court reporterin this issue...Simpson v Wakool Shire Council ...........................page 4

Tweed Business and Residents Focus Group Inc v

Northern Region Joint Regional Planning Panel ... page 5

Council of the City of Sydney v Mae (No 2) ....page 7

Rydge v Byron Shire Council ..................................page 8

Casson v Leichardt Council ................................... page 10

Wolloomooloo Nominees Pty Ltd v

Council of the City of Sydney ........................ page 12

contact us...

ISSUE 6, 2012

land and environment

Local Government and Shires Associations of NSW

tel: (02) 9242 4000 fax: (02) 9242 4111 email: lgsa@lgsa.org.au www.lgsa.org.au

GPO Box 7003 Sydney 2001 Level 8, 28 Margaret St Sydney NSW 2000

Free email subscription: Subscribe to receive the Land and Environment Court Reporter directly by email on the LGSA website at: www.lgsa.org.au/subscribe

Maddocks www.maddocks.com.au

The Associations would welcome any feedback or suggestions relating to future editions of the Land & Environment Court Reporter by email to the Associations Legal Officer: Frank Loveridge at frank.loveridge@lgsa.org.au

The material contained in the Land and Environment Court Reporter is of the nature of general comment only. No reader should rely on it without seeking legal advice.

LAND AND ENVIRONMENT COURT REPORTER 2summary of cases...This month we look at matters that involve:

• A judicial review of Council’s decisionto approve the change of use of anexisting industrial building to a dairyprocessingfacility.

• A challenge to the validity of adevelopment consent based on whethertherehadbeenpropernotificationof theproposeddevelopment.

• A contempt proceeding brought by theCouncilfordisobedienceof Courtordersforthreeyearsrelatingtounlawfuldevelopment.

• Ajudicialreviewseekingadeclarationthatanapproval given byCouncil for developmentconsent to use an existing site in a stratasubdivisionforupto35functionswasvoidandaninjunctionagainsttheuseof thesiteforfurtherfunctions.

• An application seeking a declaration that alaneshouldnotbededicatedasapublicroad.

• An appeal against the deemed refusalby Council for a rooftop addition to anexistinghotel.

Local government, planning, environment and related law: http://localgovnet.maddocks.com.auLand and Environment Court website: www.lawlink.nsw.gov.au/lecAustralasian Legal Information Institute: www.austlii.edu.auCommonwealth Development Assessment Forum: www.daf.gov.auNSW Attorney General’s Department - Land and Environment Court: www.agd.nsw.gov.au/lecCase Law NSW: www.agd.nsw.gov.au/caselawEnvironment Australia, Environmental Protection Biodiversity Conservation Act: www.ea.gov.au/epbcEnvironment Protection Biodiversity Conservation Act - subscription to EPBCA group: http://groups.yahoo.com/group/epbc-info/Environment and Planning Law Association NSW: www.epla.org.auDevelopment and Environmental Professionals Association: www.depa.net.auUrban Development Institute of Australia: www.udia.com.auProperty Council: www.propertyoz.com.au Housing Industry Association: www.hia.com.auDepartment of Infrastructure, Planning and Natural Resources: www.dipnr.nsw.gov.auPlanning NSW: www.planning.nsw.gov.auEnvironment Australia: www.erin.gov.auEnviroNET Australia: http://www.deh.gov.au/net/environet.htmEnvironmental Protection Authority (NSW): www.epa.nsw.gov.auEDONet: www.edo.org.auNatural Heritage Trust: www.nht.gov.auNSW Agriculture: www.agric.nsw.gov.auNSW National Park and Wildlife Service: www.racac.nsw.gov.auPlanning Institute of Australia: www.planning.org.auSustainable Energy Development Authority (SEDA): www.seda.nsw.gov.au

Subpoena - a document by which a court compels a person to attend a court to give evidence or to produce documents within that person’s possession.

State Heritage Significance, in relation to a place, building, work, relic, moveable object or precinct means significance to the State in relation to the historical, scientific, cultural, social, archeological, architectural, natural or aesthetic value of the item. Local heritage significance, in relation to a place, building, work, relic, moveable object or precinct means significance to an area in relation to the historical, scientific, cultural, social, archeological, architectural, natural or aesthetic value of the item.

Existing use rights - rights under Planning Legislation to continue previously lawful activities on land which would no longer be permitted following the introduction of changes to environmental planning instruments.

Procedural fairness - this term is interchangeable with “natural justice” and is a common law principle implied in relation to statutory and prerogative powers to ensure the fairness of the decision making procedure of courts and administrators.

Development means:(a) the use of land, and(b) the subdivision of land, and(c) the erection of a building, and(d) the carrying out of a work, and(e) the demolition of a building or work, and(f) any other act, matter or thing referred to in section

26 that is controlled by an environmental planning instrument, but does not include any development of a class or description prescribed by the regulations for the purposes of this definition.

