Hillpalm Pty Ltd v Tweed Shire Council & Anor [2002] NSWLEC 17 | Case summary

RESAONS FOR JUDGMENT Introduction

The applicant, Hillpalm Pty Ltd (which I shall call "Hillpalm") seeks a declaration that the determination of development application No. 1038/2000DA on or about 19 January 2001 by the first respondent, Tweed Shire Council ("the council"), is invalid and of no effect.
In order to understand the issues, to which I will presently refer, it is convenient to briefly refer to some preliminary facts.
On 22 December 1977 the council granted consent to a predecessor in title of Hillpalm to subdivide the land it owned with a frontage to Clothiers Creek Road, Tanglewood, into two allotments known as lot 2, which fronts the road and lot 1, which does not front the road. Conditions (a) and (b) of the development consent were as follows: (a) Provision of a constructed right of carriageway from Clothiers Creek Road. The track shall be at least 2.5 metres wide and constructed with 150 mm consolidated thickness of gravel. (b) Submission of final plans and payment of fees.
By letter dated 6 November 1978 to the applicant for development consent, the council stated that it was prepared to grant a final approval for the subdivision into two allotments even though all the conditions of its letter of 22 December 1977 (inter alia) had not been complied with.
The plan of subdivision was duly registered on 18 November 1978 as deposited plan 601049 without the creation of any right of way access from Clothiers Creek Road to lot 1, although the deposited plan shows the site of a "proposed right of way 10 wide" over lot 2 that leads from Clothiers Creek Road to lot 1.
Lot 2 has been further subdivided since then and the site of the proposed right of way now runs through lot 529 in deposited plan 1003396, which is owned by Hillpalm.
Heavens Door Pty Ltd (which I shall call "Heavens Door") is the second respondent in this proceeding. It is now the owner of lot 1 in deposited plan 601049. On or about 26 September 2000, Heavens Door made a development application No. 1038/2000DA to the council for the subdivision of lot 1 into five rural residential allotments. On 19 January 2001 the council resolved to issue a notice of determination granting a deferred commencement consent to the development application pursuant to s 80(3) of the Environmental Planning and Assessment Act 1979 ("the EP&A Act"). The consent is expressed to not operate until the applicant for consent satisfies the consent authority (the council) by producing satisfactory evidence relating to: 1 Submission of documentary evidence to the satisfaction of the Director of Development Services demonstrating that the proposed right of carriageway 10m wide shown on DP 601049 or the amended right of way alignment shown on appendix C of the development application has been created and registered in the Lands Titles Office. 2 Submission of a revised soil contamination report specific to the subject site. Such report shall be prepared in accordance with the provisions of the Guidelines for Assessing Banana Plantation Sites (NSW EPA, 1997) and demonstrate that each of the proposed dwelling sites are free from contamination. Such report shall be to the satisfaction of Director Environment & Community Services. 3 The applicant shall submit to Council a detailed water supply management plan. Such plan shall clearly identify the location of the proposed water tank and associated infrastructure, justification of proposed tank size as well as incorporating a detailed management and maintenance statement, which indemnifies Council from any management and maintenance responsibilities for works on private property.
On 3 April 2001 an application to modify the consent pursuant to ss 96(1) and 96(1A) of the EP&A Act was made on behalf of Heavens Door to the council for deletion of condition 3. On 28 June 2001 the council approved the application to modify the consent and deleted the condition.
On 31 May 2001 a revised soil contamination report was submitted to the council, which satisfied it that condition 2 had been complied with.
On 20 October 2000 Heavens Door commenced proceedings in class 4 of the Court's jurisdiction against Hillpalm seeking a declaration that there had been a breach of condition (a) of the development consent of 22 December 1977 for the subdivision into two allotments. Heavens Door also sought an order that Hillpalm create the ten metres wide right of way shown on deposited plan 601049 by registration thereof on the title to Hillpalm's land and that it construct a track at least 2.5 metres wide within such right of way. These proceedings were heard by Sheahan J on 5 and 6 March 2001 (see Heavens Door Pty Ltd v Hillpalm Pty Ltd (2001) 116 LGERA 138). In a reserved judgment delivered on 7 June 2001 Sheahan J made orders granting the relief sought by the applicant.
Hillpalm has appealed to the Court of Appeal against the decision of Sheahan J and the appeal is yet to be heard. On 23 July 2001 Handley JA in the Court of Appeal ordered a stay on Sheahan J's orders pending the determination of the appeal or until further order of that Court (see Hillpalm Pty Ltd v Heavens Door Pty Ltd [2001] NSWCA 242). Handley JA also ordered the appeal be expedited. Handley JA noted the present proceeding brought by Hillpalm challenging the validity of the development consent granted to Heavens Door for the subdivision of lot 1 was pending in this Court. Handley JA further ordered that in the event of an appeal being filed against the decision of this proceeding, both appeals should be heard consecutively by the same bench and for that purpose the second appeal should also be expedited. At the commencement of the present hearing before me both parties stated that, irrespective of my decision in this case, there would be an appeal therefrom. I note, however, that neither party has sought to have the present proceeding before me expedited. I have no evidence before me which suggests that the writing of this judgment should displace others that have priority in the queue of reserved judgments waiting to be written. The issues
The grounds upon which Hillpalm challenges the determination of the development application made by the council on or about 19 January 2001 are as follows: (1) The development application relates to also Hillpalm's land, since access to the subdivision is to be obtained over lot 529 in deposited plan 1003396 and a 4.5 metres wide sealed pavement is proposed to be constructed within the right of way. Hillpalm has not consented to the making of the development application as required by cl 46(1) of the Environmental Planning and Assessment Regulation 1994 ("the 1994 Regulation") as in force at the time the development application was made (and now required by cl 49(1)(b) of the Environmental Planning and Assessment Regulation 2000). (2) Hillpalm was not notified of the development application, contrary to an established policy and practice of the council of notifying the owner of the neighbouring properties where a development application could impact adversely thereon. Hillpalm was denied procedural fairness in that it was not notified of the development application and given an opportunity to be heard. Hillpalm had a legitimate expectation of being so notified arising out of an established practice of the council of notifying the owners of neighbouring properties where a development application had the potential to impact adversely on their land. Alternatively, if the Court finds that there was no such practice, Hillpalm claims that it had a legitimate expectation arising out of the circumstances of the case, in that the development application involved the construction of works upon its land. (3) By three deferred commencement conditions of the consent granted to Heavens Door, the council left for later consideration and determination critical aspects of the proposal which were fundamental to the development, and thereby the council failed to properly consider the development application and so the consent itself lacks the necessary finality and certainty.
