Farah v Warringah Council & Others

Development Application :- whether consent of owner of other land required.

Development Application:- identification of land to which the proposed development relates.

Development Consent:- whether authorises work on other land. KEY ISSUES: Procedural Fairness:- whether objectors afforded proper opportunity to be heard.

Development Consent:- whether determination of application final where deferred commencement conditions are imposed.

Deferred Commencement Consent:- whether determination final.

Environmental Planning and Assessment Act 1979 s 79C, LEGISLATION CITED: Environmental Planning and Assessment Regulation 2000 cl 49, cl 50(1)(a). cl 1(i) of Pt 1, Sch 1 Real Property Act 1900

Cameron v Nambucca Shire Council (1997) 95 LGERA 268 ; Currey v Sutherland Shire Council and Others (1998) 100 LGERA 365; Hillpalm Pty Limited v Tweed Shire Council [2002] NSWCA 322, unreported; Hillpalm Pty Limited v Tweed Shire Council and Another (2002) 119 LGERA 86; CASES CITED: Huntington & MacGillivray v Hurstville City Council & Others [2004] NSWLEC 694, unreported; Kioa and Others v West and Another (1985) 159 CLR 550 ; North Sydney Council v Ligon 302 Pty Limited (1996) 185 CLR 470; Remath Investments No. 6 Pty Ltd v Botany Bay City Council (No.2) (unreported No. 10649 of 1996, 11 December 1996) ; Twist v The Council of the Municipality of Randwick (1976) 136 CLR 106 ; Weal v Bathurst City Council (2000) 111 LGERA 181

APPLICANT Mr P J McEwen SC with Mr M D Seymour (Barrister) SOLICITORS Elias Gates & Associates

FIRST RESPONDENT Mr A E Galasso (Barrister) SOLICITORS LEGAL REPRESENTATIVES: Wilshire Webb

SECOND RESPONDENT Mr P C Tomasetti (Barrister) SOLICITORS Henry Davis York

THIRD RESPONDENT Submitting Appearance

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

41107 of 2005 Farah v Warringah Council and Others JUDGMENT 1 Talbot J: These proceedings are instituted as a challenge to a deferred commencement development consent granted to KSSLZ#13 Pty Limited ("the second respondent") by Warringah Council ("the first respondent") in respect of the proposed development of a child care centre at 723 Warringah Road, Forestville ("the subject land") owned by John Ward and Mary Ward ("the third respondents.") The third respondents have made a submitting appearance. 2 The subject land is a battle axe block comprising Lot 3 in Deposited Plan 25050. The applicants' land was previously Lot 4 in DP 25050 but has been re subdivided into Lots 401 and 402 in DP 776120. The access to Lot 401 and 402 is along the handle of a battle axe leading from Warringah Road. The titles to Lot 401 and 402 respectively have the benefit of and bear the burden of a right of carriageway along the access handle to facilitate a shared access to Warringah Road. Mutual rights of carriageway also exist over the accessways to Lots 3 and the former Lot 4 with the consequence that the proposed access for the child care centre will be over that part of Lot 3 the subject of the right of carriageway in favour of Lots 401 and 402 and over those parts of Lots 401 and 402 the subject of the right of carriageway in favour of Lot 3.

3 Anwar Farah and Susan Farah ("the applicants") allege that the development application for the child care centre and the development consent granted by the council necessitated the use of the applicants' land and in particular the use of the driveway on the applicants' land for the purpose of access to the third respondents' land. The use of the applicants' land is alleged to have the following consequences:-