Development Application means an application for consent under Part 4 of the EP&A Act to carry out development but does not include an application for a complying development certificate.

useful links... definitions...

LAND AND ENVIRONMENT COURT REPORTER 3

LAND AND ENVIRONMENT COURT REPORTER 4Simpson v Wakool Shire Council [2012] NSWLEC 163

This case was a judicial review of Council’s decision to approve thechangeof useof anexistingindustrialbuilding to a dairy processing facility.At issue was whether there had beenproper notification of the proposeddevelopment and whether Councilhadfailedtotakeintoaccountrelevantconsiderations, being the potentialnoise and odour impacts of theproposeddevelopment.

Thiscasedemonstratestheimportanceof complying with all relevant DCPrequirementsfornotification.

Background

Council had granted a developmentconsent to Jonesy’s Dairy FreshPty Ltd for the change of use of land, previously used for industrialpremises by Wakool Water, to adairy processing plant which wouldproduce milk, skim milk, flavouredmilk,cheeseandyoghurt.

The land was zoned 2(v) (Villageor Urban Zone) under theWakool Local Environment Plan 1992(LEP).Development for the purposes of ‘industry’ or ‘rural industry’ waspermissible with consent withintheZone.

A local resident, Mr Simpson,challengedCouncil’sdecision tograntdevelopmentconsentonthebasisthat:

• Councilhadfailedtonotifyaffectedland owners and occupiers asrequired byDevelopment Control Plan No 8 – Notification Policy (DCP 8);and

• Council had failed to considerthe relevant matters of noise andodour impacts of the proposeddevelopment on surroundingresidentialproperties.

Council entered a submittingappearance and the proceedings weredefendedbyJonesy’sDiaryFresh.

Notification requirements

Theproposeddevelopmentof adairyprocessingplantwasnot identified as‘advertised development’ by the LEP.However, two development controlplansappliedtothelandandcontainednotification requirements: Development Control Plan No 1 – Shire of Wakool(DCP 1)andDCP8.

DCP1requiresnotice tobegivenof certainproposeddevelopmentswithinthe industrial precinct (the precinctin which the subject land is located).DCP1 requireswrittennotice of theproposed change of use to be givento the adjoining property owners andoccupants prior to the applicationbeingdeterminedbyCouncil.

DCP 8 applies to all land within theShireof Wakoolandapplieswheretheproposeddevelopmentisnotrequired

tobeadvertisedunderstateorfederallegislationorisnotlistedintheLEPasdevelopmentwhichmustbeadvertised.DCP8requiresnotificationinwritingnot only to owners and occupiers of adjoining land, but to ‘owners andoccupiersof landthatmaybeaffectedbyadevelopmentapplication’.

Under the Environmental Planning and Assessment Act 1979 (EP&A Act),specified development ‘must benotified or advertised in accordancewith theprovisionsof adevelopmentcontrolplanif thedevelopmentcontrolplan provides for the notification oradvertisingof theapplication’.

Council gave notice of the proposeddevelopment under DCP 1 but notunder DCP 8. That is, Council onlygave notice to adjoining land owners.Council never applied DCP 8 to thedevelopmentapplicationandhencedidnot consider the requirement to alsonotify owners and occupiers of landthatmaybeaffectedby theproposeddevelopment. There was no evidenceontheCouncil’sfileorintheevidenceprovidedtotheCourtthatCouncilhadconsidered DCP 8 or sought to givenotificationasrequiredbyDCP8.

Relevant considerations: noise and odour impacts

Local residents made submissions toCouncil about the likely traffic, noiseand odour impacts of the proposeddevelopment on the amenity of thesurrounding neighbourhood. TheCouncil officer’s report assessing

LAND AND ENVIRONMENT COURT REPORTER 5the development application alsoidentifiedthese impacts.However,MrSimpsonarguedthat,despitethis,therewas insufficient information on noiseand odour impacts for Council todischargeitsdutytotaketheseimpactsinto account in its assessment of thedevelopmentapplication.

Decision

Chief Justice Preston held thatCouncil’s notification of thedevelopmentapplicationwasdefectivebecauseCouncilhadfailedtotakeintoconsiderationDCP8and,consequently,failedtogivenotificationinaccordancewith DCP 8’s requirements. HisHonourheld that a failure toprovidenotification of the developmentapplicationinaccordancewithDCP8wasabreachof theEP&AAct.

Chief JusticePrestonheldthatCouncilhaddischarged itsduty toconsider thenoiseandodourimpactsof theproposeddevelopment.HisHonourheldthatbyconsidering and adopting the Councilofficer’s report, which recommendeddevelopmentconsentbegrantedsubjecttoconditions,Counciltooktherelevantmattersintoconsideration.

