Land and Environment Court of New South Wales CITATION : Hoggett v Willoughby Municipal Council [1988] NSWLEC 149 APPLICANT Mr. Hoggett PARTIES : RESPONDENT Willoughby Municipal Council FILE NUMBER(S) : 40130/88; 10264/88; 10298 of 1987 CORAM: Cripps J KEY ISSUES: :- LEGISLATION CITED: Local Government Act 1919 Environmental And Planning Act 1979 CASES CITED: Kirkjian v Towers DATES OF HEARING: 00/06/88 DATE OF JUDGMENT: 12/01/1988 LEGAL REPRESENTATIVES: RESPONDENT Mr Rigg JUDGMENT: His Honour: Mr. Hoggett has made three applications to the Land and Environment Court. The first (No. 10298/87) is an appeal against a refusal of the WilIoughby Council to grant development consent for the subdivision of land at Castlecrag. The second (No.40130/88) seeks certain declarations of right and the third (No. 10264/88 which was wrongly commenced in the Class 2 jurisdiction of the Court) is an appeal against the deemed refusal of the Council to grant subdivision approval under Part XII of the Local Government Act. Mr. Hoggett and the Council asked that all matters be heard together and have informed the Court that the determination in matter No. 10298/87 will, for all practical purposes, dispose of matters and 40130/88 and 10264/88. Mr. Hoggett is the owner of 37 - 39 The Scarp, Castlecrag, being approximately 2500m2 of land on the southern side of the peninsular. The land is not within the original Castlecrag Estate designed by Walter Burley Griffin in 1920 but the design of the Estate is evident in the general area of which the subject land forms part. The land falls sharply from north to south and its southern boundary abuts a public reserve, about 30m wide, running along the foreshore of Sailors Bay. The subject land, together with another 5 allotments, has access to The Scarp by a 200m private access. Mr. Hoggett has owned the subject land for more than 20 years. He originally owned part of the foreshore land now reserved for open space. In 1964, the Council approved an application to divide the land into two allotments (lots 15 and 16). In 1969, the Council approved a further subdivision of the land into three allotments (lots 3,4 and 5). Lots 3, 4 and 5 are the same size (about 830m2) and have a common battle-axe handle running west along the northern boundary of the site and thence north to The Scarp. In 1985, Mr. Hoggett made a further subdivision application proposing three allotments but in a somewhat different pattern to that previously approved in 1969. The present application was lodged with the Council in February 1987. It is an application under the Environmental Planning and Assessment Act to subdivide the land into three allotments (lots 21, 22 and 23) so as to create two allotments (lots 21 and 22) on the higher part of the subject land each having an area of approximately 650m2 and the third (lot 23) on the lower portion having an area of approximately 1000m2. Annexed to this judgment are the subdivision applications and approvals referred to above. Figure A is the subdivision approved in 1964; figure B is the subdivision approved in 1969; figure C is the subdivision applied for in 1985 but not proceeded with and figure D is the proposal presently the subject of the appeal before the Court. The present development application and the one before the Court, namely, No. 10298/87, is for subdivision only. Mr. Hoggett has said that if the approval is granted, he will seek to develop the proposed lots 23, 22 and 21 by building houses on all three lots and constructing a large ramp along part of the right of way and along the northern boundary of proposed lot 23. I do not know the dimensions of the houses proposed for lots 21 and 22 but I am asked to assume the dimensions of the house proposed for lot 23 are those suggested by Mr. Hoggett. It is proposed that the ramp will be in excess of 100m long, 3.7m wide with 900mm balustrades and will be supported on large T-shaped concrete columns. At its highest point it will be more than 11m above ground level. I am assuming for the purpose of the case that it will have a gradient no steeper than 1 in 5.14. Proposed lot 23 is 19m from its southern boundary to its northern boundary. There is a foreshore building line running from east to west across the subject land and 6m from the southern boundary. The house proposed to be erected by Mr. Hoggett will cross the foreshore building line. As I have said, the application before the Court is for subdivision only. However, Mr. Hoggett and the Council have asked me to assess the application against the background of Mr. Hoggett's proposals for the site. That is to say, the Council agrees that if development consent for the subdivision is granted, it will not dispute that Mr. Hoggett should be permitted to build the ramp proposed and construct a house on lot 23 of the dimensions proposed. It submits, however, that the