Land and Environment Court of New South Wales CITATION : Rich v Lennox Palms Estate and Anor [2009] NSWLEC 167 APPLICANTS Alan Rich & Evelyn Rich PARTIES : FIRST RESPONDENT Lennox Palms Estate SECOND RESPONDENT Ballina Shire Council FILE NUMBER(S) : 40275 of 2009 CORAM: Pain J KEY ISSUES: DEVELOPMENT CONSENT :- construction of development consent - whether development consent properly commenced - whether consent provided for staged development of subdivision - whether breach of consent in failure to extend public road access to boundary of applicants' land LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 123 Auburn Municipal Council v Szabo (1971) 67 LGRA 427 Neighbourhood Association DP 285249 v Watson (2008) 162 LGERA 322 House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498 CASES CITED: Rao v Canterbury City Council (2000) 112 LGERA 360 Ryde Municipal Council v The Ryde Royal Homes (1970) 19 LGRA 321 Tipfast Pty Ltd v South Sydney Council [2002] NSWLEC 85 Westfield Management Ltd v Perpetual Trustee Co Ltd [2006] NSWCA 245 TEXTS CITED: The Macquarie Dictionary, 3rd ed (Macquarie University, Sydney: The Macquarie Library Pty Ltd, 2001) DATES OF HEARING: 22 September 2009 DATE OF JUDGMENT: 25 September 2009 APPLICANTS Mr D Wilson SOLICITORS McCartney Young Lawyers LEGAL REPRESENTATIVES: FIRST RESPONDENT Mr N Bilinsky SOLICITORS Stafford Lawyers SECOND RESPONDENT Submitting appearance JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Pain J 25 September 2009 40275 of 2009 Rich and Anor v Lennox Palms Estate Pty Ltd and Anor JUDGMENT 1 Her Honour: The Applicants own land adjacent to land owned by the First Respondent at Lennox Head. The Applicants seek a declaration pursuant to s 123 of the Environmental Planning and Assessment Act 1979 (the EP&A Act) that development consent DA82/149 issued by Ballina Shire Council (the Second Respondent) in April 1982 has not been complied with by the owner of the relevant land (the First Respondent). The plan referred to in that consent included an area identified as Lot 65. The Applicants seek an order that the First Respondent provide public access over the land in Lot 65 so that it is contiguous with the western boundary of the Applicants' land. It also seeks an order that the First and Second Respondents cause a registered plan to be prepared giving access to the public road over the land in Lot 65 so that is contiguous with the western boundary of the Applicants' land. Ballina Shire Council, the Second Respondent, has filed a submitting appearance. 2 The Applicants sought to rely on two volumes containing, inter alia, relevant documents concerning the 1982 consent. Volume 1 was tendered without objection with a small selection of documents referred to. Some documents in Volume 2 were objected to and I ruled on whether some or all of those in Tab 3 could be tendered, see par 8. A few additional documents in Volume 2 were relied on without objection, being the registered plans of three stages of subdivision relevant to the First Respondent's land. The First Respondent relied on an affidavit of one of its directors, Michael Kearney, sworn 1 July 2009. His affidavit sets out the history of the development consent obtained in 1982 and its subsequent implementation in three stages. He attests that no plan has been submitted with the development application proposing the extension of the road known as Kellie Ann Crescent to the boundary of the Applicants' land (in 1982 Lot 7 DP552587, now Lot 9 DP719601). Mr Kearney states that the subdivision of the First Respondent's land was carried out in three stages in accordance with a chronology set out at par 4. He attests that the First Respondent, over the course of the various stages of development, ultimately decided not to release any further lots for subdivision beyond those identified in the three stages and the remainder of the land was left for cattle grazing. Mr Kearney states that the Council told the First Respondent on a number of occasions that it was not required to subdivide the property in accordance with its consent. Letters to this effect dated August 1987 and March 1996 are annexures I and J to Mr Kearney's affidavit. In a letter dated 30 October 1996 (annexure K to Mr Kearney's affidavit) the Council advised the First Respondent that Council would require the further progressive dedication of a road on the property, Kellie Ann Crescent, as a public road as and when subdivisible land was released in stages in order to ensure adequate public access for land released for sale. Mr Kearney states that the First Respondent has not created a Lot 65 on its property to which Condition 6 is directed. 3 Based on the affidavit of Mr Kearney and the material successfully tendered by the Applicants the relevant events were largely agreed between the parties. 