Clearstate Development Co Pty Ltd v Liverpool City Council

The Site

1. The development site (Site) that is the subject of these proceedings is Lots 885 and 860 in Deposited Plan 2475, located at 150 Tenth Avenue, Austral, and NSW 2179. The Site has an area of 2.4249 hectares and is zoned R2 -Low Density Residential under the State Environmental Planning Policy (Sydney Region Growth Centres) 2006.
2. The Site is located in the South West Growth Centre and is part of the South West Priority Land Release Area. It has dual frontages and is bounded by Tenth Avenue to the north and Ninth Avenue to the south, beyond which lie rural residential lots. Rural residential lots and local neighbourhood shops are also located to the east of the Site and rural residential lots located to the west.
3. The closest Sydney Water pumping station, SPS1183, is located less than 500 metres by road from the site, on the corner of Fourth and Eighth Avenue, Austral.

Background Facts

1. The applicant submitted its DA on 9 December 2015, proposing 2 into 48 lot subdivision of the Site, along with demolition, tree removal and new roads. A Statement of Environmental Effects (SEE) accompanied the DA, containing inter alia provision of utility services in s 6.3 and site drainage in s 6.4.
2. Specificities of how sewerage servicing of the subdivision was to occur were not mentioned in neither the DA nor the SEE. Only inter-allotment utility lines were shown in one sheet of the DA drawings.
3. Instead, the applicant lodged a 'feasibility application' with Sydney Water seeking confirmation the nearby sewage pumping station SPS1183 had the capacity to service the subdivision. This included a concept design for the pumping of sewage through a pressurised rising main.
4. However, Sydney Water refused this concept design because it preferred a non-pumped solution as opposed to a rising main, and recognised the SPS1183 catchment did not yet extend to the Site. It also communicated it would not support temporary servicing arrangements exceeding 5 years and advised that the guidelines recommended only one year. Sydney Water notified Council of this position on 20 January 2016.
5. The applicant submits it then held further discussions with Sydney Water, resulting in an arrangement for Sydney Water to extend the catchment of SPS1183 to include the Site and subsequently services the Site by a gravity lead-in main connecting to SPS1183. This was confirmed in a letter to the applicant on 3 June 2016, also provided to Council, stating 'a gravity sewer service will be available to serve this development'.
6. Concerned by these servicing arrangements, particularly in the context of cl 6.1(1) of the Liverpool Growth Centres Precinct Plan 2012 (Precinct Plan), Council sought additional clarification from Sydney Water. Sydney Water thus provided 'revised comments' referring to the gravity lead-in sewer by letter dated 10 June 2016.
7. Council submits after further consideration and communication with Sydney Water, it was satisfied for the purposes of cl 6.1 of the Precinct Plan, and thus granted Consent of DA 1205/2015 for subdivision of the Site on 21 June 2016.
8. Part E of the Consent listed conditions to be complied with prior to the issue of a Subdivision Certificate by Council. Most relevant are conditions 4 and 90.
9. Condition 90 required a Section 73 Certificate to be submitted to Council prior to the issue of a Subdivision Certificate. The condition states: Condition 90 of DA-1205/2015 Condition 90 of DA- 1205/2015 states: "The following documentation is to be provided prior to the release of the subdivision certificate. a) Written evidence (Section 73 Certificate) is to be submitted to the PCA prior to the issue of the subdivision certificate. b) Notation of arrangement for the development on Endeavour Energy shall be submitted to Council. c) Written certification from the relevant service providers that the telecommunications infrastructure is installed in accordance with: - The requirements of the Telecommunications Act 1997; - For a fibre ready facility, the NBN Co's standard specifications current at the time of installation; and - For a line that is to connect a lot to telecommunications infrastructure external to the premises, the line shall be located underground. Unless otherwise stipulated by telecommunications legislation at the time of construction, the development must be provided with all necessary pits and pipes, and conduits to accommodate the future connections of optic fibre technology telecommunications."
10. On 14 December 2017, the Applicant submitted a Section 73 Certificate from Sydney Water to Council, on the basis that the 'Section 73 Certificate' referred to in condition 90 refers to section 73 of the Sydney Water Act 1994 (NSW).
11. Condition 4 of the Consent, under the heading of 'General Terms of Approval', stipulated: "The development is to demonstrate compliance with all relevant requirements issued by Sydney Water dated 10 June 2016 (Attachment 4)." 'Attachment 4' refers to Sydney Water's letter dated 10 June 2016 setting out its requirements. The body of the letter is reproduced below: RE: Revised comments for 150 Tenth Avenue, Austral (DA-1205/2015) Thank you for notifying Sydney Water of the development listed above. We have re-reviewed the application and can provide revised comments for your consideration. Water See our previous letter dated 20 January 2016. This has been attached for your review. Wastewater Sydney Water is currently constructing supporting trunk infrastructure, comprising the Bringelly Road Carrier, Sewage Pumping Station 1183 and other associated works to service part of the Austral and Leppington North growth areas. This is due to be operational by September 2017, The proposed development falls within the catchment of the future Bonds Creek Carrier - Section 1. At this stage, Sydney Water does not have any supporting wastewater infrastructure in place to drain this catchment. Planning for the trunk infrastructure for the Kemps Creek catchment is currently beyond 2020. The developer's hydraulic consultants have provided plans showing this site is able to drain these works currently under construction via a gravity lead-in main. Subject to Sydney Water approval of the proposed gravity lead-in main Sydney Water, a feasible servicing solution is available to satisfy the requirements under Clause 6.1 of Appendix 9 of the State Environmental Planning Policy (Sydney Region Growth Centres) 2006. The standard condition requiring a developer to obtain Section 73 Certificates should be included in any development consent. Further advice and requirements for this proposal are at attachment 1(overleaf). Attachment 1 Sydney Water Servicing A Section 73 Compliance Certificate under the Sydney Water Act 1994 must be obtained from Sydney Water. Make an early application for the certificate, as there may be water and wastewater pipes to be built that can take some time. This can also impact on other services and buildings, driveways or landscape designs. Applications must be made through an authorised Water Servicing Coordinator. For help either visit www.sydneywater.com.au > Plumbing, Building and Developing > Developing > Land Development or telephone 13 20 92. Building Plan Approval You must have your building plans stamped and approved before any construction is commenced. Approval is needed because construction/building works may affect Sydney Water's assets (e.g. Water, sewer and stormwater mains). For further assistance please telephone 13 20 92 or refer to the Building over or next to assets page on the Sydney Water website (see Plumbing, building and developing then Building over or next to assets).
12. The applicant submits that in around mid-August 2016 it applied to Council for a construction certificate which, similar to the DA, did not reference any specific servicing arrangements apart from inter-allotment utility lines. A Combined Services Plan showed the Site's proposed sewer lines.
13. While noting its disapproval of a 'proposed sewer pump out system and pressure main to SPS1183', Council nevertheless approved the construction certificate on 17 October 2016 which was subsequently issued on 20 October 2016. This included approval of the Combined Services Plan. The applicant submits that the proposed sewer pump and pressure main referred to by Council was not part of the works contained in the construction certificate application.
14. The applicant then carried out necessary subdivision works, such as demolition, tree clearing, road construction and stormwater infrastructure installation.
15. The applicant submits that throughout 2017 it emerged that further Sydney Water infrastructure would be required to service the site with gravity main, specifically that of a lifting station adjacent to SPS1183 to pump sewage from the lead-in main level to the higher SPS1183 level.
16. As a result, the applicant and Sydney Water agreed an interim operating procedure (IOP) was necessary for sewerage servicing in the lead up to completion of the lifting station.
17. The IOP requires the applicant to install, before any construction of dwellings on the Site, an in-ground holding tank in Lot 24 of the subdivision into which sewage from the entire Site will be directed. A tanker will then pump the sewage from the holding tank and deliver it to SPS1183. The IOP is intended as a temporary process to be discontinued once the lifting station is completed by Sydney Water. This is anticipated to be in December 2018. The applicant must have completed construction of the lead-in sewer to the lifting station by this time.
18. The arrangements of the IOP are documented in several deeds and other documents between Sydney Water and the applicant, and secured by bonds paid to Sydney Water totalling almost $400,000.
19. Sydney Water released the Section 73 Certificate on 12 December 2017, prior to the infrastructure works being completed.

