CTI Joint Venture Company Pty Ltd v CRI Chatswood Pty Ltd - [2012] NSWLEC 6 - NSWLEC 2011 case summary — Zoe

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CTI Joint Venture Company Pty Ltd v CRI Chatswood Pty Ltd

[2012] NSWLEC 6

Land and Environment Court (NSW)|2011-06-30|Before: Craig J

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Source facts

Court

Land and Environment Court (NSW)

Decision date

2011-06-30

Before

Craig J

Source

Original judgment source is linked above.

Judgment (36 paragraphs)

[1]

Background facts 26In February 2002, the Minister for Planning approved a project described as the Parramatta Rail Link. That project involved the construction of a new rail line from Chatswood to Parramatta. It also involved the carrying out of a number of infrastructure works associated with the provision of that rail link. Relevantly, it contemplated upgrading not only the rail infrastructure at Chatswood but also upgrading the Chatswood Railway Station and the site upon which it was located. The proponents for the project were the State Rail Authority and the Rail Infrastructure Corporation. The project also contemplated a transport interchange at Chatswood. 27The Chatswood transport interchange component of the Parramatta Rail Link project was modified by the Minister on 14 December 2004. That approval essentially determined the form, at least in concept, that development of the Interchange Site would take. The entity responsible for delivery of the project on behalf of the State Government was the Transport Infrastructure Development Corporation ( TIDC ), the statutory predecessor to TCA. It was determined at Government level that the process of delivering the Chatswood Interchange project was by means of a "Public Private Partnership". 28Ultimately, CRIC was selected as the private partner for implementation of the project. Following its selection to implement the project, CRIC entered into an agreement with TIDC for preliminary works. However, the mutual obligations of those two entities were ultimately contained in a deed entitled "Chatswood Transport Interchange Development Deed" made on 24 June 2005 ( the Development Deed ). It identified the terms on which CRIC was to design, develop and construct all of the elements of the Chatswood Transport Interchange Project which not only included rail infrastructure and railway station works but also a retail complex, residential buildings, a car park and "public space, access ways and landscaping associated with" those additional land uses. The latter reflects a more complete description of those parts of the project that I have earlier referred to as "associated development". More detailed reference to the provisions of the Development Deed will be necessary when I come to consider the specific issues to be determined. 29Meantime, on 27 May 2005 CRIC had lodged a development application with the Minister seeking consent for the associated development. Rail infrastructure works had been determined and approved pursuant to the provisions of Pt 5 of the EPA Act but the grant of development consent under Pt 4 of the Act was required for the associated development. The Minister for Planning was the relevant consent authority for the latter, as the associated development was State significant development within the meaning of State Environmental Planning Policy (State Significant Development) 2005: s 76A(9) of the EPA Act (as that section was then enacted). 30On 22 August 2005, the Minister for Planning granted development consent to the application that had been lodged by CRIC ( the Development Consent ). The consent then granted by the Minister was expressed to be subject to the conditions referred to in Sch 2 to his determination. Part A of that Schedule was headed "Administrative Conditions". Condition 1 was as follows: " A1 Development Description Development consent is granted only to carrying out the development described in detail below: (1) Construction and use of three residential buildings providing a total of 64,513 m 2 of residential gross floor area (GFA) in the following configuration: (a) Tower 1 consisting of 32,802 m 2 of GFA, 40 storeys, 246.80 m AHD (to top of parapet and not including roof plan or architectural features); (b) Tower 2 consisting of 14,515 m 2 of GFA, 25 storeys, to 201.10 m AHD (to top of parapet and not including roof plant or architectural features); (c) Tower 3 consisting of 17,196 m 2 of GFA, 36 storeys, to 234.30 metres AHD (to top of parapet and not including roof plant or architectural features); (2) Construction and use (excluding fit-out) of 9,969 m 2 Gross Area of retail development associated with the railway concourse and the bus interchange, including kiosks; (3) Three basement levels for car parking for 501 vehicles, associated with the proposed residential development, plus 5 parking spaces for RailCorp use; (4) A residential loading dock; (5) Two retail loading docks; (6) Access to residential drop-off for Towers 2 and 3 (shareway); (7) Landscaping to the podium roof; and (8) Stratum subdivision of the site." 31Condition A2 required that the development be "in accordance with" the development application submitted on 27 May 2005 and in accordance with identified documents, including a list of architectural drawings prepared by CoxDesign Inc, the project architects. Those drawings were identified by sheet number, description and date. 32Also within Sch 2 to the Development Consent were conditions E1 and E2. Condition E1 required creation of easements for access while condition E2 required the creation of easements for a number of matters consequential upon the stratum subdivision and the intended use of each of the lots thereby created. These latter easements appeared under the head "Services" although that heading may describe too narrowly the ambit of easements identified by the terms of the condition itself. It will be necessary to refer to the terms of each of conditions E1 and E2 in due course. 33Within the list of documents to which condition A2 referred was a subset of documents headed: "Stratum Subdivision Drawings prepared by Hard & Forester Consulting Surveyors". Beneath that heading there are listed eight plans by drawing number, revision number, plan name and date. The last of those listed stratum subdivision plans is plan number 110354040/8 dated 19 July 2005 and described as "Residential Level RL113.00". It is convenient to refer to this last plan as "Sheet 8". It will be noticed that the stratum subdivision drawings identified in the condition were prepared by Hard & Forester Pty Ltd (the sixth respondent). 34Like the preceding seven sheets of the stratum subdivision drawings, Sheet 8 indicated the distinctive colours by which each of the lots intended to be created by the plan could be identified. The lots proposed were numbered from 101 to 110. Against each colour indicative of a lot was the intended lot number together with a succinct description of the apparent purpose for which the lot was to be used. The distinctive colouring on Sheet 8 indicated lot 105 as "Retail", lot 106 as "Tower 1", lot 107 as "Tower 2" and lot 108 as "Tower 3". Sheet 8 is the only plan upon which lot 107 is indicated. While lot 105 as a retail lot is indicated on sheets pertaining to lower levels of the site, as well as on Sheet 8, there is no drawing indicating stratum lot location above the level shown on Sheet 8 as RL113.00. Each of the 8 sheets of the plan of stratum subdivision contained in the top left hand corner the typewritten words "SUBJECT TO FINAL DESIGN AND SURVEY". 35Following the grant of the Development Consent, Hard & Forester Pty Ltd (the sixth respondent) was retained to prepare a plan of stratum subdivision to give effect to the Consent. That plan was completed in 2009 and on a sheet forming part of the plan entitled "Deposited Plan Administration Sheet" there appears the signature of Pierre Hartzenberg (the seventh respondent) certifying that the survey is accurate and had been made in accordance with the Surveying and Spatial Information Regulation . A subdivision certificate also appears on the same sheet. It states as follows: "I certify that the provisions of s 109J of the Environmental Planning and Assessment Act 1979 have been satisfied in relation to: the proposed Subdivision set out herein." As appears before, the certificate is signed by Gordon Wren (the ninth respondent). Appearing above his signature are the hand printed words "Relates to Lots 102 and 104 - 109 incl". 36The second of the sheets headed "Deposited Plan Administration Sheet" lists 43 restrictions as to user intended to be created pursuant to s 88B of the Conveyancing Act. The third sheet so headed contains a statement that a building management plan of 116 sheets "accompanies this plan". The final sheet under that same heading is executed by a number of entities apparently having title interests in the Interchange Site, including TIDC and RailCorp. 37The plan of stratum subdivision prepared in the manner just described was registered by the Registrar General on 8 January 2010 as DP 1094273. At that time an instrument under s 88B of the Conveyancing Act was registered whereby a number of easements and restrictions as to user were created. Whether that Instrument satisfied the requirements of conditions E1 and E2 of the Development Consent will be addressed in due course. 38Following registration of the DP, marketing of the project so far as it related to the associated development was undertaken. JVCo was an interested purchaser. What was being marketed on behalf of CRIC was, according to the evidence, described as: (i) a completed car park for approximately 500 cars; (ii) an approved development application for 509 apartments in three towers, with contributions under s 94 of the EPA Act imposed by conditions of Development Consent already paid; (iii) a building rights package to enable the rights to build the three towers which included a s 88B Instrument setting out easements and other rights together with a Building Management Statement; (iv) freehold title to the car park and tower lots and (v) a warranty that the podium structure that had already been erected and upon which the three residential towers were to be constructed was structurally suitable to accommodate the building of those towers. 39In July 2010 JVCo was granted a period of exclusivity to negotiate with CRIC and its receivers and managers for the purchase of components of the associated development. A process of due diligence was carried out by it. This involved, amongst other steps that it took, meetings and discussions with CoxDesign, the project architect, and also with representatives of Hard & Forester Pty Ltd (the sixth respondent), including Mr Hartzenberg (the seventh respondent). 40Ultimately, on 12 November 2010 JVCo and CRIC entered into an agreement described as a "Nomination Deed" ( the Nomination Deed ). By that Deed, CRIC agreed, among other matters, to nominate JVCo as the nominee under call options held by CRIC in relation to lots in the DP. Those call options had been granted by TIDC and RailCorp. The lots in question were lots 102, 106, 107 and 108 in the DP. 41The call options were exercised with the result that on 3 December 2010 JVCo entered into contracts with TCA (as TIDC had then become) and RailCorp to purchase lots 102, 106, 107 and 108 in the DP. Those contracts were completed on 17 December 2010 when signed transfers were provided enabling JVCo to become the registered proprietor of those lots. 42Following the transfer of title to it, JVCo took steps to implement the development on the lots that it had acquired. To this end, it retained Hard & Forester Pty Ltd (the sixth respondent) to prepare strata plans for the residential tower buildings, the erection of which were the subject of the Development Consent. In the process of preparing the plan of strata subdivision for the tower building on lot 107, the surveyor employed by the sixth respondent determined that the residential tower building identified in the Development Consent as Tower 2 and intended to be located within the land now identified as lot 107 could not, in fact, be so contained. At levels above RL113.00 the face of the building extended over lot 105. 43As I have earlier indicated, Metro had contracted to purchase lot 105. The Settlement Date for completion of this purchase was 28 March 2011. The present proceedings were commenced on 24 March 2011. Completion of that purchase has been restrained pending determination of these proceedings.

[2]

Issue 1: parties causing the registration of the plan of stratum subdivision 44For its part, CRIC accepts that it was responsible for procuring registration of the DP. It accepts that if, contrary to its denial, the DP does not conform to the conditions of the Development Consent and that easements required to be imposed by conditions E1 and E2 of that consent have not been created, that it may be found to have breached s 76A of the EPA Act, rendering it potentially susceptible (subject to its other arguments) to an order pursuant to s 124 of that Act. The essential question to be resolved in the context of the present issue is whether TCA, through its predecessor TIDC, and RailCorp have acted in breach of the EPA Act such that they are also susceptible to orders under s 124. As New South Wales Government agencies, neither of them have indicated that if JVCo is otherwise successful and any order made for amendment of the DP, they would not, as owners of land within the Interchange Site, do such things as were necessary in order to give effect to any amendment that might be ordered. 45By an amendment to s 18A of the Transport Administration Act on 1 July 2010, the name of the corporation constituted as TIDC was changed to TCA. That change did not operate to create a new legal entity: s 18A(2). It is convenient from this point in these reasons to refer to both entities as TCA, recognising that the relevant entity prior to 1 July 2010 was known as TIDC. 46Essential to the consideration of this issue are the provisions of the Development Deed. That Deed, as I have already indicated, was entered into by TCA on the one part and CRIC, together with a related entity, on the other. CRIC was referred to in that Deed as the "Developer". Relevant to an understanding of that Deed in the present context are the following statements contained in Recital C to the Development Deed: "The Developer will develop the Retail Complex. The Residential Lots will also be developed for future residential development in accordance with the Positive Covenant. [TCA], RailCorp and the respective purchasers will enter into call option deeds with respect to the Retail Complex, the Residential Lots and the Car Park Lot. Pursuant to these deeds, the respective purchasers may nominate other purchasers. [TCA] and RailCorp will also enter into a call option deed with respect to the lease of the Retail Space Lease Lot with the Retail Complex Purchaser ... ". The Deed gave effect to the intentions expressed in this recital. 47By cl 21.1(b), CRIC was required, at its own cost and within a time stipulated in that paragraph to: "(i) procure a survey of the CTI Site for the purpose of preparing the Subdivision Plan in accordance with the Draft Subdivision Plan; and (ii) provide a copy of that survey to [TCA]." 48The expression "Subdivision Plan" is defined in cl 1.1 of the Development Deed to mean the plan of stratum subdivision in the form of a draft plan that is exhibited to the Deed. 49Paragraph (c) of cl 21.1 required CRIC to ensure that a number of survey principles were applied when preparing the survey referred to in paragraph (b). They included a requirement in subparagraph (ii) that if the vertical delineation of the survey of a lot "extends to the outside structural surface" then in the case of a "vertical rise that is not shared, it will be included in the relevant lot." 50Clause 21.1(j) needs to be noticed in full. It provided: "(j) the Developer [CRIC] must, at its own cost, as soon as practicable after the survey referred to in paragraph (b) has been carried out, prepare the following documents: (i) the Subdivision Plan based on the Draft Subdivision Plan and any changes agreed to by [TCA] and the Developer; (ii) the Section 88B Instrument based on the Draft Section 88B Instrument and any changes agreed to by TIDC and the Developer; and (iii) another development application for the purpose of obtaining the consent to the Subdivision Plan and Section 88B Instrument (if required), and provide a copy of those draft documents to [TCA] for approval identifying all changes from the Draft Subdivision Plan and the Draft Section 88B Instrument." 51Complementing the obligations of CRIC under the Development Deed, were obligations imposed upon TCA. Among the "key" obligations upon TCA imposed by cl 2.2 were the obligations imposed under "clause 21 in relation to subdivision" (sub-paragraph (h)).. 52Clause 4.5 required that it "procure RailCorp's cooperation or consent, as required" for a number of purposes including - "(c) preparing and registering the Subdivision Plan, the Section 88B Instrument, the Building Management Statement and any other relevant documents ... ". I have already indicated that a draft of the subdivision plan was exhibited to the Development Deed. Drafts of both the s 88B Instrument and the Building Management Statement referred to in that clause were also exhibited to the Deed. 53The obligations of CRIC pursuant to cl 21.1 of the Development Deed were complemented by both rights and obligations imposed upon TCA. Subject to an identified exception, TCA could provide or refuse approval to the subdivision plan and s 88B Instrument required to be prepared by CRIC provided that approval or refusal was given within 5 days from receipt of the relevant documents. By cl 21.1(l), TCA was required to approve any modification to the subdivision plan and s 88B Instrument provided that the RailCorp lots and other lots shown on the subdivision plan generally correspond with the boundaries identified for them in the draft plan and provided that all lots, including the RailCorp lots - "(iv) ... have the benefit and burden of such easements set out in the Draft Section 88B Instrument and such additional easements, which are necessary for the effective use and operation of the CTI Infrastructure Works and the Development Component as contemplated by the [TCA] Part 5A approval and the Developers DA Consent ... ". 54Each of CRIC and TCA proceeded to take steps consistent with their respective obligations under the Development Deed. Following receipt of the Development Consent from the Minister, CRIC retained Hard & Forester (the sixth respondent) to prepare the plan of stratum subdivision while Grinsell & Johns Pty Ltd (the eighth respondent) was retained as the principal certifying authority for the purpose of the EPA Act. 55On 16 December 2008 a letter was written on behalf of TCA to CRIC, referring to a meeting held earlier that month with a representative or representatives of the Company. The letter is written on the letterhead of "Transport Infrastructure Development Corporation" and bears the coat of arms of this State. No question was raised as to the authenticity of this letter. It commences in the following terms: "As discussed at the 8 December 2008 meeting, [TCA] and Rail Corporation New South Wales ( RailCorp ) requires the documents listed below to be submitted in their final form for review as one package before the Section 88B Instrument and Building Management Statement can be executed by [TCA] and RailCorp ...". (Original emphasis.) Some eleven documents were identified in the letter. The first document was the "Plan of Subdivision, including Part 4 Subdivision Certificate" while the second and third documents were respectively the s 88B Instrument and the Building Management Statement. 56The concluding paragraph of that letter is also relevant to the present issue. It states: "As previously advised, both RailCorp and [TCA] will require written certification from their lawyers that the documents are in accordance with instructions and contain all agreed changes and are suitable for execution by RailCorp and [TCA] respectively. Obviously such written certification can only be provided after the above documents are submitted in final form to RailCorp and [TCA]. RailCorp will then need a minimum of five (5) business days to review the documents and prepare the necessary certification and recommendation to the RailCorp signatories." (Original emphasis.) 57RailCorp did not adduce any evidence in the proceedings. The opening and closing paragraphs which I have quoted from the letter from TCA to CRIC of 16 December 2008 purports to state not only the requirements of TCA in relation to the matters identified in that letter but also those requirements of RailCorp. Given that each of RailCorp and TCA are New South Wales government agencies (ss 4 and 18A of the Transport Administration Act ) and that TCA had the general responsibility for implementation of the Chatswood Interchange Project, I consider it proper to infer that when TCA wrote in the terms that it did, it had the authority, at least ostensible authority, to do so on behalf of RailCorp. The fact that it recorded the need of RailCorp for five business days to review documents and make recommendations "to the RailCorp signatories" readily implies that there was a close liaison between RailCorp and TCA directed to the implementation of the project in which each had a mutual interest, not only as landowners, but as providers of their respective public services in accordance with the Transport Administration Act . No evidence was led which would militate against the drawing of the inference that I have indicated. 58Following the letter of 16 December 2008, further discussion took place between representatives of CRIC and TCA. A further letter from TCA dated 20 February 2009 records a meeting held on 6 February between representatives of the parties. The letter records an understanding that CRIC was "awaiting advice from LPI and reviewing the comments from [TCA's] surveyors with respect to easements". The letter also records an understanding of changes to be made to the stratum subdivision plan, the proposed s 88B Instrument and Building Management Statement consequent upon the meeting held on 6 February. That same letter from TCA also identifies further changes to be made to the plan as well as including "survey notations, measurements and discrepancies" marked up on a draft of the stratum subdivision plan. The letter then contains the following observation: "As mentioned at the meeting on 6 February 2009, it may be of benefit for CRIC and H and F to review these documents again prior to finalising the DSSP to ensure that all required amendments have been captured." The reference to "H and F" is clearly a reference to the Hard & Forester Pty Ltd (sixth respondent) while reference to the "DSSP" is reference to the draft stratum subdivision plan. 59On 23 June 2009 CRIC forwarded the stratum subdivision plan together with the s 88B Instrument to TCA. As expressed in its letter, it sought approval to those documents pursuant to cl 21.1(j) of the Development Deed. The letter further indicated that the subdivision plan "has changed in its entirety" from the draft exhibited to the Development Deed "in order to comply with the LPI survey plan requirements and the requirements of the parties." Also enclosed with the letter was a Building Management Statement. 60Receipt of the documents forwarded with the letter of 23 June was acknowledged by TCA in a letter of 29 June 2009. It recorded that the "full suite of related documents" requested in its letters of 16 December 2008 and 20 February 2009 were still to be provided. 61Christopher Hill was the receiver and manager appointed to CRIC. He gave evidence to the effect that in his capacity as receiver of CRIC, he attended a number of meetings with representatives of TCA concerning the mutual obligations of CRIC and TCA under cl 21.1 of the Development Deed. Topics included the stratum subdivision of the Interchange Site, in particular, the subdivision that would allow the lots upon which the three residential towers were proposed to be taken to the market for sale. He accepted that during 2009 there was "extensive contact" with representatives of TCA concerning the preparation and amendment of the subdivision plan, the s 88B Instrument and the Building Management Statement (Tpt 369.50 - 370.38). 62The fourth page of the Deposited Plan Administration Sheet forming part of the DP is signed by or on behalf of each of TCA and RailCorp (among others). It signified their consent to registration of the plan of stratum subdivision. The heading of the sheet indicates the date of endorsement to be 28 May 2009. It will be remembered that the DP was registered on 8 January 2010. Upon registration, TCA and RailCorp became the registered proprietors of lots including lots 102, 105, 106, 107 and 108. 63In light of the events that I have described, it is necessary to return to consideration of the role of each of CRIC, TCA and RailCorp in causing or permitting registration of the plan of stratum subdivision that became the DP. I have formed the view that each of them played such a role in procuring registration of the DP that each could appropriately be described as having caused or permitted its registration by the Registrar-General. 64For its part, CRIC did not seek to argue to the contrary. It applied for and obtained the Development Consent that required, as a component, stratum subdivision of the site. In accordance with cl 21.1(b) of the Development Deed, it retained Hard & Forester Pty Ltd (the sixth respondent) not only to carry out the survey required by cl 21.1(b) of the Development Deed, but also, following such survey, to prepare the plan of stratum subdivision in accordance with cl 21.1(j). It had a significant commercial interest in procuring registration of the DP as registration enabled it to exercise its rights under the Nomination Deed to market those lots identified to accommodate the three residential towers. 65It is apparent that TCA, through its representatives, took an active role in relation to the plan of stratum subdivision as well as the s 88B instruments. Those rights were afforded to it under cl 21.1 of the Development Deed, a right that it actively exercised. This is apparent from the indication of its requirements to CRIC, its retaining its own surveyors to consider the documents prepared on behalf of CRIC, as its letter of 20 February 2008 (Exhibit Q) demonstrates. Its active role in consideration of both the subdivision plan and s 88B Instrument is evident from the discussions had between its representatives and Mr Hill, on behalf of CRIC, concerning those documents prior to their preparation in final form. 66Further, these matters demonstrate that the involvement of TCA in the preparation of the plan of stratum subdivision extended beyond what might be described as a document check list. The obligation under the Development Deed was for preparation of a stratum subdivision plan that generally met the draft of such plans and draft s 88B Instrument exhibited to the Development Deed. Clearly, TCA was concerned to identify and consider for itself the appropriateness of differences between the exhibited draft and the documents finally submitted to it for its approval. This was done in the context of the Development Deed that identified the development application lodged by CRIC with the Minister seeking consent for the retail and residential development of the Interchange Site, including its stratum subdivision. Preparation of the plan of subdivision intended for ultimate registration clearly contemplated consideration of the stratum subdivision plan that was the subject of the Development Consent. 67All of these matters are directed to the participation of TCA in causing registration of the plan of stratum subdivision and s 88B Instrument that came to be registered as the DP. Further matters relevant in this regard include - (i) TCA was the owner of part of the land that was being subdivided; (ii) it provided consent pursuant to s 195D(e)(i) of the Conveyancing Act to the subdivision of the Interchange Site; (iii) it was the grantor, along with RailCorp, of call option deeds each dated 24 June 2005 granting options to CRIC to purchase relevant lots in the draft plan of stratum subdivision, with a right of nomination given to CRIC to exercise the call option; (iii) it engaged solicitors who, on 15 September 2009, lodged the plan of stratum subdivision, s 88B Instrument, Building Management Statement and other documents with the Department of Lands seeking registration of the plan of stratum subdivision; and (iv) TCA derived financial advantage or benefit from the registration of the plan of stratum subdivision with the potential that it provided for development within individual lots for retail and residential purposes. 68The evidence of direct involvement by RailCorp in negotiating the form both of the plan of subdivision and s 88B instruments is not as extensive as that pertaining to the involvement of TCA. However, for reasons earlier indicated, the Chatswood Interchange Project was being managed by TCA but with clear involvement by RailCorp. The former was clearly acting in an agency capacity for the latter. Moreover, as the correspondence to which I have earlier referred indicates, RailCorp was indicating, through TCA, its requirements in relation both to the plan of stratum subdivision and the s 88B instruments. So much is apparent from Exhibit U. 69Like TCA, RailCorp not only had a functional interest in the Interchange Site but a financial interest in its development conformably with the project documents. As recital H of the Development Deed indicates, RailCorp was entitled to a rent from the ultimate lessee of the retail lot to be created by the subdivision and it was one of the grantees of the call options to which I have earlier referred. In short, it derived financial benefits from the development of the Interchange Site following registration of the plan of stratum subdivision. It was the owner of part of the land and provided its consent to lodgement of the plan pursuant to s 195D(e)(i) of the Conveyancing Act . 70I have already indicated that this present issue is being considered upon the assumption that the plan of stratum subdivision and s 88B Instrument have not been prepared and registered in accordance with the conditions of the Development Consent (an assumption, the validity of which is yet to be considered). If that assumption is made good, there is potential for each of CRIC, TCA and RailCorp to have breached the EPA Act. 71The statutory provisions will be addressed in more detail when I come to consider the validity of the assumption. However, it must be acknowledged that expressions such as "causing or committing" a breach are not expressions reflected in the relevant provisions of the EPA Act. Section 76A(1)(b) relevantly proscribes the carrying out of development where development consent is required otherwise then in accordance with the provisions of a development consent. By s 122, a breach of the EPA Act extends to a failure to comply with the conditions of a development consent. It is by the provisions of s 124 that the Court is empowered to make an order to remedy or restrain such a breach. 72While an owner of land to which a development consent relates will not, merely by the fact of ownership, be liable to an order under s 124 where breach has been demonstrated on the part of others, the role, if any, of the owner in relation to that breach is necessary to be considered in order to determine whether by its conduct or involvement in the breach it is susceptible to an order under s 124 ( Wilkie v Blacktown City Council [2002] NSWCA 284; (2002) 121 LGERA 444; Hillpalm Pty Ltd v Heaven's Door Pty Ltd [2004] HCA 59; (2004) 220 CLR 472 at [47] - [48]). However, where the owner has participated in the conduct giving rise to the breach or taken advantage of the breach, that conduct would ordinarily be sufficient to render the owner susceptible to an order under s 124 ( Wilkie at [42]). 73For the reasons that I have indicated, neither TCA nor RailCorp were mere passive owners. Active steps were taken on their behalf to participate in the preparation and ultimate registration of the DP. This was done in the context of contractual involvement by them, including by RailCorp through its agent TCA, that contractual involvement necessarily identifying a development consent necessary to sanction the stratum subdivision of the Interchange Site. Their involvement in the process of subdivision plan preparation in the context of the retail and residential development of the site and its relevance to the subdivision is more confidently inferred from the facts to which I have referred by reason of the absence of any evidence from either of those respondents directed to the topic. 74For these reasons, I conclude that if the breaches alleged by JVCo in relation to the plan of stratum subdivision and the failure to create easements as required by conditions E1 and E2 is made good, then breach can be attributed to each of CRIC, TCA and RailCorp, rendering them susceptible to an order pursuant to s 124 of the EPA Act.