1. A change of use of the applicants' land requiring development consent.
2. In the absence of the consent of the applicants, as owners of Lots 401 and 402, the development application was made contrary to cl 1(i) in Part 1 of Schedule 1 to the Environmental Planning and Assessment Regulation 2000 ("the EPA Regulation") and that the failure to include a statement of owners' consent means that the development application was not made in accordance with cl 50(1)(a) of the EPA Regulation. 4 The Further Further Amended Points of Claim particularise the use of the applicants' land that is complained of as follows:- (i) Fundamental to the development application and development consent was the use of the driveway on the Applicant land for the purpose of access to the Respondent land. (ii) Pursuant to the Traffic Management Plan proposed for the development, and as part of the development consent, the proposed use of the Applicant land driveway, including the painting of a directional arrow and the use of a give way sign, was to create a 'swap over' effect so that the two existing driveways would in effect become a system of two one-way driveways. (iii) That the Applicant will be restrained from using the driveway on the Applicant's land for the purpose of egress. 5 A further issue is that a report prepared by a traffic consultant retained by the council was not referred to in the report prepared by officers of the council for the purposes of the council's assessment of the development application. Furthermore, the consultant's report was not referred to the Independent Hearing and Assessment Panel ("IHAP"). The alleged consequence is the absence of the consideration of the report by the council was a failure to take into account a relevant consideration under s 79C of the Environmental Planning and Assessment Act 1979 ("the EPA Act"). Moreover, the failure of the council to advertise or notify the applicants of the report was a denial of procedural fairness to the applicants.

6 Furthermore, as the development consent was granted subject to a deferred commencement condition requiring that a Traffic Management Plan ("TMP") be prepared and submitted to the council; an issue of fundamental importance to the development application was not determined by the first respondent when it purported to grant development consent. 7 Moreover, in purported compliance with the deferred commencement condition the second respondent lodged additional material, including the TMP, in response to the deferred commencement condition. The applicants' complaint is that they were not notified that the TMP had been lodged and, as they were not given an opportunity to consider it, there was a further denial of procedural fairness to the applicants. The failure by the council to notify the applicants or to advertise the TMP is also claimed to be in breach of Public Exhibition and Notification Development Control Plan No. 1 ("DCP 1"). 8 It is asserted further, or in the alternative, that the proposed system of two one-way driveways involving the applicants' land is inconsistent with the registered rights of carriage and footway affecting the land of the applicants and the third respondents under the Real Property Act 1900 ("the RP Act") and accordingly the development consent was granted ultra vires the powers of the council under the EPA Act as follows:- (i) The First Respondent did not and does not have power to restrict or restrain the rights of carriage and footway appurtenant to the Applicant and Respondent land under the RP Act; (ii) The First Respondent did not and does not have power to restrain the Applicant in and about its lawful use of the Applicant's land. (iii) The First Respondent applied the wrong test or considered a wrong issue in the grant of development consent in that the First Respondent considered it was empowered under cl 32 of the LEP to avoid the effect of Registered Dealing G113984. (iv) The First Respondent failed to take into account the relevant consideration in granting development consent that such consent would purport to restrict rights of carriage and footway appurtenant to the Applicant and Respondent land. The development application 9 Documents lodged in support of the development application included a Statement of Environmental Effects ("SEE") which refers to the proposal to provide give way signs and directional arrows to direct traffic accordingly along the existing carriageway to provide vehicular access to the site. An Assessment of the Potential Traffic and Parking Impacts prepared by Traffic Environmental and Forensic Engineers Consulting ("TEF Consulting") on behalf of the second respondent and lodged in support of the development application describe the access arrangements as follows:- Access to the proposed development will be gained via the existing driveway. There is a second driveway immediately adjacent to the driveway of the proposed development. This driveway services residential dwellings at No. 721. Both properties at Nos. 721 and 723 have a Right of Way over their own driveway and the adjacent driveway belonging to the neighbouring property. There is an opportunity therefore to create a system of two one-way driveways used by both properties. A section of these combined driveways near the entries to the properties would need to be dedicated to the lane changing manoeuvres. The required length of this section was determined to be 12 metres. Appropriate signposting and linemarking would need to be provided. 10 A diagram included in the assessment demonstrates that access from Warringah Road will be along the left hand carriageway within No.s 721 (Lot 402) and 721A (Lot 401) Warringah Road and egress from the right hand carriageway within No. 723 Warringah Road. 11 The development application form dated 10 July 2003 identified land to be developed as 723 Warringah Road Forestville Lot 3 DP 25050. The Description of Proposed Work in respect of the Proposed Development was described as "Proposed Childcare Centre & associated building works." The Proposed Use was described as "Childcare Centre". The development application form indicated that Required Attachments comprised six copies of the plan for the purposes of cl 48B of the EPA Regulation.

