Bruce Kerr Pty LTD v Gosford City Council [1988] NSWLEC 140

NSW Caselaw

Document text

Land and Environment Court of New South Wales

CITATION : Bruce Kerr Pty LTD v Gosford City Council [1988] NSWLEC 140 APPLICANT Bruce Kerr Pty Ltd PARTIES : RESPONDENT Gosord City Council FILE NUMBER(S) : 20451 of 1987 CORAM: Holland J KEY ISSUES: :- LEGISLATION CITED: Land and Environment Court 1979 Local Government Act 1919 Kogarats Municipal Council v. Kent (1981); Strathfield Municipal Council v. Drew (1985); CASES CITED: Jurkovic v. City Of Port Adelaide (1979); Doran Developments Pty. Ltd v. Newcastle City Council (1985); Brimbella v. Mosman Municipal Council (1985); Parramatta City Council v. Peterson (1987) DATES OF HEARING: DATE OF JUDGMENT: 09/29/1988

APPLICANT Donnellan LEGAL REPRESENTATIVES: RESPONDENT Mr McKenzie

JUDGMENT:

HIS HONOUR: This is an appeal to the Court by Gosford City Council (appellant) under s.56A of the <A href="http://www.austlii.edu.au/au/legis/nsw/consol_act/laeca1979274/">Land and Environment Court Act, 1979</A>, against orders made by the Senior Assessor on 2 March <A href="http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/nsw/NSWLEC/1988/72.html?query=%7E%201988#disp2" name=disp3><IMG alt="<<" border=0 src="Bruce Kerr Pty Ltd v Gosford City Council [1988] NSWLEC 72 (29 September 1988)_files/contextup.gif"></A>1988<A href="http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/nsw/NSWLEC/1988/72.html?query=%7E%201988#disp4"><IMG alt=">>" border=0 src="Bruce Kerr Pty Ltd v Gosford City Council [1988] NSWLEC 72 (29 September 1988)_files/contextdown.gif"></A> in a Class 2 application by Bruce Kerr Pty. Limited (respondent). The Council claims that the Senior Assessor made certain errors of law in reaching his decision. It is necessary to go back to an earlier application to the Court by Bruce Kerr Pty. Limited That company had brought Class 1 proceedings in 1985 (No. 10291 of 1985) pursuant to the <A href="http://www.austlii.edu.au/au/legis/nsw/consol_act/epaaa1979389/">Environmental Planning and Assessment Act, 1979</A>, to appeal against certain conditions attached to an approval given by the Council on 15 June 1984 in connection with a proposed subdivision of land. Those proceedings were disposed of by an order of the Court made on 28 August 1985 amending certain of the conditions. The company brought these present Class 2 proceedings on 2 September 1987 under s.341 of the Local Government Act, 1919, on the ground that the Council had neglected and delayed to give within the statutory period a decision with respect to an application for approval of plans lodged in connection with the same proposed subdivision. They were heard by the Senior Assessor over a period of six days in November 1987. The first question that arises on this appeal concerns the nature of the application that was before the Senior Assessor. When the case was before him the Council contended that the application of the respondent to which the Council had given its conditional approval on 15 June 1984 and to which, on appeal, the Court's order of 28 August 1985 amending the conditions had been made was an application for approval of a subdivision and that, consequently, the Council's and then the Court's conditional approvals were approvals of a subdivision. One of the conditions of both approvals, to be more fully set out later, was that minimum levels of filling of the allotments were to be 300mm. above the calculated flood level "as approved by the City Engineer". In the proceedings before the Senior Assessor it was claimed that the City Engineer had neglected to make a decision with respect to the requisite approval to be given by him and the Court was asked to give that approval. The Council contended before the Senior Assessor that, for the above reasons, the application before him under Class 2 was incompetent and he had no jurisdiction to entertain it, firstly, because, whilst it professed to be a Class 2 appeal under Part XII of the Local Government Act, 1919, seeking approval of a subdivision, it could not be so as such an application had already been made and dealt with by both the Council and the Court and the right of appeal was spent and, secondly, whilst it professed to seek approval of the Court to proposed subdivision plans, it was really seeking to redress the City Engineer's alleged neglect of duty to decide the matter for his approval and so was in the nature of an application to the Court for a mandamus and that would have to be a Class IV application beyond the Senior Assessor's jurisdiction. It was also submitted that it was not open to the Court, whether by Assessor or Judge, to usurp the function committed to the City Engineer by the condition in question. The Senior Assessor rejected these submissions, holding that the approvals given by the Council and the Court had been only development consents and that the current appeal to the Court was against the Council's neglect to decide an application for subdivision approval arising out of the Court's development consent given by its order of 28 August 1985. Although the same grounds were repeated as grounds of appeal in the Notice of Motion instituting the present appeal, those as to jurisdiction (Nos. 1, 2, 3, 4 and 7) were abandoned on the first day of the hearing. The Council changed horses. Mr. Davison, for the Council, informed the Court that the Council accepted the Senior Assessor's judgment that only a development consent had been given by the Council on 15 June 1984 and the Court's order of 28 August 1985. He said that the Council would proceed on the footing that only a development consent came into force by the Court's order of that date. On that basis, the Council then sought to impugn the Senior Assessor's judgment and order on the following main grounds:- 1. Certain plans furnished to the Council on 30 October 1987 showed levels of fill on the subdivision proposed by those plans that were different from levels shown on the plans lodged prior to the commencement of the proceedings on 2 September 1987. The proceedings were based on neglect to give a decision within 40 days prior to 2 September 1987; but the new plans, lodged after that date, constituted a new application which required a decision by the Council thereon or the lapse of 40 days before a valid appeal to the Court could be made. The Senior Assessor treated the new plans as representing the subdivision application for which approval was being sought and adopted them by reference in the order that he made although they had been lodged with the Council after the proceedings had commenced. He had, so it was argued, no jurisdiction to do so. 2. The application for which approval was sought was not a valid application for subdivision approval in that it failed to comply with the requirements of Ordinance 32, cl.2(c)(vii), (viii) and ((ix)) which provide that the plans shall show as follows:- (vii)the shape and approximate dimensions of each separate parcel in the subdivision (viii) the existing and proposed means of access to each separate parcel. (ix) the amount of land proposed to be provided as a public reserve. Therefore, it was contended, the Senior Assessor had no jurisdiction to approve it. 3. The order made by the Senior Assessor consented to a subdivision as indicated in plans which fixed levels of fill without the approval of the City Engineer as required by the condition of the development consent earlier mentioned. It was submitted that it was not open to the Senior Assessor to substitute his approval for that of the City Engineer and to purport to do so was beyond his jurisdiction. 4. The Senior Assessor expressed the view that although a monetary contribution for certain external works might properly have been required under s.94 of the <A href="http://www.austlii.edu.au/au/legis/nsw/consol_act/epaaa1979389/">Environmental Planning and Assessment Act,</A> 1979, at the development consent stage, the Court had no jurisdiction to impose such a contribution as part of a subdivision consent. It was submitted that this was an erroneous view of the law. Before dealing with the Senior Assessor's reasons and the parties' submissions, it is convenient to refer to some of the background material that was before the Senior Assessor. The original consent was by letter dated 15 June 1984 from the Council to the respondent. I quote the relevant parts underlining some important words:- "Development Application No. 4676. Proposed Subdivision of Lot 2, D.P.539861, Lot 8, D.P. 512665, Land in D.P. 432634 and Lot 10, D.P.371447 Cowper and Neera Roads, Umina.