Land and Environment Court of New South Wales CITATION : Janette Marie Green v Kogarah Municipal Council [1998] NSWLEC 142 APPLICANT Janette Marie Green PARTIES : RESPONDENT Kogarah Municipal Council FILE NUMBER(S) : 10457 of 1997 CORAM: Talbot J KEY ISSUES: :- LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 99 Derodo Pty Limited v Ku-Ring-Gai Municipal Council Bignold J (1992) 77 LGRA 1; CASES CITED: Nick Giannaras and Others v Council for the City of Queanbeyan unreported Matter 10446 of 1992 BignoldJ 4 November1992 ; Marguerita Winer v Ku-Ring-Gai Municipal Council unreported (ex tempore) Matter 20107 of 1993 Talbot J 22 June 1993; O'Bryan v the Council for the City the Randwick and Others unreported Matter 40036 of 1993 Bannon J 21 May 1993 DATES OF HEARING: 06/03/98 EX TEMPORE JUDGMENT DATE : 03/06/1998 APPLICANT Mr T S Hale (Barrister) Brock Partners Solicitors LEGAL REPRESENTATIVES: RESPONDENT Mr J A Cole (Solicitor) Abbott Tout Solicitors JUDGMENT: HIS HONOUR: These are class one proceedings. The applicant seeks an approval to the extension of a period of two years beyond which a development consent which she has obtained lapses pursuant to s 99(4C). The section provides the consent authority may grant the extension if satisfied that the applicant has shown good cause. Subsection (4B) allows any person entitled to act on a development consent to apply for an extension of one year if in granting the development consent the consent authority reduced the period of five years referred to in subsection 1(a) to less than five years. On 10 April 1995 the respondent council issued a Notice of Determination of a Development Application for a dual occupancy development comprising the erection of a detached dwelling house and Torrens title subdivision at the subject property 40 Algernon Street, Oatley subject to conditions. A note endorsed on the notice of determination stated:- This consent will lapse 2 years from the date it becomes effective, unless the development to which it refers is commenced by that date. (Refer to Section 99 of the Act). The plans lodged in support of the development application are in evidence and they remain as the only plans relied upon by the applicant to date. Condition 2 of the development consent stipulated as follows:- The development being amended as follows:- (a) Direct access shall be provided from the living room of Dwelling No. 2 to the adjoining courtyard. (b) Dwelling No. 2 being reduced in height such that no point on the ceiling extends beyond a height of 3.6 m from the existing ground level directly below. (c) Dwelling No. 2 and the attached patio shall be setback wholly behind the 30 m foreshore building line applicable to the site. In this regard, a surveyors certificate and plan shall be submitted verifying compliance with the 30 m foreshore building line. (d) The elevated driveway shall be permitted to have a maximum grade of 1:4.5 for a maximum of 15 m from the existing driveway with the remainder of the driveway being a maximum of 1:5, with an appropriate transition at the lower end. Such details shall be indicated on the future Building application. No building application has been made. No further plans have been lodged, as I said, and no work has commenced. There is no evidence that the topographical or other features of the site have changed since the date of development consent. On 24 March 1997 the applicant wrote to the council and made application for an extension of two years of development consent. The letter put forward the reason that a daughter who will reside in the proposed dwelling has not yet married as expected and has been unable to obtain funding at this stage to proceed with the building. In a report to the Development Assessment Committee on 7 July 1997, an officer of the council made the following observation: "Currently the applicant has a valid consent and the issue at this time is whether the applicant has shown good cause for Council to grant an extension. The reason given, that is, economic grounds is considered to be good cause." The recommendation made to the council was that it should grant a twelve months extension but that the applicant be advised that council will not consider any application for a s 102 modification or building application unless it is accompanied by a site plan prepared by a registered surveyor detailing a number of matters summarised as being ground levels below the ramp and deck and adjacent to the property adjoining, the location of the residence at 42A Algernon Street and the dimensions and gradient of the ramp and deck. It was also recommended that an application for a s 102 modification or building approval be determined by the Development Assessment Committee. In summary, the officer reported that, in granting the extension the council should request the applicant to provide a plan prepared by a registered surveyor clearly indicating ground levels, the location of the ramp adjacent to the property 42A Algernon Street and the gradients proposed for the ramp with any future application for s 102 modification or any future building application. On 5 September 1997 the respondent council issued a notice of determination notifying the applicant that the Development Assessment Committee had refused consent. The reasons for the decision were given as:- 1. To ensure proper management and development of natural and manmade resources so as to promote the social and economic welfare of the community; 2. To ensure orderly and economic use and development of land; 3. To minimise any adverse impact of developments and protect the environment. A copy of the actual resolution of council was attached to the notice of determination. That resolution was in the following form:- That Council refuse the request for an extension of time to Development Application 56/95 at 40 Algernon Street, Oatley, because the applicant did not provide the survey report and other information as requested by resolution of Council on July 7, 1997. The resolution appears to be referring to a letter which was written following the resolution of 7 July 1997, namely on 10 July 1997, which sets out a resolution whereby the council deferred consideration of the request to grant a one year extension so that the applicant can provide council with a site plan prepared by a registered surveyor dealing with the matters I have already referred to, and which were contained in the ultimate recommendation made by the council officer. It is disputed that such a plan was not furnished. It is appropriate to note that the reasons given in the notice of determination dated 5 September 1997 do not appear to coincide in any material respect with the reasons indicated by the council in its resolution to refuse the application. The uncertainty which caused the council to request the survey information appears to have arisen as the consequence of a submission furnished by a consultant town planner on behalf of a neighbour following exhibition of the application for extension. The consultant town planner, David Crane, concluded that it would appear from the information supplied on the survey plan and from the longitudinal ramp profile that vehicular access to the proposed dual occupancy cannot meet council's development condition requirements. He considered that the proposal cannot proceed in the form approved by council and therefore significant amendments would be required, resulting in further public consultation following the submission of a fresh development application. That is the first time, following the granting of the original development consent, the question of whether or not the development could be built is raised directly. It does not appear to be a matter which was raised in the council's mind at the time it determined the original application for development consent. Rather the council recognised, from the plan submitted, that development standards in relation to height and setback were not complied with and that amendment would be required in order to achieve compliance. Two questions have arisen for determination as preliminary points in these proceedings. They are: 1. Whether the applicant has shown good cause within the meaning of section 99(4C). 2. Whether the issues set out in the statement of issues are matters which the consent authority can take into account in the exercise of its discretion under section 99(4C). The statement of issues raises the question of alleged discrepancies and inaccuracies in the original plans approved with claimed impacts on amenity, which were not disclosed, and that the proposed development cannot be properly constructed in accordance with the approved plans or, finally, the subject of the consent incorrectly represents various details which results in uncertainty of the development. In support of its case the council has called two expert witnesses. They are a surveyor and a consultant town planner. Their evidence demonstrates that the approved plans must be amended in order to comply with condition 2 in at least two material respects. Firstly, that the height of the ceiling of the proposed dwelling in at least one instance must be reduced by approximately six metres. Secondly, that the building must be setback a further 4.5 metres beyond the line shown on the plans with an alleged resulting encroachment on the curtilage of the existing house and unacceptable consequences for the gradient of a proposed driveway. The evidence is a reflection, or confirmation if you like, of the observations which were made by Mr Crane on behalf of the neighbour. They are made in the some context. Mr Cole, on behalf of the council, submits that the order of magnitude of change will bring about a degree of amendment which will result in a different development. It is not therefore, according to the council evidence, possible to comply with condition 2. In the council's opinion the proper approach for the applicant is to lodge a new development application. It is not clear to the Court whether the subdivision of a dual occupancy in the manner of the approved subdivision is now permissible following changes to the law in the meantime. That ultimately is not a matter relevant to the questions which must be decided at this stage. The Court has been referred to a number of authorities where the nature and extent of the discretion to grant an extension has been discussed. It is well established, by authority, that it is difficult to define the extent of the discretion which a consent authority has in acting on a provision which provides for the showing of good cause. I do not propose to attempt to contain the limit of that discretion in these reasons. As a matter of general principle, this Court has approached the exercise of the discretion which arises here for determination on the basis that the matters which the consent authority may take account, setting aside questions of good cause which are not really an issue here, are matters which relate to the circumstances at the time the discretion is being exercised as opposed to the circumstances which prevailed at the time the original consent was granted. Those circumstances, however, are limited to those matters which are relevant to planning considerations as they impact upon the extension of time. I do not propose to work my way through those authorities except to refer to them. They are a reported decision by Bignold J in Derodo Pty Limited v Ku-Ring-Gai Municipal Council Bignold J (1992) 77 LGRA 1; Nick Giannaras and Others v Council for the City of Queanbeyan unreported Matter 10446 of 1992 Bignold J 4 November 1992; Marguerita Winer v Ku-Ring-Gai Municipal Council unreported (ex tempore) Matter 20107 of 1993 Talbot J 22 June 1993 and O'Bryan v the Council for the City the Randwick and Others unreported Matter 40036 of 1993 Bannon J 21 May 1993. The discretion must be exercised within the purposes of the Act, having regard to any change in the planning circumstances which might have occurred in the meantime. Mr Cole, in his submission, identifies the plan that is the subject of the development consent as a planning circumstance. He identifies the change of fact which has occurred since the date of the original grant is that council now knows the plan depicts a development which cannot be built. In that respect it is relevant to identify three different stages in time in so far as the council's knowledge is concerned. Firstly, at the date of the consent the council had the plan before it when it proceeded to grant a consent on the basis of the information contained in the plan. It imposed a condition that certain matters be rectified to the extent that it was necessary to comply with relevant development standards. Otherwise in planning terms the council made a determination that the proposed development for a dual occupancy and a subdivision was appropriate and granted consent accordingly. Secondly, there are the factual matters known to the council at the date of determination of the application for an extension for one year. At that time the council had before it the submission made on behalf of the adjoining owner by David Crane, and as a consequence of that submission the council called for further information. The information did not come to hand. Notwithstanding the fact that the information was not received, the council planner saw fit to make a recommendation as to how the