12 Under the heading Environmental Impact the form stated that "a statement on environmental effects is attached." Other attachments were referred to as additional material requested by the consent authority and additional materials submitted by the applicant. The third respondents signed and endorsed consent to the application as the owners of the land. The processing of the development application 13 DCP 1 sets out the procedures for public exhibition and notification of development applications in the Warringah council area. A written notice of the development application was sent to adjoining property owners and occupiers including the applicants. According to the council records this notification was made under the DCP. Letters of objection were received by the council including a letter of objection from the applicants. The proposed arrangements for ingress and egress to the site were the subject of objections. 14 The Traffic and Parking Impact Assessment dated September 2003 prepared by Ray Dowsett Traffic and Transport Planning Pty Ltd was commissioned by the council to assess the traffic implications, parking and access arrangements for the proposed child care centre. Mr Dowsett, in his assessment, raised a number of issues including the potential to create a conflict at the point of vehicle cross over and reciprocal rights over the two rights of way.

15 The application was referred to a Traffic Committee meeting on 4 November 2003. The Committee raised no objections to the proposal subject to one matter not relevant for present purposes. The Committee report made no direct reference to the assessment by Ray Dowsett, although it was noted that the relevant documents for the development application had been distributed and that the council's traffic engineer, to whom the traffic assessment had been forwarded on 30 October 2003, was present.

16 The council traffic engineer reported to Rebecca Eveleigh, the development application assessment officer, following the Traffic Committee meeting and confirmed that there were no objections to the proposal on traffic grounds subject, inter alia, to the following:-

2. In order to clarify traffic movements, painted directional arrows are to be provided on the right of way at the start of the dividing kerb to designate the entry and exit driveways. A combined straight and right turn arrow should be provided immediately north of the proposed Give Way sign on the entry driveway and a straight arrow on the existing driveway adjacent to the Give Way sign. 17 Subject to some nominated conditions of consent the council Development Engineers raised no objections to the development application.

18 The development application was referred to IHAP on 28 January 2004. A report prepared by council officers for the information of IHAP noted that any works proposed within the right of way will require all owners' consent and that the deferred commencement condition will ensure that the consent shall not operate until all owners' written consent is provided.

19 IHAP noted:- The application proposes the use of the whole driveway, presumably with the removal of the median strip and some works to take place in the driveway to manage the traffic and possible conflict between pedestrians of the residences and the kindergarten, traffic for the residences in the battleaxes to the east and the increased traffic to the kindergarten site. 20 The panel disagreed with a draft from of deferred commencement conditions suggested by council and preferred the following instead:- A Deferred Commencement Consent is granted and consent shall not operate until a Traffic Management Plan dealing with the manner in which the rights of way will be used, what works should take place in the right of way for adequate access and egress to the kindergarten site, whether it is necessary to obtain owners consent from the battleaxe owners at the rear to any of the proposed works, setting out of possible pedestrian path, removal of vegetation and to what extent that removal should take place, and the Traffic Management Plan should also deal with the question of instructions to be given to parents of children at the kindergarten centre for the way in which they will access the site and egress from it and what hours that activity will take place. The Council is to be furnished with relevant documentation confirming this Traffic Management Plan and its operation and once Council is satisfied that the Traffic Management Plan will work appropriately Council will advise in writing the consent is able to operate. 21 Further submissions were made by the applicants and other objectors following the IHAP panel meeting. These were reinforced by a formal letter from the applicants' solicitors dated 4 February 2004. The principal concerns relating to the use of the access driveway were maintained. The owner of the subject land also made a representation to council regarding the use of the right of way asserting that no relevant work would be required on the right of way.

22 The development application was the subject of a resolution to grant deferred commencement consent at a meeting of council on 10 February 2004. Notice of the determination was issued on 1 March 2004. 23 Relevantly to these proceedings the following deferred commencement condition was made:-