[3]

Issue 2A: breach of condition A2 in drawing the boundary between lots 105 and 107 75I have earlier referred to the grant of Development Consent by the Minister on 22 August 2005, expressed to be subject to the conditions of consent in Sch 2. Part A of those conditions is headed "Administrative Conditions". Condition A2 commences in the following way: " A2 Development in Accordance with Plans The development shall be in accordance with development application number DA no. 131 - 05-2005 submitted by the applicant on 27 May 2005 and in accordance with the following: ...". There follows reference to documents and the series of plans to which I have earlier referred, including the eight drawings prepared by Hard & Forester Pty Ltd (the sixth respondent) that comprised the stratum subdivision plan identified in the condition. 76The context of condition A2 is relevantly set by the preceding condition, condition A1 that I have set out at [30]. In short, condition A2 identified the particular form that the development described in generic terms in condition A1 should take. 77The principles that should attend the proper construction of the Development Consent are not controversial. They require a consideration of the consent as a whole in order to give effect to its apparent intention. In this context, the fact that it was the unilateral act of the consent authority and its inherent quality as a document that enures for the benefit of subsequent owners and occupiers requires that it be construed "in accordance with its enduring functions" ( Winn v Director-General of National Parks and Wildlife [2001] NSWCA 17; (2001) 130 LGERA 508 per Spigelman CJ (at [4]). In construing the consent, regard can be had to objective circumstances, including the physical circumstances, the plans accompanying the development application and matters relating to title ( Westfield Management Ltd v Perpetual Trustee Company Ltd [2006] NSWCA 245 at [40] - [41]). 78Application of these principles in the present case would allow the provisions of condition A2 to be construed by considering together both the identified architectural drawings as well as the identified stratum subdivision drawings. This is the case because the colour coding and lot numbering on the plan of stratum subdivision to which I have earlier referred clearly indicated that each of the lots identified for residential purpose was intended to accommodate a particular residential tower identified by number. Each of those numbered residential towers was, in turn, detailed in plan and elevation, including the relative levels of each floor, in the architectural drawings. 79A further principle to be remembered in construing the Development Consent is the avoidance of an unreasonable or illogical result. As Talbot J observed in Baulkham Hills Shire Council v Dix [2004] NSWLEC 404; (2004) 136 LGERA 149 at [17], the proper construction of the consent "needs to be rationalised in a practical and effective way". This, with respect, is apposite when taking account of the fact that a development consent will almost invariably be written by town planners or other experts and not by lawyers ( Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Ltd [2009] NSWCA 160; (2009) 167 LGERA 395 per Tobias JA (Young JA and Bergin CJ in Eq agreeing) at [105]). 80Two surveyors were called to address this issue. Mr D Linker was called by JVCo while Mr Diver-Tuck was called by CRIC. In accordance with Directions given by the Court, they met prior to giving evidence and prepared a joint statement (Exhibit C). Paragraphs 1 and 9 of that joint statement need to be noticed at the outset. They state: "1. If Tower 2 above RL 113.5 is built in accordance with the DA approved plans it will then overhang the DP Boundary. 9. Common sense would dictate that Tower 2 if built to approved plans should be contained wholly within its lot." 81Each of Mr Linker and Mr Diver-Tuck provided both affidavit and oral evidence. In preparing their affidavit evidence their approach differed. Expressed succinctly, Mr Linker carried out an exercise comparing the plan of stratum subdivision identified in condition A2 of the Development Consent, particularly Sheet 8 of that plan, (referred to as the "approved plan"), the architectural drawings that were the subject of condition A2, particularly those pertaining to Tower 2, and the plans comprising the DP (referred to as the "registered plan"). 82For his part Mr Diver-Tuck addressed a comparison between the approved plan and the registered plan in his affidavit evidence. When preparing that evidence, he did not address the architectural drawings that were the subject of condition A2 (Tcpt 209:38 - 210:20). That difference in approach contributed to the different conclusions that each of them expressed as to whether the common boundary between lots 105 and 107 as drawn on the approval plan was inconsistent with the common boundary shown for those same lots in the registered plan. 83Based upon the plans that he used for comparison, Mr Linker concluded that there was an inconsistency between the approved plan and the registered plan in the location of that boundary. Mr Diver-Tuck expressed the opinion that "it is not possible to say" that the inconsistency opined by Mr Linker existed. That difference of opinion was explored in oral evidence. 84It was accepted by both experts that from a surveyor's perspective, Sheet 8 was "vague and imprecise". It did not indicate any dimensions or bearings that would permit precise identification of boundaries. Moreover, the different colours used on the plan to indicate the lots to be created were themselves bounded by lines that arguably obscured the precise extent of the colouring intended to indicate the location of a particular lot. The focus in this regard was upon the eastern boundary of lot 107 on Sheet 8, marking the boundary between that lot and lot 105. Apart from the absence of any bearings or distances shown for this and other boundaries, there is no statement or other indicator on Sheet 8 identifying the intended boundaries of any of the lots shown by distinctive colouring on that plan. 85Taking these matters into account, coupled with the statement endorsed on the approved plan indicating that it was "subject to final design and survey", Mr Diver-Tuck compared Sheet 8 with the relevant sheets of the registered plan. He indicated "general similarities" between the two plans, including the boundary shape of lot 107, the number of boundary lines, the approximate angular relationship of boundaries when comparing the relevant plans, the approximate boundary lengths and what he described as a spatial similarity between the southern and eastern boundaries of lots 107 as shown on the registered plan when compared with the approved plan. It is by reason of these matters that he was unable to determine any inconsistency in the location of the common boundary between lot 105 and 107. His emphasis was upon the fact that the approved plans were "concept plans". His focus was upon the comparison between the approved plan and the registered plan at RL 113. 86While the focus of the comparison was upon Sheet 8 of the approval plan, it is to be noticed that each of the preceding seven sheets relate to the lower levels of the building commencing with the car park level at RL 84.60. Further, each sheet of the approved plan has indicated within it the outline, in plan view, of structures or other elements intended to be developed at that level within the confines of the area intended for each lot as indicated by distinctive colouring. These elements would appear to be taken from the architectural plans. Thus, there is shown on Sheet 8 and outlined in red within the distinctive purple colouring intended to identify proposed lot 107, the footprint of Tower 2 together with the curtilage intended for that tower at RL 113. The latter level is the highest level shown on any sheet of the approved plan, albeit that the top level of Tower 2 is, according to condition A1 of the Development Consent, at RL 201.10 AHD (as quoted at [30]). 87Each of the surveyors placed significance on the fact that the approved plan extended only to RL 113. This fact was relied upon by Mr Diver-Tuck to support his opinion that inconsistency could not be demonstrated between the approved plan and the registered plan at this same level. 88As I have said, Mr Linker incorporated into his comparison the architectural plan for Tower 2. The architectural plan that most closely corresponded to RL 113 on the approved plan was the floor plan for Tower 2 at RL 113.6. I do not understand there to be any issue between the surveyors that, in having regard to the architectural plans, this was the appropriate plan for the purpose of comparison. 89Not only did Mr Linker carry out a visual comparison between the approved plan and the registered plan but was able to reduce to electronic form the relevant architectural plan and the registered plan thereby enabling a comparison between the two to be made by use of computer. Accuracy was checked by comparing the lift core for Tower 2 as shown on the architectural plans with the location of the same element as drawn on the approved plan. This enabled him to conclude that the residential level of Tower 2 would extend beyond the boundary of lot 107 as shown on the registered plan by a measure of about 1 m at its southern end extending to about 1.5 m towards the northern end of the eastern boundary of that lot. Mr Diver-Tuck accepted that the extent of overhang was in the order of measurement indicated by Mr Linker. 90I should note that in making the comparisons that he did, Mr Linker did take account of the fact that following the grant of the Development Consent, a number of modifications to it were submitted and approved by the Minister. These modifications relevantly related to changes in the internal layout of Tower 2. No modification was sought or made to the plan of stratum subdivision that was the subject of the original condition A2. The version of the architectural drawings most recently approved prior to registration of the DP was considered by Mr Linker. Notwithstanding the modifications that had been made and approved, it was contended by Mr Linker and accepted by Mr Diver-Tuck that the eastern face of Tower 2 had "not moved or rotated" with the internal modifications that had been made to that Tower above RL 113 (Tcpt 191:29 - 34). It was the eastern face of Tower 2 that, if constructed in accordance with the approved architectural drawings, as modified, would overhang the common boundary between lots 105 and 107. 91Acceptance by both expert surveyors that Sheet 8 of the approved plan of stratum subdivision was "vague and imprecise" led to considerable debate as to the manner in which lines marked on the plan should be interpreted in order to identify the boundary of lot 107 at what Sheet 8 described as "Residential Level RL 113.00". The area in question is coloured purple, most clearly seen on a copy of Sheet 8 that became Exhibit 8R2. The legend on that plan indicating the various colours and lot numbers had beside the indicative colour purple the words "Lot 107 Tower 2". As I have earlier discussed, within the area drawn on Sheet 8 which appears to reflect the approximate level on the architectural drawing, within the purple coloured area the footprint of Tower 2 is shown as is an area to its north, west and south which extends beyond the perimeter wall of the building and appears, at least on the north and west to identify podium landscaped areas. One such area is located to the north-east of Tower 2, the extremity of the purple colouring in this location being bounded by a single red line to the east of which is a thin black line. That easternmost thin black line was accepted by Mr Diver-Tuck as the likely intended extremity of the eastern boundary of lot 107 when seeking to interpret Sheet 8. 92The single black line to which I have just referred is irregular in alignment and is oriented at four different angles before intersecting with what appears to be the southern boundary of lot 107. Immediately adjacent to the eastern footprint of Tower 2 the single black line is then bounded by what appears to be a parallel line marked in red. It was this single red line which Mr Diver-Tuck indicated obscured the extent of purple colouring and thus obscured the eastern extent intended for the purple colouring. Where adjacent to the outline of Tower 2 the thin red line was located between parallel black lines led to debate as to whether, in that location, the boundary was the inner line or the outer line. Ultimately, this did not prove to be helpful. Having accepted that in the north-east section of the area designated purple for the purpose of identifying lot 107 the boundary line was the eastern most black line and noting that the latter line continues, with its changes of angles, unbroken along the eastern most edge of the area coloured purple, I find that the more likely intention of the drafter of the plan was to have that line indicate the eastern boundary separating lot 107 from lot 105. This accords with the evidence of Mr Linker (Exhibit E). 93Mr Linker carried out a detailed comparison of the line reflecting the eastern boundary of lot 107 on the approved plan with that indicated on the registered plan. This was reflected in his affidavit affirmed 28 June 2011. The detail is set out in paragraphs 13 to 16 of that affidavit. Undertaking the comparison there described, he identified the different bearing of the various lines constituting the eastern boundary and the relative length of the boundaries when comparison was made between the two plans. It will be remembered that he had endeavoured to reduce the plans to electronic format and the manner by which that had been done was explained by him. He was able to conclude from that exercise that by reason of differences, a section at least of the eastern boundary was located to the west of the position indicated for it on the approved plan. 94While Mr Diver-Tuck stated that he could not identify the precise location of the eastern boundary of lot 107 by reference to the black lines drawn on Sheet 8, he was clearly intending to address the plan with the precision that otherwise he imparted was lacking by the manner in which it was drawn, at least to indicate the boundary locations. However, he did accept that: (i) the easternmost black line of the approved plan was the "best candidate" to represent "the easternmost boundary of stratum subdivided lot 107" (Tcpt 192:39-50); (ii) when determining the location of the boundary of lot 107, it was appropriate to consider the architectural plans that were approved as part of the Development Consent; and (iii) the only drawing showing the proposed boundaries of lot 107 relating to Tower 2 was Sheet 8 on the approved plan. 95Upon his acceptance of the last proposition in the preceding paragraph, Mr Diver-Tuck continued (at Tcpt:194.39-43): "In my opinion, as I stated earlier the intention of the plan is to put the boundary on the outside face of the building at this level. If that boundary, on a registered plan, was in a different location to that, it is more than likely would not be in accordance with the approval." Evidence to that effect, referable to RL 113 was repeated by Mr Diver-Tuck a number of times. However, he did not resile from the statement that "the intention of the concept plan Sheet 8 is that a proposed boundary is along or near the outer face of a proposed building" (Tcpt 197:17-19). 96A consideration of the evidence leads me to conclude that there is a discrepancy between the approved plan of stratum subdivision and the registered plan in the location identified for the eastern boundary of lot 107. This conclusion is reached applying the principles I have earlier identified as appropriate to construe the Development Consent. 97The Development Consent was one containing a number of elements: so much is made clear by condition A1. Necessarily, each of these elements is to be construed as part of an integrated development of the Interchange Site, so far as the Development Consent related to those parts of the overall development that required consent under Pt 4 of the EPA Act. Towers 1, 2 and 3 are separately identified "residential buildings" as elements of that consent in paragraph (1) of condition A1 while the plan of stratum subdivision of the Interchange Site is identified as an element of that consent in paragraph (7) of the condition. 98While the architectural drawings identified in condition A2 do not refer to lot numbers intended to be created by reference to the plan of stratum subdivision identified in condition A1, the latter plan makes express reference to the intended purpose of development within each lot. The architectural plans, in turn, identify those levels within the proposed buildings within which each of those intended purposes is to be located and how they are to be configured within each level. In consequence, condition A2 should be construed by requiring that the architectural drawings and the approved plan of subdivision be read together. 99Such an exercise makes tolerably clear that each of the residential towers was intended to be wholly contained within the stratum lot identified for each tower on the plan of stratum subdivision. Moreover, as Sheets 1 to 7 of the approved plan of stratum subdivision demonstrate, where the boundaries of an intended stratum lot vary from level to level within the building, the plan so indicates. By way of example, lot 105, identified as being a "retail" lot, is shown to have a different configuration and boundary at each of the five levels from RL 94 (Sheet4), RL 98 (Sheet 5), RL 102 (Sheet 6), RL 106 (Sheet 7) and RL 108 (Sheet). 100As I have earlier recorded, the location of the eastern face of Tower 2 has not varied between the date upon which the Development Consent was granted and the time at which the plan of stratum subdivision became the DP and was certified by and on behalf of Hard & Forester (the sixth respondent), Pierre Hartzenberg (the seventh respondent), Grinsell & Johns Pty Ltd (the eighth respondent) and Gordon Wren (the ninth respondent). As lot 107 was shown only on Sheet 8 of the approved plan of stratum subdivision, the proper inference to be drawn is that the eastern boundary of that lot in its vertical position was intended to be a single vertical line that accommodated within it the eastern face of Tower 2 as depicted in the architectural drawings. Had that vertical manifestation of the eastern boundary not been intended as a single vertical line normal to the podium on which the Tower was to stand, but was intended to deviate at different angles in order to accommodate the design of Tower 2, a further sheet or sheets of stratum subdivision drawing would have been produced. Such a course would have been consistent with the manner in which lots on the levels below were depicted. As was accepted by Mr Diver-Tuck, the vertical line of the eastern boundary as drawn on the registered plan, passed through Tower 2 at all levels above RL 119. 101Justification for that intersection by the eastern boundary with Tower 2 would not appear to be substantiated by the words "subject to final design and survey" appearing on the approved plan. When asked to comment upon the significance of that expression, Mr Diver-Tuck stated in the report annexed to his affidavit affirmed on 8 June 2011 that it showed: " ... the conceptual layout of a proposed subdivision and indicates that the design of a building is not fully complete and that the precise determination of the boundaries would need to be based on a survey of the completed elements of the buildings." That statement was repeated in oral evidence. 102While this statement is understandable, so far as it goes, it adds little to the present debate. What was being done in the present case was the preparation of a final plan of stratum subdivision before there were any building elements to be surveyed. Thus, the plan of stratum subdivision required consideration of the building as designed. 103Such an approach is consistent with that articulated by Mr Linker when he dealt with the notation "subject to final design and survey". His evidence, which I accept, was as follows (Tcpt 105:39): "I agree with the statement that it's a plan that is prepared in an early stage and it gives room for further design development - although the word isn't used there, but that's what is meant by 'design' - design development to allow for modifications to make sure that whatever is built there is going to be wholly within the various titles as nominated." 104I have earlier referred to the joint statement (Exhibit C) prepared by the surveyors. Paragraph 7 needs to be quoted in full. It states: "7. Concept plan 8 of 8 is vague and imprecise, but it is only one of many plans in the various approvals." 105Having acknowledged the vague and imprecise nature of Sheet 8, it was necessary to give effect to the Development Consent by referring to documents or plans that were capable of addressing the "vague and uncertain" description ( Cann's Pty Ltd v Commonwealth of Australia [1946] HCA 5; (1946) 71 CLR 210 at 227; Westfield Management Pty Ltd v Perpetual Trustee Co Ltd at [40]). This is achieved by considering all of the plans to which I have referred. In his endeavour to be careful or "precise" by reference to the approved plan of stratum subdivision, Mr Diver-Tuck failed to apply this approach to support his ultimate conclusion. 106The proper construction of the Development Consent leads me to conclude that the eastern boundary of lot 107 was intended to be located so as to permit Tower 2, as designed at the time of certification of the plan of stratum subdivision, wholly within that lot. The registered plan does not do that; it has not been prepared in accordance with the Development Consent. It does not comply with condition A2 in that the registered plan does not "accord with" the approved plan. Those responsible for the preparation and registration of the plan of stratum subdivision were required to have that subdivision ("development") effected in accordance with condition A2. Failure so to do constitutes a breach of s 76A(1)(b) of the EPA Act. (cf s 122(b)(iii)).

