Land and Environment Court New South Wales Medium Neutral Citation: Lend Lease Communities (Wilton) Pty Ltd v Wollondilly Shire Council [2016] NSWLEC 1066 Hearing dates: 22 January, 2016 Date of orders: 24 February 2016 Decision date: 24 February 2016 Jurisdiction: Class 1 Before: Maston AC Decision: See paragraph [34] below Catchwords: APPLICATION FOR SUBDIVISION CERTIFICATE; Construction of condition of development consent; Relevance of development consent for adjacent golf course Legislation Cited: Environmental Planning and Assessment Act 1979 Conveyancing Act 1919 Cases Cited: Northern Residential Proprietary Limited v Newcastle Council (2009) NSWCA 141; (2009) 75 NSWLR 192 at [57]; Westfield Management Ltd v Perpetual Trustees Company Ltd [2006] NSWCA 245 at [41]; Baulkham Hills Shire Council v Ko-Veda Holiday Park Estate Ltd (2009) NSWCA 160, 167 LG ERA395 at (96) – (100); Botany Bay City Council v Saab Corporation Pty Ltd (2011) NSWCA 308, 183 LGERA 228 at (80); Ryde Municipal Council v Royal Ryde Homes (1970) 91 WN (NSW) 440; 19 LGRA 321; Parramatta City Council v Shell (1972) 2 NSWLR 632; House of Peace Pty Ltd v Bankstown City Council (2000) NSWCA 44; (2000) 48 NSW LR 498; 106 LGERA 440; Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103 at [156]; Auburn Municipal Council v Szabo (1971) Category: Principal judgment Parties: Lend Lease Communities (Wilton) Pty Ltd (Applicant) Wollondilly Shire Council (Respondent) Representation: Mr P. Lalich, Solicitor (Applicant) Mr P. Jackson, Solicitor (respondent) Solicitors: Allens (Applicants) Pikes Verekers Lawyers (Respondents) File Number(s): 11162 of 2015 Publication restriction: No Judgment 1. These proceedings are an appeal under section 109K (1)(c) of the Environmental Planning and Assessment Act 1979 (EPA Act) by the applicant Lend Lease Communities (Wilton) Pty Limited (the Company), against the deemed refusal of the Company's application made on 18/3/2015 for a subdivision certificate for a plan of subdivision relating to lots 39-41 DP 280045 within the "Bingara Gorge" residential development at Wilton. Introduction 1. The form of application for the subdivision certificate lodged with the council claimed that all works required for the subdivision had been completed and stated that the relevant development consent for the subdivision was that granted to the Company by Wollondilly Shire Council (the Council) on 27/2/2014 and numbered DA 010 . 2013. 411. 001 for 53 Residential Lots, 1 Precinct Lot subdivision and associated works (the subdivision consent). This appeal relates only to the 3 lots mentioned. 2. A subdivision certificate is a certificate that authorises the registration of a plan of subdivision under Division 3 of Part 23 of the Conveyancing Act, 1919: see s.109C (1)(d) of the Environmental Planning and Assessment Act, 1979 (EPA Act). 3. To date the Council has not provided the subdivision certificate. In those circumstances section 109K (3)(d) of the EPA Act provides that the Council is to be taken to have made a decision to refuse to issue a subdivision certificate 14 days after the lodgement of the application. This appeal was commenced on 11/12/2015 and therefore within the 12 month period from the date of deemed refusal in accordance with section 109C (2) of the EPA Act. 4. At the hearing the council maintained its position that it is not appropriate to issue the subdivision certificate for one reason, namely, that to do so would not comply with s. 109J(1)(c) of the EPA Act in that the company has not complied with condition 25(2) of the subdivision consent. Condition 25 provides: 25. Golf Course These conditions are imposed to ensure the golf course is safe and commenced within a timeframe acceptable to Council 1. Works are to progress on the golf course at the same time as works for the subdivision of the land. In this regard prior to the release of the subdivision certificate for more than 375 residential lots at least 9 lots of the golf course suitable for public use shall be constructed. In addition, progress on the golf course shall meet the following milestones: * Physical golf course construction including the bulk earth works for 4 golf holes and water storage, a construction compound and vegetation management shall commence prior to the release of the subdivision certificate for more than 200 lots; * Prior to the release of the Subdivision Certificate for more than 250 lots Council shall be provided with evidence that a contract has been entered into for the construction of 9 holes of golf to a playable standard; * Prior to the release of the Subdivision Certificate for more than 275 lots bulk earth works shall be completed for 4 holes; * Prior to the release of the Subdivision Certificate for more than 325 lots bulk earth works shall be completed for 6 holes. This condition does not prevent the release of subdivision certificates that result in the development exceeding the milestones of 200, 250, 275 and 325 lots provided that the works associated with the particular milestone are almost complete and that the works associated with any previous milestone referred to in this condition have been completed. 1. Prior to release of the subdivision certificate for more than 585 residential lots all 18 holes of the golf course shall be completed and suitable for use by the public including the provision of car parking, clubhouse and amenities for staff and visitors. 