Fairfield City Council v N & S Olivieri P/L

Court of Appeal (NSW)|2003-02-04|Before: Olivieri P, Spigelman CJ, Santow JA, Cowdroy J

CITATION : Fairfield City Council v N & S Olivieri P/L [2003] NSWCA 41 revised - 13/03/2003 HEARING DATE(S) : 4 February 2003 JUDGMENT DATE : 7 March 2003

JUDGMENT OF : Spigelman CJ at 1; Santow JA at 39; Cripps AJA at 47 DECISION : Appeal upheld; See further para 87

CATCHWORDS : Development consent - conditions - s94 - discretion LEGISLATION CITED : Environment Planning and Assessment Act 1979 (NSW) s94(7),s91(3)(f), s94AB ABB Power Plants Limited v Electricity Commission (NSW) (t/as Pacific Power) (1995) 35 NSWLR 596 Abbott v Shire of Heidelberg [1926] VLR 199 Anthony Hordens & Sons Limited v Amalgamated Clothing & Allied Trades Union of Australia (1932) 47 CLR 1 Attorney General (Commonwealth) v Schmidt (1961) 105 CLR 361 Australian Broadcasting Tribunal v Saatchi & Saatchi Compton (Vic) Pty Ltd (1985) 10 FCR 1 Brown v West (1990) 169 CLR 195 David Grant and Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265 Dixon v Esperance Bay Turf Club (Inc.) [2002] WASC 110 Downey v Trans Waste Pty Ltd (1991) 172 CLR 167 Fitch v Shoalhaven City Council (1977) 67 LGRA 165 Harris v Great Barrier Reef Marine Park Authority (1999) 162 ALR 651 Harts Australia Limited v Commissioner, Australian Federal Police (2002) 117 FCR 358 Henbury Pty Ltd v Parramatta City Council (Land and Environment Court, 22 March 1982, unreported) CASES CITED : John v Commissioner of Taxation (Cth) (1989) 166 CLR 417 Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672 Lockwood v The Commonwealth (1954) 90 CLR 177 Mercantile Mutual Life Insurance Co Ltd v Australian Securities Commission (1993) 40 FCR 409 Newcrest Mining (WA) Limited v The Commonwealth (1997) 190 CLR 513 Nintendo Co Ltd v Centronic Systems Pty Ltd (1994) 181 CLR 134 Pioneer Aggregates (UK) Ltd v Secretary of State for the Environment [1985] AC 132 PMT & Partners (In liq) v Australian National Parks & Wildlife Service (1995) 184 CLR 301 Progress and Securities Pty Ltd v North Sydney Municipal Council (1988) 66 LGRA 236 R v Wallis; Ex parte Employers Association of Wool Selling Brokers & H C McKay Massey Harris Pty Ltd (1949) 78 CLR 529 Re Wilcox; Ex parte Venture Industries Pty Ltd (1996) 66 FCR 511 Saraswati v The Queen (1991) 172 CLR 1 St George Building Society v Manly Municipal Council (1982) 3 APA 370 Switz Pty Ltd v Glowbind Pty Ltd (2000) 48 NSWLR 661 Fairfield City Council PARTIES : v N & S Olivieri P/L FILE NUMBER(S) : CA 40454/02 COUNSEL : Appellant: P.J. McEwen SC/ A.J.J. Thompson Respondent: A. Galasso SOLICITORS : Appellant: Kencalo & Ritchie Respondent: Coleman & Greig

LOWER COURT Land & Environment Court JURISDICTION : LOWER COURT LEC 40114/01 FILE NUMBER(S) : LOWER COURT Cowdroy J JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 4045/2002 LEC 40114/01 SPIGELMAN CJ SANTOW JA CRIPPS AJA