The statutory framework - subdivision application

1. The subdivision certificate application before the Court is required to be determined pursuant to the former part 4A of the EPA Act, prior to its repeal on 1 March 2018 by virtue of the savings provision (section 10.16 (1) of the EPA Act and Schedule 13 of the Environmental Planning and Assessment Act 2017, cl14(2)).
2. The relevant statutory framework is set out below: 109C Part 4A certificates (1) The following certificates (known collectively as Part 4A certificates) may be issued for the purposes of this Part: (d) a subdivision certificate, being a certificate that authorises the registration of a plan of subdivision under Division 3 of Part 23 of the Conveyancing Act 1919. 109J Restriction on issue of subdivision certificates (1) A subdivision certificate must not be issued for a subdivision unless: (a) the subdivision is not prohibited by or under this Act, and (b) in the case of subdivision that may not be carried out except with development consent, a development consent (or, in the case of complying development, a complying development certificate) is in force with respect to the subdivision, and (c) in the case of subdivision for which a development consent has been granted, the applicant has complied with all conditions of the consent that, by its terms, are required to be complied with before a subdivision certificate may be issued in relation to the plan of subdivision, and (e) in the case of subdivision that relates to land within a water supply authority's area of operations, the applicant has obtained a certificate of compliance from the water supply authority with respect to the subdivision of the land, and (2) Without limiting subsection (1), a subdivision certificate must not be issued for a subdivision that involves subdivision work unless: (a) the work has been completed, or (b) agreement has been reached between the applicant for the certificate and the consent authority: (i) as to the payment by the applicant to the consent authority of the cost of carrying out the work, and (ii) as to when the work will be completed by the consent authority, or (c) agreement has been reached between the applicant tor the certificate and the consent authority: (i) as to the security to be given by the applicant to the consent authority with respect to the work to be completed, and (ii) as to when the work will be completed by the applicant. (3) Subsection (2) does not prohibit the issue of a subdivision certificate for part only of land that may be subdivided in accordance with a development consent as long as the requirements of that subsection have been complied with in relation to that part. (4) In this section: certificate of compliance, in relation to a water supply authority, means a certificate of compliance issued by the water supply authority under the Act under which the water supply authority is constituted. water supply authority means: (a) the Sydney Water Corporation, the Hunter Water Corporation or a water supply authority within the meaning of the Water Management Act 2000, or {b) a council or county council exercising water supply, sewerage or stormwater drainage functions under Division 2 of Part 3 of Chapter 6 of the Local Government Act 1993. 109P Satisfaction as to compliance with conditions precedent to the issue of certificates (1) A person who exercises functions under this Act in reliance on a Part 4A certificate or a complying development certificate is entitled to assume: (a) that the certificate has been duly issued, and (b) that all conditions precedent to the issuing of the certificate have been duly complied with, and (c) that all things that are stated in the certificate as existing or having been done do exist or have been done, and is not liable for any loss or damage arising from any matter in respect of which the certificate has been issued. (2) This section does not apply to a certifying authority (other than a council or consent authority) in relation to any Part 4A certificate or complying development certificate that the certifying authority has issued. subdivision work means any physical activity authorised to be carried out under the conditions of a development consent for the subdivision of /and, as referred to in section 81 A (3). 80A Imposition of conditions (2) Ancillary aspects of development A consent may be granted subject to a condition that a specified aspect of the development that is ancillary to the core purpose of the development is to be carried out to the satisfaction, determined in accordance with the regulations, of the consent authority or a person specified by the consent authority. 81 A Effects of development consents and commencement of development (3) Subdivision of land A development consent that enables the subdivision of land may authorise the carrying out of any physical activity in, on, under or over land in connection with the subdivision, including the construction of roads and stormwater drainage systems. Note. A plan of subdivision cannot be registered under the Conveyancing Act 1919 unless a subdivision certificate has been issued for the subdivision.

