertake a dual occupancy development at No. 41 Kissing Point Road, Turramurra. That development provided for the construction of a new dwelling at the rear of the allotment, such new dwelling to be serviced by a shared driveway. Drainage for the purpose of the new dwelling also was to be through the site of the driveway corridor. On 30 March 2000 the applicants lodged a development application for a subdivision of the land into two lots, namely a proposed lot 41 at the front and a proposed lot 42 at the rear. Lot 41 was to be burdened with the right of carriageway and an easement to drain water, both benefiting lot 42. The development application was accompanied by a plan of the subdivision which shows the two proposed allotments and the relevant proposed right of carriageway and proposed easement. 3. It is clear that the application was for a Torrens title subdivision. The plan of the proposed subdivision shows no common property, which one would expect to find if it were an application for a strata subdivision. 4. The Council approved the development application but imposed a condition, condition 6, which was in the following terms: The subdivision is approved under the provisions of the Strata Title. The driveway will be required to be shown in the proposed plans as being "common property". It is this condition which is the subject of the appeal in this case. 5. In the report on the application, which was considered by the Council, the reasons for the imposition of the conditions are set out. That report states: In order to manage access and maintenance to the driveway, the drainage detention system and to ensure that landscaping to the street frontage is maintained for the overall benefit of both lots, the subdivision will be permitted only under strata title with the driveway being "common property". 6. The report further states: Shared landscaping along the frontage and joint use of drainage and driveways suggests that strata title is a more appropriate form of subdivision for the development . 7. I understand the reference to shared landscaping is to landscaping along the driveway rather than the frontage. 8. On 13 February 2001 the Council considered a further application lodged by the applicant under sub-s 96(2) of the EP&A Act to modify condition 6 of the consent, which modification sought the deletion of the condition. On 13 February 2001 the Council resolved to refuse the application for modification. 9. The council relies upon s 80A of the EP&A Act in support of its argument that it can impose the condition. Section 80A(1) lists, in a number of paragraphs, the circumstances under which conditions may be imposed. Paragraph (a) states that a condition may be imposed if it relates to any matter referred to in s 79C(1) of relevance to the development the subject of the consent. Section 79C(1) states: In determining a development application a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application … and there follows a number of sub-pars. 10. It seems to me that the condition cannot be of relevance to the development the subject of the development application. The development application in this case was for a Torrens title subdivision. The effect of the condition is that it amounts to either a refusal of the application or a failure to determine the application. The condition in effect and in substance converts the application from that for which consent was sought into something substantially different. 11. A reading of the balance of the sub-pars of s 80A(1) confirms this view. For example par (g) of s 80A(1) provides that a condition of development consent may be imposed if it modifies details of the development the subject of the development application. The development the subject of the development application is for a Torrens title subdivision. I am of the opinion that the Council cannot rely on this paragraph to convert the application from that for which consent was sought into something substantially or significantly different. 12. The applicant relies upon the judgment of Pearlman J in Carr v The Minister for Land and Water Conservation (2000) 109 LGERA 175. That was an application to clear a defined area of land of native vegetation. The application was granted by the Minister subject to a number of conditions, one of which was that a completely separate defined area be cleared rather than the area for which the application was sought. Pearlman J found that the development for which was granted was significantly different from the development which was the subject of the application. In the course of her judgment Pearlman J referred to the decision of the Court of Appeal in Mison v Randwick City Council (1991) 23 NSWLR 734, in which Priestley JA stated (at 7370: In my opinion if a condition imposed upon a purported consent to a particular development application has the effect of significantly altering the development in respect of which the application is made, then the purported consent is not a consent to the application. 13. In my opinion, in applying both Carr v The Minister and Mison v Randwick City Council, I am led to the conclusion that there has been no consent to the application in this case. There has in substance and in effect been either a failure to determine the application for which consent was sought or a refusal of that application. I answer the preliminary question in the negative. I hereby certify that the preceding 13 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice Lloyd. Associate 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.