4 A chronology of the history of DA82/149 and its implementation follows: (i) On or about 15 April 1982, a firm of consultant surveyors, Steel & Associates Pty Ltd, applied for development consent on behalf of the First Respondent. (ii) On 22 April 1982, the Council granted development consent for the subdivision of the First Respondent's property DA82/149, described as part portions 46, 61 and 62 of the Parish of Ballina. (iii) The consent permitted, subject to conditions, the creation of 57 single dwelling, two farmlet, four rural residential and two medium density lots. (iv) Of the various conditions of consent applicable to the proposed development, one particular condition, Condition 6, provided that "the submitted plan shall be amended to provide public road access over Lot 65". (v) The "submitted plan" referred to in Condition 6 to the consent was a contour sketch plan prepared by Steel & Associates Pty Ltd and dated 15 April 1982. This plan set out a series of numbered lots in the proposed subdivision, including an area called Lot 65. It showed a road ending in a cul de sac in the southern portion of the land delineated at Lot 65. (vi) Lot 65 was adjacent to Lots 6 and 7 DP 552587. Lot 6 is now owned by the Applicants (now Lot 9 in DP719601). (vii) The subdivision was ultimately carried out in three separate stages with the concurrence of Council and the registration of three separate plans of subdivision. (viii) On or about 17 November 1983, a plan of subdivision for 20 residential lots was approved by Council in accordance with DA 82/149 and registered as DP700547 on 1 February 1984 (the first stage). (ix) On or about 13 August 1993, a second plan of subdivision in respect of 25 residential lots and three public reserves was approved by Council and registered as DP833002 on 16 September 1996 (the second stage). (x) On or about 15 November 1996, the third stage of subdivision was approved by Council for the creation of 11 residential lots and registered as DP864764 on 19 December 1996 (the third stage). 5 I was told that all three stages of the approved subdivisions have been built. In the third stage, an extension of Kellie Ann Crescent, a public road, onto the southern portion of what was Lot 65 ending in a cul de sac was approved by the Council in 1996. The balance of the land that was described as Lot 65 in the submitted plan dated 15 April 1982 became Lot 61 in DP833002 and remains as a large parcel of undeveloped land extending to the northern boundary of the First Respondent's land (abutting an area on the north-eastern corner of the First Respondent's land to be used as a reserve) and the eastern boundary being the Applicants' land to the south. The location of the public road known as Kellie Ann Crescent, which ends in a cul de sac close to the boundary of the Applicants' land, is shown in the subdivision plans for the third stage. As can be seen in the aerial photograph at page 6 of Volume 1, the public road known as Kellie Ann Crescent ends in a cul de sac close to the western boundary of the Applicants' land. The Applicants are seeking orders which will result in that public road being continued up to their boundary and be able to be used as a public road. 6 The conditions of consent DA 82/149 provided: (General) conditions: 1. Final Plans – the submission of final plans and applicable processing fee Conditions of development consent 1. Development of the site being carried out generally in accordance with the plan prepared by Steel & Associates Pty Ltd and submitted with the development application as amended, by the following conditions. … 3. The following development standards applying to the site. (A reference in this condition to 'the report' shall be a reference to the report title 'Lennox Head-Ballina: Coastal Detailed Strategy, Precinct 3' prepared by Ballina Shire Council, August 1979). … Electrical Servicing – As per Section 6.2 of the report. … Building conditions – A schedule of covenants shall be prepared by the applicant and approved by Council's Engineer/Planner generally in accordance with Section 6.2 of the report. … 6. The submitted plan shall be amended to provide public road access over lot 65. 7 A copy of the Council's file produced in response to a Notice to Produce was provided in Tab 3 of Volume 2 but was either successfully objected to or not tendered apart from four pages. I ruled that four pages in Tab 3 of Volume 2 could be tendered, being Precinct 3 Detailed Development Plan Map 8, and the gazettal of the Ballina Local Environmental Plan No 1 on 10 October 1980. The Local Environmental Plan amended the Interim Development Order No. 1 - Shire of Tintinbar by inserting cl 35(2)(b) which refers to the plan titled "Precinct 3 detailed Development Plan Map 8". Map 8 is a general, not to scale, schematic plan of possible subdivision. Clause 35(2) states: Subject to subclause (3) nothing in this order shall prevent the residential development of land to which this clause applies if that development is carried out – (a) with the consent of the Council; (b) in general accordance with the plan entitled "Precinct 3 Detailed Development Plan Map 8" contained in the "Lennox Head/Ballina Sire Council and held in the office of the Council and the department; and (c) in accordance with subclause (3) and the conditions imposed by the Council under subclause (4). 