Agreed Issues 1, 2 and 3 - the proper construction of the consent

The Council's position

1. As indicated the Council's case is that the Court's power to issue the subdivision certificate is not enlivened because it cannot be satisfied that the preconditions to the issue of the certificate have been complied with under former s109 of the EPA Act. That is, all of the conditions of the consent have not been complied with.
2. According to the Council the consent is clear on its face, which on one view may be admissible as it is not ambiguous. For that reason, it submits that there is no need (if it were permissible) to have regard to extraneous documents in order to construe the consent. Nor is it necessary to have regard to the communications between the parties and Sydney Water leading up to the grant of consent - are permissible as objective circumstances: Westfield Management limited v Perpetual Trustee Company limited [2006] NSWCA 245 at [41].
3. In this case, the documents necessary to construe the consent are incorporated by express reference including the plans and relevantly, the letter from Sydney Water dated 10 June 2016: Auburn Municipal Council v Szabo (1971) 67 LGRA 427 at 433- 444 Per Hope J. In that regard, it is submitted that condition 4 appears under the heading General Terms of Approval. And, for present purposes the most significant matters emerging from the 10 June letter in relation to waste water are "… that the developer's hydraulic consultants have provided plans showing that the site is able to drain to Bringelly Road Carrier, Sewerage Pumping Station 1183 then under construction via a gravity lead-in main and subject to Sydney Water approval that there is a feasible engineering solution available to satisfy the Council as consent authority, that clause 6.1 of the SEPP can be met" (CWS at 47).
4. Pursuant to cl6.1 of the SEPP the Council is not empowered to grant consent unless it is satisfied that any public utility infrastructure essential for the proposed development is available or that adequate arrangements have been made to make that infrastructure available when required.
5. It is submitted that the letter goes on to state that the standard condition requiring the developer to obtain a section 73 certificate should be included in any development consent.
6. The Council submits that the matter enabling the Council to reach the requisite satisfaction under cl6.1 of the SEPP was the proposed permanent public utility infrastructure for the disposal and management of sewerage in the form of a gravity lead-in main discharging to Sydney Water's SPS 1183 under construction at the time the consent was granted on 21 June 2016. At the date of the consent there was not in contemplation any form of IOP. No such subdivision works were identified in the description of the development on the consent or in any condition of consent. Development consent had not been granted for any such form of temporary public utility infrastructure on the land.
7. The Council submits that essential infrastructure must form part of the development application assessment in the growth centre to which the SEPP applies before consent can lawfully be given: cl6.1.
8. The consent in force for the subdivision is not one that grants consent for the IOP and therefore no consent in force is capable of satisfying s 6.3 (1) (b) of the EPA Act. Before power could exist under the section the applicant must first seek consent for the form of the development actually proposed now including the IOP. It could lodge a modification application to that end.
9. According to the Cardno report (Exhibit 10) the IOP involves the construction on proposed lot 24 of a 63l underground storage tank , all weather hard sand area , a 10mm suction pipework stand and assembly and at least 24 hour pump out by truck. None of these elements have been the subject of assessment and did not form part of the publicly notified DA. Moreover, the timeframe for use and ultimate decommissioning of the temporary facility is based on estimates only.
10. The Council submits that the consequences for other development applications in the precinct under the SEPP are significant. It invites the Court in its consideration of the terms of the consent to be mindful that the consent is an instrument that should be read it in its entirety and construed practically and not as though it had been drafted by lawyers. Moreover, the conditions of development consent are intended to achieve substantive results and should be construed to give effect to their intention: Westfield at [41] - [43].
11. The Council submits that it is noteworthy that the consent does authorise other temporary works including the road and the OSD to be located opposite Lot 24 on proposed Lots 40 and 41. However, it did not authorise the IOP.
12. It is further submitted by the Council that s6.1 (1) (c) requires all subdivision works to be completed including condition 4. Properly construed, this section includes the lead-in main to the sewer identified in condition 4. The applicant asks the Court to construe the consent having regard only to those conditions listed under "E. PRIOR TO ISSUE OF A SUBDIVISION CERTIFICATE". section E contains condition 76 which is in the following terms : "Prior to the issue of a Subdivision Certificate, the Principal Certifying Authority shall ensure that all subdivision works required by this consent have been satisfactorily completed or that suitable arrangements have been made with Liverpool City Council for any outstanding works."
13. According to the Council subdivision works include the infrastructure required by condition 4. The Council is the PCA. To satisfy condition 76 the Court would have to have positive evidence that subdivision works have been satisfactorily completed. The Council as PCA opposes the grant of the subdivision certificate. It submits that there is no evidence that the works have been completed to satisfy the requirements of condition 76. The applicant cannot satisfy the Court that condition 76 has been complied with and accordingly there is no power to grant the subdivision certificate. The plans lodged and approved with the construction certificate include the combined services plan again showing nothing in the way of an IOP.
