New South Wales Court of Appeal CITATION: Rich v Lennox Palms Estate Pty Ltd [2010] NSWCA 242 HEARING DATE(S): 2 September 2010 JUDGMENT DATE: 22 September 2010 JUDGMENT OF: McColl JA at [1]; Young JA at [2]; Lindgren AJA at [54] DECISION: The appeal is dismissed with costs. CATCHWORDS: Environment and Planning- Development Consent- Construction- whether consent allowed for staged development of subdivision- whether breach of condition in respondent's failure to submit a plan to council for extension of public road access to boundary of appellants' land- whether primary judge erred in declining to construe condition in the absence of council's submissions and in finding consent not breached. Remedies- Declarations- whether utility in making declaration- matter does not arise until uncertain future event- no certainty that all parties affected by declaration are parties to the appeal- deficient form- failure to identify event or time from which public road access to appellants' lot was required- no declaration made. LEGISLATION CITED: Environmental Planning and Assessment Act 1979, ss 102, 121B CATEGORY: Principal judgment Curtis v Sheffield (1882) 21 Ch D 1 CASES CITED: Re Tooth & Co Ltd (1978) 19 ALR 191 Westfield Management Ltd v Perpetual Trustee Company Ltd [2006] NSWCA 245 Alan Rich and Evelyn Rich (Appellants) PARTIES: Lennox Palms Estate Pty Ltd (First Respondent) Ballina Shire Council (Second Respondent) FILE NUMBER(S): CA 2010/2893 D P Wilson (Appellants) COUNSEL: J Griffiths SC and N C T Bilinsky (First Respondent) Second Respondent Submitted McCartney Young Lawyers (Appellants) SOLICITORS: Stafford Lawyers (First Respondent) Clarissa Huegill & Associates (Second Respondent) LOWER COURT JURISDICTION: Land & Environment Court LOWER COURT FILE NUMBER(S): LEC 09/40275 LOWER COURT JUDICIAL OFFICER: Pain J LOWER COURT DATE OF DECISION: 25 September 2009 LOWER COURT MEDIUM NEUTRAL CITATION: Rich v Lennox Palms Estate and Anor [2009] NSWLEC 167 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 2010/2893 McCOLL JA YOUNG JA LINDGREN AJA Wednesday 22 September 2010 RICH v LENNOX PALMS ESTATE PTY LTD Judgment 1 McCOLL JA: I agree with Young JA's reasons and the orders he proposes. I also agree with Lindgren AJA's reasons. 2 YOUNG JA: In 1982, the appellants and the first respondent owned adjoining parcels of land in Lennox Head. 3 Although there are two respondents to the appeal, the second respondent is the local council which filed a submitting appearance both here and below. Thus, for simplicity, I will refer to the first respondent as "the respondent" and the second as "the Council". 4 In 1982 the respondent obtained development consent from the Council which involved subdividing its land into 65 lots. Lot 65 was the residue of the land after the other blocks had been split off for 57 home sites and a few sites for other purposes. 5 In 1983, the respondent submitted a plan of subdivision to the Council for the first 20 lots to be subdivided. This was approved and is called Stage 1. 6 In 1993, a further plan of subdivision was lodged for 25 residential lots, public reserve lots and the residue lot. This was approved and is Stage 2. 7 In 1996, a third plan of subdivision was lodged and approved. This is Stage 3. 8 At the end of Stage 3, what was to be Lot 65 remained undeveloped in much the same state as it was in 1982. 9 The sketch plan submitted with the application for development consent, showed that there would be a road dedicated to the public over Lot 65 which would in effect be an extension of a public road, Kellie Ann Crescent. I will call this "the proposed road". 10 The proposed road would give access to part of the appellants' land. 11 The development consent granted in 1982, which was the authority for the subdivisions, was subject to conditions. The only relevant condition was: "6. The submitted plan shall be amended to provide public access over lot 65." 12 Stage 3 did in fact involve some extension of Kellie Ann Crescent, so that it now extends over part of Lot 65 and ends in a cul de sac about five metres to the west of the appellants' land. Lot 65 is now Lot 61 in the latest plan, but, for ease of reference, I will continue to refer to it as Lot 65. 13 The judge treated this encroachment through Lot 65 as not having significance. This has not been seriously challenged. 14 In 2009, the appellants commenced proceedings in the Land and Environment Court for declarations and orders that the respondent is bound to submit a plan to the Council for the extension of Kellie Ann Crescent over Lot 65 so as to give access to the appellants' land. 15 Pain J dismissed the application with costs on 25 September 2009 [2009] NSWLEC 167. 16 There were a number of points argued before her Honour, but the key point was whether on the true construction of the development consent of 1982, the three stage release of the subdivided land was in accordance with the development consent. The primary judge accepted the respondent's submissions on this issue and answered the implied question "Yes". 17 One of the matters which influenced her Honour to take this view was that General Condition 1, referred to the respondent submitting plans (note the plural) to implement the Consent rather than a Plan (singular). 18 The next issue was whether it could be said that Lot 65 had been created in one or other of the plans of subdivision or whether it was still to be regarded as being in its pristine state. Although she had initial doubts about the matter, the primary judge held the latter position was correct. 19 From this it follows that the obligation to create the road over Lot 65 had not yet come to fruition. 20 The judge primary declined, however, to rule on whether there had been a breach of condition 6 or deal with construction of the relevant documents more than needed to dispose of the application in the absence of the Council being a participating party. 21 The appellants challenge these findings and the primary judge's reluctance to deal with some matters in the absence of submissions from the Council. 