[4]

Issue 2B: breach of conditions E1 and E2 in failing to create easements required by those conditions 107Schedule 2 to the Development Consent, containing all of the conditions that circumscribed the consent, is divided into parts. That part to which I have already referred is Part A and, as I have indicated, is headed "Administrative Conditions". The succeeding Parts of the consent are then headed in a manner indicating a sequence in which various matters pertaining to the development are to be done or undertaken. By way of example, Part B identifies those matters required to be addressed prior to the issue of a construction certificate while Pt C addresses those matters to be addressed prior to commencement of works. 108Part E is headed " PRIOR TO STRATUM SUBDIVISION CERTIFICATE ". Beneath that heading is the following: " Easements E1 Access Documentary easements for access must be created over the appropriate lots in the subdivision to provide for public access and access to lifts, lobbies, fire stairs, service areas, loading areas and car park areas, and created pursuant to Section 88B of the Conveyancing Act 1919 . E2 Services Documentary easements for services, drainage, support and shelter, use of plant, equipment, loading areas and service rooms, repairs, maintenance or any other encumbrances and indemnities required for joint or reciprocal use of part or all of the proposed lots as a consequence of the subdivision, must be created over the appropriate lots in the subdivision pursuant to Section 88B of the Conveyancing Act 1919 ." 109JVCo claims that in order to comply with the requirements of conditions E1 and E2 easements were required: (i) for the protection of openings in order to address the risk of fire spreading between adjoining buildings thereby necessitating an easement to prohibit the construction of any building on lot 105 from a height of RL 119.8 and for a distance of 6 m from the stratum boundary of Tower 2; (ii) for natural light in all habitable rooms in Tower 2 necessitating an easement to prohibit the construction of any building on lot 105 from a height of RL 119.8 for a distance of 4.5 m from the stratum boundary of Tower 2; (iii) for natural ventilation in all habitable rooms in Tower 2 necessitating an easement to prohibit the construction of any building on lot 105 from a height of RL 119.8 and for a distance of 4.5 m from the stratum boundary of Tower 2; and (iv) for maintenance of Tower 2 necessitating an easement to prohibit the construction of any building on lot 105 from a height of 119.8 and for a distance of 3 m from the stratum boundary of Tower 2. The requirement for these easements is said to be founded in the Building Code of Australia ( the BCA ). Clearly, the easement identified for protection of openings to reduce the fire risk is that which requires the greatest set back and such an easement, if required, would have the effect of securing compliance with that which is said to be required in paragraphs (ii), (iii) and (iv). 110JVCo claims that conditions E1 and E2 impose the need for creation of two further easements, namely: (i) the construction of an additional structural column, identified as column C451, together with transfer beams within an area of lot 105 described as the Chiller Enclosure, necessary to provide structural support for Tower 1 in lot 106; and (ii) the need to secure access for construction and subsequently permanent access to and from a lift to be located partially within lot 105 and intended to service Tower 2 to be located in lot 107. 111Two further claims for creation of easements need to be noticed. First, at one point in the proceedings, it was suggested that an easement was required in favour of lot 107 and burdening lot 105 so as to permit construction of a horizontal design feature on the roof of Tower 2 and which extended into the air space of lot 105. This matter was not the subject of JVCo's final submissions nor, as I understood it, was it the subject of any evidence led by JVCo. Therefore, I do not propose to address this aspect of its claim. Secondly, it was submitted on behalf of the JVCo that if, contrary to its primary submission, it was found that the eastern boundary of lot 107 was located in a position that conformed with the approved plan of stratum subdivision such that the boundary intersected with the levels of Tower 2 above RL 119, then an easement to accommodate the overhanging section of Tower 2 was required to be created in accordance with condition E2. Such an easement would have been necessary "for joint or reciprocal use of part or all of the proposed lots as a consequence of the subdivision". No such easement is contained within the s 88B Instrument registered with the DP. 112In light of my determination that the eastern boundary shown for lot 107 on the registered plan does not conform to that shown for that boundary on the approved plan, it becomes unnecessary finally to determine this aspect of JVCo's submission. However, on its face it would seem self-evidently correct. 113In a literal sense, there may appear to be a tension between the heading to Pt E of Sch 2 to the Development Consent and the requirements of each of conditions E1 and E2 that easement be created "pursuant to Section 88B of the Conveyancing Act 1919 ". The terms of the section would seem to operate in such a way that easements or other restrictions as to user only become effective upon registration of a plan, in this case the plan of stratum subdivision. The issue of the certificate for that plan is a necessary precondition for its registration by the Registrar-General. In one sense, the literal application of the conditions for the requirements of s 88B could not be achieved if the easements were, in a true sense, "created" before the relevant certificate was endorsed upon the plan of stratum subdivision. That impossibility of literal compliance must be addressed conformably with those principles applicable to the construction of a development consent to which I have earlier referred. 114The purpose of conditions E1 and E2, when read in the context of the heading that immediately precedes them, is readily apparent. It is, so it seems to me, a requirement that easements that fall within the description contained in each condition should be documented in the form of an instrument capable of registration under s 88B of the Conveyancing Act and its conformity with those conditions must be considered before the relevant certificate is endorsed on the plan of stratum subdivision. This is to ensure that immediately upon registration the easements have effect, burdening or benefiting (as the case may be) each of the lots created upon registration of the plan.

[5]

Relevant statutory or regulatory provisions 115As will be apparent from what I have earlier said, a number of easements that JVCo claims were required to be imposed in accordance with conditions E1 and E2 have as their basis the requirements of the BCA. That Code contains a set of technical requirements for all buildings relating both to their design and to their construction. It is a national code with local or State variants. Importantly, its provisions are adopted by reference in various Acts. Relevantly, cl 98 of the Environmental Planning and Assessment Regulation 2000 ( the Regulation ) provides: " 98 Compliance with Building Code of Australia and insurance requirements under the Home Building Act 1989 (1) For the purpose of section 80A (11) of the Act, the following conditions are prescribed in relation to a development consent for development that involves any building work: (a) that the work must be carried out in accordance with the requirements of the Building Code of Australia ..." Subsection (11) of s 80A of the EPA Act provides that a development consent "is subject to such conditions as may be prescribed by the regulations". Thus, the provisions of cl 98(1)(a) of the Regulation form part of the Development Consent. 116At the time of registration of the DP, there was also registered by the Registrar-General a Building Management Statement. Such a statement is provided for in Div 3B of Pt 23 of the Conveyancing Act. The requirements of such a statement are found in Sch A. Section 196I of the Conveyancing Act which is found in Div 3B relevantly provides as follows: " 196I Effect of building management statement (1) A registered building management statement, as in force for the time being, has effect as an agreement under seal containing the covenants referred to in subsection (2) entered into by: (a) each owner for the time being of any part of the building or its site affected by the statement, and (b) any mortgagee in possession or lessee of any part of the building or its site affected by the statement. (2) The covenants referred to in this section are: (a) a covenant by which those persons jointly and severally agree to carry out their obligations under the building management statement as from time to time in force, and (b) a covenant by which those persons jointly and severally agree to permit the carrying out of those obligations. ... ". 117Section 196K, also found in Div 3B of Pt 23, provides: " 196K Certain easements implied on registration of building management statement (1) On registration under this Division of a building management statement for a building and its site there is implied (despite section 88): (a) as appurtenant to each of the lots that includes a part of the building, an easement for the subjacent and lateral support of that part by such other parts of the building as are capable of affording support, and (b) as affecting each of the lots that includes a part of the building, an easement for the subjacent and lateral support of such other parts of the building as are capable of enjoying support from that part, and (c) as appurtenant to each of the lots that includes a part of the building, an easement for the shelter of that part by all such other parts of the building as are capable of affording shelter, and (d) as affecting each of the lots that includes a part of the building, an easement for the shelter of such other parts of the building as are capable of being sheltered by that part. (2) All ancillary rights and obligations reasonably necessary to make easements effective apply in respect of an easement created by this section. (3) An easement for support or shelter created by this section entitles the owner of any lot benefited by the easement to enter the lot burdened by the easement to replace, renew or restore any support or shelter. (4) The Registrar-General must make in the Register such recordings in respect of the easements as the Registrar-General considers appropriate."

[6]

JVCo's contentions 118In seeking to sustain the requirement for creation of the easements for which it contends, JVCo relies upon the language of conditions E1 and E2 as being "broad" in the identification of those matters to be addressed by such easements. In condition E1 reference is made to the provision "for public access and access to lifts" as being the subject of an easement or easements to be created. In the case of condition E2 the breadth of matters for which easements are to be created, including the residual requirement of "any other encumbrances and indemnities required for joint or reciprocal use of part or all of the proposed lots" is a demonstration, so it is submitted, is demonstrative of the breadth of matters intended to be covered by the conditions. 119The conditions in question are said to be common form requirements of a development consent to undertake development in accordance with development plans and obligations included within the development application and subsequently incorporated into conditions of consent. The conditions in the present case are said to be expressed in broad terms because at the time at which the Development Consent was granted, the precise requirements for the development in terms of easements in respect of the various proposed lots had not been identified. I do not understand this part of JVCo's submission to be challenged. 120A clause of the BCA known as cl NSW 1.101 requires that a building "must provide for a safe manner of cleaning any windows located three or more storeys above ground level." Effect should be given to this requirement, so it is submitted, by the provision of an easement to enable window cleaning access for Tower 2, such access being necessary over lot 105 given that the boundary of lot 107 is proximate to the face of the building. The requirement for such an easement falls within the term "maintenance" in condition E2. 121Easements required for the protection of openings, natural light and natural ventilation are said to be comprehended by what I have earlier described as the residual requirement of condition E2 relating to encumbrances and indemnity "for joint or reciprocal use of part or all of the proposed lots". The proposed residential towers could not be "used" if they do not comply with the BCA because the issue of a construction certificate could not be issued under s 109F of the EPA Act unless the building complied with the requirements of the BCA (cl 145(1)(b) of the Regulation). 122Condition E2 was intended to be comprehensive so as to ensure that whatever easements were required to permit construction and use of the three residential towers approved by the consent would be in place prior to subdivision in the sense earlier discussed. If this was not the case, construction of the towers would depend upon whether the owner of an adjoining lot, following subdivision, agreed to grant the required easements or were ordered to do so following an application under s 88K of the Conveyancing Act . The intent of conditions E1 and E2 was to avoid the necessity of purchasers of stratum lots on which the residential towers were to be built having to engage in negotiations for such rights or being required to avail themselves of other statutory remedies. 123In further support of its claim, JVCo relies upon condition A2 in Sch 2 to the Development Consent. In addressing the previous issue, I have referred to the opening provisions of that condition requiring that development of the Interchange Site be in accordance with the plans listed in that condition. Following that list of plans there is excepted from the requirement to comply with them "any modifications ... as may be necessary for the purpose of compliance with the Building Code of Australia and any Australian Standards incorporated in that Code".

[7]

Response of CRIC 124CRIC denies that JVCo is entitled to the easements that it claims in order to meet the requirements of conditions E1 and E2. Upon the proper construction of those conditions, it says that there is no implied requirement for easements necessary to meet the requirements of the BCA. Moreover, it has not been established that any easement sought is "required" within the terms of condition E2. Compliance with the BCA is otherwise addressed in the conditions of the Development Consent. 125In any event, CRIC contends that the evidence led on behalf of JVCo goes no further than a consideration of the "deemed to satisfy" aspects of the BCA that are relied upon by JVCo. The BCA states performance criteria and identifies means by which the performance criteria may be met. The latter provisions are those that are stated, in terms, to be the "deemed to satisfy provisions". The Code acknowledges that there are other means by which the performance criteria may be met. Evidence was not adduced to establish that there were other ways of satisfying the requirements of the BCA which, if adopted, would not require the grant of an easement. 126The third basis upon which CRIC contends that this aspect of JVCO's claim cannot be sustained is the failure to take account of what are said to be "the site realities". This requires consideration of the registered Building Management Statement in the context of the statutory provisions that relate to the statement. These provisions, considered together, have the effect that some of the easements for which JVCo contends are already found in those provisions. 127A further aspect of the "site realities" is the absence of development potential on lot 105 which would impinge upon the capacity to erect Tower 2 on lot 107 in conformity with the BCA. In that context, reliance is placed upon the joint statement of Ms McCabe and Mr Harrison, the town planners called by JVCo and CRIC respectively. In paragraph 3 of that joint statement (Exhibit L) they agreed that there was "no development potential for that part of Lot 105 comprising the eastern terrace of RL 106.6 that is unrestricted in height and shown on Sheet 58 of 70" of the registered plan.

[9]

The evidence 130Apart from the evidence of the planners to which I have referred, evidence relevant to this issue and which requires discussion in light of the final submissions of the parties, was given by Mr Brendan Bennett, to whom I have already referred, and by Mr Robert Marinelli, a building surveyor and building certifier retained by CRIC. Structural engineering evidence was led on behalf of JVCo in the form of an affidavit by David Carolan. That evidence was directed to the claim for an easement for column C 451 and the associated transfer beam. Mr Carolan's evidence was not challenged. 131Ultimately, the issue between the building surveyors became a narrow one. In the context of the BCA it was accepted by both consultants that compliance was required in respect of all of the development contemplated by the Development Consent. It was also accepted by both that in relation to the residential towers the four issues that required consideration in the context of compliance with the BCA were protection of openings for fire, natural light, natural ventilation and maintenance (Tcpt 134:30-50). It was the position of Mr Bennett that compliance with the provisions of the BCA pertaining to those matters "from a deemed - to - comply perspective will not be achieved by the plan other than the creation of easements" (Tcpt 133:6 - 22). 132There is no controversy between the consultants as to the applicable requirements of the BCA addressed to these four matters. It is unnecessary to recite the provisions for that reason. Suffice to note that the protection of opening for fires is found in Part 3 of Section C of the BCA requiring separation of 6 m between external walls of building that are opposite to each other. The provision of natural light in residential buildings of the kind contemplated is the subject of part F(4) of Section F while the requirement for natural ventilation of a habitable room is the subject of cll F 4.5 and 4.6 of the same Part and Section of the BCA. I have already referred to the provision that addresses maintenance for window cleaning. 133For his part, Mr Marinelli acknowledges that easements may be used "to remedy the boundary condition between lots 107 and 105" (Exhibit H, paragraph 2.5.1) but indicates that there are other "available remedies" to ensure compliance with these requirements of the BCA (Exhibit H, paragraph 2.5.2). The means by which this can be achieved is, as I understand his evidence, to the effect that by more detailed design work in respect of the architectural drawings, compliance with the provisions of the BCA may be demonstrated. This design work would, according to his evidence, normally be undertaken prior to the issue of a construction certificate. Not only is that usual practice but accords with the requirements of condition A3 of the Development Consent requiring that construction drawings, specifications and supporting documentation for a construction certificate accord with the terms of the consent "and comply with the requirements of the Building Code of Australia". In effect, his evidence is directed to the time at which easements to secure compliance with the BCA and otherwise falling within the broad provisions of conditions E1 and E2 should be created.

[10]

Easements to secure compliance with BCA 134I accept the substance of the submissions by JVCo that the provisions of conditions E1 and E2 did require the creation of easements directed to compliance with the four aspects of the BCA that I have identified, namely distance separation for protection of openings in the event of fire, the provision of natural light, the provision of natural ventilation and maintenance in the form of window cleaning. Those requirements can, so it seems, be achieved by an easement fulfilling the requirement for protection of openings for safety by requiring the prohibition of any building closer than 6 m from Tower 2. It is not suggested that any of the easements created pursuant to s 88B of the Conveyancing Act upon registration of the DP achieved this result. 135There are a number of reasons why I favour the submissions of JVCo and do not accept those on behalf of the respondents in this regard. 136First and contrary to the submission of the CRIC, I did not understand the submission of JVCo to indicate that the requirement comply with the relevant provisions of the BCA was implied. While I accept that Mr Bennett stated his position by making such an assertion that was not the basis upon which JVCo sought to put its case. It sought to found its arguments upon the provisions of the clauses in question, particularly the provisions of condition E2. The residual requirement for easements to address "any other encumbrances and indemnities required for joint or reciprocal use of part or all of the proposed lots" would be sufficient to comprehend those requirements that I have identified for the reasons earlier summarised when addressing JVCo's submissions. 137Second, implication of a requirement that the proposed building address the requirements of the BCA is unnecessary. The condition included by operation of cl 98 of the Regulation makes express the requirement that building work be carried out in accordance with the requirements of the BCA. Further, the concluding provisions of condition A2 contemplate the modification of architectural drawings as are necessary for the purpose of achieving compliance with the BCA while condition A3, in a sense, further refines that requirement by providing that construction drawings for the purpose of obtaining a construction certificate meet not only the terms of the consent but also the requirements of the BCA. The fact that there are several conditions directing requirements to comply with the BCA at various stages of design development and in the ultimate construction of the building does not gainsay the need to address those requirements in the context of considering the obligation imposed by conditions E1 and E2. 138Third, the terms in which the provisions of the BCA are invoked by the conditions to which I have referred address the design and construction of the building in the form contemplated by the Development Consent. In the context of the tower buildings, this is important because while they remain on a single title and have the connections presently contemplated, they are, according to the building surveyors, treated as one building. That may not always be so once separate lots are created by subdivision and thereafter different buildings or components of buildings are in different ownership (Tcpt 140:33-141:34). Important in this context is also the claim that, according to the evidence of the town planning consultants, there is no present development potential for the part of lot 105 earlier referred to when summarising the submissions of CRIC. However, that position is transient. The fact that it may be seen in that manner at the present time with the result that a building which would impinge upon the fire separation required in respect of Tower 2 does not address the possibility of change in the future. It was agreed between the building surveyors that a building presently complying with the requirements for separation under the BCA may be rendered non compliant if a new building is constructed on an adjoining site (Tcpt 131:35-132:33). It seems to me that condition E2 is directed to avoid the prospect of future non-compliance so far as that can be avoided by the imposition of an easement to secure compliance with the BCA. 139Perhaps the principal reason for accepting JVCo's submissions in this context is directed to the timing for the imposition of the necessary easements. The need to consider those easements necessary to be imposed in order to comply with conditions E1 and E2 was prior to the issue of the subdivision certificate to the plan of stratum subdivision, that is prior to 29 May 2009. It was the clear intention of the Minister in granting the Development Consent that the requisite easements should be framed and be capable of registration at that point in time so as to secure the overall purposes of the Development Consent and not allow them to be frustrated by the registration of a subdivision plan thereafter enabling alienation of the separate lots and potentially exposing individual owners to commercial forces in order to secure rights to the development in the manner contemplated by the Development Consent. 140This critical question of timing is well illustrated by Mr Marinelli's reference to compliance with the requirements of the BCA in accordance with condition A3. As indicated, that condition mandated requirement with the BCA at the time of preparing "detailed construction drawings" for the purpose of obtaining a construction certificate. However, that stage had not been reached by the time at which registration of the plan of stratum subdivision was sought, let alone at the time at which certification of that plan was provided by Gordon Wren (the ninth respondent) in May 2009. It is not suggested that by that date the entitlements identified in condition E2 had been satisfied by the provisions of plans or other means so far as they related to the residential towers. Securing of the obligations intended by the condition in the form of easement was required but had not been satisfied. 141Further, I do not think that JVCo's challenge to compliance with conditions E1 and E2 is denied by a failure to challenge the certificate given by Gordon Wren (the ninth respondent) pursuant to s 109J of the EPA Act. Contrary to RailCorp's submission, the applicant's case is not to be characterised as a merit review of the certifier's decision. Rather, it involves an objective assessment as to whether conditions A1, E1 and E2 have been met. If what has been done in seeking to implement the Development Consent does not accord with those conditions then the requirements of s 76A(1) of the EPA Act have been breached. The fact that the relevant certificate was issued does not bear directly upon the objective determination as to whether the conditions have been breached.

[11]

A separate easement for Column C 451 is not required 142The need for construction of a new Column C 451 and associated transfer beam was explained by Mr Carolan. The approved residential Tower 1 is substantially located over the rail line and Chatswood station platforms. The columns to support the superimposed structures are necessary to be placed so as to accommodate the location of these rail components as well as the retail and car park layout intended to be accommodated within the podium constructed above the rail components. The disposition of these columns requires the introduction of a transfer structure to accommodate the column layout for the residential tower. This transfer structure consists of multiple very large reinforced and post-tension concrete beams designed to support the columns above and to transfer the loads to the different column layout below. A small portion of the transfer structure will consist of Column C 451. This is required to be located in what is described as the "Chiller Enclosure" located within lot 105. Without the support provided by so locating the column, Tower 1 could not be constructed. 143That evidence is uncontroversial. What is controversial is the need for a separate easement for construction, maintenance and support burdening lot 105 and benefiting lot 106, the latter being the lot upon which residential Tower 1 is to be located. 144I accept CRIC's submission that no such easement is required. Essentially there are two reasons for accepting this submission. First, an easement sufficient to achieve the objective sought to be achieved by the applicant is implied by the provisions of s 196K(1) of the Conveyancing Act by reason of the registration of the Building Management Statement. I have earlier recited the provisions of that subsection. 145As has already been made clear, the Development Consent authorises the construction of buildings on the Interchange Site that comprise a retail podium beneath residential towers. Lot 105 is identified as accommodating the retail component while lot 106, the designated site of Tower 1, is another part of the building. Section 196K should be read as including a reference not only to a building already constructed but a building to be constructed in accordance with a statutory approval regime. It is to be remembered that the Building Management Statement is authorised only in circumstances where a plan of stratum subdivision is registered and that statement is registered as part of that process. A plan of stratum subdivision may be registered before the building to which it relates has been constructed and thus it would be inconsistent with the purpose of s 196K if the section did not operate equally in respect of all parts of the building yet to be constructed. 146Second, even if the easement is not implied by s 196K, it would appear to me to be expressed in the instrument registered under s 88B upon registration of the DP. Easement number 6 created by that Instrument is expressed to be an "Easement for support and shelter". The lots burdened by that easement include lot 105 and those benefited include lots 106 and 107. The terms in which that easement are expressed in that Instrument are as follows: " 6. Terms of easement for support and shelter numbered 6 in the Plan 6.1 Grant of easement The Grantor grants to the Grantee the right for the Lot Benefited to be supported and sheltered by the Lot Burdened to the extent that the Lot Benefited derives support and shelter from the Lot Burdened at the date of registration of this Instrument. 6.2 Obligations of the Grantor The Grantor must maintain the support to that part of the Lot Burdened which is capable of affording support to the Lot Benefited at all times by, amongst other things, ensuring that the support is regularly inspected, maintained, repaired and kept in a sound structural condition, and in accordance with the provisions of the Building Management Statement." 147The applicant expresses concern that the concluding words of paragraph 6.1 of the terms of the easement are words of limitation which would deny support by Column C 451. It says that because lot 106 did not derive support from Column C 451 in lot 105 "at the date of registration of this Instrument", it requires the creation of a further easement to contemplate future support. 148I do not accept that this is the correct interpretation of cl 6.1. It had effect only upon registration of the DP. At that time there was nothing on or within lot 106 to support. It was simply a volume of cubic airspace. 149The purpose of easement no. 6 must surely have been to contemplate that which was intended for buildings yet to be erected in accordance with the development scheme for the site. If no building was contemplated at the date of registration of the Instrument there would be no necessity to provide an easement for support burdening lot 105 and benefiting lot 106. 150I accept the submission of CRIC that the words "derives support" as used in cl 6.1 are not words that have as their reference point the physical structures as they existed on the site at the date of registration. The purpose of the clause is to identify the structures contemplated at the date of registration by the approvals then in place. Further support for this proposition is found in the reference to the Building Management Statement in cl 6.2. That Building Management Statement registered as part of the suite of documents with the plan of stratum subdivision contemplates, among other things, the erection of Tower 1 on lot 106. 151For these reasons I do not accept that the easement for support claimed by JVCo reflects any failure to comply with the requirements of condition E2 of the Development Consent. It was accepted by JVCo that if the interpretation of cl 6.1 was as I have determined it to be, then the provisions of easement for construction numbered 11 created by the s 88B instrument were sufficient to enable Column C 451 and any associated transfer beam to be constructed within lot 105.

[13]

Issue 3: the impact of s 195J of the Conveyancing Act upon JVCo's claim 155CRIC contends that the claims for breach identified in issues 1 and 2 are not maintainable having regard to the provisions of s 195J of the Conveyancing Act . That section relevantly provides: " 195J Effect of registration or of rejection of plans (1) The validity of: (a) a plan that has been registered under this Division, or (b) any instrument intended to affect or evidence the title to any land to which such a plan relates, may not be called into question in any proceedings before a court or tribunal on any ground whatever, including the ground that the requirements of this or any other Act or law have not been duly complied with in relation to the plan. ... ". 156It is accepted by CRIC that the section should be read in the context of s 195H of the Conveyancing Act. That section relevantly provides: " 195H Amendment or replacement of plans (1) The Registrar-General may, on the application of any person with an interest in any land to which a plan registered or recorded under this Division relates, or without any such application, and on such evidence and after such notice (if any) as appear to the Registrar-General to be necessary, amend the plan for the purpose of correcting any error in or supplying any omission from the plan. ... ". 157In essence, CRIC contend that the substance of the proceeding brought by JVCo is to challenge the validity of the DP on the ground that the requirements of the EPA Act "have not been duly complied with in relation to the plan". For its part, JVCo contend that this misconceives the nature of its proceedings. It does not challenge the validity of the DP but rather seeks to remedy breaches by CRIC, TCA and RailCorp of the conditions of development consent which in turn constitute breaches of the EPA Act. That involves an action in personam that does not attract the prohibition contained in s 195J. 158For the purpose of resolving this issue, it is necessary to reconcile the operation of ss 195H and 195J. While the latter section proscribes any challenge to the validity of a plan, the former section clearly contemplates the amendment of a registered plan to correct errors or supply omissions. The fact that the latter section provides for the Registrar-General to give notice as may appear to be necessary before exercising the power under that section, seems to me to contemplate that there may be legitimate controversy as to whether an error has occurred that requires correction. Is the basis of controversy upon which the claim for error is founded limited by operation of s 195J? 159CRIC relies upon the decision of Bell J in M J Davis Industrial Pty Ltd v Fairfield City Council [1999] NSWSC 829; (1999) 107 LGERA 118. It was a decision of her Honour when sitting as a single judge of the Supreme Court. CRIC contends that on the basis of observations made by her Honour in that case, s 195J would bar the proceedings where the challenge is made to a plan of subdivision on the basis that the registered plan does not accord with the plan approving the subdivision by way of development consent. 160Before turning to consider that decision and those that are said subsequently to have adopted it, it is appropriate to consider the statutory history leading to the enactment of s 195J in its present form.

[14]

Statutory history 161Section 195J was inserted into the Conveyancing Act by Sch 1 of the Conveyancing (Plan Registration) Amendment Act 1986. Relevantly, the section then provided: " 195J Effect of contravention of Division or of rejection of plans (1) A contravention of any of the provisions of this Division does not invalidate any instrument intended to affect or evidence the title to any land. ... ". 162Unsurprisingly, CRIC contrasts the limited operation of the section in that form with the breadth of expression contained in the section as presently enacted. 163The section was amended to its present form by Sch 2, Item [13] of the Environmental Planning and Assessment Amendment Act 1997 ( the Amendment Act ). Among the changes introduced to the EPA Act by the Amendment Act, was the introduction of certification of development by private certifiers who were accredited for that purpose. Hitherto, approval of development, including subdivision, was confined to consent authorities, usually local councils. A plan of subdivision in order to be registered was required to be endorsed with a certificate by the Council Town Clerk or, subsequent to the introduction of the Local Government Act 1993, by the General Manager. 164The Amendment Act introduced a number of changes to Div 3 of Pt 23 of the Conveyancing Act that included a requirement that a plan of subdivision be endorsed with a subdivision certificate conformably with s 195C(1)(e). It also inserted an amendment to s 196 of the Conveyancing Act, by adding a new subsection (5), which provided: " Section 196 Presumptions relating to plans (5) The Registrar-General is entitled to assume that a subdivision certificate that is endorsed on a plan lodged under this Division has been duly endorsed on the plan and that all conditions precedent to the endorsement of the certificate have been duly complied with." Subsections (4) - (5) were subsequently amended so as to provide: "Section 196 (4) and (5) (4) If a plan is registered or recorded under this Division by the Registrar-General, sufficient signatures and consents in writing are taken to have been provide for the purposes of this Division. (5) The Registrar-General is entitled to assume: (a) that a subdivision certificate that purports to have been endorsed on any plan or approved form for signatures for the purposes of this Division was duly issued and endorsed, and (b) that any signature or other matter that purports to have been endorsed on or provided in any plan or approved form for signatures for the purposes of this Division was duly endorsed or provided, and (c) that all conditions precedent to the issue or endorsement of the certificate, or the endorsement or provisions of the signature or other matter, were duly complied with." 165In the context of these amendments, it is apparent that s 195J in its present form was intended to complement the introduction of subdivision certificates by private certifiers and the ability of the Registrar-General to rely upon certificates issued by those certifiers. 166Had there not been amendment to s 195J, claims for invalidity of plans were capable of being founded on grounds beyond failure to comply with Division 3 of the Conveyancing Act as the section in its earlier form had provided. As JVCo submits, those grounds of invalidity could have included a challenge to the qualification of the private certifier or the procedure undertaken in providing certification. Notwithstanding the broadening of the scope of s 109J, its purpose appears to have remained constant, namely to protect the validity of plans registered as part of the Torrens system of title. 167In the context of the statutory history, it is also relevant to note that despite the changes to Div 3 of Pt 23 by the Amendment Act, s 195H was not so amended. It preserved the right of the Registrar-General to amend a plan by reason of "error" or "omission". Claims for amendment due to error or omission are therefore to be considered separately from challenges that are made to the validity of a registered plan.