8 I refused leave to the Applicants to tender other documents in Tab 3 which were argued to be the Lennox-Head Ballina Coastal Strategy Detailed Strategy Precinct 3 prepared by the Council in August 1979 by inference because no such final document was clearly identifiable from the copy of the Council's file in Tab 3. For example section 6.2 of that report was not on the file, that being referred to specifically in Condition 3 of the development consent conditions set out above. Applicants' submissions (i) Development consent not properly commenced 9 There was no consent for staged development given by the Council when DA 82/149 was approved although this has occurred in the implementation of this consent. Condition 1 required that a final plan be submitted including the amendment required by Condition 6. This has never occurred. Condition 1 and Condition 6 of the development consent have not been complied with and no amended plan as required has been approved by the Council. The work done to date pursuant to the consent has not been carried out in accordance with the development consent. Rao v Canterbury City Council (2000) 112 LGERA 360 at 364 is authority that a consent can be breached while it is being implemented. The submitted plan by the First Respondent's consultant surveyors dated 15 April 1982 (the 1982 plan) had to be amended in accordance with Condition 6 before any work could be carried out. (ii) construction of the development consent 10 The relevant authorities concerning the construction of development consents are identified by Biscoe J in Neighbourhood Association DP 285249 v Watson (2008) 162 LGERA 322 at [389]-[396]. There is ambiguity in the meaning of Condition 6 which suggests objective circumstances should be considered. Westfield Management Ltd v Perpetual Trustee Co Ltd [2006] NSWCA 245 per Hodgson J at [41] is authority for the proposition that objective circumstances can be considered, such as the zoning in that case. 11 The development application is referred to on the front page of the development consent and should be considered as part of the consent. It is also appropriate as part of the objective circumstances of this case that Precinct 3 detailed Development Plan Map 8 referred to in the 1980 amendment to the Interim Development Order No. 1 – Shire of Tintinbar (cl 35(2)) should be considered. This map shows that public road access through the First Respondent's land to the eastern boundary of the Applicants' land was contemplated. As a planning document it informs the objective circumstances of the case. This enables the Court to construe Condition 6 to require public road access from the southern boundary of Lot 65 (as delineated in the 1982 plan) to the eastern boundary of Lot 65, being the western boundary of the Applicants' land. 12 This construction is also consistent with the meaning of "over" in Condition 6. "Over Lot 65" in Condition 6 means extending the road to the eastern boundary. The Applicants' counsel submitted that according to a definition of "over" in The Macquarie Dictionary (3rd edition (Macquarie University, Sydney: The Macquarie Library Pty Ltd, 2001), access "over" Lot 65 requires access from one boundary (the southern boundary) to another boundary (being the eastern boundary which is the Applicants' land). The present road, which was constructed on land that was previously identified as Lot 65, does not satisfy Condition 6 because it does not continue to the Applicants' boundary. The extent of public road approved in the plans in the third stage of the subdivision carried out pursuant to the 1982 development consent does not satisfy Condition 6. First Respondent's submissions No breach of development consent has arisen 13 The Defendant argued that no breach of the development consent had occurred so there was no need for the conditions to be construed. The 1982 plan, while referring to Lot 65, did not create it. It was never created nor was it approved by Council as part of a registered plan of subdivision. Consequently, public road access was never extended to, and for the benefit of, a lot that has not come into existence. As there has not been a failure to comply with consent DA82/149 no breach of the EP&A Act arises to which s 123 can apply. Consequently there is no breach which provides a basis for the grant of a remedy to the Applicants. 