7 March 2003 FAIRFIELD CITY COUNCIL v N & S OLIVIERI PTY LTD

JUDGMENT 1 SPIGELMAN CJ: I have read the judgment of Cripps AJA in draft. I agree with his Honour's reasons and the orders he proposes. I wish to add observations on two matters. 2 As Cripps AJA notes, it appears that both the Council and Olivieri mistakenly believed that IDO 10 regulated development on the land. However, no issue was raised in the proceedings that the exercise of the statutory power under s91 of the Environmental Planning and Assessment Act 1979 miscarried by reason of this fact. There is a pertinent line of authority which does not, in the circumstances, need to be considered. (See Abbott v Shire of Heidelberg (1926) VLR 199 at 201; Lockwood v The Commonwealth (1954) 90 CLR 177 at 184; Australian Broadcasting Tribunal v Saatchi & Saatchi Compton (Vic) Pty Ltd (1985) 10 FCR 1 at 9-10, 17; Brown v West (1990) 169 CLR 195 at 203; Mercantile Mutual Life Insurance Co Ltd v Australian Securities Commission (1993) 40 FCR 409 at 412, 424-425, 435-437; Newcrest Mining (WA) Limited v The Commonwealth (1997) 190 CLR 513 at 618; Harris v Great Barrier Reef Marine Park Authority (1999) 162 ALR 651 at [9]-[18]; Harts Australia Limited v Commissioner, Australian Federal Police (2002) 117 FCR 358 at [160]-[164]; Dixon v Esperance Bay Turf Club (Inc.) [2002] WASC 110 at [155]-[161]). 3 The second matter upon which I wish to make additional observations is the relationship between ss91 and 94 of the Act in their form at the relevant time. 4 In Fitch v Shoalhaven City Council (1977) 67 LGRA 165, Stein J found that s94 was the exclusive source of power for a council to impose a condition requiring dedication of land free of cost. Whether this was so was the specific question before the Court (see at 166.8), which his Honour answered in the affirmative (at 170.7). 5 At 169-170, his Honour quoted with approval from the judgments of the then Senior Assessor Bignold in Henbury Pty Ltd v Parramatta City Council (Land and Environment Court, 22 March 1982, unreported) and St George Building Society v Manly Municipal Council (1982) 3 APA 370. 6 In the latter case, the senior assessor said at 387: "… the power conferred by s 94(1) is subject to a number of express legal constraints which do not on their face similarly circumscribe the power conferred by s 91, for example, (i) the necessity for the forming of the requisite opinion of the development will or is likely to require the provision of or increases the demand for public amenities and public services within the area - subsection (1); and (ii) the requirements that an environmental planning instrument identify such likely increased demand and stipulate that dedication or contribution may be required - subsection (2)." 7 The senior assessor went beyond the terms of s94 itself, which refers only to dedication of land or monetary contribution, to encompass matters to similar effect, when he said: "… the power to impose a condition of the type referred to in s 94(1) or having the legal effect of such a condition is not independently authorised by s 91 (apart from subsection 3(h) which indirectly invokes s 94). The appellant's suggested construction overcomes anomalies which may otherwise arise where a consent authority, though unable to satisfy the conditions precedent for the proper exercise of the power conferred by s 94, seeks to achieve the same result by recourse to the apparently less circumscribed powers conferred by s 91. The harmonisation of the relationship between the powers respectively conferred by ss 91 and 94 would be threatened if undue emphasis is given to the form or terms of a condition as opposed to its legal effect or substance. Thus it would be an odd (or potentially unjust) result if a condition such as the disputed condition in these proceedings which impractically effect achieves the setting aside of part of the redevelopment site as an arcade, providing permanent public access (whether during the life of the building or beyond its life) could be imposed pursuant to s 91 merely because it was held not to be a condition 'requiring the dedication of land free of cost' and therefore, not a condition exclusively authorised by s 94." (emphasis added) 8 In Fitch, Stein J said at 170.4: "I think Bignold J's interpretation in St George and Henbury is the correct one and I adopt it. It is difficult to know why subs 3(h) of s 91 is present if it was not the intention of the Parliament that dedication of land free of cost under the Environmental Planning and Assessment Act must satisfy the criteria set forth in s 94. Section 91(3)(h) does not merely permit the lawful imposition of a condition under s 94, it points to s 94 as the exclusive source of power for contributions or dedications for public amenities. It consciously provides for special (and additional) requirements for the validity of such conditions over and above those applicable to conditions under s 91 (other than, of course subs 3(h)). If a council could require (by condition) a dedication of land under s 91 an alternative to s 94 it would lead to the special requirements of s 94 to be circumvented. Section 94 would tend to be avoided if a council was unable to comply with it but could satisfy the Newbury tests [ Newbury District Council v Secretary of State for the Environment (1981) AC 578] alone (under s 91)." 9 The relevant relationship for present purposes is between the s94 zone of exclusivity and the imposition of a condition pursuant to s91(f) requiring the carrying out of works. In the present case, the works required by condition, at least in part, constitute a public amenity in the form of the construction of half the width of a future public road for the length of the development, which length extends beyond that required for the access points to the development. 10 In the present case, the Respondent was, pursuant to Condition 12, required to dedicate part of its land, referred to as Lot 3, as a public road. However, that land was transferred to the Council and paid for by the Council. No challenge is made to that condition. The road was to be constructed in part on Lot 3, which had been owned by the Respondent, and in part on Lot 2, which at all material times was owned by the Council. It was the requirement for construction of the road found in Conditions 13 and 14, set out in the judgment of Cripps AJA, to which objection has been taken in these proceedings. 11 If the reasoning of Senior Assessor Bignold in St George Building Society supra, (approved by Stein J), which extends the exclusive scope of s94 beyond the terms of 'dedication of land' and 'monetary contribution' is accepted, then the Respondent can succeed. 12 The relevant principle of statutory interpretation is stated in the joint judgment of Gavin Duffy CJ and Dixon J in Anthony Hordens & Sons Limited v Amalgamated Clothing & Allied Trades Union of Australia (1932) 47 CLR 1 at 7, where their Honours said: "When the legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which may otherwise have been relied upon for the same power." 13 This passage has been frequently applied. See e.g. John v Commissioner of Taxation (Cth) (1989) 166 CLR 417 at 434; Saraswati v The Queen (1991) 172 CLR 1 at 23-24; Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672 at 678; David Grant and Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265 at 276; Downey v Trans Waste Pty Ltd (1991) 172 CLR 167 at 171-172; Switz Pty Ltd v Glowbind Pty Ltd (2000) 48 NSWLR 661 at [72]-[73]. 14 To similar effect are the observations of Dixon J in R v Wallis; Ex parte Employers Association of Wool Selling Brokers & H C McKay Massey Harris Pty Ltd (1949) 78 CLR 529 at 550 where his Honour said: "… an enactment in affirmative words appointing a course to be followed usually may be understood as importing a negative, namely, that the same matter is not to be done according to some other course. This applies especially when the power or duty affirmatively conferred or imposed is qualified by some condition, limitation or direction." 15 This passage has also been frequently applied. See e.g. PMT & Partners (In liq) v Australian National Parks & Wildlife Service (1995) 184 CLR 301 at 322; Saraswati v The Queen supra at 23; ABB Power Plants Limited v Electricity Commission (NSW) (t/as Pacific Power) (1995) 35 NSWLR 596 at 599 and 601; Re Wilcox; Ex parte Venture Industries Pty Ltd (1996) 66 FCR 511 at 527; Switz Pty Ltd v Glowbind Pty Ltd supra at [69]-[70]. 16 This principle of statutory interpretation has also been applied in a constitutional context. A summary of that case law is found in the six judge joint judgment of the High Court in Nintendo Co Ltd v Centronic Systems Pty Ltd (1994) 181 CLR 134 at 160 where, with respect to the acquisitions power in the Commonwealth Constitution, the Court said: "It is well settled that s. 51(xxxi)'s indirect operation to reduce the content of other grants of legislative power is through the medium of a rule of construction, namely that "it is in accordance with the soundest principles of interpretation to treat" the conferral of "an express power, subject to a safeguard, restriction or qualification, to legislate on a particular subject or to a particular effect" as inconsistent with "any construction of other powers conferred in the context which would mean that they included the same subject or produce the same effect and so authorise the same kind of legislation but without the safeguard restriction or qualification" [ Attorney General (Commonwealth) v Schmidt (1961) 105 CLR 361 at 371-372 per Dixon CJ]. 17 Their Honours went on to note in a passage which, in my opinion, offers a pertinent analogy in the present context. At 161: "The cases also establish that a law which is not directed towards the acquisition of property as such but which is concerned with the adjustment of the competing rights, claims or obligations of persons in a particular relationship or area of activity is unlikely to be susceptible of legitimate characterization as a law with respect to the acquisition of property for the purposes of s. 51 of the Constitution." 