Land and Environment Court of New South Wales CITATION : Martin v Cootamundra Shire Council and Anor [2008] NSWLEC 220 APPLICANT Ormonde Robert Martin PARTIES : FIRST RESPONDENT Cootamundra Shire Council SECOND RESPONDENT John Meyer FILE NUMBER(S) : 40050 of 2008 CORAM: Pain J KEY ISSUES: Judicial Review :- whether Council decision to grant modification of development consent beyond power - whether Council was functus officio - whether decision to modify consent manifestly unreasonable Dividing Fences Act 1991 LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 96 Environmental Planning and Assessment Regulation 2000 cl 122 Associated Provincial Picture Houses, Limited v Wednesbury Corporation [1948] 1 KB 223 Hastings Point Progress Association Inc v Tweed Shire Council and Anor; Hastings Point Progress Association Inc v Tweed Shire Council and Ors [2008] NSWLEC 180 Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 CASES CITED: Panagopoulos v Willoughby City Council (1992) 78 LGERA 270 Semunigus v The Minister for Immigration and Multicultural Affairs [1999] FCA 422 Semunigus v Minister for Immigration and Multicultural Affairs (2000) 96 FCR 533 Townsend v Evans Shire Council (2000) 109 LGERA 336 DATES OF HEARING: 23 July 2008 DATE OF JUDGMENT: 1 August 2008 APPLICANT Mr N Eastman SOLICITOR Storey and Gough FIRST RESPONDENT LEGAL REPRESENTATIVES: Mr A Hudson (solicitor) SOLICITOR Wilshire Webb Staunton Beattie SECOND RESPONDENT Mr P Crennan (solicitor) SOLICITOR McIntosh McPhillamy & Co JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Pain J 1 August 2008 40050 of 2008 Martin v Cootamundra Shire Council and Anor JUDGMENT 1 Her Honour: The Applicant, Mr Martin, lives next door to the Second Respondent, Mr Meyer, and is challenging the grant of a modified consent by the First Respondent, Cootamundra Shire Council (the Council), in October 2007. A declaration is sought that the modified consent is void and of no effect. A further declaration is sought that two conditions of development consent be complied with. 2 Two affidavits of the Applicant dated 4 March 2008 and 29 April 2008 were read in whole or part. They outline a brief history of the Second Respondent building a shed/carport on his land before September 2005. Class 4 proceedings against both the Council and the Second Respondent were commenced by the Applicant seeking demolition of the shed/carport. An order of this Court for demolition was suspended pending an opportunity to regularise the breach. The Second Respondent lodged development application 05/0178 with the Council on 2 September 2005. The Applicant objected to the development application, citing concerns with potential overlooking of his property from several windows. The development application was granted on 14 August 2006 and included conditions 6 and 7, which sought to address the Applicant's concerns by requiring the reduction in size of some windows and replacing others with metal covers. 3 The Applicant's second affidavit addresses, inter alia, the Second Respondent's defence that he, by his own actions, caused the fence extension (which afforded privacy to his property) to be removed as a result of local court proceedings under the Dividing Fences Act 1991. The Applicant states his opinion that the fence extension works raising the height of the fence from 1.5m to 1.8m were substandard. He had not been notified of the works under the Dividing Fences Act and these occurred outside of the three month period stipulated in the Council's resolution of 16 April 2007. For this reason the Applicant commenced the local court proceedings seeking removal of the fence under the Dividing Fences Act. The Applicant's understanding is that, as conditions 6 and 7 had been removed, there is no longer a legal obligation on the Second Respondent to remove the windows. 4 The parties tendered an agreed bundle of documents. A relevant chronology based on that provided by the Council with some necessary additions is as follows: 02.09.2005 The Second Respondent lodged Development Application 05/0178 for use of a garage and attached carport constructed without development consent. 14.08.2006 Notice of Determination for Development Consent (DA05/0178) issued by Council. 03.08.2006 Letter from the Second Respondent to Council requesting that conditions 6 and 7 of the consent be deleted and the boundary fence be built up in place of these conditions. 16.10.2006 Council considers a report about these requests from the Second Respondent. Council expresses no opinion and indicates that an application should be submitted and referred to an independent assessor. 26.10.2006 Section 96 modification application submitted to the Council by the Second Respondent. Mr Newland (GHD) planner, engaged by the Council. 13.11.2006 Council considers a further report noting that the application had been submitted and referred to the consultant planner. 01.12.2006 Council receives report from Mr Newland (GHD). 04.12.2006 Notification of modification application to the Applicant including a copy of the GHD report. 21.12.2006 Letter of objection from the Applicant to Council. 04.01.2007 Letter to the Applicant acknowledging objection. 05.03.2007 Modified application received by Council with plans (the resubmitted application). 13.04.2007 Letter to Council from the Applicant about report to Council. 16.04.2007 Letter to Council from the Applicant about report to Council. 