Land and Environment Court of New South Wales CITATION : Shaw v Leichhardt Municipal Council and Finn [1989] NSWLEC 238 APPLICANT Shaw FIRST RESPONDENT PARTIES : Leichhardt Municipal Council and Finn SECOND RESPONDENT Miss Finn FILE NUMBER(S) : 40231 of 1988 CORAM: Cripps J KEY ISSUES: :- LEGISLATION CITED: Rapid Transport Pty Ltd v Sutherland Shire Council 62 LGRA 88, Idonz Pty Limited v National Capital Development Commission 60 LGRA 67); Hardi v Woollahra Municipal Council & Wasserman 17 December 1987; Council of Civil Service Unions v Minister for Civil Services 1985 AC 384; CASES CITED: Attorney-General of Hong Kong v Ng Yuen Shiu 1983 2 AC 629; Idonz v NCDC 67 ALR 46; Kiaoa v West 159 CLR 550 at 584-585; Cole v Cunningham 49 ALR 123. DATES OF HEARING: DATE OF JUDGMENT: 09/01/1989 APPLICANT LEGAL REPRESENTATIVES: RESPONDENT JUDGMENT: His Honour: On 11 April 1988 Georgina Finn made application to the Leichhardt Municipal Council for development consent to add an extra bedroom and balcony to her house at 11 Clubb Street, Rozelle. Number 11 Clubb Street is a single storey semi-detached dwelling house and shares a party wall with No 9 Clubb Street. On 14 July 1988 she was notified by the Council that consent had been granted subject to five conditions, one of which had the effect of reducing the overall height of the additional bedroom by 400mm. At all relevant times, the Council had a policy of notifying neighbours of development applications and of giving them the opportunity of putting objections before Council for its consideration before the applications were dealt with. On 17 October 1988 Jean Shaw, the owner of No 9 Clubb Street, commenced proceedings in the Land and Environment Court seeking a declaration that the development consent granted on 14 June 1988 was null and void and an order that Miss Finn be restrained from commencing the work referred to in the development consent. In a document dated 7 April 1989 and headed "Statement of Issues", Miss Shaw's advisers listed 15 separate matters which, it was alleged, singly and cumulatively vitiated the development consent. It was said, inter alia, that the Council failed to give any, or any sufficient, consideration as to whether the footings would be capable of bearing the extra load, whether the existing drainage was adequate, whether Miss Shaw would lose some privacy, whether Miss Shaw's property would be diminished in value, whether another similar application had been refused, etc. It was also alleged that the Council was "guilty" of an oppression of the "minority interest" of Miss Shaw and that it denied her natural justice in the manner in which it determined the development application. At the hearing, it was also submitted that the development application was void because it did not contain sufficient information to allow the Council to adequately assess the application. It was further alleged at the hearing that the Council w as in breach of clause 20(3)(b) of its statutory planning instrument because the maximum vertical distance between the wall height and the topmost part of the building exceeded 3.6 metres. Upon receipt of the development application, the matter was assigned to Ms Kelly, the Precinct Town Planner, employed by the Council for a report. The application was advertised in accordance with Council's policy and two submissions by way of objections were received, one from Mr James, the owner of No 13 Clubb Street, and the other from Miss Shaw. The development application and the accompanying plans furnished sufficient information for the Planner to assess the application. There was no breach of any statutory or regulatory requirement concerning the form of the application. Ms Kelly considered the Council's planning instrument and development control plan and her report referred to setbacks, privacy, height, overshadowing etc. She said that she thought there were "no engineering requirements" and, after dealing with the objections from Mr James and Miss Shaw, recommended the Council grant consent subject to five conditions including a reduction in the overall height. Ms Kelly's report was before the Coun cil on 14 June 1988 when it granted development consent subject to the five recommended conditions. Some time after 14 June 1988, Miss Shaw obtained an engineering report expressing an opinion, inter alia, that the additions to No 11 Clubb Street might overload the common foundations. The report commissioned by Miss Shaw was not given to the Council until some time after 23 June 1988. The matters referred to in the report are relied on by Miss Shaw in support of her claim that the Council failed to consider the development application according to law. I do not think the submission can be accepted. When the Council granted development consent on 14 June 1988 it was entitled to have regard to the circumstance that it was merely making permissible what was previously impermissible viz the addition of an extra bedroom and balcony. It was entitled to have regard to the fact that before the work could commence a building application would have to be lodged by Miss Finn and if an engineering problem arose in the course of assessing the application, the application could be refused or the appropriate conditions co uld be attached to the approval. For the abovementioned reasons I am of the opinion that it has not been established that the Council failed to discharge its planning function when it granted development consent on 14 June 1988. The report of Ms Kelly makes it plain that Council understood its statutory task. Clause 20 (3)(b) was not ignored and not breached. The Council must be taken to know what other applications it had refused. Furthermore, and for reasons which I shall presently outline, I do not think Miss Shaw has established that she has been denied natural justice by the Council. I shall return to the details of the adjourned meeting on 16 June and the meeting of 28 June in due course. However, it must be remembered that the development consent was granted on 14 June and on that occasion I am not satisfied that Miss Shaw's oral representations were not considered by the Council. Her written objection was in Ms Kelly's report and was before the Council. Miss Shaw spoke at the meeting. She spoke into a microphone and it would have bee n difficult for the aldermen not to have listened to her. Miss Shaw spoke for ten minutes and she was followed by Miss Finn. The Council debated the matter. I am prepared to accept Miss Shaw's assertion that in the course of her address some aldermen left their seats and talked among themselves. That does not, however, mean they were not listening to her objections. Upon the assumption that Miss Shaw's legally enforceable expectation extended to making oral representations