18 Issues of characterisation also arise in the present case. The Appellant's submissions did not suggest that, as a matter of substance, the conditions should be characterised as conditions for the "dedication of land free of cost", nor as "the payment of a monetary contribution". The submissions focused on the introductory words of s94(1) suggesting that what was involved, as a matter of substance, was provision for a public amenity i.e. a public road. 19 The relevant condition, restriction or qualification of the power in s94 could be the necessity for the Council to form a specific opinion about the effect of the development on the demand for public amenities, the restriction of "reasonableness" in s94(2) or the requirement that there be in existence a contributions plan under s94AB. That section makes provision for a draft contributions plan to be publicly exhibited in accordance with a prescribed format, structure, subject matter and procedure. 20 In St George Building Society supra, as quoted above, Senior Assessor Bignold did extend the exclusive power found in s94 beyond conditions which, in terms, required dedication of land free of cost or the payment of a monetary contribution. Although expressing agreement with those reasons, I do not understand Stein J to have done so in Fitch. His Honour expressly referred to s94 as the "exclusive source of power for contributions or dedications for public amenities." (170.5, emphasis added). 21 Fitch involved an express condition for dedication of land. In my opinion Stein J was correct to apply the principle of statutory construction to which I have referred to such a case. 22 The qualifications and restrictions found in s94, notably the 'reasonableness' restriction in s94(2) and the public requirements for the promulgation of a contributions plan, do lead to the conclusion that s94 is the exclusive power for conditions of the character specifically identified in s94 i.e. dedication of land or monetary contributions. To go beyond these express conditions and extend the exclusive nature of the power to conditions which may, in some way, be the commercial equivalent of a dedication of land, or the payment of a contribution, in my opinion, goes too far. 23 Section 91(3)(f), in terms, permits a condition for the "carrying out of works". The works must be related to matters referred to in s90(1). Although s90 contained a wide range of relevant considerations, this restriction, as Cripps AJA points out, is a significant restriction. No doubt, if a particular work, required to be carried out pursuant to such a condition, can be characterised primarily as the provision of a public amenity, then its connection with the development may not be regarded to be sufficiently close. However, that arises by reason of the proper construction of s91(3)(f), not by reason of the exclusion from the scope of s91(3)(f) of conditions falling within, or capable of falling within, s94. 24 There is, in my opinion, no warrant for reading down the reference to "works" in s91(3)(f) by giving the exclusive operation of s94 extended scope. Section 91(3)(a) and (f) relevantly provide: "A condition may be imposed for the purposes of subsection (1) if it: (a) relates to any matter referred to in section 90(1) of relevance for the development the subject of the consent, … (f) requires the carrying out of works (whether or not being works on land to which the application relates) relating to any matter referred to in section 90(1) applicable to the development the subject of the consent." 25 A condition requiring works to be done would probably have fallen within the general scope of s91(3)(a). However, the Parliament went on to put the issue beyond doubt by conferring an explicit power, in much the same terms as that paragraph in s91(3)(f), extending to the provision of works. Where the Parliament has been as specific as this, this Court should be slow to read down the general words used by a process of implication. 26 An obligation to carry out works will, no doubt, usually be commercially equivalent to a 'monetary contribution' which enables a council to carry out the works itself. These may be circumstances where, as a matter of statutory construction, the court will conclude that what cannot be done directly, cannot be done indirectly. (See e.g. F. Bennion Statutory Interpretation (4th ed) Butterworths, London 2002 pp879-880). However, that must turn on the statute. As shown by the overlap between pars 91(3)(a) and (f), s91(3) does not contain mutually exclusive categories. The express reference to s94, in par 91(3)(h) does not give rise to any implication that the general works in s91(3)(f) should be read down by reason of s94 as picked up in s91(3)(h). Each can be given full scope in accordance with their terms. 27 The general provisions of s90(1), as they then existed, and to which a condition for the carrying out of works under s91(3)(f) may attach are, in the words I have previously quoted from Nintendo above, "concerned with the adjustment of the competing rights, claims or obligations of persons in a particular relationship or area of activity". A valid condition with respect to s90(1) considerations is, accordingly, unlikely to be characterised as a condition for the dedication of land free of cost or the payment of a monetary contribution "for the provision, extension or augmentation of … public amenities and public services" referred to in s94(2)(b). The conditions imposed here cannot, in my opinion, be so characterised. 28 Although the submissions in this Court and below did not pose the issue in quite this way, the Respondent could argue an exclusive scope for s94 based on the introductory words of s94(1) that: " … where a consent authority is satisfied that a development, the subject of a development application, will or is likely to require the provision of or increase the demand or public amenities and public services within the area …" 29 The submission would have to be that wherever a consent authority reached this state of satisfaction, it could impose a condition of one of the two types identified - dedication of land or monetary contribution - and no other kind of condition. It is unnecessary to express a final opinion on this matter. It was not established in the present case that the Council did in fact reach, or should be taken to have reached, the requisite state of satisfaction. 30 There was evidence that Council had a long term plan for the extension of Canley Vale Road at the particular location in issue. Condition 12 requiring the dedication of Lot 3 (impliedly, as occurred, with payment by the Council) and the terms of Conditions 13 and 14 can be understood as implementing this long term plan. However, the long term proposal does not equate to the state of satisfaction referred to in the introductory words of s94(1), i.e. that the development may require the provision or augmentation of a public amenity. 31 This matter turns on an issue of fact. Was the Council satisfied that the development required provision or augmentation of a public road? Alternatively, on the facts of the case, did the Council conclude that proper access to the site required works which could be constructed in such a way as to conform with its long term plan, whilst not losing their character as a valid condition. The finding of fact in this regard, although not directed to the legal point now under consideration, was adverse to the Respondent. 32 As Cripps AJA notes, Cowdroy J found the condition to be a reasonable one. His Honour would uphold the first instance finding in this regard. After some hesitation, I have come to the same conclusion. 33 The particular terms of the condition were determined in large measure by what was regarded as appropriate for a future public road. The 6.5 metre width of the carriageway was apparently decided upon as constituting half the desirable width of the ultimate extension of Canley Vale Road. The additional one metre of width proposed by the Respondent, was in the event paid for by the Council. The approach, originally found in IDO 10, that a land owner should build half the future public road along the length of its development, no doubt had in mind the future possibility that development on the other side of the proposed public road could one day lead to the owner of that land paying for the other half of the carriageway. Eventually, the Council would have a full road. 34 Although the particular terms of the condition appear to have been determined in large measure by this plan for the future, in the circumstances of the present case, a road for a major part of the length of the development would, in any event, have been required in order to permit access to the property. 35 It is the case that access to the site could have been obtained at another point of the property, particularly if that part referred to as Lot 2 had not been transferred to the Council and dedicated as a public road. Nevertheless, as shown by the developer's own suggestion for widening the carriageway to 7.5 metres, there were benefits to the development from the construction of the carriageway. The points of access to and from the development, in accordance with the access which Council was prepared to approve, were such that the requirement to build a road somewhat beyond the point at which access was in fact to occur, was not, in my opinion, such as to characterise the condition as other than a proper one, in accordance with the tests applied by Cowdroy J and referred to by Cripps AJA. 36 I am reinforced in his conclusion by the terms of the approval itself. Conditions 12, 13 and 14 in the Council's Notice of Determination appear under a subheading "Works on Adjacent Roads". All the following conditions, including those in dispute, are introduced by the following sentence: "The following conditions have been applied to ensure that adequate and safe public access is provided to the site for both pedestrian and vehicular traffic". (Emphasis added) 37 This asserted link between Conditions 13 and 14 and the site was not shown to be wrong. It was, in my opinion, open to Cowdroy J to conclude that the conditions could be imposed. 38 For these additional reasons I agree with the orders proposed by Cripps AJA.

