Castagnet Investments Pty Limited v Woollahra Municipal Council

A Class Properties Pty Limited v Parker [2004] NSWLEC 197; Becton Corporation Pty Limited v Minister for Infrastructure, Planning and Natural Resources & Anor [2005] NSWLEC 197; CASES CITED: Billgate v Woollahra Municipal Council (2004) 136 LGERA 356; Huntington & Macgillivray v Hurstville City Council (No. 2) (2005) 139 LGERA 84

APPLICANT Mr I Hemmings (Barrister) SOLICITORS Pike Pike and Fenwick LEGAL REPRESENTATIVES:

RESPONDENT Mr J Bingham (Solicitor) SOLICITORS Deacons

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10565 of 2005 Castagnet Investments Pty Limited v Woollahra Muncipal Council

JUDGMENT 1 Talbot J: I have already answered questions referred to me by Commissioner Murrell. At the time the answers were given I undertook to give more formal reasons for my decision. 2 On 13 October 2005 Commissioner Murrell handed down Findings of Fact in relation to an appeal under s 97 of the Environmental Planning and Assessment Act 1979 ("EPA Act") against the refusal by Woollahra Municipal Council ("the council") of its development application for an apartment building containing five units over basement parking for 11 cars. 3 Apart from the need to be satisfied in terms of cl 25(2) of the Woollahra Local Environmental Plan 1995 ("Woollahra LEP") the Commissioner indicated in her findings that she would be prepared to determine the application by the granting of development consent. 4 Clause 25(2) of Woollahra LEP provides as follows:- (2) The Council must not grant 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. 5 At the time of referral no evidence had been provided to the Court in relation to the planning and specification of the means of stormwater disposal from the land the subject of the appeal. 6 Section 40 of the Land and Environment Court Act 1979 relevantly provides as follows:- (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) … (c) … (d) …

7 Practice Direction No. 21 was made by the Court to be effective from 2 February 2004. The Practice Direction inter alia provides:- An application seeking such an order can only be made "if the Court has determined to grant development consent on an appeal under s 97 of the Environmental Planning and Assessment Act 1979": s 40(1). Accordingly, it will be inappropriate for any of the abovementioned questions (requiring adjudication upon an application under s 40 of the Land and Environment Court Act) to be raised at the hearing of the appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979. It is only if such an appeal is upheld and development consent is granted that an application for an order under s 40 can be made. It is only at this point that those questions become relevant to the exercise of the power conferred by s 40 of the Land and Environment Court Act. In order to preserve the integrity of s 40 such questions should not be raised or adjudicated upon at the hearing of the relevant development appeal. 8 Notwithstanding the injunction in the Practice Direction that appears to construe s 40 as if an order can be made under that section only if an appeal is upheld and development consent is granted, three Judges of the Court have rejected argument that a proper consideration of s 40 limits the availability of the power to cases where the Court has already granted development consent.

9 In Billgate v Woollahra Municipal Council (2004) 136 LGERA 356 Bignold J held that in his opinion there was no justification for construing narrowly the condition specified in subsection 1 of s 40 as the statutory language covered a case where the Court has either granted development consent or decided to grant development consent but has withheld making final orders for appropriate reasons. The decision in Billgate was made in the context of cl 25(2) of Woollahra LEP. Bignold J recognised that cl 25(2) operates as a condition precedent to the grant of development consent and that accordingly it is mandatory 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. Bignold J was asked to address the application of s 40 as a preliminary question of law raised prior to the hearing of any evidence in relation to the merits of the appeal. 10 Although he made reference to the second reading speech of the Attorney General when introducing the Bill, which amended the Land and Environment Court Act and substituted s 40 as originally enacted with the present s 40, Lloyd J in Becton Corporation Pty Limited v Minister for Infrastructure, Planning and Natural Resources & Anor [2005] NSWLEC 197 declined to have regard to the contents of the second reading speech as in his view the words of s 40 was not ambiguous or obscure and the ordinary meaning of the words were consistent with the finding of Bignold J in Billgate.

11 In an earlier judgment in A Class Properties Pty Ltd v Parker [2004] NSWLEC 398 I, in effect, held in an extempore judgment, that there was no jurisdiction for the Court to entertain a class 3 application pursuant to s 40 until such time as the Court determines to grant development consent. The point that arises in the present appeal was not raised before me and I was not called upon to give extensive reasons as the application was clearly premature. 12 Pain J has recognised the difficulty for applicants seeking a grant of development consent if s 40 is not interpreted in the manner adopted by Bignold J in Billgate (Huntington and Macgillivray v Hurstville City Council (No.2) (2005) 139 LGERA 84 at [12]). She preferred the facultative interpretation identified in Billgate to overcome the problem of obtaining the consent of the owner of the land to the making of the development application over the land in respect of which an easement is required. 13 Primarily as a matter of comity I propose to adopt the reasoning underlying the decision in Billgate as adopted and followed in Becton and Huntington notwithstanding that the second reading speech by the Attorney General quoted by Lloyd J at [13] in Becton clearly states that a person will only be able to apply to the Court for an order imposing an easement in proceedings where that person has been "granted a development consent on appeal." The questions 14 The Commissioner has posed alternative questions and a further question has been referred at the request of the applicant. The questions are as follows:- COMMISSIONER'S QUESTION: In a class one merits appeal, in making a determination for the purpose of allowing an application to be made for an easement under section 40 of the Court Act, can the Court, in terms of clause 25(2) of the Woollahra LEP, leave all the questions of drainage to be considered at the s 40 application stage. Or Must the Court in a class one appeal be satisfied that stormwater disposal can be achieved in all respects (including physical, engineering and hydrological) except for the granting of an easement over title. APPLICANT'S QUESTION In this appeal, when making a determination for the purpose of allowing an application to be made for an easement under section 40 of the Land and Environment Court Act, can the Court in terms of clause 25(2) of the Woollahra LEP 1995 leave questions of the physical location and capacity of a proposed drainage easement and its impacts on affected downstream properties to be determined at section 40 application stage or thereafter in the resumed merits appeal hearing. 15 The effect of the Commissioner's findings of fact is that apart from the question of stormwater disposal and drainage she is satisfied that the applicant is entitled to have the benefit of a development consent in respect of the proposed development. However until she deals with the question of drainage and the disposal of stormwater it is not open for her to make a determination to grant consent.

16 I have not been made aware of the exact circumstances that led to a resolution of all issues raised by the council apart from the stormwater disposal issue in a situation where cl 25(2) acts as a bar to the grant of a development consent unless the council, or the Court on appeal, is satisfied that adequate provision has been made for the disposal of stormwater from the land it is proposed to develop. There is no conceivable way that I can identify whereby the Court can satisfy the condition precedent to the exercise of power pursuant to s 40, namely to make a determination to grant development consent, unless the issue of the provision of stormwater has been disposed of in a way that enables the Court to be satisfied that adequate provision has been made. 17 On the referral of the question of law Mr Bingham, who appears for the council, effectively made a submitting appearance on the basis that he would offer such assistance as the Court may require to determine the questions raised. 18 The written submissions on behalf of the applicant appears to take issue with an identified position of the council that an easement is required in order to facilitate connection to the existing council stormwater disposal system. The applicant seemingly has reserved its position in relation to the ultimate method of disposal of stormwater but says that the creation of an easement to facilitate this over adjoining land is preferred. 19 Neither party has attempted to deal with a method of disposal nor have they specifically identified land in which it may be necessary to construct works to facilitate the disposal. 20 The Court can hardly make a rational decision that it is satisfied that adequate provisions had been made for the disposal of stormwater when there is no evidence before it in respect of that issue. To defer the further hearing of the proceedings until such time as an easement is obtained would appear to be an exercise in futility in the absence of a determination of the site of the easement and the presentation of evidence that can satisfy the Court that the land the subject of the easement can be effectively utilised in a way that affords adequate provision for the disposal of the stormwater.

21 Having regard to the earlier decisions in this Court, commencing with Billgate, I can accept that the final decision to grant consent can be deferred pending an application pursuant to s 40 for the grant of an easement provided that in all other respects the Court has reached the necessary degree of satisfaction, including pursuant to cl 25(2), that it will be otherwise prepared to grant consent. That is it had "determined to grant development consent." It will then be a matter for the Court to be satisfied that the easement is reasonably necessary for the development to have effect in accordance with the (proposed) consent pursuant to s 40(2). 22 I accept what the parties have put to me that cl 25(2) of the LEP can be met if a fully detailed specification and appropriate plans are provided to it that enable it to come to the conclusion that "adequate provision has been made for" a drainage system that will dispose of the stormwater from the subject land. It is not necessary for the Court to be satisfied that the provisions are physically in place only that "adequate provision has been made for." In other words if the Court can be persuaded that the proposed disposal scheme will work and can dispose of the stormwater by connecting to the existing council reticulation system (including to the extent that the existing system is capable of handling the output from the subject land) or by other means, then applying Billgate the constraint imposed by cl 25(2) can be satisfied.

23 Both Bignold J and Pain J appear to be of the opinion that cl 25(2) or its equivalent would not be capable of being satisfied by the imposition of a condition of development consent requiring the creation of an easement (see Billgate at [19] and Huntington at [29]).

24 The questions presently posed do not demand a resolution of the issue whether development consent can be granted subject to a condition that an easement be obtained. I have not reached a final conclusion in that respect. The answer provided enables the Commissioner to hear all of the relevant evidence to enable her to make a determination to grant consent subject to conditions but to postpone making final orders until the s 40 questions are resolved. 25 For all of the above reasons I answered the several questions put by providing one response as follows:- In order to satisfy the primary requirement of cl 25(2) of Woollahra LEP the Court acting in the capacity of the council as consent authority must be satisfied that the plans make adequate provision for the ultimate disposal of stormwater from the land it is proposed to develop including the physical engineering and hydrological specifications for the work in all respects before it determines to grant consent. After consideration of all issues and matters required to be considered before a development consent can be granted the Court can determine to grant consent subject to appropriate conditions including a condition that provision for disposal of stormwater be made in accordance with the plans and conditions applicable thereto without formally proceeding to make final orders until the applicant has a reasonable opportunity to make an application under s 40 of the Land and Environment Court Act. 26 The matter has been referred back to the Commissioner for further consideration and determination in accordance with the answer to the questions.

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