Sader v Kogarah Council & Others [2008] NSWLEC 212

Land and Environment Court of New South Wales

CITATION : Sader v Kogarah Council & Others [2008] NSWLEC 212

APPLICANT Mark Sader

PARTIES : FIRST RESPONDENT Kogarah Council

SECOND RESPONDENTS William George Koshakji and Adele Koshakhi

FILE NUMBER(S) : 40173 of 2008

CORAM: Sheahan J

KEY ISSUES: Judicial Review :- denial of procedural fairness; compliance with DCP notification policy

CASES CITED: Clark & Davis v Wollongong Council & Ors [2008] NSWLEC 110

DATES OF HEARING: 22 July 2008

EX TEMPORE JUDGMENT DATE : 22 July 2008

APPLICANT Mr P Rigg Solicitor of Deacons

LEGAL REPRESENTATIVES: FIRST RESPONDENT Submitting appearance

SECOND RESPONDENTS In person

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Sheahan J

22 July 2008

40173 of 2008 SADER v KOGARAH COUNCIL & ORS

EXTEMPORE JUDGMENT 1 His Honour: Dr Sader has brought these Class 4 proceedings because of continuing concerns about an approval granted by Kogarah Council to Mr & Mrs Koshakji for the redevelopment of their residential property at 29 Queens Road, Connells Point. 2 Dr Sader seeks a declaration that Development Consent 212/2007 is invalid, and an order that the Koshakjis not act upon it. The Council filed a submitting appearance on 7 May 2008, save as to costs, and Mr Koshakji has today represented his wife and himself. Mr Rigg appeared for Dr Sader and asked the Court, in the event that his claim for relief succeeds, to consider not striking down the consent, but instead ordering two remedial alterations to it, with which his client would be satisfied. 3 During today's hearing unsuccessful attempts were made to reach a compromise on these two substantial matters of ongoing conflict between the parties. Mr Koshakji considers that doing as asked by the Saders will deprive him of too much of the available views from his property. 4 As often occurs in cases like this, complications arise when properties close to the one subject to the development application change hands while that development application is before Council. 5 The two Respondents' representatives lodged the DA on 3 July 2007 and Council notified it on 11 July, including to the then owner of No.31. The then immediate neighbours on either side of the Koshakji site (Nos.27 and 31) plus the owner of No.29A, made written submissions to Council in July 2007. Dr Sader purchased No.31 Queens Road in September 2007 and has occupied it from December 2007. Amended plans were presented to Council on 19 October and 24 November 2007, apparently to address concerns expressed in response to notification. Council apparently took the view that notification of the November amended plans was not required under the terms of DCP 20, but the then owner of No.31 appears to have had some input to Council's consideration of possible amendments to the proposal. 6 Mr Koshakji reached a compromise with the owner of the third nearby property (No.29A) on a stormwater issue. The owner of No.27 is not involved in these proceedings, but his concerns are dealt with in detail by Council in its final decision report dated 27 December which is before the Court (folios 67-84). That Council officers report recommended approval of the DA as amended subject to conditions. On the same date Council advised Dr Sader of the procedure for consideration of that report by Ward Councillors. Dr Sader responded to Council by telephone and email (see folios 89-91). 7 A site meeting was held on 7 January (see report at folios 92-93). Mr Koshakji says that a Ward Councillor and senior Council officers also called at the Sader property on 9 January, but I have no evidence of that second meeting. However, consequent upon the site meeting(s) a "privacy screen" condition (No.18 – see folio 102) was included in the Council consent granted by the Ward Councillors on 10 January (folio 96). 8 Dr Sader is not satisfied that this condition adequately addresses his concerns, and he commenced these proceedings on 26 February 2008. Nor are his concerns assuaged by Mr Koshakji's offer today to frost additional windows on the Sader side of his new house. 9 I am sitting in Class 4 of the Court's jurisdiction and so must not stray into merits considerations. It matters not what I may think of the proposal, or the objections and their solutions. The Council has granted its consent and the burden falls on Dr Sader to establish that its processes misfired in some way. I should, however, note that I have heard evidence and submissions on various aspects of the respective properties and their relationship – the two properties are in a waterfront scenic protection area of a Residential 2 (a) zone and are quite steep at their rear, affording very desirable views to the north, and they are separated by what appears to be fairly wide right of way. 10 Mr Koshakji has placed in evidence some useful photographs, and he is satisfied that Mr Rigg has placed in evidence sufficient of the contents of the Council's file. In turn, Mr Rigg has voiced no objections to the tenor of Mr Koshakji's presentation, both oral and documentary. I congratulate all concerned on the civility with which these difficult proceedings have been conducted. 11 Mr Koshakji asserts in his affidavit that he and his wife followed all "Council's guidelines and procedures", and amended their plans in discussion with Council planners to "appease the objecting neighbours (sic) concerns". Although not legally represented, I am satisfied that he took adequate steps to inform himself of the vagaries of Class 4 judicial review proceedings, as distinct from merits review proceedings. In his submissions he said that re-notification was not necessary in respect of the November final amended plans "due to the likely impacts to adjoining properties being unchanged or reduced". 12 Clause 1-13 of DCP 20 requires Council to re-notify changes only when they "in the opinion of Council will have potential to impact on surrounding properties". 13 The changes are clear from the various plans in the Council's file, especially by comparing folios 8 and 64, and drawing inferences from the reconfiguration of the alfresco dining area. Clearly both formulations of the proposal as so depicted have that necessary "potential to impact" on No.31, but the changes themselves may not. 14 It appears the Saders were not formally provided with the amended plans themselves, as appears to be envisaged by the DCP. However, no point based on Clark & Davis v Wollongong Council & Ors [2008] NSWLEC 110 has been taken, and it is clear that, although Dr Sader was not personally consulted before the report of 27 December was prepared, he was, indeed, notified of Council's process of final consideration of the DA. That advice of 27 December (folio 87) invited discussion with Council, and he then took active steps in response to it to press his concerns. It is also clear from DCP 20 that detailed plans, etc. would be easily accessed, albeit that this final consideration phase took place over the Christmas/New Year period. 15 The former owner of No.31 (Mr Ciaglia) in his written objection of 20 July 2007 to the original proposal (at folio 33) had dealt with the concerns which I have heard Mr Rigg repeat on Dr Sader's behalf today – windows and balconies on the Western elevation and their impacts on privacy. Council was clearly on notice of these concerns when it moved to its final approval phase. The privacy, overlooking and other issues were dealt with at length at folios 76-81 of the decision paper, but Council still entertained Dr Sader's later expressions of ongoing concern and called on him at least once to discuss and consider them before proceeding to determine the DA. 16 Mr Rigg asserts that in the absence of precise (or perhaps pedantic) compliance with DCP 20 CL.1.13, as he interprets it, Dr Sader was denied procedural fairness. If the Council and Dr Sader had had no communication or other dealings after the advice of 27 December, and before 10 January, I might well have come to that view, but the decision paper referred to the Ward Councillors acknowledged the concerns of the successive owners of No.31, and the Council's sympathetic approach to them from as early as its letter of 3 September to the proponent. The matter was then reviewed at the highest level of Council. 17 I am, therefore, on this evidence, not satisfied that there has been any denial of procedural fairness, nor any failure on Council's part to take into account relevant considerations, nor any conduct on Council's part which could satisfy the well-established tests of "manifest unreasonableness". 18 Dr Sader's Class 4 application must, therefore, be dismissed. 19 Because the Council is not before the Court today, and also because Mr Koshakji has appeared without legal representation, the question of costs is reserved.