Bookrill Pty Ltd v Parramatta City Council

Judgment 1SENIOR COMMISSIONER: Palmer Lane at Parramatta is a modest and otherwise undistinguished dead end thoroughfare. It is proposed by Parramatta City Council (the Council) that the thoroughfare should be modified significantly by turning the present blunt head of it into a proper cul-de-sac with a turning circle. This is identified, in part, through the provisions of cl 25 of the Parramatta City Centre Local Environmental Plan 2007, a provision that identifies and makes provision for land acquisition within certain zones - identifying who is proposed to be the acquiring authority for various classifications of land. The clause provides, in subclause (2), that land in Zone SP2 Infrastructure and marked "local road" is to be acquired by the Council itself. The relevant sheet of the Land Reservation Acquisition map, sheet LRA_001 forming part of that Local Environmental Plan, identified the land at the head of Palmer Lane as being for local road purposes. That sheet was exhibit 5 in the proceedings. 2It is necessary to set out, at some length, the history of the interaction between the owners of the land at 21 Sorrell Street, Parramatta, part of which forms the subject of these proceedings, and the Council since 1987. I note that, as will be discussed in more detail later, the then owners of the land (the now applicants in the proceedings) are no longer the owners of the land but have their rights to any compensation that might arise from the transfer of a little over 70 square metres at the head of Palmer Lane to the Council reserved to them although they are no longer owners of the land. 3On 30 April 1987, the Council wrote to the then owners, through their solicitor, advising that there was proposed to be road widening in Palmer Lane and that, in that, letter the Council observed "You are further advised that under normal circumstances the Council will acquire the land by dedication upon redevelopment of the site." The words "dedication upon redevelopment of the site" are Delphically undefined and the concept of dedication, a matter to which I will need to return, is undefined. 4After a hiatus of several years, in 2001 (on 9 July), the Council wrote to the owners indicating that the Council had, over a number of years, carried out design proposals for the laneway and indicating that the Council had acquired various sections of the land to extend and widen the original land at the rear of the properties by either acquisition or dedication. 5Clearly, at least in that letter for that purpose and at that time, this indicated that the Council drew a distinction between acquisition and dedication. That distinction, at that time, is not, in my view, germane in any fashion to the interpretation of cl 117 of the present development consent that is proposed to be modified in these proceedings. 6Shortly after the receipt of that letter, the owners wrote to the Council suggesting that the Council's proposal "to acquire the rear portion of 21 Sorrell Street should be put on hold pending consideration of a proposed development application". That development application does not seem to have materialised at that time. 7In 2004, the Council indicated that it was proposing to carry out works in the laneway and in Sorrell Street but did not discuss the question of acquisition or dedication of the land. 8On 29 September 2006, a development application was lodged that included 21 Sorrell Street and an assessment report was prepared for that proposed development. In that assessment report dealing with acquisition and development or reserved land, the assessment report said "The south-western corner of the site is reserved for an extension of Palmer Lane. This extension would complete the bulb shaped termination point to the end of the lane and ensure that it functions properly as an area used for vehicles to turn around. The plans submitted with the application ensure that the development does not encroach into the area of reserved land. This will ensure that the land can be acquired by the Council when the owner of the land requests that Council acquires the land." 9The development application was determined by the granting of development consent on 18 June 2007. The development consent conditions contain no reference to the land at the head of Palmer Lane. 10While that development consent was on foot, a further development application was lodged on 15 March 2010 for a mixed use development on 7 and 9 Victoria Street and 21 Sorrell Street. It was accompanied by a Statement of Environmental Effects prepared by Mike George Planning Pty Limited. That Statement of Environmental Effects makes several mentions of the head of Palmer Lane. The first, on page 6, of the Statement of Environmental Effects says: "Landscaping in the south-western part of the site with the western edge determined by Council's proposed acquisition for a cul-de-sac head on Palmer Lane". 11The plans that form part of the Statement of Environmental Effects note, in the south-western corner, the non-inclusion in the plans of the development of the relevant area at the head of Palmer Lane and observe that that area is proposed to be used for the purposes of the land for the turning circle at the head of Palmer Lane. 12Finally, on page 28 of the Statement of Environmental Effects, it observes "The site development has been arranged to assist the Council in acquiring land to construct a cul-de-sac head at the end of Palmer Lane in accordance with its intentions as advised to the owner by letter dated 6 February 2004. This roadwork is unrelated to any traffic demand from the subject site and is outside the ambit of S94 contributions." 