As to Ground (1) Heavens Door denies that the development application relates to Hillpalm's land. It says that the application was made solely for the subdivision of lot 1 and consent was expressly sought for a deferred commencement pending finalisation of the right of way access. Heavens Door also says that it has an easement in equity being a Wheeldon v Burrows ((1879) 12 Ch D 31) easement created when deposited plan 601049 was registered; therefore it had a right to compel the creation of the easement by registration, a right which was exercised and granted in the proceedings before Sheahan J; Hillpalm was and is under legal obligation to create the right of way; Hillpalm is in breach of such obligation; alternatively, Hillpalm is estopped from the denying that Heavens Door has the benefit of the right of way; or the issue of the right of way is res judicata; and Hillpalm should be denied the relief because of a lack of clean hands.
As to Ground (2) both the council and Heavens Door deny an established policy or practice of notifying development applications for rural residential subdivisions and deny that in the circumstances of this case the principles of procedural fairness gave rise to a reasonable expectation on the part of Hillpalm that it would be notified.
In any event, Heavens Door claims that on 27 October 2000 in the course of the previous Court proceedings against Hillpalm, its solicitor informed Hillpalm's representative at the Court of the fact that the development application had been made, so that Hillpalm had notice of the development application and knew that it was before the council, but did nothing about it.
As to Ground (3), both the council and Heavens Door deny that critical and fundamental aspects of the development application were left for the later consideration and determination. As to deferred commencement condition 2 requiring the submission of soil contamination report to the satisfaction of the Director Environment and Community Services, since this condition has now been satisfied then any such failure to take into consideration that issue at the time of the original consent (which is denied) has now been cured. Moreover, as to deferred commencement condition 3 relating to a water supply management plan, the consent was subsequently modified by the deletion of this condition and it is the modified consent with which the Court is concerned.
Finally, both the council and Heavens Door rely upon matters which go to the exercise of the Court's discretion. Ground (1) The requirement for owner's consent
I turn firstly to the relevant facts in addition to those already noted above.
As noted above in par [7], the development application was made on or about 26 September 2001. It was made by Brown & Haan Pty Ltd, Consulting Land Engineering & Mining Surveyors. The development application is in the form of Form 1 to the 1994 Regulation and describes the land to be developed as lot 1 in deposited plan 601049. The proposed development is described as "subdivision of land". The part of the form which signifies the consent of the owner bears the common seal of Heavens Door and the signature of "J D Weller, Director". The plan of the proposed subdivision shows lot 1 and the five allotments thereof.
The application was accompanied by a document headed "Development Application Report" prepared by Brown & Haan Pty Ltd. That document included a section headed "Environmental Impact Report". Under a sub-heading "The Proposal" it states the following: Although the subdivision has access to a crown road, the preferred access will be provided by a right of carriageway from Tanglewood Drive to the land. Whilst preparing this application, it was discovered that there were some problems with the actual past creation of the right of carriageway which will be further expanded upon in a later section of this report. As a result we will be seeking approval for this subdivision with a deferred commencement of the approval pending finalisation of the right of carriageway access.
Under the sub-heading "Access" the following is stated: In the initial discussion of the proposed subdivision earlier in this report, it was indicated that there were some problems with the access. These problems are such that it requires that the consent to the subdivision be a deferred commencement consent to ensure that the problems are rectified prior to development consent coming into force. … On checking the title deed of the subject land, a copy of which is enclosed in Appendix O, it was noticed that the right of carriageway has never been officially created. Of course this right of carriageway should have been created as it was a condition of consent in the original subdivision. Correspondence relating to this subdivision application and consent to the subdivision represented in DP 601049, is enclosed herewith as Appendix P. This information was extracted by Council from their microfiche system and the quality of the copies is low, however it can be seen from this information that it was always intended for the right of carriageway to be created as a condition of consent. … When the right of carriageway is formally created, it will either follow the existing track, which would be preferable, or else the access will have to be constructed within the original right of carriageway proposed.
The report then states that the owner will attempt to negotiate for an easement for services within the right of way, but if such an easement cannot be created then services would be provided along the (unmade) crown road reserve from the subject land to Clothiers Creek Road.
The Development Application Report contains a section headed "Statement of Environmental Effects" under which the following appears: (b) The following steps have been taken to mitigate any likely adverse environmental impact on the surrounding locality… The access to the proposed subdivision already exists and will be upgraded from a gravel access to a bitumen sealed access of 4.5 metres width. Drainage structures are already in place although some may need upgrading as a result of the widening of the formation. The usual erosion control measures will be undertaken during the construction of the road which will minimise the potential of any sediment leaving the site. … (d) How do you propose to reduce soil erosion and/or sedimentation problems that may occur from site works?… As noted in a previous section, the proposed access within the right of way will be upgraded to a bitumen sealed formation of 4.5 metres width. The only other construction works that are likely to be required on the site will be levelling for a house site and construction of access from the right of way to that house site. Due to the elevated nature of the site and the location of the access, which mostly runs along the ridgeline, there will be no serious soil erosion and sedimentation problems arising. However the usual erosion an [sic] sedimentation control measures used for construction of roads will be implemented to ensure that there is no impact during or after construction. … (g) What amount of traffic will be generated by the proposed development? How do you intend to gain access to the site?… At present the subject land is vacant, but it does have one housing entitlement available, so the proposed subdivision creates a further four building entitlements. This will generate approximately 20 to 25 additional trips per day. The additional traffic generated is not significant and the existing road system in the area is more than capable of handling this small amount of additional traffic. Due to the size of allotments there will be no problems with loading and unloading or parking, nor will there be any dust problems created as the existing road within the right of way will be sealed as part of the development. … (l) Does the proposal involve the removal of native vegetation? … Due to the reconstruction of the existing access there may be some removal of vegetation, in particular if it is required to reconstruct the road within the existing proposed right of way.
