Land and Environment Court New South Wales Medium Neutral Citation: Fokas v Kogarah RSL Club Ltd [2012] NSWLEC 136 Hearing dates: 1, 6 June 2012, 8 June 2012 (applicant's written reply submissions) Decision date: 13 June 2012 Jurisdiction: Class 4 Before: Biscoe J Decision: (1) Declaration that condition invalid to the extent that it refers to two particular lots. (2) Declaration as to the proper construction of the balance of the condition. (3) Order that the respondents take all reasonable steps to obtain modification of the condition so that it reads as set out in Declaration 2. (4) Third respondent's notice of motion for order under Vexatious Proceedings Act 2008 stood over. (5) No order as to costs. See [30] of judgment. Catchwords: JUDICIAL REVIEW:- whether a condition of a development consent is invalid - condition requires an easement for access and parking - land benefited and burdened partly misstated - other drafting slips. Legislation Cited: Conveyancing Act 1919 ss 88B, 195 Environmental Planning and Assessment Act 1979 ss 79C, 80A, 96, 98, 123, 124 Real Property Act 1900 ss 46A, 80A Vexatious Proceedings Act 2008 Conveyancing (General) Regulation 2003 Conveyancing (General) Regulation 2008 cll 3, 27, 33, 35 Environmental Planning and Assessment Regulation 2000 cl 283, Parts 5, 9 Cases Cited: Kendall Street Developments Pty Ltd v Byron Shire Council [2004] NSWLEC 227 Westfield Management Ltd v Perpetual Trustee Company Ltd [2006] NSWCA 245 Category: Principal judgment Parties: Maria Fokas (Applicant) Kogarah RSL Club Ltd (First Respondent) Uniting Church in Australia Property Trust (NSW) (Second Respondent) Kogarah City Council (Third Respondent) Representation: COUNSEL: Mrs M Fokas, in person (Applicant) Ms S Hill, solicitor (First Respondent) Mr S Nash (Second Respondent) Mr AM Pickles (Third Respondent) SOLICITORS: N/A (Applicant) Susan Hill & Associates (First Respondent) Gadens Lawyers (Second Respondent) Pikes Lawyers (Third Respondent) File Number(s): 40296 of 2012 Judgment 1By her summons in these judicial review proceedings, the applicant, Maria Fokas, who is legally unrepresented, seeks an order that the Court "exclude" condition 16 of a development consent, which provides for the creation of an easement for access and parking. I take this to be a challenge to the validity of that condition, for which relief might be a declaration of invalidity. 2During the hearing, I granted leave to amend the summons to add prayers that (a) approved architectural plan No WES67-D201 "be destroyed", (b) survey plan No S 16944 "be excluded from" the consent, (c) the boundary line on plan No WES67-D102 be "corrected", and (d) the Court grant any other order it thinks appropriate. I dispensed with any requirement to file and serve an amended summons. I refused leave to add certain other prayers because they were entirely unrelated to condition 16, did not appear to be based on any ground of judicial review, and appeared to be an attempt to invoke objector appeal rights to designated development under s 98 of the Environmental Planning and Assessment Act 1979 (EPA Act). Such an objector appeal would have to be in separate proceedings and, in any event, this is not designated development (see s 77A of the EPA Act). 3The applicant owns and resides on land at 14 English Street, Kogarah. Her property adjoins the southern boundary of land owned by the first respondent, Kogarah RSL Club Ltd (RSL Club), at 250-258 Railway Parade, Kogarah (RSL Land) on which it conducts, unsurprisingly, an RSL club. On the eastern side of the RSL Land is a car park area which adjoins land owned by the second respondent, Uniting Church in Australia Property Trust (NSW) (Uniting Church), on which the Wesley Hospital is located, at 7-9A Blake Street, Kogarah (Hospital Land). 4On 20 February 2012 the third respondent, Kogarah City Council, granted consent to a development application lodged by the Uniting Church, with the consent of the RSL Club, for the use of an existing building on the RSL Land as a training facility by the adjoining Wesley Hospital. As part of this use, the development consent extended to altering the existing car parking arrangements by removing the angled parking on the RSL land and replacing it with perpendicular parking by utilising a western strip of the Hospital Land. This rearrangement of car parking spaces allowed the parking to comply with the Council's off street parking code. However, it meant that the car parking spaces would cross the boundary between the RSL Land and the Hospital Land. Condition 16 is evidently aimed at requiring an easement to be created over those parts of the proposed car parking spaces located on the Hospital Land that are to be used by users of the training facility approved on the RSL Land and users of the RSL club. 5Condition 16 provides as follows: Creation of an Easement The following easement shall be created and submitted to Council with the linen plan prior to the issue of an Occupation Certificate. Such an instrument shall name Kogarah Council as the only authority empowered to release, vary or modify the terms within that document: An easement for access and parking in favour of Lot 45, 46, 47, 48, 51, 52 in DP 2313, Lots A and B in DP 376250 and Lot 12 in DP 1108591 on the site known as No.250-256 Railway Parade Kogarah over Lot 44 in DP 2013 and Lot 1 in DP 909975, known as No.7-9A Blake Street Kogarah. The easement shall be obtained and registered, with all cost associated with creating and registering the easement to be borne by the applicant. 