39 SANTOW JA: I have had the advantage of reading the judgments of Spigelman CJ and Cripps AJA in draft. I agree with the orders proposed and the reasons of each. I wish to add observations on only one matter. 40 In dealing with the Development Consent, Cripps AJA observes: "the development application was granted subject to 48 conditions. In it the Council identified an increased demand for public amenities or public services as a consequence of the proposed development and levied a monetary contribution in accordance with s94 of the Act conformably with contribution plans made pursuant to s94AB. As I have said the Council did not have a contribution plan made pursuant to s94AB with respect to the extensions proposed for Canley Vale Road and it is not disputed by the Council that if s94 is the exclusive provision under which it was entitled to impose conditions 13 and 14 it had done so without having in place an appropriate contributions plan." 41 As the terms of the Development Consent make clear, it covers a series of works, grouped under separate headings with the applicable conditions for that group. Thus the Canley Vale Road extensions, and the conditions pertaining to them are dealt with under a separate heading "Works on Adjacent Roads". Earlier other quite distinct works also comprised in the development are dealt with. They are grouped under the separate heading "Contributions" along with the conditions pertaining thereto. For those distinct works, that signals the intended application of s94 of the Environment Planning and Assessment Act 1979 (NSW) ("the Act"), with its requirement under s94(7), for a contribution plan. This is in contrast to the Canley Vale Road extensions where there is no indication that s94 is the basis for the application of the conditions pertaining to them. 42 It is only in relation to the earlier works grouped under the heading "Contributions", that any reference is made to Council having "identified an increased demand for public amenities or public services as a consequence of the proposed development". This is a clear reference to the pre-condition for exercising the power conferred by s94(1) of the Act; namely Council satisfaction as to that matter. If that pre-condition is satisfied the Council as the consent authority may grant consent subject to a condition requiring: "(a) the dedication of land free of cost, or (b) the payment of a monetary contribution or both".