14. Contrary to the applicant's submissions the Council contends that condition 4 (and all other conditions relating to the provision of public utility infrastructure in particular Sewerage) cannot be characterised as a condition imposed under section 80A (2) by which specified aspects of the development is to be carried out to the satisfaction of the consent authority a person specified by the consent authority. And, even if it were to be construed as a condition imposed under section 80A (2) the conditions do not specify an ancillary aspect of the development is to be carried out to the satisfaction of Sydney Water. If it were to be construed as a condition under that section it is the Council that must be satisfied not Sydney Water.
15. The Council emphasises in its submissions that the provision of essential public infrastructure in a growth area under the SEPP is not properly characterised as an ancillary aspect of the development, particularly having regard to the requirements of clause 6.1, condition 4 is better characterised as a condition of consent imposed under section 80A (1) (A).
16. Neither the development consent nor the construction certificate approved the IOP.
17. For those reasons the Council submits that the answer to questions 1 and 2 can only be that the development consent granted approval only to the gravity lead-in main drain to SPS 1183. The answer to question 3 must be the condition 4 by its terms must be complied with before a subdivision certificate can be issued.
18. With respect to the assertion that the section 73 certificate obtained from Sydney Water satisfies the requirements of the consent, the Council says it cannot be the case for the simple reason that it identifies sewer infrastructure in the form of an IOP for which development consent has not been granted.
19. It is further submitted that the section 73 certificate issued by Sydney Water on 12 December 2017 can only be understood by reference to Sydney Water's letters of 28 November 2017 responding to the applicant's request that Sydney Water issue a section 73 certificate because those letters set out Sydney Water's preconditions for issuing a section 73 certificate. The applicant suggested to Sydney Water that no section 73 was necessary for the IOP. Sydney Water took a different view.
20. The precondition in each letter relevantly includes a requirement that the applicant deliver the IOP. Importantly, the letters also require the applicant "agree the scope of works of the lead-in under case 156438 WW, extending across to the western side of the creek" (Exhibit 2 Tab 17 folio 265. Tab 18 folio 269 and tab 19 folio 269). That is, the gravity lead-in main identified in Sydney Water's letter of 10 June 2016 incorporated into the consent. Therefore, the section 73 certificate does not conform to the requirements incorporated into the consent.
21. In summary the Council submits that the section 73 certificate cannot authorise the IOP because the IOP did not form part of the development application, it was not the subject of evaluation under section 79 C and was not development the subject of the consent.
22. The proposed development is for a subdivision of land. This is a form of development specifically requiring development consent: SEPP cl2.6. The applicant now proposes to incorporate the IOP a form of "sewer reticulation system" on Lot 24 as defined in the SEPP at Exhibit B p428. The proposed IOP is an integral part of the development proposed by the applicant on its land, being land the subject of the consent and the applicant for a subdivision certificate. It is not development for the purpose of "providing …" public utility infrastructure. If it were of that nature then cl 6.1(3) would apply and cl6.1 (1) would not. The need for satisfaction identified in SEPP cl6.1 concerning 'the disposal and management of sewerage" cannot be subverted by mischaracterising the form of development as development solely for the provision of public utility infrastructure when it is inarguably one for which consent is required under the SEPP as subdivision. The IOP is an interim measure on private land carried out by the developer before the site is connected to Sydney water infrastructure by means of a lead-in main. Accordingly, the works cannot find approval under cl18 A of the SEPP as also contended by the applicant.
23. For all those reasons the Council submits the Court should refuse to issue a subdivision certificate.

The applicant's position

1. The applicant submits that the starting point is to identify what development was proposed in the development application. This is because; in circumstances where consent is granted unconditionally, (not the case at hand) ascertaining the approved development requires an understanding of the development for which consent was sought: Ryde Municipal Council v Royal Ryde Homes (1970) 19 LGRA 321.
2. In this case, the applicant contends that the DA did not propose anything about sewerage servicing of the Site by gravity lean in main. It submits that this is evident from :

• The description of the development of the DA forms (Applicant's Bundle Exhibit 1 (Folder 1) Tab 1 p1);
• The more detailed description of the development in the SEE - with specific mention of a temporary retention basis, (SEE p5; Applicant Bundle Exhibit 1 tab1 p21) but no sewerage infrastructure works;
• The description in the SEE of the proposed utility services - "water, electricity, gas and telecommunication (SEE section 6.3 p13 Applicant's Bundle Exhibit 1 (Tab 1 p29);
• The inter- allotment sewer lines shown on the Utilities Plan sheet of the civil engineering drawing submitted with the application (Drawing 130-15C-DA -601 Rev A. This drawing was later updated to Rev B, with additional batters shown in some lots, but no change to sewer lines. Applicant's Bundle, Exhibit 1 (Folder 1) Tab 12, p141).

1. Consequently, the grant of consent unconditionally could not have approved servicing of the Site by way of gravity lead-in main. Therefore, it follows that the Council's concern about servicing was not because it formed part of the development application - but in order to satisfy itself in terms of cl6.1 of the Precinct plan. With that in mind, it is further submitted that the evidence demonstrates the Council was informed about :

• The concept design proposal to pump sewage through a rising main (letter from Metro Water Management to Liverpool Council dated 8 December 2015, including concept design drawings);
• Sydney Water's initial indication on 20 January 2016 that the site was in the bonds Creek carry out - section 1 catchment, which was not planned to be serviced before 2020 (letter from Sydney Water to Council dated 20 January 2016, applicant's bundle Exhibit 1 (Folder 1) Tab 4);
• Sydney Water's confirmation on 3 June 2016 that: subject to the developer complying with Sydney Water's requirements, a gravity sewer service will be available to serve this development, (Applicant's bundle Exhibit 1 (folder 1) Tabs 6)
• Sydney Water's further comments on 10 June 2016 confirming: the developers hydraulic consultants have provided plans showing this site is able to drain to these works currently under construction via a gravity lead in main subject to Sydney Water approval of the proposed gravity lead in main Sydney Water, (a feasible serving solution is available to satisfy the requirements under clause 6.1 of appendix 9 of the State environment or planning policy in (Sydney Region Growth Centres) 2006. The standard condition requiring a developer to obtain section 73 certificates should be included in any development consent. (It is submitted that this reference appears to be a typographical error the site is within land to which appendix 8 applies: see growth centres set south-west growth centre land acquisition map sheet LAP_007).

1. Based on these documents, the objective record shows that Council was informed of the proposal (discussed between the applicant and Sydney Water) to service the site by way of gravity lead-in main, which proposal Sydney Water considered should satisfy the requirement to demonstrate adequate arrangements for servicing.
2. The applicant submits that the question of Council's satisfaction for the purposes of clause 6.1 of the precinct plan is not a relevant matter in determining what was approved by the terms of the development consent. All I need to be concerned with is that the evidence suggests that the Council did form the requisite satisfaction that enabled it to grant development consent in the sense of the precondition to the power to grant development consent. Accordingly, the factual basis of the Council's satisfaction could not of itself somehow enlarge or amend the proposed development sought by the application.
3. Shortly stated, the submission is that by the act of granting consent the development application could not have been, and was not, amended by such information to include, as proposed development, a gravity lead-in main.
4. The consent was granted conditionally. This was an exercise of the power under s 80 A (in force at that time) (now section 4.17 (2)) under the EPA Act. In considering the conditions imposed the applicant emphasises that the terms and order of the conditions of the notice of consent are important.
5. Condition A1 requires the development "the subject of this determination notice" to be carried out strictly in (rather than generally) in accordance with specified approved plans (except where modified by the undermentioned conditions" (Applicant's Bundle Exhibit 1 (Folder 1) Tab 11, page 94).
6. Condition 4 provides: The development is to demonstrate compliance with all relevant requirements issued by Sydney Water, dated 10 June 2016 in (Attachment 4)."
7. Condition 90 provides: The following documentation is to be provided prior to the release of the subdivision certificate. (a) Written evidence (section 73 Certificate) is to be submitted to the PCA prior to the issue of subdivision certificate.
8. The applicant contends that by express reference it may be accepted that Sydney Water's letter dated 10 June 2016 was incorporated into the consent: Allendale. In granting consent in these terms, specifically by condition 4, that sewerage servicing was to be the satisfaction of a third party, Council was exercising the power to approve "a specified aspect of the development ancillary to the core purpose of the development" s 80 A (2) of the EPA ACT (now section 4.17 (2)).
9. The applicant submits that two important consequences flow from the exercise of this power in this fashion. 1. First, by nominating in condition 4 Sydney Water as the third party that needs to be satisfied the Council did not reserve to itself any further approval role in this aspect of the administration of the consent. Although it could have. 2. Secondly, by operation of section 80 A (2) the applicant submits that the consent itself authorises that which satisfies the relevant requirements of Sydney Water.

Satisfaction of conditions

1. The Council also contends that the necessary preconditions imposed under the consent have not been satisfied and therefore section 109J (1) (c) (now s6.15) of the EPA Act precludes the issue of the subdivision certificate. In particular, the Council identifies conditions 4 and 90 as imposing relevant preconditions.
2. The applicant submits that in determining this issue attention must be directed to the structure of the consent for the purpose of identifying the preconditions that engage section 109J (1) (c) .
3. According to the applicant the consent is structured in a deliberate ordered way by sections that follow a chronological sequence. Section A identifies the development approved. Section B deals with matters "Prior to the issue of a Construction Certificate". Section C deals with matters "Prior to Works Commencing". Section D deals with matters "During Construction" and Section E deals with matters "Prior to the Issue of a Subdivision Certificate".
4. Relevantly, condition 4 is within section A. Condition 90 is within section E.
5. At the beginning of sections B, C and E the consent states : The following conditions are to be complied with or addressed prior to… [the relevant subject matter].
6. The applicant submits that for the purposes of section 109J (1) (c) -only condition 90 is a condition that, by its terms, is required to be complied with before the issue of a subdivision certificate. Nothing in the terms of condition 4, or its location in the structure of the consent, specifies that it is a condition that must be complied with before issue of subdivision certificate.
7. Rather, the applicant submits that condition 4 is a general condition in the sense of not imposing a temporal requirement.
8. The evidence is that the issue of a section 73 certificate has been provided to Council in satisfaction of condition 90. For the reasons outlined earlier the applicant submits there is no warrant to go behind the certificate either in some form of attempted review or because of any assertion that the certificate approves something inconsistent with the consent. On the proper construction of the consent there is no inconsistency because condition 4 has the effect of authorising the manner of servicing which satisfies Sydney Water. The applicant contends that the Council misstates what the section 73 certificate does. In short, it does not approve anything instead it is a certificate that states that the requirements of Sydney Water (whatever they might be) have been met. This is expressly stated on the face of the certificate as well as its statutory function: s 71 (1) of the Sydney Water Act.
9. In any event, even if for the purposes of section 109J(1) ( c) condition 4 was a matter to be satisfied as a precondition to the issue of a subdivision certificate the applicant submits that the Court would find on the evidence as outlined that it is satisfied.
10. The applicant submits that the construction of the consent, in particular condition 4 agitated by the Council, namely that sewerage servicing can only take place by a gravity lead-in main should be rejected. It is submitted that the Council's case relies on a distorted reading of the Sydney Water's letter of 10 June which on a plain reading does not mandate that outcome. Rather, the letter incorporated into the consent provides comments from Sydney Water on the servicing arrangements for water and wastewater but only stipulated two requirements which may be relevant. These other requirements specifically identified in the attachment to the letter namely: a section 73 certificate and, if relevant, stamped building plans. (The latter (stamped building plans) is not relevant for the reasons explained by Mr Downey in his statement which was admitted into evidence on a limited basis and subject to relevance).
11. Had the Council wished to restrict the manner in which servicing could occur to only a gravity lead-in main it could easily have done so expressly in condition 4. However, it did not do that and it must take the consequences of that lack of clarity: Ryde Municipal Council v Royal Ryde Homes (1970) 19 LGRA 321 at p324. In the present circumstances it is inappropriate to construe condition 4 by reference to any direct communications between Council and Sydney Water or the Council and the applicant as a development consent is a document in rem, such communications are outside the matrix relevant to construction of the terms of the consent: Westfield at [41].
12. Even assuming condition 4 was a precondition to the issue of a subdivision certificate the applicant submits the Court would conclude on the evidence and a proper construction that the conditions requirements are satisfied namely :

• the applicant to demonstrate that Sydney Water's "relevant" requirements with respect to sewerage servicing are satisfied;
• identifies the requirements through the 10 June 2016 letter - of which only the obtaining of a section 73 certificate is relevant to the subdivision.

1. Having satisfied the preconditions to issue of a construction certificate there is no constraint on the issue of a subdivision certificate.
2. During the hearing the Council also raised condition 76 of the consent and asserted an inconsistency between the subdivision and the consent in reference to section 109J (1) (b).
3. In response to this the applicant, while conceding that the condition 76 is located within section E and thereby falls into the category of a further precondition to the issue of a subdivision, petitions the Court to reject this argument for the following reasons: 1. Condition 76 contemplates that both works may have been completed, or that "suitable arrangements" have been made with the council. The latter implies, necessarily, works not having been carried out (as is the case here) but suitable arrangements having been made to satisfy Council. 2. Under section 39 (2) of the Court Act, the Court has all of the functions and discretions of the person whose decision is the subject of the appeal in respect of the matter the subject of the appeal. In this instance the relevant person is, of course the Council. Council is both the PCA in s109D (1) (d) (1) (now s6.17) of the EPA Act and specifically mentioned in the condition. 3. The subject matter of the appeal is the subdivision certificate and includes whether suitable arrangements for works (suitable to Council) have been made to satisfy a precondition. This is the same matter dealt with by conditions 76. The discretion in Council to be satisfied about arrangements having been made is one that the Court has pursuant to section 39 (2) in this case. 4. Furthermore, when the consent is read as a whole in circumstances where council, as the consent authority has determined to grant consent by exercising the power under section 80A (2) to require sewerage servicing to be to the satisfaction of Sydney Water - and expressly not Council - condition 76 needs to be read consistently with that position. The person with whom suitable arrangements is to be made is Sydney Water, by dint of condition 4 it is submitted the Court can be satisfied .Such arrangements have in fact been made.