1. CONDITIONS OF DEFERRED COMMENCEMENT REQUIRED TO BE SATISFIED PRIOR TO THE CONSENT OPERATING The Deferred Commencement Consent is granted under Section 80(3) of the Environmental Planning and Assessment Act, 1979, and consent shall not operate until the following matters have been provided (i) Traffic Management Plan dealing with; (a) the manner in which the rights of way will be used; (b) what works should take place in the right of way for adequate access and egress to the kindergarten site, including pedestrian path; (c) removal of vegetation and to what extent that removal should take place for the pathway; (d) instructions to be given to the parents of children at the kindergarten centre for the way in which they will access the site and egress from it and what hours that activity will take place. ... (iii) Owners written consent is provided for works required within the right of way. The Council is to be furnished with relevant documentation confirming the Traffic Management Plan and the design details of the works required in the right of way for access, and the acoustic treatment work on the western boundary. Council upon receipt of relevant documentation and following a review by Council that they are acceptable Council will advise in writing the consent is able to operate. 24 The following operational conditions were imposed:-
2. In order to clarify traffic movements, painted directional arrows are to be provided on the right of way at the start of the dividing kerb to designate the entry and exit driveways. A combined straight and right turn arrow should be provided immediately north of the proposed give way sign on the entry driveway and a straight arrow on the existing driveway adjacent to the give way sign. A plan detailing the proposed marking of the directional arrows must be submitted and approved prior to the issue of the Construction Certificate.
3. A suitable "Childcare Centre" sign, which is clearly visible from the proposed Give Way sign is to be provided at the end of the right of way on the subject property. A plan detailing the proposed location of the sign must be submitted and approved prior to the issue of the Construction Certificate. Response to the deferred commencement condition 25 On 7 July 2004 the second respondent provided what purported to be detailed information in response to deferred commencement conditions (i) and (iii). The response included a comprehensive traffic management arrangement and a diagrammatical representation of the arrangement showing how the "rights of way" will be used. The diagrammatical representation replicated the arrangements foreshadowed in the TEF assessment of the potential traffic and parking impacts provided with the development application.

26 The TMP identifies the works that should take place in the right of way for adequate access and egress and observed that many permutations exist for creating the traffic management arrangement and that the decision ensures its safe operation, "while at the same time has been done in such a way that NO work is required on land owned by the adjoining neighbours." It is not made entirely clear in terms how and where it will be done but the proposal includes provision for line marking and painted arrows on the driveway. 27 Further information was requested by the Development Engineers on 24 August 2004 and in response further plans and information were provided by letter dated 10 September 2004.

28 On 25 November 2004 the council advised the second respondent that it raised no objection to the details provided in relation to the submitted TMP and considered that Part A(i) of the deferred commencement consent No. 2003/0909DA had been satisfied subject to the following being provided:- "The proposed pedestrian rail along the side of the driveway should start at the front boundary and continue to the car parking area." 29 The council received the following advice from the applicant for development consent on 9 November 2004 in regards to condition A(iii):- "We confirm that we will only remove that part of the median strip that sits wholly within our land and will not remove the portion (being 0.5 metres in length) at the southern end which sits on the boundary." 30 Finally on 23 December 2004 the council advised the applicant for development consent as follows:- A(i) Traffic Management Plan Council's letter dated 25th November 2004, advises that the submitted Traffic Management Plan satisfies the provisions of Part A(i) of Deferred Commencement Consent No. 2003/0909 DA subject to the following being provided: "The proposed pedestrian rail along the side of the driveway should start at the front boundary and continue to the car parking area." A(iii) Owners written consent provided for works required within the right of way Council's letter dated 25th November 2004, advises that the submitted survey information illustrates that the kerb is nearly entirely upon No. 723 Warringah Road except a small portion of 0.5 metres. No owners consent is required for removal of that part of the median strip that sits wholly on No. 723 Warringah Road, Forestville. It is considered that the traffic management plan submitted in response to Condition A(i) is satisfactory without the removal of the respective 0.5 metre median strip. 31 The council thereafter expressed its satisfaction that the relevant matters contained in the deferred commencement condition had been addressed and accordingly the consent would become "operable" from the date of the letter. 32 The applicants have given evidence that they were not made aware that the TMP had been submitted and that they were not given an opportunity to comment on its contents. The second applicant confirms that no consent to use the applicants' driveway for the child care centre has been given. 33 Steven Schlederer, a director of the second respondent, has given evidence that in February 2004 he lodged a request for mediation with the first respondent in relation to the development. The mediation was arranged for 29 April 2004. The second applicant confirms that the applicants did not respond to the opportunity for mediation. The applicants' case 34 In summary the applicants challenge the grant of the deferred commencement consent on the basis that:-