14 Development Application 82/149 required that the consent be implemented generally in accordance with the plan submitted by the First Respondent's consultant surveyors and referred to in Condition 1 of the consent. There is no requirement in the consent for the whole of the 1982 plan to be undertaken all at once. The consent was permissive not mandatory and did not impose an obligation on the First Respondent to give full effect to the plans for the proposed subdivision by creating all the lots permitted by the consent. That carrying out of the subdivision in stages was contemplated in the 1982 consent is confirmed by the actions of the Council in subsequently approving the plans for three stages of development. There is still further capacity to approve further subdivision in accordance with the 1982 consent DA82/149. Construction of the development consent 15 In House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498 Mason P considered at [37] that one must look primarily at the document constituting the approval and construe it. This principle was expounded by Hope J in Auburn Municipal Council v Szabo (1971) 67 LGRA 427 at 433-434. Extraneous evidence is generally not admissible. 16 The consent applies to the land the subject of the consent, not the Applicants' land, per Ryde Municipal Council v The Ryde Royal Homes (1970) 19 LGRA 321 at 324. There is no mandatory condition that Lot 65 be created or that a particular right be created in favour of the Applicants. Condition 6 does not specify how far public road access should extend nor which particular boundary it should extend to. Nor is there a reference to any other land the subject of the consent. There are many meanings of the word "over" and that chosen by the Applicants' counsel is not self evidently the only interpretation of the word. Indeed a plain English reading of the word suggests that provided a public road is on the land that was defined as Lot 65 in the plan approved as part of DA82/149 then Condition 6 has been satisfied. Finding (i) whether breach of development consent 17 In relation to whether the staged release of three areas for subdivision with the necessary approval of the Council on each occasion complied with consent DA82/149, I agree with the First Respondent's submissions that the staged approach was in conformity with the conditions of consent imposed in 1982. Condition 1 refers to the submission of final plans, not a singular plan. 18 The staging of the consent is essentially the means of implementation adopted by the holder of the consent with the agreement of the Council over many years. There was and is no legal requirement in the consent or the EP&A Act requiring the subdivisions permitted by the consent to be undertaken all at once or within a certain timeframe. As submitted by the First Respondent, provided that the consent did not lapse, as the EP&A Act provides for, but rather was commenced, as it has been, there is no requirement that a consent be implemented in a certain timeframe. 19 It is also relevant to note that the understanding of the Council was that staging of subdivision releases was authorised by the consent as it approved three stages over a 14 year period. The correspondence attached to Mr Kearney's affidavit at annexures I, J and K confirms this was the Council's view. While the Council's views are not binding on me, given that it granted the consent its actions to date confirm my view that this staged implementation complied with the consent. To find otherwise would also potentially raise questions about the stages of the consent that have now been fully implemented with houses built and presumably sold in three areas of subdivision. 20 The fact that the EP&A Act was amended to provide for the granting of consent for staged development some ten years after DA82/149 was granted in 1982 is irrelevant to interpreting that consent. That amendment of the EP&A Act does not lead to the conclusion that staged implementation of an overall development was or is unauthorised under the EP&A Act. I do not therefore accept the Applicants' submission that the consent required the submission to the Council of a single plan with an amendment as required in Condition 6 before any work was authorised under the consent. 