Land and Environment Court of New South Wales CITATION : CHRISTOPHER WILLIAM CRAWLEY v SYDNEY CITY COUNCIL [1998] NSWLEC 36 (12 March 1998) [1998] NSWLEC 48 PARTIES : CHRISTOPHER WILLIAM CRAWLEY v SYDNEY CITY COUNCIL [1998] NSWLEC 36 (12 March 1998) FILE NUMBER(S) : 40289 of 1997 CORAM: Talbot J KEY ISSUES: :- LEGISLATION CITED: Local Government Act 1993 ss 68, 78(2) , 108, 109, 110 approvals (Auburn Municipal Council v Szabo (1989) 67 LGRA 427 at 433-4; Parramatta City Council v Shell Co of Australia (1972) 2 NSWLR 632 at 637-8; Ryde Municipal Council v Royal Ryde Homes (1970) 19 LGRA 321; CASES CITED: Shannahan v Strathfield Municipal Council (1973) 2 NSWLR 740; Mosman Municipal Council v Bosnich (1969) 17 LGRA 74; in Masterbuilt Pty Ltd v Hornsby Council (1995) 87 LGERA 169 at 174-6; Londish v Knox Grammar & Ors Court of Appeal CA40323 of 1997 22 December 1997 DATES OF HEARING: 4 - 5 March 1998 DATE OF JUDGMENT: 03/12/1998 Mr T S Hale (Barrister) LEGAL REPRESENTATIVES: Mr J E Robson (Barrister) JUDGMENT: On 12 April 1996 the respondent council notified the applicant pursuant to the provisions of the Local Government Act 1993 that plans submitted with a building application to construct fit out of existing premises at Ground Floor 533-539 Kent Street, Sydney with mezzanine floor, kitchen and toilets had been approved on 9 April 1996, subject to conditions. The building application was signed by the applicant, Mr Crawley, who also completed the Consent of Owner as owner of the land "to which this application relates". The plans depicted work proposed within a part of the ground floor owned by Mr Crawley. It is not disputed that the applicant is the registered proprietor of Lot 71 Strata Plan 22481, although the plans contain no reference to title. Toilets and a kitchen were depicted. There was no specification of any work proposed outside the subject lot, in particular within the common property. It is common ground that, apart from the provision of sanitary drainage through a core hole 100mm in diameter, it can be inferred or understood from the plans that no encroachment on the land of the body corporate is necessary. The evidence discloses however, that part of the structure has been built supported by dynabolts fitted into drill holes bored through walls which form part of the common property. The work is not complete and the sanitary drainage remains to be connected. There is evidence that the body corporate has been opposed to the construction and the use of the lot for the purpose of a restaurant. Nevertheless a relevant development consent has been granted. The approved building plans are in conformity with the approved development plans. On 10 October 1997 the council issued a notice under s 110 of the Local Government Act 1993 that it intends to use its authority under s 108 and revoke the building application approval dated 9 April 1996. In the body of the Notice the circumstances were described in the following terms:- In the application for building approval (Reference No. B1996 00232) for work in respect of Lot 71 in Strata Plan 22481, 533 Kent Street, Sydney, you represented yourself as being the "owner" for the purposes of Section 78 of the Local Government Act 1993. The building approval was granted by Council on the basis that consent had been granted for the purposes of Section 78 of the Local Government Act 1993. "Owners consent" with respect to that part of the building works that affected the common property of Strata Plan 22481 was not in fact given. The applicant was advised by the Notice that the building approval is to be revoked in accordance with s 109 (a) and/or s 109 (c) of the Local Government Act 1993. On 22 October 1997 the council purported to issue a Notice of Revocation of an Approval pursuant to s 109(a) and (c) of the Local Government Act 1993. The Notice stated that the building application approval was revoked from the date of the Notice for the following reasons:- The applicant for Building Application Approval B1996 00232 did not have the consent of the owner of the land, as required by Section 78 of the Local Government Act, 1993. In these class 4 proceedings, the applicant is seeking a declaration that the purported revocation is invalid and of no force or effect. He has also commenced class 2 proceedings by way of an appeal against the issue of the Notice on merit grounds. The continuation of the class 2 proceedings is dependant upon the outcome of this application. It should be noted that conditions 9 and 10 of the building approval require the submission of structural documentation to the satisfaction of council prior to the commencement of any structural works. The applicant retained Robin John Pearce, Consulting Structural Engineer, to prepare structural drawings. The structural drawings identify the use of dynabolts. Mr Pearce gave evidence and produced further plans which demonstrated that, notwithstanding what had occurred, the building works, incorporating the mezzanine floor, could be built as entirely self supporting without dynabolts affixing any structure to the floor or the external walls. The Statutory Framework for Construction of the Notices Section 108(1) provides that a council may revoke or modify an approval in the circumstances set out in s 109. The council relies upon the following circumstances in s 109:- (a) If the approval was obtained by fraud, misrepresentation or concealment of facts, (c) For any failure to comply with a requirement made by or under this Act relating to the subject of the approval Section 110 requires the council to inform relevant persons of its intention before revoking or modifying an approval. Firstly, the Court notes that although the Notice of Intention under s 110 referred to a representation by Mr Crawley that he was the "owner" for the purposes of s 78, there is no reference to that alleged representation in the Notice of Revocation issued on 22 October 1997. Secondly, the s 110 Notice states that the approval was granted on the basis that consent had been granted for the purpose of s 78 and that owner's consent was not given with respect to that part of the works that affected