13As part of the assessment process, the internal Council notification system was triggered and a number of matters arose during the course of that consultation process. First, in a memorandum dated 18 March 2010 from the Council's urban designer to the relevant development assessment officer, the urban designer observed under the heading "Land Acquisition" "The south-west corner of the site is identified in the LRA_001 local road widening Land Reservation Acquisition map within the city centre LEP. This has been indicated in the plans 'as proposed cul-de-sac to Council's details (if acquired by Council)'". 14The architects for this development application, Architex, had a meeting with the Council (apparently with its Parramatta design review panel) on 5 May 2010 and, on 3 June 2010, provided a number of matters - including some drawings for the Council - in response to matters raised during that discussion. 15The first of those drawings is a Public Domain Plan which shows the development at the street level set back from Palmer Lane, but does not include the annotation about its future acquisition for the turning circle at the end of Palmer Lane. I am satisfied that nothing arises from this omission. 16Of some importance in the proceedings is the development assessment specialist referral undertaken through the Council's engineering department. On 12 May, that is after the meeting between Architex and the Council, the referral was completed and it is notated as having three elements. Firstly, that the proposal is supported. Secondly, that the standard conditions of consent should be imposed. Finally, and relevantly, that there should be a special condition of consent imposed. 17After para 19 of the proposed conditions that arise from that review is the notation "Non-Standard engineering condition: Engineering design to culdesac and the road reserve in Palmer Lane frontage," and then it proposes this condition. "Prior to the commencement of works, detailed drawing plans for the cul-de-sac and the road reserve in Palmer Lane shall be prepared by a competent civil engineer to Council's standards and requirements then submitted to the Service Manager of Civil Infrastructure in Council, for design checking and approval prior to construction, subject to Council's satisfaction." 18Then, I interpose, critically, "The cul-de-sac road section shall be dedicated in benefit of Council to be part of Palmer Lane road reserve prior to the release of the occupation certificate." This is, as far as I have been able to ascertain from the voluminous documentation provided to me, is the first and only internal discussion of any originating nature of this proposed condition. 19Subsequent to the provision of that report, there was an email exchange between the Council's Supervisor of Civil Assets, and the manager of civil engineering at HKMA Engineers, an engineering enterprise that been acting on behalf of the applicants for that development consent. 20At para 4 of an email from the engineering company to the Council, there is mention made of the Palmer Lane cul-de-sac. I do not need to set out this in its entirety - save to note that there is no mention, in this email exchange, either by the applicant or the Council, of the basis of transfer, the notation simply relating to a proposed retaining wall to be constructed along the dedicated boundary alignment of the cul-de-sac. 21Plans that are attached to or were provided to the engineering company at that time by the Council - being the Council's Plan No: 14792 - set out a range of sections, both longitudinal and cross-sections, for the proposed works in the lane for road reconstruction and drainage purposes, including some detail concerning the element of 21 Sorrell Street proposed to be incorporated in the turning circle at the head of the laneway. 22A development assessment report was prepared for this Development Application - DA No 184 of 2010. Under the heading of 'The Proposal' the analysis by the assessing officer includes the following. "The works also include provision of an awning over the footpaths of Sorrell Street and Victoria Road, dedication of land at the rear of the site for the purposes of Council creating a turning area at the end of the Palmer Lane cul-de-sac, public domain works." 23There is nothing in the assessment report that provides any reason as to why or for what purpose the word "dedication" is used in that paragraph. There is, some seven pages on in the assessment report, a quotation from matters provided by the applicant under the heading 'Land Acquisition' and it says, "The south-western corner of the site is identified in the LRA_001 local road widening land reservation acquisition map within the City Centre LEP. This has been indicated in the plans as 'proposed cul-de-sac to Council's details if acquired by Council'," and there is thereafter extracted a small map with a notation that it is an extract from the land acquisition map that arises from cl 25 of the Parramatta City Centre LEP 2007. 