Land and Environment Court of New South Wales CITATION : Ainsworth v Yarrowee Pty Ltd [2010] NSWLEC 118 APPLICANT PARTIES : Matthew John Ainsworth RESPONDENT Yarrowee Pty Ltd FILE NUMBER(S) : 40461 of 2009 CORAM: Sheahan J KEY ISSUES: INJUNCTIONS AND DECLARATIONS :- construction and interpretation of a condition of development consent, meaning of "road" and the requirment to provide "access" in the context of the circumstances of a subdivision of rural land, discretion, costs. Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Local Government Act 1919 Roads Act 1993 Auburn Municipal Council v Szabo (1971) 67 LGRA 427 Hillpalm Pty Ltd v Heavens Door Pty Ltd (2004) 220 CLR 472 CASES CITED: House of Peace Pty Ltd v Bankstown City Council (2000) 45 NSWLR 498 Hurstville Municipal Council v Hall [1972] 1 NSWLR 542 Warringah Shire Council v Rippledeen Pty Ltd and Anor [1973] 2 NSWLR 124 DATES OF HEARING: 24 May 2010 DATE OF JUDGMENT: 9 July 2010 APPLICANT Mr C Leggatt, SC with Mr R O'Gorman-Hughes SOLICITORS Watson Mangioni Lawyers Pty Ltd LEGAL REPRESENTATIVES: RESPONDENT Dr S Berveling SOLICITORS J C Walsh & Sons JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Sheahan J 9 July 2010 40461 of 2009 Ainsworth v Yarrowee Pty Ltd JUDGMENT Introduction 1 His Honour: This case concerns the applicant's need for access to his land via adjoining land owned by the respondent company. The relevant lands are located off Hillcrest Road near Taralga, which is now in Upper Lachlan Shire. Background 2 On 24 November 1988, the then Mulwaree Shire Council granted a development consent (No.1412) to the respondent, as a result of which Lot 234 in DP 750046, covering some 360ha on a property then known as "Glenkinchie", was subdivided on 12 March 1990 into two lots (Subdivision No. 984): "Lot 1" of DP 800788 (184.8ha), now owned by the applicant, and "Lot 2" of DP 800788 (174.8ha), retained by the respondent (now Lot 20 in DP 1148483). 3 At the time of that 1988 subdivision, a road reserve led from the west, through what is now Lot 2 to what is now Lot 1, but physical access to Lot 1 was gained via an unsealed road, only partly within the road reserve and generally south of it (see "Google" aerial in Exhibit R1, fol 27, and Exhibit A1, tab 9). 4 The unsealed road is impassable at times. However, it was (and remains) impossible to gain access to Lot 1 by driving over the last section of the road reserve. An earlier subdivision (DP 727480) had realigned that road reserve in a "dog-leg" around the dwelling located on what is now Lot 1, so that that dwelling no longer encroached on it (roads gazetted 27 January 1989 – see Exhibit R1, fols 88, 107, 126). However, other encroachments remained, and access was impractical (see generally Exhibit R1, fols 58-60). 5 The 1988 consent for the actual subdivision of Lot 234 into Lots 1 and 2 was notified on 25 November 1988 (see Exhibit A1, tab 10 and elsewhere in the evidence), and relevantly included the following condition: " 5. The existing road through proposed Lot 2 providing access to proposed Lot 1 being contained within a public road reserve and any land being dedicated to Council… " 6 Although Council accepted on 24 January 1990 (Exhibit R1, fol 120) that the consent had been complied with, so that the subdivision plan could issue, the applicant claims in these proceedings that condition 5 remains unsatisfied, and asks the court to enforce it. 7 The applicant acquired Lot 1 in January 2008 (registration date 14 May 2008 – Exhibit A1, tab 2), "unaware that the Unsealed Road which provides the only practical access … was not contained entirely within a road reserve" (his affidavit 28 April 2010, par 8). 8 After these proceedings were commenced, the respondent obtained approval for a further subdivision creating a public road over part of the land occupied by the unsealed road. That plan was registered on 23 February 2010 (DP 1148483 – Exhibit A1, tab 13). 9 The public road so created goes as far east as the entrance to the applicant's house paddock, but the applicant wants the court to order that it be extended further east to a long established gateway, through which access has long been gained to the pasture lands of what became Lot 1, all located generally north-east of the house. The house paddock occupies only 600m2 in the south-western "toe" of the 185ha comprising Lot 1. 10 During the hearing the house-yard entrance was referred to as point 'D', and the pastureland entrance as point 'Y', and I will adopt those simple descriptors. The road as now (legally) established, and at least partially constructed, runs only to 'D'. The "road" from 'D' to 'Y' is more in the nature of an unsealed "track", which historically has continued past 'Y' to a quarry, a State Park, and a creek or swimming hole further east again. 