Chief JusticePrestonthenturnedtothequestionof whether,despitehisfindingregardingnotification,theCourtshouldexercise its discretion not to declarethe development consent invalidor make an order as to conditionalvalidity. In his consideration of thisissue, the Chief Justice noted thatstatutoryrequirementsfornotification

and advertising of developmentapplications are mandatory and theobservance of the requirements is acondition precedent to the exerciseof statutory power to determine thedevelopmentapplication.HisHonourconsidered that the failure to complywiththestatutoryrequirementsrelatingto notification of the developmentapplicationinDCP8wasnotaminoror merely technical breach of theEP&A Act as compliance with suchmandatory,statutoryrequirementsisinthepublicinterest.

Chief Justice Preston rejected theconsent holder’s submission thatnotification in accordancewithDCP8wouldnothavemadeanydifferencetothe determination of its developmentapplication.HisHonourstatedthattheCourt cannot knowwhether, if noticehadbeengiveninaccordancewithDCP8, other objectors would have madesubmissions and whether the Councilwouldhavemadethesamedeterminationof thedevelopmentapplication.

Conclusion

Chief JusticePrestondeclaredthatthedevelopment consent was invalid onthe basis that the notification of thedevelopment application was not inaccordance with the requirements setoutunderDCP8andtheEP&AAct.

Tweed Business and Residents Focus Group Inc v Northern Region Joint Regional Planning Panel[2012] NSWLEC 166

This case concerned a challenge tothevalidityof adevelopmentconsentbased on whether there had beenproper notification of the proposeddevelopment. Key issues were theaddressanddescriptionof thepropertyinthenotificationletters.

This case demonstrates the importanceof clearly describing the proposeddevelopmentinnotificationlettersinordertoensurethevalidityof thenotification.

Background

The Northern Region Joint RegionalPlanning Panel (JRPP) granteddevelopment consent for thedemolitionof anexistingpolicestationand two adjoining residences and theconstruction of a new two storeypolicestationandbasementparkingatKingscliff,tobeusedasthenewTweedByronCommand.

Council was responsible fornotification of the developmentapplication, prior to its determinationby the JRPP, in accordance with the

LAND AND ENVIRONMENT COURT REPORTER 6Environmental Planning and Assessment Act 1979 (EP&A Act) and theTweed Shire Development Control Plan 2008 (DCP).UndertheDCP,noticeof theproposed development is required tobe sent by letter to adjoining ownersand owners considered by Council tobedetrimentallyaffected.

The DCP requires the notificationletterstoincludeparticularinformation,including:

(a) the address of the site (LotNo.DepositedPlan,andHouseNo.);and

…

(c) abrief descriptionof theproposalexpressed as informatively aspossibleinashortstatement;…

Council sent notification letters toowners and residents adjacent to orin the immediate vicinity of the site,as required by the DCP. However,Tweed Business and Resident’s FocusGroup Inc (TBRFC) contended thatthenotification lettersdidnotcomplywith the requirements in the DCPrelating to the address of the siteand the description of the proposeddevelopmentinthenotificationletters.

The address of the site

The development application statedthattheaddressof thesitewas152-154 Marine Parade, Kingscliff andthe Statement of EnvironmentalEffects stated that the address was154 Marine Parade, Kingscliff.

However,thenotificationlettersgavetheaddressasLot701DP1002309,PearlStreetKingscliff.

The address used by Council in thenotificationletterswastheaddressforthe property according to Council’srating records and NSW Land andPropertyInformation.

In their submissions regardingwhether the Council had used thecorrect address for the purpose of the notification letter, the partiesexamined the physical characteristicsof the site and the wording of theDCP.Thesiteitself wastriangularandhadfrontagestoMarineParade,PearlStreetandKingscliff Street.TheDCPdidnotstatewhichaddresswastobeused for the purpose of notificationletters, butother clauses in theDCPreferred to addresses as recorded inthe Council’s records. According tothe Council records, the address of the site was Pearl Street. Accordingto the White Pages, the address of the Kingscliff police station was154 Marine Parade, Kingscliff, andaccordingtoGoogle,theaddresswas156MarineParade,Kingscliff.

JusticeBiscoeheld that theKingscliff police station was known by twodifferent addresses. The notificationlettersgavethecorrectlotnumberanddeposited plan number and indicatedthat the address was the site of theexisting Kingscliff police station.His Honour also considered that thereference in the notification letters totheKingscliff police station provided

further information to the recipientsabout the address of the site, as apolice station has a special identitywhich distinguishes it from generaldevelopment sites, particularly in asmallcommunity.HisHonourheldthatthereferencesinthenotificationlettersto the correct lot andDPnumber, toPearlStreetandtotheKingscliff policestation were sufficient to identify theaddressof thesitetorecipientsof thenotificationletters.