24In the discussion of the LEP later in the assessment report, p 31 deals with cl 22G of the City Centre LEP. The discussion occurs as part of a sequential discussion of all relevant issues arising under the various clauses of the Local Environmental Plan. As I indicate, cl 22G is discussed on p 31. The discussion of cl 22G is immediately followed, on p 32, by the discussion in the report of the impacts of cl 33A. There is no intervening discussion relating to cl 25 of the LEP. 25The assessment report recommends that the project be approved. As the project was to be one (as noted in the assessment report) of a value of greater than $10 million, it was required to be considered by the relevant Joint Regional Planning Panel. The assessment report recommended a wide range of conditions, one of which was in the following terms (as proposed condition 118). "The cul-de-sac road section illustrated on the approved architectural plan shall be dedicated in benefit of Council to be part of the Palmer Land road reserve prior to the release of the occupation certificate." 26The Sydney West Joint Regional Planning Panel met, at the Council, on Thursday 9 September 2010 and considered a range of applications for development consent - including this one. 27At agenda item 13, Development Application 184 of 2010 for the mixed use development at 7-9 Victoria Road and 21 Sorrell Street, Parramatta, was considered. It was moved and seconded by members of the Panel that the Council adopt the officers' recommendation to approve the proposal with an amendment. The amendment was of a minor nature, being to correct the words "Palmer Land road reserve" to read "Palmer Lane road reserve." Subject to that amendment to correct the typographical error, the motion was carried unanimously and the development was approved. 28A notice of determination, dated 24 September 2010, was issued to the applicant in these proceedings, Bookrill Pty Limited. The first clause in the development consent conditions that are attached to the notice of determination is the setting out of the plans and documentation that are to be included as forming part of the development consent. They comprise the various architectural, stormwater, landscape plans, the schedule of finishes provided by the architect, an acoustic report, a Basics Certificate, and a heritage impact assessment. No other documents arise for consideration in the construing of the development consent as none are imported in a fashion consistent with the decision in Ryde Municipal Council v Royal Ryde Homes (1970) 1 NSWR at 277; (1970) 91 Weekly Notes NSW 440; (1970) 19 LGRA 321. 29As a consequence of renumbering (for reasons that were not and do not need to be explored), the proposed condition 118 became condition 117. The typographical error corrected by the Joint Regional Planning Panel was not corrected in the development consent condition - but, in my view, absolutely nothing turns on that. 30Following the granting of the development consent, the beneficial owners of the land, that is Mr Muscat and Mr Edgerton, wrote to the Council on 10 November 2007 seeking to have the Council resume negotiations for the acquisition of the land for the Palmer Lane cul-de-sac head. At this time, Mr Muscat and Mr Edgerton sold the site to the ultimate developer, SKF Development Pty Limited, as trustee for the SKF Development Unit Trust. At or about the time of the sale, Mr Muscat and Mr Edgerton entered into a deed with SKF Development Pty Limited on 29 December 2010. In the recital setting out the background to the deed, the deed notes that, "Under Clause 63 of the Contract the Vendors reserved to themselves all rights to any compensation arising from the dedication/acquisition of part of the land by Parramatta City Council as contemplated in Development Application 184/2010 consented to by the said Council on 9 September 2010." 31In the operative part of the deed, at cll 1 and 2, there are express rights of assignment of that interest to Mr Muscat and Mr Edgerton, and an acknowledgement that the purchaser remains bound by the provisions of cl 63 until the rights granted to the vendors therein are satisfied as contemplated by the clause. 32From that time onwards, there was a process of negotiation and valuation - with reputable licensed valuers engaged by the Muscat/Edgerton interests and by the Council. In or about July 2012, agreement was reached between the Muscat/Edgerton interests and a Property Program Manager at the Council for a purchase price of about $435,000. However, shortly thereafter, in August 2012, it would appear that the Council's in-house legal advisor indicated that, pursuant to cl 117 of the development consent, the land was to be transferred to the Council free of compensation and that compensation was not to be paid. That was conveyed to the Muscat/Edgerton interests by letter in early August. 33By letter of 21 August, the response was provided setting out the nature of the discussions that had taken place over a very considerable period of time and the agreement that had been reached. However, the Council has remained of the view that no compensation is required to be paid and that, at least until these proceedings came to be litigated, the condition required the transfer of the land without payment of compensation. 34As a consequence of all that, on 22 February 2013 a modification application pursuant to s 96 of the Environmental Planning and Assessment Act 1979 was lodged with the Council seeking modification of condition 117 and amendment of the description of the front page of the development consent and the modifications sought were set out in that order in the annexure to the modification application. The application sought to add the words: