Land and Environment Court of New South Wales CITATION : ALBURY CITY COUNCIL v. CAROLYN MUIR No. 40178 of 1996 [1997] NSWLEC 49 (30 April 1997) [1997] NSWLEC 4 PARTIES : ALBURY CITY COUNCIL v. CAROLYN MUIR FILE NUMBER(S) : 40178 of 1996 CORAM: Bignold J :- Class 4 proceedings seeking to enforce by mandatory orders condition of development consent. KEY ISSUES: True meaning of condition requiring driveway to be designed to prevent persons entering motel premises from using the driveway of adjoining property. Condition did not impose obligation to construct any physical barrier. LEGISLATION CITED: CASES CITED: Hecar Investments No. 6 Pty Ltd v. Lake Macquarie Municipal Council (1984) 53LGRA 322 at 323 ; Gill v. Donald Humberstone & Co Ltd (1963) 1WLR 929. DATES OF HEARING: 30 April 1997 EX TEMPORE JUDGMENT DATE : 04/30/1997 Ms S. Duggan, Barrister LEGAL REPRESENTATIVES: First Respondent Ms J. Kelly, Barrister Second Respondent Ms J. Kelly, Barrister JUDGMENT: These are class 4 proceedings in which the Applicant Council seeks to enforce by mandatory order a condition of development consent granted by the Council on 27 June 1995 to development application No. 95-106 for the construction of a new entry from Wodonga Place to the Respondent's existing motel development known as "Paddle Steamer Lodge". The approved development which included the construction of a driveway, footpath crossing a feature archway and landscape has been carried out. The Applicant contends that in carrying out the development, the Respondents have not fulfilled the obligations imposed by the conditions of development consent. The nature and extent of the alleged non-fulfilment of these obligations is to be discerned from the Applicant's claim to specific mandatory order which is in the following terms: "Alternatively an order that the Owner of the Premises construct a physical barrier between the driveway of the Premises and the northern driveway of the adjoining BP Service Station to dissuade motorists entering and leaving either premises via the adjoining property's driveway." The condition sought to be enforced is Condition B which is in the following terms: "The driveway being located not closer than three metres to the adjacent northern driveway and shall be designed so that patrons entering the site do not cross over the adjoining property's driveway." It is common ground that the reference to "the adjoining property's driveway" is a reference to the driveway, including a footpath crossover, of the adjoining premises used as a BP Service Station and 24 hour food shop which driveway and crossover are used for exit purposes. It is also common ground that at the time that the development consent was granted, there existed on the common boundary between the motel and service station properties a concrete kerb, together with an exit sign and bollard placed in a vertical position at the street frontage corner of the motel property in a section of an easement over the motel property appurtenant to the adjoining service station property. These physical features are no longer in place having been apparently removed by the Respondents when carrying out the approved development. In their respective opening addresses, Counsel for the parties indicated that the fundamental issue in dispute as to whether Condition B had not been complied with, essentially involves a dispute as to the proper meaning of Condition B. In addition to this fundamental dispute, the Respondents rely upon defences based upon estoppel and discretionary grounds. At the hearing, Counsel for both parties agreed that it would be desirable for there to be an adjudication on the disputed question of the proper construction of Condition B. Accordingly, I propose to determine that question in advance of any other issue raised by the case, noting that the crucial question is not so much what is the meaning at large of the condition, but whether it imposes the type of obligation contended for by the Applicant, namely that it requires the Respondents to construct a physical barrier between the two adjoining properties. Counsel have helpfully addressed me on these issues pertaining to the construction of Condition B. It is of course to be construed, not as if its words were the language of a statute, but from a practical viewpoint: see Hecar Investments No. 6 Pty Ltd v. Lake Macquarie Municipal Council (1984) 53LGRA 322 at 323 applying Gill v. Donald Humberstone & Co Ltd (1963) 1WLR 929. Moreover, it of course has to be construed in the context of the whole of the development consent and the conditions imposed thereon, including condition A which provides: "Development being carried out generally in accordance with particulars and statements in the submitted development application dated 10 May 1995, and subject to the following conditions." I accept Counsel for the Applicant's submission that condition A operates in such a manner that any of the following conditions may modify or alter the form of the development particularised in the development application and supporting statement. For example a non-contentious operation of Condition B was to require a modification of the proposed driveway so that it is located no closer than 3m from the adjacent driveway. Similarly, Condition C modified according to its terms, an aspect of the proposed driveway. The real issue in dispute focuses upon the latter part of Condition B. What does