The description of the proposal

TheDCPalsorequiresthenotificationletterstocontainabrief descriptionof theproposal,expressedasinformativelyaspossibleinashortstatement.

Thedescriptionof theproposalinthedevelopmentapplicationwas:

Demolition of existing police station and the adjoining two residences. Construction of a new two storey police station and basement parking.

The description in the notificationletterswas:

Demolish the existing Police Station and construct a new two (2) storey Police Station at Lot 701 DP 1002309, Pearl St Kingscliff.

The key differences being that thenotificationlettersdidnotstatethattworesidenceswerealsotobedemolishedandthatthenewpolicestationwastohavebasementcarparking.

LAND AND ENVIRONMENT COURT REPORTER 7JusticeBiscoeheld that those readingthenotificationletterscouldreasonablybuterroneouslyhavebeenledtobelievethat only the existing police station,andnotthetworesidences,weretobedemolished and as such that the newpolicestationwouldnotintrudeonthefootprints of the existing residences.In addition, his Honour stated thatthe description should have includedthe proposed underground car parkandthefactthatthenewpolicestationwasfortheTweedByronCommandasboth of these pieces of informationindicatedthattheproposednewpolicestation would be much larger thantheoldone andhencehave a greaterintensityof use.

For these reasons, JusticeBiscoeheldthatthedescriptionof theproposalinthe notification letters did not satisfythe requirements of the DCP andtherefore there had been a breach of theEP&AAct.

Invalidity of development consent

JusticeBiscoethenconsideredwhethertheCourtshouldexerciseitsdiscretionto make a finding of conditionalvalidity, instead of declaring that thedevelopment consent was invalid inwholeorinpart.

JusticeBiscoereferredtothejudgmentof Preston CJ in Simpson v Wakool Shire Council [2012] NSWLEC 163(summarised above) and applied HisHonour’s reasoning that compliancewith the mandatory requirementsfor notification of developmentapplicationswas in thepublic interestand that the process of notification

andconsiderationof thedevelopmentapplicationshouldbedone:

not in the shadow and servitude of a suspended existing development consent pending validation but in the light and freedom of a development application that has become undetermined by reason of the existing development consent being set aside.

JusticeBiscoe held that the proposeddevelopment was likely to havesignificantimpactsonmanypeopleanditwasnotappropriatetomakeanorderof conditional validity under section25Bof theLand and Environment Court Act 1979.

Conclusion

His Honour made a declaration thatthe development consent was invalidonthebasisthattheproposalwasnotadequatelydescribedinthenotificationletterssenttoresidents.

Council of the City of Sydney v Mae (No 2) [2012] NSWLEC 188

This case concerned contemptproceedings brought by the Councilfor disobedience of court ordersrelating to unlawful development formorethanthreeyears.

Background

MrMae acquired a property in SurryHills, Sydney in April/May 2004and carried out significant structuralalterations to the property without

consent.Healsousedthepropertyasabackpacker/boardinghousefacilitywithout consent. Both theworks andtheusewerepermissiblewithconsent.

ComplaintstoCouncilcommencedinSeptember 2006 and Council issuedordersinearly2008,withouteffect.MrMaealso ignoredanemergencyorderissued to him on 3 September 2008requiring the removal of an externaltwo-roomstructureat the rearof theproperty. That structure was part of the unauthorised building works andhadbeenseverelydamagedandleftinadangerousconditionfollowingafireinAugust2008inwhichabackpackerwasinjured.

On2June2009,JusticeSheahanmadedeclarationsandordersinrelationtotheunauthorisedworks and unauthoriseduseof thepremises:Council of the City of Sydney v Mae [2009] NSWLEC 84.Amongotherthings,MrMaewas:

i. restrainedfromusingorpermittingthe use of the premises for theunauthorisedpurposeof aboardinghouse until a development consentwasgranted;

ii. restrained from advertising thepremisesasaboardinghouse;and

iii.orderedtoremoveallunauthorisedbuildingworkswithin28days.

On29June2009,MrMaefiledaNoticeof MotiontostaytheordersandfiledaNoticeof IntentiontoAppealintheSupreme Court. The stay applicationwas dismissed and Mr Mae did notproceedwithhisappeal.

LAND AND ENVIRONMENT COURT REPORTER 8Instead of demolishing the buildingat the rear of the premises, Mr Maehad it rebuilt without consent. Fourinspections by the Council in Augustand September 2009 revealed thatthe unauthorised works remainedin place, and the unauthorised usecontinued. Contempt proceedingswere threatened if Mr Mae did notcomplywiththeordersby30October2009.Despite this, advertising of theaccommodation continued. Apartfromasmallalterationtoawallinonebedroom, no compliancewas evidenton30November2009.

