Byron Ventlink Pty Ltd v Byron Shire Council

Land and Environment Court (NSW)|2016-06-10

Judgment

These proceedings comprise an appeal under s 109K of the Environmental Planning and Assessment Act 1979 (the EPA Act) against the Council's refusal of an application to issue a construction certificate, together with an accompanying application under s 138 of the Roads Act 1993 (the Roads Act), for the installation of a "padmount electricity transformer" (the Transformer Development) within a public road in Byron Bay.
The installation of the Transformer Development requires the modification of an existing median island in Fletcher Street, and the likely removal of a healthy Melaleuca tree within the kerb blister. The relevant plans and specifications for the Transformer Development are contained within Exhibit B. At the hearing, I was advised that Essential Energy has approved the design and location of the Transformer Development within the road reserve, subject to the Council's approval.
The Applicant, Byron Ventlink Pty Ltd (the Company) is presently undertaking a substantial mixed use development on land adjacent to the Transformer Development site, described as Lot 1 DP 876261, 19-23 Lawson Street, Byron Bay, in accordance with a development consent (DA 10.2014.649.3) (the Mixed Use Development Consent). Shortly stated, the Mixed Use Development Consent comprises:

demolition works and the erection of a new four-floor/storey building for use as backpacker accommodation (with provision for 250 beds);
two restaurants and five new retail shops (with four existing shops being retained).

Construction of the Mixed Use Development commenced on or around 17 August 2015. However, the current works have been substantially hindered because the Transformer Development is needed to facilitate adequate power to the site for the final phase of the works.
The Applicant maintains that the Mixed Use Development Consent approved by the Council at its Ordinary Meeting on 9 April 2015, and notified to the Applicant on 14 April 2015 (and subsequently modified under five separate modification applications, with the last being 3 December 2015), approved the installation of the Transformer Development, and that a construction certificate and road works approval should issue.

Statutory framework

A considerable number of statutory provisions and regulations have been referred to in the proceedings.
Section 81A(2) of Pt 4 of the EPA Act provides that the erection of a building in accordance with a development consent must not be commenced until a construction certificate for the building work has been issued by the Council or private certifier. Part 4 A of the EPA Act includes provisions directed to the issue of a construction certificate.
A construction certificate is described in s 109C(1) (b) of the EPA Act ( within Pt 4A) as : ….a certificate to the effect that work completed in accordance with specified plans and specifications will comply with the requirements of the regulations referred to in s 81A (5).
Section 109D (1) provides that a construction certificate may be issued by a consent authority, the council or an accredited certifier. In this instance, the Court stands, metaphorically, in the shoes of the Council as the certifying authority.
Relevantly, s 109F(1)(a) of the EPA Act restricts the Court from issuing a construction certificate for building work unless the requirements of the regulations referred to in s 81A(5) have been complied with.
The Environmental Planning and Assessment Regulation 2000 (the EPA Regulation) includes regulations made for the purpose of s 81A (5) of the EPA Act.
Clause 139 of the EPA Regulation specifies the content of an application for a construction certificate. The parties agreed at the hearing that the application complies with the requirements in cl 139 and that it was processed by the Council in accord with cl 142 of the EPA Regulation.
The Applicant was notified by letter of the Council's decision to refuse the construction certificate on 22 February 2016 (Exhibit E Tab 15).
As earlier stated, the Council's primary position is that there is no relevant development consent for the Transformer Development. In that circumstance, cl 145(1) (a) of the EPA Regulation precludes the issue of a construction certificate by the Court on appeal.
The relevant part of cl 145(1)(a) of the EPA Regulation is highlighted below: 145 Compliance with development consent and Building Code of Australia (cf clause 79G of EP&A Regulation 1994) (1) A certifying authority must not issue a construction certificate for building work unless: (a1) the plans and specifications for the building include such matters as each relevant BASIX certificate requires, and (a) the design and construction of the building (as depicted in the plans and specifications and as described in any other information furnished to the certifying authority under clause 140) are not inconsistent with the development consent, and (b) the proposed building (not being a temporary building) will comply with the relevant requirements of the Building Code of Australia (as in force at the time the application for the construction certificate was made). (2) A certifying authority must not issue a construction certificate for subdivision work unless the design and construction of the work (as depicted in the plans and specifications and as described in any other information furnished to the certifying authority under clause 140) are not inconsistent with the development consent. (3) Subclause (1) (b) does not apply to the extent to which an exemption is in force under clause 187 or 188, subject to the terms of any condition or requirement referred to in clause 187(6) or 188(4).
In order to decide whether the design, construction and specifications for the depicted Transformer Development in the construction certificate application are "not inconsistent" with the development consent, it is first necessary to construe the Mixed Use Development Consent that the Applicant maintains included consent for the Transformer Development.
The relevant documents and plans which comprise the consent are contained in the Council's two volume tender bundles (Council's bundle). To assist the Court resolve the interpretation of the development consent the parties have provided town planning evidence from Wayne Bertram (on behalf of the Council respondent) and Malcolm Scott (on behalf of the applicant). Their joint planning report is Exhibit 5.
I have derived the following chronology of events and background facts from the Council's Amended Statement of Facts and Contentions dated 8 June 2016 (Exhibit 1) and the documents in the Council bundles.