common property, whereas the final Notice issued pursuant to s 108 alleges only that the applicant did not have the consent of the owner of the land as required by s 78. Both Notices refer to s 109(a) and (c). Mr Hale, who appears for the applicant, submits that the council can only rely on the grounds set out in the actual Notice of Revocation. Section 110(2) dictates that a notice must include the council's reasons for revoking or modifying the approval. Section 108, which contains the power to revoke or modify an approval, deals only with form, effect and service of a Notice of Revocation. Subsection (5) of s 108 infers a legislative intention to draw a distinction between the Notice and the reasons for the revocation in the context of a requirement to notify the Building Services Corporation in certain circumstances. A construction that requires the reasons to be set out only in the Notice of Intention is compatible with the scheme established by the Act whereby, pursuant to s 110(3), the recipient of a Notice of Intention is entitled to an opportunity of appearing before the council to show cause why the approval should not be revoked or modified. It thereby gives the recipient notice of the specific issues to be addressed. On the other hand, it would be equally compatible with the scheme to expect that a recipient be informed of the final reasons in the actual Notice of Revocation because the issue of the final notice by the council follows the consideration of any submissions made to show cause. The preferred view is that the final determination by the council is reflected in the actual Notice of Revocation issued pursuant to s 108. If reasons are given in that Notice, the recipient is entitled to regard them as the circumstances relied upon for the basis of the council's decision. In the present case, it is expressly stated that the applicant Mr Crawley did not have the consent of the owner of the land, namely the common property as required by s 78. I agree with Mr Hale when he says that the provisions enabling a council to revoke or modify a consent should be given a restrictive interpretation. A building approval runs with the land and significant financial decisions are based on the certainty of such approvals ( Auburn Municipal Council v Szabo (1989) 67 LGRA 427 at 433-4; Parramatta City Council v Shell Co of Australia (1972) 2 NSWLR 632 at 637-8; Ryde Municipal Council v Royal Ryde Homes (1970) 19 LGRA 321). Furthermore, historically, building approvals have not been amenable to revocation or modification and accordingly, provisions such as s 108 should be regarded with circumspection ( Shannahan v Strathfield Municipal Council (1973) 2 NSWLR 740; Mosman Municipal Council v Bosnich (1969) 17 LGRA 74; The Law of Land Development Wilcox pp 392-6, 554; and the analysis of Bignold J in relation to s 109 in Masterbuilt Pty Ltd v Hornsby Council (1995) 87 LGERA 169 at 174-6). The Argument Section 109(a) The council claims that misrepresentation within the meaning of s 109(a) occurred in two respects as follows:- (a) The depiction by the plans was that the building could be constructed wholly within Lot 71 owned by the applicant; (b) The building could be constructed without the benefit of or necessity for support by the common property. It is submitted that the plans either incorrectly, improperly or falsely showed on their face that all work would take place within Lot 71. The council claims this is confirmed by the actual work carried out. The council does not rely on any element of fraud or dishonesty on the part of the applicant, but simply that the representation in the plans supporting the application was wrong. The question to be determined in the respondent's case therefore is whether the application could be regarded as seeking approval for work in the common property. The complete answer to this proposition is that neither the plans nor the form of application made any reference to common property. Accordingly the application for approval was directed only to building within the premises owned by Mr Crawley. The way in which work has been carried out does not change what approval was applied for. Furthermore, I agree with Mr Hale that the reason set out in the Notice of Revocation does not, prima facie, fall within s 109(a). There is no reference to misrepresentation. This compares with express reference to the alleged representation by Mr Crawley in the Notice of Intention that he was the owner for the purposes of s 78 of the Local Government Act 1993. I cannot accept that by completing the building application and giving his consent as owner, Mr Crawley made a representation that he was the owner of the common property. The application was confined to land or a lot defined by the plans. No other land was referred to in the form of application or the plans. The evidence discloses that the council is aware of the history of confrontation between Mr Crawley and the body corporate. It could have been in no doubt that he did not have the authority to give the consent of the body corporate in respect of any work proposed on common property. Mr Crawley therefore could only have been regarded as giving his consent as owner of Lot 71 in the strata plan. Even if council was entitled to rely on circumstances described in s 109(a), no misrepresentation occurred to the effect that Mr Crawley owned the common property. His ownership of Lot 71 is not challenged. The consent was as the owner of Lot 71. Not only has the council failed to establish any of the alleged misrepresentations irrespective of their relevance to the issue of the Notice of Revocation, there is no evidence to establish that the building approval was "obtained" by misrepresentation. Section 109(c) The claim that there was a relevant circumstance under s 109(c) is based on the failure to furnish the required consent of the owner of the common property. I have indicated earlier that the council concedes the work could have been constructed in the manner described by Mr Pearce, that is, without using the common property, except for the sanitary drainage. Section 109(c) is only relevant for present purposes if