Land and Environment Court of New South Wales CITATION : Mosman Municipal Council v Denning & 2 (Ors) [2002] NSWLEC 227 APPLICANT: Mosman Municipal Council FIRST RESPONDENTS: PARTIES : Elizabeth Jane Denning and Alastair John Davidson SECOND RESPONDENT: Jon Hall FILE NUMBER(S) : 40517 of 2002 CORAM: Lloyd J KEY ISSUES: Construction and Interpretation :- condition of development consent - ambiguity - glazing LEGISLATION CITED: Ryde Municipal Council v The Royal Ryde Homes (1970) 19 LGRA 321; CASES CITED: Wollongong City Council v Australian Iron & Steel Pty Ltd (1988) 67 LGRA 51; Woolworths Ltd v Campbells Cash and Carry Pty Ltd (1996) 92 LGERA 244 DATES OF HEARING: 04/10/2002 EX TEMPORE JUDGMENT DATE : 10/04/2002 APPLICANT: Mr P C Tomasetti (barrister) SOLICITORS: Pike Pike & Fenwick FIRST RESPONDENTS: LEGAL REPRESENTATIVES: Ms S Duggan (barrister) SOLICITORS: Michell Sillar SECOND RESPONDENT: N/A JUDGMENT: - 5 - IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 40517 of 2002 Lloyd J 4 October 2002 Mosman Municipal Council Applicant v Elizabeth Jane Denning and Alastair John Davidson First Respondents Jon Hall Second Respondents EXTEMPORE JUDGMENT HIS HONOUR: 1 This is a case about the construction of a development consent. The specific relief sought by the applicant, Mosman Municipal Council (hereafter "the council"), is as follows: A declaration that in the circumstances and events which have happened on the true construction of condition 1.6 of development consent No. 8.2000.440.0 granted by the Applicant in respect of the property on 8 August 2001("the development consent") there may be no changes to the fenestration and the glazing thereof on the southern facade of the premises at 34A Bullecourt Avenue, Mosman ("the premises") from that which existed on 12 June 2001. 2 The council also seeks a declaration that construction certificate CC59/2002 dated 15 June 2002 in respect of the premises and issued by Jon Hall is invalid. 3 The relevant facts may be briefly described. The council is the consent authority for the purpose of the granting of development consent under the Environmental Planning & Assessment Act 1979 ("the EP&A Act") for development proposed within its local government area. The first respondents are the owners and occupiers of premises situated at and known as No. 34A Bullecourt Avenue, Mosman (hereafter "the property"). The property is within the local government area of the applicant. 4 On 14 November 2000 the first respondents caused to be lodged with the applicant a development application seeking consent to develop the property by way of carrying out alterations and additions to it. Applications for consent to develop the property were, at all material times, subject to the provisions of the Mosman Local Environment Plan 1998. The subject development application included a number of documents. It included the development application form, a heritage impact statement, architectural plans, a notification plan and a statement of environmental effects. 5 On 12 June 2001 the applicant resolved to grant conditional development consent to the development application pursuant to the EP&A Act. By a notice of determination dated 8 August 2001 the council formally granted its consent subject to a number of conditions. Condition 1.6 of the consent provides as follows; Due to the severe overlooking exacerbated at night, loss of internal seclusion, light, reflection from the glazing, all noted in the Godden McKay Logan Report, Page 5, that the glazing on the southern façade remain the same as at present 12 June 2001. Details are to be provided to the Principal Certifying Authority prior to the issue of the Construction Certificate. 6 The reference in condition 1.6 of the development consent to the Godden McKay Logan Report is a reference to a document being a heritage impact assessment report prepared by Godden McKay Logan on June 2001. The development application to which consent was granted was, as I have said, one for alterations and additions to the existing dwelling. The development consent describes it as alterations and additions to an existing dwelling house including new swimming pool, deck and landscaping works. 7 There is a number of ways in which condition 1.6 may be construed. It may mean, as the council contends, that no new glazing at all may be provided on the southern facade of the building. Alternatively, it may mean, as contended by the first respondents, that glazing is a reference to the type of glass to be used in the proposed alterations and additions. Further alternatively, it may mean, as also contended by the first respondents, a reference to the existing glazing on the southern facade to remain the same and that the proposed glazing must have the same properties. 8 There is no doubt that condition 1.6 is ambiguous. In such circumstances the principle explained in Ryde Municipal Council v The Royal Ryde Homes (1970) 19 LGRA 321 at 324 applies: It must not be overlooked that a consent to the development of land under a prescribed planning scheme is not personal to the applicant but enures for the benefit of subsequent owners and occupiers, and in some respects a consent is equivalent to a document of title. I therefore think it sound to say that the legal qualities a consent possesses, or which flow from a consent, are so important that care should be taken to ensure that consents are framed in clear terms and conditions are specified with certainty. Any lack of clarity or certainty is the responsibility of the council and it must take the consequences of any failure to specify accurately or in detail what is consented to as well as any conditions to which a consent is subject. 