6The numerous lots listed in the condition as benefited by the easement comprise the RSL Land, with the exception of Lot 48, which is owned by a third party and which the respondents accept was listed in error. The two lots referred to in the condition as burdened by the easement comprise the Hospital Land. 7The proceedings were initially commenced with Mr Patrick Nash, a town planner formerly employed by the Council, as the third respondent. By notice of motion filed on 26 April 2012, the Council and Mr Nash sought orders to the following effect: (1)That Mr Nash be removed as the third respondent. (2)That the Council be substituted as the third respondent. (3)That the proceedings be dismissed on the grounds that no reasonable cause of action is disclosed and/or that the proceedings are frivolous or vexatious. (4)In the alternative to (3), that the applicant provide security for the Council's costs in the sum of $35,000 and related orders. (5)That the applicant be restrained from instituting proceedings in the Land and Environment Court against the Council pursuant to the Vexatious Proceedings Act 2008. 8At the hearing of the motion, the parties agreed to proceed immediately to a final hearing of the case. Consequently, prayers 3 and 4 were no longer pressed. During the final hearing an order was made substituting the Council for Mr Nash as the third respondent. That disposed of prayers 1 and 2. In the result, all that remains of the notice of motion is prayer 5. The notice of motion confined to that issue will be stood over to a later date. 9What is the basis of the applicant's challenge to condition 16? It is not illuminated by pleadings because the applicant failed to comply with an order that she file and serve points of claim by 20 April 2012. At a directions hearing on 4 May 2012 the Court noted that she does not intend to file any points of claim and that the details of her claim are contained in her affidavits filed to date and the summons. It is impossible to determine from the summons what the basis for the claim is. 10After hearing the applicant's oral submissions, it appears that the claim of invalidity of condition 16 is based on three grounds: (a)first, that condition 16 is invalid because the proposal does not give rise to a need for an easement; (b)secondly, that condition 16 is invalid because it is not authorised by the EPA Act; and (c)thirdly, that condition 16 is invalid because it would enable an easement to be created over the applicant's land and neighbouring residential land at 16 English Street without further consent being obtained and because of errors in it. 11The applicant referred in submissions to much legislation. Some of it provides part of the general statutory context for the proceedings: for example, the Conveyancing Act 1919 s 88B (creation of easements by registration of plans) and the EPA Act ss 123 and 124 (open standing to remedy or restrain a breach of the EPA Act and orders of the Court). Most of it, including the following, is either insignificant or irrelevant to the determination of the issues in the proceedings: the Real Property Act 1900 s 46A (creation of an easement between lands under common ownership) and s 80A (incorporation of provisions in a filed memorandum); the Conveyancing Act s 195 (definition of "miscellaneous plan"); the Conveyancing (General) Regulation 2008 cl 3 (definition of "section 88B instrument"), cl 27 (plans of identification), cl 33 (indication of site of proposed easement in deposited plan) and cl 35 (indication of creation of easement in a deposited plan); and the Environmental Planning and Assessment Regulation 2000 Part 5 (existing uses), Part 9 (fire safety and matters concerning the Building Code of Australia) and cl 283 (false or misleading statements). I note that the applicant in fact referred to clauses of the superseded Conveyancing (General) Regulation 2003, and I have substituted above the equivalent provisions in the current Conveyancing (General) Regulation 2008, some of which are differently numbered. In her written submissions in reply, the applicant referred to hearsay evidence apparently relating to the merits of the car parking arrangement and to a fire stairway and her submissions in chief also at times intruded into the merits. I cannot take those matters into account. The first ground 12This ground is that the proposal does not give rise to a need for an easement for access and parking in favour of the nominated lots because there is already an agreement in existence to provide such access and parking between the owners of the RSL Land and the Hospital Land. It was said that the agreement means that the condition 16 requirement for an easement is unnecessary. A variant of this ground was that the approved plans themselves created an easement which the applicant called the "first" easement; therefore condition 16, creating what the applicant called the "second" easement, is unnecessary. 13Necessity is not the test for present purposes. The only question is the legality of the condition. I therefore do not accept the first ground. In any event, an easement is necessary to bind successors in title. The second ground 14The second ground is that condition 16 is invalid because it is not authorised by s 80A of the EPA Act as it is not relevant to the subject matter of the consent or any matter under s 79C. 15Section 80A(1)(a) of the EPA Act authorises a condition to be imposed that "relates to any matter referred to in section 79C(1) of relevance to the development the subject of the consent". One of the matters arising from the development application was the rearrangement of the parking on site. The rearrangement proposed to utilise adjoining land in different ownership to the land on which the proposed training facility was to be located. The likely impacts of that development on the