Byron Shire Council v Detala Pty Ltd - [2001] NSWLEC 234 - NSWLEC 2001 case summary — Zoe

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Byron Shire Council v Detala Pty Ltd

[2001] NSWLEC 234

Land and Environment Court (NSW)|2001-10-03|Before: Bignold J

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Source facts

Court

Land and Environment Court (NSW)

Decision date

2001-10-03

Before

Bignold J

Source

Original judgment source is linked above.

Judgment (274 paragraphs)

[1]

CITATION : Byron Shire Council v Detala Pty Ltd [2001] NSWLEC 234 APPLICANT: Byron Shire Council PARTIES : RESPONDENT: Detala Pty Ltd FILE NUMBER(S) : 40043 of 2000 CORAM: Bignold J KEY ISSUES: Development Consent :- whether or not lapsed-whether works relied upon to avoid statutory lapsing were unlawful being in contravention of condition of consent and/or the EP&A Act s 76A(1 s 81A(4). Environmental Planning and Assessment Act 1979, s 95(1) and s 95(4) Environmental Planning and Assessment (Savings and Transitional) Regulation 1998 LEGISLATION CITED: Environmental Planning and Assessment Amendment Act 1997 (Act No 152) Local Government Act 1993 Local Government Act 1919 Part XII Coalcliff Community Association Inc v Minister for Urban Affairs and Planning (1999) 106 LGERA 243; Green v Kogarah Municipal Council (2001) NSWCA 123; Grand United Friendly Society v Parramatta City Council (2000) NSWLEC 207; Hornsby Shire Council v Winsloe 101 LGERA 117; CASES CITED: Iron Gates Developments Pty Ltd v Richmond-Evans Environmental Society Inc (1992) 81 LGERA 132; Meriton Apartments Pty Ltd v Ryde City Council (2000) 108 LGERA 352; Mison v Randwick Council (1991) 73 LGERA 349; Over Our Dead Body Society Inc v Byron Bay Community Association Inc [2001] NSWLEC 125; Rao v Canterbury City Council (2000) NSWCCA 471 DATES OF HEARING: 20-22/11/00, 01/12/00, 02/03/01, 07/05/01, 24/05/01, 08/06/01 DATE OF JUDGMENT: 10/03/2001

[2]

[127]

It is submitted that condition 23 has two distinct parts; the first comprising the first sentence and the second comprising the second. The first sentence is advisory or declaratory only and has no operative effect. That is, the purpose of the first sentence is to advise an applicant that no tree may be removed contrary to the Tree Preservation Order. It is submitted that this sentence does not operate as a requirement that any further approval pursuant to the Tree Preservation Order need be obtained prior to removal of those trees required to be removed to enable the consent to be implemented. 14 The granting of the 1995 consent by Commissioner Bly operated as a consent for all purposes required pursuant to the provisions of the EP & A Act. It clearly envisaged the removal of trees for the purpose of undertaking the subdivision works and the subdivision itself which the consent authorised. Accordingly, it is submitted that no further and/or separate consent is required for the removal of trees required to be removed to enable the 1995 consent to be implemented., notwithstanding the existence of the Tree Preservation Order (see Grand United Friendly Society v Parramatta City Council [2000] NSWLEC 207 (unreported, Talbot 27 September 2000). 15 The second part of the condition requires the lodgment of a plan. That plan is to indicate any tree or trees which require removal. That is, removal to permit the subdivision works the subject of the 1995 consent to be implemented. Thus, it is submitted that the plan was to indicate the tree or trees in respect of which removal was necessary or required in order to facilitate the development for which consent has been granted (the Tree Plan). 16 The Tree Plan was to be submitted to the Council for approval by its Planning Manager. It is submitted that the approval referred to herein is an acceptance by the Council that the tree or trees which are shown on the Tree Plan are trees which are required to be removed in order to facilitate the development consent. The approval of the Manager is to occur prior to any works commencing .These words are the crux of the dispute between the Council and Detala. 17 The Council asserts that the Tree Plan must be approved prior to the undertaking of any works at all on the land. Detala submits that this construction is incorrect and that the Plan need only be approved prior to the commencement of any works the subject of the approval which necessitate the removal of trees; or put another way, works which cannot be carried out without the removal of trees. The contrary construction would permit the Planning Manager to refuse approval of the Tree Plan so as to frustrate not only the implementation of the consent generally but also the carrying out of sufficient work to prevent the consent lapsing. Such a construction would not be adopted without clear words. (See distinction in conditions referred to in Irongates and Coalcliff). In this respect the adjective any does not take the matter further. There is no difference in meaning between the words prior to any work commencing and prior to work commencing: see, for example Condition 24 and 27. 18 Condition 23 read in the context of the 1995 consent as a whole supports this construction of the condition. Conditions 4, 14, 23, 24 and 27 provide for certain things to be done before certain works are done. It is apparent from the context of these conditions that the Council was requiring that certain information be provided to it before the work the subject of that information was carried out. In construing the consent as a whole there is no reason, it is submitted, to place a different construction on the words in condition 23 to those words where they appear in those other conditions of the 1995 consent to which reference is made. 19 Further, if it was the Council's intention to require the Tree Plan to be approved prior to the carrying out of any works at all on the land, the condition should have been framed to reflect that intention. It is respectfully submitted that condition 23, as drafted, is ambiguous as to what work is required to be carried out and therefore should not be construed in the expansive manner referred to by the Council. Accordingly, given its context of requiring a Tree Plan identifying trees which require removal, it only makes sense for that plan to be lodged and/or approved before the commencement of works which require the removal of the trees so identified so Council can be satisfied that only those trees are removed as a consequence of those works. The condition and its operation are distinguishable from those referred to in Coalcliff Community Association Incorporated v Minister for Urban Affairs and Planning and Ors 106 LGERA 243 (Coalcliff); and Iron Gates Development Pty Limited v Richmond-Evans Environment Society Incorporated (1992) 81 LGERA 132 at 133) (Iron Gates). 20 Looked at as a whole, in light of the foregoing, it is apparent that the first sentence of condition 23 was aimed at the removal of any tree not required to be removed to implement the consent. Such a tree would still require approval under the Tree Preservation Order. The second sentence was aimed at those trees for which no further development consent or Tree Preservation Order approval was required, namely, any tree which was required to be removed so that the 1995 consent could be implemented.