[15]

The decision in M J Davis Industrial Pty Ltd v Fairfield City Council 168In Davis the plaintiff sought declaratory relief in relation to a plan of subdivision the benefit of which it had obtained some 24 years prior to the determination of its proceedings. It claimed that there was disconformity between the subdivision that had been approved by the defendant council and the plan of subdivision that had been registered as a deposited plan. It sought a declaration that the extent of disconformity constituted an "error" in the registered plan within the meaning of s 195H of the Conveyancing Act . 169Upon the evidence led before her, Bell J was not persuaded that the plaintiff had established the disconformity claimed by it [33]. In the context of the declaration sought, she indicated a lack of persuasion that the "suggested disconformity between the plan as registered and the subdivision plan 'as affected by the Approval' constitutes an 'error' for the purpose of s 195H of the Conveyancing Act [43]. 170Her Honour then went on to consider the exercise of discretion assuming relevant disconformity had been established. In that regard she concluded by reference to the evidence before her that a delay in seeking relief of some 24 years was inadequately explained and with the consequence for the defendant, if 'error' had been demonstrated, in the exercise of discretion relief would not be granted [52]. 171Having determined that the plaintiff had failed to demonstrate error and that, in any event, relief would be refused on discretionary grounds, her Honour addressed a further defence that had been raised by the defendant Council. It relied upon s 195J of the Conveyancing Act to deny the plaintiff's claim. It was submitted for the Council that the plaintiff's proceedings sought to attack the validity of the registered plan. 172For its part, the defendant submitted that as it was not challenging the validity of the plan, s 195J had no work to do. Her Honour did not accept that submission. She said (at [56]): "The plaintiff by these proceedings contends that the plan as registered does not substantially conform to the subdivision plan. Having regard to the provisions of the LGA and Ord 32 thereto this is said to constitute an error. I consider that the subject proceedings do call into question the validity of the Plan. In my view s 195J of the Conveyancing Act operates to preclude the Court from granting the plaintiff the relief which he seeks in this case. However, it is not necessary for me to dwell on this aspect further since, for the reasons already stated, I do not consider that the plaintiff has established that the Plan contains any error." 173Understandably, CRIC places considerable reliance upon that passage from her Honour's judgment. CRIC submitted that the passage quoted from [56] of the judgment was an alternate finding justifying the orders made ( Leonie's Travel v Qantas [2010] FCAFC 37 at [61]). JVCo submitted that, in light of the decisions earlier reflected in the judgment, the observations made at [56] were obiter . It is unnecessary to determine this aspect of the debate: it is sufficient to note that due deference must be had to those observations. 174Her Honour's decision was taken on appeal to the Court of Appeal ( M J Davis Industrial Pty Ltd v Fairfield City Council [2000] NSWCA 287; (2000) 10 BPR 18,495). The operation of s 195J of the Conveyancing Act was not addressed in the judgments of the Court of Appeal. The leading judgment was delivered by Stein JA (Powell and Fitzgerald JJA agreeing). From his Honour's judgment, it would appear that the only two issues raised were whether, on the facts, error for the purpose of s 195H had been demonstrated and if so whether in exercise of discretion the Registrar-General should be ordered further to consider the application by the appellant to amend the registered plan. Both issues were determined adversely to the appellant. 175The operation and interrelation of ss 195H and 195J were more recently considered by the Court of Appeal in Refina Pty Ltd v Binnie [2010] NSWCA 192; (2010) 15 BPR 28,633. The appellant claimed that two lots had been included in a registered plan of subdivision but not included in the Development Consent for that subdivision. This was said to give rise to an entitlement to have the registered plan corrected for error pursuant to s 195H. Allsop P (Campbell JA agreeing) concluded on the material that was led before the primary judge that there was, in fact, no error for the purposes of s 195H [28]. That determination was based on a construction of the relevant consent by referring to other documents incorporated by reference. His Honour nevertheless considered the position if a more restrictive construction was applied which in turn led to observation concerning the operation of s 195H. Relevantly, assuming the narrower or restrictive construction of the consent, his Honour said (at [30]): "The plan accorded with the intention of its maker and it accorded with the intended scope of the development application and the consent (even if, on this hypothesis, defectively expressed) of the Council." The provisions of s 195J were not relied upon in that case. Nonetheless, Young JA referred to the provision as being a context in which the provisions of s 195H needed to be considered. Commencing at [108] his Honour said: "[108] Accordingly, when one looks to see the meaning of error or omission from the plan, one would tend to look for something that is wrong with the plan itself rather than something that is wrong with one of the pre-conditions in creating the plan. [109] In Baiada Pty Ltd v Registrar-General (1994) 6 BPR 13,704 at 13,708, ... the words 'error or omission' simply meant 'not there' or 'left out' not necessarily because of any breach of an obligation by the Registrar-General. However, Cohen J said that obviously it was not intended that a plan should be amended where something is left out which should never have been included. The only other decision on the section, M J Davis Industrial Pty Ltd v Fairfield City Council [citation omitted] Bell J ... held that the section did not apply where a plan as lodged carried out the intention of those who prepared it which actually was in accordance with what the law specified." 176At [112], Young JA indicated that when identifying an error or omission under s 195H, one is seeking to identify some failure "to implement the intention of the party who prepared and lodged the plan in its registration." Unlike the factual position that pertained in both Davis and Refina it is not suggested in the present case that it was the intention of CRIC, TCA or RailCorp to prepare as the registered plan of stratum subdivision, one that was inconsistent with the approved plan. Expressed differently, there was a failure to implement the intention of those parties to prepare and lodge a plan for registration that accorded with the approved plan. 177In my respectful opinion, the decision in Davis is distinguishable from the present case. Although I have to accept that her Honour's observations were directed to a claim of disconformity between a plan approved by a local authority and that registered under the Conveyancing Act , the proceedings were directed to a claim for declaratory relief that the extent of disconformity constituted an "error" within the meaning of s 195H. It was in the context of that claim that her Honour determined the validity of the registered plan as called into question. The decision is not one directed to the proposition that a claim under s 123 of the EPA Act for contravention of that Act is prohibited by s 195J. 178If that not be a valid point of distinction then I think it is correct to observe, as JVCo submits, that the observations made by her Honour at [56] are obiter . She had determined that the disconformity relied upon by the plaintiff had not been established. Secondly, she had already determined that in the exercise of discretion, assuming some disconformity, the unexplained delay in bringing the proceedings did, in the exercise of discretion, tell against the grant of any relief. Third, as her Honour remarked in the penultimate sentence of the paragraph, she had not dwelt on the argument advanced founded on s 195J since the plaintiff had not established any relevant error. In the context of these matters and with very great respect to her Honour, I do not consider myself bound to apply observations there contained to the arguments addressed in this case. 179Further, the basis upon which the argument directed to s 195J of the Conveyancing Act was advanced did not appear to involve for consideration the statutory history of the section, nor was it necessary in the context of the proceedings to consider the effect which might be had in seeking to correct demonstrated error of the kind identified by Young JA in Refina through proceedings brought under s 123 of the EPA Act.

[16]

An in personam claim: its impact upon s 195J of the Conveyancing Act 180JVCo submits that these proceedings in which it seeks to remedy breaches of the EPA Act involve the exercise of an in personam right afforded by s 123. The exercise of such a right, it submits is not denied by s195J ( Hillpalm Pty Ltd v Heaven's Door Pty Ltd ). I do not understand CRIC to deny, at least as a matter of principle, that, at least in some cases, in personam rights may overcome the indefeasibility provision of the Real Property Act 1900. However, CRIC denies that the invocation of s 123 of the EPA Act is the basis upon which to bring proceedings involves the exercise of an in personam right. It submits that even if the right conferred by s 123 of the EPA Act is an in personam right, such a right is "expressly excluded" from being considered in respect of or being invoked to challenge validity of a registered plan. This is said to be the consequence of the clear language of s 195J by which it proscribed the challenge to the validity of a registered plan "in any proceedings ... on any ground whatever". 181This latter submission requires consideration both of the terms of the section itself and the consideration of principle that was the subject of consideration by the High Court in Hillpalm Pty Ltd v Heaven's Door Pty Ltd. 182Turning to the provisions of s 196J, it is not correct to assert that its provisions "expressly exclude" rights in personam being invoked. It is the challenge to registered plans on the basis of their validity that the section proscribes. In the context of the present case, the identification of error or omission in the plan by reference to another obligation imposed upon the registered owner or its privy in relation to the plan does not constitute a challenge to the "validity" of that plan. The obligation in the present case is to have registered a plan that complies with the Development Consent. As I have earlier indicated, there must be scope for identification of "error" based on non-compliance with the requirement outside the Conveyancing Act or Real Property Act giving rise to a personal claim so as to invoke s 195H. The terms of the latter section do not involve consensual acceptance of "error". 183It will be remembered from my earlier reference to the legislative history that while s 195J was amended in 1997 to take its present form, s 195 H was left unchanged. Thus there is scope to require correction of error without involving challenge to the validity of a registered plan, assuming the error is of a kind earlier identified and discussed in Refina . 184Reference was made by both JVCo and CRIC to the judgment of the plurality in Hillpalm . At [54] their Honours acknowledged that the availability of rights in personam were "entirely consistent with the Torrens system of title". They continued: "The immediate indefeasibility of a title to land under the Torrens system does not deny 'the right of a plaintiff to bring against a registered proprietor a claim in personam, founded in law or in equity, for such relief as a court acting in personam may grant' [citation of authority omitted] and those proceedings 'may have as their terminal point orders binding the registered proprietor to divest himself wholly or partly of the estate or interest vested in him by registration' [citation omitted]. If the respondent has a right against the appellant, it is a personal right, not a right in rem, and that personal right must be found, if at all, in the relevant statutory provisions." 185Their Honours had earlier determined that the appellant was not in breach of s 76A of the EPA Act because it did not carry out development by way of subdivision of the land in question. By reason of that earlier determination their Honours said (at [55]): "For the reasons given earlier, however, the respondent has no such right. Section 123 of the EPAA does not provide that right to the respondent in this case, the appellant not being in actual or threatened breach of that Act." 186CRIC submits that JVCo derives no support from these passages of the judgment in Hillpalm to support its in personam claim. It says that, properly understood, the passage at [55] only identifies one reason for excluding the existence of a personal right arising from s 123 of the EPA Act, namely the absence of any actual or threatened breach. It does not follow, so it submits, that if that reason for excluding the right did not exist, the section would otherwise have conferred a personal right. It makes two further submissions directed to this aspect of JVCo's claim. It is said that s 123 does not confer a personal right in any circumstances. It is a standing provision only affording any person the right to assert a public right in circumstances where, but for its operation, only the Attorney General would have had standing to assert that public right, being a right to have determined that the EPA Act had been breached. A claim made on that basis is said to involve a judgment in rem . Observations made by me in CTI Joint Venture Company Pty Ltd v CRI Chatswood Pty Ltd (in liq) (No 2) are cited in support of this observation. 187While acknowledging the clarity with which the submission was put, I do not accept it either as to the proper understanding of the judgment of the plurality in Hillpalm nor as to the effect of s 123 of the EPA Act. In Hillpalm , the paragraphs of the judgment from which I have quoted are contained in that part of the judgment in which their Honours are considering rights in rem and the distinction between such a right and a right in personam . The respondent had asserted an entitlement to have created a right of way in favour of its allotment by reason of a condition of development consent that had been imposed at the time at which that allotment had been created. The appellant owned the land intended to be burdened by the right of way required by the Development Consent. Notwithstanding the terms of the Development Consent, the plan of subdivision had been registered without the creation of that right of way. The appellant was not the entity that had carried out the subdivision but rather was a purchaser of the subdivided lot. 188It was accepted in that case that the land title of the appellant was not the subject of an interest which the respondent claimed it was entitled to have the appellant create. In that regard the plurality observed (at [53]): "If the respondent has any such right, it is a right to have an interest in land created and that is said to be a right enforceable by personal action against the appellant, not by any action or application to rectify the Register maintained under the Real Property Act. That right, if it exists, is not a right in rem." 189When the observations made in [55] are considered in the context of the general discussion of the distinction between a right in rem and a personal action and in particular the discussion just cited from [53] I believe their Honours' determination to be tolerably clear. Proceedings brought under s 123 of the EPA Act do provide a personal right to bring action to have the relevant respondents address the breaches of the EPA Act for which they are responsible. To determine that the DP in the present case does not accord with the Development Consent may, itself, involve a determination in rem but that, so it seems to me, does not deny that proceedings brought under s 123 to remedy a breach of the EPA Act that resulted in the DP being registered in its present form as being properly categorised as a personal action against the nominated respondents requiring that they comply with the obligation which the Consent imposed upon them. That action, in substance, seeks to have those respondents correct the error that has occurred in the drafting of the plan of stratum subdivision that has been registered. 190In summary, I am of the opinion that: (i) these proceedings do not involve a challenge to validity of the registered plan; they identify an error in the plan capable of correction in accordance with the principles directed to "error" under s 195H of the Conveyancing Act ; (ii) the right sought to be exercised in the present case differs from that considered by Bell J in M J Davis ; in these circumstance and given also the basis upon which that case was decided, it is distinguishable and provides no binding authority upon me; (iii) the decision of the High Court in Hillpalm supports the contention that the rights asserted by JVCo in reliance upon s 123 of the EPA Act is a personal right to have a breach of the EPA Act remedied; a proposition not affected by the observations of the High Court in Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 at [193] which does not speak to a personal action against a land owner or its privy in a claim under s 123 for relief under s 124 of the EPA Act; (iv) the exercise of such a right is not proscribed by the terms of s 196J of the Conveyancing Act , particularly having regard to the legislative history of that section. 191Finally, in this context, I make reference to the decision of Sheahan J in this Court in Ainsworth v Yarrowee Pty Ltd [2010] NSWLEC 118. His Honour was there required to deal with an application for a declaratory order and a mandatory order directed to compliance with a condition of development consent for subdivision which, notwithstanding registration of the subdivision plan, had not been observed. The condition related to the provision of an access road to the applicant's lot. The subdivision had been undertake by the respondent and it was claimed in proceedings brought pursuant to s 123 of the EPA Act that the applicant was entitled to the relief that it sought. 192His Honour upheld the applicant's claim. He determined that the access road required by condition 5 of the Development Consent had not been provided as required by that condition. In substance, he indicated that he would be disposed to grant the order sought that the respondent take such steps as were necessary in order to comply with the condition of development consent. That was the order considered appropriate in order to address the breach of the EPA Act which his Honour found. That relief was, in substance, comparable to the relief that is sought in the present case. 193It is apparent form reading the judgment that the argument advanced before his Honour was not as extensive as the arguments that have been addressed to me in this case. Reference was made to Hillpalm to support the proposition that as registration of the subdivision plan had taken place, no present breach of the EPA Act was established. That argument was rejected. Importantly for present purposes it has not been suggested by any party that the case was wrongly decided in its application of principle and as a consequence it is submitted by JVCo that it supports the grant of relief from which it contends. 194For all these reasons, I have concluded that s 195J of the Conveyancing Act does not bar the claim brought by JVCo in these proceedings.

[19]

The Nomination Deed 201The terms of the Nomination Deed are central to the argument advanced by CRIC in this part of its case. As I have earlier recorded, that Deed was entered into between CRIC and JVCo on 12 November 2010. By cl 2.1, JVCo agreed to pay the Nomination Fee, defined in the Deed to be the sum of $60.5 M, in return for which CRIC promised to nominate JVCo as the nominee under the Option Deed into which CRIC had entered with TCA and RailCorp. Under the latter Deed, TCA and RailCorp had granted CRIC the option to purchase lot 107 (among others) in the then draft plan of stratum subdivision. 202In addition to the Nomination Fee which JVCo was obliged to pay under cl 2.1 of the Nomination Deed, it was also required by cl 2.2 of that Deed to pay a Commitment Fee of $3.2 M (plus GST). These sums were duly paid. In accordance with cl 2.1, the payment of that fee entitled JVCo to be the nominee under the Option Deed in relation to each of the residential car park (lot 102) and the residential towers (lots 106, 107 and 108). Separate contracts for sale were, in accordance with the Option Deed, required for the acquisition of each lot. The clause also provided that in consideration of the promise to pay the Nomination Fee, CRIC was to assign to JVCo its intellectual property in the "Project Documents", defined to mean "the plans, drawings and reports relating to the Development Approval". The latter is a reference to the Development Consent. 203The provisions of cl 1.5 of the Nomination Deed are said by CRIC to be of central importance to its case. It is therefore necessary to notice those provisions of that clause. In the clause, the word "Nominee" refers to JVCo. Relevantly, the clause provides: " 1.5 Nominee warranty and acknowledgment The Nominee warrants and represents to CRI that: (a) The Disclosure material was prepared and provided solely for the information of the Nominee to assist it in deciding whether to proceed with further investigations before it entered into this deed. Neither CRI nor the Receivers and managers warrants the accuracy, currency, reliability or completeness of any of the contents of the Disclosure Material and no responsibility is assumed by CRI or the Receivers and managers in respect of the contents of or omissions from the Disclosure Material; (b) It has relied on its own enquiries and assessments of the advice of its own consultants and experts independently of CRI and the Receivers and managers and their respective employees, officers, consultants or agents; (c) It has relied on the advice of its own legal advisers, consultants and representatives in relation to the terms of the Call Option; (d) It has inspected the Property and conducted its own enquiries in relation to the Property before it entered into this deed; (e) subject to the terms of the Contracts, it must make no claim, demand or objection or seek any compensation in respect of the condition, state of repair, suitability, quality, profitability or potential of the Property; (f) it has satisfied itself: (1) by relying upon its own independent advice in relation to the Disclosure Material; (2) by making enquiries about the Disclosure Material; (3) as to the value of the Property from its own independent valuations and reports; (4) by its own examination, of the present and future economic feasibility and economic return of the Property; (5) ... (6) ... (7) as to the suitability of the Property or improvements for any use; (8) by enquiring of the relevant Authority as to zoning and planning restrictions (including all approvals) on or in respect of the Property and the use to which the Property may be put and the development potential of the Property and as to any approvals granted by an Authority in relation to the Property; (9) by survey or other appropriate means as to the boundaries or area of the Property or to establish the location of structures on the Property or on adjoining lands; (10) as to the encumbrances affecting the Property by perusal of the terms and conditions of any deeds relating to those encumbrances; (11) as to the rights and privileges relating to the Property, and it has entered into this deed in reliance upon those examinations, inspections, enquiries, valuations and reports only and not upon any statements, warranties, conditions or representations whatsoever made or alleged to be made by or on behalf of CRI or the Receivers and Managers." 204It is accepted that prior to execution of the Nomination Deed, its terms were the subject of negotiation, including negotiation involving Mr Werrett on behalf of JVCo and Mr Hill, one of the receivers of CRIC. The terms of cl 1.5 were specifically the subject of those negotiations.