________________________________________________ Dear Sirs, The above-mentioned Development Application was placed before the Council at its meeting held on 12th June, 1984. I am pleased to advise that Council approved the application for the subdivision of (re-describing the above land) into two hundred and fiftyfive (255) allotments in seven (7) stages plus public and drainage reserves, subject to the following conditions:- l.(a) Compliance with the terms of the amended deed of agreement. 2. Submission of engineering plans for the following to be in accordance with Council's specifications and approved by the City Engineer:- ........ (d) construction of water supply and sewerage mains. ........ 3. Completion of construction in accordance with approved engineering plans and specifications to incorporate: (a) the design details and method of construction of the subdivision, site filling and other related matters be specified by an experienced Geotechnical Engineer and verified by that Engineer before commencement of construction (b) subdivision works proceed in stages with differing design criteria being adopted for filled areas and natural areas of the site. ........ 11. Filling of all allotments to the Council's requirements. Minimum level to be 300mm above the calculated flood level as approved by the City Engineer. All fill to be graded to eliminate the ponding of water. 14. On completion of the engineering works a Work as Executed plan shall be submitted before the linen plans are certified.... 18. Submission of a final linen survey plan, together with any instrument creating an easement and restriction as to user pursuant to Section 88B of the Conveyancing Act. 20. Dedication of the following parcels as public reserve: (a) Iluka Lagoon (b) 2000m2 of land fronting Cowper Road extension (c) Land shown on the plan west of Neera Road (about 1.06 ha). (d) Land shown on the plan north of Myola Road (about 2.5 ha). 22. Dedication of the land indicated on the plan as Drainage Reserve. .........." The plan of subdivision to which the above consent applied and referred was identified by its having been stamped with Council's official approval stamp as "Development Application No. 4676". It was signed and dated 15 June 1984. As to the requirements of Ordinance 32, cl.2(c)(vii), (viii) and (ix), the plan would appear to comply in every respect and the contrary was not argued by counsel for the appellant. It contains notations which must be taken to have been approved. Note 5 reads "The project is to be stage developed". In the proceedings before the Court in No. 10291 of 1985 the respondent's development application and the abovementioned consent and stamped plan were annexed to the application. The development application, although on a form describing it as an application for development consent, described the development proposed as a subdivision of the land into 255 lots. The Court's order amending certain of the conditions (which did not include any quoted above) began with the words, "The development consent dated 15 June 1985 be confirmed with the following amendments to the conditions therein:" In dealing with the objections to jurisdiction made to him as to the nature of the application, the Senior Assessor said at p.3 of his judgment:- "I find the arguments raised by the applicant more acceptable than those of the respondent. Thus in relation to this initial hurdle, I have concluded that the Court does have power to deal with this matter in Class II of its jurisdiction in that, whether it was the intention of the Council or otherwise, a development consent together with a subdivision consent did not issue in the first instance: Certainly this was not provided for in the consent issued by the Court in 1985. Thus I am satisfied that a development consent only was issued with the intention to have the applicant seek subdivision approval on a progressive basis in relation to the various stages of the Development Consent." The above finding is not now challenged but is, as indicated above, accepted by the Council. The appellant's objections as to form were directed at the plans furnished to the Council on 30 October 1987 which, it was said, were adopted by the Senior Assessor as representing the application he had to decide and as indicating the subdivision to which the Court's approval was given. Those plans were admitted and referred to as Exhibit 4 before the Senior Assessor. On the question of form the Senior Assessor said, at p.3:- "In regard to the respondent's submission that, if the application before the Court is indeed an application under Part XII A (sic) of the Local Government Act, then it fails to comply with cl. 2 of Ordinance 32, again I am not disposed to accept the arguments put. I believe it is clear enough from the documents provided to the Court, in various exhibits, that in relation to the first stage of the development there is sufficient information provided in relation to: * The shape and approximate dimension of each separate parcel in the portion of the subdivision sought to be approved. * The existing and proposed means of access to each separate parcel. * The amount of land proposed to be provided as public reserve. * The residue of the subdivision subject to development consent has been shown separately." In my opinion, the Senior Assessor made no error of law in arriving at that conclusion having regard to the history of the case and the conduct of the parties in the litigation. The record of the proceedings shows that there was lodged with the application before the Senior Assessor a large number of plans, drawings and documents which had been furnished to the Council long before the proceedings were commenced. They were lodged upon the footing that the overall plan of subdivision, a plan fully complying with Ordinance 32, had been lodged as the original development application, had been approved by the Council in 1984 and adopted by the Court in 1985. The approval which then subsisted sanctioned expressly the carrying out of the subdivision in 7 stages. The intention was, as the Senior Assessor said, "to have the applicant seek subdivision approval on a progressive basis in relation to the various stages of the Development Consent". As the conditions indicate, engineering plans for works overall and works in various stages had to be submitted for approval. Some of these had been submitted and approved and, in fact, sewerage and water supply works had been both approved and carried out. Specialist reports had been furnished to the Council, including, in 1984, a hydrographic study (to enable the Council to determine the flood level for 1 in 100 year return frequency and from that to approve the fill levels in the area of the subdivision) and, in June 1986, a Major Drainage Strategy Study by a firm of Consulting Engineers. There was evidence that the Council's policy was to adopt the 1 in 100 year flood level for residential development with the result that for the subdivision in question the level of filling would be 300mm above that level. Then in 1986, in or after August of that year, a plan and comprehensive set of drawings and reports were submitted for approval. The date August 1986 comes from the plan and drawings No. 8622 a copy of which appears in Ex. 4. A Memo. between Council officers dated 18 August 1987, which was Ex. 8 before the Assessor and Ex. 5 before me, indicates that the plan, drawings and reports were submitted to the Council for approval in October 1986. The cover sheet for this plan and drawings was labelled "Land Subdivision at Umina Beach" and listed the same parcels of land as in the development consent. The plan No. 8622 was labelled "Project. Proposed Residential subdivision Stages 1 & 2". It showed a readily identifiable section of the total plan of subdivision in the plan stamped with the Council's Development Consent on 15 June 1984 to which I have already referred. The section shown contained the layout of lots and roads and proposed finished contour levels. It contained the notation "l:l00 year Flood Level RL3.7". The accompanying drawings showed engineering detail of road and drainage works to be carried out in that section. In the above Memo. of 18 August 1987 between Council officers there appears the following:- "(d) Request for Extension of Time The subdivision approval issued by the Land and Environment Court will expire on the 28 August 1987 and the developer has requested an extension of time for two (2) years under Section 335 of the Environmental Planning and Assessment Act outlining the following:- "i) Engineering plans for the construction of roads and drainage submitted to the City in October 1986 have not been released to me. Although Council's engineering staff have indicated that they are satisfactory. ii) Engineering calculations and reports concerning downstream drainage and flood levels submitted in October 1986 to assist Council to determine the height of filling have not resulted in a