Manly Council v Hortis [2001] NSWCA 81

Reported Decision : (2001) 113 LGERA 321

New South Wales Court of Appeal

CITATION : Manly Council v Hortis [2001] NSWCA 81 revised - 5/04/2001 FILE NUMBER(S) : CA 40550/99 HEARING DATE(S) : 12/03/01 JUDGMENT DATE : 5 April 2001

Manly Council (Appellant) PARTIES : Edison Hortis (First Respondent) Gregory Mailman (Second Respondent) JUDGMENT OF : Powell JA; Giles JA; Fitzgerald JA

LOWER COURT JURISDICTION : Land & Environment Court LOWER COURT 40188/98 FILE NUMBER(S) : LOWER COURT Sheahan J JUDICIAL OFFICER :

COUNSEL : M.L. Einfeld QC / A. J. Thompson (Appellant) N.A. Hemmings QC (Respondent) Pike Pike and Fenwick (Appellant) SOLICITORS : Allen Allen & Hemsley (First Respondent) Staunton Beattie (Second Respondent) CATCHWORDS : Administrative law - Town Planning - Development consent - whether valid - inference that Council had failed to consider pre-condition in clause 17 of the Manly Local Environment Plan of 1998 - D LEGISLATION CITED : Environmental Planning and Assessment Act 1979 Currey v Sutherland Shire Council (1998) 100 LGERA 365 CASES CITED: Franklins Ltd v Penrith City Council (1999) (NSWCA 134, 13 May 1999) Clifford v Wyong Shire Council (1996) 89 LGERA 240 DECISION : Appeal dismissed with costs

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40550/99 LEC 40188/98 POWELL JA GILES JA FITZGERALD JA