The development application

On 29 October 2014 the Applicant lodged a development application with the Council (DA 10.2014.649.1) (Tab1 Vol1 Council Bundle). The DA application included a completed Development Application Form prescribed by the Regulation pursuant to s78A of the EPA Act. Against the heading "Description of the land you propose to develop" is recorded "19-23 Lawson Street, Byron Bay NSW Lot no 1 DP 876261".
The Applicant is "Byron Ventlink P/L" and is identified as owning the land nominated on the form as the development site.
Against the heading, "Describe the development you wish to carry out" the form states: "Mixed use development; demolition, retention of existing building, erection of a new building to be used for backpacker accommodation, shops, restaurants refer to DA SEE". The "DA SEE" is a reference to the Statement of Environmental Effects prepared by Malcolm Scott dated 28 October 2014. The SEE records that the proposed development is to replace that approved by DA No 10.2005.733.1. (Tab 2 Vol 1 Council bundle) - The earlier DA was for a larger backpackers/commercial development on the same site.
There is no discussion in the text of the SEE about the Transformer Development. However, the SEE does refer to a schedule of plans. One of the plans listed in the schedule is the Site plan (NDA -1) dated 14 October 2014 prepared by Logan Architecture (the Site plan).
The Applicant maintains that the Site plan shows the Transformer Development and this component of the development was part of its application.
It is agreed that the Site plan shows the existing property boundary at 19 -23 Lawson Street and the adjusted property boundary (following the dedication of part of the applicant's land for Bay Lane), the ground floor plan of the proposed development within the reduced property boundary, and a number of existing and new structures outside the applicant's land. It is also agreed that the descriptors used to identify new or existing works on the Site plan are at times inaccurate.
Despite these inaccuracies on the Site plan, the Applicant contends that the dashed outlines over the existing pedestrian island in the Fletcher Street road reserve with arrows pointing to the words "COUNTRY ENERGY SUBSTATION" and "COUNTRY ENERGY ACCESS REQUIREMENTS" and "MODIFIED PEDESTRIAN ISLAND REFER CIVIL DRAWINGS" evidence its application for development consent for the Transformer Development detailed in plans and specifications in Exhibit B.
Before determination of the DA on 20 February 2015 the applicant made written application to the Council for owner's consent for the "mixed development comprising demolition, retention erection of awnings over the Council reserve in front of Council Road reserve in Front of Lot 1 DP 1876261, 19 -23 Lawson Street, and Byron Bay". It was noted that the DP number was inaccurately stated (Tab4 Exhibit E). The application was processed by the Council's Manager Governance Services Phil Holloway. A Memorandum from Mr Holloway to Director Infrastructure Services dated 23 February 2015 records his approval to the "proposed use of the Road reserve in front of Lot 1 DP 876261, 19-23 Lawson Street Byron Bay, and approval to lodge a development application". Against the heading in the Memorandum "Please note any conditions" it states "as per memo E2015/11266". At the Court's request the Council produced a copy of the memo E2015/11266 however; it did not contain any further relevant detail.
On 26 February 2015 owner's consent was issued by Mark Arnold Director Corporate and Community Services for "the mixed development comprising demolition, retention erection of awnings over the Council reserve in front of Lot 1 DP 1876261, 19 -23 Lawson Street, and Byron Bay".
There is no documentary evidence of an application to the Council for owners consent for Transformer Development works in Fletcher Street. The applicant contends that the Council's consent for the awnings attached to its Mixed Use Development over the Council's land constituted 'blanket consent' for the Transformer Development in the Fletcher Street road reserve.