16.04.2007 Report to Council and Council's first resolution to modify the consent when the fence is constructed. The Council resolved "to modify Development Consent DA 05/0176 [sic] by the removal of Conditions 6 and 7 subject to the proposed extension in height of the boundary fence between 2A Barnes Street and 1 Yass Road to 1.8 metres for a width of 12 metres adjacent to the garage/carport/shed on 2A Barnes Street being completed with [sic] three months of this determination" 17.04.2007 Letters to the Applicant and Second Respondent notifying of Council's first resolution. 25.07.2007 Letter to the Second Respondent with draft order based on unmodified consent because fencing work not carried out. 07.08.2007 Letter from the Second Respondent to Council indicating that the Second Respondent would be employing others to build a fence. 14.08.2007 Letter from Council to the Second Respondent that matter would be considered at meeting on 10 September. Sept 2007 Applicant commences proceedings in Local Court against the Second Respondent under Dividing Fences Act seeking removal of fence extension and notifies Council of this by letter. 10.09.2007 Report to Council noting the Second Respondent's position and resolution deferring making of the proposed order. 12.09.2007 Inspection by Council officer indicates fence constructed and satisfactory (see minute). 20.09.2007 Council letter to Applicant acknowledging notification of Local court proceedings. 15.10.2007 Report to Council. Second resolution of Council which is to the effect that the modification application is approved to delete conditions 6 and 7. 24.10.2007 Notice to the Second Respondent of Council's determination to modify the consent by deleting conditions 6 and 7. 7 Dec 2007 Local Court order for fence extensions to be removed by the Second Respondent. 5 Jan 2008 Fencing extensions removed by Second Respondent. 5 The report dated 16 April 2007 prepared for the Council by a Council officer in relation to the modification application identifies that the proposed boundary fence extension by the Second Respondent from 1.5m to 1.8m did not require the Council's approval under the Dividing Fences Act and did not require the Council's approval because it was exempt development under the Cootamundra Development Control Plan No 1 - Exempt and Complying Development. The preferred solution to deal with the privacy issue for the Applicant's back yard was identified in the independent report of Mr Newland, planner, prepared for the Council, as the provision of a 1.8m fence. This letter addressed privacy impacts on the Applicant's land due to overlooking from the Second Respondent's yard generally not just from within the shed/carport. A minute of a Council officer dated 12 September 2007 concerning the extension to the fence carried out by the Second Respondent stated that this was satisfactory in light of Council's controls. Relevant legislation 6 Section 96 of the Environmental Planning and Assessment Act 1979 (the EP&A Act) provides for applications for modification of development consents. Clause 122 of the Environmental Planning and Assessment Regulation 2000 (the EP&A Regulation) provides: 122 Notice of determination of application to modify development consent (1) Notice in writing of the determination of an application for the modification of a development consent must be given to the applicant as soon as practicable after the determination is made. (1A) A notice of determination of an application granted for the modification of a development consent must include a copy of any relevant plans endorsed by the consent authority. … Issue 1: was decision to grant modified development consent in October 2007 beyond power? Applicant's submissions 7 The Applicant relied on the principle that where a decision-maker's first exercise of power is spent and the decision-maker is therefore functus officio, a purported second exercise of the power by the decision-maker is ultra vires; Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 at 211. The statutory requirements of the EP&A Act suggest that the power to determine a modification application is not exercised from time to time but at the time of determination. The Applicant argued that the Council considered the Second Respondent's modification application and determined it in April 2007. The resolution passed on 16 April 2007 refers to the determination of the matter. It notified the Second Respondent of its decision by letter which set out the resolution of the Council so that the decision was communicated. Although not entitled "Notice of Determination" the 17 April 2007 letter informed the Applicant in a way that broadly complies with cl 122 of the EP&A Regulation. Consequently, the power to consider the modification application was exercised at that time and was exhausted, relying on Panagopoulos v Willoughby City Council (1992) 78 LGERA 270 and as also applied by Lloyd J in Townsend v Evans Shire Council (2000) 109 LGERA 336. Accordingly the decision purportedly made by the Council in October 2007 was beyond power as the Council's power was then exhausted so that the Council was functus officio. The Council's decision to modify the consent as made in April 2007 therefore applies. As that was not complied with, no fence being constructed within the three months specified, then conditions 6 and 7 remain to be complied with by the Second Respondent. 