Land and Environment Court of New South Wales CITATION : Garey & Anor v Great Lakes Council [2005] NSWLEC 563 APPLICANTS: Maxwell John Garey PARTIES : Kathleen Judith Garey RESPONDENT: Great Lakes Council FILE NUMBER(S) : 11027 of 2005 CORAM: Pain J KEY ISSUES: Development Consent :- modification of development consent - whether conditions within power Environmental Planning and Assessment Act 1979 s 96 LEGISLATION CITED: Great Lakes Local Environmental Plan 1996 1643 Pittwater Road Pty Limited v Pittwater Council [2004] NSWLEC 685; CASES CITED: Gee v Port Stephens Council (2003) 131 LGERA 325 DATES OF HEARING: 14/09/2005 EX TEMPORE JUDGMENT DATE : 09/14/2005 APPLICANT: Mr C Gough (solicitor) SOLICITORS: Storey & Gough LEGAL REPRESENTATIVES: RESPONDENT: Mr I Hemmings (barrister) SOLICITORS: Peter Rees JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Pain J 14 September 2005 11027 of 2005 Maxwell John Garey & Anor v Great Lakes Council EX TEMPORE JUDGMENT 1 Her Honour: This matter is a preliminary question of law in a Class 1 appeal against conditions imposed by Great Lakes Council ("the Council") in relation to a modification of the DA for the Applicants' property at 15 Headland Road, Boomerang Beach ("the property") under s 96 of the Environmental Planning and Assessment Act 1979 ("the EP&A Act"). Background 2 I have been provided with an agreed statement of facts by the parties as follows: 1. The property at 15 Headland Road, Boomerang Beach is owned by the applicants and is more particularly described as Lot 2 DP 794423. 2. The property is zoned 2 village under the provisions of the Great Lakes Local Environmental Plan 1996. 3. On 25 February 2003 the Council granted development consent to the applicants for Multiple Dwellings (2 units) at the property. 4. Construction of the development has commenced. 5. On 10 June 2005, the applicants lodged with the Council a Section 96 Application. 6. On 18 August 2005, the Council approved the Section 96 Application. 3 The Applicants provided the Court with the Notice of Determination granted by the Council on 25 February 2003 ("the development consent") and the set of plans attached in exhibit B. Condition 8 of the development consent states: The building being setback a minimum distance of 4.3 metres from the western boundary. The easterly setback of the building is not to be altered in the change to the setback. 4 Condition 9 of the development consent states: The northern decks are to be set back a minimum 4.3 metres from the western boundary. 5 The Applicants also provided the Court with the Approval for Modification of Development Consent ("the s 96 consent") granted by the Council on 18 August 2005 and the set of plans attached in exhibit D. 6 The s 96 consent states: In accordance with s 96(1A) of the Environmental Planning and Assessment Act 1979 ¸ Development Consent No: DA-1075-2002 is modified by the following: 1. Condition No. 1 be varied to read: The development being carried out in accordance with drawings… subject to: a) The deletion of that part of the eastern patios at ground level and upper level floor plans (accessible from the living rooms and bedrooms) sited less than 4.3 metres from the northern side boundary as indicated in red print 'deleted' on the plans; and b) The deletion of the full height masonry walls to the southern end of the patios referred to in item (a) as indicated in red print 'deleted' on the plans. … 7 It was necessary in the course of argument before me to compare the plans in exhibit B and the plans in exhibit D in relation to the various setback conditions which apply to this development. Issue 8 The question of law states: That conditions 1(a) and 1(b) of the development consent as amended by the respondent on 18 August 2005 are void and of no effect as they were made outside the council's power. Finding 9 The Applicants argued that condition 1(a) relating to the deletion of patios on the ground level and upper floor levels, and condition 1(b) relating to the deletion of the full height masonry walls in the s 96 consent, are beyond power. The Applicants argued that if the Court found that the conditions were beyond power the Court should make a declaration that they are void or of no effect. 10 The Applicants argued that conditions 1(a) and (b) relate to aspects of the proposal, being the location of the development in relation to the northern boundary and the deletion of masonry walls, that do not relate to the application made pursuant to s 96 of the EP&A Act. The Applicants argued that it is clear from the development application plans that the western boundary which is referred to in condition 8 is self evidently the boundary along Headland Road. It therefore follows that the patio areas sought to be deleted by condition 1(a) are not part of the s 96 application lodged with the Council. 11 It is not immediately clear to me on looking at the development application plans that the boundary along the Headland Road portion of the property is properly described as the western boundary. The minimum distance of 4.3m from the western boundary referred to in condition 8 does not make sense if that distance is measured from the rear boundary along Headland Road. As the Council submitted, it is clear from a reading of condition 8 and condition 9 of the development consent that what is referred to as the western boundary in condition 8 in the development consent is the boundary at the top of the page of the plans, not the Headland Road boundary. 12 It therefore follows that the plans for the s 96 application in exhibit D seek to add into the development application the patios that were intended to be deleted by development consent conditions 8 and 9 and also seek consent for additional masonry walls, the subject of condition 1(b), which were not in the development consent plans. It is clear that condition 1(a) of the s 96 consent relates to condition 8 of the development consent which refers to the setback of the building 4.3m from the "top of the page" boundary (referred to as the western boundary in the development consent and the northern boundary in the s 96 consent). 13 I therefore consider that the s 96 consent can delete part of the patio areas identified in red pen as described in condition 1(a) and it follows therefore that condition 1(a) is within power. It also follows that the deletion of the full height masonry walls referred to in condition 1(b) contained in the plans attached to the s 96 consent in exhibit D, but not to the plans attached to the development consent in exhibit B, are also within power. I accept the Council's argument that the s 96 consent is not limited by the words in the s 96 application itself, which in this case refer only to internal modifications. The s 96 consent is also defined by the plans which form part of the application where there is clearly an alteration from the original development consent plans. It is not necessary that I finally resolve the issue of the scope of 1643 Pittwater Road Pty Limited v Pittwater Council [2004] NSWLEC 685. 14 Therefore I do not make the orders sought in the question of law filed by the Applicants. Costs 15 Relying on Gee v Port Stephens Council (2003) 131 LGERA 325 the Council argued that it should be entitled to its costs as these were clearly proceedings in the nature of litigation contemplated by McClellan J in Gee and were circumstances where costs should follow the event. The Applicants have been unsuccessful on a preliminary question which is determinative. In the circumstances the Council argued that costs should follow the event and that an order for costs in favour of the Council should be made. 16 On the basis of Gee I consider that these are circumstances in which costs should follow the event. Preliminary questions of law of this nature are to be regarded as more akin to typical litigation where costs follow the event and I think this case falls clearly within the category identified in Gee. It follows that as the Council has been successful it should be awarded its costs. Orders 17 The Court makes the following orders: 1. The Applicants pay the Council's costs of the preliminary question of law proceedings; 2. The exhibits be returned; and 3. The matter be placed on the Registrar's callover list on 28 September 2005. 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.