22 Initially, the appellants also sought to agitate the rejection of some pieces of evidence, but this was not pressed at the hearing. 23 The appeal was heard on 2 September 2010, Mr D P Wilson of counsel appearing for the appellants and Dr J Griffiths SC and Mr N C T Bilinsky of counsel for the respondent. 24 The appellants complain that the primary judge never construed the development consent. She showed reluctance in so doing as the Council was not a participating party and that she had reasoned that there was no breach. 25 Mr Wilson put that the determination, even if correct, that there was no breach was no reason not to construe the development consent, nor was the fact that the Council had elected not to argue the matter. I will return to this submission, but it is important not to be side tracked from the key matters involved in the appeal. 26 As to the first point noted above, the appellants put that conditions of development consents must be complied with. That is so, but whether the proposition has practical relevance in this case is another matter. 27 The submission is that as no plan for the extension of Kellie Ann Crescent over Lot 65 has ever been submitted, the respondent is in breach of its development consent. 28 That proposition is only valid if, on the true construction of the development consent, it was incumbent on the respondent to submit a plan complying with condition 6 to the Council before any subdivision was effected. 29 As I have indicated, the primary judge found that that was not the proper way of reading the consent. 30 With respect, the appellants did not tackle the primary judge's finding directly, but sought to explore peripheral areas of construction to attack it. 31 Mr Wilson cited to us a series of authorities as to how courts must approach the question of construction of development consents. One of these was the decision of this Court in Westfield Management Ltd v Perpetual Trustee Company Ltd [2006] NSWCA 245 [41] where Hodgson JA reminded that a development consent is a document that operates in rem so that, whilst communications between the council and the affected parties at the time of grant cannot be used in construing it, reference may be had to physical circumstances, accompanying plans and matters relating to title. To this might be added, matters of zoning. 32 Apart from a minor aspect of this appeal, I do not see how these citations are of much assistance in deciding the key issues in this appeal. 33 There was a debate as to the semantic significance of the word "over" in condition 6. 34 In its written submissions, the respondent put that the word was not clear and unambiguous and that, in a document operating in rem, one would expect that if "over" was to mean "over a or the boundary" the document would have so said. 35 Mr Wilson says that, when one looks at the planning maps which were extant in 1982, it can be seen that the contemplation of the State and local planning authorities was that Kellie Ann Crescent would extend over the boundary between the respondent's land and the appellants' land and end in a turning circle on the appellants' land. 36 When the context shows that "over" does not mean "above", it usually means passing completely across land and to the other side of the boundary. 37 However, even if this is so, it does not necessarily point to success for the appellants in this appeal. The key point is whether the time for fulfilling condition 6 has arrived. 38 The appellants then say that unless there was a modification of the development consent granted under s 102 of the Environmental Planning and Assessment Act 1979 (the "EPA Act") there could not have been any staged development. 39 This was a view that one of the Council officers took in 1996, but thought that it might be open to say that the subdivisional consents granted in 1983 and 1992 might have modified the development consent. The officer thought that the respondent should be asked to comply with condition 6 in connection with what he called the "final" subdivision following a development consent that was even then 14 years old. 40 Council, however, appears not to have accepted its officer's advice; it issued the third subdivision approval. 41 As I have said, this was not the view taken by the primary judge and I must confess, I do not consider that the present point sways me from my preliminary view that her construction was correct. 42 I should note here that there is no dispute that the development consent is still operative. There is also no wish or intention by the appellants to disturb any of the development on the respondent's land. 43 When it comes to the two issues actually decided by the primary judge, I have read her reasons, summarily stated earlier, I have considered Mr Wilson's submissions as to why a different result should flow and I remain of the view that the primary judge was correct, basically for the reasons she gave. Although these were brief, the points were short points of construction about which one would not expect extensive reasoning. 44 As noted earlier, the appellants complain that the primary judge did not make declarations as to the proper construction of the development consent. 45 Apart from the reasons which the primary judge gave, I cannot see any utility in making the declaration sought by the appellants in their originating process. 46 I gather from relatively recent correspondence between the appellants and the Council that they may be contemplating effecting a subdivision of their land but may be thwarted because it has no access to a public road except via a private right of way to the Coast Road which would not support a subdivision. 47 Thus the appellants wish to force an extension of Kellie Ann Crescent up to their boundary. That wish, however, will not be furthered by the making of a declaration. It may be that action under s 121B (16) of the EPA Act is the solution, but the Council appear to have twice rejected the view that it should voluntarily adopt that approach. There may be commercial or political avenues to be explored as well. However, the making of a declaration will not advance matters. 