it mean when it requires the driveway "to be designed so that patrons entering the site do not cross over the adjoining property's boundary"? Having carefully considered the competing submissions, I am unable to accept the Applicant's submission that it requires the proposed driveway to incorporate some physical barrier to prevent the possibility or capacity for vehicles or pedestrians entering the motel premises via the approved driveway from crossing over the adjoining property's driveway. Rather, in my judgment, it requires the driveway to be designed so that vehicular and pedestrian traffic entering the motel does not need to or have to (i.e. in the sense of involuntarily) utilise the adjoining property's driveway. In the course of her argument, Counsel for the Applicant placed some considerable reliance on the facts that existed at the time the development consent was granted pertaining to the existence of the concrete kerb, the bollard and the exit sign that I have earlier referred to, which physical features if they continued to exist would apparently physically prevent an invasion of the neighbouring driveway. However, the existence of these facts does not support the Applicant's contended construction of Condition B because these physical matters already apparently operated to prevent use of the adjoining property's driveway and Condition B is to be construed according to this known state of affairs. In my judgment, their continuing existence was not secured by the imposition of Condition B, as a matter of the text or apparent purpose of that condition. Nor could such an intention be imputed or implied either as a matter of logic or necessity. Counsel for the Respondents' principal argument was that the condition anticipated and required necessary changes in design to be accommodated and dealt with at the building application stage of the development. This is a plausible construction, particularly in view of the use of the expression "shall be designed". It also reflects conventional practice involving the interplay of planning laws and local government building laws in the case of a project (such as the present one) requiring dual approvals. The fact of the subsequent building approval granted by the Applicant to the Respondents and its terms, (reflecting design modifications to the original proposal) strongly supports this construction. However, even if the full meaning and effect of Condition B is not exhausted by design changes required to be made at the building application stage of the project, it is apparent that the condition is capable of a construction that simply requires a design of the driveway to meet the stated objective of avoiding the (involuntary) use of the adjoining property's driveway by patrons entering the motel premises. In my judgment, it is to read far too much into the text of the condition to accept the Applicant's submission that the required design modification required the erection of some physical barrier separating the driveway to the motel from the adjoining property's driveway. Moreover, it must be appreciated that the condition requires "the driveway" to be so designed and accordingly, does not require the design, (far less the construction) of independent detached structures from that driveway structure (such as are claimed in the mandatory order). For all the foregoing reasons, I reject the Applicant's contention that Condition B requires some physical barrier or impediment to be constructed or installed either on the approved driveway to the motel or (ii) in a location between that driveway and the adjoining property's driveway. Consequent upon the pronouncement of the foregoing decision, Counsel for the Respondents asked the Court to order the dismissal of the proceedings with costs. Counsel for the Applicant did not oppose the order dismissing the proceedings but opposed the order for costs, submitting that the appropriate order was for each party to pay its own costs because the proceedings had been disposed of on the basis of my determination of the true meaning of Condition B, which did not require me to consider all of the affidavit evidence that had been filed going to the other issues raised in the case (principally the Respondent's defences). Having carefully considered the competing arguments, I am satisfied that no exceptional circumstance has been demonstrated such as would justify a departure from the usual costs order in favour of the successful party in Class 4 proceedings. Although it is true that costs have been incurred in the preparation of the whole case and much of that case was not considered, in view of my determination of the proper meaning of Condition B, it must be appreciated that the Applicant brought these proceedings and was itself the author of Condition B. In these circumstances, the Respondents, having been entirely successful in the result of the proceedings are entitled to a general costs order in their favour. For all the foregoing reasons, I make the following orders: 1. Application dismissed. 2. The Applicant to pay the Respondents' costs in the sum agreed, or failing agreement, as assessed. 3. Exhibits be returned. --------------OoO-------------- I HEREBY CERTIFY THAT THIS AND THE PRECEDING 7 PAGES ARE A TRUE AND ACCURATE COPY OF THE REASONS FOR JUDGMENT HEREIN OF HIS HONOUR MR JUSTICE N R BIGNOLD. Associate DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.