Consideration

1. After careful consideration of the evidence and the parties' submissions as outlined, I have decided to issue the subdivision certificate essentially for the reasons articulated by the applicant and as summarised below.
2. First I accept that the development consent is clear on its face. Therefore, it follows that the only documents necessary to understand the consent for the purposes of this case are incorporated by express reference including the plans in condition 1A and the letter from Sydney Water dated 10 June 2016 in condition 4.
3. Relevantly, the approved plans referred to in condition 1A do not provide any particular detail about sewerage servicing other than inter allotment utilities (drawing DA -601). (Similarly, the approved construction certificate plans do not deal with servicing arrangements; except for inter allotment utility lines within the site. The approved combined Services Plan depicts the proposed sewer lines within the site).
4. This is not surprising when, on a proper construction of the consent, the effect of condition 4 is to authorise and require sewerage servicing that satisfies Sydney Water. By nominating Sydney Water as the third party that needs to be satisfied the Council did not reserve to itself any further approval role in this aspect of the administration of the consent.
5. Condition 4 imposed under s80A (2) of the EPA Act authorises that which satisfies the relevant requirement of Sydney Water. On that basis there is no inconsistency between the IOP and the development authorised by the consent because the latter is a form of sewerage servicing that together with the gravity lead-in main that will follow - satisfies the requirements of Sydney Water as evidence by the issue of the s73 certificate.
6. As discussed by the Court in Howarth v Gosford City Council (No 2) (2014) 204 LGERA 425, at [189] quoting Scott v Wollongong City Council (1992) 75 LGRA 112, at 118-9: 'it is common for development consent conditions to stipulate matters 'to be left for later' and for 'final decision by the consent authority or by some delegate or officer to whose satisfaction, for example, specified work is to be performed.' This is inevitable given a development application cannot 'contain ultimate detail' and consent cannot fully resolve all aspects of a development 'with absolute precision'. That said, I am mindful that a decision maker exercising their power must not change the development 'in a fundamental respect' or cause it to be 'significantly different' from that which was approved: Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277 at [28]. The conditions are ancillary to the core purpose of the application. Such conditions have a 'degree of flexibility'. And, as the Court has made clear a degree of practical flexibility (as discussed in Scott) provided that it does not contravene any statutory limit on the power be exercised does not result in invalidity. To my mind the Council has set the "clear criteria against which achievement of the outcome or objective of the development must be assessed" as lying with Sydney Water in this case: Mison v Randwick Municipal Council (1991) 23 NSWLR 734 at [29] - (noting that the two categories of Mison are now embodied in statute s 80A (4) (a) and (b) of the EPA Act).
7. In my assessment the sewerage servicing is 'ancillary to the core purpose of activity' in this case, and therefore the condition 4 is flexible enough to allow the IOP together with the gravity lead-in main that on the evidence will necessarily follow.
8. I do not need to go behind the s73 certificate provided in satisfaction of condition 90. It has been received by the Court and satisfies the precondition to the issue of the subdivision certificate. It does not approve anything but certifies that the requirements of Sydney Water (whatever they may be) are met. This is expressly stated on the face of the certificate as well as is its statutory function s71 (1) Sydney Water Act.
9. Condition 1A requires the development to be carried out strictly in accordance with the approved utilities plans. That plan (and consistently with it, the Combined services plan approved by the construction certificate) requires inter allotment sewer lines to be constructed. The applicant submits that such approved work is not altered by the IOP. I agree. Rather, the IOP represents additional temporary infrastructure work which satisfies Sydney Water's requirements as facilitated by the terms of condition 4. On that basis there is no inconsistency between the IOP and the development authorised by the consent.
10. I am not concerned with the basis of Council's satisfaction for the purposes of clause 6.1 of the precinct plan. It is not a relevant matter in determining what was approved by the terms of the development consent. While the evidence suggests that the Council did form the requisite satisfaction that enabled it to grant development consent in the sense of the precondition to the power to grant development consent the focus must necessarily be on the terms of the consent.
11. The principles of construction of development consents are well settled and not in dispute. They are helpfully summarised in Lake Macquarie City Council v Australian native Landscapes Pty Ltd (No 1) [2015] NSWLEC 114 at [39]-[48] (Biscoe J). The development approved by the consent is not significantly altered by the IOP. The Council's consent has left it open to Sydney Water to decide the sewerage servicing arrangements. The condition complies with the statutory limits imposed upon the power of the authority. In Kindimindi quoting from Transport Action Group Against Motorways Inc v Roads and Traffic Authority (NSW) (1999) 46 NSWLR 598, [136] the Court held: 'There is nothing objectionable in deferring to the greater expertise of appropriate authorities such as… Sydney Water Corporation, or contemplating that such bodies will exercise their statutory powers in future as particular issues are referable to their severable expertise areas. Mison or any other variant of it does not preclude such a sensible way of carrying out an activity in the future.'
12. This is exactly what Council has done by way of condition 4. Had the Council wished to restrict the manner in which servicing could occur to only gravity lead-in main, it could easily have done so expressly in condition 4. It has not done so in any manner, let alone clearly and so must take the consequences of any conditions to which the consent is subject: Royal Ryde Homes.
13. The Council also contends that the subdivision certificate cannot be issued because condition 76 in Section E of the consent is not satisfied: s109J (1) (c) of the EPA Act. Condition 76 provides: Prior to the issue of a subdivision certificate, the Principal Certifying Authority shall ensure that all subdivision works required by this consent have been satisfactorily completed or that suitable arrangements have been made with Liverpool City Council for any outstanding works.
14. In order to satisfy this precondition to the issue of the certificate the Council submits that I need positive evidence that the subdivision works have been satisfactorily completed, including the lead-in main to the sewer identified in condition 4.
15. I do not accept this submission because the condition refers to two scenarios. First, that all subdivision works required by the consent have been satisfactorily completed or secondly, that "suitable arrangements" have been made with the Council for any outstanding works. The latter necessarily implies that works have not been carried out (as is the case at hand) but "suitable arrangements" have been made to satisfy Council.
16. Pursuant to s39 (2) of the Land and Environment Court Act the Court has all the functions and discretions of the person whose decision is the subject of the appeal in respect of the matter the subject of the appeal. In this case the relevant person is the Council. It is both the PCA and specifically mentioned in the condition (s109D (1) (d) (i) of the EPA Act).
17. The subject matter of the appeal is the subdivision certificate and in this instance includes whether suitable arrangements for works (suitable to Council that is) have been made to satisfy the precondition. The discretion available to the Council to be satisfied as to whether suitable arrangements have been made is one that the Court has pursuant to s39 (2): Gibson v Mosman MC (2001) 1114 LGERA 416 at 424 -425 [46].
18. In any event the consent is to be read as a whole. And, as I have indicated the Council has determined to grant consent by exercising the power under s80A (2) to require sewerage servicing to be Sydney Water's satisfaction (and expressly not Council) - condition 76 is to be read consistently with that position. As the applicant submits the person whom suitable arrangements have been made is Sydney Water by dint of condition 4. Such arrangements have been made - as evidenced but the s73 certificate and therefore the Court can be satisfied as required by condition 76.
19. I do not need to deal with parties competing submission in respect of cl 18 A of the SEPP given my findings as outlined above. However, as a further reason why, understood in its proper legislative context the IOP is not inconsistent with this consent I accept that the IOP is a utility undertaking to be carried out "under the authority of" the Sydney Water Act. The purpose of the IOP is to enable sewerage services to be provided by Sydney Water to the Site. The undertaking is "in pursuance of" achieving the principal function of Sydney Water under the Act: s5 (2) and 12. Therefore, for the purposes of the definition and clause 18A, the carrying out of the IOP is a public utility undertaking for which separate consent is not required.
20. Accordingly, the answers to the parties agreed issues are as follows: 1. What did development consent DA-1205/2015 (Consent) approve in terms of sewerage servicing of the subdivision? Answer: The Consent approves sewerage servicing arrangements that satisfy the requirements of Sydney Water. 2. Is the lOP work that was approved by the Consent? Answer: Yes, as an aspect of the sewerage servicing arrangements that satisfies the requirements of Sydney Water. Alternatively, it is work that does not require development consent. 3. Is condition 4 of the Consent a condition that, by its terms, is required to be complied with before a subdivision certificate may be issued? (cf EPA Act, s109J(1)(c)). Answer: No. a. If yes: b. What are the relevant requirements issued by Sydney Water, dated 10 June 2016? c. Have the relevant requirements of Sydney Water been satisfied? Answer: Unnecessary to answer; but if it was relevant, the relevant requirements of Sydney Water are the issue of a Section 73 Certificate, which requirement has been satisfied. 4. Has condition 90 of the Consent been satisfied by the issue of the section 73 Certificate dated 12 December 2017 by Sydney Water (s 73 Certificate)? Answer: Yes. 5. Does the s 73 Certificate authorise work, and if so, is that work approved by the Consent? Answer: The question is based on a misconception. The Section 73 Certificate does not 'authorise' anything. It evidences satisfaction of Sydney Water's requirements. If no, does the s 73 Certificate satisfy the terms of conditions 4 and 90 in circumstances where [Council contends] it authorises works not approved by the Consent? Answer: Unnecessary to answer.