determination. iii) Engineering plans and specification required to be submitted to other authorities have been delayed in transmission and decision beyond my control." The internal engineering roadwork plans for the subdivision as submitted in October 1986 are satisfactory but release of these plans is dependent upon final levels being set as a result of the assessment of drainage options. It is current practice to grant a one year extension of time to developments after the submission of satisfactory reasons. Because of the circumstance outlined above there is no objection to an extension of time until 28 August <A href="http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/nsw/NSWLEC/1988/72.html?query=%7E%201988#disp3" name=disp4><IMG alt="<<" border=0 src="Bruce Kerr Pty Ltd v Gosford City Council [1988] NSWLEC 72 (29 September 1988)_files/contextup.gif"></A>1988<A href="http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/nsw/NSWLEC/1988/72.html?query=%7E%201988#disp5"><IMG alt=">>" border=0 src="Bruce Kerr Pty Ltd v Gosford City Council [1988] NSWLEC 72 (29 September 1988)_files/contextdown.gif"></A>." There was other material also before the Senior Assessor but, in my opinion, the foregoing was enough for him to found a conclusion that all information necessary to satisfy Ordinance 32, cl.2 was before the Council at the time the approval for the original plans contained in Ex. 4 was sought in October 1986. To the extent that it was not in the Stage 1 and 2 section plan and drawings, it was already in the original subdivisional plans approved by the Council in 1984 and the material subsequently furnished to the Council in furtherance of the subdivision project up to October 1986. Apart from there having been evidence before him to support his finding on this matter, it was, in my opinion, not open to the Council before the Senior Assessor or before the Court on this appeal to contend that there were deficiencies in the forms required by Ordinance 32. Until the hearing of this appeal it was the Council's position that subdivision approval had already been granted for the whole of the land of which that shown in the plan in Ex. 4 was a part being a section consisting of two stages of the overall plan. The Council's contentions before the Senior Assessor were that such subdivision approval had been granted and was subsisting. The subdivision approval which the Council claimed had been given contemplated and approved development in stages and called for subsequent submissions of plans and detail for each stage being proceeded with. It was totally unnecessary for the purposes of the Act, Ordinance 32 and due consideration to be given to a stage proposal in the present case for the plans originally approved as subdivisional plans to be resubmitted. It is apparent from the Memo. of 18 August 1987 that the original approved plans were sufficient for dealing with the plans for which approval was sought in October 1986. There was no evidence that the Council ever called for or needed any fresh plan of subdivision. In my opinion the Council is estopped by its conduct both before and at the hearing before the Senior Assessor from asserting that the application before the Senior Assessor, treated as an application for subdivision approval, was invalid for failing to comply with Ordinance 32. The Council argued incidentally that the application as represented by the plan in Ex. 4 was invalid because the plan did not show as a separate lot the whole of the remainder of the subject land not the subject of the stage development. It was contended that without this the plan could not be registered even if approved. In the circumstances here, it was not essential for the residue to be shown by the plan in Ex. 4 when the residue was already able to be established from the earlier approved plan. It would be sufficient to show it in the linen plan when presented for the Town Clerk's certificate under s.327 of the Local Government Act. Moreover, conditions 14 and 18 of the development consent contemplated that a "Work as Executed" plan would be submitted before submission of a "final linen survey plan" and that the plan last mentioned would complete the procedure. There is therefore no basis for saying that the Senior Assessor was in error for treating the Ex. 4 plan as valid when it failed to show the residue of the land as a separate lot. It was also argued that the plan in Ex. 4 was deficient for not showing how the residue was to be dealt with, what access was proposed to and through the residue and what land was designated for public reserves. The proposals in all these respects were indicated on the earlier plans to which I have referred. No public reserves were proposed within the Ex. 4 area. Those proposed for the whole subdivision were in other parts of the land and were shown in the original plan approved. The argument really is that to form the basis for a valid approval of the subdivision of land the plan submitted for approval must always be in all respects complete within itself and cover the whole area to be eventually subdivided even if approval is being sought for but one stage of a multi-stage development. In my opinion, the question is whether the Council had been furnished with all the plans, information and other material required by law and necessary for a proper decision finally to be made in respect to a proposed subdivision of a particular parcel of land and it is not essential, at least before the linen plan is lodged, for everything to be in one plan or document. Therefore, I reject these criticisms of the Senior Assessor's judgment. In so far as it was sought to rely on the plans approved or the terms of and conditions imposed by the development consent granted by the Court on 28 August 1985, counsel for the appellant argued that the respondent had to show that that consent was subsisting and had not elapsed by effluxion of time on 28 August 1987: s.99 <A href="http://www.austlii.edu.au/au/legis/nsw/consol_act/epaaa1979389/">Environmental Planning and Assessment Act, 1979</A>. It was submitted that the respondent had failed to establish that before the Senior Assessor. The point had been taken before the Senior Assessor and in the Grounds of Appeal here: ground 4. It was abandoned at the outset of the appeal but resurrected to counter arguments by the respondent that looked for support to the existence of the development consent. The Senior Assessor rejected the appellant's contention in his judgment (at p.4) as follows:- "With regard to the final submission made by the respondent, that there is not a current development consent, I find this impossible to sustain because it appears that, since the development consent was granted, work has been undertaken on the site associated with installation of services and roads and further this has been on the basis of detailed engineering drawings earlier approved by the Council." The only error of law suggested in regard to this finding was that there was insufficient evidence to justify it. In my opinion that is not so. There was evidence from an officer of the Council that, subsequently to and in pursuance of the development consent, the respondent had applied for and been given approvals by the Council of plans for sewerage and water supply works in the proposed subdivision including the type of filling to be used in connection therewith (Transcript 6 November 1987, pp.7, 16). A witness called by the Council who lived in the vicinity was lead to give evidence in chief of works carried out by the respondent in filling the northern part of a swamp area in the subdivision over a period of 6 to 8 months prior to his giving evidence. That would be March to May 1987. He also gave evidence that there had been intensive filling works carried out from early to mid 1987 on the northern, southern and eastern perimeters of the area and he produced photographs in support which the Council tendered (Transcript 9 November 1987, p.3). A Consulting Engineer called by the respondent commented upon the works referred to in the evidence last mentioned and shown in the photographs and explained their nature and purpose (Transcript 10 November 1987, p.11). He also referred in his evidence to filling placed in connection with the sewerage and water supply approvals (Transcript 10 November 1987, p.13) and said that a considerable amount of money had been spent by the respondent on the sewerage works approved by the Council (Transcript 1987, p.28). He was not cross-examined on that evidence and it was not challenged by any evidence adduced by the Council. At the very end of the hearing before the Senior Assessor there was a discussion between the solicitors appearing then for the parties and the Senior Assessor as to what point the Council was really