THURSDAY 5 APRIL 2001

MANLY COUNCIL v HORTIS

JUDGMENT

1 THE COURT: On 2 July 1998, the appellant Manly Council issued a Development Consent and Building Approval, subject to conditions, to the second respondent, Mr Gregory Mailman. On 25 September 1998, a modification was approved by the Council. The Development Consent, Building Approval and modification (the "approval") related to a property at 21 Beatty Street, Balgowlah, which is located in a Foreshore Scenic Protection Area within the "Residential 2" zone under the Manly Local Environment Plan of 1998 (the "LEP"). The first respondent, Mr Edison Hortis, and his wife own the adjoining property at 23 Beatty Street. 2 The applications on which the Development Consent and Building Approval of 2 July 1998 were issued were lodged on 13 March 1998. Two earlier applications had been unsuccessful. 3 The initial applications were lodged on 31 October 1995. After objection from Mr and Mrs Hortis and a report by the Council's Director of Environmental Services to its Building and Environment Committee, those applications were refused on 17 May 1996. An appeal to the Land and Environment Court was dismissed by Assessor Roseth on 17 October 1996. 4 Fresh applications were lodged on 24 December 1996. Mr and Mrs Hortis again objected. Those applications were refused on 20 February 1997. An appeal to the Land and Environment Court was again dismissed, on 19 May 1997 by Assessor Bull. 5 After the applications on which the Development Consent and Building Application were issued were lodged on 13 March 1998, Mr and Mrs Hortis again objected by a letter from their solicitors dated 21 April 1998. On 27 June 1998, Mr and Mrs Hortis wrote to the Council in support of their objection. On 29 June 1998, the Council made its decision to grant the Development Consent and Building Approval. Prior to doing so, the councillors inspected the property to which the applications related and the Council was addressed on behalf of Mr and Mrs Hortis by their architect, Mr W.J. Bird. 6 After the Council issued the Development Consent and Building Approval on 2 July 1998, an application for modification was lodged on 4 August 1998. On 20 August 1998, the architect for Mr and Mrs Hortis lodged an objection to the proposed modification. The Council decided to approve the modification on 21 September 1998 and gave notice of its decision on 25 September 1998. 7 On 29 September 1998, Mr Hortis commenced Class 4 proceedings against the Council and Mr Mailman in the Land and Environment Court. On 2 July 1999, that Court declared that the Development Consent and Building Approval issued on 2 July 1998 and the modification issued on 25 September 1998 were void and of no effect. 8 The Council has appealed from that judgment. 9 Despite some confusion at the hearing in this Court with respect to the nature of the Land and Environment Court proceeding and the issues available for argument in this Court, we are satisfied that the Council's full case was covered in its written and oral submissions. In the end, only a single, narrow issue needs to be determined. 10 Clause 3(1) of the LEP sets out its "general aims and objectives". Clause 3(2) provides: "(2) The particular aims of this plan are - (a) to divide land into the zones referred to in Clause 9 and to achieve in each of those zones the objectives specified for the land in Clause 10; (b) to enable the council to make development control plans regulating the carrying out of development in any zone - (i) by restricting the carrying out of that development to a specified area within the zones; or (ii) by fixing standards or specifying requirements for that development." 11 Part 2 of the LEP contains "General Restrictions on Development of Land". Clause 9 divides the land to which the LEP applies into zones including "Zone No. 2 Residential Zone". Clause 10 provides: "Zone objectives and development control table (1) The objectives of a zone are set out in the Table to this clause under the heading "Objectives of zone" appearing in the matter relating to the zone. (2) Except as otherwise provided by this plan, in relation to land within a zone specified in the Table to this clause, the purposes (if any) for which - (a) development may be carried out without development consent' (b) development may be carried out only with development consent; and (c) development is prohibited are specified under the headings "Without development consent", "Only with development consent" and "Prohibited", respectively, appearing in the matter relating to the zone. (3) Except as otherwise provided by this plan, the council shall not grant consent to the carrying out of development on land to which this plan applies unless the council is of the opinion that the carrying out of the development is consistent with the objectives of the zone within which the development is proposed to be carried out." 12 According to the Development Control Table for "Zone No. 2 - Residential Zone", the objectives of that zone are: " (a) to set aside land to be used for the purposes of housing and associated facilities; (b) to delineate, by means of development control in the supporting material, the nature and intended future of the residential areas within the Municipality; (c) to allow a variety of housing types while maintaining the existing character of residential areas throughout the Manly Council area; (d) to ensure that building form, including alterations and additions, does not degrade the amenity of surrounding residents or the existing quality of the environment; (e) to improve the quality of the residential areas by encouraging landscaping and permitting greater flexibility of design in both new development and renovations; (f) to allow development for purposes other than housing within the zone only if it is compatible with the character and amenity of the locality; (g) to ensure full and efficient use of existing social and physical infrastructure and the future provisions of services and facilities to meet any increased demand; and (h) to encourage the devitalisation of residential areas by rehabilitation and suitable redevelopment." 13 The Development Control Table for "Zone No. 2 - Residential Zone" also provides that a dwelling house is a permissible development in a Foreshore Scenic Protection Area only with development consent. 14 Clauses 17 "Visual and aesthetic protection of certain land" and 17A "Alteration of a building or work in a Foreshore Scenic Protection Area" of the LEP contain additional provisions in relation to land in a Foreshore Scenic Protection Area. Clause 17 provides: "The Council shall not grant consent to the carrying out of development unless it is satisfied that the development will not have a detrimental effect on the amenity of the Foreshore Scenic Protection Area." 15 The development control plan which regulates the carrying out of development in the Residential 2 zone (the "DCP") is the "Manly Development Control Plan for the Residential Zone 1986 (Amendment 3). 16 The "Introduction" to the DCP explains its purpose and includes the following passage: "This plan applies to all residential developments, alterations and additions on land zoned residential within the Municipality of Manly. This includes single dwelling houses, medium density developments and residential flat buildings. … Part 1 of this plan consists of design guidelines which illustrate the way to achieve good design using the D.C.P. Standards. The design guidelines initially examine the character of different localities within Manly Municipality and show ways in which new development may fit in to existing character and amenity. Part 2 of this plan consists of the actual D.C.P. Standards. There are a series of specific controls covering: Sunlights, Privacy, and Views Floor Space Ratio Density Height Setbacks Open Space Landscaping Parking Rehabilitation …. The D.C.P. is structured so that each criteria has a set of objectives and standards. It is intended that the standards are either maximum or minimum requirements and provide one method of achieving the objectives. In some instances the provisions of this plan may be varied on the basis of physical site constraints, or where the applicant can demonstrate that the objectives of the clause are being achieved without conforming to the standards." 17 A section of the DCP headed "Preliminary" includes both its "General Aims and Objectives" and the following "Specific Aims and Objectives": "1. To provide development and performance standards to reduce the impact of new development on the privacy, sunlight and views of the adjoining residents. 2. To encourage innovative and attractive design, with privacy for future residents within the development and access to sunlight by setting appropriate development and performance standards. 3. To provide opportunities to allow for view sharing by both the existing and future residents of the Municipality. 4. To introduce height and density controls to encourage the provision of housing which is compatible with the existing character of the neighbourhood, while still providing opportunities for development which will meet the State Government requirements for urban containment. 5. To provide floor space ratio controls which will provide for flexibility of design within the parameters set by the other development standards of the development control plan. 6. To orientate residential buildings in a way that does not simply locate them in a linear configuration down the block. 7. To provide open space to each dwelling sufficient for recreational and landscaped open space. 8. To encourage new development to enhance the existing streetscape. 9. To provide for off-street parking relative to dwelling size and type. 10. To provide incentives for the rehabilitation of buildings. 11. To control height by relating it to the crown of the road and to control encroachments on local road widening in specific parts of the Municipality. 12. To ensure protection of environmentally sensitive areas, including National Parks and certain open space areas." 18 The LEP is an "environmental planning instrument" as defined in ss4(1) of the Environmental Planning and Assessment Act 1979. The Council is a "consent authority" as defined. Section 4(1) includes other relevant definitions including "development" and "development application". The broad statutory scheme as at the date when the Development Consent and Building Approval was granted can be seen from sections 76A(1), 79C(1) and (6)(a) and 80(1) and (2) of the Act. [1] Those sections provide: "76A(1) General If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless: (a) such a consent has been obtained and is in force, and (b) the development is carried out in accordance with the consent and the instrument. …. 79C Evaluation