48 On the construction of condition 6 adopted by the primary judge which I have endorsed, the operation of condition 6 is for the future. 49 Although mere futurity does not of itself establish lack of utility (Re Tooth & Co Ltd (1978) 19 ALR 191, 207) and while the making or not making a declaration is a matter of discretion, courts do not usually exercise that discretion in favour of making a declaration as to a future matter unless the circumstances are such that either a present right is affected or there is relative certainty that the key future event will happen. 50 Further, the court must be concerned that when the future event occurs, the parties are most likely to be the present parties, otherwise a person then vitally interested may well be precluded from arguing the matter: Curtis v Sheffield (1882) 21 Ch D 1, 4. I do not have that comfort in the instant case. 51 Again, as Lindgren AJA pointed out during argument, the form of the declaration sought is defective. Indeed one cannot even say, "on the true construction of the development consent and in the events that have happened" as one would normally say, as it may be that future events and legislative changes may have impact. 52 Thus, I do not consider that declarations should be made. 53 It follows that I propose that the appeal be dismissed with costs. 54 LINDGREN AJA: I agree with Young JA that the appeal should be dismissed with costs for the reasons given by his Honour, and add the following observations. 55 Paragraph 1 of the relief claimed in the Summons was: On the true construction of development consent DA82/149 issued by the Second Respondent in respect to a development application lodged by "Steel & Associates for Lennox Palm Estates", and in particular condition 6 of development consent DA82/149, public road access has not been provided over the land in "Lot 65" (Lot 61 in 864764). Although the Summons does not say so, the parties treated this paragraph as seeking a declaration in the terms set out in the paragraph. 56 Paragraph 1 was followed by consequential orders for the provision of access so that it would be contiguous with the western boundary of Lot 9 in DP 719601 (the appellants' land). 57 It may be that para 1 was intended to include a declaration that upon its true construction condition 6 required the provision of public road access so that it would be contiguous with the western boundary of Lot 9 in DP719601. There was, however, a more fundamental problem with the declaration sought, as will appear below. 58 Paragraph 1 of the General Conditions of Approval was as follows: 1. Final Plans – the submission of final plans and applicable processing fee. 59 Conditions 1 and 6 of the Conditions of Development Consent relating to DA 1982/149 were: 1. Development of the site being carried out generally in accordance with the plan prepared by Steel & Associates Pty Ltd and submitted with the development application as amended by the following conditions. … 6. The submitted plan shall be amended to provide public road access "over" lot 65. 60 The form of the declaration sought begins by proposing a pure question of construction (as a declaration of the kind referred to in [4] above would have been) but concludes by assuming circumstances in the real world outside the four corners of the Development Consent. Let it be assumed that the form of the declaration sought were to be amended to read "On the true construction of development consent DA 82/149 … and in the circumstances that have occurred, public road access has not be provided over the land in "Lot 65" (Lot 61 in 864764)." (emphasis added). There would still be missing something along the lines of an addition of the words "as required by …" or a change in the wording to assert that the first respondent had "failed" to provide the public access. After all, the words "has not been provided" would have described the factual circumstances as they existed the moment after the Development Consent was granted. 61 The deficiency in the form of the declaration sought serves to expose the problem that underlies the appellants' case. In substance, para 1 of the relief claimed in the Summons was intended to propose that upon its true construction Condition 6 required the public road access to be provided by a certain date or within a certain period that expired prior to the filing of the Summons, and that the first respondent had failed so to provide it. As formulated, however, the paragraph avoids the difficulty for the appellants of identifying that time or period. If a conventional expression of the kind "and in the events that have occurred" had been included, the appellants would still have been required, at some stage, to identify the particular event or passing of time that marked a "failure" by the first respondent to provide the public road access. 62 Apparently, the appellants contend that the public road access was required by law to be provided at the time of the granting of one or other of the subdivision approvals or at some other time prior to the filing of the summons. Their submissions did not, however, identify any particular time by which the approved development was required to be completed. 63 Indeed, counsel for the appellants conceded that public road access over Lot 65 can yet be provided in conformity with the Development Consent. This concession demonstrates that the appellants' application was fatally flawed. 64 The Council has power under s 121B Item 16 of the Environmental Planning & Assessment Act 1979 to order the first respondent to complete the development within such time (not being less than 12 months from the date of service of the order) as the Council considers reasonable. The appellants did in fact ask the Council, in effect, to exercise that power, but it declined to do so for reasons that it gave (the appellants have not attacked that exercise of the Council's discretion). Therefore it is not as though the appellants can rely on a time limit that was fixed by the Council and that passed prior to the filing of their summons. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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