STEBBINS v THE COUNCIL OF THE CITY OF LISMORE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY, PRIESTLEY and CLARKE JJA 10 September 1987, 11 March 1988 [1988] NSWCA 146 ENVIRONMENTAL PLANNING AND ASSESSMENT ACT — development application — application consisting of printed form filled in, accompanied by plans — Council indicating on plans before consent that amendment required in one respect — question of content of consent — whether application as lodged had been consented to. DEVELOPMENT CONSENT — construction of — discussion of documents which comprise (a) development application, (b) development consent — permissible approach. ORDERS 1. Appeal dismissed. 2. Appellants to bear respondent's costs of appeal. Mahoney, Priestley and Clarke JJA The Lakeside Lodge Motel stands between the present and the old Bruxner Highway south of Lismore. In 1983 the only entrance to the motel was from the old highway. On 21 June 1983 the appellants, the proprietors of the motel, lodged a development application and plans with the respondent ("the Council"). Upon the printed form of application the development for which consent was sought was described as "Motel extension - 8 units plus kitchen and storeroom, plus upgrading of internal roadworks". Next to the space provided in the printed form for this description was a note saying that "plans/drawings and other information describing the development must accompany any application". On one of the plans accompanying the application there was shown a driveway from the motel to the new highway. Where the driveway met the new highway the words "new entrance" appeared. There was no specific reference to this on the printed form. On 5 October 1983 the Deputy Chief planner and Chief planner of council prepared a report on the development application which was submitted to a meeting of the Council on Tuesday 11 October 1983. This report mentioned that the Council's Development Control Unit recommended approval of the application, subject to seven conditions. Condition 6 was that "The new access to the highway, if provided, be constructed at the full cost of the developer to conform to a Department of Main Roads Type 4 intersection." In the Chief planner's Section of the Report he recommended that the application be approved subject to six of the seven conditions suggested by the Development Control Unit together with three additional conditions. The condition which he did not recommend was condition 6, because of his view, which he expressed in the report, that Council had no authority to approve access from the motel site to the Bruxner Highway. At the meeting the Council passed the following resolution: "Resolved on the motion of Aldermen Habib and Ryan that the report be received and the recommendations in the Chief Planners Section of the report be adopted." On 21 October 1983 the Council sent to the appellants a notice, prescribed pursuant to s92 of the Environmental Planning and Assessment Act, advising them that the development application had been granted subject to conditions 2 UNREPORTED JUDGMENTS which did not refer to the new entrance shown on the plans. One condition presently relevant was that "Full design plans be submitted for approval by the City Engineer prior to commencement of construction." One of the sets of plans which had accompanied the development application was returned, duly stamped by the respondent, to the appellants with the consent. The only difference between the plans as submitted to the Council and returned by the Council to the appellants was that words had been stamped on the plan in the area where the new entrance to the Bruxner Highway was shown, saying "AMENDMENT REQUIRED HERE Refer to consent dated The stamped words covered part of the mouth of the new entrance. Another stamp on the plan said "Development as detailed on this plan is approved on behalf of the Council subject to any conditions contained in the letter of approval". The letter in which the development consent itself was written out did not refer to the new entrance and were it not for the stamps on the plan, the documents sent to the appellants would have indicated that approval had been given to the whole of the development referred to in the application and shown on the plans which accompanied it. Following receipt of the documents the appellants engaged Mr. Crandon, an engineer, who on 5 December 1983 lodged a building application on behalf of the appellants in respect of the earthworks for the motel extension. The council, after considering this application, issued building permit No 83/734 in respect of the works shown on the building permit. Those works had been let out on contract to a Mr Theuerkauf and Mr Crandon had advised the Council that the access way works were not included in the contract. By a letter of 9 January 1984 he advised the Council that those works had now been included in the contract. On 17 January 1984 the appellants lodged building application in respect of the building of the motel extensions and on 3 February 1984 building permit 84/23 was issued in respect of those works. The plan that was returned with the permit showed the entrance to the highway with the word "Cancelled" stamped over it. On the previous day Mr Crandon had received a reply from the Council advising that no development approval had been given to the entrance to the Bruxner Highway for the reasons that Council was not able to consider a separate highway access because of the conditions attached to the amendment to the Interim Development Order No 1! Gundurimba Shire which permitted the development. This was, according to the appellants, the first notice they had that the Council contended that development approval had not been given for the access way onto the Bruxner Highway. Notwithstanding the letter of 2 February, the appellants constructed an entrance from the motel to the Bruxner Highway in association with the extensions to the motel. This led the council to seek a declaration from the Land and Environment Court that the appellants had constructed roadworks which were not in accordance with any development consent or building permit given by the respondent and to seek orders restraining the appellants from further constructing or using any vehicular access from and to the Bruxner Highway directly from the motel. The case was heard by Perrignon J. On 31 October 1985 he granted the relief sought by the Council. In summary, he made a declaration that the appellants had carried out construction of roadworks on Lot 1 Dp 609846 (the motel site) and the adjoining Bruxner Highway, South Lismore, which were not in accordance with any development consent and/or building permit given by the council under the Environmental Planning and Assessment Act and ordered that the appellants \GREBBINS v THE COUNCIL OF THE CITY OF LISMORE (Mahoney, Priestley and Clarké JJA) be restrained from further constructing and/or using any vehicular entrance from and to the Bruxner Highway directly to and from the said Lot 1. Orders were also made requiring the appellants to demolish and remove all materials placed within the boundaries of the Bruxner Highway and to restore the highway as nearly as possible to its condition prior to the