The development consent

On 9 April the Council resolved to grant deferred commencement development consent for DA 10.2014.645.1. To that end it issued a Notice of Determination to the Applicant dated 14 April 2015 (the 14 April Notice).
The 14 April Notice described the approved development as: "Mixed development comprising; demolition, retention of existing building, erection of a new building to be used for backpacker accommodation (250 beds), shops and restaurants".
There is no mention of the Transformer Development in the description of the approved works on the face of the 14 April Notice.
Against the heading "Property description" the 14 April Notice identified the development site as being: "LOT: 1 DP 876261, 19-23 Lawson Street, BYRON BAY" which is the Company's land.
There is no mention of the Transformer Development or any works on the Council land on the face of the 14 April Notice. (Although, as to be expected the conditions of consent in Schedule B refer to the approved works on the Council's road reserve in particular the footpaths in Lawson and Fletcher Street and the awnings - conditions 18 (b) and (j).
Against the heading "Concurrent Approvals:" the 14 April Notice records "Not issued with this consent".
Against the heading "Determination" the 14 April Notice records "Deferred Commencement Consent granted subject to the attached schedule of conditions". (This deferred commencement consent did not become operative until written endorsement from the Council following satisfaction of the requirements listed in Schedule A of the 14 April Notice. The requirements listed in Schedule A related to a VPA for the shortfall in car- parking and the identification and approval of the external materials and colours by the Council. It is accepted for the purposes of this appeal that the deferred requirements in Schedule A are satisfied).
Schedule B of the 14 April Notice sets out the conditions imposed on the consent under on s80 (1).
Under the heading "Parameters of this consent" condition 1 incorporates a schedule of approved plans. It includes the Site Plan.
Condition 1 is reproduced below:
Development is to be in accordance with approved plans The development is to be in accordance with plans listed below: Plan No. Description Prepared by Dated: 5829DP01 Plan of Subdivision Ardill Payne & Partners 6 February 2010 A02.04 Demolition Plan Logan Architecture June 2010 Amd. A 8.07.2011 NDA-01 Amd. A Site Plan Logan Architecture March 2015 Amd. A 24.10.2014 Job No. 0364 Dwg. No. 3 Basement Floor Plan Logan Architecture June 2015 Amd. C 3.07.2015 Job No. 0364 Dwg. No. 2 Ground Floor Plan Logan Architecture June 2015 Amd. C 3.07.2015 NDA-04 Amd. A Level 1 Floor Plan Logan Architecture March 2015 Amd. A 24.10.2014 NDA-05 Amd. A Level 2 Floor Plan Logan Architecture March 2015 Amd. A 24.10.2014 NDA-06 Amd. A Elevations Logan Architecture March 2015 Amd. A 24.10.2014 NDA-07 Amd. A Sections Logan Architecture March 2015 Amd. A 24.10.2014 NDA-08 Amd. A Roof Plan Logan Architecture March 2015 Amd. A 15.12.2014

The development is also to be in accordance with any changes shown in red ink on the approved plans or conditions of consent. The approved plans and related documents endorsed with the Council stamp and authorised signature must be kept on site at all times while work is being undertaken.

