THE PROPER CONSTRUCTION OF THE MODIFIED DEVELOPMENT CONSENT
35The vendors contended on appeal that the modified Development Consent of 13 December 2001 required construction of a road having no gradient steeper than 1:6, that this was impossible to achieve because of the topography of the land and that the vendors accordingly had not breached their obligation to use "best reasonable endeavours" because that obligation did not require them to attempt to achieve the impossible. Consideration of this argument requires determination of the proper construction of Condition 6 of the modified Development Consent, to which I now turn.
36The vendors contended that the condition must be construed against the background of the Council's Technical Policy 94/27 concerning rural residential development, although the vendors did not submit that it was not open to the Council to depart from this policy in a particular instance, if it thought fit. Under the heading "BUSHFIRE HAZARD MANAGEMENT STRATEGY" that policy stated that roads providing access to individual dwellings and groups of dwellings were required to have a maximum gradient of 1 in 6 (Clause 12.7).
37The vendors submitted that this policy gave effect to the New South Wales Fire Brigade ("NSWFB") Code of Practice which required ramp gradients on straight or curved ramps to have a gradient not exceeding 1 in 8 or 1 in 6, with a transition of 1 in 12 at each end (see [16], [23] above). However the vendors did not satisfactorily explain why the accessway required to be constructed in the present case should be regarded as a "ramp" when in ordinary speech a "ramp" is a short sloping surface connecting two different levels, not a road of considerable length.
38The vendors made the same submission concerning a document entitled "RECOMMENDED PRACTICE: NSWFB VEHICLE REQUIREMENTS (GUIDELINES FOR EMERGENCY VEHICLE ACCESS)" which was to the same effect (see [37] above). However the relevance of that document is similarly doubtful as it relates to "ramp" gradients.
39The vendors submitted that the first paragraph of Condition 6 imposed an obligation on the vendors to construct an accessway from Araluen Avenue to the dwelling on the proposed Lot 2, the entire length of which could be traversed by both emergency evacuation vehicles and fire trucks. The vendors then submitted that because the Council's Bushfire Hazard Management Strategy prohibited gradients exceeding 1 in 6 and the NSWFB policies indicated that fire brigade access required a maximum gradient of 1 in 6, Condition 6 implicitly required the construction of an accessway whose gradient did not at any point exceed 1 in 6. The vendors then asserted that because an accessway could not be built on the vendors' land with gradients that did not exceed 1 in 6, Condition 6 imposed an obligation that was impossible to fulfil, with the result that they did not have to attempt compliance.
40In my view however, the third paragraph of Condition 6 makes it plain that Condition 6 should not be so construed. That paragraph recognises, in the plainest of terms, that there may be stretches of the accessway, perhaps even extensive, that have a gradient steeper than 1 in 6. The requirement to place signs where gradients exceeded 1 in 6 would be nonsensical if such gradients were not permitted. As a result, contrary to the vendors' contention, there was no implicit requirement in the first paragraph of Condition 6 that the accessway not exceed 1 in 6 at any point. Whilst the vendors' construction would be arguable if the first paragraph stood alone, the ambiguity of that paragraph is resolved by the clear words of the third paragraph.
41That conclusion is equally dictated by the restriction as to user that the modified Development Consent required in relation to fire appliances (see [20] above). That provision also recognised, in the clearest of terms, that there may be sections of the accessway that have a gradient steeper than 1 in 6.
42The vendors further submitted that even if Condition 6 did not preclude gradients steeper than 1 in 6, construction of an accessway with such gradients would be pointless because fire appliances could not use it: the existence of a gradient steeper than 1 in 6 near the commencement of the accessway would deny access for fire appliances to all but an insignificant part of the road. Even if this were so, in my view that circumstance would not relieve the vendors of the obligation of complying with the condition as part of their "best reasonable endeavours" to obtain registration of the plan of subdivision. The condition on its proper construction was one with which the vendors were capable of complying. Its usefulness (or otherwise) was prima facie irrelevant and, in any event, a matter for the Council, although it was of course open to the vendors to draw the supposed inutility of the condition to the Council's attention and request a further amendment of the Development Consent. I note that the vendors did not contend, at least on the appeal, that they did not have to comply with Condition 6 because it imposed an unreasonable, uncontemplated financial burden on them. It may have been relevant to such an argument to consider whether, objectively speaking, compliance with Condition 6 would have been likely to serve any useful purpose.
43In any event, for a number of reasons, the evidence did not establish that such an accessway, if constructed, would necessarily have been useless. First, the documentary evidence of the NSWFB's requirements indicated that those requirements were concerned with ramps (see NSWFB Recommended Practice OS-E-98/02-04059 issued March 2003 p 4). The accessway in question here could not reasonably be described as, or as containing, a ramp. Secondly, the NSWFB documents recorded practices rather than inflexible requirements. For all the vendors knew, the NSWFB might have been prepared to depart from these practices in relation to the subject accessway. Thirdly, there is no apparent reason why the NSWFB practices might not have changed as time progressed. Fourthly, there was evidence in the proceedings to suggest that the NSW Rural Fire Service had jurisdiction in respect of the subject property (letter from NSW Rural Fire Service to the Council dated 19 March 2004). There was no evidence as to the NSW Rural Fire Service's access requirements. Whether such jurisdiction would have been exclusive of, or supplementary to, the jurisdiction of the NSWFB was not clear from the evidence.
44The vendors' alternative argument was that, even if Condition 6 was not to be construed in the manner they had proposed, the vendors reasonably understood it to require construction of an accessway with gradients that did not exceed 1 in 6. In my view, however, it is by no means clear that the vendors did adopt this construction. The better view in my opinion is that Mr Foster, on behalf of the vendors, concluded that the condition required construction of a road that would be unfit for its intended purpose, and useless for any other purpose. He expressed this view in his affidavit sworn on 12 May 2010 ([299]), although an answer that he gave in cross-examination (Transcript p 123 - 4) suggested otherwise. In any event, given the clear terms of the third paragraph of Condition 6 concerning signs and the provision of the modified Development Consent concerning a restriction-as-to-user, Mr Foster's alleged view as to the futility of the road was not a reasonable one and is therefore irrelevant for the purposes of considering whether the vendors used "their best reasonable endeavours" to have the plan of subdivision registered.