The contempt proceedings

Council filed aNotice of Motion forcontemptandsupportingevidenceon16February2010andservedMrMaepersonally on 18February 2010.PainJmadedirectionsthatMrMaeappearbefore JusticeSheahan in response tothecontemptchargeon5March2010.

Personalserviceof theordermadebyPainJwasunsuccessful,butsubstitutedservicewasachievedviaemail.MrMaefailedtoappearon5March2010andan arrest warrant was issued. DuringaCouncil inspectionon17May2010itcouldbeseenthatasubstantialpartof the unauthorised works had beenremoved, but the unauthorised usecontinued and further rectificationworkswererequired.

Executionof thearrestwarrantprovedimpossible,despitereportsof sightingsof MrMae,andthepremisescontinuedtobeadvertisedasaccommodation.In

May 2011 Council elected to pursuebankruptcy proceedings against MrMae in respect of costs outstandingfrom the ordermade againstMrMaeon 2 June 2009.MrMae ignored thebankruptcy notice served on him andtwiceattemptedtoleavethecountryinMay2012.Finallyon6June2012,morethan two years after the warrant wasissuedandthreeyearsaftertheoriginalorders made by the Court, Mr Maewas arrested and on 29 June 2012 hepleadedguiltytothecontemptcharge.

Discussion of law of contempt

Justice Sheahan noted that contemptproceedings serve the dual purposeof securing compliance with the lawandwithdecisionsof thecourts, andpunishing their breach as vindicationof thecourt’sauthority.

JusticeSheahannoted thatdeterimingthe sentence to be imposed requiresthe consideration of the objectiveseriousness of the offence and thesubjective characteristics of theoffender,aswellaselementsof generaland specific deterrence. His Honournotedthatdeliberatedefianceof ordersof the court, and especially failure tohonour undertakings to the court tocomply with such orders, elevated adefendant’s conduct from ‘wilful’ to‘contumacious’contempt.

Decision

Justice Sheahan held that Mr Mae’scontempt was contumacious anddeserving of serious punishment. HisHonour noted that the contemptuous

behaviour continued for more thanthreeyears,duringwhichtimeMrMaesystematically avoided Council officersandtheSheriff.HisHonourheldthatafinewouldnotbeasufficientpenaltybutwasunconvincedthatimprisonmentwasappropriate. His Honour determinedthatMrMaeshouldbesentencedtothemaximumperiodof communityserviceandaheavyfine.MrMaewassentencedto500hoursof CommunityServiceanda fineof $60,000 (discounted by 10%forhis latepleaof guiltyto450hoursand$54,000,respectively).MrMaewasalsoordered topay theCouncil’s legalcosts and investigation expenses inmonthlyinstalments.

Rydge v Byron Shire Council [2012] NSWLEC 155

This case concerned judicial reviewproceedingsseekingadeclarationthatan approval given by Council for adevelopmentconsenttouseanexistingsiteinastratasubdivisionforupto35functions was void and an injunctionagainst the use of the site for anyfurtherfunctions.

Background

The site in question is a luxury villaownedbyMrFreedmaninacomplexof strata title lots. The appeal wasmade by Mr Ridge and Mr and MrsO’Reily,whoownneighbouringlotsinthestratasubdivision.

LAND AND ENVIRONMENT COURT REPORTER 9ThelotiswithintheTouristAreaZoneundertheByron Shire Local Environmental Plan (LEP). Access to the lot is by acommonpropertydriveway.

The Applicants raised the followingfour arguments in support of theirclaim that the consent for the useof thevillaforfunctionsisvoid:

1. the development was prohibitedunderthezoningintheLEP;

2. the owner’s corporation had notprovidedconsentfortheuseof thecommon internal driveway to thestratasubdivision;

3.Councilhadnotformedtheopinionthatthedevelopmentwasconsistentwiththezone;and

4.Council failed to take into accountthe acoustic impact of thedevelopment.

Was the development prohibited under the LEP?

Acting Justice Lloyd first consideredthe question of whether the use wasprohibited under the Tourist Areazoning in the LEP. The Applicantsclaimed that the development didnot fit within any use which waspermissible within the zone and wasthereforeprohibited.

Acting Justice Lloyd examined thedefinitionof touristfacility,aswellasthelistof permissibleuseswithinthezone,whichincludedrecreationareas,recreationestablishments and touristfacilities. His Honour noted that

each of these expressions is widelydefined. In particular, the definitionof ‘tourist facility’ contains a list of inclusions and his Honour found(contrary to the submissions of theApplicants)thatthislistof inclusionsisintendedtodemonstratethewidthof the definition, rather than limitwhat could be included within thedefinition.HisHonouracceptedthattheword‘recreation’couldencompassactivitiesthatwerenotnecessarilyanincidenceof holidaying.

