Barclay v Wollongong City Council

Foster v Sutherland Shire Council (2001) 115 LGERA 130 ; Hillpalm Pty Ltd v Heaven's Door Pty Ltd [2004] HCA 59 (1 December 2004) unreported; CASES CITED: McLean Bros & Rigg Ltd v James Grice and Another (1906) 4 CLR 835; Western Stores Ltd and Others v Orange City Council [1971] 2 NSWLR 36

APPLICANT Mr J B Maston (Barrister) SOLICITORS G M Ellison & Co Lawyers LEGAL REPRESENTATIVES:

RESPONDENT Mr A M Pickles (Barrister) SOLICITORS Kells The Lawyers

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

1 Talbot J: On 8 September 2004 Wollongong City Council ("the respondent") issued, what it claims to be, an Order under s 121B of the Environmental Planning and Assessment Act 1979 ("the EP&A Act") given to Ian Robert Barclay and Beverley Anne Barclay ("the applicants") as persons acting otherwise than in compliance with Development Consent D93/742. 2 The substance of the Order was in the following form:- Under section 121B of the Environmental Planning and Assessment Act 1979 , Council orders that you implement all action necessary to bring about the compliance of your subdivision of former Lot 22 DP 752054 Princes Highway, Thirroul so that the subdivision will comply with all of the conditions of Development Consent D93/742 granted on 25 February 1994.

3 The applicants were required to comply with the Order within a period of 42 days after date of service. 4 The reasons for the Order were explained as follows:-

· The non-compliance of your subdivision with the conditions of Development Consent D93/742 is prohibiting lawful practical vehicular access being gained from the Princes Highway over Lot 221 to Lot 222 DP 1019889 which is preventing lawful development being undertaken on adjoining Lot 222 DP 1019889. · Council is seeking to use the powers available to it to facilitate the lawful development of Lot 222 DP 1019889. 5 The applicants have exercised their right of appeal against the Order pursuant to s 121ZK of the EP&A Act. Statutory context

6 Section 121B allows a council to give an order to do or to refrain from doing a thing specified in the Table to the section. The Council has nominated order 15 as the relevant order in the circumstances. 7 Order 15 may be given to a person entitled to act on the development consent or person acting otherwise than in compliance with the development consent requiring them to comply with a development consent in circumstances where the development consent is not being complied with. History of approvals 8 By Notice of Determination dated 25 February 1994 the respondent gave notice of determination of a development application no. D93/742 relating to part Lot 22 DP 752054, 97 Princes Highway Thirroul and being development described as Subdivision - 2 Lots by granting consent subject to, inter alia, the following conditions:-

1. The developer must construct a minimum 2.75 metre wide, 150 mm thick concrete accessway reinforced with F72 mesh, from the Princes Highway to Lot 222. The accessway shall be suitably graded and drained to direct runoff to Hewitts Creek in a manner satisfactory to Council. Details of the accessway and drainage including long section and cross-sections must be submitted to Council on engineering plans with the Part XII Subdivision Application. Work is not commence until these plans have been approved by Council and work must be completed prior to the release of the Town Clerk's Certificate.
2. …
3. The developer must prepare a Section 88B Instrument to the satisfaction of Council incorporating the following easements and restrictions as to user - (i) right of way; (ii) easement for electricity supply; (iii) easement for water supply (if necessary); (iv) easement for services; and (v) easement to drain water.