An internal memorandum from Mr Warren Boyd, the council's subdivision engineer to Mr Adam Smith, the council's subdivision planner dated 13 November 2000 notes that the applicant for consent had requested that a deferred commencement approval be granted for the subdivision, subject to the access location being resolved. The memorandum also notes that Development Control Plan No. 16 (the relevant development control plan) provides that where three to five lots gain access via a right of way it must be 4.5 metres wide and constructed of concrete. The memorandum then notes a number of issues relating to the construction of the right of way which, if the proposal were to be approved, would need to be addressed in the construction certificate application. The memorandum recommends that the application be approved subject to the nominated conditions.
On 4 October 2000, Mr Stephen Enders, the council's acting manager development assessment, wrote to Brown & Haan Pty Ltd in the following terms: After a preliminary assessment of the subject application, you are advised that Council are unable to assess and ultimately determine the application in the absence of formal secured access to the subject site. Whilst your request to determine the application of way of "deferred commencement" consent is acknowledged, it is considered that the provision of formal access is an issue that needs to be clarified prior to lodgement of any application. In light of the above advice, the following options are available: - 1. Withdraw the application, with fees totalling $350 to be refunded. 2. Request that Council determine the application on the basis of information available.
On 17 October 2000, Darryl Anderson Consulting Pty Ltd, town planning and development consultants on behalf of Heavens Door, in response wrote to the council suggesting an appropriate deferred commencement condition (which ultimately became condition 1, as noted in par [7] above).
A further memorandum from Mr Adam Smith to the council's development assessment panel dated 15 November 2000 contains the following statement: Whilst all other matters are considered to be generally satisfactory, the access issue is of significant concern. It is requested that DAP [development assessment panel] review the proposal (inclusive of attached submission) and provide comment on the most desired course of action.
A handwritten note appears at the foot of this memorandum as follows: DAP would not support a deferred commencement approval as the provision of access is fundamental to the consent.
On 17 November 2000 Mr Garry Smith, the council's manager development assessment wrote a letter to Brown & Haan Pty Ltd referring to the council's letter dated 4 October 2000 and referring to the letter from Darryl Anderson Consulting Pty Ltd. Mr Garry Smith's letter continues: In regard to the above, the subject application was referred to Council's Development Assessment Panel for comment on 15 November 2000. The panel reviewed the application, Mr Andersons [sic] letter and discussed the appropriateness of a deferred commencement consent. The advice given by the panel was that a deferred commencement consent would not be supported in this instance given the fundamental nature of providing access to the proposed lots.
On 11 December 2000 Heavens Door obtained an advice from counsel, which it then provided to the council. The advice notes that the council had known the location of the proposed access road since 1977 when it granted the original consent (for the subdivision into two allotments). It notes that the council knows the width and type of road proposed. It notes that conditions are frequently imposed on development consents requiring the owner to do things beyond the subject land, which require the consent of a third party. It notes that if the developer cannot obtain the access, then the consent cannot be implemented and will lapse. The advice concludes that the use of the deferred commencement provisions is entirely appropriate and lawful in these circumstances.
A report prepared for the council's development assessment panel on 17 January 2001 contains a consideration of counsel's advice and the report recommends the issuing of deferred commencement consent as warranted and justified.
On 19 January 2001 the development assessment panel resolved "[t]hat Development Application DA 1038/2000 for a five (5) lot subdivision at Lot 1 DP 601049, Clothiers Creek Road, Clothiers Creek be granted deferred commencement consent", inclusive of a number of conditions, including those noted in par [7] above. On the same day the council issued its notice of determination. In addition to the conditions noted above, the consent includes the following conditions: 19 The creation of easements for services, rights of carriageway and restrictions as to user as may be applicable under Section 88B of the Conveyancing Act including the following:
Easements for sewer, water supply and drainage over ALL services on private property.
Right of carriageway. Pursuant to Section 88BA of the Conveyancing Act (as amended) the Instrument creating the right of carriageway/easement to drain water shall make provision for maintenance of the right of carriageway/easement by the owners from time to time of the land benefited and burdened and are to share costs equally or proportionally on an equitable basis. Any Section 88B Instrument creating restrictions as to user, rights of carriageway or easements which benefit Council shall contain a provision enabling such restrictions, easements or rights of way to be revoked, varied or modified only with the consent of Council. … 39. The Engineering Plans and specifications to accompany the Construction Certificate application shall provide for: i. Construction of the right of carriageway serving lots 1 to 5 - 4.5m wide, 150 mm thick reinforced with F82 mesh, concrete sealed standard as well as associated formation and drainage in accordance with the provisions of DCP No 16 - Subdivision Manual.
On 3 April 2001 an application was made to the council on behalf of Heavens Door for modification of the development consent pursuant to ss 96(1) and 96(1A) of the EP&A Act. These sections provide as follows: 96 Modification of consents (1) Modifications involving minor error, misdescription or miscalculation A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify a development consent granted by it to correct a minor error, misdescription or miscalculation. Subsections (1A), (2), (3), (5), (6), (6A) and (7) do not apply to such a modification. (1A) Modifications involving minimal environmental impact A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if: (a) it is satisfied that the proposed modification is of minimal environmental impact, and (b) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all) under this section, and (c) it has notified the application in accordance with: (i) the regulations, if the regulations so require, or (ii) a development control plan, if the consent authority is a council that has made a development control plan under section 72 that requires the notification or advertising of applications for modification of a development consent, and (d) it has considered any submissions made concerning the proposed modification within any period prescribed by the regulations or provided by the development control plan, as the case may be. …
Section 96(4) provides: (4) Modification of a development consent in accordance with this section is not to be construed as the granting of development consent under this Part but a reference in this or any other Act to a development consent is a reference to the development consent so modified.