8 The alternative argument that the modification to the April 2007 consent was uncertain and void for uncertainty was not strongly pressed (and it is hard to see how it can be in light of the Applicant's other arguments). Respondents' submissions 9 The Council argued that if the whole of the Council's decision-making on the modification application is reviewed it is clear that it did not determine the modification application in April 2007. It decided to defer the determination of the Second Respondent's application to provide an opportunity to the Second Respondent to build a 1.8m fence. This was done albeit not within the three months required by the Council's April determination. The Council's resolution of 15 October 2007 was a deferred consideration of the modification application. A modified development consent was issued on 24 October 2007 following the construction of the fence extension. The Second Respondent adopted the submissions of the Council. Finding on issue 1 10 The Applicant relied on Panagopoulos in which Bignold J held that once a decision to modify a development application has been made it can be communicated orally to amount to sufficient communication for the purposes of the EP&A Act. This was held to be available in addition to the requirement (then in cl 48(1) of the EP&A Regulation, now cl 122) to provide written notification of the determination of the modification application. That finding was said to support the argument that in this case the 17 April 2007 letter notifying the Applicant of the Council's resolution on the modification application was a communication of the final decision by the Council of the Second Respondent's development application. That finding does not answer the issue raised in this case of whether the modification application was finally determined by the Council in April 2007 and the decision communicated to the Second Respondent. The circumstances considered in Townsend are also quite different to those before me here. That case held that there must be formal notice of determination given in order for there to be an effective development consent. 11 The context in which a "decision" is made is relevant to determining whether a decision has in fact been made. In Semunigus v Minister for Immigration and Multicultural Affairs [1999] FCA 422 (affirmed on appeal in Semunigus v Minister for Immigration and Multicultural Affairs (2000) 96 FCR 533) Finn J held at [19]-[20]: [19] For present purposes I am prepared to hold that the making of a decision involves both reaching a conclusion on a matter as a result of a mental process having been engaged in and translating that conclusion into a decision by an overt act of such character as, in the circumstances, gives finality to the conclusion - as precludes the conclusion being revisited by the decision-maker at his or her option before the decision is to be regarded as final. [20] What constitutes such an act can obviously vary with the setting in which the decision is made: it may be no more than a written notation of a conclusion on a departmental file; it may be publication of the conclusion in a particular forum, or communication of it to another; it may be performing a consequential or collateral act that presupposes the decision's having been made, etc The context being considered was whether a decision had been made by the Refugee Review Tribunal. The approach identified in [20] applies broadly, and indeed as a matter of logic, so that the entirety of the Council's decision-making processes need to be considered. 12 I agree with the Council's submission that when the Council's resolution passed on 16 April 2007 is considered in the context of all the steps in the Council's decision-making on the modification application including the terms of the April 2007 decision, subsequent correspondence and the events leading up to the October 2007 decision, the April 2007 resolution was not a final determination of the modification application but part of a process of decision-making that lead to the 15 October 2007 decision to modify the development consent by deleting conditions 6 and 7. The latter decision was the relevant determination of the modification application and the decision in relation to which notification under cl 122 of the EP&A Regulation was issued. It therefore follows that the Applicant's argument that the Council's determination of the modification application in October 2007 was beyond power is not correct. The Applicant is unsuccessful on this ground Issue 2: The October 2007 decision was irrational and manifestly unreasonable 13 It is therefore necessary to consider the second ground raised by the Applicant which is that the October 2007 decision approving the modification application was irrational and unreasonable in a Wednesbury sense (see Associated Provincial Picture Houses, Limited v Wednesbury Corporation [1948] 1 KB 223). Applicant's submissions 14 The Applicant submitted that the 15 October 2007 determination was irrational because the purpose of imposing conditions 6 and 7 was to preserve the Applicant's privacy and now by allowing the removal of these conditions this cannot be achieved. 