11 The applicant says that extension of the new road to 'Y' is required for the respondent to fulfil the requirements of condition 5, properly construed. 12 There are physical impediments to any alternative access to the pastures, commencing from 'D' – water tanks, a power pole, stockyard fences, and trees. Some of those impediments were well established before 1988, and all are said by the applicant to prevent access to the pastureland, using the gateway at 'D'. The Contest 13 The applicant submits that condition 5 should be (1) construed so that the words "existing road" mean the road as it existed to the knowledge of all involved at the time of the 1988 subdivision, namely providing access to Lot 1 at two points, 'D' and 'Y', and (2) not construed in such a way that the respondent was required to provide access to Lot 1 at only one point. The practicalities of the present situation unfairly require the applicant to remove trees and other improvements and structures in order to facilitate access to 99% of his land, using the gateway at 'D'. 14 Counsel for the respondent (Dr S Berveling) succinctly summarised his client's position, during his opening, in these terms (T7, LL 4-39): "With respect to the applicant, … they seem to be putting the cart before the horse. … the applicant wants a public road created at point Y. That's not the essence of these proceedings [which is 'to enforce a condition']… It's a very, very different thing. It might transpire that the applicant seeks a practical result out of these proceedings, but that comes much further down the line … The argument between the parties … is what is the road within the descriptor within condition 5. … That requires an analysis of the condition, bearing in mind … the factual matrix as at 1998 and … the legislation … The condition is about containing a road within a public road reserve. That might have as a ramification access to Lot 1, but that's not what the condition is about … [If] the applicant wants a public road to be created to point Y, then the EP&A Act is we submit not the appropriate vehicle to prosecute … such desire …". 15 He then argued the respondent's case on the basis of both utility and jurisdiction, relying on the High Court's decision in Hillpalm Pty Ltd v Heavens Door Pty Ltd ("Hillpalm") (2004) 220 CLR 472. His primary submission was that the relevant "development", required as a basis for the court to intervene to prevent a breach of the Environmental Planning and Assessment Act 1979 ('EP&A Act'), was the subdivision of Lot 234 which was, in fact, completed by registration of the subdivision plan, on 12 March 1990. Other Evidence 16 Exhibit R1 contains relevant documentation, much of which was provided by the Upper Lachlan Council. Annexed to DA 1412 (fol 3 or 130; see also Exhibit A1, tab 7) was an extract from the local topographical map (Exhibit R1, fol 4). The actual map from that time (printed in 1977), and copies of relevant extracts, are also before the court (as Exhibit R2). Some sort of established "road" can be seen on the map. The applicant contends that it is appropriately categorised (from the legend to the map) as "road loose surface two or more lanes", but the respondent contends that it is more likely a "road loose surface one lane". 17 The applicant's father's solicitors said, in a letter to the General Manager of the Upper Lachlan Shire Council dated 25 November 2008 (fols 58-60), that condition 5 was put in place "to address the concern that the road was not properly formed, was not suitable for frequent vehicular access and was not a legal access way". The access road had not by November 2008 been dedicated to Council, and had not been relocated to the Crown Road Reserve. Such a relocation appeared to be impractical without a further realignment. It was asserted that "the current condition of the physical accessway to Lot 1 can be directly related to the failure of the Council to enforce the relevant consent condition". 18 The Council resolution of 24 November 1988, approving the respondent's subdivision of Lot 234, appears at fols 128-129 of Exhibit R1. At fols 132-133 is a copy of some handwritten notes apparently made by the Planning Officer of the Council when assessing the DA, a further copy of which can be found at fol 130. He or she notes the irregular shape of the proposed allotments, but indicates that they "comply with Council's requirements". The notes go on to say: "The section of road through Lot 2 providing access to Lot 1 does not appear to be contained within any reserve and a condition of development consent should require a reserve to [be] created along the existing road or alternatively, the road relocated to adjacent reserves ". 