1. Section 109(J)(1)(c) of the EPA Act provides: 1. A subdivision certificate must not be issued for a subdivision unless: …. 1. (c) in the case of subdivision for which a development consent has been granted, the applicant has complied with all conditions of the consent that, by its terms, are required to be complied with before a subdivision certificate may be issued in relation to the plan of subdivision, and…. 1. The council contends that condition 25 (2) of the subdivision consent has not been satisfied because the golf course, as presently constructed, has neither been "completed" nor is "suitable for use by the public", and that consequently there is no power to issue a valid subdivision certificate as the matters listed in section 109J are essential pre-requisites to the issue of a subdivision certificate, citing Northern Residential Proprietary Limited v Newcastle Council (2009) NSWCA 141; (2009) 75 NSWLR 192 at [57]. It is not disputed that the terms of the Subdivision Consent require condition 25 to be complied with before the Subdivision Certificate may be issued in relation to the 3 lots in question nor is it disputed that there has been full compliance with sub-clause 25(1) of condition 25. 2. The Council contends firstly, that the existing pedestrian access path (the access path) connecting holes currently numbered 1-6 on the eastern side of the course and holes numbered 7-18 on the western side of the course is "not the final means of access" between the eastern and western sides of the course and for that reason the golf course is not completed. Secondly, the Council contends that the course is not suitable for use by the public because there is a lack of suitable access between the eastern and western sides of the golf course and that players cannot effectively traverse the course and play it as one integrated whole. The Council also said that the access path currently in place was uneven, unstable and steep and would require upgrading to make it a suitable means of pedestrian access between holes 1-6 and 7-18, or alternatively that the construction of a bridge that had been approved by the council is required to provide suitable access. Evidence 1. The Company tendered a bundle of documents containing several development consents that have been issued by the Council. This included a development consent to a staged development application numbered ID 993 – 05 (the concept approval) granted on 18/5/2006 with respect to Lot 6 DP 836296 and Lot 101 DP 1045369. The overall development included relevantly 1165 residential lots, open space, and "recreational facilities such as a golf course". Stage one included the creation of a separate lot containing the golf course, the "construction" of the final eight holes of the golf course, the first 10 holes of which were approved under the consent to development application 1558 – 04". That consent was also tendered. The approved plan for each of development consent ID 993 – 05 and 1558 – 04 was also tendered. The relevance of these is considered below. 2. Development consents for the construction of a bridge for pedestrian and golf cart access and associated works granted 18/9/2014 numbered 010. 2013. 735. 001 was included (the bridge consent) as well as development consent for the construction of the country club and golf course facilities granted 12/6/2015 and numbered 010. 2011. 648. 001 – 4. 3. Mr D. Lukic, Senior Development Officer of the Council, provided a statement of evidence dated 18/1/2016 and gave oral evidence. His view was that "whilst all 18 holes can be played, access from the eastern area of the course comprising holes 1-6, to the western area of the course comprising holes 7-18 is presently unsuitable." 4. Mr R.A. Bennett, the State Planning Manager of the Company provided an affidavit sworn 8/1/2016 and also gave oral evidence. His affidavit contains a set of photographs of all 18 holes of the golf course showing the tees, fairways, sand bunkers, "roughs" and greens, as well as correspondence between the Council and the Company. This material confirmed that Occupation Certificates had been issued for the Country Club, golf "Pro shop", café, gymnasium, car park and amenities, including showers, and changing facilities for visitors and staff. 5. By the end of the hearing the Council accepted that all 18 holes of the golf course had been physically completed in the sense that the holes had turfed tees, fairways, greens and complete playing surfaces. Also, there was no contention by the Council that the approved buildings, the carpark, amenities and facilities mentioned in the preceding paragraph were other than satisfactorily completed. The Access Path 1. On the view undertaken by the court on the morning of 22/1/2016 in the presence of the representatives of the parties the focus was on whether the access path was suitable for use by the public. 