The modifications sought to delete reference to the conditions relating to sewerage and water reticulation as no reticulated sewerage is proposed and no reticulated water supply is proposed. In particular, the deletion of deferred commencement condition (3) was sought. It was noted in the application for modification that following the gazettal of the Tweed Local Environmental Plan 2000 on 7 April 2000, a reticulated water supply to each lot in the relevant zone is not mandatory. The application for modification stated that it was proposed to provide a minimum 20,000 litres potable rainwater tank in conjunction with the erection of future dwellings on each lot in lieu of the reticulated water supply system.
The application for modification also sought an amendment to condition 39 to substitute a flexible pavement with a bitumen seal in lieu of the reinforced concrete pavement currently required by condition 39.
On 27 June 2001 the council's development assessment panel resolved to approve the application to modify the consent. The council issued a modified development consent deleting deferred commencement condition 3. The modified consent also contains a new condition 17 in lieu of the original condition 19 and a new condition 37 in lieu of the original condition 39 as follows: 17. The creation of easements for services, rights of carriageway and restrictions as to user as may be applicable under Section 88B of the Conveyancing Act including the following:
Easements water supply and drainage over ALL services on private property.
Right of carriageway[.] Pursuant to Section 88B of the Conveyancing Act (as amended) the instrument creating the right of carriageway shall make provision for the maintenance of the right of carriageway by the landowners of proposed lots 1 to 5. This shall include provisions requiring annual contributions by the landowners to ensure funds are available for recurrent maintenance expenditure and reconstruction at the end of the design life of the pavement. Any Section 88B Instrument creating restrictions as to user, rights of carriageway or easement which benefit Council shall contain a provision enabling such restrictions, easements or rights of way to be revoked, varied or modified only with the consent of Council. 37. The Engineering plans and specifications to accompany the construction certificate application shall provide for:- i. Construction of the section of the right of carriageway serving lots 1 to 5 through Lot 529 DP 1003396, to a 4.5m wide, 150mm thick reinforced with F82 mesh, concrete standard. ii. Construction of the section of the right of carriageway serving lots 1 to 5 through Lot 1 DP 601049, to a 4.5m wide, 2 coat bitumen sealed standard on a gravel pavement. The right of carriageway shall be designed and provided with associated formation, drainage and passing bays in accordance with the provisions of DCP No. 16 - Subdivision Manual. … The Applicant's Submissions
Mr D P E Officer QC, appearing for the applicant (with Ms V Culcoff), submits that the subject development application is not valid because cl 46 of the 1994 Regulation (which applied when the development application was lodged) provides that a development application may only be made by the owner of the land to which the development relates, or by any other person with the consent in writing of the owner of the land to which the development relates. It is argued that Hillpalm's land is part of the land to which the development application relates, yet its consent in writing had not been obtained.
Hillpalm's land, it is submitted, was the land to which development application related because the application had proposed works to be carried out on that land. Those works consisted of mainly upgrading the right of carriageway across Hillpalm's land to facilitate access to the proposed subdivision on Heavens Door's land. Mr Officer relies upon several statements in the Environmental Impact Report and the Statement of Environmental Effects submitted with the application which treat the proposed upgrading of the right of carriageway across Hillpalm's land as part of the development for which consent is being sought; and upon sections of the notice of determination by which consent is granted to the development on condition that requires works be done on the right of carriageway.
Mr Officer also points out that the council's officers from the period when development application was being considered, expressed in memoranda the opinion that Hillpalm's consent was required.
In North Sydney Council v Ligon 302 Pty Ltd (1996) 185 CLR 470 the High Court held that the owner's consent of a land neighbouring the building development was not required, merely because the proposed access to the development was via a right of way across the his land. However, that case, Mr Officer, submits may be distinguished from the present because no physical changes were proposed to the right of way servicing that development.
Mr Officer submits that the basis of the decision of the Court of Appeal in Currey v Sutherland Shire Council (1998) 100 LGERA 365 also supports a finding that Hillpalm's consent was required for this application. Currey was decided in the developer's favour because the initial application did not contain any proposal to do works on neighbouring land, although the developer did later submit details for the proposed upgrading of the access on neighbouring land in response to a request for further information by the council. By contrast, in the present case, the proposed works on the rights of carriageway were part of the application from the outset.
Mr Officer submits that I should not follow Lyne v Moree Plains Shire Council (1999) 110 LGERA 120. In that case Pearlman J appeared to answer the question of what land the development application related to, by reference to characterisation of the purpose for which the development application was made. Mr Officer argues that this approach is contrary to that propounded by the High Court in Ligon, which focuses purely on the location of the proposed works.
The fact that Heavens Door has been granted an easement over Hillpalm's land is not relevant in Mr Officer's submission to the question of whether Hillpalm's consent was required. In Ligon the High Court expressly rejected the idea that the requirement for consent is affected by any contractual or proprietary right over the land in question which the applicant for consent might have. The owner of the land, so far as s 77 of the EP&A Act and the Environmental Planning and Assessment Regulation is concerned, is the owner in fee simple and not the proprietor of the easement. The Respondents' Submissions
Mr J J Webster, appearing for the first respondent, submits that the development application clearly identifies the Heavens Door's land as the subject land, in both the development application form as well as the attached plans.
It is only in the Statement of Environmental Effects that any reference is made to the question of doing works outside the site itself. These are raised in the context of off-site impacts which must be considered under s 79C of the EP&A Act and do not have the effect of changing the nature of the development application, which is a development application to subdivide lot 1.
Admittedly the Statement of Environmental Effects does at one stage describe the upgrade of the right of carriageway as "part of this development"; however in context, this should not be taken as determinative of what is the subject of the development application, especially as it is clear from the documentation provided with the application that the question of right of way access was yet to be resolved.
Mr Webster submits that this case is analogous to Lyne v Moree Plains Shire Council, which was concerned with an application for a subdivision with some associated sewerage works to be constructed on neighbouring land held in different ownerships. Pearlman J found that nevertheless the application was to be characterised as a subdivision application relating only to the subject land and that the consent of the owners of the neighbouring land was not required.