9 That case was decided as long ago as 1970 and has been followed and applied consistently in this Court since then. It is also important to bear in mind that in construing the condition we are not dealing with an act of Parliament. An overtechnical approach to the meaning of the language used in conditions attached to building consents is, as a general rule, not called for: see Wollongong City Council v Australian Iron & Steel Pty Ltd (1988) 67 LGRA 51 at 56. 10 In construing the consent, the whole of the notice of determination must be considered. In other words condition 1.6 must be considered in its context. The condition cannot be read in isolation. What is its context? It is a condition attached to a notice of determination. The development consent was, as I have said, for alterations and additions to an existing dwelling house. It was granted subject to a large number of conditions. Importantly condition 1.1 provides: "[t]his approval relates to the following plan numbers (except where amended by the following conditions)". There then follows a series of plan numbers. 11 This, in my opinion, clearly means that the plans referred to are expressly incorporated into the consent and it is therefore legitimate in construing the consent to look at those plans: see Woolworths Ltd v Campbells Cash and Carry Pty Ltd (1996) 92 LGERA 244 at 251. The plans clearly show such things as balconies and rooms which have been approved with windows, or French doors in the case of the balconies, on the southern facade. There are no notations on the plan or any other conditions stating that the balconies, for example, are not approved or are to be deleted or which call for amended plans. 12 Other relevant conditions include condition 3.6 which provides: A full schedule of finishes are required to be submitted. In this regard, recessive non-reflective materials are to be used, in particular roofing materials. All new glazed areas are to be treated so as to obviate any adverse solar reflectivity to adjoining properties. Details are required to be submitted to the Principal Certifying Authority prior to the issue of the Construction Certificate 13 Condition 7.1 provides: All building work must be carried out in accordance with the provisions of the Building Code of Australia. 14 In relation to condition 7.1 it is to be noted that the Building Code of Australia provides in clause 3.8.4.2: Natural lighting must be provided in a class 1 building to all habitable rooms in accordance with the following; a) natural lighting must be provided by windows ... 15 As I have said, there is no reference in any of the conditions to the deletion of balconies. There is also shown on the plans a bedroom with what appears to be French doors opening onto a balcony. If the council's construction of condition 1.6 were to be adopted it would mean that room, which is designated as a habitable room, would have no windows. It seems to me that if the construction contended for by the council were to be adopted it would involve considerable changes both to the use of the rooms designated in the plans and to what is shown on the southern elevation of the building by way of balconies, French doors and windows. 16 As I have said, the condition, if ambiguous, must be construed against the council. In my opinion, a proper reading of the condition in the light of all of the conditions and the plans which have been incorporated into the consent is that the reference in condition 1.6 to glazing is a reference to the glass, that is to the kind of glass, in the southern façade. That is, the existing glass must be the same and any proposed glazing must be the same as at 12 June 2001. The condition read in that way would not rob the consent of its character. It would mean that the designated purpose of the rooms is fulfilled and that there is no need to consider the further question of whether the whole consent is necessarily void. 17 This conclusion means that I need not consider some of the other arguments raised, such as whether or not the construction certificate is protected by s 101 in the light of s 80(12) of the EP& Act. Neither is it necessary for me to consider discretionary considerations. Is there anything else? 18 DUGGAN: Just the question of costs your Honour. 19 TOMASETTI: As to costs I have nothing to say your Honour. There is only the possibility that if this matter goes any further your Honour's reasons in relation to the alternative arguments may be important. That is a matter for your Honour. 20 HIS HONOUR: On the question of costs, the reason for these proceedings is because the council has framed a condition which is ambiguous and uncertain. Moreover, the council's arguments were not accepted. It should therefore bear the cost. There will be an order that the applicant, the council, pay the respondents' costs. 21 DUGGAN: The application is dismissed your Honour? 22 HIS HONOUR: The formal orders are: (1) The application is dismissed. (2) The applicant, Mosman Municipal Council, must pay the respondents costs. (3) The exhibits may be returned. ********** I hereby certify that the preceding 22 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.