1. The development consent was not issued in compliance with the Environmental Planning and Assessment Act 1979 as it required both the use, and the constraint of the use, of the applicants' land;
2. The council failed to properly consider the impact of traffic assessed by Mr Dowsett;
3. As the deferral of the operation of the consent until a Traffic Management Plan was prepared and submitted to the council related to an issue of fundamental importance to the development application, the council failed to determine the development application with finality;
4. Procedural fairness was denied to the applicants by the Council in its consideration of the development application in that the applicants were not afforded an opportunity to be heard on the purported fulfilment of the deferred commencement conditions;
5. The consent purports to cut down and intrude upon the applicants' dominion over their land and is repugnant to proprietary rights conferred under the Real Property Act 1901. The use of the applicants' land 35 Clause 49 of the EPA Regulation provides that a development application may be made by "the owner of the land to which the development application relates" or by "any other person, with the consent in writing of the owner of that land." In this case the development application clearly, in its terms, relates to Lot 3 in DP 25050 known as 723 Warringah Road, Forestville. The consent of the third respondents as the owners of that land was provided in writing. 36 The issue is whether the development application relates to the land of the applicants. 37 Where an environmental planning instrument states that development may not be carried out except with development consent, s 76A of the Environmental Planning and Assessment Act 1979 ("the EPA Act") provides that development may not be carried out unless such a consent has been obtained and is in force. In North Sydney Council v Ligon 302 Pty Limited (1996) 185 CLR 470 the High Court dealt with a factual circumstance similar to the present where an application was made for development consent to erect a building on a particular parcel of land which was dependent upon the benefit of a right of carriageway over adjoining land to provide access to the land the subject of the development application. The High Court dealt with the legislation as it then stood. Amendments have since been made to the legislative framework but the relevant provisions currently applying are to the same effect. 38 The following passages from the judgment of the High Court in Ligon are apposite to this case:- Thus the prohibition is against the carrying out of a specific development on a particular parcel. When a development application is made for consent to a specified development, the land to which the application "relates" must therefore be the land on which the specified development is proposed to be carried out. p 476

Although related developments on adjoining parcels of land may each require consent before they are carried out, each development is on its own parcel of land and any necessary consent must be sought by a development application that relates to that parcel -- not to the adjoining parcel. p 477

The development application in the instant case is for consent only to a development to be carried out on the Club site. The development application relates solely to the Club site. The use of the Century Plaza land to give access to the Club site is an existing use and, unless that use be intensified, no question of consent to a development of the Century Plaza land will arise. It may be expected that the use will be intensified but it does not follow that the prospect of intensification makes the application already lodged by Ligon invalid for want of the consent of Century Plaza . p 481 39 The development application in the present case specifically identifies Lot 3 in DP 25050 as the land in respect of which the development is to take place. Accordingly, adopting the principles established by Ligon the land to which the development application relates is Lot 3. Even if the proposed arrangement for traffic management in respect of the accessway amount to a change of use of Lots 401 and 402, the development application does not relate to that land.

40 The information provided in respect of the proposed traffic management was a relevant matter to be considered by the council as part of the assessment of the merits of the application. However the explanation of the proposed arrangements was not a development application with respect to Lots 401 and 402. Nor was it part of the development application for the consent to establish the child care centre (see Currey v Sutherland Shire Council and Others (1998) 100 LGERA 365; Hillpalm Pty Limited v Tweed Shire Council and Another (2002) 119 LGERA 86; Huntington & MacGillivray v Hurstville City Council & Others [2004] NSWLEC 694, unreported). 41 The decision of Lloyd J in Hillpalm was upheld by the Court of Appeal. In the course of his judgment Meagher JA (Hillpalm Pty Limited v Tweed Shire Council [2002] NSWCA 322, unreported) noted that "what land an application "relates to" must primarily, if not exclusively, be determined by an examination of the terms of the application itself, which, of course is a written document." 42 Even if (as contended by the applicants) the documents attached to or lodged in support of the development application refer to works proposed in or, an intended use of, parts of Lots 401 and 402, I agree with the submission made by Mr Tomasetti, on behalf of the second respondent, that those documents do not form part of the development application. Any statement contained in the supporting documents that related to consequential effects on the use of other land are to be regarded as part of a proper consideration of the likely impacts of the carrying out of the proposed development on the enjoyment of other land.