Mr Webster denies an assertion that the council's points of defence contain an admission that the application related to adjoining land. This was not intended to be a concession that the application involved the development of adjoining land. Rather, the allegation that the development "related to" Hillpalm's land is specifically denied.
Mr T F Robertson SC, appearing for the second respondent, similarly submits that the land to which the development application related was the Heavens Door's land; that this can be clearly identified in the development application; and therefore only the consent of that company was required to be endorsed on the development application form.
Mr Robertson submits that this must lead to a conclusion that development consent was neither sought nor granted to do any works on Hillpalm's land. This is so notwithstanding the fact that the consent granted by the council includes conditions related to the construction of the access road. These conditions are valid, it is said, insofar as they impose an obligation on the second respondent to do these works if it wishes to take the benefit of the development consent, but they do not themselves authorise the doing of these works. A separate construction certificate, or possibly a separate development consent, would be required to authorise these works; and when any of those works was applied for, Hillpalm's consent would have to be sought and given.
Mr Robertson relies upon North Sydney Council v Ligon and submits that I am bound to follow that case in finding that Hillpalm's consent was not required for the development application. According to Mr Robertson, that case stands for the proposition that although related development of adjoining parcels of land may each require consent before being 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 and not to the adjoining parcel.
The fact that in North Sydney Council v Ligon and in Currey (unlike in the present case) there were no physical works proposed to be done upon the access routes, is not relevant because a change in the use of the access is as much a development under the EP&A Act, as is the construction of works. If the former does not enliven the requirement for consent, then neither does the latter. Conclusions
The requirement for owner's consent at the time when the subject application was made was contained in cl 46(1) of the 1994 Regulation, which is as follows: 46(1) A development application may be made: (a) by the owner of the land to which the development application relates, or (b) by any other person, with the consent in writing of the owner of the land to which the development application relates.
These apparently simple terms, which are almost identical to the original form of s 77(1) of the EP&A Act, are open to differing interpretations, depending on how one construes the word "relates". Does a development application only "relate" to the parcel of land which is identified in the development application form as being the subject of the application (notwithstanding that the application may propose works to be done on other lots); does it only relate to the parcel in which the core works are to be carried out; does it relate to all lots associated with the physical works proposed to be carried out; does it relate to all lots which may be subject to any "development" in connection with the land (including a change of use without any physical works); or even more broadly, does it relate to all lots impacted on by the application although not directly affected by it?
The Court of Appeal in North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA 435 was concerned with the development of a residential flat building on top of an existing club premises, the North Sydney Club. The club had existing rights of footway over adjoining land owned by the proprietors of the Century Plaza building which were used by patrons of the club. In conjunction with the proposed development, these rights of footway were thenceforth to be used both by the patrons of the club as well as the residents of the new apartments.
Kirby ACJ, in his dissenting judgement, found that the terms of s 77(1) of the EP&A Act were "very wide"; and that their purpose was to ensure that "owners of land affected by a development application are notified of the application and afforded the opportunity of protecting their ownership rights by the requirement to signify, in writing, their consent". In applying the provision to "affected" landowners, he clearly had in mind a broader category than those whose land is to be built upon as part of the proposed development application, but he did not delineate the precise boundaries of this category. The development application therefore "related to" the Century Plaza land. His Honour found that it was a relevant consideration that a right of way formerly used exclusively by the club members and their guests would henceforth be used by different persons, and that the use of land was included in the concept of "development" as defined in s 4 of the EP&A Act.
Sheller JA, in the majority judgement, relied on authorities relating to the use of easements to show that the use of the easement proposed by the development application was within the rights of the dominant tenement. His Honour then stated (at 450): Unless the development of the Club land results in a change of the manner or purpose of the user of the rights of footway or an excessive user of them, the owners of the servient tenement... cannot prevent or interfere with that use.... No one proposes to carry out any development, as the Act defines that word, on the Century Plaza land.... In the absence of any evidence that it is proposed to use the easements in a way not permitted by their terms or to erect a building or carry out a work in, on, over or under the servient tenement there is not nor is there any need for a development application which relates to the servient tenement.
The High Court on appeal did not endorse this approach, rather it stated (North Sydney Council v Ligon 302 Pty Ltd (1996) 185 CLR 470 at 475-6): With respect, the need for consent to a use of land is not dependent on the terms of the proprietary or contractual rights of persons proposing to use the land or to suffer the use of the land by others.... Nor is it self-evident that a relationship for the purposes of s 77(1)(b) between a development application for consent to erect a building on one parcel of land and an adjoining parcel of land is established by the need for consent to a development on the adjoining parcel.
The High Court also found that the consent of the owner of the Crown Plaza land was not required, but on a different basis. Its conclusion was based on the fact that the purpose of obtaining a consent is to obtain relief against the prohibition contained in s 76(2) of the EP&A Act (now effectively re-enacted as s 76A(1)), which was a prohibition imposed on particular parcels of land by an environmental planning instrument. It adopted an interpretation of the word "relates" in this context which was limited to the parcel of land on which the development the subject of the application was to be carried out (at 476).
It was accepted by the High Court that a development "carried out on one parcel of land may entail a development on an adjoining parcel or on another parcel in the locality"; however, the proper place for taking into account such developments was a relevant consideration under s 90(1)(h). The High Court concluded (at 477): 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.
Currey v Sutherland Shire Council (1996) 92 LGERA 85 concerned a subdivision of land, access to which had to be gained via an existing right of way over a lot in separate ownership (lot 1). Pearlman J, following Ligon, found that the consent of the owner of lot 1 was not required because of the mere fact that access to the proposed new lots had to be gained over lot 1 did not make lot 1 the land to which the development application related, and that the development application did not require any works to be done on lot 1 (although the council had subsequently required details of road upgrading on lot 1 to be provided as part of the consent process).