The approved Site Plan is the same plan lodged with the development application and referred to in the SEE. It is reproduced below (with my hand written notes).
The approved Site Plan depicts, with dashed lines, an area described as "Country Energy Substation" and "Country Energy Access Requirements" within the Fletcher Street road reserve land. The notation however is not shown on the stamped, approved elevations (NDA-06 dated March 2015) (Planners' joint report, Exhibit 5), and there is no mention of the transformer development in the conditions of consent - despite referencing of other works in Lawson and Fletcher Street in conditions 18(b) and (j).
The Applicant engaged a private certifier, Craig Nowlan of Techton Building Services to certify the works for the DA on 22 September 2015 (Tab 4 Council bundle).
On 10 June 2015 the Applicant lodged a modification application with the Council seeking consent for the modification of condition 34 (which dealt with a Dewatering Management plan) (Tab 5 Council Bundle).
The modification was approved by the Council on 9 July 2015 and an amended consent was issued dated 24 July 2015 containing the approved Site plan.
On 24 July 2015 the Applicant lodged a modification application MA 10.2014.649.2) with the Council seeking consent for the modification of condition 18 (j) of the Mixed use consent.
Notice of determination of MA 10.2014.649.2 was issued on 29 July 2015 and an amended consent was issued dated 10 August 2015 containing the approved Site plan.
On 30 September 2015 the Applicant lodged a modification application MA 10.2014.649.4 with the Council seeking consent for the modification of condition 16 of DA 10.2014.649.3 in respect of the need for onsite retention.
Notice of Determination of MA 10.2014.649.4 was issued dated 3 December 2015 and an amended consent was issued dated 3 December 2015 containing the approved Site plan.

The parties competing positions

The Applicant relies upon the notations and dashed lines on the approved Site plan as depicting the Transformer development in (Exhibit B).
The Applicant contends that the approved Site Plan was lodged with the original development application and accompanied by a blanket owner's consent from the Council for works in Fletcher Street and Lawson Street (Tab 4 Exhibit E).
The Council disputes the Applicant's interpretation of the approved Site plan as being development consent for the Transformer Development. Additionally, it submits that any correspondence entered into between the Council staff with the Applicant's consultants that postdates the consent said to acknowledge such development consent (reproduced in the Mr Scott's statement of evidence (TABs 7 -14 Exhibit E )) cannot lawfully be relied upon in this instance to establish development consent for the Transformer Development.
The terms of the conditional development consent granted to the Applicant on 14 April 2015 (as modified 3 December 2015) are clear and unequivocal and it cannot be asserted on a proper reading of the whole of the consent that the approved Site plan authorises the Transformer Development.
The Council contends that the 14 April 2014 development consent makes no reference to the Transformer Development outlined in plans and specifications (Exhibit B) or any other design of electrical pad mount substation on the corner of Lawson /Fletcher Streets Byron Bay. Nor does any modification application sought by the Applicant to that consent. The approved modifications to the consent related to works within Lot 1 DP 876261 and did not include any reference to the electrical transformer/ pad mount station. Consistent with that interpretation is the fact that there was no owner's consent either requested or given by the Council to lodgement of the modification of the development over Council land for that purpose. Furthermore, condition 18 of the development consent states that approval is required for works within the road reserve. Condition 18 was required to be complied with prior to the issue of a Construction certificate. Accordingly, there should have been limited construction and nothing to prevent the installation of a transformer within the proposed building.
The Council submits that it is not obliged to provide a location in the Fletcher Street road reserve for a pad mount substation and it believes that it has made its position clear about the need for development consent for the Transformer Development for some time. As at 24 November 2015, the Council suggested in correspondence to the Applicant that it considers reviewing the approved basement layout under the restaurant on the north east corner of the development and utilise that area for the installation of the Electrical Transformer within the site. The Applicant did not take up the Council's suggestion and lodged its application for construction approval on 21 January 2016.
The Applicant's construction approval application was refused by the Council on 22 February - essentially for the reasons outlined in the Council' earlier letter of 24 November 2015.
The Council submits that had it approved the Transformer Development then it would have made reference to that fact in condition 18, because that condition deals with works within the Council's road reserve - requiring s 138 approvals.
The Council maintains it only provided owner's consent for the awnings protruding into the road reserve in front of Lot 1 DP 876261, 19-23 Lawson Street, and Byron Bay on 23 February 2015 and consented to the lodgement of the modification of the same development on 29 July 2015. At no time did it provide owner's consent for or approve the Transformer Development in the Fletcher Street road reserve.
The Council acknowledges receipt of various applications from the Applicant for a construction certificate and s 138 approvals for the Transformer Development, and whilst corresponding with the Applicant about these matters it maintains that it has never accepted that the application was based on development consent or that it had given owner's consent. At all times it has refused such applications (Exhibit 3 Tabs 14-16).
In support of its position, the Council refers the Court to the Statement of Environmental Effects (SEE) lodged with the application, prepared by Malcolm Scott MPIA and dated 28 October 2014. In particular, the part which deals with the "Essential Services" provision in cl 6.6 of the Byron Local Environmental Plan 2014 (the BLEP 2014). The SEE states: There is an adequate supply of water and electricity to the land. The Council maintains that at all times it dealt with the Mixed Use Development (as modified) on the basis that the site had adequate supply of electricity. The development approved did not include works off site in the Council's road reserve for electricity supply to the approved use because the Council understood that the electricity supply was adequate. Where the Council approved works in the road reserve there is evidence of a request for owner's consent and detail of the approved works in the plans and conditions. For example, the awnings from the development over the council land (Tab 4 Exhibit 4). There is no owner's consent from the Council for the Transformer Development or any such approval for those works in the DA consent (as modified).
The Council has not granted consent to the Transformer Development under any other consent.