21 The First Respondent submitted that no requirement to comply with Condition 6 has yet arisen because Lot 65 has not yet been created. It was not created when the 1982 consent was granted as that consent did not create any lots. I had some difficulty at the hearing understanding this argument as it seemed to depend on whether the First Respondent, in seeking approval of stages of a subdivision, applied to register a plan which included a lot which it chose to call Lot 65. On reflection I consider the First Respondent's point is a good one. Part of the land identified as Lot 65 in the 1982 plan has been partially developed as part of the third stage. The development has occurred in the southern portion of what was identified as Lot 65 on the 1982 plan but the bulk of the land now in Lot 61 DP 833002 remains available for a further stage of subdivision. DA82/149 requires the consent to be implemented generally in accordance with the submitted plan so that if and when a later stage of subdivision is applied for the Council can then determine if it will approve the subdivision plans as submitted, presumably on the basis they are satisfied the plans are in conformity with the submitted plan and the 1982 conditions of consent including Condition 6. 22 The First Respondent did not argue that Condition 6 had been implemented by the third stage of subdivision approved in 1996. That approval included the dedication of an extension of the public road system, resulting in Kellie Ann Crescent being formed. That road extends into the southern portion of the land that was Lot 65 in the 1982 submitted plan. The relevant subdivision plan for the third stage was approved by the Council without requiring the extension of the public road to the boundary of the Applicants' land. The First Respondent argued that the 1982 consent is yet to be fully implemented in the area of land which was identified as Lot 65 in the 1982 consent, so that the requirement in Condition 6 is yet to arise. In the absence of any submissions from the Council (it having filed a submitting appearance) that Condition 6 was implemented by the approval of the third stage of the subdivision for me to consider, I agree. Condition 6 can be implemented through a further stage of subdivision which includes the bulk of the land now identified as Lot 61 in DP833002. I agree with the First Respondent that no breach of the EP&A Act has been committed. ii) Construction of development consent 23 Having reached the above conclusion that there is no relevant breach of the EP&A Act by the First Respondent, it is unnecessary that I consider the parties' respective arguments on the construction of the development consent as that argument concerns the form of any relief that should be granted and I will not be granting any relief. Any conclusions I draw about the parties' arguments will be obiter. 24 A development consent must be construed in order to give it practical effect and to avoid uncertainty, see Driscoll v J Scott Pty Ltd (1976) 50 ALJR 528 per Murphy J at 531 and Westfield Management Limited v Perpetual Trustee Co Ltd [2006] NSWCA 245 per Hodgson JA at [40]. There are numerous authorities referred to in both parties' submissions which concern the construction of development consents, particularly Ryde Royal Homes, House of Peace and Szabo. I summarised these in Tipfast Pty Ltd v South Sydney Council [2002] NSWLEC 85 at [13]-[23] and as did Biscoe J more recently in Neighbourhood Association DP285249 v Watson. In brief, a development consent must be considered as a stand alone document and other documents can be referred to only where these are incorporated into the consent explicitly or implicitly. The April 1982 plan submitted with the development consent should be incorporated as that is explicitly referred to in the consent. I do not understand there was any disagreement on that matter. The same would also apply to the report titled 'Lennox Head-Ballina: Coastal Detailed Strategy, Precinct 3' prepared by Ballina Shire Council, August 1979 referred to in Condition 3 above. As referred to above in par 7, no such report was able to be identified in the Council's file as copied at Tab 3 in Volume 2 of the Applicants' document bundle. 25 I consider it is preferable that I not draw any conclusions as to the construction of DA82/149 and the meaning of Condition 6 in the absence of the Council as a participating party. It will have responsibility for approving any future subdivision of the area identified as Lot 65 on the 1982 plan and now Lot 61 in DP833002, assuming that the First Respondent does decide that it will further implement the consent DA82/149. One reason I take this view is that the copy of the Council file provided to the Applicant was clearly lacking in a final copy of the Lennox Head-Ballina: Coastal Detailed Strategy Precinct 3. As a document that appears to be relevant to the interpretation of the consent, if that issue does arise in the future further inquiries by the Council to locate such a document appear to be necessary and desirable. Orders 26 The Court makes the following orders: 1. The Applicants' summons is dismissed. 2. Costs are reserved. 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.