9 The development consent plan showed a "Proposed Right of Way Variable Wide" running generally along the route of an existing driveway access. 10 On 22 June 1994 the Council approved an application under Part XII of the Local Government Act 1919 for subdivision subject to conditions including a requirement to comply with terms of development consent D93/742 submission of a s 88B instrument and submission of engineering drawings to satisfy condition 1 of the Development Consent. 11 A letter from Forbes Rigby Pty Limited Consulting Engineers & Planners dated 8 December 1994 addressed to the first applicant makes the following observations:- Further to Mr David Jollie's instruction, we have undertaken an initial site inspection on 23 November 1994, met with Council's planner Mr Michael Tuffy at Council offices on 29 November, and met with Council's Subdivision Engineer Mr Geoff McIntosh on site on 1 December 2004. We are pleased to report that Council has (sic) officers have accepted our proposal to change the originally proposed subdivision boundary and shorten the length of the concrete accessway from 85 m to 40 m. The 'shortened' accessway is the same length as the existing portion of driveway that is bitumen paved. 12 The letter continued:- We note also further comments made at the site meeting of 1 December 1994 as follows: · Mr McIntosh recommended further changing the subdivision boundaries so that the existing fenced (unpaved) driveway leading to the dwelling on Lot 222 is incorporated into Lot 222 rather than Lot 221. Lot 222 would then be burdened with a ROW (to the benefit of Lot 221) through to the shed about 50 m north of the existing dwelling on Lot 221. · Mr Barclay advised he wanted a covenant on the title of Lot 222 preventing building in the cleared paddock at the southern end of Lot 222. 13 Engineering plans and specifications for an accessway 2.75m wide were submitted to the Council in February 1995 and by letter dated 21 February 1995 the surveyors were advised by the Council that the plans "appear generally satisfactory." One of the plans was returned "suitably endorsed." The plan approved for the purposes of Part XII and the engineering plans also showed the proposed right of way running generally along the route of the existing driveway access. 14 Subsequently, an instrument setting out terms of an easement in accordance with s 88B of the Conveyancing Act 1919 and executed by I.R and B.A Barclay (the applicants), K.A Payne, L.I Dyson and K.L Dyson was presented to the Wollongong City Council and endorsed by its General Manager. The General Manager of the Council a endorsed certificate on the plan of subdivision on 18 September 1998 as follows:- I hereby certify that - (a) The requirements of the Local Government Act 1919 (other than the requirements for the registration of plans), and (b) … have been complied with by the applicant in relation to the proposed SUBDIVISION set out herein.

15 The plan was registered as DP 1019889 on 13 February 2001 thereby giving effect to the subdivision of part Lot 22 DP 7520254 into two allotments.

16 The easement created pursuant to the s 88B instrument and shown on DP 1019889 is a "Right of Carriageway Variable Width" with a frontage of 5.38 to the Princes Highway. Its location does not follow the route of the existing driveway. The site of the right of carriageway is set off from the eastern boundary of Lot 221 and eventually leads to Lot 222 running along its western boundary. Lot 222 has a frontage of only 1.535 to the Princes Highway. It is the contention of the Council that the right of way should have been created over the existing driveway and track across that part of the land subdivided now comprised within Lot 221. Consideration of Hillpalm Pty Ltd v Heaven's Door Pty Ltd 17 Mr Maston, who appears for the applicants, relies substantially upon the principles established by the majority decision of the High Court in Hillpalm Pty Ltd v Heaven's Door Pty Ltd [2004] HCA 59 (1 December 2004) unreported. 18 The decision in Hillpalm needs to be understood in the light of the following facts relied upon by the majority McHugh ACJ, Hayne and Heydon JJ:-

1. Consent for subdivision was granted by Tweed Shire Council in response to an application made in November 1977 by a firm of surveyors acting on behalf of then owner Winchcombe Carson.
2. The plan of subdivision was lodged with and registered by the Register General in 1979 as DP 601049.
3. The plan bore on it a diagram which showed what was described as "proposed right of way 10 wide".
4. One of the lots was further subdivided in 1981 and that plan of subdivision bore the same notation as the 1979 plan.
5. At the date of the litigation none of the land was owned by Winchcombe Carson.
6. The respondent in the High Court (who was the original applicant in the Land and Environment Court) was firstly seeking a declaration that the appellant was in breach of a condition of consent and secondly two consequential orders requiring the appellant not only to create a 10 metre right of carriageway on its land but to construct a track within that right of way in accordance with an alleged condition.
7. The appellant's registered title to its land was not subject to any estate or interest of the respondent. 19 The majority regarded the depiction on the plan of the "proposed right of way 10 wide" as indicating Winchcombe Carson's intention at some unspecified time in the future to create an easement but that nothing in the Local Government Act obliged Winchcombe Carson to give effect to its stated intention. If the depiction could be understood as a condition of the Council's grant of approval to the subdivision it was at most a condition that the intention to do so be stated. The majority accepted that even if it was a condition it was not enforceable against the appellant. The appellant as a subsequent purchaser of the land did not carry "subdivision" development out by occupying and thus using one of the lots in the subdivision. It did not breach s 76A of the EP&A Act because it did not carry the development of subdivision out on the land. 20 The majority ruled that s 123 of the EP&A Act is not to be read as conferring power on the Court to make orders to remedy or restrain breaches of the Act against persons who are not themselves in breach of the Act or who, unless restrained, would be in breach of the Act. They did not discount the prospect that it would have been open to a would-be purchaser of the proposed dominant tenement from Winchcombe Carson to press for the creation of the relevant easement (and to a would-be purchaser of the servient tenement to press for a reduction in price). Beyond that they did not go and, as I noted above, they found that nothing in the legislation obliged Winchcombe Carson to give effect to the stated intention.