to the Council, I am not satisfied there was any breach by the Council of its obligation to her. I accept Miss Shaw's complaint that the method of public participation in the decision making process employed by the Leichhardt Council at the relevant time demonstrated that courtesy and good manners were not high on the agenda. Nonetheless, I am satisfied that on 14 June that Miss Shaw was given the opportunity to place oral submissions before the Council and I am not satisfied that those submissions were not taken into consideration. The meeting of 14 June was adjourned until 16 June. On 15 June, Miss Shaw complained to the Mayor that she was dissatisfied with the decision on 14 June and the matter was listed again on Council's agenda for the adjourned meeting on 16. Miss Shaw attended the meeting on 16 June but Miss Finn did not. Miss Finn did not know her development application was to be the subject of further discussion. There was no rescission motion lodged on 14 June. There was discussion on 16 June as to whether Miss Finn's development application could be "recommitted" to the Council. The Town Clerk advised the Council that, in his opinion, the Council ought not "recommit" the decision it had made on 14 June because Miss Finn was not present at the meeting. The members of the Council then considered whether the more appropriate course was for a rescission motion to be lodged. It is fairly clear that the meeting on 16 June was extremely rowdy. Voices were raised and some aldermen became abusive. One of the aldermen was heard to cal l out that the Mayor was punching the Town Clerk. Mr Coker, the Planner employed by the Council, said that although the remark was made, he saw nothing other than the Mayor placing his hand somewhat forcefully on the Town Clerk's shoulder. The Minutes record that the Town Clerk threatened to resign. The recommittal motion was not proceeded with but a rescission motion was lodged to be heard at the following meeting of the Council on 28 June. On 28 June, Mr Knight spoke on behalf of Miss Shaw. He spoke for approximately ten minutes. He says, however, that he was not heard in silence and aldermen moved about the Chamber. He said he was not used to this type of conduct. At one stage one alderman told him to sit down, which he did. Mr James said he spoke but believed he was being drowned out by the background noise. Miss Shaw rose to speak but was told she had already had someone to speak on her behalf and that she could speak no further. Miss Finn spoke. The mover of the rescission motion, Alderman Hand, spoke on behalf of Miss Shaw. I accept the evidence of Miss Shaw that members of the Council were rude to her and she was subjected to derision and mockery but I am not satisfied that what was said by Mr Knight, Mr James or Mr Hand was not heard by the Council. In Rapid Transport Pty Ltd v Sutherland Shire Council 62 LGRA 88, Stein J held that in the absence of a statutory requirement or an established policy and practice an adjoining owner had no legitimate or reasonable expectation to be heard before consent was granted (see also Idonz Pty Limited v National Capital Development Commission 60 LGRA 67). The Leichhardt Municipal Council is under no statutory obligation to notify adjoining owners of development applications (except those for designated development). The litigation has been conducted, however, on the basis that the Council has followed a policy of notifying adjoining owners and giving them the opportunity to be heard and that the opportunity to be heard included a right to make oral submissions in the Chamber before development consent is granted. In Hardi v Woollahra Municipal Council & Wasserman 17 December 1987 unreported, the Court expressed the opinion that a council's policy of inviting and considering submission and the continuous application of it gave rise to a legally enforceable expectation that the Council would receive objections and consider them before making a decision. It was said that the reasonable expectation arose from a public promise by the local authority and was enforceable not only because it would be unfair to a person acting on that promise were it to do otherwise but also to further the public interest requirement that when a public authority has promised it will follow a certain procedure it ought, in the interests of good administration, be held to that promise so long as the implementation of it does not interfere with its statutory duties. The Court recognised that when a local council adopts a policy of obtaining representations it does so because it considers that by receiving them it will be better able to discharge its planning duty or function. Reference was made to Council of Civil Service Unions v Minister for Civil Services 1985 AC 384, Attorney-General of Hong Kong v Ng Yuen Shiu 1983 2 AC 629, Idonz v NCDC 67 ALR 46, Kiaoa v West 159 CLR 550 at 584-585, Cole v Cunningham 49 ALR 123. In Hardi it was held that because the applicant had the opportunity to put matters before the Council, he had not been denied procedural fairness. As I have said, I am prepared to assume in Miss Shaw's favour that her legitimate expectation extended to being given the opportunity to address the Council in person and for the Council to consider her oral representations before it made a decision. It was, of course, under no obligation enforceable at the behest of Miss Shaw to permit Miss Shaw to address the Council for as long as she wished. As I have said, I am of the opinion that, in any event, the Council considered her oral representations when consent was granted on 14 June 1988. No evidence was put before the Court concerning the practice of the Council with respect to rescission motions. I do not know whether it is the practice of the Court to give any objector the opportunity to speak at Council meetings considering rescission motions. That circumstance alone would defeat Miss Shaw's claim that she was denied natural justice. But upon the assumption that she had an enforceable right to put oral submissions before the Council and for those submissi ons to be considered before a rescission motion was determined, I am not satisfied that there has been any breach of that obligation. Her representative was permitted to speak on 28 June. The aldermen were not legally obliged to remain quiet and behave courteously. I have no doubt that Miss Shaw's sense of grievance has been exacerbated by the conduct of some members of the Council. But I am not satisfied she was denied natural justice as these words must relevantly be understood. In my opinion, the application must be dismissed. Order: application dismissed. Applicant to pay respondent's costs of the proceedings. 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