19 The officer's notes then include a handwritten draft recommendation, which includes (at fol 133 of Exhibit R1) the following draft of a "condition 5", which has been entirely accepted in the Council's resolution: " The existing road through Lot 2 providing access to Lot 1 being contained within a public road reserve and any land being dedicated to Council or alternatively …" 20 The court had the benefit of affidavits from the applicant's solicitor (Michael Edward France), the applicant himself, the applicant's father (Ken Ainsworth), a long-time local resident (Robert McAlister), the respondent's surveyor (Desmond Rowley), and the sole director of the respondent company (Wallace Ashton). A further bundle of documents exhibited to Mr France's affidavit dated 29 April 2010 is before the court as well (Exhibit A1). Many documents are reproduced, some more than once, in both Exhibit A1 and Exhibit R1. 21 At fol 14 of Exhibit A1 is a letter of 1 March 2010 from the respondent's solicitors to the applicant's solicitors, confirming that the effect of Yarrowee's 2010 subdivision (DP 1148483) is "to open a road over two parts of the existing access road", the more easterly one of which ends at point 'D', so that they become public roads under s 9 of the Roads Act 1993. Under s 7 of that Act the Shire Council becomes responsible for their management. The letter concludes: " The effect of all of the above is that whilst there has never been any issue about practical access to Lot 1 DP 80078, any issues about formal access are resolved and there would appear to be no reason for your client to continue with the proceedings". 22 The applicant has been very familiar with the relevant lands since about 1995. Historically, the only vehicular access to Lot 1 has been via the unsealed road, but the house and pasture lands have always been accessible in separate places, 'D' and 'Y'. Seeking access to the whole of Lot 1, only via 'D', would encounter obstruction from "stockyard fences, a water tank, trees, a telegraph pole and the stays to the telegraph pole. There is insufficient room between the house and the front boundary of the property for vehicular access" (pars 6 and 7 of his affidavit). Hence his argument that the expression "existing road … providing access", used in condition 5, means what was, as at 1988, the unsealed road as far as point 'Y'. 23 Ken Ainsworth and Robert McAlister have known these lands very well since 1970. They corroborate the claims that there has always been access at point 'Y' in order to reach dams and grazing paddocks on Lot 1. While the unsealed road "did not stop in front of the garage of the dwelling" (McAlister affidavit, par 4 and Ken Ainsworth's affidavit 28 April 2010, pars 13 and 15), the dumping of additional gravel on the road west of point 'D' "some time after 1988 … may give the (misleading) impression that the unsealed road finishes at Point D. In fact it continues (as it did in 1988) up to and beyond Point Y" (Ken Ainsworth's affidavit of 28 April 2010, par 17). Ken Ainsworth also corroborates the inadequacy of space between the house and front boundary (par 14b). 24 The respondent was incorporated on 5 August 1976 (see Exhibit A1, tab 1). In these proceedings it relies primarily on evidence from its director, Wallace Ashton, and its surveyor, Desmond Rowley (affidavits dated 18 May 2010). 25 Mr Ashton says the respondent purchased the relevant lands in 1986 or 1987 (Exhibit A1, tab 4 suggests registration on 12 November 1987) from Gwen Alders who lived in the house now on Lot 1. The road to the house went to the garage, but there were various tracks in the area, "as is common on all rural properties" (par 5). When he decided to subdivide Lot 234 he became aware of the existence of the Crown Road Reserve and its position in relation to the house. As it ran through the front of it, he instructed his then surveyor Andrew Smith of R J Kell & Co to subdivide on the basis that the Crown Road Reserve could be moved north of the land occupied by the house (see [4] above). 26 In respect of condition 5 he deposes: (i) (in par 11) " It was my understanding that Condition 5 required me to upgrade the road to the house from Hillcrest Road to make it trafficable. The road in this area is difficult to form up in some areas due to the rise and fall of the land. I spent between $15,000.00 to $18,000.00 on road works ensuring that the road was trafficable ". (ii) (in par 13) " I understood the Council's requirements were to make the road good to the south western boundary of Lot 1, [and] I did road works on what I thought was the Road Reserve ... However, in December, 2008 or 2009, I subsequently learnt that the actual road was not within the Road Reserve along its entire length. Relevantly, the actual road was the road used to go to the house, and near the house it was located south of the fence now separating Lots 1 and 2, and stopped outside the garage ". (iii) (in par 22) " After discussions with the Council I instructed my surveyor, Mr Desmond Alfred Rowley of Southern Cross Surveyors in Goulburn, to prepare a Plan of Subdivision which dedicated the existing access road to the Council. Annexed hereto and marked with the letter 'H' is a copy of that Plan of Subdivision. In addition I instructed my surveyor to extend the road beyond the boundary of Lot 1 to a point adjacent to the Applicant's garage. Annexed hereto and marked with the letters 'I' are two photographs showing where that road is situated. The road outside the Applicant's garage is 20 metres wide. (iv) (in par 24.7): " The requirements imposed upon me by the Subdivision approval were that I provide access to his south eastern boundary (sic?). I have done this and more ". 27 In 1990 the respondent sold Lot 1 to Patricia Helen Brown, who on-sold in early 2008 to the applicant. Ms Brown installed an additional water tank on the north western side of the Crown Road Reserve, adjacent to the shearing shed on the respondent's property, and, with Mr Ashton's agreement, plumbed the water tank to the roof of the shed. He says that Ms Brown at no stage raised with him the Crown Road Reserve's relationship to the house, and he deposes (in par 20): "at no time have I been requested to place gates in the fences of the horse yard by the Applicant. I believe that the Crown Road Reserve could be accessed if gates were installed and the Applicant either removed or trimmed some of the trees in that Road Reserve". 28 Mr Ashton concedes there were "tracks around the property, but to describe those as roads is erroneous" (par 25.4). He acknowledges no unsealed road beyond 'D' at any time (par 24.5), and no obligation under the subdivision approval to build a road beyond 'D'. He denies that it is impossible to drive along the last section of the road reserve, and he annexed photographs of the road surface. He says that the unsealed road always terminated at the garage in front of the house, and that it was physically possible to gain entry to the eastern part of Lot 1 from west of the house (par 24.5). The Alders "could drive anywhere over the property they liked" and "in any direction without impediment" (pars 23.9 and 23.10). He says that, in mid and late 1988, the water tank referred to in the applicant's evidence was not in existence. (In fact there are two tanks). He suggests (in par 23.11) that: "… there is sufficient room to traverse the site of the Crown Road Reserve provided 2 gates are installed in the horse yard. It may be necessary for the Applicant to move the water tank erected within the Crown Road Reserve. I believe that the telegraph pole and stay are 12.2 metres from the edge of the Crown Reserve Road. In addition some trees may need to be removed or trimmed to allow access. I also say that there is sufficient room to drive between the garage and the western fence of the Applicant's property. This would require the Applicant to clean up the property". 29 In response to Mr McAlister's affidavit, Mr Ashton says (par 25.4): "The unsealed road finished at the garage adjacent to the dwelling. There were other tracks around the property but to describe those as roads is erroneous. The plan annexed to the Affidavit does not show the location of any unsealed road, dwelling, carport and gate, so I am unable to comment in respect of the plan". 30 Mr Rowley has been a registered surveyor since 25 September 1964. He has extensive country experience. He was not involved in these present issues before 1989, when he was instructed to prepare a plan of subdivision which would ensure that the existing house was on Lot 1, and the shearing shed on Lot 2 (par 4 of his affidavit). His plan dated 27 November 2007 (Exhibit R1, fol 98) was accepted for the 1990 subdivision. The boundary between Lots 1 and 2, as proposed, and as depicted on that plan, generally followed paddock fence lines within Lot 234. In his letter to Council dated 3 November 1988 submitting his DA (Exhibit R1, fol 134), Mr Ashton confirmed that the boundary between the subdivided lots should follow "road boundaries and/or existing fence lines". 31 Mr Rowley deposes (in his affidavit of 18 May 2010, par 7): "Relevantly, the actual road leading to the house was located along what is now the south-eastern (sic?)boundary of Lot 1, and finished at a point adjacent to the garage adjoining the house approximately half-way along that south-eastern boundary. The gravel road leading towards the house was a main distinguishing feature of that part of the land. The gravel road had been constructed by the placement of gravel on the land, to form a road base. There was also a road leading to the shearing shed and yards to the west of the house. On the southern side of the house, extending in a north-easterly direction beyond the gravel road, there were wheel tracks continuing on in a north-easterly direction along the fence line along what is now the south-eastern boundary of Lot 1 and then in a northerly direction towards the Reserved road situated north-east of the house. In contrast to the gravel road, there had been no construction work in the area of the wheel tracks. In particular no gravel or any other road base had been placed on the land where the wheel tracks were. I would describe these wheel marks as barely forming a track – I could not describe those wheel tracks as forming a road. There were also various other tracks in the vicinity of the house". 32 He opines (in par 10) that "to gain proper access through the Road Reserve the water tank and one or two trees and part of the fences separating Lots 1 and 2 (now Lot 20) across the Road Reserve would have to be removed. The fences could be reinstated with gates". He also opines (in pars 7 and 15) that the "road" never extended beyond point 'D'. 33 He later (in October 2009) did the plan of subdivision to formally dedicate the road being used through Lot 2 as a public road. He deposes (in par 11) that: "…the use of the Crown Reserve Road within Lot 2 was not practical over its entire length – due to land features. The Respondent instructed me to dedicate the existing traffic surface as a road. In addition the Respondent instructed me to extend the road beyond the south east boundary of Lot 1 to a point adjacent to the Applicant's garage. Following these instructions I prepared a Plan of Subdivision dedicating the road 20 metres wide to a point east of the entranceway to the applicant's garage ." (That plan of subdivision, on registration, converted the respondent's land to Lot 20 DP 1148483). 34 Mr Rowley opines (in par 14) that the power pole and the line and the stay "do not cause any problems with access along the Reserve Road to the remainder of Lot 1". He has "measured the distance between the pole and the western side of the Road Reserve and found that 12.2 metres width is available. [T]here is a substantial pine tree located to the west of the house" (par 16). If it were "removed or trimmed there would be sufficient room for the Applicant to access the Crown Road Reserve via the actual gravel road". 35 In reply to the evidence of Messrs Ashton and Rowley, Ken Ainsworth deposed, inter alia, on 20 May 2010 (par 7), that access via 'D' for "a large stock truck would require the removal of both fencing and several large trees on both the Applicant's Property and the Respondent's Property". Consideration 36 Section 123 of the EP&A Act provides that any person may bring proceedings in the court for an order to restrain or remedy a breach of the Act. Section 76A requires that development be carried out in accordance with the consent and the instrument under which it is granted. Subdivision of land is "development" within the EP&A Act. All three subdivisions relevant to this case were carried out by the respondent, who still owns and occupies Lot 2 (20), through which access was/is to be provided to Lot 1. 37 In those factual circumstances there is no substance in the respondent's submission that these proceedings are "inappropriate" according to the principles laid down by the High Court in Hillpalm, at pp 487-489 commencing at [41]. Any acknowledgement or action on the part of the Council suggesting full compliance with the conditions of consent does not preclude this court finding the respondent to be somehow in at least partial breach of condition 5. 38 The relief sought in the class 4 application is as follows: "1 . A declaration that the defendant has carried out development, namely the subdivision of land, for which development consent was required, otherwise than in accordance with development consent in breach of the Environmental Planning and Assessment Act 1979. 2. An order that the defendant take all necessary steps to comply with condition 5 of development consent DA 1412 granted by Mulwaree Shire Council on 25 November 1988. 3. In the alternative, such other order as the Court sees fit to remedy the breach of the Environmental Planning and Assessment Act 1979. 4. An order that the defendant pay the plaintiff's costs of these proceedings". 39 DP 1148483 (Exhibit A1, tab 13) makes clear that the "existing road through proposed Lot 2 providing access to proposed Lot 1" is, indeed, now contained within a Public Road Reserve and land dedicated to Council. However, the dispute continues as to whether that road now contained within the Public Road Reserve dedicated to Council, comprises "all of the road the subject of condition 5" – it runs only to 'D' and not to 'Y'. 40 The resolution of that dispute requires the court to construe condition 5 of the consent. 