HisHonourheldthatthedevelopmentwascorrectlycharacterisedasatouristfacility and therefore was permissiblewith consent.HisHonour noted thatthis had been the considered opinionof the consent authority and that theCourtwasalsoentitledtogiveweighttothisopinion.

Owner’s corporation’s consent

TheCourt then turned to thematterof whethertheconsentof theowner’scorporationwasrequiredforuseof thedriveway. The proposed developmentwork did not extend beyond theboundary of the lot in question anda condition of consent stated thatthe development was specificallylimitedtothatlot.Asnodevelopmentwas proposed within the commonproperty,andthedrivewaywasalreadylinkedtothelots,hisHonourheldthatthe written consent of the owner’scorporationwasnotrequired.

Objectives of the zone

TheApplicantssubmittedthatCouncilhadfailedtoconsidertheobjectivesof the zone.HisHonour stated that theCouncil, in making its decision, hadbeforeitaplanningreportsettingouttheobjectivesof therelevantzoneandhad assessed the development againstthose objectives. Therefore, thissubmissionfailed.

Acoustic Impacts

In respect of a failure to take intoaccount acoustic impacts, hisHonourpointed to one of the conditions of theconsentwhichrequiredtheconsentholdertoengageanacousticconsultantto prepare a noisemanagement plan.On recommendation from Council,Freedmanhadprovidedanoiseimpactassessment report and Council hadproduced an internal report, whichhad been considered and debated byCouncil at theirmeeting.HisHonourheld that the transcript of thatmeeting demonstrated that Councilhad considered the acoustic impactof the development and consideredthat it would be satisfactory, subjectto the additional condition relatingto the noisemanagement plan whichhad been imposed. This ground of challengealsofailed.

Decision

Theappealwasdismissed.

LAND AND ENVIRONMENT COURT REPORTER10Casson v Leichardt Council [2011] NSWLEC 243

This case was an application beforeJustice Biscoe seeking a declarationthat a lane in Balmain should not bededicatedasapublicroad.

Background

The Council proposed to dedicatethe lane (onto which four differentproperties abutted) as a public road,under s16 of the Roads Act 1993(Roads Act).Thetitletothelanewasnotregistered.

Inresponse,theapplicant,MsCasson,applied to theCourt foradeclarationunder the Roads Act that the laneshould not be dedicated as a publicroad. Ms Casson owns one of thepropertiesabuttingthelane.

The issue before the Court was theownership of the lane. In addressingthisissue,JusticeBiscoeconsideredthefollowingpossibilities:

1.was the lane a public lane ownedbyCouncilbyvirtueof acommonlawdedication?

2.was the lane owned to its middlelinebyMsCassonunderthemiddlelinerule?

3.did Ms Casson own the lane byadversepossession?

History of the use of the lane

His Honour reviewed the history of the lane, noting that it was shown intheoriginalsubdivisionbutnotinlatersubdivisions. Gates had been acrosstheentrancetothelanesincetheearly1900s andMsCasson parked her carin the lane such that it occupied twothirds of the lane.BeforeMsCassonpurchased the land, her husbandinspected the Council file and gaveevidence that he had seen a letter onfilefrom1984statingthatthelanewasnot a public road and therefore notthe responsibility of the Council.MsCasson had spentmoneymaintainingthelaneandsurroundinggardensinceshepurchasedtheproperty.

Agardencentreattheendof thelanehadprotestedaboutthelackof accesstothelaneandtherehadbeenongoingdisputes betweenMsCasson and herneighbours abouther useof the lanefor parking. There had been ongoingcommunications between Ms CassonandtheCouncilregardingthestatusof thelaneasapublicroad.

Dedication at Common Law

Justice Biscoe first turned to thequestion of whether there had beenacommonlawdedicationpriortothe1920s.If Councilwastheownerof thelane, thenMsCassoncouldnotbringtheproceedings.

HisHonourreviewedtherequirementsforadedicationatcommonlaw.First,theownermustmanifestanintention

todedicate the landasapublic roadand,second,theremustbeacceptancebythepublicof thatdedication.Suchacceptancebythepublicwasrequiredto have occurred prior to 1920,after which time the government’sapprovalforthededicationof aroadwasrequired.

It was accepted that the indicationof the lane on the original 1871subdivision plan was enough to giverise to the inference that the ownerhadofferedthe landasapublicroad.However,hisHonourheldthataletterfrom a previous owner complainingthat“undesirablepersons”wereusingthelanewasnotenoughtodemonstratethat the lane was open and availablefortheuseof thepublic.HisHonourfound that thiswas theonlyevidenceof pre-1920 acceptance and that theCouncil had therefore not dischargeditsonusof demonstratingadedicationatcommonlaw.