seeking to make in some written submissions on the matter, the solicitor for the respondent remarking that the Council had not raised the question throughout its case and that if it was to be pressed as an issue he was in a position to adduce a great deal more evidence as to the works already carried out by the respondent pursuant to the development consent. The solicitor for the Council then explained that the only reason he raised the question was that he could not recall the works done having been related by the evidence to the development consent in question. He suggested that they might have been done pursuant to the deed referred to in condition 1(a) of the development consent (quoted above) or to an earlier development consent that was given in 1974. (The deed and an amending deed are in evidence on this Appeal and are dated 18 December 1972 and 1981 respectively). The following passages appear in the transcript (25 November 1987, pp.6-7):- "DONNELLAN: Yes I do remember my learned friend putting that and my recollection about this and the reason that I put the point in the submissions was that I do not remember him associating the works which were referred to with a particular development consent upon which this subdivision consent follows. SENIOR ASSESSOR: But there is only one DA, is there not? I mean that's common ground isn't it that whether the applicant says it's a DA without a subdivision or the council says it's a DA with a subdivision and then this other argument becomes an element of the subdivision there was no argument that it was the DA we were dealing with in the argument about the conditions. DONNELLAN: Yes but the question which I think was not cleared up was whether the filling was done pursuant to the deeds which are in evidence and to the development consent that was given in 1974 or whether the works were done pursuant to the development consent which was given in 1984-1985, that was the point of my submission there that there was no attachment of the works which were quite plainly done to a particular development consent and it's the question of which development consent this subdivision hangs upon. I will say this Mr. Senior Assessor that I do not put that forward as the strongest point of my arguments. SENIOR ASSESSOR: That helps me somewhat, I think in reality it's something that I am just going to have to deal with as an issue and I suppose that will mean inevitably that it represents an appellable issue in that it has been raised by both of you and as well as you can dispose of. I think I shall just have to grapple with it and take it on board. DONNELLAN: Well the thing that one is Mr. Senior Assessor that I think it depends on what you find the facts were to be that were given and I certainly don't dispute that my learned friend did advance some evidence that there were substantial works done, I don't deny that for a minute and point no. 6 really has a very narrow compass indeed, it's just a question of whether the works that were done were attached to the development consent upon which he relies and of course one of the difficulties that we face in formulating these is that to a large extent we do have to rely on our memory not having the benefit of the transcript and as I say Mr. Senior Assessor it's not the strongest point of my case and I don't put it forward as such, I put it forward to cover the point. SENIOR ASSESSOR: I certainly won't be getting a transcript I rely on and it's almost every instance and notes and my recollection as I say it seems to me I will just have to dispose of this particular issue as one of the many issues in the matter." In my opinion the evidence I have mentioned amply supports a conclusion that the works in question had been carried out in pursuance of the development consent granted by the Court in August 1985 and within the period of two years allowed by s.99(2)(a). There being evidence before him on which the Senior Assessor could find as he did and conclude that the development consent was subsisting at the relevant time, the Council's contention on this matter must be rejected. Turning to the ground of appeal that I listed above as the first ground, namely, that the plans furnished to Council on 30 October 1987 and adopted by the Senior Assessor constituted a fresh application made after the proceedings began, the judgment appealed from contains the following, at pp.3-4:- "Secondly, in relation to the respondent's contention that the plans originally submitted to the Council have been substituted by plans that are so significantly different, in terms of flood plain level, that they should constitute a fresh application, again I do not accept this submission. It seems clear enough that the particular level at which the 1 in 100 year flood was anticipated to occur, was contemplated as being included in the drawings associated with the individual stages of development." When the course of the proceedings is examined, the appeal in relation to this finding is, I think, untenable. I have already mentioned that there was lodged with the application that came before the Senior Assessor a large number of plans, drawings and documents which had been furnished to the Council before the proceedings were commenced, including the plan and drawings submitted in October 1986 a copy of the original of which is in Ex. 4. I mentioned that in the original the relevant flood level was noted as "R.L.3.7". The only difference from the original print is that in the documents in Ex. 4 there is hand marked and noted in red a number of amendments. The cover sheet is marked in red, "Notations Amended 30.10.87". The principal amendments appear on sheet 1b of plan No. 8622 which is a plan of finished contour levels. It has a notation column in which notes in red have been added as follows:- "R.L.4.35 adopted as l : 100 yr Flood Level at Existing Conditions". "Raise All Design Or Finished Levels O.5M. Except Where Indicated 'Hold'. Regrade On Site Where Indicated". This last note appears under a note that was added in black: "29.10.87 Contours Amended". On the contour plan there are notes in red at various places reading "Hold" or "Regrade". Corresponding notes in red appear at appropriate places throughout the rest of the drawings, generally in the form: "Raise all design levels O.5M". The explanation for and origin of Ex. 4 emerged clearly in the course of the proceedings. Condition 11 of the development consent required all allotments to be filled to a minimum level of 300mm above the calculated flood level. The calculated flood level was expected to be that for a 1 in 100 year flood frequency. That had been established and was the subject of studies and reports earlier furnished to the Council. The Council had adopted the 1 in 100 year flood as its standard in approving fill levels for residential land. The levels of the allotments in the subdivision required to protect them from risks of flooding in the area depended in part on conditions external to the subject site. In the Memo of 18 August 1987 the implications of Condition 11 were referred to and I quote part of what was written there:- "Council's current policy is to adopt the 1 in 100 year flood level for residential development. Thus the level of filling required for this subdivision would be the 1 in 100 year level plus 300 mm. Naturally the 1 in 100 year flood level is effected by the hydraulic characteristics of the downstream drainage systems. In this case, the size and shape of the existing open channels and the man-made drainage structures. Therefore the developer has two options to determine the fill level:- Option 1: Calculate the 1 in 100 year level based on existing conditions. Option 2: Improve the downstream natural and man-made structures hence increase the stormwater discharge and thus lower the 1 in 100 year calculated level." The downstream works to improve the existing drainage system and thus lower the fill level involved engineering works in the improvement or construction of drainage channels and the construction of a new bridge over Mt. Ettalong Road. In preparing the original plans that were lodged in October 1986, the printed originals in Ex. 4, it was assumed that it was intended by the Council that such works would be carried out and hence the fill levels could be lower. Accordingly the level "RL.3.7" was proposed. Then followed protracted delay on the part of the Council with no decision on the matter, indeed, a virtual standstill which led to the commencement of these present proceedings. Thus, as commenced, and throughout, the applicant in the proceedings before the Senior Assessor sought a decision of the Court to break a stalemate. The level "RL.3.7" was simply a proposal for approval; but it was based upon an assumption that might or might not become