41 Under the principles laid down by the Court of Appeal in House of Peace Pty Ltd v Bankstown City Council (2000) 45 NSWLR 498, at 507-8, [37] and [41], any condition of consent is to be construed according to its written terms, construed in context, having regard to its enduring function (emphasis mine). The enduring nature of the consent encourages "a fair but liberal reading of the rights it confers upon a landowner who may spend considerable money acting upon it and is likely to wish to sell the land sooner or later" (House of Peace at [41]). See also Auburn Municipal Council v Szabo (1971) 67 LGRA 427, especially per Hope J at 434. 42 The "written terms" involved here (condition 5) deal with the road "providing access to proposed Lot 1", and the "context" of the consent itself is the subdivision of Lot 234 into two sizeable rural allotments (of 174-185ha each), with a Council requirement that the subdivider formalise the "existing road … providing access to … Lot 1"; and the "enduring function" of the particular condition is to ensure that that road is contained into a Public Road Reserve. The provision of practical access to Lot 1 was not in doubt, but its legal status was. The concept of access to Lot 1 arises as an issue in itself only through the descriptor used in condition 5, namely "the existing road". 43 The respondent submits that condition 5 did not specify any particular route to be followed to Lot 1, nor any particular point at which access to Lot 1, by use of the road, was to be provided. The respondent further submits that, factually, the road as now constituted (to 'D') comprises all of the "existing road" within the meaning of that term in condition 5. 44 The respondent's case is that the most recent subdivision puts beyond argument its completion of the requirements imposed on it by condition 5 of the 1988 consent, and any alleged difficulty of access to Lot 1 which may remain is the concern only of the applicant. 45 The respondent relies on the definition of "road" in the Local Government Act 1919 ("LG Act"), under which the Mulwaree Planning Scheme Ordinance (Exhibit R1, tab 2) had been made, to argue that only the gravel based "road", as distinct from any "wheel tracks", fits that statutory definition. 46 Those two types of carriageway are distinguishable on the topographical map (Exhibit R2), and the respondent says that the road referred to in condition 5 is the gravel based road and not the wheel tracks. The definition of "road" in the LG Act includes "road, street, lane, highway, pathway or thoroughfare". The term "thoroughfare", unlike "pathway", is not specifically defined in the LG Act, and the court should give it its "normal" meaning. In this respect, the Macquarie Dictionary defines it as "a road, street, or the like, open at both ends … [or] a passage or way through", very much as it defines "road", namely as including "the track on which vehicles etc. pass, as opposed to pavement". The road does not have to be lined with gravel, or otherwise surfaced. 47 The evidence in this case makes it clear that the relevant "road" to and past the house on Lot 1, towards the quarry, creek etc, meets both definitions. 48 The respondent took the court to s 333 of the LG Act, and the Court of Appeal decision in Warringah Shire Council v Rippledeen Pty Ltd and Anor ("Rippledeen") [1973] 2 NSWLR 124. Section 333 makes "the existing and proposed means of access to each separate parcel" one of many considerations for a Council to take into account in approving a subdivision, whether that subdivision involves the opening of a road or not. Rippledeen concerned another consideration in that list – "the length of road frontage of each separate parcel" – and the Court of Appeal held that such considerations did not have to have a factual basis before the Council can consider the question of "sufficiency or suitability" for subdivision. As the headnote records, at 124: "(2) If the legislature had intended that no land be subdivided unless each parcel in the subdivision had a frontage to a public road, it could, should, and no doubt would, have said so in express terms. The matters to be con­sidered by a council before approving a subdivision of land should not be left to inference or assumption." 49 (In Rippledeen, see the discussion in the judgment of Jacobs P, with whom Reynolds and Bowen JJA agreed, at 126-127, overturning Hurstville Municipal Council v Hall [1972] 1 NSWLR 542). 50 I find it difficult to see how Rippledeen can assist the court in this case. Whether or not the Council had to or did consider access issues, by virtue of s 333, does not seem much to the point when it was clearly established that at the time of the subdivision in 1988, the proposed Lot 1 had access (to and from a public road, and through Lot 2), via the unsealed road/track, and the Council clearly decided that the then existing access arrangements should continue, but be formalised. 