21 Finally, although not strictly relevant to the present case, the majority found that any right of enforcement by the respondent against the appellant would be a personal right, not a right in rem to have an interest in land created and that the respondent had no such right found in the relevant statutory provisions. 22 In a dissenting judgment, Kirby J agreed with the remarks of Hodgson JA in the New South Wales Court of Appeal that there was a continuing contravention of a condition of consent and that whilever the condition subject to which the consent was granted remains unfulfilled, the failure to comply enlivens the jurisdiction and powers of the Court under s 123 in respect of "a failure to comply with the condition". Moreover Kirby J expressed the view that the provisions of the EP&A Act prevailed over the Real Property Act in so far as they conflict. 23 Callinan J, who also dissented, relied on the unqualified language of s 123 that "allows any person (without reference to the passage of time) to seek to have the Court make an order "to remedy…a breach of [the] Act"" and s 122(b)(iii) defines a breach of the Act to include a failure to comply with a condition subject to which a consent is granted. In his view the remedy is not confined by s 123 to the person who committed the breach. 24 In order to place the circumstances in the present case in context the following facts can be noted. When D93/742 was granted on 25 February 1994 the whole of the land was owned by the applicants and Iris Peters. L.I and K.L Dyson and K.A Payne are trustees for Iris Peters who died in 1999. Lot 221 is now owned by the applicants following execution of a Deed of Partition on 26 April 2001 with Dyson and Payne. Lot 222 is owned by Raymond Dabbs and Susan Dabbs as purchasers from Dyson and Payne on 12 July 2001. A driveway over the whole of the site of the carriageway shown in DP 1019889 has not been constructed. The issues 25 The following issues are raised by a Statement of Issues filed by the applicants and dated 2 December 2004:-

1. Whether the applicant is a person entitled to act on the development consent or a person acting otherwise than in accordance with the development consent and accordingly not liable to be given an order to comply.
2. Whether the development on the subject land has been undertaken in accordance with development consent and whether the applicant was a person liable to be given an order to comply with the development consent.
3. Whether development consent D93/742 was modified so that the deposited plan was registered in accordance with the consent as modified.
4. Whether the Order should be set aside due to the delay between the carrying out of the development the subject of the Order and the issue of the Order.
5. Whether it is otherwise fair and reasonable, as a matter of discretion, that the Order should be upheld, or modified.

The validity of the Order 26 The terms of s 121B and s 123 of the EP&A Act are distinct and operate according to their terms in different circumstances. Only a council or any other person who exercises functions as a consent authority may issue an order pursuant to s 121B, whereas any person may bring proceedings in the Court for an order under s 123. An s 121B order can only be made if the circumstances specified in Column 2 of the Table exist and the person to whom the order is given comes within the description in Column 3. 27 Setting aside for the moment the question of construction of the conditions of development consent and the effect thereof, the language of the subject Order makes it plain that the Council's contention is that the development consent is not being complied with. That is a circumstance under which an order to comply with a development consent may be made under item 15 of the Table following s 121B. Furthermore, the applicants were two of the persons to whom development consent was granted and accordingly they were respectively a person entitled to act on the development consent, at least at the time it was granted. Alternatively, if the Council is right then they are also respectively a person acting otherwise than in compliance with the development consent. 28 There is an existing concrete driveway constructed across Lot 221 approximately within part of the area designated as "Proposed Right of Way Variable Wide" in the original plans approved by Council and the engineering plans. Part of the accessway has been constructed with concrete up to the point where it serves the house and outbuildings constructed on Lot 221. Beyond that point the accessway continues as a dirt and gravel track. The evidence does not demonstrate that the first part of condition 1 in the development consent D93/742 has been wholly complied with. 29 The second part of condition 1 has been complied with to the extent that engineering plans were furnished and approved by Council except that the engineering plans depict a layout for the accessway only to the point of serving the improvements on Lot 221. Moreover the fact that the accessway from the Princes Highway to Lot 222 remains unconstructed beyond the point of service to the house on Lot 222 supports a finding that the work referred to in the second part of condition 1 was not completed prior to the release of the Town Clerk Certificate on 18 September 1998, as required by that condition. Manifestly no accessway has been constructed over the area designated as "Right of Carriageway Variable Width" in DP 1019889. Accordingly, irrespective of how condition 1 is construed and applied, the specified work in respect of an accessway from the Princes Highway to Lot 222 has not been completed. 30 So far as the preparation of the s 88B instrument, required by condition 3 of the development consent, satisfies the broad and imprecise terms of condition 3 it nevertheless cannot be said that the s 88B instrument establishes the right of way proposed in the development consent plan to which condition 3 relates. To that extent it is arguable that condition 3 has not been complied with. 31 Having regard to the abovementioned facts applied to the circumstances in the present case I am disposed to regard Hillpalm as being decided upon the basis of specific facts in that case where the person entitled to act on the development consent no longer held an interest in the relevant land. Furthermore, as the subdivision had been completed the subsequent owners could not be regarded as carrying out the development and thus in breach of the development consent. Moreover in Hillpalm there were no specific conditions, such as conditions 1 and 3, that are attached to development consent D93/742. Rather than this Court being asked to regard the statements on the development consent plan as a statement of intention to create a right of way, as the High Court was in Hillpalm, the conditions of consent in this case make the approval of the subdivision conditional upon the construction of an accessway and the preparation of a s 88B instrument incorporating the right of way. Finally, the obligation to construct the accessway arguably still rests with the applicants being persons who were entitled to act on the development consent and who continue to own the relevant part of the land to which the obligation relates. 32 In my view the provisions of s 123 as they were applied to the factual circumstances that existed in Hillpalm are quite distinct from the provisions of s 121B, in particular order 15, as they are applied to the facts and circumstances of the present case. There is a development consent and the persons to whom the Order is addressed are respectively persons entitled to act on the development consent and prima facie they are persons acting otherwise than in compliance with the development consent, notwithstanding that there is now no physical possibility for the work in respect of the accessway to be completed prior to the release of the Town Clerk's Certificate, as required by the second part of condition 1. 33 For the abovementioned reasons I am satisfied, notwithstanding the decision in Hillpalm, that the giving of the Order was within the power of Council under s 121B(1) of the EP&A Act.

34 In my opinion the primary question that arises is whether the Order is capable of being enforced notwithstanding the alleged uncertainty of its requirements. Although the issue of uncertainty in respect of the terms of the Order was not formally raised prior to the hearing Mr Pickles, who appears for the Council, has agreed to deal with that issue. 35 In Foster v Sutherland Shire Council (2001) 115 LGERA 130 Cowdroy J at [8], [9] and [10] identified relevant authority to support the proposition that orders are required to be formulated in precise terms in order to avoid uncertainty and the potential for continual breaches and so that the central issue is not left unresolved except by the exercise of a discretion. I agree with the principles adopted by His Honour in Foster. 36 Applying those principles the difficulty with the Order made by the Council on 8 September 2004 is that it requires the applicants to "implement all action necessary to bring about the compliance of your subdivision." The reasons given for the Order as stated in [4] above do not elucidate what it is that the Order requires the applicants to do by way of implementation of action. Various alternatives can be envisaged as follows:-

1. That a further plan of subdivision be prepared and registered as a deposited plan to create a right of way as depicted in the consent plans, the plans prepared for the purposes of Part XII and the engineering plans.
2. The construction of a concrete accessway to the specification in the first part of condition 1 either:- (a) Along the site of the right of way as originally proposed; (b) Along the site the right of carriageway created by DP 1019889; (c) The extension of the existing concrete driveway along the dirt gravel track to a convenient point for access to Lot 222.

(d) Some other part of Lot 221 or even Lot 222 provided that it is an accessway from the Princes Highway to Lot 222. 37 The Court does not have to decide for the purpose of a determination of the issues arising in this case what specific action, if any, is required for there to be compliance with the development consent. The Council has a responsibility to particularise in concise terms what it requires to be done. Until the Council specifies the action it believes is necessary to bring about the compliance with the conditions of development consent D93/742, the Court is not in a position to reflect upon whether the demand for that action to be taken can be regarded as rightly the subject of an order authorised by s 121B Order 15. 38 The particularisation of the action by the Council must necessarily take into account whether the approval of DP 1019889 and the s 88B instrument as registered amounted to modification, or at least confirmation of a modification, of the original development consent. In this respect the letter from Forbes Rigby Pty Ltd dated 8 December 1994 is relevant. The final depiction of the subdivided land in DP 1019889 and the terms of the s 88B instrument appear on the face of the documents to adopt, at least in part, the further comments attributed to Mr McIntosh and Mr Barclay in that letter regarding a covenant. However I have not been able to identify from the documents whether there has been creation of a right of way over Lot 222 for the benefit of Lot 221 by the registration of DP 1019889, the s 88B instrument, or otherwise. I suspect not. My conclusion is that the Order in its present form is so uncertain that it is unenforceable and accordingly is not a valid order.