a reality. Accordingly, the applicant, for illustrative purposes for use at the hearing, took another set of plans identical with the originals, and marked them with the levels (i.e. "RL.4.35) which the applicant would propose as appropriate if the original assumption was false and the existing conditions downstream and external from the site remained the same. A copy of these was furnished to the Council on 30 October 1987 before the hearing commenced. At the hearing it emerged that, for reasons not material on this appeal, the Council had no plans, intentions or funds allocated to carry out the downstream works, which meant, in effect that, if an approval were to be given to stages 1 and 2 as sought by the applicant, it would have to be on the basis of the existing conditions external to the site. The plan with the notations in red thus conveniently represented for the Court the applicant's view as to the appropriate fill levels on that basis but otherwise remained identical with the plans in the original application. Indeed, the applicant's proposal as to fill levels if the status quo was to remain could have been put by reference to the original plan and by oral evidence and submissions as to the higher levels suggested by the applicant's experts. Ex. 4 was an instrument of convenience, no more, and in no relevant sense was it a fresh application as the Council contended. Moreover, it is, in my opinion, not open to the Council to object to the use of Ex. 4 for the purposes of the proceedings or to contend that it constituted a fresh application which the Senior Assessor had no jurisdiction to entertain, because its tender and admission into evidence was made and procured by the Council itself, as the following extracts from the transcript of the hearing on 5 November 1987 at pp.25 to 28 demonstrate:- "GOOLEY: A: 14, the levels of fill, roadworks and drainage within the subdivision depicted in the engineering plan submitted by the respondent are predicated upon the proposed drainage works being carried out as also shown in the engineering plans in Etymalong Creek and upon the construction of a new bridge also depicted over Mt. Ettalong Road. I think that should say: over Ettalong Creek, there. Q: Now, the plans to which you are referring, or the engineering plans to which you are referring were which plans in relation to those that have been put before you? A: Well, they are the--- Q: Are they the June, 1984 plans or the--- A: They were the June 1984 plans or the plans - I don't think they were actually submitted in June 1984 I think they were around about 1986 that's when the plans were submitted. McKENZIE: Q: Now as I understand it you don't have a complete set of those plans? A: There is not a full set there at the moment no, but they are similar to the latest plans we have got only for the discrepancy in levels. McKENZIE: Mr. Assessor the set that you had, and I don't know what it is yet but I did notice when the witness was looking at it there were no red annotations on it, so it would probably be more convenient for the court to have the one which has the red in it rather than working from a photostat of it. SENIOR ASSESSOR: I really rather that be taken away if it is confusing as compared with what we are now working from. McKENZIE: I would seek to tender the set that is amended in red and has been identified by the witness RIGG: No objection. TENDERED, ADMITTED AND MARKED EXHIBIT 4 - PLANS McKENZIE: Q: May the witness be shown exhibit 4 again? SENIOR ASSESSOR: Just in terms of the witness's last response, I wonder if by any chance the levels that he has referred to happen to be coincident with the levels that the applicant is seeking, it would materially shorten the proceedings if that happened to be the case? McKENZIE: By agreement of the parties exhibit 4 shows what the applicant is seeking. So the red annotations will indicate-- SENIOR ASSESSOR: Represent some difference between that and what the Council's engineers saw as coming from the study? McKENZIE: Yes." (The witness, Mr. Gooley, is the Council's strategic engineering manager. Mr. McKenzie of the bar appeared for the Council). In his judgment, at pp.6 to 7, the Senior Assessor referred to the matter thus:- "Mr. Gooley goes on to point out that the levels of fill, roadworks and drainage suggested by the applicant in his subdivision engineering drawings are predicated upon the construction of engineering works in Ettymalong Creek downstream and of the new bridge over Mount Ettalong Road. In response to questions Mr. Gooley indicated that further engineering drawings had been submitted to Council shortly before the commencement of the case and these had been annotated in red to indicate relative levels of finished works which, as he put it "appeared to be generally consistent with the direction in which the Council was heading based on the consultants recommendations". In this context he indicated that the concern Council held was that the Ettalong swamp acted as a retention pond in relation to flood waters. It should be noted here that drawings referred to, annotated with R.L.s in red, were substituted in Court at the request of the respondent and have been referred to as Exhibit 4 throughout this determination." I can find no error of law in the manner in which the Senior Assessor dealt with Ex. 4 and I reject the proposition that Ex. 4 amounted to a fresh application made after the commencement of the proceedings. Coming to the third main ground of appeal, that the Senior Assessor purported to substitute his approval for the City Engineer's that was required by Condition 11 and had no power to do so, it is necessary to quote from the Senior Assessor's judgment to show how he approached the matter:- "Further Mr. Donnellan says, that in seeking to force the Council to undertake the duty imposed upon itself by cl. 11 of the consent, this represents a matter more properly dealt under Class IV of the Court's jurisdiction, by way of an application for a writ of Mandamus. Again I would only be prepared to accept this submission if it had been demonstrated that the more recent documentation provided by the applicant constituted a detailed amplification of an earlier consent involving both subdivision and development. As earlier stated, I am persuaded that what was ultimately provided by the Council was a development consent alone: What has more recently been presented to the Council represents a subdivisional application for a stage of the ultimate development. In this respect it is apparent that the necessary analytical work to establish the 1 in 100 year flood level has been undertaken by the applicant. Further he has made the assumption that it should have been possible for the Council to accept that the level proposed by the applicant was an appropriate response to the terms of cl. 11. In the event the Council did not." (pp.9-10) "Finally in relation to the terms of Condition 11, Mr. Donnellan says, that at the end of the day, the Court is placed in the same position as the Shire Engineer in that it needs to be satisfied that the level as proposed by the applicant, for the one in one hundred year flood event is correctly established. Ultimately the Court has to make a relative judgement as to the probable level of impact of flood waters on the surrounding residential area." (p.10) "CONCLUSIONS From the outset this matter was made more complex by the respondents claim that the Court had no power to deal with the matter in Class II of its jurisdiction: Rather it was a question to be resolved through a Class IV action involving Mandamus and the Council's responsibility to establish a flood level associated with a 1 in 100 year flood. By contrast the applicant has sought to disassociate the subdivision application from the terms of the development consent and, in particular, cl. 11, dealing with the approval of the City Engineer of a 1 in 100 year flood level. .... In the ultimate I have concluded that while indeed the Court has before it a subdivision application which responds to the earlier consented to development consent, contrary to the submission of Mr. Rigg such a subdivision necessarily must satisfy the provisions of cl. 11 of the condition of development consent. That is to say the proposed subdivision must incorporate a filling level which lies 300 mm above the calculated flood level and as approved by the City Engineer. The question then becomes whether the Court is entitled to substitute its approval for that of the City Engineer when he has failed to carry out a necessary step in terms of the approval of the subdivision application. It seems to me in this regard that cl. 39(2) of the Land and Environment Court Act has very deliberately thrown a broad net in terms of what the Court may do, standing in the shoes