The Court of Appeal in Currey v Sutherland Shire Council (1998) 100 LGERA 365 upheld Pearlman J's decision, but used a different reasoning process to arrive at the same conclusion. Stein JA said (at 367): In my opinion, the appellant's submission that the development application is invalid because it lacks the consent of the owner of lot 1 is misconceived. This is apparent from answering the following question. What was the subject matter of the development application? When this is examined, it is abundantly clear that it is the subdivision of lot 4 into three lots. The development application did not encompass lot 1, nor did the council grant consent to carry out development on lot 1.
This passage suggests that the approach may be one of characterisation; if one determines the true "subject matter" of the application and the land to which that "subject matter" applies, the implication is then that one may ignore ancillary works which are to take place on other parcels of land. But this impression is counteracted by Stein JA's reference to evidence showing that the off-site road improvement proposals were not part of the initial application. This suggests that he may have been willing to regard lot 1 as part of the land to which the development application "related" if these works had been part of the application from the outset.
Pearlman J in Lyne v Moree Plains Shire Council looked at an application for proposed development involving the subdivision of land and associated sewerage works, not all of which was to be on the applicant's land. The first question to be decided was whether the application was one for designated development, by reason of the sewerage works. Pearlman J held that it was not, having regard to the manner in which the application was expressed and to the fact that the sewerage details had been provided to the council in order to satisfy the requirement for information under the local environmental plan. Pearlman J rejected the applicant's alternative submission that the subdivision could be regarded as the "dominant" purpose of the application, to which the sewerage works were a "subservient" purpose. This submission was found to be untenable because subdivision was not a "purpose" under the EP&A Act.
The question of whether the owner's consent was required was then answered by her Honour by saying that the "finding in relation to the first preliminary question of law furnishes the answer to the second preliminary question of law". I do not read this conclusion, as Mr Officer does, as showing that Pearlman J was using the characterisation test as a means of resolving the question of what land the development related to. Rather, I would take it to mean that the same factual elements had answered both questions, namely, a construction of the application which saw it as only seeking consent to the subdivision and not the sewerage works also precluded a finding that the land on which the sewerage works were to be constructed was land to which the development application "related". This is supported by the following remarks (at 127-128): I have found that the development application has been made in respect of a subdivision of the specified allotments into rural residential lots. It has not been made in respect of the sewerage removal system, and accordingly it does not involve any use of TSR 132234.
In the present case it is not as easy as it may have been in some of the above cases to determine the lots "on which the specified development is proposed to be carried out". I have come to the conclusion, nevertheless, that the application only seeks consent for development on Heavens Door's land, for the following reasons.
All of the express indications in the development application relate to Heavens Door's land. The application is made on a modified version of Form 1 under the 1994 Regulation. Under the section "Land to be developed", lot 1 of section 2 of deposited plan 601049 is identified as the subject land. All of the plans attached to the application identify Heavens Door's land as the land on which the proposed development will take place.
I must have regard also to the supporting documentation which was submitted with the development application.
The Environmental Impact Report, from which I have set out extracts at pars [20] and following, deals with the question of access to the proposed lots which is a necessary consideration under s 79C of the EP&A Act. In particular I have noted the following: Although the subdivision has access to a crown road, the preferred access will be provided by a right of carriageway from Tanglewood Drive to the land. Whilst preparing this application, it was discovered that there were some problems with the actual past creation of the right of carriageway which will be further expanded upon in a later section of this report. As a result we will be seeking approval for this subdivision with a deferred commencement of the approval pending finalisation of the right of carriageway access.
Further on, the report gives a detailed history of the legal issues surrounding access over the proposed right of carriageway. The only mention of work possibly being done on the carriageway is the following: When the right of carriageway is formally created, it will either follow the existing track, which would be preferable, or else the access will have to be constructed within the original right of carriageway proposed.
It is proper for such a report to consider the question of access to the site, including the arrangements which may have to be made, or the work which may have to be done off-site in order to secure access. This does not change the character of the application. It remains clear that the application only relates to the work to be done on the subject land.
The Statement of Environmental Effects is more ambiguous, however, in that it includes some passages which appear to refer to the proposed road upgrades as part of the proposed development. These are cited above at par [23].
I note in particular, under sub-heading (g), the statement that "the existing road within the right of way will be sealed as part of the development". Section (l) notes that there will be some removal of vegetation required "[d]ue to the reconstruction of the existing access... in particular if it is required to reconstruct the road within the existing proposed right of way."
The fact that these statements are made in a statement of environmental effects, however, inclines me to regard them as considerations being put forward for the purpose of considering the off-site impacts of the development, rather than as aspects of the development for which consent is being sought. It is less probable that consent is actually being sought to do works on Hillpalm's land when one has regard to the fact that the right of carriageway has yet to be formalised and that the second respondent was, for that reason, expressly seeking a deferred commencement consent.
I do not consider the comments of the council's officers as to whether Hillpalm's consent was required to be relevant. It is a question of construction for this Court to decide which is the land to which the development application relates, and it is beside the point what views the council's officers may have formed on this subject.
Neither do I consider it relevant that the council, when it granted consent, imposed conditions related to work to be done on Hillpalm's land. As Stein JA said in Currey at 368, "...the fact that the council imposed a condition requiring work to be carried out on land outside the subdivision does not give rise to its notional inclusion within the development application..."
As I have found that the application was one for development only within Heavens Door's land, it follows that Heavens Door's land was the only land to which the development application "related" for the purposes of cl 46 of the 1994 Regulation. Hillpalm's consent was not required. The application, very properly, considered the possible impacts on Hillpalm's land by virtue of the possible construction of the access road to the subdivision, but this did not convert it into an application relating to Hillpalm's land. Ground (2) Denial of Procedural Fairness Submissions of the Parties
The applicant submits that it was denied procedural fairness in that it was not notified of the lodgement of the subject development application and given an opportunity to make representations thereon. As the applicant had no legal right to be heard, it needs to show that it had a legitimate expectation to be so notified. Mr Officer advanced two possible bases upon which a legitimate expectation might have arisen. Firstly, it was submitted that there was a council policy of notifying neighbouring landowners likely to be affected by the grant of development consent in circumstances such as the present case, where there was likely to be a more than a minimal impact on another landowner. In the alternative, if the Court does not find that there was such an established policy, Mr Officer secondly submits that the circumstances of the application and the likely impacts themselves gave rise to a legitimate expectation that the applicant would be notified and given an opportunity to make submissions.