problem might be resolved, if there was one, but nevertheless the council refused the application on the basis that the information was not available. Thirdly, further information is available as at the date of this hearing and in that respect the Court has heard from a surveyor, Mr Freedman, and a town planner engaged by the council, Mr Ludvik. They have given evidence in regard to what, in their opinion, would be the consequence of building according to the plan in compliance with condition 2. The council in the statement of issues is really seeking judicial review of its original decision. Its position now is that, on the basis of the facts which are available to it and the Court the consent would not have been granted. However, if these were judicial review proceedings, then the Court could only determine whether the decision to grant consent was reasonably open and not whether the decision itself was correct. In the absence of any relevant change in the circumstance of the general planning regime, or perhaps even the carrying out of development in the vicinity of the site, which might have proceeded on an understanding about the commencement of the subject development, or specific changes to the planning regime to an extent which renders the completion of the development undesirable on planning grounds which now prevail as distinct from the planning circumstances when the consent was granted, it is difficult to see how an error of the type identified can be a relevant circumstance. The prospect of change in the planning regime was conceivably in the mind of the consent authority when the development consent was granted in the first instance on the basis that it could not be acted upon unless commencement took place within two years in lieu of five years. The reason for reducing the time could only have been a planning circumstance which existed at that time. There is no evidence either way about whether that planning circumstance has changed. It is not, in my opinion, a planning circumstance where a council has been led into error. In this case no relevant error has been demonstrated. In fact at the time when council granted consent it recognised the prospect of discrepancy when it imposed condition 2. If it is the fact that the building cannot be built, that will be a matter which can only arise when the building application is lodged. That is an underlying aspect of the consent itself where it is stated in condition 2. The s 102 application may, or may not, be an option at that stage. Accepting that the original grant of consent was given and based on a factual error, it is not, in my opinion, legitimate in the terms of s 99 to take the opportunity to redetermine the original application upon an application for extension. Good cause must relate to circumstances regarding the subject of the grant of consent. It is not a ground for refusing consent to an extension, where good cause is otherwise shown, to contend that the council simply got it wrong or that there was an error at the time of the original determination. I have taken some time to set out the reasons because without those reasons the determination to the effect that the issues which the council raise are not relevant may at first glance appear to be anomalous. However, when one has regard to the function of s 99, then the discretion must be exercised having regard to at least the matters I have referred to but not extending to a situation where a factual error might have been made in the first instance. Ultimately the council may be quite right in its perception of whether or not the development can be built. It may also be correct that there are discrepancies and inaccuracies in the plan to the extent that any changes will result in a new development and that as such do not fall within either condition 2 or s 102 of the EPA Act. That is not a matter to be decided in these proceedings. Even if the expert evidence provided by the council is accepted for all those reasons, it addresses the wrong question at this time. Both witnesses had regard to the approved plans and, as I have said, the conditions of consent not only contemplated but dictated change at the BA stage. That stage has not arisen and the applicant, in my opinion, is entitled to defer the disclosure of its position in that regard until the lodgement of the building application as the development consent condition contemplates. The answers to the questions which were raised and which I set out at the beginning of these reasons are: (1) Yes (2) No. Do you want to consider until 2.30pm what the position is or is the consequence clear? HALE: I would have thought the consequence would be that the appeal would be allowed. I don't know whether Mr Cole has anything to say about that. Perhaps he wants some time. In the context of the formulation of the case and your Honour's answers that would be an inevitable consequence one would have thought. Do you dissent from that? COLE: No. HIS HONOUR: That is an inevitable consequence. The appeal is upheld. There is a good cause. COLE: Your Honour found good cause and you found that the matters could not be there, so I don't think I can argue against that. It's really a matter for you. I don't have any instructions on it but it's a matter for you. HIS HONOUR: If you want to put something to me I will defer it until 2.30pm otherwise we can dispose of the matter now. I would think Mr Hale is right in that respect. COLE: Yes, your Honour. HALE: One other matter was, given that this is a point of law, the question of costs in relation to-- HIS HONOUR: The practice direction still applies. It's been held that a point of law is not an exceptional circumstance HALE: I appreciate that. Was it Teller that-- HIS HONOUR: Yes, Mr Hale, and Teller is still on the record. It is just that the weight of numbers finally forced me to concede that I have to regard the question of comity. COLE: Particular circumstances of this case, your Honour, most appropriate. HIS HONOUR: What is the application? It is only a simple class one application, isn't it? So if just the appeal is upheld - COLE: Council's deemed refusal of the application. HIS HONOUR: The development consent granted by Kogarah Municipal Council by notice of determination dated 10 April 1995 is hereby extended to 10 April - HALE: Your Honour only needs to say one year - 4E(B). It's 12 months from the date on which the Court determined the appeal. HIS HONOUR: I see. It could well be after. All right. Be extended for a period of one year from 6 March 1998. In case that was a formal application for costs, no order as to costs. The exhibits may be returned. 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.