[20]

The contract for sale of land 205Consequent upon execution of the Nomination Deed, JVCo exercised its right under the Option Deed and on 3 December 2010 entered into the contract for sale of lot 107 in the DP. That contract was in the standard form of the 2000 edition of the contract for the sale of land with the addition of a number of special conditions. The vendors were TCA (as TIDC) and RailCorp. 206Clause 30 was one of a number of additional clauses or special conditions which were added to the standard form of contract. Clause 30.6 provided: " 30.6 Warranty by purchaser The purchaser represents and warrants that the purchaser: (a) has not relied on any brochure, advertisement or other document referred to in clause 30.5; (b) has made its own enquiries in relation to the Property; (c) does not rely on any representation, letter, document or arrangement (whether oral or in writing) or other conduct as adding to or amending this contract; (d) is satisfied as to all information relevant to the risks, contingencies and other circumstances affecting the purchase of the Property; and (e) subject to this contract, it is satisfied as to the need for and the existence or validity of any development or other approval for the Property." The "property" was defined as lot 107 in deposited plan 1094273 together with the improvements, fixtures and inclusions located on that lot. 207There are three further clauses of the contract for sale of lot 107 upon which CRIC relies. The first of these is cl 30.6 which is headed "Warranty by purchaser" and relevantly provides as follows: "The purchaser represents and warrants that the purchaser: (a) has not relied on any brochure, advertisement or other document referred to in clause 30.5; (b) has made its own enquiries in relation to the Property; (c) does not rely on any representation, letter, document or arrangement (whether oral or in writing) or other conduct as adding to or amending this contract; (d) is satisfied as to all information relevant to the risks, contingencies and other circumstances affecting the purchase of the Property; and (e) subject to this contract, is satisfied as to the need for and the existence of validity of any development or other approval for the Property." 208Clause 33.1 of the same contract relevantly provided: "(a) without in any manner excluding, modifying or restricting the rights of the purchaser under section 52A(20(b) of the Conveyancing Act 1919 and the Conveyancing (Sale of Land) Regulation 2000, the purchaser acknowledges that: (i) the Property is sold in its condition at completion subject to all faults and defects both latent and patent, and any infestations and dilapidations; (ii) the Property is sold subject to, and with the benefit and burden of, the easements, restrictions on use and positive covenants created pursuant to Section 88B Instrument and this contract and which are intended to and will bind the purchaser and the other parties thereto and each of their successors in title; and (iii) the Property is sold subject to the Building Management Statement, and the purchaser is not to make any requisition, claim for compensation or attempt to delay completion in respect of any of the matters referred to in this clause 33.1. (b) The purchaser releases the vendor from all existing or future claims or liabilities (including for costs of and associated with clause 33.1(a), and hereby indemnifies the vendor against all existing or future claims in respect of the matters in clause 33.1(a) or in any way in connection with those matters by or on behalf of that party or any person claiming under or by virtue of that party." 209The third of the further clauses to which CRIC makes reference is cl 40.1 headed "Purchaser representations and warranties" and providing as follows: "The purchaser represents and warrants that: (a) the purchaser was not inducted to enter into this contract by and did not rely on any representations or warranties by the vendor, the vendor's agents or persons on behalf of the vendor about the subject matter of this contract (including representations or warranties about the construction, nature or the fitness or suitability for any purpose of the Property or about any financial return or income to be derived from the Property) except those representations and warranties set out in this contract (and any other document referred to in this contract) and provided that the purchaser is entitled to rely on determinations made by the Independent Certifier (as defined in this CTI Development Deed); (b) the purchaser has obtained appropriate independent advice on and is satisfied about: (i) the purchaser's obligations and rights under this contract; (ii) the nature of the Property and the purposes for which the property may be lawfully used; ...". 210Finally, attention is drawn to cl 40.2 of the contract for sale by which the purchaser acknowledges "that the vendor has entered into this contract on the basis that the representations and warranties contained in cl 40.1 are true and not misleading." 211There can be no doubt on the evidence that Mr Werrett, on behalf of CTI, had a general awareness of the provisions of the contract for sale to which reference has been made. He indicated that the representations and warranties identified in the contract for sale were made to TCA and RailCorp genuinely believing that they were correct.

[22]

No breach of the Nomination Deed has been demonstrated 215While I have not found this issue easy to resolve, I have ultimately concluded that the provisions of the Nomination Deed relied upon by CRIC do not sustain the claim that it makes for breach such as would prevent the maintenance of these proceedings by JVCo. Their commencement and prosecution to judgment would not appear to me to be breach of a contractual obligation on the part of JVCo. 216As I have recorded, CRIC made specific reference to paragraphs (a) and (e) as being the specific provisions of cl 1.5 of the Nomination Deed which founded its claim for breach. For my part, I do not read subparagraph (a) or, save for subparagraph (e), any other subparagraph of cl 1.5 of the Nomination Deed as containing a contractual promise not to make a claim of the kind made by JVCo in these proceedings. Those paragraphs recite by way of warranty as to what JVCo has or has not done and in the case of subparagraph (a) an absence of warranty in identified respects by CRIC. They are not directed to a contractual constraint upon a claim of the kind presently made. 217What then of subparagraph (e) of cl 1.5? It does, in terms, seek to restrain claims of a particular kind. Although earlier quoted as part of cl 1.5, it is appropriate to repeat the provisions of this sub-paragraph: "(e) subject to the terms of the Contracts, it must make no claim, demand or objection or seek any compensation in respect of the condition, state of repair, suitability, quality, profitability or potential of the property; ... ". 218It will be remembered that the basis of claim by JVCo in this case is a contravention of the EPA Act in that the DP was not prepared and registered so as to comply with the conditions of development consent and further that there was a failure to provide for easements as required by the conditions of that consent. A claim seeking to remedy breaches of the EPA Act of that kind is not a "claim, demand or objection" that, properly construed, engages the provisions of subparagraph (e). That result, so it seems to me, is reinforced by the qualifying words of the subparagraph being a claim, demand or objection "in respect of the condition, state of repair ... of the Property". Those qualifying words seem to be directed to the quality of the property to be purchased and not to a claim directed to the correct identification of the property itself so as to accord with the statutory consent necessary for the lawful creation of the lot being purchased. 219These reasons would be sufficient, in themselves, to conclude that none of the subparagraphs of cl 1.5 of the Nomination Deed creates a contractual promise of which JVCo is in breach by prosecuting the present proceedings. However, as JVCo submitted, there is a further reason why the provisions of cl 1.5(e) does not involve any breach on its part. This further submission is founded upon the opening words of the subparagraph "subject to the terms of the Contracts". The term "Contracts" is defined in cl 1.1 of the Nomination Deed so as to include the contracts for sale for each of the residential lots including residential lot 2 being lot 107 in the DP. 220As I have already said, the contract for sale of lot 107 was in the standard form for contract for the sale of land, 2000 edition. It included the "standard" clauses 6 and 7 dealing with the entitlement of a purchaser to claim compensation. Clause 6 identifies the entitlement of a purchaser to claim compensation "for an error or misdescription ... as to the property, the title or anything else and whether substantial or not" but is limited to a claim made before completion. Clause 7 deals with claims generally, including a claim under cl 6 and the process that ensues in respect of such a claim. Again, the clause is directed to the entitlement to claim prior to completion. 221Notwithstanding these clauses in the contract for sale, they do not prevent post completion claims, at least in circumstances where there has been a misdescription "so material and substantial that it may reasonably be supposed but for such misdescription the purchaser would never have entered into the contract at all" ( Jennings v Zilahi-Kiss, Zilahi-Kiss and MK Tremaine & Company Pty Ltd (1972) 2 SASR 493 per Bray CJ at 510). 222In Jennings the purchaser had contracted to purchase land, the description of which included reference to "five flats". It was discovered after completion that the description "five flats" was erroneous in that the local authority had only licensed the building purchased as a boarding house and had specifically proscribed the use of any cooking appliances within any of the five rooms able to be let in lodgings. The contract for sale contained a condition similar to the "error or misdescription" provisions of cl 6 of the contract for sale in the present case. In relation to such clause, Bray CJ said (at 510): " ... I do not think that the clause relating to error or misdescription is effective to exclude reliance on the description of the units as flats in the contract, which I regard as containing a warranty, and it is certainly not apt to exclude reliance on the express warranty that all notices by any statutory authority have been complied with. According to the principle in Flight v Booth (1834) 1 BING.(N.C.) 370 (131 E.R. 1160) such a clause does not cover a misdescription so material and substantial that it may reasonably be supposed but for such misdescription the purchaser would never have entered into the contract at all, and, in my view, the description of the units as flats falls into this class. If this is so, then before completion the plaintiff would have been entitled to rescind if she had found out the true state of affairs and would not have been confined to a claim for compensation under the error or misdescription clause: and by parity of reasoning I do not see why that clause should now exclude her from claiming damages, even though the time for recision has passed. In short, in my view, the provision that compensation cannot be claimed for error or misdescription after settlement does not apply to an error or misdescription as substantial as that involved in describing the units as flats without disclosing the background relating to the building permit, the lodging house registration, and the council's attitude towards the stoves. Nor, in my view, does the statement that the purchaser had entered into the contract on his own investigation and inspection relieve the vendor from any liability for breach of any warranty contained in the contract itself." 223The statements of principle by Bray J in Jennings were followed by Bergin J (as her Honour then was) in Sumy Pty Ltd v Southcorp Wines Pty Ltd [2004] NSWSC 1000. The area of land contracted to be sold in that case comprised a number of lots identified in the contract, the area of which was said to have totalled "100 acres". Some years after completion, it was discovered by the purchaser that the area of one of those lots had been misdescribed with the result that the aggregate area that was in fact conveyed was only "80 acres". The contract for sale contained a clause similar to cl 6 in the present contract for sale. It was relied upon by the defendant vendor in Sumy as a bar to the plaintiff's claim. That defence was rejected by her Honour. She said (at [57]): "I am not satisfied that the parties to this Contract intended that any claim for damages for breach of warranty was to merge on completion. Indeed the parties went to the trouble of expressly agreeing in cl 6 that any claim for compensation was not available after completion but did not restrict a claim for damages post completion". Her Honour's conclusions, so expressed, followed citation of those observations of Bray CJ in Jennings that I have earlier quoted. 224It is necessary to apply those observations to the present case. As I have earlier recorded, payment of the Nomination Fee under the Nomination Deed entitled JVCo to have assigned to it by CRIC the plans, drawings and reports relating to the development approval. Clearly, this manifested an intention that not only would JVCo receive a transfer of title but that it could expect that within that title or those titles it could construct the improvements that were the subject of the Development Consent. Relevantly, it was entitled to expect that on lot 107 it could erect the residential flat building designed for that lot. By reason of the error in preparing the boundary location for lot 107 that has been the subject of my determination earlier in this judgment, the residential flat building designed for that lot could not, without further intervention, be constructed. 225This circumstance, so it seems to me, bears a marked similarity to those circumstances considered in both Jennings and Sumy . Applying the principle in Flight v Booth the "misdescription" is so material and substantial that JVCo, it may be supposed, would not have entered into the contract and paid the nomination fee so to do, if it was unable to construct on lot 107 the residential tower designed and approved for it. 226Thus, by reference to cl 1.5(e) of the Nomination Deed, the opening words of the subclause "subject to the terms of the Contracts" would have operated by way of exception to the proscription upon claims identified in the subparagraph. Expressed differently, the subparagraph does not operate so as to exclude a claim for damages able to be sustained in accordance with the statement of principle articulated in Flight v Booth , because such a claim was available under "the Contracts", namely the contract for sale of lot 107. 227Contextual support for this conclusion is said by JVCo to be found in the observations of Preston CJ in Western Districts Developments Pty Ltd v Baulkham Hills Shire Council [2009] NSWCA 283; (2009) 169 LGERA 62. There, his Honour said (Giles and Campbell JJ agreeing) at [87]: "In theory, prospective purchasers could seek to protect themselves by insisting upon a provision in the contract for sale entitling them to decline to complete the contract or to be compensated by the vendor if the principal certifying authority misexercises the statutory power. But in practice, this would not happen. A prospective purchaser would not anticipate that the principle certifying authority might misexercise the statutory power and, therefore, would not seek inclusion of a contractual provision to protect itself against loss from such unanticipated conduct." 228In the present context, it would not be anticipated that the DP would be registered in a way that did not reflect the boundaries of a plan, prepared by surveyors, and expressly made the subject of a condition of development consent. Especially is this so where the subdivision was but a component of an overall site development that included substantial improvements to be located on individual lots to be created by that subdivision. 229While the special conditions contained in the contract for sale for lot 107 must be noticed, it must be remembered that the warranties contained are warranties given to TCA and RailCorp and not to CRIC. It will be remembered that by special condition 30.6 in the contract for sale, JVCo represented and warranted that it - "(e) subject to this contract, it is satisfied as to the need for and the existence or validity of any development or approval for the Property." As I understand it, particular emphasis is placed upon this provision by CRIC in seeking to make out its defence. 230It is to be noted that this clause or warranty is not expressed as a bar to any future claim. It is to be distinguished from the terms of cl 1.5(e) of the Nomination Deed which, subject to the limitations that I have already addressed, is expressed to prevent future claims. 231Understandably, CRIC does not advance reliance upon the provisions of cl 30.6 as a right in contract that it is entitled to enforce. It is not a privy to that contract. Further, it is not expressed as a "no action" clause but as a warranty. The argument seems to be that JVCo is in breach of that warranty as a consequence of which it is actionable by TCA and RailCorp and for that reason the present claim by JVCo should be barred upon the principles applicable to circuity of action. 232Having regard to the nature of the claim made by JVCo, it is not apparent to me that the doctrine or principle of circuity of action is applicable in the present circumstances. That doctrine would seem to involve as its rationale the avoidance of a multiplicity of proceedings where the entitlement of the moving party in one proceeding is to recover a sum identical to that for which it would be liable to pay the party against which it moved should the latter party seek recovery in separate proceedings. So much emerges from the statement of principle articulated by Isaacs and Rich JJ in Eastern Extension, Australasia and China Telegraph Co Ltd v Federal Commissioner of Taxation where their Honours said (at 441): "There has been for centuries deeply embedded in the common law of England, a principle known as preventing circuity and multiplicity of suits. It is a principle which we are persuaded cannot properly be ignored ... . Lord Denman CJ speaks of the 'principle ... of avoiding circuity of action, i.e., the scandal and absurdity of allowing A to recover against B, in one action, the identical sum which B has a right to recover in another against A. The law, when it clearly detects the possibility of such a waste of the suitor's money and its own process, as well as of the public time, will interpose to prevent its happening.' ... We see no reason why, in the determination of this case, we are not bound to adhere to the high considerations which are at the root of this principle of the common law, and which are so powerfully expressed by Lord Denman ." 233This statement of principle has been applied subsequently in Australia, but in each case by reference to the identical sums recoverable in proceedings between the parties in suit. Thus, in Woodside Petroleum Development Pty Ltd v H & R E and W Pty Ltd (1999) 20 W.A.R. 380 at 402 Ipp J (Malcolm CJ and Pidgeon J agreeing) adopted the statement of principle expressed by Brownie J, writing extra-judicially, where he said: "The defence [of circuity of action] is available whenever the rights of the competing litigants are such that the defendant would be entitled to recover back from the plaintiff the same amount which the plaintiff seeks to recover from the defendant, whether those sums are categorised as debts, or damages." 234These statements of principle were adopted by Chesterman J in Royston v McCallum where, by reference to the facts in that case, his Honour wrote at [57]: "The question is whether the sum claimed by Concept is one for which RACQ promised to indemnify Gunnings pursuant to the policy of motor vehicle insurance it issued. If it is, it is conceded, again rightly, that Concept's claim cannot succeed. This is for the reason that there would be, in the circumstances just described, a 'circuity of action'. The claim ... would be met by an action by Gunnings against RACQ seeking indemnity under the same policy for the very amount which it would be liable to pay Concept." 235The right that JVCo seeks to exercise by bringing these proceedings is of a different character to that identified in the doctrine just discussed. JVCo seeks civil enforcement by reason of breach of the EPA Act (cf s 122), its entitlement so to do being afforded by s 123 of that Act. Such a right is not to be equated with a right of action to recover a particular sum against either CRIC or TCA and RailCorp. Whether any right under the contract for sale arises at the suit of the latter parties against JVCo by reason of claimed breach of warranty involves a different question from that to be addressed when applying the doctrine of circuity of action. It therefore becomes unnecessary to consider whether any such right arises. Certainly, no authority was cited in support of the proposition extending the application of the doctrine beyond entitlement of the parties in suit to recover identical sums against each other. Moreover, the rationale for the doctrine, as expressed by Lord Denman would not appear to be offended in the circumstances in which the present suit is prosecuted. 236It follows, that I do not sustain the defence of CRIC based upon the Nomination Deed and the provisions of the contracts for sale. 237Before turning to the submissions of CRIC upon the exercise of discretion in a general sense, it is necessary to notice the claim by JVCo that there was an implied condition or term of the Nomination Deed to the effect that upon its execution by the parties, CRIC would convey to JVCo the right to construct the development of the Chatswood Transport Interchange in accordance with the terms of the Development Consent. For its part, CRIC challenges the implication of such provision asserting that the implied term satisfies none of the requirements for implication of a provision in accordance with the principles laid down by the High Court in BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266. In light of my earlier determination that the terms of the Nomination Deed do not operate so as to demonstrate any breach by JVCo in prosecuting these proceedings, it is unnecessary to determine this issue.

