Filadelfia Projects Pty Ltd v Ku-ring-gai Council [2010] NSWLEC 1060

Land and Environment Court of New South Wales

CITATION : Filadelfia Projects Pty Ltd v Ku-ring-gai Council [2010] NSWLEC 1060

APPLICANT: Filadelfia Projects Pty Ltd PARTIES : RESPONDENT: Ku-ring-gai Council

FILE NUMBER(S) : 10001 of 2010

CORAM: Hussey C

KEY ISSUES: DEVELOPMENT APPLICATION :- residential flat building - strata subdivision - whether deferred commencement condition is unreasonable or unnecessary in the circumstances

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 96(8)

CASES CITED: Jonah Pty Limited v Pittwater Council [2006] NSWLEC 99; (2006) 144 LGERA 408

DATES OF HEARING: 22 March 2010

DATE OF JUDGMENT: 23 March 2010

APPLICANT: Mr P C Tomasetti SC instructed by Mr D G Briggs (solicitor) SOLICITORS: D G Briggs & Associates LEGAL REPRESENTATIVES: RESPONDENT: Mr J E Robson SC instructed by T March (solicitor) SOLICITORS: HWL Ebsworth

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Hussey C

23 March 2010

10001 of 2010 Filadelfia Projects Pty Ltd v Kuring-gai Council

JUDGMENT Background 1 This appeal is against council's refusal of a development application for the strata subdivision of a recently completed complex comprising 3 residential flat buildings located at Nos. 3 – 13 Bundarra Ave South and No. 10 Woonona Ave, Wahroonga. 2 The parties agreed that this matter be heard concurrently with a s 96(8) application (Appeal No 10961 of 2009), which dealt with modifications to regularise aspects of the building. The parties reached a s 34(3)(A) agreement that consent be granted for the modifications subject to the conditions in Annexure 'A'. Court Orders were made accordingly. 3 The strata plan now seeks to incorporate the approved modifications, to enable completion of the project. Whilst council accepts that the strata plan is satisfactory for conditional consent, it requires the imposition of a deferred commencement condition that the consent will not operate until all the works listed in the s 96 modification have been completed to council's satisfaction. Such works to be completed within 6 months. 4 The applicant opposes this deferred commencement condition on the basis that the applicant's compliance with the other conditions of consent and the ensuing certification, should be satisfactory to enable consent being granted to the strata subdivision. 5 I understand from the evidence and submissions for council that its concerns arise because the modifications result from the non-compliance with the conditions of consent imposed on the original consent granted by the Court. The non-compliances are due in part to unauthorised variations allowed to the Construction Certificate by the PCA. These non – compliances were considered unsatisfactory by council and have involved considerable resources rectifying the situation. 6 Consequently council wants to avoid any further unsatisfactory outcomes by imposing the deferred commencement condition to restrict issue of the Subdivision Certificate until all the works have been satisfactorily completed, so as to avoid any further waste of resources. Findings 7 The submissions for the applicant are that the deferred commencement is unreasonable in the circumstances and that the basic principle that there is an assumption that the law will be complied with should be followed. Also, that the planning system allows for independent consultants (PCA) to grant final approvals to the strata plan and occupation certificate. The conduct of these certifiers is strictly regulated, which requires them to act in an independent way so as to ensure that all the conditions of consent are properly complied with before the final certification is granted. 8 Against this, the council submissions are that due regard should be given to the unsatisfactory circumstances resulting in the existing non – compliances and therefore a cautious approach adopted whereby the strata consent does not become operative until the outstanding works are completed. 9 In support of this submission, reference is made to the matter of Jonah Pty Limited v Pittwater Council [2006] NSWLEC 99, where the Chief Judge stated: "[35] Hence, in undertaking the merit determination of whether to grant or modify a development consent, it is irrelevant to enquire as to who is the current owner/operator, or who might be the future owner/operator, or whether the present owner/operator has in the past acted or used the land unlawfully, or whether the future owner/operator is likely in the future to act or carry out any approved use unlawfully."