2. For this purpose I inspected and walked along the length of the access path accompanied by the representatives of the parties. We also travelled in the golf course shuttle bus to go to the access path. There was evidence that rain had fallen over the golf course on the previous day. Those present had no apparent difficulty using the access path or crossing the creek at the bottom of the small gully. Mr Lukic described the access path in his statement dated 18/1/2016 based on an inspection he carried out on 12/1/2016, 10 days before the hearing. His relevant comments and my findings are as follows: 3. He referred to it as a rough track. As seen by me on the view it was a cleared and compacted earth and crushed stone formed path and along part of its length stone blocks had been laid in courses to each side. I did not find the surface to be "rough" to any significant extent, nor did I find it "unstable". Across the width of the access path it was generally level. It was wide enough to allow the viewing party to readily pass over it in ordinary attire and footwear with two abreast. In a few places small exposed rock outcrops formed part of the surface of the path, but these were generally level or near level with the gravel surface. 4. Mr Lukic stated that the track was steep and that a staff member of the council had measured the grades as 20° and 19° in the gully. As seen on the view the grade of the track flattened out at both ends to lead onto cleared and turfed generally level approaches to the adjacent tees, greens and fairways of the golf holes. The gully appeared to be a natural landform with a drainage line at its lowest point. 5. Mr Lukic called the watercourse which crosses the path at the bottom of the gully "Stringy Bark Creek". Two places to cross the stream on foot were provided: the first is by a stone block causeway above the water level. Mr Lukic said that this causeway was 2.7m long and 1.7m at its widest point; the second is a turfed strip causeway or ford. On the view all parties walked over the entire track and crossed the stream using one or other of these causeways without apparent difficulty. I used the turfed level crossing (ford). 6. Mr Lukic indicated that on 12/1/2016 he walked along the access path and across the causeway and that he was recorded by video doing so with a golf bag and buggy. The Council elected not to tender the video recording. 7. Mr Lukic stated that he was required to walk slowly and take care when he used the track on 12/1/2016. He referred in his statement to accessible grade requirements in section 10, "Walkways, Ramps and Landings" in Australian Standard AS1428 .1 2009 (as amended in November 2010) "Design for Access and Mobility Part one: General Requirements for Access – New Building Work". The objective of the standard as stated in the preface is to provide building designers and users with minimum design requirements for new building work to enable access for people with disabilities. Mr Lukic conceded in his cross examination that he was not aware at the date he made his statement of 12/1/2016 that a list of options was offered to golf players including those with a mobility impairment as to the available means of access to all 18 holes. A copy was tendered as exhibit "F". Options were also described by Mr Bennett in his affidavit: * by foot via the route detailed on the map at tab R of exhibit "C" (RB1) to his affidavit; * by car, and * by the Bingara Gorge golf course bus, which presently operates at selected times every second Saturday. * It is possible to play 18 holes of golf by playing holes 10 – 18 twice on normal course operating days and motorised carts are available for that purpose. It is also possible to play holes 1 – 18 on foot but carts are not available on holes 1 – 9. The shuttle bus is available if required. 1. Mr Lukic referred to the bridge consent granted to the company for construction of the pedestrian and golf cart bridge mentioned in paragraph 10 above which would connect holes 9, 1 and 7. Application has been made by the company for approval of the proposed bridge under the Environment Protection and Biodiversity Conservation Act, 1999 (Cwlth). The Australian Department of the Environment has acknowledged receipt of the application and is currently processing it. However, for the purposes of determining whether condition 25(2) of the subdivision consent has been complied with it is irrelevant because the bridge consent was granted on 18/9/2014 (number 010. 2013. 735. 001) – more than six months after the subdivision consent. It appears that Mr Lukic and the Council may have regarded the absence of the subsequently approved bridge as the basis of its contention that the access path is not intended to be the "final" means of access. In my opinion this is not an available basis of determining whether the golf course referred to in condition 25 of the subdivision consent was completed or suitable for use by the public as at the date of the hearing. 2. The issue of whether the condition has been complied with is to be determined against the terms and conditions of the subdivision consent in the context of the physical condition of the land on which the golf course is situated as it was at the date of the hearing: Westfield Management Ltd v Perpetual Trustees Company Ltd [2006] NSWCA 245 at [41]. The proposed bridge was not a requirement of the subdivision consent. Construction of the subdivision consent and condition 25 1. Condition 25 of the subdivision consent is headed "Golf Course" and the condition itself refers to "the golf course". The definite article indicates that it is referring to a particular golf course. Condition 25 (1) makes clear that the golf course is the course which was to be physically constructed at the same time as the residential lots for which development consent was granted in the subdivision consent. There is no doubt as to the identity and location of the golf course in question. It is to be noted that the only documentary material referred to in condition 25 is the contract for