ramp and the house as proposed are unsuitable and that development consent for subdivision to permit such development should be refused. Mr. Hoggett asked me to determine the matter on the same basis. Mr. Hoggett has presented his case in person. When Matter No. 10298/87 was first heard in June 1988, Mr. Hoggett asserted that by reason of cl.6 of SEPP No.4 he did not need development consent for the proposed subdivision because he was doing no more than making adjustments to boundaries already approved. The Council did not accept Mr. Hoggett's claim but said that it did not object to lodging the Class 4 application for a declaration to that effect. I explained to Mr. Hoggett that even if his argument were correct, namely, that he did not require development consent for the subdivision proposed by reason of the operation of SEPP No.4, he would still need approval pursuant to the provisions of Part XII of the Local Government Act. In order to ensure that the matter be disposed of as expeditiously and cheaply as possible, the Council asked me to assume that an application had been made to it pursuant to Part XII and that, for the same reasons he advances in the present proceedings, that application had been r efused. Mr. Hoggett was invited by Council to lodge an appeal against the Council's refusal (or deemed refusal) to grant approval under Part XII. Thereupon, he commenced proceedings No. 10264/88 which, as I have said, should have been commenced in the Class 2 jurisdiction of the Court. Later, Mr. Hoggett abandoned his claim that the subdivision proposed fell within the provisions of cl. 6 of SEPP No.4. He said he wished to pursue his application for development consent for the subdivision lodged with Council in 1987. I was told by Council that if the Court granted development consent to Mr. Hoggett's application, there would be no opposition to his application pursuant to Part XII of the Local Government Act. It is for the above reasons that Mr. Hoggett and the Council took the view that, for all practical purposes, it was no longer necessary for me to deal with matters No. 40130/88 and No. 10264/88. When Mr. Hoggett lodged the application in February 1987, the planning department of the Council doubted whether it was open to Council to consent to the application because only four of the five owners of the serviant tenements, being the land over which Mr. Hoggett had a right of way, consented to his application to the Council (see s.77 of the EPA Act). As I have said above, although I am prepared to deal with the application in the manner requested by both parties, the present application, is not, in terms, an application to develop the right of way. The consent of the five owners of the serviant tenements is not necessary for the application to be considered as the Council now recognises. Mr. Hoggett has said that if the land is subdivided, he proposes to build a ramp. Although Council has said that it will accept the Court's decision concerning the planning merit of the ramp, it may be that the owners of the serviant tenements upon which the ramp will be built will need to give their consent. However, t he fact that one owner is not consenting at the present time does not mean that that owner will not consent in the future or that he or she may not be ordered to consent by the Equity Court( see Kirkjian v. Towers, 6 July Eq. unreported). For present purposes, I propose to put the matter of consent to one side and determine the application for subdivision on its planning merits assuming, as I am asked, that if development consent is granted, it is proposed that a ramp will be constructed. All I need to note at this stage is that the Council no longer asserts that it is not open to the Court to grant development consent to the application by reason of the provisions of s.77 of the EP & A Act. Council's principal objection to the proposed subdivision is that the ramp will be obtrusive and that the house proposed to be erected on lot 23 will cross the 6m foreshore building line adopted by Council pursuant to cl.20 of the environmental planning instrument. Clause 20 provides that the Council may fix a foreshore building line and that it may show that line on a map by a broken red line in letters marked FSBL (cl.20(6)). In fact, the Council fixed a line on the map by resolution but the map does not show a "broken red line". It shows a broken black line covered in red. Mr. Hoggett submits that because the provisions of c.20 have not been complied with, I should have no regard to the foreshore building line. On 21 November 1988, the Council passed a resolution fixing the foreshore building line where it now appears on the map. Further, it is seeking to amend its local planning instrument to delete cl.20(6) which, as I have said, refers to the need for a broken red line marked on the map. It would seem t o me, that