Still under "Contributions", the Development Consent then makes reference to " Contributions levied in accordance with the s94 contributions plans listed below … ". None were in fact listed. 43 In clear contrast, the Council, when it later in the Development Consent came to dealing with the Canley Vale Road extension works, did not purport to grant its approval pursuant to s94 of the Act. There is thus no corresponding reference in relation to those road works to "an increased demand for public amenities or public services as a consequence of the proposed development". There would be no basis for contending that the Council as Consent Authority, had in relation to these works reached the state of satisfaction based on the introductory words of s94(1) of the Act. 44 IDO 10 may have been the, or a, source of authority relied on by the council for the conditions imposed. However, s91(3)(f) of the Act is also available. It provides that: "(f) … the carrying out of works (whether or not being works on land to which the application relates) relating to any matter referred to in section 90(1) applicable to the development the subject of the consent," 45 When one turns to the terms of the actual conditions as applicable to the Canley Vale Road extension works, there is an opening reference to the condition being "to ensure adequate and safe public access" for both pedestrian and vehicular traffic. That demonstrates the connection between the conditions being imposed under s91(3)(f) of the Act and the following matters referred to in s90(1), namely: "(d) the social effect and the economic effect of that development in the locality, …

(i) whether the proposed means of entrance to and exit from that development and the land to which that development application relates are adequate and whether adequate provision has been made for the loading, unloading, manoeuvring and parking of vehicles within that development or on that land, (j) the amount of traffic likely to be generated by the development, particularly in relation to the capacity of the road system in the locality and the probable effect of that traffic on the movement of traffic on that road system,

and more generally (o): (o) the existing and likely future amenity of the neighbourhood," 46 I am of the view that the proper construction of ss91 and 94 is as set out by Spigelman CJ and Cripps AJA namely that s94's exclusive zone is strictly limited to a condition requiring either or both of a dedication of land free of cost and the payment of a monetary contribution. Neither apply here. The statue does not embody any doctrine of economic equivalence, even if it could be said that the carrying out of work were equivalent to the foregoing. I also agree that there is nothing to preclude application of s91 of the Act as a sufficient basis for imposing the relevant conditions 13 and 14. 47 CRIPPS AJA: This is an appeal from a decision of Cowdroy J in the Class 4 Jurisdiction of the Land and Environment Court published on 8 May 2002 declaring that Conditions 13 & 14 of a development consent granted by the Fairfield City Council (the Council) on 12 September 1997 were invalid together with a consequential declaration that N & S Olivieri Pty Ltd (Olivieri) was entitled to an award of damages in consequence of it complying with the invalid conditions to be assessed by the Land and Environment Court. 48 The Council seeks orders from this Court that the appeal be allowed, that the declarations and orders of the Land and Environment Court be set aside and in lieu thereof an order that the application of Olivieri be dismissed and that it pay the Council's costs of the hearing in the Land and Environment Court and of this appeal.

49 At all material times Olivieri was the owner of Lot 1 DP517938, 1195B Horsley Drive, Wetherill Park. The land, the subject of the development application lodged on 12 June 1997, was part of Lot 1 and was referred to as Block 1. Permission was sought by Oliveri to erect a factory on Block 1 having a floor area of 1500 square metres. Block 1 is identified as the shaded area in the northern part of Lot 1. What was shaded has a 55 metre frontage to the proposed extension of Canley Vale Road. 50 In June 1997 Lot 1 extended from its present northern boundary approximately 240 metres to where it joins Horsley Drive. Since June 1997 Lot 1 has been further subdivided in circumstances of no relevance to the present proceedings. 51 For many years the Council had identified land to the east of Lot 1 for the future extension of Canley Vale Road to join Horsley Drive. Part of the land identified was owned by Olivieri (being Lot 2 DP517138) and part by the Council (being Lot 3 DP264310). The distance from the southern border of Block 1 to Horsley Drive is approximately 185 metres. 52 The Environmental Planning and Assessment Act 1979 ("the Act") as it stood in 1997 relevantly provided that consent authorities, when assessing development applications, should take into consideration certain matters of relevance to the development listed in s90. Apart from being obliged to take into account provisions of planning instruments, draft planning instruments, development control plans etc the section listed twenty six separate matters for consideration. These included means of entrance to and exit from the development, the amount of traffic likely to be generated by the development, the circumstances of the case, the public interest etc. 53 S91 of the legislation relevantly provided: (1) A development application shall be determined by (a)The granting of consent to that application either unconditional or subject to conditions, or … (b) …

(3 A condition may be imposed for the purposes of subsection 1(1) if it:

(a) relates to any matter referred to in s90(1) of relevance to the development the subject of the consent. (b) …

(f) requires the carrying out of works (whether or not the works on the land to which the application relates) relating to any matter referred to in s90(1) applicable to the development the subject of the consent.

(g) .. (h) Is authorised to be imposed under s91AA, 91AB or 94.". 54 S94 relevantly provided: "(1). Subject to subsection (2) where a consent authority is satisfied that the development, the subject of the development application, will or is likely to require the provision of or increase the demand for public amenities and services within the area, the consent authority may grant consent to that application subject to a condition requiring:

(b) The payment of a monetary contribution, or both (2). A condition required in subsection (1) shall be imposed only (a)…. (b) to require the reasonable dedication or contribution for the provision, extension or augmentation of the public amenities or public services mentioned in that subsection. (7) When granting consent to a development application on after 1 July 1993 a council may impose a condition referred to in this section only if it is of the kind allowed by, and is determined in accordance with a contributions plan approved under s94AB." 55 I do not propose to set out the provisions of s94AB because it is common ground the Council had no contributions plan with respect to the provision of roads (not, at least, with respect to the proposed extension of Canley Vale Road.) 56 For at least 15 years before its repeal in 1994 planning in the subject area was controlled by Interim Development Order 10. IDO 10 provided, amongst other things, that developers seeking to develop land for industrial purposes in the industrial area were required, with respect to proposed extensions to Canley Vale Road to construct "a 6.5 metre width of pavement including curb and gutter". 57 The Environmental Planning and Assessment Act 1979 as it stood when originally enacted provided that the dedication of land free of cost or the payment of monetary contributions for the increase or likely increase in the need for public amenities and public services generated by a development could only be imposed if the environmental planning instrument identified the likely increased demand for public amenities and public services and that the dedication of land or monetary contributions had to be reasonable in the circumstances. 58 It appeared to be accepted that until 1999 the Council and Oliveri mistakenly believed IDO 10 regulated development on the subject land. It should be noted, however, that no case was sought to be made before Cowdroy J or in this Court that the Council's planning discretion miscarried because the application was assessed in the context of a planning instrument not legally operative at the relevant time. 59 Olivieri, relies on the provisions of IDO 10 and s94 as originally enacted in support of his submission that the Council, when it assessed the development application, must have held the opinion that the development was or was likely to require the provision of/or increase the demand for a public amenity viz the extension of Canley Vale Road and also as relevant to the discretion of the Court to afford Olivieri a remedy assuming it made out its case that the conditions attached to the development consent were invalid.

THE DEVELOPMENT CONSENT 60 The development application was granted subject to 48 conditions. In it the Council identified an increased demand for public amenities or public services as a consequence of the proposed development and levied a monetary contribution in accordance with s94 of the Act conformably with contribution plans made pursuant to s94AB. As I have said the Council did not have a contribution plan made pursuant to s94AB with respect to the extensions proposed for Canley Vale Road and it is not disputed by the Council that if s94 is the exclusive provision under which it was entitled to impose Conditions 13 and 14 it had done so without having in place an appropriate contributions plan. 61 Of relevance to this litigation the development consent provided:

"The following conditions have been applied to ensure that adequate and safe public access is provided to the site for both pedestrian and vehicular traffic. 9. All works to be carried out on adjacent land under the control of the Council … 10 … 11 … 12. Lot 3 DP264310 shall be dedicated as a public road prior to the release of the building permit for this development. 13 The applicant is to obtain the right to construct road works on adjoining Lot 2 DP517138 . The applicant is to provide evidence of the permanent nature of this agreement prior to any release of any building permit. 14. The construction of curb and gutter, footpath formation and 6.5 metres of carriageway including draining works for the full frontage of the development to the proposed Canley Vale Road frontage to a standard appropriate to the industrial area, i.e. pavement for a heavy wheel loading. Such works shall be completed in accordance with plans approved by Council. Where investigation reveals that unsatisfactory circumstances may be created by such conditions, satisfactory arrangements shall be made with the Council, guarantying the construction." (underlining mine) 62 Although Condition 12 provided for the dedication of Lot 3 as a public road the condition has not been challenged for the reason, presumably, that compensation became payable and accordingly was not viewed by the parties as a condition requiring the dedication of land free of cost. 63 Clause 13 was, in effect, a condition precedent to the carrying out of work referred to in clause 14. 64 As I have said under IDO 10 a developer in a position of Olivieri would have been obliged to have constructed a 6.5 metre width of paving including kerb and gutter. Condition 14 obliged Olivieri to construct curb and gutter, footpath formation and 6.5 metres of carriageway. 65 The frontage of the shaded area (Block 1) to the proposed extension of Canley Vale Road was approximately 55 metres. The work undertaken by Olivieri in purported compliance with clause 14 extended over a distance of approximately 110 metres. In my opinion nothing turns on this in this appeal. The proceedings before Cowdroy J were conducted upon the basis that the Council was not entitled to impose conditions 13 and 14 (particularly 14) because s 94 was the exclusive source of power to impose such a condition and there was no relevant contribution plan made pursuant to s94B. It remains unclear why the parties viewed the obligation under condition 14 as extending over a distance of 110 metres. If the land the subject of the application was Block 1 Olivieri accepted an obligation to construct 55 metres of carriageway south of Block 1 which, at the time, then came to a dead end about 130 metres from Horsley Drive. 66 There had been discussions between Olivieri and the Council concerning the further extension of Canley Vale Road and, in particular, the additional 130 metres referred to above. The circumstances of these negotiations do not concern this appeal but may help to explain why "the full frontage of the development" was accepted to extend for 110 metres. I note that after the plans for the construction of 110 metres of carriageway had been approved on 3 August 1998 Olivieri and the Council agreed that the construction would be 7.5 metres wide (in lieu of 6.5 referred to in clause 14) provided the Council met the additional cost, which it did. In these circumstances I do not think this Court should further explore why the parties were of the opinion that the words "the full frontage of the development" in clause 14 extended over a period of 110 metres. I am aware there is a secondary submission advanced by Olivieri but rejected by Cowdroy J that condition 14 was relevantly not connected to the development and if it was it was relevantly unreasonable. But that submission was based upon the assumption that the extension of Canley Vale Road to the "full frontage of the development" was wholly for the benefit of the motoring public and had no connection to the application before the Council. 67 The work undertaken by the development in purported compliance with condition 14 included the construction of an area of 23 metres being the entry to and exit from the subject site together with a centre island. As I have said the developer also constructed width of carriageway of 7.5 metres after agreeing with the Council it would pay the costs of the additional metre. 68 Olivieri commenced subject proceedings in August 2001. By that time the subject land had been developed, Condition 14 had been complied with and the carriageway widened to 7.5 metres. Cowdroy J accepted that Olivieri only became aware that IDO 10 had been repealed in 1994 sometime during 1999. 69 Olivieri has submitted that the carriageway required by condition 14 to be undertaken was relevantly a public amenity and that consequently a condition with respect to its construction could only be imposed if authorised by s94 and it was not open to the Council to impose any conditions relating to the construction because by reason of s94(7) and the lack of a contribution plan. 70 I have already referred to the circumstance that condition 14 as understood by both parties required not only the construction of the carriageway but also substantial work with respect to the entry to and exit from the subject site. The condition was imposed because the Council held the opinion that condition 14 was necessary to ensure "adequate and safe public access" for both pedestrian and vehicular traffic. Nonetheless Mr Galasso for Olivieri has submitted that the whole of condition 14 was unauthorised even so much of it as required the construction of adequate entry to and exit from the land the subject of the application. 71 Notwithstanding Mr Galasso's submission to the contrary Cowdroy J, in my opinion, was plainly correct in determining condition 14 was relevantly connected to the development and was reasonable in all the circumstances or, at the very least, the contrary was not established. As I have said the parties presented their cases on the basis that 110 metres was the "full frontage of the development" and the essence of Olivieri's attack was that the condition could not be imposed otherwise than as authorised by s94. 72 On behalf of the Council it has been submitted that it was entitled to impose Conditions 13 and 14 by reason of ss91(3)(a) or 91(3)(f). It does not dispute that in order to require a dedication of land free of cost or a contribution of money it must form an opinion concerning the likelihood that the development would increase the demand for that public amenity, that the condition should be reasonable and that it could not be imposed in the absence of a contribution plan. It submits, however, that provided a condition is for a planning purpose, has a relevant nexus to the development the subject of the application and is reasonable in the circumstances it may impose a condition requiring a developer to undertake work off site. 73 In Fitch v Shoalhaven City Council (1977) 67 LGRA 165 Stein J (as he then was) held that s 94 was the exclusive source of power under the Environmental Planning and Assessment Act 1979 for a council to impose as a condition of development consent a requirement that land be dedicated free of cost (or require a monetary contribution) and that a condition purporting to require dedication free of cost (or a monetary contribution) independently of s94 was not authorised in law. In my respectful opinion Stein J's conclusion was correct. 74 Stein J adopted the reasoning of Senior Assessor Bignold (as his Honour then was) in Henbury Pty Ltd v Parramatta City Council (Land and Environment Court, 22 March 1982, unreported) and St George Building Society v Manly Municipal Council (1982) 3 APA 370. 