New South Wales Court of Appeal CITATION : Christopoulos v Warringah Shire Council [1999] NSWCA 410 FILE NUMBER(S) : CA 40339/98 HEARING DATE(S) : 3 November 1999 JUDGMENT DATE : 3 November 1999 Theodoras & Sotiria Christopoulos (Appellants) PARTIES : v The Council of the Shire of Warringah (Respondent) JUDGMENT OF : Mason P at 9; Stein JA at 10; Fitzgerald JA at 1 LOWER COURT JURISDICTION : Supreme Court - Common Law Division LOWER COURT FILE NUMBER(S) : 10120/90 LOWER COURT JUDICIAL OFFICER : McInerney J COUNSEL : 1&2A - Mr S Jacobs R - Ms J Kelly SOLICITORS : 1&2A - Stewart Levitt & Co R - Wilshire Webb CATCHWORDS : Common law; claim that Council acted ultra vires in development consent. DECISION : Appeal dismissed with costs THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40339/98 CD 10120/90 MASON P STEIN JA FITZGERALD JA WEDNESDAY 3 NOVEMBER 1999 THEODORAS CHRISTOPOULOS & ANOR v THE COUNCIL OF THE SHIRE OF WARRINGAH JUDGMENT 1 FITZGERALD JA: This appeal from a Judge of the Common Law Division dismissing the appellants' action for damages is founded on the proposition that a condition to a development consent issued by the respondent on 6 September 1984 was ultra vires because the council did not give independent consideration to the application upon which it issued the development consent but merely routinely applied a policy. 2 The consent was a consent to use existing shop premises, which had space for parking at the rear, for a takeaway pizza shop. The condition which the appellants seek to impugn was in the following terms: "6. Dedication to Council as road, of a strip at the rear of the property, measuring 3.66m wide for full width of the land. The access and carparking area to be sealed and the latter linemarked within 3 months of occupation. Such to be created in conformity with the dedicated accessway to the south and the adjacent carpark area." 3 The principal focus of the appellants' complaint was the requirement that the strip be dedicated to the council as road. It was pointed out that the appellants owned an existing laneway to the rear of the property from King Street, the property having its frontage to Condamine Street, which intersects with King Street at right-angles. 4 For the reasons given by the trial Judge, I am satisfied that the respondent-council did not merely routinely apply a policy but gave proper consideration to the application and that the condition was not for that reason ultra vires. 5 Despite the very able argument presented by Mr Jacobs of counsel who came into this matter at a late stage and in circumstances of considerable difficulty and obviously quickly mastered the brief and was able to deal with the matter succinctly and provide considerable assistance to the Court, even if the trial Judge was wrong and I am wrong in my opinion that condition "6." was not ultra vires the council for the reason advanced by Mr Jacobs, the appeal would still in my opinion fail. 6 It was essential to the appellants' case that it demonstrate that, but for acting on the policy (as it asserted incorrectly in my view the council had done without consideration of the individual circumstances of the case), the council would have given the development consent which it did without appending the material condition. 7 There is no evidentiary foundation for such a conclusion and such material as there is leads to the opposite conclusion. 8 I would accordingly dismiss the appeal with costs. 9 MASON P: I agree. 10 STEIN JA: I also agree. I think that Mr Jacobs on behalf of the appellants has submitted everything that could reasonably be put to the Court in support of the appellants' case. Notwithstanding, the appeal must fail for the reasons given by McInerney J, with which I respectfully agree. The condition in question for dedication of the land was not shown to be ultra vires and, even if the trial Judge erred in this respect, I agree with Fitzgerald JA that that will not assist the appellants in terms of damages. I agree with the orders proposed. 11 MASON P: The order of the Court is appeal dismissed with costs. ********** 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.