43 If the consent authority concludes that works are required on other land in order for the proposed development to be carried out in a satisfactory manner it may, pursuant to s 80A(1)(f), require the carrying out of those works as a condition of consent. In the present case, arguably, condition 29 which I have set out above may be such a condition. However the fact that works or change to the manner of use of other land are foreshadowed in documents lodged in support of a development application or in the conditions of consent does not of itself authorise the carrying out of those works or the change of use. If a separate development consent is required in that respect then it must be made, considered and determined in accordance with the EPA Act and Regulations. 44 It follows therefore that I have not been persuaded that the development application lodged by the second respondent with the consent of the third respondents required the consent in writing of the applicants as the owners of Lots 401 and 402. Moreover I do not read or construe the development consent as purporting to authorise any works in, or a change of use in respect of, Lots 401 and 402. The development application was properly made in accordance with the provisions of cl 49 of the Regulation by a person with the consent in writing of the owner of the land to which the development application relates. 45 In so holding I do not find (as the first respondent submits) that there is not a proposed new use of the accessway within Lots 401 and 402. I am not required, in these proceedings, to determine whether a further development application and consent is required in respect of the implementation of the proposed traffic management arrangements in so far as they relate to the use of the adjoining land. However I do make a finding the use of Lots 401 and 402 for the purposes of a child care centre is not the subject of the development consent presently in force under s 76A of the EPA Act.

46 Although the TMP was conditionally approved by the council following its submission in response to the deferred commencement condition the expression of satisfaction by the council is not of itself authority to use Lots 401 and 402 in the manner prescribed by the TMP. If as a consequence of complying with condition 29 of the development consent, or implementing the arrangements under the TMP, activities or works are required on Lots 401 and 402 and those works or activities are such that development consent is necessary, that raises a separate issue to the issue raised in these proceedings. The denial of procedural fairness 47 The complaint by the applicants is that the TMP was not notified to them or advertised by the council and that accordingly the failure to do so was a denial of procedural fairness in breach of DCP 1. 48 Mr Galasso, on behalf of the council, correctly identifies the following opportunities given to the applicants following the lodgement of the development application:- (a) The applicants were notified of the development application by letter dated 18 August 2003. In that letter, the Council suggested that in addition to lodging a submission, mediation is available; (b) The Council notified objectors of the draft Notice of Determination of the DA dated 15 December 2003;+ (c) The applicants attended the IHAP meeting on 28 January 2004; (d) The applicants wrote to the Council by letter dated 29 January 2004 following the IHAP meeting; (e) The solicitors for the applicants wrote to the council by letter dated 4 February 2004 stating that their client objected to the application; (f) The applicants again wrote to the council by letter dated 5 February 2004. 49 Accordingly by the time the council made a determination to grant deferred commencement consent on 10 February 2004 the applicants had been afforded a number of opportunities to make submissions and had responded extensively to the point that their objections were fully notified and explained to the council. 50 Under DCP 1 the council was required to place the development application on public exhibition and to notify the applicants as being persons within the category of parties entitled to a written notice. Mr McEwen SC, who appears for the applicants, relies upon the statement made by the then Chief Justice in Twist v The Council of the Municipality of Randwick (1976) 136 CLR 106 at foot p 109:-

The common law rule that a statutory authority having power to affect the rights of a person is bound to hear him before exercising the power is both fundamental and universal. 51 The statement by Barwick CJ goes no further than to state the well established principle that a person who is likely to have their rights affected by a decision is entitled to be heard. That is not to say that the person is entitled to be privy to every step of the process and to be consulted in respect of every aspect of the decision. It is sufficient if a real opportunity is afforded for an objection to be raised and for submissions to be made in such a way that they can be appreciated and understood before the decision is made. 52 In my opinion the council was made well aware of the objections of the applicants. That was the extent to which the applicants had a legitimate and reasonable expectation. The notification to them was a reasonable satisfaction of the council's obligation. Moreover the council went beyond the parameters of its bare legal obligation by allowing the applicants to participate in the evolving process by accepting additional material following the lodgement of the original objection. In accordance with the principle explained in Kioa and Others v West and Another (1985) 159 CLR 550 by Mason J at 585 the council discharged its duty to act fairly as required by the circumstances of the case.