As to the first basis, Mr Officer cited Somerville v Dalby (1990) 69 LGRA 422 at 427 and Glowpace Pty Ltd v South Sydney City Council (2000) 111 LGERA 84 at 89 for the proposition that where there is a regular policy by a consent authority of giving notice of development application to adjoining landowners, this may give rise to an enforceable expectation to give such a notice in each case, and that any representations made in response to such notification be considered before the final determination of the application.
The respondents, however, disputed the existence of any such policy in the present case and adduced evidence to refute the claim. Mr Robertson, for the second respondent, further submitted that even if such a policy existed it could nevertheless be distinguished from the policies identified in Somerville and Glowpace. In those cases there was a policy of notifying neighbouring landowners without a distinction. A policy of notification which depends upon the council's perception of the impacts on neighbouring properties is less predictable and therefore, it could be said, less likely to give rise to any kind of expectation. Mr Robertson also argued that Somerville was no longer applicable as significant changes to the EP&A Act in 1997 had created a comprehensive code governing the right to be heard relative to development applications, which then left no room for the implication of any further entitlement, and put forward that Glowpace was flawed for failing to take account of these changes (Rapid Transport Pty Ltd v Sutherland Shire Council (1987) 62 LGRA 88 at 94).
The second basis for a legitimate expectation is said to be the nature and extent of the work proposed by the application and referred to in the conditions of consent and its impact on the applicant's land. Mr Officer cited Kioa v West (1985) 159 CLR 550, but unfortunately did not specifically refer to which passage or passages in that voluminous judgement upon which he relied. Mr Robertson submitted that the common law duty to accord with the rules of procedural fairness arises only in particular circumstances, such as where there is a regular policy of notification or an assurance given to a party that it would be notified (Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 20-21), and that no such circumstances arose here. Provided that the Court takes the view that the application relates only to Heavens Door's land and does not propose any work on the applicant's land, it is submitted that the applicant is not affected any more than other neighbours by the proposal and therefore it had no particular reason to expect that it would be notified.
Whether the expectation be based upon a policy of notification or otherwise, Mr Webster submits that there is no evidence that the applicant had ever even entertained an expectation that it would be notified. I make the observation that the question of whether proof of actual expectation is a necessary precondition to find that a legitimate expectation was not fulfilled is the subject of conflicting High Court opinions. In Minister for Immigration and Ethnic Affairs v Teoh (1994) 183 CLR 273, Mason and Deane JJ (at 291) found that an actual expectation was not a necessary element, whereas McHugh J (at 314) expressed the opinion that "[f]airness does not require that a person be informed about something to which a person has no right or about which that person has no expectation". Mr Officer submits that the existence of an expectation on the part of the applicant may be inferred from a letter sent by its solicitors to the council on 2 February 2000 in which it complained inter alia of the council's failure to notify, or may be inferred simply from the existence of a policy of notification, if one is found to exist.
Mr Robertson finally submits that even if the council had an enforceable duty to the applicant as a party enjoying a "legitimate expectation", this did not require the applicant to be notified of the subject development application prior to the grant of consent. This was so because, if the court accepts the interpretation of the consent advanced by the second respondent, such consent did not authorise the carrying out of any works upon the applicant's land. Further steps would have to be taken before works could be done on the right of way on the applicant's land; that is, a separate development application, or at least an application for a construction certificate, would have to be made in respect of the works. At that stage the applicant's consent would have to be sought, or at least the applicant be afforded an opportunity to make submissions. Where there is more than one layer of decision-making to be done in relation to a particular matter, and the one layer more closely affects the rights and interests over the property of a party, and the party has an opportunity to be heard at that stage, the fact that the person did not have an opportunity to be heard at an earlier stage may not constitute a failure to accord with the rules of procedural fairness (South Australia v O'Shea (1987) 163 CLR 378). Facts
The council did not have a written or published policy relating to the notification of development applications. Hillpalm nevertheless asserts that the council had an unwritten policy or practice of notifying development applications such as the application for subdivision in the present case. No notification of any kind was given in relation to the subject application.
Hillpalm relies on the evidence of two witnesses: Ms K Shapland, a consultant town planner who had been employed by the council for about 11 years from March 1989 to August 2000, during which time she had also worked as a development control planner and a senior subdivision planner within the council; and Mr J Glazebrook, a consultant town planner who was employed by the council as a senior statutory planner and deputy chief planner for seven years, concluding ten years ago.
Ms Shapland referred to Development Control Plan No. 42 which was adopted by the council on 3 June 2001 and which is the council's present notification policy. This policy would have required notification to all the owners of adjoining land to the site of the proposed development if the development control plan had been in place when the present development application was made. Ms Shapland testified that when the subject development application was lodged, there were no formal notification requirements in place, nor was it a common practice for the council to notify all adjoining landowners of an application for rural residential subdivision.
However, Ms Shapland describes in her affidavit an informal practice which had existed when she was employed by the council. After about late 1998 each development application would be presented to an area team meeting (comprising of a planner, engineer, building surveyor and an environmental health officer). The impact and the significance of the proposed development on the adjoining land was discussed at such meetings and if the potential adverse impact was considered to be more than minor in nature, then it was usually decided that the council would advertise or notify the affected neighbours.
Ms Shapland further states that the characteristics of the subject application, including the creation of an easement, or a proposal for works on an existing or proposed easement on an adjoining property and the intensification of the traffic thereon, would have been considered a sufficient impact to warrant a notification to the neighbour under this policy.
Prior to the introduction of area team meetings, development applications were assessed by either a development review team or a development assessment panel which adopted the same criteria for notification. Ms Shapland attests that during the period from 1995 until her departure from the council in August 2000, "between 10 to 15 development applications each year required advertising or notification to adjoining owners in accordance with the established policy and practice of the first respondent".