75 In Fitch the Court was concerned with a condition requiring a dedication of land free of cost. In Henbury the Court considered the validity of a condition requiring a dedication of land free of cost. In St George Senior Assessor Bignold was concerned with a condition which he held to be relevantly a condition requiring the dedication of land free of cost. He said: "The Court is of the opinion that the appellant's suggested construction of s91 and s94 is correct in that the power to impose a condition of the type referred to in s94(1) or having the legal affect of such a condition is not independently authorised by s91 (apart from subsection 3(h)) which indirectly invokes s94". 76 I do not read the decision of Stein J denying a Council the power to impose as a condition of consent that a developer undertake work off site at its own expense for the reason that the work might or would benefit the public. 77 In my opinion s94 only restrains the power of councils to impose conditions requiring the dedication of land free of cost or a monetary contribution. In my opinion it has no application to a condition requiring a developer to undertake work at its own expense (although, of course, such a condition to be attached would have to be relevantly connected to the development and not unreasonable in the relevant sense). 78 In the present case I am prepared to assume that although the Council expressed no opinion about the matter it nonetheless held the view that the carriageway it required Olivieri to construct would, in due course, be used by members of the public and be of benefit to those users. 79 The learned trial judge gave no reason why ss91(3)(a) or 91(3)(f) were not, in the circumstance of the case, sources of power entitling the Council to impose condition 14. It appears to have been assumed by His Honour that if it be established that compliance with a condition imposed by Council would have the consequence that the public would benefit from it then such a condition cannot be imposed otherwise than pursuant to s94. But that, in my opinion, that is not what the legislation says. The limitations on council's power to impose conditions relevantly connected to the development and reasonable in all the circumstance is limited by operation of s94 to those conditions where the Council requires as a condition of consent dedication of land free of cost or a monetary contribution or both. 80 Mr McEwen SC has referred to difficulties facing local councils if Cowdroy J's judgment remains the law. It is unnecessary for me to consider these submissions further because, as I have said, I am of the opinion the learned trial judge erred in law. Mr Galasso has submitted that if his interpretation of the law is rejected councils may seek to subvert the evident intent of s94 by requiring developers, at their own expense, to do work in circumstances where a monetary contribution could not be required as a condition of consent because of the absence of a contribution plan. If that is a problem of the dimension suggested, it is open to the legislation to attend to the matter. However I note that councils can only attach conditions of consent if those conditions serve a planning purpose, are relevantly connected to the development the subject of the application and are reasonable in the circumstances. Conditions not meeting these requirement are, in law, not authorised. Moreover it must be remembered that the legislation allows a developer to appeal to the Land and Environment Court against the imposition of a condition and the appeal is, in effect, an application for development consent and heard de novo. 81 In view of the conclusions I have reached it is unnecessary for me to consider whether, assuming Condition 14 was not authorised in law the learned trial judge erred in making the declarations in the exercise of discretion. Cowdroy J appeared to accept the proposition that what has been described as "the benefit and burden doctrine" referred to in Meagher, Gummow and Lehane 3rd edition paragraph 4330 had general application in the administration of planning law, but that, in the present case, it should not be applied because Olivieri was unaware of the lack of power of the Council to impose the condition the subject of challenge after the work had been carried out. 82 There was some debate before this Court concerning the application of the equitable "the benefit/burden" doctrine referred to in Meagher Gummow and Lehane. The doctrine was referred to by Bignold J in Progress and Securities Pty Ltd v North Sydney Municipal Council (1988) 66 LGRA 236. It should be noted, however, that although some support is given by Bignold J to the application of the doctrine His Honour quoted, with approval, the warning by Lord Scarman in Pioneer Aggregates (UK) Ltd v the Secretary of State for the Environment (1985) AC 132 that town planning legislation is: "a field of law in which the Court should not introduce principles or rules derived from private law unless, it be expressly authorised by parliament or necessary to give effect to the purpose of the legislation'. 83 Contrary to what is stated in the headnote I do not read Bignold J's decision as refusing to follow the observations of Lord Scarman. But however that may be it is, in my opinion one thing to assert that a party who has accepted the benefit of a transaction must also accept its burden, it is quite another to conclude that a condition not authorised by law cannot be challenged if the development has been carried out. The discretion of the Court derives from the Act and cognate legislation and not from equitable doctrines. In planning law there is an evident practical difficulty in attempting to apply the "benefit/burden" doctrine as, for example, where a third party challenges the validity of a development consent which may have been imposed without lawful entitlement consequent of an arrangement being entered into between a developer and a council. 84 I would not like my remarks to be read as meaning that delay in commencing proceedings cannot be relevant to the exercise of the Court's discretion or that a Court cannot have regard to the circumstance that a challenge to a development consent is not made until after the development is carried out. 85 With respect to the learned trial judge I would have thought that, if an invalidity were established, relevant to the exercise of the Court's discretion would be the circumstance that Olivieri did not commence proceedings in the Class 4 jurisdiction of the Court until August 2001 and after all the work had been undertaken including the additional requested by Council. Olivieri said that it did not become aware until 1999 that IDO 10 no longer regulated development. But the fact remains that it waited two years before commencing proceedings and as I have mentioned earlier, Condition 14 and the provisions of IDO 10 were not the same. Moreover if Condition 14 was not authorised in law and proceedings had been taken before the development was carried out the consent would, almost certainly, have fallen with the impugned condition bearing in mind the purposes stated by the Council for the imposition of condition 14. A condition requiring safe access to and from the development was, in my opinion, self evidently a reasonable (if not necessary) condition of consent. If the Council had no power to impose such condition why, it might be asked rhetorically, would a Court assume that the Council would use its own funds to effect that purpose. 86 However all that may be Olivieri has failed to establish that condition 13 and 14 lack legal authority and hence the question as to the exercise as to the trial judge's exercise of discretion does not arise in this Court. 87 In my opinion the appeal should be upheld. The declarations made by Cowdroy J should be set aside and in lieu thereof an order that: i. The application be dismissed. ii. The applicant Olivieri to pay the Council's costs in the Land and Environment Court and of the appeal to this Court.

Last Modified: 03/17/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

Environment Planning and Assessment Act 1979(NSW)

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (21 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (21)

Cited By (42)