of a Council. In part this clause says:- 'The Court shall for the purposes of hearing and disposing of an appeal, have all the functions and discretions, which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal.' On the basis of this it seems to me that the failure of the Engineer to act is inevitably a failure of his Council to carry out a self imposed obligation and a necessary part of dealing with the subdivision application. Clearly no relevant action occurred: Rather a protracted negotiation has been carried out between the applicant and the respondent which appears, at least on the face of it, to derive from the respondent's attempt to have generalised problem of nuisance flooding solved in the vicinity of the subject land." (pp.17-18) For the Council it was contended that s.39(2) of the Land and Environment Court Act, 1979 vested power in the Court to act as the Council only in so far as it was necessary to hear and dispose of the appeal in question and then to exercise for that purpose only the functions and discretions the Council had in respect of the subject matter of the appeal: See Kogarah Municipal Council v. Kent (1981) 46 L.G.R.A. 334; Strathfield Municipal Council v. Drew (1985) 1 N.S.W.L.R. 338. It was submitted that, in relation to Condition 11 of the development consent, the Council's functions and discretions had already been exercised and later endorsed by the Court's own order in 1985, they had been exercised by designating the City Engineer as the arbiter of the levels of filling so that from then on approval of the levels was his function and discretion, not the Council's, and, therefore, not the Court's under s.39(2). For the respondent it was contended, firstly, that in relation to the subdivision application that was before the Senior Assessor, Condition 11 was material only in so far as it fixed the minimum level of filling because the City Engineer's only function under that condition was to decide upon the flood level probability factor, that is, whether the flood level chosen would be for a flood with a calculated return frequency of once in 100 years or some other. From the data already established, known and available, the level of the fill to be above that flood level followed automatically and, for the purposes of the subdivision, could be any height above that flood level provided it was a minimum of 300mm. It was submitted that, as Ex. 5 (earlier quoted) showed, the City Engineer and the Council had already approved and adopted the flood level of one in 100 years as appropriate for residential subdivisions which left only one question, namely, what level of fill, having regard to conditions presently existing in the subdivision and surrounding areas, will be at least 300mm above that flood level. As the answer is something that automatically follows and merely needs to be set down on paper as a specification for the filling contractor to work to, there was nothing for the City Engineer to "approve" in any relevant sense. Secondly, it was submitted that the Council had, in effect, used Condition 11 for the ulterior purpose of avoiding a situation where, if works to improve downstream drainage, which the Council itself did not wish to carry out, were not carried out by the developer, they or other flood prevention works might have to be carried out by the Council because of the possibility of some increased downstream flooding resulting from filling and other works carried out on the subdivision area. The Council had, it was suggested, used the apparent, but not real, need for the City Engineer's "approval" of the plans in question as a convenient excuse for delaying and stalling the progress of the proposed subdivision because there was no reason, apart from deliberate abstention by the City Engineer, not to decide and specify the appropriate fill levels for the works proposed. In the course of answering the accusations of delay by the Council, its solicitor referred to the City Engineer's position (at pp.63-64) of the transcript for 11 November 1987) as follows:- "The other point which I wish to make Mr. Senior Assessor is in relation to condition 11 my learned friend made some play of the fact that it was the city engineer who was obliged to calculate the flood level. Now, he's not obliged to calculate it, he's only obliged to approve it and the calculation of the flood level may be something which he is required to do in order that he might reasonably give an approval but that condition does not oblige him to calculate it, it obliges him to approve it and that is essentially what he has been refusing to do. SENIOR ASSESSOR: I presume from that submission the court is in the same position as the council's city engineer? It equally could decide to approve a calculated flood level? DONNELLAN: Yes, I think that is probably correct but it would have to be on the basis on the reasonableness of the level as put. Maybe calculating it and approving it amount to the same thing, Mr. Senior Assessor. I have no further submissions thank you." Thirdly, the respondent relies on the concession by Mr. Donnellan at the end of the above passage that the Court is in the same position as the Council for submitting that the Council ought not be allowed now to resile from that position and, fourthly, it was submitted that, in any event, the Council must bear the ultimate responsibility for the purposes of s.341 of the Local Government Act of neglect by an officer of the Council to make a decision deputised to him to make in relation to an application for consent to subdivide land. The parties were not able to refer me to any authority on the point. The cases cited above do not deal with the present question. However, I think that the answer lies in a consideration of the relative positions of the Council, its officers and applicants. It is the Council that is charged with the authority and the responsibility to decide development applications: <A href="http://www.austlii.edu.au/au/legis/nsw/consol_act/epaaa1979389/">Environmental Planning and Assessment Act, 1979</A>, ss.77(3), 91(1); and subdivision applications: Local Government Act, 1919, ss.323(1), 331(1)(2); so it follows that applicants are entitled, in the end, to look to Councils for the performance of that responsibility. A Council's officers are its servants and agents in dealing with such matters. Even where functions of the Council have been delegated to them and their acts within the scope of the delegation are to be deemed those of the Council, the Council remains free to exercise all or any of the delegated functions itself: EPA Act, s.151(7); Local Government Act, s.530A(8); and, of course, to revoke the delegation, s.151(5); s.530A(4). Thus, when a condition of a development or other consent requires that something be done to the satisfaction of or to a standard or in a manner approved by a designated Council officer, the Council cannot be said to be absolved from responsibility if the officer fails to act or decide the matter when at all times it was in the Council's power to act or decide the matter itself. And where the neglect or delay beyond the statutory period is that of the officer, it could not be argued, and was not here argued, that an appeal to this Court would not arise because the neglect or delay was an officer's and not the Council's. The question then is whether on appeal, the Court is to be regarded as being in a position inferior to the Council in considering and dealing with the same matter. It was suggested that the Council was entitled to depend on the guidance and advice of the City Engineer as its own expert and would be deprived of it if the Court chose to substitute its own judgment. It was submitted that s.39(2) should not be interpreted as going so far. In my view, the Court, under s.39(2), is required to stand in the Council's shoes for the purposes of the matter in hand and consider whether in all the circumstances it ought to give or decide, as the Council itself could have done, the approval or matter which the officer designated by the Council failed or neglected to give or decide. As to having the benefit of expertise, the Court is organised to provide Assessors with high degrees of expertise in appropriate fields to preside over and determine the issues in matters in Classes 1, 2 and 3 and both parties are at liberty to call expert witnesses to support their cases and assist the Court to arrive at a proper decision. Incidentally, in the present case, the Council and the respondent both exercised their rights in this respect to the full. In my opinion the Senior Assessor made no error of law in concluding that he had jurisdiction to determine the application as to the levels of fill notwithstanding the terms of Condition 11 of the development consent. It is