adjoining land was a matter of relevance under s 79C(1)(b) of the EPA Act. It was relevant for the Council to ensure that the future use of the adjoining land for car parking could be secured in case the ownership of the adjoining land changed. Condition 16 related to an aspect of the development, being the rearrangement of parking to utilise adjoining land in different ownership to that the subject of the development application. The means which the Council considered appropriate to secure the legal right to use the car parking in such a fashion was the requirement for the grant of an easement for parking. In my view, condition 16 related to a relevant matter under s 79C(1) of the EPA Act. The third ground 16The third ground has two parts. The first part is that by reason of the terms of the condition itself and the plans approved by the development consent, which included the architectural plan WES67-D201, the Council had authorised the grant of an easement over land owned by the applicant and over the adjoining residential land at 16 English Street. In the second part, reliance is placed on errors in condition 16. The first part of this ground appears to be based on three perceived features of plan WES67-D201. First, that plan shows an "existing fence" across the southern boundary of the car park area, extending along, or parallel with, the southern boundary of the RSL Land adjoining the applicant's land. This extension is an obvious error because the southern wall of the existing building on the RSL Land is on the southern boundary and there is no existing fence in that location. Secondly, the applicant understood the plan to show a basement extending beyond the physical extent of the building on the RSL Land. Thirdly, garages belonging to the adjoining residential flat building at 16 English Street are shown in outline in the plan. 17In my opinion, the first part of this ground is without foundation for several reasons: (a)First, plan WES67-D201 is an elevation plan and does not suggest that any works are proposed to the garages or existing fence. It is of no consequence that an existing fence is illustrated in an incorrect location on that elevation. The inclusion of the garages is simply a depiction. There is no indication that they are to be altered in any way. There is no basement illustrated on that plan located on 14 or 16 English Street. The southern elevation indicates relative levels for floors of the building, including the relative level of the basement which is on part of the RSL Land. There is no suggestion in any plan or document suggesting that the existing basement is to be enlarged. (b)Secondly, the terms of condition 16 cannot be construed as authorising or requiring an easement over the applicant's land or 16 English Street. The lots referred to do not include 14 or 16 English Street. (c)Thirdly, the consent, the development application form and the Statement of Environmental Effects make no reference to any easement over 14 or 16 English Street. The land to which the consent relates does not include the land at 14 and 16 English Street. 18To be perfectly clear, I find, and I note that the respondents accepted, that condition 16 does not contemplate an easement which burdens the applicant's land nor the neighbouring land at 16 English Street. 19However, it became common ground, and I find, that there are the following four errors or drafting slips in condition 16: (a)Lot 48 is mistakenly identified as one of the lots to be benefited by the easement. It is not owned by the RSL Club and is not a lot to which the consent should relate. It is adjacent to the RSL Land. (b)Lot 1 DP 909975, being part of the Hospital Land, is mistakenly identified as a lot to be burdened by the easement. (c)The reference to DP 2313 should be to DP 2013. (d)Lot 44 DP 2013, being the part of the Hospital Land to be burdened by the proposed easement, should be more precisely described as "that part of Lot 44 in DP 2013 shown hatched in approved plan WES67-D102". 20A fifth drafting slip is the reference to 250-256 Railway Parade: the correct address is 250-258 Railway Parade. 21Errors or defects in conditions of consent do not necessarily give rise to invalidity. Conditions of development consents are construed in order to give practical results, recognising that they are not drafted with legal expertise. As Hodgson JA accepted in Westfield Management Ltd v Perpetual Trustee Company Ltd [2006] NSWCA 245 at [36]: as part of upholding the effectiveness of instruments, the Court would try to give them practical effect by avoiding uncertainty. Instruments such as consents and conditions of consent are to be construed, not as documents drafted with legal expertise, but to achieve practical results. 22Similarly, in Kendall Street Developments Pty Ltd v Byron Shire Council [2004] NSWLEC 227 at [12] Lloyd J said: It must be remembered, however, that a development consent such as the present one, is not a document drafted by lawyers. It was drafted by town planners, to be read by town planners and non-legally trained people. The development consent and the conditions must be read in a common sense way so as to give effect to the obvious intention of the draftsperson. Conditions of a development consent are to be construed, not as if the words were the language of a statute, but from a practical viewpoint: see Gill v Donald Humberstone & Co Ltd (1963) 1 WLR 929; Driscoll v J Scott Pty Ltd (1976) 50 ALJR 528 at 531; and Hecar Investments No. 6 Pty Ltd v Lake Macquarie Municipal Council (1984) 53 LGRA 322 at 323. 