53 There is evidence that the Assessment by Ray Dowsett Traffic and Transport Planning Pty Limited was referred specifically to the council's Traffic Engineer Mr Zappavigna on 30 October 2003. Mr Zappavigna was present at the meeting of Warringah Traffic Committee held on 4 November 2003 when the proposed development for a child care facility at 723 Warringah Road, Forestville was considered. Reference to a "cross over movement" in the Committee report is consistent with the Dowsett Assessment description of a "cross over arrangement." Although compatible with the proposal this language contrasts to the description used in the TEF document set out above at [9].

54 In the absence of evidence to the contrary I am prepared to assume that as the relevant documents for the development application had been distributed "separately" to the RTA and Police representative, as the Minutes of the Meeting record, the persons attending the meeting, including Mr Zappavigna, had the benefit of those documents before making the recommendation to the council that no objections were raised to the proposal subject to one space shortfall being further considered by council.

55 The applicants' have not made out this aspect of their claim.

56 In Cameron v Nambucca Shire Council (1997) 95 LGERA 268 the question was whether a consent granted subject to a deferred commencement condition requiring the undertaking of a Traffic Impact Study by an appropriately qualified consultant prior to the commencement of operations on the site showed:

1. That the council had failed to consider the impacts of the development on the local traffic network;

2. Contrary to s 91 of the EPA Act, as it then was, the consent lacked finality because the consent left open ended the obligations which the developer may be required to perform as a consequence of implementing the recommendations of the traffic study;

3. Contrary to s 91AA, as it then was, the condition deferred consideration of a matter which council was required to resolve before granting consent.

57 I determined, in that case, that the condition deferred consideration of a matter which council was required to undertake before granting consent. I found that s 91AA was not a panacea to overcome the necessity to consider a requisite matter or the requirement to finally determine the development application.

58 Deferred commencement condition 1(i)(a) to (d) is in a slightly different category to the condition that I considered in Cameron but the principle to be applied is the same.

59 In Weal v Bathurst City Council (2000) 111 LGERA 181 at [94] Giles JA expressly agreed with a statement I made in an earlier decision of Remath Investments No. 6 Pty Ltd v Botany Bay City Council (No.2) (unreported No. 10649 of 1996, 11 December 1996) when he confirmed that s 91AA did not free the consent authority from the obligation to consider all relevant matters. He went on to say that the deferred commencement provision enabled the consent authority to stipulate for a state of affairs on the basis of which it decided to grant consent but its consideration had to include an understanding of the state of affairs and an evaluation of the relevant matters with that understanding. Mason P agreed with the analysis of s 91AA found in my judgment in Cameron.

60 One of the questions I have to determine therefore is whether the traffic impact of the subject development could be determined in the absence of the TMP or whether its submission and consideration was essential before the impacts of the development could be sufficiently evaluated to the point where consent could be granted.

61 It is not sufficient for present purposes to regard the preparation of a traffic management plan in any generally accepted sense that may expect it to be merely a compilation or digest of matters relating to the conduct of the traffic arrangements within the site as already proposed, considered and approved by the consent authority, for the future reference of the users of the site. The condition goes further than simply prescribing the preparation of a code of practice based upon established criteria. It stipulates that the TMP deal with each of the matters (a) to (d). Items (a) to (c) in particular required the TMP to include material that could have the effect of changing the manner in which the development operates, causing works to take place or altering the nature of the use of the rights of way. The prospect of the removal of vegetation is open ended and foreseeably could raise issues in respect of environmental impacts. The fact that, arguably, these consequences did not occur is not to the point. The problem is that the access arrangements were a critical issue and the final arrangements in that respect were left to be decided by the council at the later time of approving the TMP. It was clear from the consideration by the various arms of the council that a final determination of some satisfactory means of controlling the access to the site was outstanding. 62 The IHAP report contained the following recommendation:- The Council is to be furnished with relevant documentation confirming the Traffic Management Plan and the design details of the works required in the right of way for access, and the acoustic treatment on the western boundary.

63 The reason for the recommendation is identified from the following statement in the IHAP report on 28 January 2004:- The application proposes the use of the whole driveway, presumably with the removal of the median strip and some works to take place in the driveway to manage the traffic and possible conflict between pedestrians of the residences and the kindergarten, traffic for the residences in the battleaxes to the east and the increased traffic to the kindergarten site. The Panel was not convinced traffic management had been adequately addressed at this stage and would agree with the imposition of a Deferred Commencement Condition.

