SYDNEY SERVICED APARTMENTS PTY LTD v THE COUNCIL OF THE MUNICIPALITY OF NORTH SYDNEY SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CLARKE, HANDLEY and CRIPPS JJA 5 February, 1993, 22 February 1993 [1993] NSWCA 259 TOWN PLANNING — development consent — interpretation — extrinsic documents — whether relevant — whether incorporated. TOWN PLANNING — injunctions — form of. On 11 April 1960 the Cumberland County Council granted a development consent for the erection of a "twentyfour storey residential building" which later became known as Blues Point Tower. The appellant commenced to use some of the units as serviced apartments. The Council sued to restrain such use as being contrary to its Local Environmental Plan. Bignold J in the Land and Environment Court made a declaration and granted an injunction to restrain such use, both orders being limited to the units then owned or being managed by the defendant. On appeal by the defendant and cross appeal by the Council. Held: (1) The consent on its true construction was for the erection of a residential flat building so that use of the subject home units by the defendant as serviced apartments was not within the consent. North Sydney MC v Sydney Serviced Apartments (1990) 71 LGRA 432 (CA) followed. (2) Development consents should be construed without reference to extrinsic evidence unless the terms of another document have been incorporated into the consent expressly or by necessary implication. Auburn MC vy Szabo (1971) 67 LGRA 427 followed. (3) Since the question of possible development consents and existing use rights in relation to other units in the building had not been litigated it was not appropriate to grant an unqualified general injunction in relation to all units in the building. In view of the differing onuses of proof in relation to other development consents and existing use rights it was difficult to formulate the terms in which a qualified general injunction might be granted. Jones v Sutherland SC (1979) 2 NSWLR 206 at 213 and Warringah SC v Sedevcic (1987) 10 NSWLR 235 at 338 referred to. In the circumstances the Court would not interfere with the exercise of the trial Judge's discretion refusing to grant a general injunction. Clarke JA I agree with Handley JA. Handley JA This is an appeal from a judgment of Bignold J in the Land and Environment Court. The Judge made a declaration and granted an injunction restraining the appellant from using certain home units or flats in Blues Point Tower as serviced apartments such use being unlawful under the North Sydney Local Environmental Plan 1989 and the Environmental Planning and Assessment Act 1979. A number of matters were in issue before Bignold J and were covered by the notice of appeal as originally filed. As a result the whole of the evidence before the Judge was included in what became a four volume appeal book. However Mr O'Keefe QC who appeared for the appellant in this Court, wisely if I may say so, argued his best point, and abandoned the others. The Court is obliged to counsel in this case, as in so many others, for the economy and efficiency with which their arguments have been presented resulting in 2 UNREPORTED JUDGMENTS considerable saving of time for the Court and expense for parties. Although, as will be seen, I have reached the conclusion that the appeal fails I have no reason to think, from my reading of the judgment of Bignold J, that there was any substance in the grounds of appeal that were abandoned. On 11 April 1960 the Cumberland County Council granted a development consent for the erection of Blues Point Tower. The issue in this appeal concerns the proper interpretation of this consent. The document omitting formal parts was as follows:- "APPROVAL: The Cumberland County Council as the responsible authority hereby permits the erection on the abovementioned land of a twentyfour storey residential building (with shops on the ground floor) and the construction on the land of parking facilities for use in connection with such building; the building to be erected and the parking facilities to be constructed in accordance with the working drawings Nos 1-7 inclusive referred to in a letter dated 21st December, 1959, from Mr Harry Seidler, Architect, to the Cumberland County Council (copies of the drawings are marked respectively with the letters 'A' to 'G' inclusive and are annexed to the Agreement made Ist April, 1960, between the applicants, Lend Lease Corporation Ltd, the Cumberland County Council and the Council of the Municipality of North Sydney) subject to: - (a) any variation or variations (as regards parking facilities only) which may after Ist April, 1960, be made to such drawings or any of them for the purpose of complying with any requirement or requirements of the Council of the Municipality of North Sydney; (b) any variation or variations (whether or not for the purpose of enabling the building to conform to the standards prescribed for residential flat buildings Class 'C' in Schedule Seven to the Local Government Act, 1919 (as amended), and/or to comply with Ordinance No 71 under that Act) which may after 1st April, 1960, be made to such drawings or any of them with the consent of the Council of the Municipality of North Sydney or if the variation or variations will result in any substantial alteration to the design and/or the size of the building then with the consent also of the Cumberland County Council; and (c) the deletion from such drawings of any provision for a swimming pool. CONDITIONS (IF ANY): That the development hereby permitted shall conform to the standards prescribed for residential flat buildings Class 'C' in Schedule Seven of the Local Government