future construction of nine golf holes which relates to one of the "milestones" in condition 25 (1). The other milestones require compliance with either commencement or completion of items of physical observable work whose extent is counted by the number of golf holes completed, the construction of those "holes of golf" and the completion of bulk earth works whose extent is similarly counted. Other than the first dot point in condition 25 (1), all dot points describe a physical state of affairs that must exist "prior to the release of the subdivision certificate…" for a certain maximum number of lots in the subdivision to be released. Consistently, condition 25 (2) has a similar structure to 25 (1). It describes a state of affairs, namely one where "all 18 holes of the golf course shall be completed and suitable for use by the public including the provision of car parking, clubhouse and amenities for staff and visitors." 2. For the purposes of condition 25 (2) completion of all 18 holes of the golf course is a state of affairs which can readily be observed and counted. As to the requirement that the 18 holes must be suitable for use by the public including car parking and the other facilities, this is a matter of opinion that can be formed based on observable facts. I accept the Macquarie dictionary meaning of the word "suitable" as 'appropriate'. 3. It is clear that condition 25(2) contains no express reference to any development consent or plan of the golf course. 4. Development consents are to be construed not as documents drafted with legal expertise but to achieve practical results. Conditions of development consents are intended to achieve something substantive and should be construed if possible so as to give effect to that intention and to avoid uncertainty: Westfield at (36); Baulkham Hills Shire Council v Ko-Veda Holiday Park Estate Ltd (2009) NSWCA 160, 167 LG ERA395 at (96) – (100); Botany Bay City Council v Saab Corporation Pty Ltd (2011) NSWCA 308, 183 LGERA 228 at (80). The decisions in Ryde Municipal Council v Royal Ryde Homes (1970) 91 WN (NSW) 440; 19 LGRA 321; Parramatta City Council v Shell (1972) 2 NSWLR 632; House of Peace Pty Ltd v Bankstown City Council (2000) NSWCA 44; (2000) 48 NSW LR 498; 106 LGERA 440; Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103 at [156], per Ward JA, with whom Meagher JA agreed and Auburn Municipal Council v Szabo (1971) 67 LGERA 427 stand as authority for the proposition that, as stated by Hope J in Szabo: … In determining what a Council has approved, one primarily looks at the document constituting the approval, and construes it… The terms of another document may be incorporated in a development approval either expressly or by necessary implication, but I do not think that it is possible otherwise to go to documents outside the formal approval in order to determine what has been approved. In particular, it is not possible to go to the form of application for approval unless in some way that document has in whole or in part, expressly or by necessary implication, been incorporated in the consent. 1. I recognise that the subdivision consent is a product of an original master planned staged development consent. However, I do not consider that that circumstance justifies departure from the long accepted rules of construction of development consents and their conditions. 2. There is no basis in my opinion for arguing that the fact that the subdivision consent is part of a staged development, of itself entitles the Court to resort to the plans belonging to the concept approval or any other development consent issued as a result of it in order to construe condition 25 of the subdivision consent. As to consistency of further development applications following the determination of a staged development application see s. 83D (2) of the EPA act. 3. The test of completion and suitability in condition 25 (2) is purely based on the observable state of affairs to which I have referred above. There is no basis for implying incorporation into the subdivision consent of the documents tendered with respect to the golf course consents. I do not consider that they are relevant or necessary in order to construe or understand the meaning and effect or scope of condition 25 and the subdivision consent. Consideration 1. The central question in this case is whether the access path between the greens and tees of holes 1-6 and 7-18 is so unsatisfactory that it can be said that the golf course is unsuitable for use by the public. I have reviewed the observations made and the evidence relating to the access path in question. It is possible to form an opinion as to the quality and utility of the access path in the context of the surrounding physical features and topography of the course. The gorge is a natural physical feature of the land. It runs north-south and divides the golf course into two parts. It was inevitable and obvious at all times that golfers would need to cross the gorge by some means at some point. The access path provides that crossing. 