I am entitled to have regard to the circumstance that the Council has resolved that no buildings be erected within 6m of the southern boundary of the subject land. The Council also supports grounds of objection lodged by a number of nearby residents to the effect that the height and scale of the ramp would adversely affect the amenity of the neighbourhood and would be visible from the adjacent bay and public reserves. Finally, the Council objects to the ramp on the basis that it is not safe having regard to its length, gradient and location. In response to Council's objections, Mr. Hoggett has said that he could shorten the ramp and lower its height in the middle. However, the safety concerns of Council would, if anything, be exacerbated by his new proposal because it would increase the gradient of the ramp and, in any event, would not significantly affect its obtrusive nature. The Council also relies on the provisions of SEPP No.19 concerning the preservation of bushland within urban areas. It is suggested by Council that Mr. Hoggett's proposal should be rejected because the house proposed to be built on lot 23 would disturb bushland zoned or reserved for public open space contrary to the aims and objectives of SEPP No.19. Although I am bound to have regard to the provisions of SEPP No. 19, I do not think it looms large in this appeal. It is not without significance that no mention was made of the provisions of SEPP No. 19 in the assessment made by the planning department of the Council for the reason, I infer, that it was not thought that SEPP No.19 had much to do with Mr. Hoggett's proposed use of the land. Its relevance to the present application seems to have had its origins in the lawyers' office. In any event, I am not persuaded that SEPP No.19 is of any importance in the assessment of the present proposal. A number of nearby residents oppose the development. Two support it. The leading objector is Mr. Hunt who owns the house located on land immediately to the west of the proposed ramp. I accept some, but not all, of Mr. Hunt's stated grounds of objection. By way of illustration, Mr. Hunt claims to be concerned about the existence of an aboriginal midden immediately to the east of his land and below the proposed ramp. On the information before me, the few oyster shells identified by Mr. Hunt are of no archaeological or cultural significance whatsoever. Although I accept that Mr. Hunt is concerned that his children might be tempted to use Mr. Hoggett's ramp to ride skateboards, I do not think that circumstance would of itself require refusal of the application. Furthermore, I am not persuaded that the noise of cars will be unduly offensive to him or that his sunlight will be unduly reduced if the ramp is constructed. Nevertheless, I take account of Mr. Hunt's objection that, however built, the ramp will be large and obtrusive and will rise approximately 7m above ground level about 3m from his residence. Mr. Hunt's objection highlights the broader and more important objection raised by Council. Although the height limit referred to in the local environmental plan is fixed in respect of buildings, it is clear that its purpose is to limit obtrusive structures. The ramp as proposed will be at least 2m, and probably 3m, above the maximum height fixed for the uppermost ceilings of buildings in the area. The house proposed to be erected on lot 23 will cross the foreshore building line. Furthermore, the overall proposal will exceed the floor space ratio fixed by the Development Control Plan by nearly 100%. The ramp and the house will be obtrusive and visible from the waterway. As I have mentioned, the ramp proposed will be steep and for that reason may pose some safety problems. But I do not fix my decision on that circumstance alone. It must be remembered that this is not a case which, if the consent for subdivision is not granted, the land will remain sterilised. The land is already subdivided. Houses can be built on the northern section of all lots and access can be had to those houses by the existing right of way. The circumstance, much relied on by Mr. Hoggett, that there are other places in Castlecrag having steeper (though not longer) obtrusive ramps or that other houses in different localities are higher than the house proposed to be built by him is, in my opinion, of marginal significance only in assessing the application. In my opinion, Willoughby Council was correct in refusing to grant development consent. However, as I pointed out to Mr. Hoggett in the course of the proceedings, that is not the issue before me. The issue is whether the Court considers it appropriate to grant development consent. As I have said, I am asked by both parties to deal with application on the basis that one or other of the ramps proposed by Mr. Hoggett will be erected and a house will be built on lot 23 of the