Appeal against conditions – approval requiring an Application for a permissible change to be made and approved which removed restrictive conditions imposed upon an earlier Consent Permit – whether the earlier conditions attached to the land – whether the development would contravene those conditions – s.4.13 Local Government (Planning and Environment Act 1990) – ss.3.5.13, 3.5.28, 4.3.3, 6.1.23, 6.1.24 Integrated Planning Act 1997 – ss.369, 50, 801 and 819 Sustainable Planning Act 2009
Facts: This was an appeal against a refusal of an Application for a material change of use for a dwelling house on land at Point Lookout. The proposal was code assessable and was a consistent use in the Conservation Zone under the 2006 Planning Scheme.
The issue was whether conditions of a 1994 approval, requiring protection and retention of vegetation and dunal topography, continued to attach to the land and bound the Appellants as owners of the land.
In February 1994 a Consent Order had been made under the Local Government (Planning and Environment) Act 1990 (P&E Act) approving 59 units, subject to conditions. The conditions of approval in Consent Permit C2307 (granted in April 1994) included a requirement for agreement of proposed measures to protect existing vegetation and trees; and to protect and retain dunal topography and existing vegetation.
In May 1994 the Council approved an application to subdivide the site into three lots. That was also subject to conditions which required that the existing vegetation and associated dunal topography in the south-eastern corner be protected and retained, with no further development being permitted within that area.
In May 1998, the Court amended its 1994 Order by modifying the plans of development subject to amended conditions. The material conditions were retained and renumbered in Consent Permit CT230700.
The site for the proposed development on the new Lot 4 was located in the area marked "existing vegetation to be retained"on plans identified in conditions of the 1994 Consent Permit C2307.
The issue in the appeal was whether the 1994 conditions, which were incorporated into the modified 1998 approval, continued to apply to the land and whether the proposed development contravened those conditions. That was, whether the proposed development was precluded by reason of a continued application of the material conditions; and the proposed conditions of approval of the development (3 and C.(a)). The conditions in dispute for the appeal were limited to those conditions. They prevented the development from starting until such time as a request for a permissible change had been lodged and approved, which amended or deleted all conditions of Consent Permit C2307.
The Court had regard to s.4.13 of the P & E Act; ss.3.5.13, 3.5.28, 4.3.3, 6.1.23 and 6.1.24 of the IPA; and ss.245, 369(1), 580, 801, 819 and 850 of SPA.
The Appellant submitted that the 1994 conditions no longer applied. Alternatively, it submitted that the proposal, being code assessable, was not affected by the 1994 conditions, which related to different development, different land and a different Planning Scheme. It submitted that the two material conditions from 1994 could not be interpreted literally; and the proposed management measures would not be contravened by the proposal because it was a lawful code assessable development, complied with the Planning Scheme, and respected the degree of environmental protection intended by the 1994 conditions. The Appellant also referred to the supremacy of proprietary rights of land owners with respect to a tension between ss.3.5.28 and 3.5.13 of the IPA.
The Council submitted that the proper construction of the IPA, and the proposed conditions, did not interfere with any relevant proprietary right, and that the requirement for owner consent to a development application satisfied any question about proprietary rights. The Council contended that the conditions continued to attach to the land.
The Co-Respondents submitted that the conditions were not about any particular development, but about development generally, and that the conditions could not be taken away merely by reconfiguration of a lot. They submitted that no development permit could lawfully issue because the proposed development could not lawfully be started while the 1994 conditions continued.
Decision: The Court held that:
- The 1994 conditions went further than compliance with the Codes, attached to the land, and bound the Appellant as the owner.
- The contention that the 1994 conditions did not impose a requirement that there be no development of any kind on the land was contrary to what was clearly and unequivocally expressed in the 1994 conditions. That was, that the area marked as existing vegetation to be retained on the plan was to remain undeveloped; and the dunal topography and vegetation in the area marked as existing vegetation to be retained was to be protected and retained.
- The site of the proposed development and the building footprint was clearly within the area to remain undeveloped. The proposed development thus contravened the 1994 conditions.
- There was no tension between s.3.5.13 and 3.5.28 of IPA. The sections were not at odds with one another. They were each directed to matters that did not give rise to any conflict on any reasonable, literal or purposive construction of them.
- If the appeal were allowed, and Conditions 3 and C(a) were not applied to the development approval, the Appellant would commit a development offence if it commenced the development, by contravention of the conditions of the earlier approval.
- The development application should be approved subject to the Appellant taking the necessary steps to free the land of the conditions of the earlier approval.
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