Middle line rule

MsCassonsubmittedthatshewastheowner of the lane to its middle lineunder the ‘middle line rule’. JusticeBiscoe noted that the middle linerule was a rebuttable common lawpresumptionthataconveyanceof landdescribedasabuttinga road, includedtheadjoiningroaduptoitsmiddleline.

TheCouncildisputed thepropositionthatMsCassonownedthe laneuptoitsmiddle line by pointing to a lettertoCouncil from the previous ownersof thelandownedbyMsCasson,who

LAND AND ENVIRONMENT COURT REPORTER

referredtothe laneasarightof wayandcomplainedabouttruckslinkedtothegardencentreusingthelane.TheCouncilalsoreferredtoaconversationbetweenthepreviousownersandMsCasson during which a real estateagenthadstatedthatthelanewasnotpartof theland.

His Honour rejected the Council’sarguments. He found that the letterdidnotdemonstratethatthepreviousowners positively believed that theCounciloranythirdpartyownedthelaneandthatthestatementof therealestateagentdidnotdemonstrate thisbelief anyfurther.

Consequently, the middle line rulehad not been rebutted by Council’sevidence and, as a result,MsCassonwas the owner of the lane to themiddleline.

Adverse possession

His Honour noted that a claim inadverse possession must establishactual possession, which is open,peacefulandadverse,andanintentiontopossess.InthisrespectMsCassonsubmitted that she had been inpossessionsincethe1980s,hadalwaysintended to possess the lane (whichwasdemonstratedbyhermaintenanceof gatesattheentranceandtheupkeepof the lane) and that the neighbourshad complained about her use andcontrolof thelane.

His Honour, in rejecting thissubmission,notedthattheneighbours

hadalso landscaped their sideof thepath,theownersandattendeesof theneighbouring property had access toandhadusedthelaneandthatthelanehad also been used by suppliers andcustomersof thegardencentre.

Discretion

Having found that Ms Casson wasthe owner of the lane to itsmiddleline, Ms Casson submitted that theCourt should exercise its discretionunder theRoadsAct todeclare thatthelandshouldnotbededicatedasapublicroad.

Council’s arguments against thissubmission included that the lanehad been set aside in the originalsubdivision, disputes had arisenbetween Ms Casson and theneighbouring owners, including thegarden centre, and that there was apublic interest in theuseof the lanebeing regulated. In this regard, hisHonour notedMs Casson’s habit of parkingandtakingupthemajorityof thelane.Alsoinsupportof thepublicinterestargumentwastheexistenceof aseweragepipeunderthelane.

Inadditiontothis,Councilsubmittedthat Ms Casson would suffer noinjustice if the lanewas dedicated asa public road, and the difficulties inmanaging the road under themiddlelinerulewouldbeavoided.

Conversely, his Honour noted thatexercisingtheCourt’sdiscretionwouldextinguish Ms Casson’s proprietary

interestwithoutcompensation,despitethe fact that she hadmaintained thelane and in circumstances whereCouncil had never spent money onthe upkeep of the lane.HisHonouraccepted the evidence of an experttraffic planner that the lane was notsuitable for use as a public road andnoted that the evidence presenteddid not establish that any publicinfrastructurewouldbecompromisedif the lane were not public and thattheCouncilhaddelayed investigatingthematterformanyyears.Inaddition,theamenityandsafetyof MsCassonandtheneighbouringpropertywouldbenegativelyaffectedif thelanewerededicatedasapublicroad.

Decision

JusticeBiscoemadeadeclarationthatthe laneshouldnotbededicatedasapublicroad.

11

LAND AND ENVIRONMENT COURT REPORTER12Wolloomooloo Nominees Pty Ltd v Council of the City of Sydney [2012] NSWLEC 1179

Thiswasanappealagainstthedeemedrefusal of theCouncil of theCity of Sydney(Council)forarooftopadditiontoanexistinghotel,theWoolloomoolooBayHotel(Hotel),at2BourkeStreet,Woolloomooloo(Site).

Issues

Council raised four contentionsregardingtheproposeddevelopment:

1. the proposalwouldhave an adverseimpactontheheritagesignificanceof theitem,heritageitemsinthevicinityandtheheritageconservationarea;

2. the proposal would breach theheight and floor space ratio (FSR)controls for the Site and thereforefailed to meet the objectives forthosecontrols.

3. the acoustic shield on the westernsideof thethirdfloorterraceshouldbehigher;and

4. the proposed operating hoursshould be consistent with thosepermitted under the provisions of theCity of Sydney Late Night Trading Premises Development Control Plan 2007(Late Night Trading DCP).

TheApplicantalsoraisedcontentionsinrelationtotheproposedconditionsof consent, including whether thereshouldbeatrialperiodfortheproposedtrading hours, whether security guardshouldwearfluorescentvestsandhowanoisecomplaintshouldbemanaged.