[23]

Discretion generally 238CRIC submits that even if I do not sustain its argument as to breach by JVCo of the Nomination Deed, nonetheless the circumstances evident from the various contractual documents into which JVCo entered militates against the grant of any relief. In essence, it submits that JVCo was a party to a commercial bargain which, by the bringing of these proceedings, it seeks to have rewritten. This submission is made in the context where extensive opportunity was made available to JVCo to consider that which it proposed to purchase prior to entering into the commercial bargain to which it was committed and in circumstances where the contractual provisions that were available to it prior to execution of any document made abundantly clear that it was purchasing the property based entirely on its own enquiries. 239While these are matters that warrant consideration, they do not, to my mind, weigh against the grant of relief in favour of JVCo. This is essentially so because the lack of conformity between the boundaries of lot 107, as they were identified in the relevant plan that was the subject of a condition of development consent and the boundaries shown for lot 107 in the DP, was not reasonably discoverable during the process of due diligence undertaken by or on behalf of JVCo. It was not, in fact, discovered until after the sale transaction was completed. Importantly, this discovery was made by the sixth respondent which had been responsible for preparing not only the plan identified as the plan of stratum subdivision identified in the Development Consent, but also the DP consequent upon the grant of such consent. It will also be remembered that the sixth respondent had been consulted by JVCo during the course of due diligence and the boundary discrepancy in respect of lot 107, which impinged on the construction of the residential tower upon that lot, had not then been discovered. 240The discovery of the boundary discrepancy only occurred when the sixth respondent was engaged by JVCo to prepare a plan of strata subdivision for the residential tower proposed to be erected on lot 107. That was the evidence of Mr Werrett on behalf of JVCo and was not challenged. It was not suggested to him that the discrepancy was known to him or the other representative of JVCo prior to execution of the Nomination Deed or, for that matter, prior to settlement of the transaction. The position of Mr Werrett in acquiring lot 107 was that the residential tower designed for it could be constructed wholly within its boundaries. That position was consistent with the evidence given by Mr Hill, one of the receivers of CRIC involved in the negotiations with Mr Werrett. Mr Hill stated that he was unaware of any issue concerning the boundary overhang of the residential tower intended for lot 107 or, for that matter, the absence of easements necessary to accommodate that tower on that lot. In short, the evidence revealed common ground between Mr Werrett and Mr Hill to the effect that at the time of executing the Nomination Deed neither believed that there would be any impediment to the construction of the residential towers within the boundaries of the lots nominated for their construction. 241Evidence from Ms Susan Kench, a partner at Mallesons Steven Jaques, who had been the solicitor responsible for reviewing aspects of the process of due diligence, stated that she had reviewed the subdivision certificate endorsed on the DP and signed by the ninth respondent. She indicated her understanding that the terms of such certificate, as it related to lots 102 and 104-109 created by registration of the deed, complied with the provisions of s 109J of the EPA Act in that the DP was consistent with and complied with the terms and conditions of the Development Consent. 242The appropriateness of her action in so concluding was supported by the evidence of Mr Kimball Hennessy, an expert property conveyancer. His evidence was that a prudent solicitor acting on behalf of a client in a conveyance of property in New South Wales would accept as accurate a registered deposited plan shown to have been certified by a registered surveyor as accurate and certified by a certifying authority as being compliant with s 109J. Mr Hennessey indicated that such a position would be accepted by a prudent solicitor without more, notwithstanding the size and complexity of the transaction, or the fact that no warranties were given by the vendor. 243In this regard, it seems to me that the position adopted has some useful contextual analogy in the observations of Preston CJ in Western Districts Developments Pty Ltd v Baulkham Hills Shire Council (to which I have earlier referred) . Particularly pertinent is his Honour's observation at [87] that: "A prospective purchaser would not anticipate that the principal certifying authority might misexercise the statutory power and, therefore, would not seek inclusion of a contractual provision to protect itself against loss from such unanticipated conduct." 244By analogy, it could not be expected by either party to the Nomination Deed that any of the sixth, seventh, eighth or ninth respondents would fail to exercise the statutory obligations imposed upon them in preparing and certifying the DP when the lawful authority for the preparation and registration of that DP was the Development Consent. The conditions of the Nomination Deed and, for that matter, the contracts for sale did not direct themselves to this eventuality and would not, in the circumstances, be interpreted so as to deny to JVCo the right to relief by requiring compliance with the terms of the Development Consent in such a fundamental matter. 245As JVCo submitted, it is likely to suffer significant loss, damage or prejudice by reason of: (i) the need to redesign the residential tower for lot 107 in order to ensure that the structure is wholly contained within that lot; (ii) following such redesign the need to prepare an application for modification of the existing consent; (iii) the potential for any such redesign to delay implementation of the development; (iv) the costs associated with redesign and submission of a further application; (v) the potential for rescission of contracts exchanged for the sale of residential apartments within the residential tower or towers necessary to be adjusted, and (vi) the likely reduction in the floor area of units within the redesigned building. 246It is accepted that there is a concomitant potential financial impact upon both CRIC and Metro. CRIC expresses concern that if relief is granted it may lose the benefit of the agreement it has reached with Metro for the sale of lot 105. In light of the decision to which I have come in the related proceedings, that potential would not be realised. So far as Metro is concerned, given that its purchase from CRIC is in respect of the retail lot located below the residential towers, I am not satisfied that its loss would be so significant as to weigh against the grant of relief. 247It is not in dispute that even where breach of the EPA Act is demonstrated, the Court retains a discretion to decline the grant of relief. The principles governing the exercise of that discretion are well known ( Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 per Kirby P at 339 - 41; ACR Trading Pty Ltd v Fat-Sell Pty Ltd (1987) 64 LGRA 177; Warehouse Group (Australia) v Woolworths Limited [2003] NSWCA 270; (2003) 137 LGERA 115. As the authorities make clear, the exercise of discretion in any particular case must have regard to the importance of adhering to the planning law. Those matters that inform the exercise of discretion are, with respect, usefully stated by Street CJ in F Hannan Pty Ltd v Electricity of New South Wales (1985) 66 LGRA 306 where at 313 the Chief Justice said: "It is the duty of [the] Court, in formulating 'such orders as it thinks fit', to have regard at all times to the pursuit of the objects of the Environmental Planning and Assessment Act as set out in s 5. This involves, in appropriate cases, the evaluation of matters extending beyond the mere determination of the rights and matters in dispute between the immediate parties. It involves due weight being given to the public interest and the interests of other affected persons in the overall context of the pursuit of the objects broadly set out in s 5." 248In the present case a breach of the Development Consent has been demonstrated. It is a breach of some significance in its impact. Adherence to that consent is required. It is not in the public interest that the breach identified should be permitted to continue, the discretionary considerations identified by the relevant respondents not militating against the making of an appropriate order.

[26]

Background 254I have earlier identified, in general terms, the nature of the two related proceedings, essentially involving Metro, CRIC and CBA. The other parties to those proceedings took no active role, their position and interests effectively being contingent upon the determination made in the dispute among the three parties that I have nominated and whom I have described as the principal protagonists. Indeed, for all practical purposes the position taken by CBA in the proceedings was the same as that taken by CRIC so that the dispute was effectively between CRIC and CBA on the one hand and Metro on the other. 255Although each of CRIC and Metro commenced separate proceedings in the Supreme Court, the relief sought was effectively the same. In substance, each sought a determination as to their respective rights under the contractual arrangements into which they had entered, dependent upon the outcome of the principal proceedings. As I have determined that JVCo is entitled to succeed against CRIC, it is necessary to determine the consequence for the parties in these related proceedings. 256For its part, Metro says that by reason of the determination made in the principal proceedings, it will no longer be obliged to pay a significant fee to CRIC or CBA, described as a Development Fee, in respect of lot 105. Further, the making of orders in the principal proceedings of the kind contemplated will result in the automatic termination of an agreement referred to as the Retail Development Agreement entered into between CRIC and Metro on 22 September 2005. A further consequence of the result in the principal proceedings is, so Metro contends, that CBA will be required to return to Metro a bank guarantee issued by Suncorp Metway Limited in the sum of $15 M. 257For its part, CRIC denies that the determination in favour of JVCo will have any of the consequences identified by Metro. It maintains that Metro will remain bound to complete the purchase of lot 105 and to pay the Development Fee which it contracted to pay. In short, CRIC contends that, notwithstanding the result in the principal proceedings, the proceedings brought by Metro (11/40277) should be dismissed.

[27]

Background documents 258Resolution of the dispute between the present parties is wholly dependent upon a consideration of a somewhat complex array of commercial documents entered into between or involving the principal protagonists. I will endeavour to identify the key provisions of those documents so as to address the essential issue between the parties in these related proceedings. 259The Retail Development Agreement was entered into between Metro (then known as CTI Shopping Centre Pty Ltd) and CRIC, together with companies associated with the latter. As expressed in the recitals to the Agreement, Metro not only agreed to undertake works in relation to the retail component intended for the Interchange Site, but relevantly, agreed to take a transfer of the "Retail Complex Lot". 260Under cl 3.1(a), Metro was required to pay a Development Fee on a date described as "the Settlement Date", defined as being the date which was 10 business days after the date upon which the DP, building management statement and s 88B Instrument were registered. As I have earlier indicated, these documents were registered on 8 January 2010. 261By cl 5.1(a) of the Retail Development Agreement, CRIC was required to nominate Metro as the grantee under a deed known as the Call (Retail Complex) Option Deed. That Deed had been entered into on 24 June 2005 between TCA (as TIDC) and RailCorp as grantors and CRIC as grantee. By cl 5.1(b) of the Retail Development Agreement, Metro was required to accept nomination under the Call Option Deed and was required "to do all things necessary to effect such nomination, including, on the date of this agreement, execute two counterpart copies of the New Option Deed (as defined in the Call (Retail Complex) Option Deed) and deliver the counterpart deeds to [CRIC]". 262The purpose of each of the Call (Retail Complex) Option Deed and the New Option Deed was to grant, under cl 3, an option to its respective grantee to purchase from TCA and RailCorp "the Property for the Price on the terms and conditions contained in the Contract." 263"Property" was defined in cl 1.1 of each Option Deed as "lot 105 in Draft Subdivision Plan". The "Price" was the sum of $10. The term "Contract" was defined as the agreement for sale of the property attached to the Deed which, in the case of the New Option Deed was the document that was Annexure C to the Deed. 264Upon delivery of the New Option Deed to TCA and RailCorp executed by the nominee of CRIC, the earlier Call Option Deed was terminated and the New Option Deed was "deemed to be entered into and be a valid agreement" as between TCA, RailCorp and CRIC's nominee. 265As it was required to do by cl 5.1(b) of the Retail Development Agreement, Metro entered into the Call (Retail Complex) Option Deed with TCA and RailCorp on 22 September 2005 ( the Metro Call Option Deed ). Pursuant to cl 3 of that Deed, TCA and RailCorp granted to Metro an option to purchase lot 105 in the draft subdivision plan for the price of $10 on the terms and conditions contained in the "Contract". It will be necessary shortly to refer to the terms of that Contract. 266The call option in the Metro Call Option Deed was required to be exercised between 1 November 2005 and 10 January 2006. The exercise of the option required Metro to give TCA and RailCorp an executed copy of the contract for sale with its details inserted. The option was exercised in that manner on 9 January 2006 when it entered into a contract for the sale of the land with TCA and RailCorp ( the Metro Sale Contract ). Conditions included in the Metro Sale Contract were those that earlier had been identified as being required under the proposed Contract identified in both the original and the New Option Deed. Notwithstanding the subsequent events, it seemed that the Retail Development Agreement continued to have a part to play because of the provisions of cl 5.1(b)(iv) which required Metro to "comply at all times after the nomination referred to in cl 5.1(a) with the terms of the Call (Retail Complex) Option Deed and Retail Complex Sale Contract." 267Following execution of these documents, a dispute arose between CRIC and Metro as to their respective obligations under the contractual arrangements into which they had entered. It is unnecessary to record the nature of this dispute. It resulted in proceedings being commenced in the Supreme Court that were ultimately resolved when CRIC (and related companies) entered into a deed of settlement with Metro and CBA on 29 September 2010 ( the Settlement Deed ). 268The critical provisions of the Settlement Deed are those found in cl 3 of that document. By cl 3.1 it was agreed between the parties that the Retail Development Agreement was amended in the manner set out in cl 3. The amendments made to the Retail Development Agreement by cl 3 of the Settlement Deed for present purposes were: (i) the Development Fee was reduced to a sum of approximately $65.9 M; (ii) the provision for payment of the Development Fee was changed so that such fee was payable by two instalments, the receipt of the first instalment of approximately $900,000 being acknowledged, with the balance to be paid on or before the Settlement Date; and (iii) the definition of the Settlement Date as it appeared in the Retail Development Agreement was deleted and a new date inserted as being "by or before 4.00pm on 28 March 2011" or otherwise in accordance with notice for which provision was there set out. It will be necessary to refer to the change in this Settlement Date in due course. 269Amendment of the Retail Development Agreement effected by cl 3.10 is critical to the determination of the dispute between the parties. Relevantly, it provided: "On the Settlement Date, and subject to payment by the Retail Purchaser of any unpaid balance of the Development Fee ... in accordance with the Principal Document and the Transaction Documents, CRI will deliver or cause to be delivered to the Retail Purchaser: (a) Bank Guarantee no 6009 issued by Suncorp Metway Limited and dated 21 September 2005 ( Bank Guarantee ); (b) the Certificate of Title Folio Identifier 105/1094273 (free and clear of any mortgage, charge, or any lease, caveat or other encumbrance (but otherwise subject to notations, (1 - 59 inclusive appearing in edition 1 of the Certificate of Title issued on 15 January 2010)); (c) the original stamped and signed Transfer. ... If CRI fails to deliver the documents listed in submission-clauses (a) to (i) inclusive to the Retail Purchaser on or within 10 Business Days of the Settlement Date, the Principal Document will automatically terminate (without any requirement for issue of any notice under clause 21 of the Principal Document) and within five Business Days of that termination; (j) CBA will return the Bank Guarantee to the Retail Purchaser; and (k) the parties will take all steps, execute all documents and do everything reasonably required of them to give effect to that termination and the return of documents and materials. ... ". 270The provisions of cl 3.15 of the Settlement Deed should also be noticed. That clause provided: "(a) Except as expressly amended by this document, the Principal Document is confirmed and remains in full force and effect. (b) With effect on and from the Effective Date: (i) the Principal Document and this document will be read and construed as one document; and (ii) references to the Principal Document in this document will be read and construed as references to the Principal Document as amended by this document. ... ". 271The provisions of cl 3.15 of the Settlement Deed make abundantly clear that the terms of the Retail Development Agreement and those provisions of other documents which it, by reference, incorporates, continue to bind the parties subject only to the specific amendments to the Retail Development Agreement effected by cl 3 of the Settlement Deed. This consequence carries with it that the terms of the Settlement Deed, particularly those contained in cl 3.10, need to be considered and construed in light of those other contractual provisions which continue to bind the parties. 272I have referred to the amendment effected by cl 3.3 of the Settlement Deed to the identification of the Settlement Date. Prior to 28 March 2011, being the primary date nominated, these proceedings were commenced and an interlocutory injunction granted preventing settlement being effected pending determination of these proceedings. That interlocutory injunction continues and thus settlement in accordance with the Retail Development Agreement and its related documents, including the Metro Sale Contract, has been prevented by Court order. This matter will need to be addressed later in these reasons.

[31]

The boundary correction does not create an "encumbrance" 279The terms in which cl 3.10(b) are expressed would indicate to me that the reference to the requirement that the relevant folio identifier be free of any "other encumbrance" is a reference to an "encumbrance" as understood in the conveyancing sense. It does not seem to connote any obligation that may be imposed upon the property itself. Use of the term in a conveyancing sense is apparent from the references preceding it to "any mortgage, charge, or any lease, caveat ... ". 280The term "encumbrance" in the conveyancing sense was the subject of consideration by the High Court in Wallace v Love [1922] HCA 42; (1922) 31 CLR 156. Knox CJ and Starke J in a joint judgment identified the word "encumbrance" as "used to indicate a burden on property, a claim, lien or liability attached to property". In Davies v Littlejohn [1923] HCA 64; (1923) 34 CLR 174 Isaacs J said (at 190): "An encumbrance, whatever else it may connote, involves at least this, that it is distinct from the thing it encumbers or burdens. In Jones v Barnett [citation omitted] Romer J says: 'In Wharton's Law Lexicon I find 'encumbrance' defined as being 'a claim, lien, or liability attached to property.' That indicates that conceivably the 'encumbrance' could be removed and the 'property' left intact. A mortgage is an encumbrance on the clean title otherwise existing, and you must be able to conceive of the principal object freed of the encumbrance. So of a charge on property, or a lien of any description, the 'property' must be capable of having existence in a condition free of the encumbrance." 281Those conditions were the subject of consideration by the full Federal Court in Repatriation Commission v Tsourounakis. In the joint judgment of Dowsett and Edmunds JJ their Honours said (at [114]): "Both cases demonstrate that a 'claim', a 'burden' or a 'responsibility' may be an encumbrance. There is no suggestion that it must relate to the payment of money. We see no reason to exclude a claim in equity from that list of 'encumbrances'. However the claim must ' rest as a charge upon land, lessening its value to the owner ... ' or be a 'burden' upon it. To say that a property is burdened with an obligation or responsibility generally means that a particular person's interest in that property is so burdened. As Isaacs J said in Davies , the encumbrance is 'on the clean title otherwise existing'. One is generally speaking of an impediment to the exercise of proprietary or other rights in the property." 282A consideration of these statements of principle do not indicate to me that the requirement to alter or adjust the common boundary between lots 105 and 107 is an "encumbrance". That adjustment by way of correction does not constitute a "claim", "burden" or "responsibility" on the lot against which the adjustment is made as it neither "rests" on the lot nor does it burden the owner's interest in that lot. The fact that the adjustment may result in a reduction in size of the lot does not change the status of the adjustment. 283To the extent that it is relevant, no evidence has been adduced indicating that an adjustment of the boundary to accord with that shown on the plan of stratum subdivision identified in condition A2 of the Development Consent would lessen the value of lot 105. Indeed, as I have earlier recorded, the town planning evidence that was adduced indicated that the air space above lot 105 had no present development potential. 284In summary, the proprietary interest of Metro in lot 105 would not be affected by the boundary adjustment required in accordance with my finding in the principal proceedings. That adjustment does not amount to an encumbrance.