Act 1919 (as amended), and shall comply with Ordinance No 71 under such Act. This approval does not relieve the applicant of the obligation to obtain any other approval required under the Local Government Act, 1919, and Ordinances (including approval of building plans), or any other Act." (emphasis supplied) The Judge held that the consent on its true construction was for the erection of a residential flat building. On this basis it followed from this Court's earlier decision in North Sydney MC v Sydney Serviced Apartments (1990) 71 LGRA 432 (despite the headnote) that the use of home units or flats in the building as serviced apartments was not within the consent and was prohibited by the local plan. I should explain that when this Court allowed the Council's appeal in the previous proceedings it remitted the matter to the Land and Environment Court for the determination of the remaining issues. The proceedings to that stage had been conducted on the basis of agreed facts including the fact that "Development Consent for the erection of the building as a residential flat building was granted \RYDNEY SERVICED APARTMENTS PTY LTD v THE COUNCIL OF THE MUNICIPALITS OF NORTH SYDNEY (Handley JA) by the applicant (the North Sydney Council) on 19 January 1960." After the matter had been returned to the Land and Environment Court the solicitors for the company learned that a development consent had been granted by the County Council on 11 April 1960. The company applied for leave to reopen its case to prove this consent. It transpired that the earlier agreement had been based upon secondary evidence of the consent and that both parties had been mistaken. The Judge granted leave to reopen. Thus it came about that this Court has to consider the effect of the consent granted by the County Council on 11 April 1960 whereas in the earlier proceedings this Court considered an earlier consent supposedly granted by the North Sydney Council. Mr O'Keefe submitted that the consent permitted the use of the building as a "residential building" and that this expression was used with its defined meaning in CL24 of the County of Cumberland Planning Scheme. This definition, which was in and for PtIII of the Scheme was as follows:- "Residential building' means a building, other than a dwelling house, designed for use for human habitation together with such outbuildings as are ordinarily used therewith, a residential flat building, a hostel, an hotel designed primarily for residential purposes and a residential club, but does not include any building mentioned, whether by inclusion or exclusion in the definitions of 'places of instruction' and 'institution'""'. In 1960 the subject land was within a foreshore reservation and the County Council alone had the power to grant development approvals. Any development consent granted by the County Council took effect under PtII of the Scheme. It follows that the definition of residential building in PtIII did not apply of its own force to this consent, and there can be no presumption that it was necessarily intended to apply. Compare Wyre Forest DC v Secretary of State (1990) 2 AC 357 at 365, 368. Mr O'Keefe's alternative submission was that the words "residential building" in the consent had their ordinary meaning. Accordingly use of the home units or flats as serviced apartments was within the consent, and reliance was placed upon observations of Mahoney JA in the earlier case in this Court at 437. The approval for "a twentyfour storey residential building (with shops on the ground floor) " must be construed in the context of the rest of the consent. This was common ground. The consent was based on working drawings Nos 1-7 referred to in a letter of 21 December 1959 from Mr Harry Seidler to the Council and in an agreement dated 1 April 1960 between the applicant, Lend Lease, the County Council and the North Sydney Council. Mr O'Keefe QC submitted that the drawings could only be referred to for the purposes of ascertaining the design and physical characteristics of the building and not to determine its permitted use. Mr Gyles QC for the Council however submitted that the drawings were incorporated in the consent and could be referred to for all purposes. Mr Gyles QC contended that the agreement of 1 April was also incorporated and could be considered in arriving at the proper construction of "residential building" but Mr O'Keefe QC disputed this. As a general rule development consents, being public documents operating in rem for the benefit of successors in title, should be construed without reference to extrinsic evidence other than to identify a thing or place referred to in it. See Leichhardt Municipal Council v Terminals Pty Ltd (1970) 21 LGRA 44 at 50. See also Wyre Forest DC v Secretary of State (1990) 2 AC 357 at 370-371. However reference may properly be made to documents incorporated expressly or by implication into the consent. The relevant principles are conveniently 4 UNREPORTED JUDGMENTS summarised by Hope J in Auburn MC v Szabo (1971) 67 LGRA 427 at 433-4 where he said: - "The question arises whether, in order to determine what development that consent authorised, one is required or permitted to go to the application for approval or to any other document. This matter was considered by this Court in Ryde Municipal Council v Royal Ryde Homes (1970) 19 LGRA 321 and by the Court of Appeal in Miller Mead v Minister of Housing (1963) 2 QB 196. It is apparent from these decisions that in determining what a council has approved one primarily looks at the document constituting the approval, and construes it... it would create a confusing and difficult, if not impossible, position if in order to