64 Then followed the suggested form of a deferred commencement condition preferred by IHAP which I have quoted in full above at [20].

65 Condition 29 and 30 do not take the matter further, for present purposes, in any relevant sense. The reference, in the TMP itself, to the many permutations for creating a comprehensive traffic management arrangement "which allow for the safe and efficient movement of vehicles" also recognises the fact that the scheme had not been communicated to the council at the date of the determination to grant consent.

66 Consistent with the approach taken by this Court in Remath and Cameron (both expressly confirmed by the Court of Appeal in Weal), I find that although the council clearly considered some of the traffic impacts of access over the rights of way it did not become possible to take the final scheme into account before it was presented to the council in the TMP in response to the deferred commencement condition. Accordingly, until the TMP was delivered to the council, and approved, the traffic management arrangements were not finalised and even then were only approved conditionally. Although, as Mason P said in Weal, the need to take the access problems into consideration did not require its exact detail to be determined before being weighed against all relevant factors, he nevertheless agreed with Giles JA that proper consideration required an adequate understanding of the state of affairs involving the potential impacts and the evaluation of the relevant matters consistent with that understanding. In my opinion, for the reasons explained above, the council was not in a position to properly understand the scope of the problem at the date of the determination to grant consent and therefore it failed to finally consider and determine a relevant matter. The council as consent authority left issues, both known and unknown, in respect of the impact of the development unresolved and for future determination (Weal and Remath). The consent was not final and consequently invalid. An order will be made to that effect.

Whether the consent is repugnant to the Real Property Act

67 The second respondent raises issues in relation to the jurisdiction of this Court to deal with property rights created under rights of carriage way. In addition Mr Tomasetti notes that the High Court in Ligon made it clear (at pp 475 and 476) that the EPA Act is concerned with the environment and amenities of the various areas of the State and that the statutory powers to control planning of those areas are not "qualified or affected by private rights except in so far as the Act fastens on the holders of interests in land to impose certain restrictions or duties." 68 Furthermore Mr Tomasetti relies on cl 32 of Warringah Local Environmental Plan 2000 which provides:- 32 What effect do covenants and similar instruments have on development permitted by this plan? Any agreement, covenant or similar instrument to the extent that it purports to restrict or prohibit development allowed by this plan, or the granting of a consent, does not apply. This does not affect the rights or interests of any public authority under any registered instrument.

69 He says that therefore cl 32 removes any purported restrictions imposed by the terms of any right of carriage way which otherwise apply to the subject development by dint of s 28 of the EPA Act.

70 Although in a sense the consent appears to create circumstances that could be repugnant to the rights of the applicants under the mutual rights of carriageway I have rejected any argument that asserts that the first respondent or any successor will be in a position to enforce a change in use of the adjoining land as a consequence of the grant of the subject development consent. 71 In the event that a change of use does occur or works are ultimately shown to be required in the applicants' land questions will arise as to whether that development requires consent or is exempt development. At present the consent which the council purported to grant has no effect on the applicants' land. Accordingly the questions raised by the applicants do not arise. That the consent is invalid and thus unenforceable is even more emphatic that the issue raised by the applicants in this respect does not require determination in these proceedings. Orders 72 The parties requested that I defer any questions of costs until they have an opportunity to consider these reasons for judgment. It is pertinent to observe that the only issue upon which the applicants have been successful is the one relating to a lack of finality which was not raised until Mr McEwen was addressing the Court in the course of his opening. The applicants have not established entitlement to relief on any other ground. That will be a relevant matter to be taken into account before the Court exercises its discretion to make any costs order. 73 I make the following orders:-

1. A declaration that the development consent granted by the first respondent for the property known as 723 Warringah Road, Forestville in relation to Development Application Number 2003/09/09 ("the consent") is void and of no effect.
2. An order that the second and third respondents, their servants, agents or invitees be restrained from the use of the applicants' land in the manner contemplated by the consent otherwise than in accordance with the provisions of the Environmental Planning and Assessment Act 1979.
3. Costs reserved.
4. Exhibits may be returned.

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.