[32]

The adjusted parcel of land accords with the contractual obligations 285At the time at which Metro entered into the contract for sale in relation to lot 105, namely on 9 January 2006, the plan of stratum subdivision had not been registered. In the Call Option Deed the property was relevantly described as lot 105 in the then draft subdivision plan (defined in cl 1.1 of the Development Deed). The land as described in the Metro Sale Contract dated 9 January 2006 was described in the following way: "Land Address Land situated in Chatswood Station between Help Street and Albert Avenue Chatswood Plan Lot 105 in the Subdivision Plan, which is part of lots 22, 23 & 24 in DP 819522, Lot 1 in DP 590323, Gov Gaz No: 6, 19-01-1945, Fol 50, Lot 1 in DP 321820, Gov Gaz No: 93, 9-07-1926, Fol 4585 on plan 6695-3000, Gov Gaz No: 376, 8-07-1887, Fol 4443, Book 394 No 276, Gov Gaz No: 138, 27-8-2004, Fol 7245 and 7246 (being Lots 14 & 15 DP 817116), lot 62 DP 864346, lots 20 & 21 DP 790323 and Lots 20 & 21 DP 790323 Title Part of lots 22, 23 & 24 in DP 819522, Lot 1 in DP 590323, Gov Gaz No: 6, 19-01-1945, Fol 50, Lot 1 in DP 321820, Gov Gaz No: 93, 9-07-1926, Fol 4585 on plan 6695-3000, Gov Gaz No: 376, 376, 8-07-1887, Fol 4443, Book 394 No 276, Gov Gaz No: 138, 27-8-2004, Fol 7245 and 7246 (being Lots 14 & 15 DP 817116), lot 62 DP 864346, lots 20 & 21 DP 790323 and Lots 20 & 21 DP 790323" 286The Certificate of Title which CRIC was required to deliver in accordance with cl 3.10(b) of the Settlement Deed was that described as "Certificate of Title Folio Identifier 105/1094273". The "original duly stamped and signed Transfer" identified in cl 3.10(c) was a transfer in which the land to be transferred was described as follows: "Lot 105 in the Subdivision Plan ... now being Lot 105 in Deposited Plan 1094273". 287Reference to lot 105 in the DP on the Transfer was noted in handwriting. That handwriting was added by agreement between the parties pursuant to a separate agreement entered into on the same day upon which the parties executed the Settlement Deed. 288These documents make tolerably clear that the property that CRIC bargained to sell and Metro bargained to purchase was land described as lot 105 in DP 1094273. It did not involve an agreement to purchase an allotment of land described by reference to its dimensions or size. That proposition is not qualified or affected by the terms of cl 3.8 of the Settlement Deed whereby Metro indicated its "approval" of the subdivision plan registered on 8 January 2010 and acknowledgment that it had been registered in accordance with the Retail Development Agreement. Those provisions, so it seems to me, related to the procedural requirements for preparation of the subdivision plan and its registration rather than an acceptance of the requisite correspondence between the approved stratum plan of subdivision and the DP, such that CRIC was contractually constrained to the dimensions and area of the registered plan. Expressed succinctly, CRIC is, conformably with cl 3.10 of the Settlement Deed, capable of transferring to Metro lot 105 in DP 1094273, notwithstanding the boundary adjustment required in order that the provisions of the Development Consent be observed. 289As CRIC submits, the circumstance that none of the contractual documents identified the land to be transferred to Metro by dimension or area is important. The position is not dissimilar to that considered by the High Court in Dempster v Richardson [1930] HCA 42; (1930) 44 CLR 576. In that case the Court was required to consider a contract for the sale of land in which the property to be sold and purchased was described by way of location as being situated at the corner of two named streets and "belonging to the vendor" at (590). The Memorandum of Transfer described the approximate area of the land and identified the Certificate of Title which pertained to it. The Certificate of Title also contained a diagram showing the land and indicating its dimensions. The plaintiff in those proceedings claimed that there was a deficiency in the length of the front boundary and made a claim against the Recorder of Titles in Tasmania for damages. In that claim she was unsuccessful. Rich and Dixon JJ determined (at 587) that the plaintiff "contracted for the land identified by its situation and occupation irrespective of its dimensions." In his judgment, Stark J also referred to the land contracted to be purchased by reference to its location rather than dimension. His Honour continued (at 590): "If the error or misdescription in the title be due to an error in measurement, that is an error in survey and not in title." 290Relevant to be noticed in this regard are the provisions of the Metro Sale Contract. Included among the additional conditions of that contract was condition 33.1. It provided: "The purchaser is aware of the terms and conditions of the Developers DA Consent and the TIDC Part 5 Approval, as at the date of the Call (Retail Complex) Option Deed and accepts those terms and will not subsequently object to those terms." 291Adjustment of the boundary between lots 105 and 107 resulting in any reduction in dimension or area of lot 105 will, as I have earlier made clear, occur by reason of the need to rectify a breach of the Development Consent. By special condition 33.1 of the contract for sale, Metro accepted "the terms and conditions" of that development consent and promised that it would not object "to those terms". Metro is thus receiving that which was promised to it. Any reduction in boundary dimension or allotment area cannot now be relied upon by Metro to excuse compliance with its contractual obligations. 292The adjustment of the boundary between lots 105 and 107, in order to accord with the plan identified in condition A2 of the Development Consent, does not involve the creation of an "encumbrance". It does not constitute a claim, burden or responsibility against lot 105 as that lot is not burdened as such by the correction that is to be made. Moreover, upon the proper analysis of the various contractual documents relevant to be considered for the purpose of determining what Metro agreed to acquire, it was "lot 105" in the DP. It was not identified by dimension or size. The adjustment required to be made to the boundary will not affect the fact that the land able to be transferred is "lot 105" in the DP.

[33]

Creation of the required easements is not an encumbrance 293I have already referred to the manner in which the term "encumbrance" is to be considered in the context of cl 3.10(b) of the Settlement Deed. To those observations already made in this context one should add that the term should be construed in its contractual context. This is particularly relevant when considering whether the additional easements that I have determined should be imposed so as to conform with conditions E1 and E2 of the Development Consent will constitute an encumbrance within the meaning of the clause. 294I have earlier referred to the provisions of cl 3.15 of the Settlement Deed whereby the Retail Development Agreement "remains in full force and effect", with that document to be read as amended only by the specific provision of the Settlement Deed. Thus, the Retail Development Agreement provides a relevant context as do the terms of the contract for sale entered into by Metro whereby it agreed to acquire lot 105. 295It will be remembered that by cl 5.1(b)(iv) of the Retail Development Agreement, Metro remained bound "to comply at all times" after the nomination referred to in clause 5.1(a) with the terms of the Call (Retail Complex) Option Deed and Retail Complex Sale Contract. 296By operation of cl 1.2(a)(ii) of the Retail Development Agreement, cl 5.1(b)(iv) continued to apply to the Call Option Deed entered into by Metro with TCA and RailCorp on 22 September 2005. As I have also recorded, it was pursuant to that latter Call Option Deed that Metro entered into the Metro Sale Contract. It was therefore the "Retail Complex Sale Contract" for the purpose of cl 5.1(b)(iv) of the Retail Development Agreement. 297It followed from these interrelated contractual provisions that although CRIC was not a party to either the Call Option Deed into which Metro entered nor the Metro Sale Contract, there was privity between Metro and CRIC such that CRIC was legally entitled to have Metro comply with the obligations imposed by those contractual obligations. 298Clause 32.1(a)(ii) of the Metro Sale Contract provided: "(ii) the Property is sold subject to, and with the benefit and burden of, the easements, restrictions on use and positive covenants created pursuant to the CTI Development Deed and this contract and which are intended and will bind the purchaser and the other parties thereto and each of their successors in title and the purchaser is not to make any requisition, claim for compensation or attempt to delay completion in respect of any matter referred to in this clause 32.1." 299By clause 21.1(1) of the CTI Development Deed it was provided (relevantly) that those lots that were not RailCorp lots: " ... have the benefit and burden of such easements set out in the Draft Section 88B Instrument and such additional easements, which are necessary for the effective use and operation of the CTI Infrastructure Works and the development component as contemplated by the TIDC Part 5A approval and the Developers DA Consent ... ". The expression "development component" was defined to include the residential towers to be erected on lots 106, 107 and 108 and reference to the "Developer's DA Consent" was a reference to the Development Consent. 300When the provisions of cl 3.10(b) of the Settlement Deed are read in the context of these other contractual provisions, it is apparent that, objectively determined, the parties did not intend that easements required to be created in order to comply with conditions E1 and E2 of the Development Consent would constitute an encumbrance within the meaning of that clause. Modern authority supports the interpretation of a contractual provision such as cl 3.10 of the Settlement Deed, not only by reference to the text itself, but also by reference to the context of those circumstances pertaining to the contract and known to the parties ( Franklin Pty Ltd v Metcash Trading Ltd [2009] NSWCA 407; (2009) 76 NSWLR 603). In the case of commercial contracts, this is particularly appropriate whereby the "essential background" circumstances are relevant to be considered in the task of construing that contract (per Allsop P at [19]). 301In summary, I am satisfied that upon the proper construction of the various contracts into which Metro entered, the obligation to create the easements that I have identified, so as to conform with the requirements of conditions E1 and E2 of the Development Consent, does not amount to an encumbrance that engages the provisions of cl 3.10 of the Settlement Deed. Included among the documents relevant to be considered for this purpose is the Metro Sale Contract by which it acknowledged its awareness of the terms and conditions of the Development Consent and accepted those terms. 302Creation of the easements that I have identified involves no more than fulfilment of the obligation created by the Development Consent. Properly construed, those documents do not, as a matter of objective intention, identify easements required to be created so as to conform with the requirements of the Development Consent as an "encumbrance" within the meaning of the clause.

[35]

Orders 306As I have endeavoured to make apparent, it is not possible to announce final orders at the time at which this judgment is delivered. It will be necessary for the parties to bring in short minutes of orders reflecting the determinations that I have made in respect of the issues that have been argued. In substance, the orders will need to reflect, with appropriate precision, the amendment necessary to be sought to the common boundary between lots 105 and 107 as they are presently indicated in the DP and the mechanism for that amendment. The orders will also need to reflect the creation of the additional easements that I have identified which I anticipate would be undertaken by preparation and registration of a further Instrument under s 88B of the Conveyancing Act. 307As between CRIC and Metro, my tentative view is, as I have indicated, that the proceedings instituted by Metro (11/40277) should be dismissed and that in the proceedings instituted by CRIC (11/40534) orders generally consistent with the relief claimed in the statement of claim filed in those proceedings should be made, save that the time for settlement should be a period of 10 days after the date, yet to be determined, upon which the injunction restraining completion of the transaction between the parties is dissolved. 308The question of costs in both the principal and related proceedings will need to be considered and in accordance with the request of the parties I propose to reserve that question. If the parties cannot agree upon appropriate orders in that regard, the matter will need to be listed for a short hearing in order that I can be assisted in determining that question. Written submissions by all interested parties will be required in that regard prior to any hearing on the question of costs. 309Without expressing any concluded view upon that question, I make the observation that JVCo has been substantially successful in the principal proceedings while CRIC has been substantially successful in the related proceedings. It is hardly necessary to make the trite observation that costs will automatically follow the event in respect of those proceedings although having regard to the complexity of the issues and the number of parties, it may be that some special provision, at least involving adjustments as among parties, will be necessary. 310Consistent with these reasons, the orders that I make today are as follows:

In all proceedings heard together, I direct that each of JVCo and CRIC bring in short minutes of orders proposed to be made that are consistent with these reasons for judgment.
Stand over the proceedings to 9.15am on Tuesday 7 February 2012 for the purpose of considering the making of orders in accordance with short minutes of orders agreed among the parties.
In the event that the parties are unable to agree upon the terms of orders to be made, I will hear argument upon those terms on a date to be fixed when the matter is before me on 7 February next.
Costs are reserved.
In the event that the parties are unable to agree upon the orders for costs to be made, a date for hearing of argument will also be fixed when the matter is before me on 7 February next, with directions then to be given for steps to be taken in preparation for that hearing.
The interlocutory injunction granted on 4 May 2011 is continued until further order.

Parties

Applicant/Plaintiff:

CTI Joint Venture Company Pty Ltd

Respondent/Defendant:

CRI Chatswood Pty Ltd

Cases Cited (44)

(Westernport) Pty Ltd v Shire of Hastings [1977]; (1977) 180 CLR 266 Cann's Pty Ltd v Commonwealth of Australia [1946] HCA 5; (1946) 71 CLR 210 CTI Joint Venture Company Pty Ltd v CRI Chatswood Pty Ltd (in liq) (No 2) [2011] NSWLEC 91 Davies v Littlejohn [1923] HCA 64; (1923) 34 CLR 174 Dempster v Richardson [1930] HCA 42; (1930) 44 CLR 576 Eastern Extensions Australasia and China Telegraph Co Ltd v Federal Commissioner of Taxation [1923] HCA 62; (1923) 33 CLR 426 F Hannan Pty Ltd v Electricity of New South Wales (1985) 66 LGRA 306 Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 Franklin Pty Ltd v Metcash Trading Ltd [2009] NSWCA 407; (2009) 76 NSWLR 603 Hillpalm Pty Ltd v Heaven's Door Pty Ltd [2004] HCA 59; (2004) 220 CLR 472 Jennings v Zilahi-Kiss and MK Tremaine & Co Pty Ltd (1972) 2 SASR 493 Leonie's Travel v Qantas [2010] FCAFC 37 M J Davis Industrial Pty Ltd v Fairfield City Council [1999] NSWSC 829; (1999) 107 LGERA 118 M J Davis Industrial Pty Ltd v Fairfield City Council [2000] NSWCA 287; (2000) 10 BPR 18,495 Repatriation Commission v Tsourounakis [2007] FCAFC 29; (2007) 158 FCR 214 Royston v McCallum [2006] QSC 193; (2006) 1 Qd R 361 Refina Pty Ltd v Binnie [2010] NSWCA 192; (2010) 15 BPR 28,633 Sumy Pty Ltd v Southcorp Wines Pty Ltd [2004] NSWSC 1000 Wallace v Love [1922] HCA 42; (1922) 31 CLR 156 Warehouse Group (Australia) v Woolworths Limited [2003] NSWCA 270; (2003) 137 LGERA 115 Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 Western Districts Developments Pty Ltd v Baulkham Hills Shire Council [2009] NSWCA 283; (2009) 169 LGERA 62 Westfield Management Ltd v Perpetual Trustee Company Ltd [2006] NSWCA 245 Wilkie v Blacktown City Council [2002] NSWCA 284; (2002) 121 LGERA 444 Winn v Director-General of National Parks and Wildlife [2001] NSWCA 17; (2001) 130 LGERA 508 Woodside Petroleum Development Pty Ltd v H & R E and W Pty Ltd (1999) 20 W.A.R. 380 Category: Principal judgment Parties: 40255 of 2011 CTI Joint Venture Company Ltd (Applicant) CRI Chatswood Pty Ltd (In Liq) (Receivers and Managers Appointed (First Respondent) Metro Chatswood Pty Ltd (Second Respondent) Transport Construction Authority (Third Respondent) Rail Corporation New South Wales (Fourth Respondent) Registrar-General of New South Wales (Fifth Respondent) Hard & Forester Pty Ltd (Sixth Respondent) Pierre Hartzenberg (Seventh Respondent) Grinsell & Johns Pty Ltd (Eighth Respondent) Gordon Wren (Ninth Respondent)

The parties to the principal proceedings 10CRIC contracted with JVCo for the sale of a number of lots in the DP, including lot 107. That sale has been completed. CRIC was responsible for engaging consultants to prepare and certify the plan of subdivision and for registering that plan as a deposited plan in compliance with the development consent. It denies the breaches of the development consent alleged by JVCo. It does not deny that it was responsible for procuring registration of the DP. CRIC also says that the claim by JVCo is barred by s 195J of the Conveyancing Act 1919. 11The second respondent, Metro Chatswood Pty Ltd ( Metro ), has contracted to purchase lot 105 in the DP under a contract for sale. The completion of that sale has been restrained by interlocutory injunction pending determination of these proceedings. While not admitting the breach alleged by JVCo, its interest is essentially concerned with the consequence upon its contractual rights and obligations in the event that JVCo is successful in obtaining orders of the kind that it seeks. 12The third respondent, now properly titled the Transport Construction Authority ( TCA ) (s 18A Transport Administration Act 1988) is owner of part of the land contained within the Interchange Site. While not admitting that any breaches of the development consent have occurred, it does not enter the debate as to breach. However, it acknowledges having affixed its seal to the relevant sheet of the plan of stratum subdivision that came to be registered as the DP but denies that it caused or permitted that plan to be prepared and registered in breach of the conditions of the development consent. Should JVCo be successful in establishing breach, requiring amendment of the DP, then TCA indicates it would, as owner, give such consent as is necessary to amend the DP or other instrument. 13Rail Corporation New South Wales ( RailCorp ), the fourth respondent, is a statutory corporation constituted by s 4 of the Transport Administration Act . It is the owner of another part of the land comprised within the Interchange Site. Like TCA, it acknowledges that it executed and gave its consent to lodgement of the plan of stratum subdivision that was registered as the DP but denies that it caused or permitted any breach of the EPA Act as is alleged by JVCo. It therefore denies the right of JVCo to obtain any relief against it, even if a breach of the Act be established on the part of CRIC. RailCorp also supports the contention of CRIC that the claim is barred by s 195J of the Conveyancing Act . 14The Registrar-General is joined in the proceedings in aid of the relief sought by JVCo involving amendment to the DP and registration of additional easements. The Registrar-General has submitted to any order that the Court might make, save as to costs. 15Hard & Forester Pty Ltd (the sixth respondent) and Pierre Hartzenberg (the seventh respondent) are respectively the surveying company and the director/surveyor responsible for preparation of both the stratum subdivision plan identified in the condition of development consent as being the plan pursuant to which the subdivision was required to be effected. They were also responsible for preparation of the plan of subdivision that became registered as the DP. Mr Hartzenberg signed the DP, certifying that survey work had been carried out in accordance with the Surveying and Spatial Information Regulation 2006. It is convenient to refer to these two respondents collectively as "the surveyors". 16No order is sought against the surveyors by any party. They were joined by order made by me on the motion of CRIC ( CTI Joint Venture Company Pty Ltd v CRI Chatswood Pty Ltd (in liq) (No 2) [2011] NSWLEC 91). Their joinder was seen to be necessary on the basis that CRIC foreshadowed that in the event of success by JVCo in these proceedings, CRIC may seek to pursue an action against them in contract or tort. Although represented at the hearing, the surveyors did not take an active role by adducing evidence, cross-examining witnesses or making final submissions. 17Grinsell & Johns Pty Ltd and Gordon Wren, the eighth and ninth respondents, are respectively the company carrying on business as building and development certifiers and a director/accredited certifier within that company. It is convenient to refer to them collectively as "the certifiers". Mr Wren signed the plan of stratum subdivision that became registered as the DP, certifying that the provisions of s 109J of the EPA Act had been satisfied in relation to the plan of stratum subdivision so far as it related to lots 105, 106 and 107 (amongst others). 18The certifiers were joined in the proceedings on the same basis as were the surveyors. No order or relief was sought against them in the proceedings. Nonetheless, they did not admit the breach claimed by JVCo but left the essential factual and legal debates to be conducted between JVCo and CRIC.

[1930] HCA 42

[2006] QSC 193

(2004) 136 LGERA 149

(2009) 167 LGERA 395

(1977) 180 CLR 266

(1946) 71 CLR 210

(1923) 34 CLR 174

(1930) 44 CLR 576

(1923) 33 CLR 426

(2007) 230 CLR 89

(2009) 76 NSWLR 603

(2004) 220 CLR 472