51 The entrance at 'D' satisfied the need for access to the house, but access to the major area (over 99%) of Lot 1 had long been obtained by using the access at 'Y'. Old maps show a road going beyond 'Y'. Several witnesses with first-hand knowledge predating 1970, including the totally independent Mr McAlister, say that it always went to and beyond 'Y'. The court is satisfied that vehicles regularly travelled on the unsealed road to point 'Y' as at 1988, and since, and that physical impediments have long prevented access to the pastureland part of the applicant's now property from point 'D'. 52 There is no authority for the construction of condition 5 to limit access to one point only, namely point 'D'. Such a construction requires the addition of words to the condition, so that it would read "that part of the existing road through proposed Lot 2 providing access to proposed Lot 1 at the carport being contained within a Public Road Reserve". None of the words necessary for such a construction presently appear in the condition. 53 As the meaning of the condition is clear on its face, additional words should not be inferred. The ordinary literal meaning of the expression "existing road … providing access to … Lot 1" suggests the extent of road accessing Lot 1 as at 1988, not just part of it – ie it suggests the road to 'Y', rather than to 'D'. 54 When condition 5 was imposed, Lot 1 was to become a separate rural property used for grazing, upon which a house existed at one corner, and continued access at a point other than 'D' was clearly necessary to enable vehicles to reach the rural area of it, albeit that an extra access existed for the house. Finding 55 I have concluded that the applicant is correct in his construction of the consent to mean that the road should reach the access at 'Y'. His case is compellingly supported by the evidence. Discretion 56 The respondent submitted that the court should refuse relief in the exercise of its discretion, on the basis that any non-compliance by the respondent with condition 5 would be held to be purely technical, and was cured by the 2010 consent, and by reason of (1) the applicant's delay in bringing these proceedings, and (2) the Council's acceptance in 1990 that the respondent had satisfied the conditions of consent. 57 The applicant should not be denied relief because Ms Brown as a long time owner of Lot 1, took no action, nor because the applicant did not thoroughly check for compliance at the time of his purchase from her. The Council's conclusion in 1990 was clearly wrong – nothing was really done until 2010 to fulfil condition 5. 58 Once the applicant became aware of his problem, he obtained legal advice, tried to get Council to enforce the condition, and opened negotiations with the respondent before commencing these proceedings. Conclusion and Orders 59 The application for relief should be upheld. The declaration sought in the application can properly be made, and the respondent should be ordered to comply with the condition. 60 Extension of the road to 'Y' is not achievable by the respondent acting alone – the Council and the Department of Lands have roles to play, but they are not before the court and cannot, in these proceedings, be ordered to comply. 61 It is appropriate, therefore, that the parties should now formulate an appropriate order, or a set of orders, to cover the respondent's obligation to extend the road to point 'Y'. They should also have "liberty to apply". 62 The question of costs has not been argued, but as the applicant has been completely successful, he should have an order for costs in his favour, on the usual terms, unless there are some relevant arguments available to the contrary and/or in support of a different order. 63 The orders of the court are, therefore, as follows: 1. The court declares that the defendant/respondent has carried out development, namely the subdivision of land, for which development consent was required, otherwise than in accordance with development consent, in breach of the Environmental Planning and Assessment Act 1979. 2. The defendant/respondent is ordered to take all necessary steps to comply with condition 5 of development consent DA 1412 granted by Mulwaree Shire Council on 25 November 1988. 3. The parties are directed to bring in within fourteen (14) days Short Minutes of Order setting out precisely what steps are required to satisfy, and/or what particular action by the defendant/respondent will satisfy, Order 2. 4. The defendant/respondent is ordered to pay the plaintiff/applicant's costs, on a party-party basis, as agreed or as assessed according to law, unless either party files a Notice of Motion within twenty-one (21) days seeking different order(s) in respect of the payment of costs. 5. The parties have liberty to apply on seven (7) days notice. 6. The exhibits are returned. 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.