15 The history of the matter suggests the Council was unreasonable given the imposition of conditions 6 and 7 to address the Applicant's privacy, that the Council considered that it would only delete these conditions if the privacy and overlooking concerns were otherwise addressed so that the Second Respondent was required to construct fencing improvements, the Second Respondent failed to build the fence in the time required of three months by the 16 April 2007 resolution, the Council wrote threatening to enforce conditions 6 and 7 if the fence was not constructed, the Council wrote informing the Applicant on 20 September 2007 it would await the outcome of the local court proceedings which it failed to do and the 15 October 2007 determination was predicated on the fact that fencing works had been done. There is nothing in the development consent as modified to protect the Applicant's privacy. Whether the fence was removed because of an order of the local court, or blown down by a storm, there is nothing to require the Second Respondent to maintain the boundary fence at 1.8m. Accordingly the 15 October 2007 decision was invalid because it is irrational and unreasonable. Council's submissions 16 The Council issued a notice of determination of the modification application pursuant to cl 122 of the EP&A Regulation on 24 October 2007 following its resolution of 15 October 2007. The resolution of 15 October 2007 conveys the meaning that when the fence had been extended the Council would finally determine to modify the development consent to remove conditions 6 and 7. The Council submitted that it had no role to play in approving the fence extension under the Dividing Fences Act and the fence extension did not require development consent under the relevant DCP. In relation to the merits of the proposal, the Council was satisfied that if the fence extension was constructed, the privacy issues addressed by conditions 6 and 7 would be satisfied and these would no longer be required. It is clear that the modification application would be granted provided that a satisfactory extension to the fence had been completed. This is confirmed by the letters from the Council to the Applicant and the Second Respondent of 17 April 2007. The Council's decision to modify the consent was made once the extension to the fence had been constructed and was in place. When the Council made its decision in October 2007, it knew that privacy was an issue of concern to the Applicant and of the dispute between the Applicant and Second Respondent in relation to the construction of the fence which was intended to address the privacy concerns of the Applicant. 17 A fair and reasonable reading of the letter to the Applicant dated 20 September 2007 suggests that the Council is merely noting the contents of the letter from the Applicant dated 7 September 2007 about the local court proceedings and that it assumes that the Applicant will tell the Council in due course of the outcome of the dispute. 18 While the Applicant argued that as a result of the grant of the modification application the privacy issue cannot be addressed under the development consent and that was the central concern of the Applicant, the Council's understanding of the Dividing Fences Act was that it did no more than authorise in the circumstances of this case the local court to order a contribution towards the construction of a dividing boundary fence. Given the terms of the Dividing Fences Act that is a reasonable understanding of that Act. There can be no suggestion that the Council's decision was manifestly unreasonable on this basis. 19 It is clear that the Council's decision was made on the basis that the extension to the fence had been constructed and was in place. The Council relied upon the existing extended fence to address the privacy impacts and concerns which the Council was well aware of and accepted as satisfactory as between the two properties. Finding on issue 2 20 Numerous cases have considered the circumstances in which an administrative decision may be manifestly unreasonable. Many are identified in Save our Street Inc v Settree [2006] NSWLEC per Biscoe J at [31] and most recently by me in Hastings Point Progress Association Inc v Tweed Shire Council and Anor; Hastings Point Progress Association Inc v Tweed Shire Council and Ors [2008] NSWLEC 180 at [126] – [127]. The various authorities emphasise that a party seeking a finding of manifest unreasonableness on the part of a decision maker has a high threshold to overcome. 21 When the circumstances of the Council's decision to approve the modification application in October 2007 are considered, and as identified in the Council's submissions, I do not consider that the Council acted unreasonably or irrationally. No further approval was required from the Council in relation to the additional fencing to be added to the existing 1.5m fence to raise the height to 1.8m. A higher fence between the properties was identified by the independent consultant planner employed by the Council as a better way of dealing with the privacy between the respective properties. A Council officer had determined that what was constructed was satisfactory. The fence extension was in place at the time that the decision to grant a modified consent was issued. I do not consider the letter of 20 September 2007 from the Council to the Applicant stating that it will await the outcome of the local court proceedings suggested that it had agreed to wait for that outcome. Given the Council's reasonable understanding of the Dividing Fences Act and in light of a 1.8m fence being exempt and complying development under the relevant DCP, its decision to delete conditions 6 and 7 was not unreasonable or irrational. The Applicant is unsuccessful on this ground. 22 As the position currently stands there continues to be a 1.5m fence between the Applicant and the Second Respondent's properties and the parties can reach agreement between them under the Dividing Fences Act to erect an extension to raise the height to 1.8m and share the cost of doing so. The Council need have no role to play in relation to the fence extension. Orders 23 The Court makes the following orders: 1. The Class 4 application is dismissed. 2. Costs are reserved. 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.