construction by the appellants. The sole ground argued upon the appeal was that the Council, by giving to the appellants notice in the prescribed form of the development consent in the manner which it did, must be taken to have approved the development application in its entirety. To put it another way the action of the Council in notifying the appellants of the granted development consent and in failing to specify that the consent did not extend to the entrance to the Bruxner Highway shown on the plans which accompanied the application should be taken, despite the terms of the resolution of 11 October 1984, to have approved the development application including the new entrance. The appellant's submissions required the court, in effect, to disregard the Council's resolution and to consider only the notification of development consent in determining whether the Council had, as the appellants urged, granted consent to the whole of the development application. Mr Tamberlin QC, senior counsel for the appellants, referred the court to a number of authorities in support of the proposition that the form of notification itself constituted the relevant development consent. In addition he directed the court's attention to s104 of the Environmental Planning and Assessment Act 1979 which requires Councils to keep a register, open to the public during ordinary working hours, of such consents. This was, he contended, important, because it emphasised the fact that development consents operate, in effect, in rem and may be availed of by subsequent owners and other occupiers of the land (see Parramatta City Council v Shell Co of Australia Ltd, [1972] 2 NSWLR 632, per Hope JA at 637). Assuming in the appellants' favour, but without deciding, that these submissions are correct, it becomes necessary to consider whether the prescribed notice of the grant of development consent sent by the Council to the appellants constituted a consent to the development of the relevant part of the site by the placing upon it of an access way to the Bruxner Highway. The appellants' argument was that it was beyond doubt that if the notification of consent had been returned with the plan duly stamped but otherwise in the same condition it was when lodged the consent would have included authorisation to develop the access to the Bruxner Highway. We are prepared to accept this step in the argument. The plan itself provided for two new access ways - one to the Bruxner Highway and one to the old highway. There was no doubt that the consent included the development of the entrance to the old highway. It seems clear that, in the absence of any contrary indication, it would include the entrance to the new road as well. However, the words "Amendment required here see condition" stamped on the plan returned to the appellants seem to us to be a clear contrary indication. According to the appellants' counsel this made no difference because the consent document contained no condition which concerned the new entrance. Accordingly, the stamped endorsement should either be disregarded or treated as otherwise incapable of negating the otherwise clear expression of consent. In this respect the appellants relied upon Ryde Municipal Council v The Royal Ryde Homes & Anor, 19 LGRA 321, in which Else-Mitchell J said, at 324: "I therefore think it sound to say that the legal qualities a consent possesses, or which flow 4 UNREPORTED JUDGMENTS from a consent are so important that care should be taken to ensure that consents are framed in clear terms and conditions are specified with certainty. Any lack of clarity or certainty is the responsibility of the council and it must take the consequences of any failure to specify accurately or in detail what is consented to as well as any conditions to which a consent is subject." However, the argument of the appellants fails to give the endorsement on the plan any significance at all. It treated the endorsement as non-existent. We do not agree with this approach. The notice of determination of the development application should, we think, be read together with the plan. The written form of application is meaningless unless the plans accompanying it are considered as part of the application similarly when the notice of consent refers to the determination of the development application it must be referring to the application including the plans without which that application would not be an application at all. The consent as granted was to an application incorporating a plan on which, at the time of consent, a marking had been placed showing that the development being approved did not include the new entrance. Read together the documents returned to the appellants informed them that the works shown on the plan were the subject of the development consent except insofar as an amendment was required in relation to the new entrance to the Bruxner Highway. The consent could not, in view of the stamp, be regarded as allowing for development in that area in the precise terms shown by the plan. If the written notice of consent alone is to be regarded as the consent so that it alone would appear on the public register the fact inescapably remains that it could not be understood by a searcher without recourse to the application itself, including the accompanying plans. The searcher wishing to gain a full appreciation of the terms of the consent would then see a plan showing that no approval had been given to the new entrance. The point is that consent was not in fact given to the new entrance nor can the notice of consent accompanied by the stamped plan be regarded as an unqualified approval of the application to develop the new entrance as originally but no longer shown on the plan. The appellants' case depends upon a conclusion that the written notice of consent, properly construed, constituted an unqualified consent to all the work originally shown on the plan. As we disagree with such a conclusion we think the appeal fails. We add one final comment. During argument it was suggested that the endorsement to the plan referred to condition 6 of the consent which read: "6. Full design plans to be submitted for approval by the City Engineer prior to commencement of construction." and that the submission of the building application for the earthworks together with the concomitant permit to carry out those works provided a satisfaction of condition 6 and the qualification on the plan. There are two answers to this: (i), it was not raised in the court at first instance and we do not think it should be permitted to be argued now; (ii), the endorsement on the plan referred to "amendment" and instructed the appellant- to refer to the consent. Condition 6 of the consent made no reference to an amendment and it could not be said that it explained or detailed the action called for in the endorsement. Nor could it be said that the actual grant of a building application, which took no account of development considerations or provided for any specific amendment, effected an amendment to the roadworks shown in the plan submitted with the development application. \GREBBINS v THE COUNCIL OF THE CITY OF LISMORE (Mahoney, Priestley and Clark6 JJA) In our opinion the appeal should be dismissed with costs.