dimensions nominated. Upon this basis, I am of the opinion that the application should be refused. It may be that some house can be built on proposed lot 23 that does not offend against Council's codes and which would be environmentally acceptable but it would seem that there can be no alternative to one or other of the proposed ramps. The present matter is complicated by the circumstance that Mr. Hoggett is firmly of the opinion that opposition to his proposal is the result of some malign conspiracy involving officers of the Council and neighbours with whom he has had disputes in the past. His perception in this regard has not been allayed by the Council belatedly seeking to raise such planning matters as the applicability of SEPP No.19. In the past, Mr. Hoggett has transferred land to the Council and he believes that his contribution has been ignored by the Council as evidenced by its failure to grant the subject consent. As I have said, he is of the opinion that the Council maliciously asserted its lack of power to grant consent by reason of the operation of s.77 of the EPA Act to frustrate an application which ought never have been refused on planning merit. In this regard, however, it must be remembered that Mr. Hoggett wished the application to be determined on the assumption that he was going to build the ramp and the house. He belie ves, however, that because the Court has held in the past that the consent of the owner of a serviant tenement does not preclude the Court granting an application under Part XII of the Local Government Act, it follows that no such consent is necessary in respect to any application under the Environmental Planning and Assessment Act. As I have said, I do not think the lack of consent of owners of the serviant tenements precludes the Court as a matter of ower from granting the subject consent. In all the circumstances, I am not persuaded that the Council's assertion that consent was required proceeded otherwise than from a bona fide (albeit erroneous) understanding of the meaning and effect of s.77 of the EP & A Act. I have read the documents placed before me by Mr. Hoggett of relevance to the appeal. I have listened to the speech of Alderman Squire in favour of the application. I take into account the circumstance that Alderman Squire supported Mr. Hoggett's application. However, I do not think Mr. Hoggett's case is helped by the circumstance (assuming it to be true) that the Council has made other bad planning decisions within the municipality. I am of the opinion that the appeal should be dismissed and the development application refused and I so order. Application in No. 40130/88 and appeal No. 10264/88 are also dismissed. Costs On behalf of the Council, Mr. Rigg has asked for an order that Mr. Hoggett pay the costs of the Council with respect to all three matters. He has referred to the many subpoenas served by Mr. Hoggett and to the cross examination by Mr. Hoggett of the Senior Planner, Miss Thompson, as supporting his application that exceptional circumstances have been made out. The excessive number of subpoenas issued by Mr. Hoggett and his protracted cross examination directed to irrelevant issues resulted in the Council incurring costs over and above those ordinarily expected. As I have mentioned above, Mr. Hoggett alleges that the Council and its officers have conspired with residents to frustrate his development ambitions. That case has not been made out. Ordinarily, the Court would not tolerate the type of conduct engaged in by Mr. Hoggett in this case. However, I think it appropriate that I make some allowance to Mr. Hoggett and take cognisance of his perception (albeit unjustified in fact) referred to above and extend to him the benefit of assuming he was not maliciously motivated. He labours under the belief that he has been persecuted by the Council. I can speak of no matter other than the present application. In this regard, however, I do not accept that he has been unfairly treated by Council. If in any future litigation, Mr. Hoggett attempts to raise matters that have been disposed of in this litigation, the question of costs in that litigation can be dealt with. At the present time, however, I do not think, on the assumptions favourable to Mr. Hoggett I have made, that exceptional circumstances have been established. Accordingly, I make no order as to costs in any of the three proceedings. As I have said, the Class 4 appeal and the other Class 1 proceedings were commenced to permit regular disposition of the matter if Mr. Hoggett wishes to maintain his argument that development consent was not necessary. Later, he abandoned his claim and I do not think it appropriate that any order for costs should be made in matter No. 40130.88 or No. 10264/88. 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. 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