unnecessary to decide whether the respondent is correct in its analysis of the position reached in relation to that condition. I am inclined to agree with it except that Condition 11 did not itself state that the flood level factor was to be based on a 1 : 100 year flood and the requisite levels of fill yet had to be specified on the plan and drawings designating the work to be done. In those respects and in that sense there were plans and drawings to be "approved" for the purposes of the subdivision and the City Engineer could be said to have been contemplated by Condition 11 as the person to signify that approval. That has now been done by the Senior Assessor for the Court when he made his order approving the subdivision by reference to Ex. 4. The final ground of appeal was that the Senior Assessor erred in deciding that he had no jurisdiction to require a monetary contribution for external works as a condition of granting subdivision approval. At the hearing the respondent had pointed to the amended deed of agreement referred to in Condition 1(a) of the development consent. As I have said, the original and amending deed were tendered. Together they provide for specified areas of land to be dedicated to the public as public reserves and transferred to the Council as a condition of Council approving the development of the land as a residential subdivision. Clause l(b) of the main deed contained the following:- "Council acknowledges that in the event of subdivision proceeding by way of various stages that such dedication shall be accepted by the Council as the total contribution for parks, gardens, recreation area and/or public reserves in respect of the subdivision or subdivisions of all the lands aforesaid. The Council further acknowledges that no further lands or monetary contribution for any reason whatsoever shall be hereafter required by the Council on any application for a subdivision of all or any of the aforesaid lands." It was contended for the respondent that in agreeing to give consent on the basis negotiated the Council must be taken to have accepted responsibility for any downstream drainage or bridge works required as a result of the subdivision. Notwithstanding this, the respondent made in Court an open offer, afterwards reduced to writing to contribute cash and documentation (engineering plans, etc.) relating to the external works. After a two week's adjournment for the Council to consider the offer, it was rejected by the Council because one term limited the Council's right to appeal from the Senior Assessor's decision. In spite of its rejection the respondent undertook to keep the offer open for twelve months. The Senior Assessor came to the conclusion that in the dealings between the parties and the consents given by the Council, the responsibility for bearing the cost of carrying out downstream external drainage and bridge works remained the responsibility of the Council; but he also concluded that the catchment area as represented by the subdivision site would contribute approximately 7% of the run-off required to be dealt with by the external works. He then said (Judgment p.18) as follows:- "To this extent a contribution under s.94 applied at the development consent stage may well have been appropriate, however, this was not imposed by the Council. By contrast and again acknowledging the offer made at Court and subsequently refused by the Council, I have concluded that it is beyond power to impose such an offer as a condition of a subdivision consent. Indeed, in terms of the legal frame of reference, it is quite clear that "the horse has bolted". It it were proper to apply a s.94 condition at the development application stage, that opportunity has been missed. Further such an omission cannot be rectified post hoc, by negotiations or by the imposition of some form of contribution as a part of the subdivision consent." (Emphasis added) There is an issue between the parties as to what was meant by this passage of the judgment. Counsel for the appellant contended that the Senior Assessor, clearly directing his mind to the question of his powers, simply misdirected himself on the law and failed to acknowledge authority affirming the Court's power to require a monetary contribution to external works associated with or occasioned by a proposed subdivision for which approval was being sought. Counsel referred to Old v. North Sydney Municipal Council (1950) 18 L.G.R. (NSW) 1 at P.7; Doonside Properties Ltd. v. Holroyd Shire Council (1958) 4 L.G.R.A. 337 at p.338; Wallis & Moore Pty. Ltd. v. Kogarah Municipal Council (1973) 1 L.G.A.T.R. (NSW) 292 at 294; Bartlett v. Wingecarribee Shire Council (1985) 19 A.P.A.D. 103 at pp.107-108; Cardwell Shire Council v. King Ranch Australia Pty. Ltd. (1984) 54 L.G.R.A. 110; and see Coupe v. Mudgee Shire Council (1986) 61 L.G.R.A. 281 at p.284 where the test applied to a subdivision case by the High Court in the King Ranch case (supra) was applied to a case of building approval. In my opinion these cases support the proposition that, in considering an application for approval of a subdivision, a Council may take into account detrimental effects of the subdivision upon the drainage of lands external to the site and may require as a condition of approval a reasonably related monetary contribution towards the costs of executing works to alleviate the effects anticipated. According to the respondent's submissions, on a proper understanding of what the Senior Assessor said, he did not deny the above proposition but, in the exercise of the Court's discretion, that was open to him, he refused in the special circumstances of the case to exercise it in the Council's favour . As circumstances against requiring a monetary contribution, the respondent referred, inter alia, to the amended deed of agreement; the fact that the Council was not contemplating carrying out the works, had no funds, no plans and no intention in that regard at the time of the hearing; there was evidence, and it was found, that the effect of the subdivision on downstream flooding would be so slight as to be of little significance; and the Council had refused a valuable and continuing offer of cash, design plans, expert reports and other valuable material to assist it if the works needed to be done or were carried out. It was also pointed out that the Council's solicitor in the course of argument did not seek a monetary contribution but argued to the Senior Assessor that the Council was not entitled to attach a condition to a subdivision approval requiring the applicant to either contribute money for or carry out drainage works external to the site, with the consequence that the applicant ought not be given approval unless the applicant was in a position to demonstrate that the applicant had the power to procure the works to be done that would alleviate the off-site effects of its subdivision. (Transcript 11 November 1987, p.56). It was further submitted for the respondent that the true meaning of the words used by the Assessor in this part of his judgment was only that a contribution under the authority of s.94 of the Environmental Planning and Assessment Act, 1979 could not be exacted on approval of a subdivision under s.333 of the Local Government Act, 1919. It was suggested that he was only rejecting a s.94 type condition and it should be assumed that he was aware of his power to attach conditions independently of that section but was declining to do so. Counsel for the appellant argued that the deed relied on by the respondent in its submissions must be disregarded because a Council could not fetter its discretion in the manner attempted by the deed: Jurkovic v. City of Port Adelaide (1979) 41 L.G.R.A. 71 at pp.78-79; Doran Developments Pty. Ltd. v. Newcastle City Council (1982) 13 A.P.A.D. 436 at p.447. He submitted also that the deed was ultra vires the Council; but, even if valid, was inoperative until the land referred to was actually dedicated. There are two sentences in what the Senior Assessor said that make it difficult to accept the respondent's submissions (a) that he was not denying that he had the power to require a monetary contribution as a condition of granting the Court's approval to the proposed subdivision and (b) that he was simply, in his discretion, refusing to exercise it. I have underlined them in the quotation from his judgment. They leave me in the position that I cannot be confident that the Senior Assessor did not mean what he appears to be saying. I am fully conscious that the language used in a lay Assessor's judgment is not to be read too strictly: see Brimbella v. Mosman Municipal Council (N.S.W. Court of Appeal 19.4.1985 not reported) per Kirby P. at p.11; Parramatta City Council v. Peterson (1987) 61 L.G.R.A. 286 at p.288; but the words, "beyond