Orders

1. Accordingly, the Court orders are: 1. Appeal upheld. 2. A subdivision certificate for 150 Tenth Avenue, Austral NSW 2179 (Lot 885 DP 2475 and Lot 860 DP 2475) pursuant to Development Consent no DA 1205/2015 dated 21 June 2016 is issued under Part 4 A Division 1 of the Environmental Planning and Assessment Act 1979. 3. The Exhibits are returned apart from D, G, 7 and 8.

Addendum made on 19 June 2018

1. At the request of the Applicant the matter was relisted before me today in order to give effect to the Court's orders made on 13 June 2018.
2. The Applicant has filed Short Minutes of Order in Court seeking further orders to give effect to the issue of the subdivision certificate and its registration. The Respondent indicated it neither opposed nor consented to such further orders but was in a position to abide by the proposed further orders within the 1 business day time frame nominated therein.
3. In the circumstances, I propose to make an additional order to affect the registration of the subdivision and the accompanying s88B instrument: 1. The Respondent is directed to sign a subdivision certificate in relation to the Applicant's subdivision plan and the accompanying s88B instrument, and provide these documents to the Applicant within 1 business day.

Further Orders dated 19 June 2018

1. As a consequence of the above, the final orders of the Court are: 1. Appeal upheld. 2. A subdivision certificate for 150 Tenth Avenue, Austral NSW 2179 (Lot 885 DP 2475 and Lot 860 DP 2475) pursuant to Development Consent no DA 1205/2015 dated 21 June 2016 is issued under Part 4 A Division 1 of the Environmental Planning and Assessment Act 1979. 3. The Respondent is directed to sign a subdivision certificate in relation to the Applicant's subdivision plan and the accompanying s88B instrument, and provide these documents to the Applicant within 1 business day. 4. The Exhibits are returned apart from D, G, 7 and 8.

Susan Dixon Senior Commissioner of the Land and Environment Court

Amendments 13 June 2018 - Correction to Representation 19 June 2018 - Pursuant to s39 of the Land and Environment Court Act, addendum and additional order added. 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: 19 June 2018