2. In final address the Council submitted that the course was "too long" and therefore unsuitable taking into account the distance to walk from the Club House situated on the western side of the course to hole 1 via the access path on the eastern side. But the case was not framed as one for non – compliance with the golf course consents and it must be assumed that the golf holes and the Club House are in locations approved by the Council The distance from the Club House to hole 1 is 1.78km by foot or 2.2km by shuttle bus or car. The layout is obviously dictated to a large extent by the topography including the presence of the gorge The holes tend to be spread out along the higher, level ground in a linear fashion. It was agreed that the distance to walk to hole 1 from the Club House using the access path route would be about 1km longer than using the proposed bridge route (if and when all necessary approvals are obtained for it, and it is constructed). Mr Bennett pointed out that this difference represents less than10% of the total length of the course which is about 12-13kms in all depending on the skill of the golfer. However, it was emphasised by the Council correctly in my opinion that it did not contend that the proposed bridge is necessary in order to comply with conditions 25 (2) prior to the issues of the subdivision certificate. Rather, it ultimately contended that "the unsuitable aspect is the present length of the course." Mr Lukic accepted that there is no legal impediment to playing the course as presently laid out and that there was no legal impediment to the mini bus being used to drop-off golfers near the start of the access track at the end of Broughton Street, which was the drop-off point for the view. In my view, condition 25 (2) neither expressly nor impliedly has the capacity to limit the length of the course as constructed such that it could be said that there is a non-compliance with condition 25 on the basis of some inferred standard of course length suitable for the public. Even if that could be said, in my opinion the actual length of the course is not, having regard to the various options for access, unsuitable for use by the public. 3. The steepness and width of the gully is less in the south where the access path crosses the gully. It widens in the North especially in the location of the proposed bridge which is the subject of the bridge consent. I have found that the small watercourse at the bottom of the gully which intersects with the access track is able to be conveniently crossed by golfers and by use of the rock causeway or the turf ford. My own observations and my review of Mr Lukic evidence indicates that the access path is suitable for use by the public. Conclusion 1. In it's context in condition 25 (2) and in the setting of the approximately 12 km long golf course, the reference to "the public" is not a reference to the whole population. It means the golf playing public. It is unlikely that many people with significant physical disabilities would seek to use the course. Nevertheless, provision is made in the instructions given to golfers at the golf course so that physical access can occur by the use of carts, the shuttle bus and/or by golfers on foot and for all 18 holes. People who play golf but have mobility impairment can be thereby accommodated. In this regard it is important to note that since November 2015 the golf course has actually been used by members of the public on a regular basis to play both 9 and 18 hole rounds of golf. This in itself is good evidence that the course is suitable for use by members of the public. I accept that it is the present intention of the applicant to implement the development consent for the proposed pedestrian and cart bridge, subject to all environmental approvals being obtained. I do not accept, however, that this is relevant to determining whether the existing golf course is completed or suitable for use by the public. A literal reading of condition 25 (2) indicates that the reference to completion of "all 18 holes" of the golf course is to the tees, fairways and greens of each of the numbered playing surfaces, as the applicant contended. In condition 25(1) the individual holes are treated as physical earthworks, without reference to the access ways linking them, which in a completed course are needed to play the holes conveniently. However, I consider that in the context of the entire golf course, it could not be said that it was complete without connecting paths or tracks or at least turfed ground able to be traversed on foot or by cart. I have not taken into account the approved plans of the golf course or the staged development consents. Having found that all 18 holes of the golf course have been completed and that the car parking, clubhouse and amenities for staff and visitors have been completed and also that all 18 holes of the golf course and the car park and the other facilities and amenities are completed and suitable for use by the public, it follows that there is no non-compliance with the requirements of condition 25 (2) of the subdivision consent. There being no other claim for refusing to issue the subdivision certificate I conclude that there has been compliance with all conditions of the consent for the purposes of section 109J (1)(c) of the EPA Act. Accordingly it is appropriate to issue the subdivision certificate sought for the three lots that are the subject of the appeal. Orders 1. The orders of the court are: 1. The Appeal is upheld; 2. Direct the General Manager of the Wollondilly Shire Council or the authorized delegate of the General Manager to endorse and issue the Subdivision Certificate(s) for lots 39-41 DP 280045 within 14 days of these orders. 3. The exhibits may be returned. ……………. Acting Commissioner Maston 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: 24 February 2016