power to impose such an offer as a condition of a subdivision consent" and "such an omission cannot be rectified post hoc.... by the imposition of some form of contribution as a part of the subdivision consent" are very positive words. Moreover, the tenor of the language used generally is not to my mind that of reasoning to a decision on a matter of discretion. In so far as the first of the above passages refers to imposing on the Council the offer that was made, it is correct; but the significant thought expressed is in the phrase "beyond power" which suggests that it was jurisdiction not discretion that was exercising the Senior Assessor's mind on the monetary contribution aspect of the case. Whilst correct that the respondent's offer, in its terms, could not be forced on the Council, it was not correct that some condition making requirements of the respondent that provided a financial contribution to the external works of equivalent value to the offer or some other value was beyond the power of the Court. The second passage goes directly to the question of some form of contribution and rules that out as something that "cannot" be done as part of the subdivision consent. Reading the two passages together in their context I find myself led to the conclusion that the Senior Assessor was of the view that the Court did not have the power to approve the subdivision on condition that the respondent contribute a sum of money to the external works if they were to be carried out. In this I find him to have been in error on a question of law. Of course it does not follow that he would have decided to require or that should have required a contribution. That was for him to decide and I must not be taken to be expressing a view one way or the other. The facts and merits of that question have not been debated before me. In the course of his arguments the solicitor for the respondent did advance grounds for refusing as a matter of discretion to require a contribution in the present case; but they were advanced as a justification for the Senior Assessor's decision on the basis that he had exercised a discretion. They were all relevant matters on discretion; but I am persuaded that the Senior Assessor did not undertake an exercise of discretion because he believed he had none to exercise. The Council's purported repudiation of the amended deed of agreement in the argument put on its behalf on this appeal appears as an argument of convenience. In my opinion, it is not the law that every agreement by which a Council purports to restrict its discretion is necessarily ultra vires. The question is whether it is contrary to the public interest and there must be cases where the advantages gained by the Council as a quid pro quo for the restriction are in the public interest and outweigh any public detriment that may flow from the restriction accepted by the Council. However, that may be, on the question whether or not in relation to the present application for subdivision approval a contribution should be required in the public interest, the amended deed of agreement, action taken in pursuance of it or the willingness of the other party to honour it are part of the history and facts of the matter relevant for consideration in deciding the question. As to the Council's failure to use its power under s.94 at the stage of development consent, that too is a relevant consideration; but it does not exclude an exercise of discretion at the subdivision approval stage. It is also a relevant consideration that in this case the Council's position was that it had given subdivision as well as development consent in 1984 without requiring a contribution under s.94. I am not attempting to be exhaustive as to what would be relevant but only commenting upon some of the matters raised in the present appeal. No doubt there are others which both parties would wish to raise on the question if it were under reconsideration. The Senior Assessor was not assisted by the solicitor for the Council when he joined with the solicitor for the respondent in submitting that the Court could not require a contribution. However, I do not think it right to accede to the argument that the Council should not be permitted to resile from its position. There is a substantial public interest in the question of the Court's power and whether it ought to be exercised in the present case that transcends the rules applied in adversary proceedings between ordinary litigants. The Court as well as the Council must always be alive to the implications and side effects that may flow to the public detriment from land development projects and, as well, to the powers which the law invests in them to be exercised for the protection of the public interest. If a position taken by a Council in litigation turns out to be wrong in law in a matter affecting the interests of the public, it does not necessarily follow that the Council will be thereby denied the opportunity of a further hearing; but the Council's error will be relevant on questions of costs. The Senior Assessor decided against the Council on the merits of the respondent's application and made an order approving it. He gave clearly his reasons for doing so in his judgment. They have not been debated or challenged in the present appeal which is limited to questions of law. His findings of fact and decision on the merits is not open to challenge here and continues to stand. Nothing that I have said is to be interpreted as re-opening any of the questions he decided in the course of concluding that the consent which he gave, by the order that he made, ought to be given or, except as now to be explained, as questioning the form of that order. The sole error of law that I have found relates entirely to the question whether or not a condition requiring a monetary contribution should be added to the consent which the Senior Assessor gave, not to the question whether the consent to the proposed subdivision should have been given. It is entirely for him to decide as he thinks proper on all of the facts and circumstances put to him by the parties whether such a condition should be added to his order or not and, if it should be added, what the condition should be. It will be necessary for that purpose to remit the matter to him for determination of that sole issue; but, as a matter of form, the appropriate orders to make in doing so will be to set aside his order consenting to the subdivision, not because it is considered to be wrong in itself, but so that it may be re-made by him as the order of the Court with or without a condition for contribution attached according to the Senior Assessor's decision on the question of attaching such a condition, such decision to be made after reconsideration of that matter in accordance with this judgment. The parties should bear their own costs of the issue on which the Council succeeded because both contributed to the error, the Council by the stand it took on the matter before the Senior Assessor. I estimate one quarter of the costs to be an appropriate proportion. The Council should be required to pay three quarters of the respondent's costs of the Appeal for the issues on which it failed here. The orders of the Court are as follows:- l. Appeal allowed. 2. Order 2 of the Court constituted by the Senior Assessor made on 2 March <A href="http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/nsw/NSWLEC/1988/72.html?query=%7E%201988#disp4" name=disp5><IMG alt="<<" border=0 src="Bruce Kerr Pty Ltd v Gosford City Council [1988] NSWLEC 72 (29 September 1988)_files/contextup.gif"></A>1988<A href="http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/nsw/NSWLEC/1988/72.html?query=%7E%201988#disp6"><IMG alt=">>" border=0 src="Bruce Kerr Pty Ltd v Gosford City Council [1988] NSWLEC 72 (29 September 1988)_files/contextdown.gif"></A> be set aside. 3. Remit the proceedings to the Senior Assessor for determination in accordance with this judgment of the question whether the above order should be remade with or without a condition for contribution attached and, if with a condition, determination of that condition and for remaking the said order in accordance with his determination. 4. Order that the appellant Council pay three quarters of the respondent's costs of this Appeal. 5. Each party to bear their own costs as to the remaining one quarter. 6. Exhibits be returned. I HEREBY CERTIFY THAT THIS AND THE PRECEDING 30 PAGES ARE A TRUE AND ACCURATE COPY OF THE REASONS FOR JUDGMENT HEREIN OF THE HONOURABLE MR. JUSTICE K.J. HOLLAND. Associate </BODY></HTML>

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Land and Environment Court of New South Wales

APPLICANT Donnellan LEGAL REPRESENTATIVES: RESPONDENT Mr McKenzie

JUDGMENT:

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