23The first and second of the five errors referred to above are serious because they misstate part of the land benefited and burdened as, respectively, Lot 48 and Lot 1. The genesis of those errors may lie in approved plan WES67-D102 to the extent that it identifies those lots as, respectively, benefited and burdened. However, it is common ground that this is incorrect. A reasonable decision-maker, properly and fully informed, could not have included references to those two lots in condition 16. Consequently, in my view, condition 16 is invalid insofar as it refers to Lot 48 as benefited land and to Lot 1 as burdened land. I propose to grant a limited declaration of invalidity which will have the effect that those references are to be disregarded but the rest of condition 16 survives. 24The other three errors may be characterised as drafting slips which become apparent when one has regard to the development consent as a whole. I do not regard them as having any invalidating consequence once their proper construction is determined as set out below. The net result of the partial invalidity and the drafting slips is that the second paragraph of condition 16 should properly be construed as follows: An easement for access and parking in favour of Lots 45, 46, 47, 51 and 52 in DP 2013, Lots A and B in DP 376250 and Lot 12 in DP 1108591 on the site known as 250-258 Railway Parade, Kogarah over that part of Lot 44 in DP 2013 shown hatched in approved plan WES67-D102 on the site known as 7-9A Blake Street, Kogarah. 25I propose to make a declaration as to the proper construction. I also propose to direct the parties to take appropriate steps to obtain a modification of condition 16 so that it reads in that way. In my view, such a modification may be obtained under s 96 of the EPA Act. This will not affect any other modification application which may be brought (I was informed by the Uniting Church during the hearing that it proposes to apply for a modification of the consent by deletion of condition 16 altogether). Other Relief Sought 26The relief sought that plan WES67-D201 be destroyed is not relief that is available in judicial review proceedings. The plan is one of the approved plans identified in the consent and depicts development to be carried out. There is no basis for declaring the plan invalid. The reason, seemingly, that an order is sought for it to be destroyed is that it depicts part of the garages at 16 English Street, an existing fence which is depicted in an incorrect location, and a basement said to be depicted incorrectly. The order is said to arise from the third ground of attack on condition 16, that in combination with the condition, the plan depicts the location for further development and an easement over the applicant's land and the neighbouring residential land at 16 English Street. Given that the plan does not intend any such work, relief should not be granted. 27The relief sought that survey plan S 16944 be excluded from the consent is also not relief that is available in judicial review proceedings. The plan is not specifically referred to in the development consent. However, it was part of the supporting information submitted with the development application and condition 1 stipulates that the development must be implemented in accordance with (among other things) any such supporting information. There is no basis for a declaration that this plan is invalid. 28The claim that the Court "correct" the boundary line in plan WES67-D102 is not relief that the Court would grant. This is an approved plan comprising an aerial photograph with a plan of the RSL Land and the Hospital Land superimposed and showing the location of the proposed easement on the latter. If the applicant means that the boundary line between the two should be corrected by excluding the area of the easement, there is no basis on which to do so. If the applicant intends to refer to the different plan WES67-D201, that is an elevation plan and does not illustrate a boundary. If the applicant's concern is that the latter plan encroaches on her boundary, the answer is that, as I have held, the consent does not do so nor is it indicated by that plan. Costs 29Although the applicant exposed errors and drafting defects in condition 16, the consequential orders fall a long way short of her target. The great majority of the hearing time was taken up with the rest of her case, which was without merit. She was self-represented. In the circumstances, I propose to make no order as to the costs of the proceedings. ORDERS 30The orders of the Court are as follows: (1)Declaration that condition 16 of development consent No 244/2011 granted on 20 February 2012 by Kogarah City Council is invalid insofar as it refers to Lot 48 in DP 2313 and Lot 1 in DP 909975. (2)Declaration that in consequence of Declaration 1, the proper construction of the second paragraph of condition 16 is as follows: An easement for access and parking in favour of Lots 45, 46, 47, 51 and 52 in DP 2013, Lots A and B in DP 376250 and Lot 12 in DP 1108591 on the site known as 250-258 Railway Parade, Kogarah over that part of Lot 44 in DP 2013 shown hatched in approved plan WES67-D102 on the site known as 7-9A Blake Street, Kogarah. (3)Order that the respondents take all reasonable steps as soon as practicable to obtain a modification of condition 16 so that the second paragraph reads as set out in Declaration 2 above. (4)The notice of motion filed on 26 April 2012 by the third respondent and Patrick Nash is dismissed save for prayer 5. (5)The said notice of motion will be listed before me on 20 June 2012 to determine if prayer 5 is still pressed and, if so, to fix a hearing date. (6)No order as to the costs of the proceedings. (7)The exhibits may be 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. Decision last updated: 14 June 2012