Statutory interpretation /consideration

Clause 145 of the EPA Regulation calls for a finding of fact - it involves a comparison between construction certificate works and the development application consent. The function of cl 145 is to ensure that the development, as built, will be in accordance with the development consent: Moy v Warringah Council at [79].
Clause 145(1) is prescriptive. It prohibits the issue of a construction certificate for building work unless the certifier (the Court, in this instance) is satisfied of the matters specified. It is different from s 96 of the EPA Act, which is a facultative and beneficial provision, and is to be construed and applied in a way that is favourable to those who are to benefit from the provision: R V Kearney; ex parte Jurlama [1984] HCA 14; (1984) 52 ALR 24, 28; Zangzinchai v Millanta [1994] FCA 1361; (1994) 1 to 5 ALR 265, 272, Moy at [80].
I must answer the question posed by cl 145, first, by determining what the development consent approved. Next, I must make a finding as to the nature and extent of the variations to the approved plans and specifications and, finally, a judgment as to whether the variations were or were not inconsistent, in the relevant sense, with the plans and specifications approved in the DA: Burwood Council V Ralan Burwood Pty Ltd (No 3) (2014) 206 LGERA 40 at [145]-[150].
The term "not inconsistent", in cl 145, has been interpreted to be given its ordinary meaning: Burwood v Ralan at [147]. It means "lacking in harmony between different parts or elements"; "self-contradictory", "incongruity".
The Applicant's case rests heavily upon the proposition that the development consent is not to be construed as a document drafted with legal expertise but, rather, to achieve practical results: Lend lease Communities (Wilton) Pty Limited v Wollondilly Shire Council [2016] NSWLEC 1066 at [27].
As such, it argues that the lack of specificity, in this instance about the Transformer Development, is inconsequential. It does not matter that the development consent, for example, makes no reference to the substation on the approved plans, other than by a dotted notation on the Site Plan, together with the words "Country Energy Substation" and an arrow pointing to an area in the Council's road reserve.
The development approved under Development Application No 10.2014.649.1 (as modified) included an attached awning which is located within the Council's road reserve in front of Lot 1 DP 876261, 19-23 Lawson Street, Byron Bay. Condition 18 (j) refers to the approved awning and structures on the road reserve - no mention is made of the works outside the site on the road reserve for the Transformer Development.
Relevantly, DA Consent 10.2014.649.1 (as modified) states that it relates to the land at Lot 1 DP 876261, 19-23 Lawson Street, Byron Bay and does not, in my assessment of the evidence after a consideration of the conditions, approve the electrical substation works in the Council road reserve in Fletcher Street. While I accept the submission that development consent can authorise work on other land (as it has in respect of works referred to in condition 18), it does not follow that the substation was approved by the Council, in this particular case, simply by the notation recorded on the Site Plan which forms part of the approved plans. Nor does the reference in the correspondence entered into between the Company's architect and the Council in relation to the s 138 application, in particular the paragraph in the letter from the Council dated 6 August 2015 which refers to; The traffic island on the south-east corner of Fletcher Street with the electrical Transformer … support a finding the development consent issued approved of the Transformer Development. It is nothing more than one officer of the Council engaging in correspondence with an applicant who has lodged an application for a s 138 approval; someone who at that time, it could be assumed, may not have understood whether a development consent had in fact been given by the Council for the electrical transformer. Similarly the reference to "the amended plans" in the Council's correspondence does not inform the interpretation of the development consent issued which is the subject of consideration in cl 145, particularly as the s 138 application was ultimately approved without any reference to the Transformer Development, the approved plan accompanying the application crossed it out in red pen: Plan C07A, 5 June 2015 (by Ardill Payne & Partners).