39 The Council relies upon a statement of evidence by its town planner Anne Trezise. She expresses the opinion that the construction of a driveway along the site of the right of carriageway created by the registration of DP 1019889 would have an adverse impact upon existing trees and other vegetation. Noting that a proposal that uses the existing driveway to service both Lots 221 and 222 would not require the removal of trees she states that such an access arrangement would be preferable to the construction of another driveway in the location of the right of carriageway. There is nothing to be gleaned from the terms of the Order that would justify the recipient reaching an understanding that the course proposed by the Council is consistent with the evidence of Ms Trezise. 40 The Council's stated intention derived from the submissions made on its behalf by Mr Pickles is that a further plan of subdivision be registered as a deposited plan whereby the site of the right of way is re-located to where it is shown in the development consent plan and that thereafter the driveway be constructed in accordance with the specification in condition 1 of the development consent so that there is a concrete accessway to Lot 222 from the Princes Highway. To make an order requiring the registration of a new plan of subdivision necessitates a rationalisation of the approval of DP 1019889 as being an unauthorised illegal act in which the applicant participated. If a new plan is not made, the Order would otherwise require the applicant to construct an accessway for the benefit of Lot 222 over land which is not burdened by any easement in favour of the owners of that Lot. 41 The latter course is self evidently not a practical or sensible one. The registration of a further plan of subdivision is an option that should not be adopted lightly. It would involve intrusion into an established title that prevailed when the present owners of Lot 222 purchased that land on 12 July 2001. There is no evidence of the state of mind of the purchasers nor that any representation was made to them either by the Council or the applicants in regard to the use of the present driveway leading off the Princes Highway across Lot 221. 42 There is an inference arising from the Forbes Rigby letter in December 1994 that the Council acquiesced in the change of arrangements for access to Lot 222 across Lot 221. The letter refers to meetings in November and December of that year. They would have occurred after development consent D93/742 was granted in February 1994 but before DP 1019889 was certified by the General Manager in September 1998. What the letter does make clear is that, according to the engineers, the Council accepted that the accessway did not need to be constructed for more than 40 m thereby limiting the benefit of a concrete surface to the house on Lot 221 and its appurtenances. 43 The Court is entitled to presume that between about December 1994 and September 1998 the relocation of the site of the easement was the subject of an appropriate process that gave effect to the changes made (McLean Bros & Rigg Ltd v James Grice and Another (1906) 4 CLR 835 at 850). Accordingly, the Court is entitled to presume that the certificate on the deposited plan was completed after the General Manager considered the question of legality and formed the particular opinions that entitled him to certify the Deposited Plan as having been made in accordance with the requirement of the Local Government Act (Western Stores Ltd and Others v Orange City Council [1971] 2 NSWLR 36).

44 The requirements of the Local Government Act 1919 included satisfaction that the conditions of the Part XII approval given on 22 June 1994 were satisfied. These conditions included a requirement to comply with the terms of development consent D93/742 and the other matters identified in [8] above. 45 For the above reasons I am not prepared to find on the balance of probabilities that the development consent is not being complied with. It follows that the Council has not established the necessary circumstances to justify an order 15 under s 121B. Further to that finding is the doubt that the Council ever maintained a requirement for the construction of a concrete accessway along the site of the easement for the right of carriageway as shown on DP 1019889. The inference from the letter written by the engineers, in the absence of evidence to the contrary, is that any requirement to build a concrete accessway beyond the first 40 m from the boundary with the Princes Highway was formally dispensed with. Conclusion 46 For the above reasons I find that the Order purporting to be made on 8 September 2004 was not a valid order firstly because it is uncertain in its effect and secondly it has not been shown that the underlying grounds for the issue of an Order 15 exist. The Court is not in a position to modify the Order or substitute for the Order any other order. Nor am I able to find that the Order is sufficiently complied with or make such order with respect to compliance with the Order as the Court thinks fit. The appropriate order therefore is that the Order be revoked pursuant to s 121ZK(4)(a). Orders 47 The formal orders of the Court are:-

1. Appeal allowed.
2. The Order under s 121B of the Environmental Planning and Assessment Act 1979 dated 8 September 2004 is revoked pursuant to s 121ZK(4)(a) of the Environmental Planning and Assessment Act 1979.
3. The exhibits may be returned.

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