Background and the proposal

Theproposalwastoretaintheexistingbuilding,withsomeinternalalterationstothegroundfloorandfirstfloorandto construct a second floor additiontoincludeanexternalterraceareaandgarden bed. The proposed additionincluded retaining a former laundryon the roof level, with a rear wingextensiontohouseaplantareawithinthe former laundry, an office, storagearea,toiletsandlift.

The current approved maximumcapacityof thehotelwas485people,which was proposed to increase to635 with the extensions. There wasalsoaproposaltoextendtheoutdooroperatinghoursonSundays.

The planning framework

The site was within Zone No. 10(a)– Mixed Use “A” Zone under theSouth Sydney Local Environmental Plan 1998 (LEP 1998). The hotel usewaspermitted with consent within thezone. The relevant objectives of theMixedUseZone includedminimisingany adverse impact on residentialamenitybydevisingappropriatedesignassessment criteria and ensuringthat the nuisance generated by non-

residential development is controlledsoastopreservethequalityof lifeforresidentsinthearea.

The Council argued that theWoolloomooloo Bay Hotel (formerMacquarieHotel)was a localheritageitem with local historical, aestheticandsocialsignificance.TheLEP1998statedthattheconsentauthoritymustnotgrantconsentfordevelopmentonthe site of a heritage item, unless itisof theopinion that theproposal isconsistentwith the aim and objectivetoconservetheenvironmentalheritageof theland.

The site was also within the vicinityof State significant heritage items,andthis,accordingtoCouncil,createda strong visual relationship. UnderCouncil’sHeritageDCP,anyproposalsfor development were required toachievea reasonablebalancebetweenmeeting amenity and contemporaryneeds and protecting the heritagesignificanceof theitem.

The Court considered the UrbanDesign DCP which included, in theheightandFSRmaps,controlsfortheheight andfloor space ratio (FSR)of thesite.TheLateNightTradingDCPwas also considered, which relevantlyincludes setting limits on late nighttradingandtheobjectiveof providinggreatercertaintytothecommunityandproponentsof night tradingpremisesin respect to appropriate operatinghoursandlocationof suchpremises.

LAND AND ENVIRONMENT COURT REPORTER

Heritage

Basedontheheritageexpertevidence,Commissioner O’Neill held thatthe hotel, despite alterations in thepast, remained an important heritageelement of the area. It was also heldthat the building could successfullyaccommodateanewandcontemporarylevelwithoutcompromisingitspresencewithintheurbanfabric.CommissionerO’Neilstatedthat theheritage impactof theproposedroof topadditionwasacceptable. She attached conditionsto theapproval soas tominimise theimpactof theproposalontheheritagesignificanceof thehotel.

Height and FSR

On the question of building heightand FSR,CommissionerO’Neill heldthattheproposalsatisfiedtheobjectiveand performance criteria, despite thefact that the building exceeded thenumerical controls for each of thesestandardscontainedintheDCP.

CommissionerO’Neil also addressedthecontrolsunderCouncil’sdraftLEP.Under the draft LEP, the proposalbreached the 9 m height control by3.8mbutcompliedwiththe2:1FSRcontrol. The question for the courtwaswhetherthedraftLEPwascertain

and imminent or not. CommissionerO’Neil accept the submission fromthe Council that the draft LEP hadahigh levelof certaintyand that thequestion of its imminence was lessimportantinthiscase.

The Commissioner considered thattheproposalwasappropriategiventhecontextandconditionof thesiteandsurrounding area. The Commissionerstatedthattheproposedextensionhadbeen designed to ‘respect and reflecttheoverallbuiltformof theareaandthatitisconsistentwiththebuiltformalong the southern side of CowperWharf Roadanddoesnotdetrimentallyaffecttheamenityof thearea’.

Acoustic

The Commissioner accepted thatthe proposed 1.4m high transparentacousticscreenwhichwasproposedtowraparoundthenorthernandwesternelevations of the roof top terracearea would be ameliorate the noiseof patronsvoices.TheCommissioneralso noted that requirement in theproposed Plan of Management foracoustictestingduringthefirst30daysif trading, with recommendations of an acoustic consultant following thistestingtobeimplemented.

Hours of Operation

The Commissioner agreed withthe Council on the question of operating hours, concluding that itwasappropriatetorequirea12monthtrialperiodforextendedtradinghours.This was to provide an incentive fortheoperator to complywith thePlanof Management and conditions andto enable adjustment to be made tothePlanof Managementandacousticameliorationmeasuresif required.

Directions

TheCommissionerwassatisfiedthattheproposal couldbe approved,howeverrequired amended architectural plans,Planof Managementandconditionsof consent tobeprepared inaccordancewithherinterimfindings.

LAND AND ENVIRONMENT COURT REPORTER

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