[129]

Meriton Apartments Pty Limited v Ryde City Council (Lloyd J NSWLEC 30 April 1998, unreported at paragraphs 12-16) Cameron v Lake Macquarie City Council (2000) 107 LGERA 308 at 313; Dames & Moore Pty Ltd v Byron Shire Council [2000] NSWLEC 46 at paragraphs 16-18. 48 The tenor of the recent judicial consideration suggests that a TPO controls development within the meaning of the EP & A Act. This determination, however, was made in the context of an applicant seeking to remove trees where no development consent already existed in respect to the use of land which required, of itself, the removal of trees in order for the consent to be implemented. 49 This distinction is critical as in the present case Detala has the 1995 consent. That consent anticipated the removal of trees (see Judgment of Commissioner Bly and transcript.). The removal of trees due to the proposed subdivision works and their potential impact was a hotly contested issue at the hearing of the appeal before Commissioner Bly (see Transcript and index). 50 Section 81 A(3) of the EP & A Act anticipates that part of any development consent for the subdivision of land is the authority to carry out physical activity on the land the subject of the consent to implement the proposed subdivisions and subdivision works such as road construction is expressly exemplified.. 51 In Grand United Friendly Society v Parramatta City Council [2000] NSWLEC 207 Talbot J considered a matter factually very similar to the present case. His Honour determined that the development consent in that case authorised the removal of trees for the purpose of, or in connection with, the subdivision approval and that no further or separate consent was required for the removal of such trees whether under the EP & A Act or the Parramatta TPO. 52 It is accepted that each case turns upon its own facts and upon the construction of the particular development consent. It is clear form the decision in Grand United that the conditions imposed upon that consent dealt with the issue of tree removal. The differences between the conditions in Grand United and the 1995 consent, however, are not sufficiently different to render Grand Untied distinguishable on its facts. Both consents clearly anticipated tree removal as necessary for the development the subject of the consent to be undertaken. Conditions were in place to ensure tree removal was limited. Both local government areas had TPO's which controlled the removal of trees. 53 It is respectfully submitted that for the reasons outlined above and in light of the evidence now filed in these proceedings (which places condition 23 in its proper context to enable a better understanding of its purpose and intent), the finding of this Court in Dames and Moore v Byron Council [2000] NSWLEC 46 at para 16 that:

[131]

was incorrect. It is therefore submitted that the Court would not, in this case, adopt that finding in respect of condition 23. This is particularly so in light of the evidence that the issue of tree removal required by the proposed subdivision works was one of the very issues upon which the Council resisted the granting of the 1995 consent in the proceedings before Commissioner Bly. It is thus abundantly clear that the 1995 consent carried with it any development consent (or other approval required pursuant to the LEP) to remove trees to enable that consent to be implemented. 54 If the last sentence of that finding be correct, given that the question of tree removal was an essential matter to enable that consent to be implemented, that consent would fall foul of the principle referred to in Mison v Randwick City Council (1991) 73 LGRA 349 at p.354 that requires a consent to be final. The Court, in imposing such a condition could not have intended to grant an invalid development consent. Accordingly, it is submitted that the construction referred to in the last sentence of the finding was incorrect. 55 It follows from the foregoing submissions that condition 23 did not leave for future consideration the question of any further necessary approval if this is meant that the condition required a further development consent under the EP & A Act and/or a consent under the TPO in force at the time of proposed removal with respect to those trees required to be removed to enable the approved subdivision works to be undertaken, being the trees the removal of which was the very subject matter of the grant of the 1995 consent. 56 It is submitted that the condition therefore cannot be legitimately construed to negative the very works (including the removal of the trees required to enable that work to be undertaken) the subject of that consent. The requirement in the condition for the Tree Plan was to enable the Trees required to be removed for the approved works to be identified and that the Planning Manager's approval of that plan was to enable him to be satisfied that no trees were earmarked for removal other than those so required for the purpose of undertaking those approved works. The Planning Manager's approval (not the Council's) was not, therefore, an approval under the EP & A Act, the LEP or any TPO. It was not expressed as such and its evident purpose cannot justify any construction to the contrary. Approvals under the EP & A Act, the LEP and the TPO were incorporated into the 1995 consent - the approval required by the condition was one of identification only. 57 Therefore, it is submitted that by virtue of the construction and content of the approval and in accordance with s. 81A(3) of the EP & A Act the 1995 consent authorised the removal of any tree required to be removed to implement that consent without the requirement for any further approval of the Council.