Billgate Pty Limited v Woollahra Municipal Council

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10179 AND 10180 OF 2004 BILLGATE PTY LIMITED V WOLLAHRA MUNICIPAL COUNCIL

1 Two related planning appeals have been filed against the Council's deemed refusal of two related development applications in respect of (i) a proposed subdivision of; and (ii) a proposed residential development of, land comprising lots 6 and 7 Deposited Plan 9477 known as Nos 20-22 Roslyndale Avenue, Woollahra.

2 Both appeals have been listed for a combined hearing for five days commencing on 23 August 2004.

3 The Council, in filing its Statement of Issues in both appeals has raised as a preliminary question of law for determination by the Court in advance of any hearing of the appeals on their planning merits, the following question:

Whether the Council or the Court have the power to grant development consent to the proposal having regard to the lack of a relevant downstream drainage easement to dispose of stormwater from the proposed development, given the requirements of clause 25(2) of the Woollahra Local Environmental Plan 1995.

4 It is the Council's contention that on the basis of the Statement of Agreed Facts (Exhibits 1 and 6) neither the Council nor the Court has the power to grant development consent in view of the provisions of cl 25(2) of the Woollahra Local Environmental Plan 1995 (the LEP). The Applicant raises serious doubts as to whether the question posed raises a relevant question but in any event, contends that the Court has the power to determine the pending development applications by granting development consent subject either to a relevant condition in respect of stormwater disposal or to the obtaining of an easement pursuant to the Land and Environment Court Act 1979, s 40 (the LEC Act). B. THE RELEVANT FACTS

5 According to the Statement of Agreed Facts (Exhibits 1 and 6) the following are the relevant facts, noting that the facts recorded in paragraphs 1 to 7 inclusive are common to both appeals:- 1. Clause 25(2) of Woollahra Local Environmental Plan 1995 ("the LEP") provides as follows: The Council must not grant development consent to the carrying out of development on land or the subdivision of land to which this plan applies for any purpose unless it is satisfied that adequate provision has been made for the disposal of stormwater from the land it is proposed to develop.

2. The LEP applies in respect of the development applications the subject of these appeals ("the development applications"). 3. The development applications are in respect of land being Lot 6 DP 9477 known as 20 Roslyndale Avenue, Woollahra, and Lot 7 DP 9477, known as 22 Roslyndale Avenue, Woollahra. 4. The development applications propose to drain stormwater to Council's stormwater drainage system in Wallaroy Road via an existing drainage easement 1.83 wide, being the easement, registered LPI dealing DP 640968 ("the existing drainage easement"). 5. The existing drainage easement benefits Lot 7 DP 94777 and burdens lot 56 DP 8336 and is subject to conditions including the following: The right herein granted to exist only during the use of Lot 7 DP 9477 for the purposes of a single or dual occupancy.

6. Other than the existing drainage easement, no easement has been obtained in respect of drainage of the land the subject of the development applications. 7. An easement is required in order to drain stormwater from the land the subject of the development applications for drainage of stormwater in connection with the proposed development. 8. The development application in proceedings No 10179 of 2004 is for a community title subdivision comprising 6 lots. 9. The development application in proceedings No 10180 of 2004 is for the erection of a total number of 9 dwellings.

6 In elaboration of the agreed fact set forth in paragraph 4, it should be noted that the plans supporting the development application for the proposed residential development include a series of plans (Drawings C01-C15) prepared by Buckton Lysenko Consulting Engineers depicting the proposed stormwater management scheme for the proposed development. Drawing C0-5 (Exhibit 5) shows the existing drainage easement over the adjoining property fronting Wallaroy Road and contains a notation that the drainage lines and infrastructure etc proposed on the development site are to be connected to that existing easement.

7 A further additional relevant fact concerns the power conferred upon the Court (but not the Council) by the LEC Act, s 40 as substituted by the Land and Environment Court Amendment Act 2002 (Act No 76) which came into force on 10 February 2003 and which provides as follows:

40 Additional powers of Court - provision of easements (1) If the Court has determined to grant development consent on an appeal under section 97 of the Environmental Planning and Assessment Act 1979 , the appellant may apply to the Court for an order imposing an easement over land. (2) The Court, on application under subsection (1), may make an order imposing an easement over land if it is satisfied that: (a) the easement is reasonably necessary for the development to have effect in accordance with the consent, and (b) use of the land having the benefit of the easement will not be inconsistent with the public interest, and (c) the owner of the land to be burdened by the easement can be adequately compensated for any loss or other disadvantage that will arise from imposition of the easement, and (d) all reasonable attempts have been made by the applicant for the order to obtain the easement or an easement having the same effect but have been unsuccessful. (3) The jurisdiction of the Court to make an order under this section is exercisable only by a Judge, whether or not sitting alone. (4) Before making an order under this section, the Court must notify the owner of the land affected by the proposed easement (other than an owner who is a party to the proceedings before the Court), and the owner of any land on which it may be necessary for works to be carried out in connection with the easement (other than such a party), of the proposed easement or works, or both. (5) An owner of land affected by the proposed easement and an owner of land on which it may be necessary for works to be carried out in connection with the easement: (a) may object to the proposed easement or works, and (b) is entitled to appear before the Court in support of the objection. The Court must consider each objection. (6) The Court: (a) is to specify in the order the nature and terms of the easement and such of the particulars referred to in section 88 (1) (a)-(d) of the Conveyancing Act 1919 as are appropriate, and (b) is to identify its site by reference to a plan that is, or is capable of being, registered or recorded under Division 3 of Part 23 of the Conveyancing Act 1919 . The terms may limit the times at which the easement applies. (7) The Court is to provide in the order for payment by the applicant for the order to such persons as the Court specifies of such compensation as the Court considers appropriate, unless the Court determines that compensation is not payable because of the special circumstances of the case. (8) The costs of the proceedings, in so far as they relate to an order sought or made under this section, are payable by the applicant for the order, subject to any order of the Court to the contrary. (9) An easement imposed under this section: (a) may be released by the owner of the land having the benefit of it, or (b) may be modified by a deed made between the owner of the land having the benefit of it and the persons for the time being having the burden of it (or in the case of land under the provisions of the Real Property Act 1900 ) by a dealing in the form approved under that Act giving effect to the modification. (10) An easement imposed under this section, a release of such an easement or any modification of such an easement by a deed or dealing takes effect: (a) if the land burdened is under the Real Property Act 1900 , when the Registrar-General registers a dealing in the form approved under that Act setting out particulars of the easement, or of the release or modification, by making such recordings in the Register kept under that Act as the Registrar-General considers appropriate, or (b) in any other case, when a minute of the order imposing the easement, or the deed of release or modification, is registered in the General Register of Deeds. (11) An easement imposed under this section has effect (for the purposes of the Conveyancing Act 1919 and the Real Property Act 1900 ) as if it were contained in a deed. (12) Nothing in this section prevents such an easement from being extinguished or modified under section 89 of the Conveyancing Act 1919 . (13) In this section, owner of land includes a person having an estate or interest in the land that is evidenced by an instrument registered in the General Register of Deeds or the Register kept under the Real Property Act 1900 . C. THE COMPETING ARGUMENTS

8 The Council's argument proceeds along the following lines - (i) Cl 25(2) of the LEP operates as a condition precedent to the grant of development consent to the two related development applications; (ii) the manner in which the development applications propose the management of stormwater runoff from the development site does not relevantly constitute "adequate provision for the disposal of stormwater" because it has not been demonstrated that there exists an appropriate easement over the adjoining property fronting Wallaroy Road (the relevant existing easement being so conditioned as to not be legally available (and, possibly, not physically adequate) for that purpose); (iii) whereas by virtue of the LEC Act, s 39(2), the Court is vested with the power to be relevantly "satisfied" in terms of cl 25(2) of the LEP, it cannot be reasonably so satisfied on the basis of the agreed facts that "adequate provision has been made for the disposal of stormwater" in the absence of the existence of an appropriate easement over the adjoining property fronting Wallaroy Road: cf Codlea Pty Ltd v Byron Shire Council (1999) 105 LGERA 370; (iv) the requirements of cl 25(2) of the LEP cannot be satisfied by the imposition of an appropriate deferred commencement condition pursuant to the EP&A Act, s 80(3) because the imposition of a deferred commencement condition requires the grant of development consent and it is the grant of such consent that is relevantly proscribed by cl 25(2) of the LEP unless the requisite satisfaction is attained: cf Alan Logan and Associates v Byron Shire Council (1997) NSWLEC 138; and (v) the requirements of cl 25(2) of the LEP cannot be satisfied by the Court making an Order for the creation of an easement pursuant to s 40 of the LEC Act because such an Order can only be made after development consent has been granted and it is the grant of that development consent that cl 25(2) of the LEP relevantly conditionally proscribes.

9 The Applicant's competing argument proceeded along the following lines - (i) the question of law raised by the Council travels beyond the limits of cl 25(2) of the LEP by delving into questions of title and property law which questions are generally outside the ambit of legitimate planning considerations cf Grace Bros v Willoughby Council (1981) 44 LGRA 422; King v Great Lakes Council (1986) 58 LGRA 366; North Sydney Council v Ligon 302 Pty Ltd (1996) 185 CLR 470; (ii) the requirements of cl 25(2) of the LEP are capable of being satisfied by the imposition on the grant of development consent of a condition to the effect that the approved development may not be carried out unless and until there has been created an appropriate drainage easement over one or other of available downstream parcels; and (iii) the requirements of cl 25(2) of the LEP are capable of being satisfied by an order pursuant to the LEC Act, s 40 being made by the Court upon application following the decision by the Court to grant development consent to the pending development applications.

10 The Council, in its argument in reply countered the Applicant's competing arguments by submitting as follows - (i) the requirement of cl 25(2) of the LEP that " adequate provision be made for the disposal of stormwater ", in the present development applications (which have proposed that the stormwater management system for the development site include the connection of that system to the existing easement over the adjoining property fronting Wallaroy Road) necessarily extends to a consideration of the question of the legal capacity or competence of such an arrangement (in addition to any considerations of physical capacity etc of the existing easement); (ii) the Applicant's suggested condition of development consent would not satisfy the requirement of cl 25(2) of the LEP that the "adequate stormwater provision" has been made before development consent is granted - moreover, the imposition does not, and necessarily cannot, satisfy the requirement of cl 25(2) of the LEP; and (iii) the power conferred upon the Court by s 40 of the LEC Act is predicated upon the fact that the Court has first "determined to grant development consent" which necessarily means that the grant of development consent has preceded the making of the s 40 Order and thus necessarily would involve a violation of cl 25(2) of the LEP. D. THE COURT'S ADJUDICATION

11 In my judgment, the question of the impact of cl 25(2) of the LEP on the pending related development appeals cannot be determined on the basis of the agreed facts in advance of the hearing of the appeals on the merits because it will be on that occasion that the Court will need to determine on the basis of the evidence adduced at the hearing whether it is relevantly satisfied of the requirements of cl 25(2) of the LEP. Unlike Codlea (which itself did not involve the adjudication of the question of law as a preliminary matter) the requirement of cl 25(2) of the LEP that there be "adequate provision for the disposal of stormwater" is not determined by the attitude or action of the Council. Rather, it is a matter between the Applicant and the relevant landowner of the land over which the easement is necessary. The agreed facts do not conclude this matter other than to state that an easement is necessary and to date none has been granted.

12 There is no issue between the parties that cl 25(2) of the LEP precludes the grant of development consent to the two pending development applications unless the Court relevantly "is satisfied that adequate provision has been made for the disposal of stormwater from the land it is proposed to develop".

13 To the extent that the parties are in dispute concerning the precise limits of the reach or ambit of the requirement that there be "adequate provision", I am of the opinion that that requirement in the present cases (which propose the disposal of stormwater via the existing easement over the adjoining property fronting Wallaroy Road) includes consideration of the legal capacity or competence for so utilising the existing easement (in addition to any question of the physical capacity of the existing drainage infrastructure provided in that easement).

14 Upon the assumption that the evidence adduced at the hearing of the appeals will be insufficient (either legally or factually) to enable the Court to conclude that "adequate provision" relevantly has been made for the disposal of stormwater (for example that the evidence satisfies the Court that there is no legal entitlement to utilise the existing easement over the adjoining property for the purpose of disposing of stormwater from the proposed development) my adjudication upon the remainder of the parties' competing arguments is as follows: (i) cl 25(2) of the LEP would not be capable of being satisfied by the imposition of a condition of the type suggested by the Applicant, not only because logically the imposition of such a condition requires the grant of development consent and that grant is proscribed by cl 25(2) unless the relevant adequate stormwater provision " has been made ", but also because the imposition of the condition necessarily carries the possibility of non-compliance therewith, with the legal consequence that the Court could not be satisfied that adequate provision relevantly "has been made ": cf Hornsby Shire Council v Malcolm (1986) 60 LGRA 429 at 442 per Glass JA (with whom Mahoney JA at 443 agreed); and (ii) the power vested in the Court to make an order pursuant to the LEC Act, s 40 upon application being made to it, would be available in the event of Court "determining to grant development consent" to the pending development applications and the making of a s 40 Order would be capable of satisfying the requirements of cl 25(2) of the LEP. 15 In so concluding that the power conferred by the LEC Act, s 40 could be available to the Court in the present cases (ie if the Court relevantly "determines to grant development consent") I would reject the Council's argument that the proper construction of s 40 limits the availability of the power to cases where the Court has already granted development consent. The Council's argument that the verb "determine" in the expression in s 40(1) "If the Court has determined to grant development consent" is to be understood in the light of the EP&A Act, s 80(1) technical usage of the same word, is, in my opinion an unconvincing interpretation - both linguistically and purposively. The ordinary meaning of the verb "to determine" clearly fits the context, which is directed to the Court's appellate planning function under the EP&A Act - see also s 39 of the LEC Act - by conferring an adjunct power that relates to that planning function.

16 The power conferred by the LEC Act, s 40 is obviously beneficial and facultative and it should accordingly be liberally construed cf (i) s 40 in its original form as interpreted by the Court of Appeal in Hornsby Shire Council v Gosper (1993) 82 LGERA 1; and (ii) the Conveyancing Act 1919, s 88K .

17 In this context, there is no justification for construing narrowly the condition specified in subsection (1) which enlivens the power, especially where the statutory language employed naturally covers a case where the Court has either granted development consent or decided ("determined")to grant development consent but has withheld making final orders for appropriate reasons. Quite apart from the dictates of cl 25(2) of the LEP, an appropriate reason may well be the decision to await the outcome of an application for an order pursuant to s 40 before granting development consent in a planning appeal where the Court has concluded that the proposed development simply cannot be properly or responsibly sanctioned or carried out without the benefit of a necessary drainage easement which is procurable on application made pursuant to the LEC Act, s 40. In the present case, where cl 25(2) of the LEP operates as a condition precedent to the grant of development consent the reason for the Court to withhold granting development consent in the planning appeal until it adjudicates upon an application for an order pursuant to s 40 is of course a fortiori, being mandatory and not merely appropriate.

18 The conferral by the LEC Act, s 40 upon the Court of the power to order the creation of an easement in the context of a decision by the Court to uphold a planning appeal restores to the Court the type of beneficial power that had been vested in the appellate planning body in NSW continuously since 1969, except for the period following the Court of Appeal's decision in Gosper which held that the LEC Act, s 40, as originally enacted, did not confer such power upon this Court. In the period of nearly a decade between the Gosper decision and the enactment of the substituted s 40, the power has been absent this Court (although a similar power was vested in the Supreme Court in 1996 by the enactment of the Conveyancing Act, s 88K.) The Council's proffered interpretation of s 40 and its related argument that cl 25(2) of the LEP would, if adopted, defeat or frustrate the clear purpose of the vesting of the statutory power in this Court as an adjunct power related to its appellate planning power. In my opinion, it should be decisively rejected as advancing nothing but dry literalism and unnecessary legalism.

19 For all of the foregoing reasons, I would answer the question of law in the following manner (which is an unavoidably lengthy answer but necessary in order that on the hearing of the related appeals both the parties and the Commissioner have the benefit of my adjudication on the matters presently in dispute between the parties) -

The Court may not grant development consent unless it is satisfied that adequate provision has been made for the disposal of stormwater from the land it is proposed to develop in terms of cl 25(2) of the LEP.

In the present cases where it is proposed to utilise the existing easement over an adjoining property the question of the adequacy of the provision may legitimately include consideration of the legal capacity or competence to utilise the existing easement (in addition to any consideration of its physical capacity).

If on the hearing of the appeals it be held that the existing easement is not legally available for the proposed purpose the requirements of cl 25(2) of the LEP would not be capable of being satisfied by the imposition of a condition of development consent requiring such provision but those requirements would be capable of being satisfied by the making of an order pursuant to the LEC Act, s 40 for the creation of any necessary easement if the Court, on the hearing of those appeals, determines to grant development consent. E. ORDERS 20 For the foregoing reasons, I make the following orders - 1. The question of law be determined in the manner propounded in paragraph 19 of these reasons. 2. The question of costs be reserved. 3. The exhibits remain with the Court's files.

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.