the owner's consent is a requirement made by or under the Act relating the subject of the approval. Mr Hale contends that the requirement for owner's consent in s 78 relates to the application for approval in contrast to the approval itself. The distinction is demonstrated by reference to s 109(a) which clearly, in terms, concentrates on the processing of the application, which leads to obtaining an approval, whereas s 109(c) does not deal with the approval. It specifically refers to "the subject of the approval". In the present case, the subject of the approval is the proposed work to erect the building. The common property was not made the subject of the approval. Even if the submissions made on behalf of the respondent are correct and the council is entitled to look at the subject of the application, there is no reference to the common property in the application. It was not presented by the applicant, nor considered by the council, as an application for consent to carry out work on the common property. If that is the correct approach, any work in the common property demanded a separate and further application for approval. In that case, as contrasted to the present, the consent of the owner of the common property would be required pursuant to s 78(2). Conclusion Mr Robson starts by reminding the Court that in judicial review proceedings, the Court is not entitled to interfere if the decision was reasonably open to the council and provided it is not vitiated by taking into account an irrelevant fact or omitting to consider a relevant matter (see Londish v Knox Grammar & Ors Court of Appeal CA40323 of 1997 22 December 1997 and the authorities thereto referred). Mr Robson points to and relies on subsequent events which, he says, show that construction of the building work did involve the use of common property. In the circumstances, he says, it was open for the council to conclude, when issuing the Notice of Revocation, that Mr Crawley was always aware of that prospect and failed to notify the council. He submits it is not to the point that Mr Pearce has demonstrated the works could have been undertaken without impinging on the common property. It is obvious the work proposed and carried out on the common property never had the required consent of the owner of that land. Accordingly the applicant failed to comply with the requirement of s 78(2) of the Act. The Court infers that because the Notice of Revocation referred only to the fact that the applicant did not have the consent of the owner of the land, that is the only circumstance which the council relied upon for the issue of the Notice. I have already determined that no representation was made by Mr Crawley that he was the owner of the common property or that he was the person who had the consent of the owner of the common property as required by s 78(2) of the Act. The giving of the owner's consent relates to the application for an approval. Until the relevant owner's consent is forthcoming, the effect of s 78(2) is that there is no valid application to erect a building which can become the subject of an approval. The subject of an approval where it relates to the erection of a building is the proposed building work. Chapter 7 Part 2 Division 1 deals with the giving of Orders. The Table in s 124 specifies requirements for the doing of things to or on premises. Section 109(c) must be read in the context of a requirement under the Act relating to the proposed building in Lot 71. The Table in s 124 provides examples of requests under the Act. At its highest, the council's case shows that the applicant has caused building work to be carried out in the common property without the owner's consent or without a relevant approval by the council. The latter is to be regarded as a breach of s 68(1) rather than as a failure to comply with a requirement relating to the approved building work. The council has therefore misunderstood the circumstances described in s 109(c). The application for approval dealt only with a proposed building within the land described in the plans. An applicant for approval is entitled, pursuant to s 76, to nominate the land on which the activity of erecting a building is proposed to be carried out. In the present case it was Lot 71. It follows that the applicant was thereafter only entitled to expect an approval for the erection of a building in Lot 71. When the council determined the application therefore, it approved work in Lot 71. No work was approved in the common property. Having regard to the whole of the evidence, it was not reasonably open for the council to conclude that the approval was obtained by misrepresentation. There was no foundation for the conclusion that the approval was obtained by misrepresentation. Nor was it open for the council to determine that the applicant had failed to comply with a requirement referred to in s 109(c). Furthermore, it took into account an irrelevant matter, namely the lack of the owner's consent to the application for approval. The consent of the owner of the property was not a requirement made by or under the Act relating to the proposed building work. There being no circumstance within s 109, it was not reasonably open for the council to determine that a notice be given of proposed revocation pursuant to s 110 or for the issue of a Notice of Revocation pursuant to s 108. The applicant is entitled to a declaration in the form set out in the Application. It cannot be assumed from the Court's reasons that there is any finding of a breach of any part of the Act by the applicant. The Court makes the following orders:- 1. A declaration that the purported revocation by the respondent on or about 22 October 1997 of Building Application Approval B1996-00232 dated 9 April 1996 in respect of Lot 71 Strata Plan 22481, ground floor 533-539 Kent Street, Sydney is invalid and of no force or effect. 2. The question of costs is reserved. 3. The exhibits may be returned. I HEREBY CERTIFY THAT THIS AND THE PRECEDING 10 PAGES ARE A TRUE AND ACCURATE RECORD OF THE REASONS FOR JUDGMENT HEREIN OF THE HONOURABLE JUSTICE R N TALBOT 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.