determine what a council had approved one had to go to a whole series of documents and try to determine which of the documents and which part of any particular document the council intended to incorporate in its approval. The terms of another document may be incorporated in the development approval either expressly or by necessary implication, but I do not think that it is possible otherwise to go to documents outside the formal approval in order to determine what has been approved." In that case Hope J held that plans and specifications described in the consent as "attached" were incorporated in it. (434). Applying these principles I am satisfied that the drawings and the agreement of 1 April 1960 were both incorporated in this consent. I am inclined to the view that the letter of 21 December 1959 was not incorporated because it seems to be referred to only for the purpose of identifying the drawings and these are also identified as annexures to the agreement. I shall assume that the letter was not incorporated and cannot be referred to. The result is that the development consent is a composite instrument comprising the formal consent, the agreement, and the drawings. It can and must be construed as a whole in order to determine the meaning of "residential building". The formal consent refers in para(b) and in the conditions to "the standards prescribed for residential flat buildings Class C in Sch 7." The agreement of 1 April recites the County Council's agreement to grant development consent in the terms set out in the second schedule. The recital continues:- "Such consent however to be given subject to and conditional upon the said development conforming to the standards prescribed for residential flat buildings Class C in Schedule 7..." The second schedule concluded by referring to the working drawings annexed. One would be inclined to think from the references to residential flat building in the formal consent and the recital in the deed that the residential building consented to was intended to be a residential flat building. The working drawings make it clear beyond doubt that this is the true meaning of the consent. Drawing 1 shows a plan of the site with the tower building containing the residential accommodation described on the plan as "Home Unit Building", and there are other notations to the same effect. In these circumstances I am satisfied that the consent was for the erection of the building shown in the drawings as a home unit or residential flat building. The consent in terms was limited to the "erection" of the building, but must extend to its use as a home unit building. The conclusion reached by Bignold J therefore was correct and the appeal fails. The Council cross appealed from the Judge's refusal to make a general declaration in respect of all units in the building and to grant a general injunction in respect of all such units. In the end the only question for this Court was \RYDNEY SERVICED APARTMENTS PTY LTD v THE COUNCIL OF THE MUNICIPALITS OF NORTH SYDNEY (Cripps JA) whether a general injunction should be granted since Mr Gyles QC for the Council abandoned a claim to a general declaration. The problem with the general injunction sought by the Council is that the owners of other units in the building may either have existing use rights or development consents which would entitle them to use or authorise the use of their units as serviced apartments. Any such rights would enure for the benefit of the appellant if it should acquire such units or commence to manage them. The Council only made a case in respect of the particular units then owned or managed by the defendant. Accordingly no occasion arose for the Court to consider existing use rights or consents in relation to the other units and their Owners were not parties to the proceedings. Bignold J might have granted a general injunction subject to some condition proviso or qualification which would have protected the defendant if it acquired or commenced to manage other units which had the benefit of existing use rights or appropriate development consents. However it is not easy to frame such an injunction. When a council sues to restrain an infringing use it carries the burden of negativing any consent which would authorise that use. See Jones v Sutherland Shire Council (1979) 2 NSWLR 206 at 213. On the other hand in such a case the defendant has the onus of establishing any existing use rights. See Warringah SC v Sedevcic (1987) 10 NSWLR 335 at 338. Since the question of possible development consents and existing use rights in relation to other units was not litigated it would not be right to grant an unqualified injunction in relation to those units. On the other hand, and bearing in mind the differing onuses of proof involved, the task of framing an appropriate qualified injunction is one of some difficulty. The Council as cross appellant made no attempt to address these issues or to proffer an appropriate form of order. In these circumstances I have not been persuaded that Bignold J erred in refusing to grant a general injunction. Accordingly the cross appeal also fails and must be dismissed. In my opinion the following orders should be made:- 1. Appeal and cross appeal dismissed. 2. Appellant to pay ninetenths of the Council's costs of the appeal and cross appeal. Cripps JA I agree with Handley JA. 1. Appeal and cross appeal dismissed. 2. Appellant to pay ninetenths of the Council's costs of the appeal and cross appeal. Counsel for the Appellant: BSJ O7 KEEFE QC/I BUTCHER Solicitors for the Appellant: BLAKE DAWSON WALDRON Counsel for the Respondent: RV GYLES QC/S RARES Solicitors for the Respondent: MALLESONS STEPHEN JAQUES