While I agree with the Applicant's submission that work necessary and/or incidental to an approved development does not necessarily need to be specified in terms - in this case the consent issued does specify other works even down to the awnings over the Council road reserve (condition 18(g). With that in mind it is difficult to accept that the Council approved of the Transformer Development on the scant detail provided in the Site plan with no mention of that development in the conditions of consent. The Site Plan quite properly included details about adjoining buildings /uses, as required by the EPA Regulation, Pt 1 of Schedule 1 - specifically cl 2, as Mr Beauchamp states in his report (Exhibit 4 p 4). The inclusion of the pedestrian island was appropriate. The inclusion of the notation about the "Country Energy Substation" as shown within the road reserve on the Site Plan approved under Development Consent 10.2014.649 can be interpreted as nothing more than an indicative notation particularly as there has been no assessment of that development by the Council as required under Pt 4 of the EPA Act or request for owners' consent for such works in the road reserve.
As explained by the Court in Ralan at [159], cl 145 invites an objective assessment of the facts all subjective considerations have been removed by amendment. As the judgment explains at [159]: The Explanatory Note to the Amendment Regulation 2007 explained the amendment to cl 145 as one of a series of "consequential amendments as a result of the removal of subjective considerations for the issue of construction certificates and occupation certificates".
The language of cl 145 is mandatory. A construction certificate must not be issued with respect to the plans and specifications for any building work unless the design and construction of the building (as depicted in the plans and specifications) is not inconsistent with the development consent. In my opinion the development consent (as modified) is not consistent with the construction certificate plans and specifications (Exhibit B). It is also my considered opinion that there is no owner's consent from the Council for the transformer development in the Fletcher Street road reserve or any such approval for those works in the DA consent (as modified).
Unfortunately for the Applicant, the consequence of my decision is that the Court cannot issue the construction certificate and, consequently there is no jurisdiction in this appeal for me to deal with the s 138 application.

Answer to Question (1)

An objective assessment of the evidence does not, in my assessment, support a finding that the Mixed Use Development Consent approved the Transformer Development.
Therefore, the answer to question (1) must be "No".
In that circumstance, I am precluded from issuing a construction certificate or a Roads Act approval. It seems that the Applicant will be required to lodge a development application with the Council after first obtaining owner's consent for the Transformer Development on the Council's road reserve because the works on site have proceeded to a point where it would be impossible (without demolition) to install the Transformer Development on site (Tab 12 Exhibit E).
Unfortunately for the Applicant, there is nothing that the Court can to do to avoid this consequence on the present facts.
Accordingly, the Court orders: 1. The appeal is dismissed. 2. The application for a construction certificate and accompanying application under s138 the Roads Act 1993 lodged on 22 January 2016 are refused. 3. The exhibits are returned. Susan Dixon Commissioner

Amendments 02 September 2016 - Typographical errors corrected in paragraphs [3], [4], [5], [8], [11], [30], [31], [32], [33], [34], [39], [47], [53], [56], [62], [71], [72], [73], [75], and [77]. 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: 02 September 2016

At a glance

Court

Decision date

Source

Judgment (9 paragraphs)

Parties

Cases Cited (6)