Ms Shapland in cross-examination accepted that her assessment of the need for a notification had been based on an understanding of the application as proposing the construction of road works on the applicant's land: Q: Miss Shapland, if this development only relates to my client's land (the Heaven Door land), you'd be of the opinion that it didn't require notification wouldn't you? A: If it only related to your client's land, and there was no proposal to construct an access over their land, then yes.
Ms Shapland also conceded that her view, which was that the proposed access via a right of way should have required notification, was based upon an assumption that there was no right of way in existence. Ms Shapland also conceded that if the development application was not seeking to carry out work on land other than on the applicant's own land, then there was no need to notify the adjoining landowners under the informal practice of the council.
Mr Glazebrook's evidence on the question of the council's practice was simply that he would have expected that Hillpalm would have been notified of the development application and be provided with an opportunity to comment thereon. He did not specify the characteristics of the development application which, in his view, should have prompted notification. It is also to be noted that he ceased working for Tweed Shire Council some ten years ago.
Mr D G Anderson, a town planning and development consultant, gave evidence for Heavens Door. He had been employed by the council as a manager of subdivisions from June 1991 to 1 September 2000. He confirmed that the council was under no statutory duty to notify the development application to adjoining landowners and during his time with the council there was no general policy to advertise or notify applications for rural residential subdivision. Mr Anderson's evidence on the council's notification policy markedly differed from that of Ms Shapland's. He stated that the council would notify an adjoining landowner of a proposed development when the application raised public interest issues, was unconventional or unusual, had the potential to generate significant environmental impacts, or was inconsistent with the council's planning policies. As a consequence of the application of this policy, he estimated that some two or three applications per year were notified in the time he was with the council. He disagreed with Ms Shapland's view that applications which posed impacts of not minor nature were notified. According to Mr Anderson: If that were criteria the vast majority of development applications for subdivisions would have needed to be notified and advertised, and certainly that wasn't that occurred.
I have noted that Mr Anderson did state, however, that the council did, as a matter of general practice, advertise and/or notify applications in circumstances where the application raised public interest issues, was unconventional or unusual, had the potential to generate significant environmental impacts, or was inconsistent with the council's planning policy. The evidence shows that of the 237 development applications for subdivisions made between 1994 and 1999 to the council, there were only three notifications. According to Mr Anderson the three applications that were notified involved significant public interest issues. He said that it was reasonably common for rural residential subdivisions to have access by a right of way, now recognised by Development Control Plan No. 16, which allows access for up to five allotments by the right of way. Mr Anderson expressed the view that the subject development application had the potential to impact upon Hillpalm's land to a minor extent. He said that this was a development application for a conventional rural residential subdivision which complied with the relevant planning controls. It was clear, in his opinion, that this development application was not one that the council would, as a matter of general practice, have advertised or notified.
Mr S Enders, the co-ordinator of development assessment with the council, confirmed in his evidence that at the time when the development application was made and was considered by the council, there was no adopted policy requiring subdivision applications to be advertised or notified, neither was it a common practice for the council to notify subdivision applications. Mr Enders confirmed that the practice of the council at that time had been for the council's area team meeting to determine whether to give notice of a development application. Mr Enders said that when notification occurred it was because of particular public interest issues in those cases. Conclusions
In Somerville v Dalby (1990) 69 LGRA 422, Hemmings J found that where there was a regular policy of notifying all adjoining landowners of a development application, the neighbours would have a legitimate expectation of receiving such notice. He referred to this as a settled category of case where the requirements of natural justice demanded notification, whereas in other cases the rules of natural justice were displaced by the statutory code (at 427): It is well-established in this Court that the regular application of a policy by a consent authority to give notice to adjoining owners of applications for development consent would give rise to an enforceable expectation that such notice would be given, and representations made, if any, would be considered before determination of the application: see Hardi v Woollahra Municipal Council and Wasserman (Land and Environment Court of NSW, Cripps J, 17 December 1987, unreported) and Rapid Transport Pty Ltd v Sutherland Shire Council (1987) 62 LGRA 88. Otherwise, the common law presumption of the application of the rules of natural justice is displaced by the statutory code. The contents of the requirements of natural justice or procedural fairness vary with the circumstances. In my opinion, such legitimate expectation does arise out of this Council policy and its continuous application.
A review of the cases cited by Hemmings J confirms that the first, Hardi, was also one in which there was a policy of notifying all neighbouring landowners and that such policy had actually been explained in writing to the applicant. In the second case, Rapid Transport Pty Ltd there was no such policy or practice. Stein J in that case accepted that the EP&A Act provided a code which generally excluded the implication of a requirement to give notice, although he may have been willing to find that an expectation arose where there was a regular practice of notification (Rapid Transport Pty Ltd v Sutherland Shire Council (1987) 62 LGRA 88 at 94): I think that there is much to be said for the code argument. From an examination of the legislative framework, it seems to me that the legislature has effectively precluded any room for implication of the requirement of the giving of notice and the right to be heard in applications such as the present one. Nor do I think that such an implication arises from the common law, particularly in the light of the administrative practice of the council. Therefore, whilst consent of the council is required, in my opinion it is under no obligation to give notice or grant a right to be heard. In summary I reject the submission that the applicant had a legitimate expectation to be given notice before the FBL [Foreshore Building Line] was varied and consent granted. It follows that the rules of administrative fairness just do not come into play. On the other hand if the council had a practice of giving notice, as many do, then the applicant would undoubtedly be on stronger ground.
Glowpace Pty Ltd v South Sydney City Council (2000) 111 LGERA 84 was a case also where there was an admitted policy of notifying all adjoining landowners of development applications, which was found to give rise to a legitimate expectation of notification.
It is clear in the present case, as was conceded by Ms Shapland and Mr Glazebrook, that the council did not have a general practice or policy of advertising or notifying all development applications for rural residential subdivision. This was confirmed by Mr Enders and Mr Anderson. The highest at which Mr Officer can put his case, through Ms Shapland's evidence, is that there was a practice of notifying neighbouring landowners if there was a potential impact on those landowners which was not of a minor nature. If this practice existed, then it led to the notification of only three out of 237 development applications for all subdivisions in the period from 1994 to 1999.
I agree with Mr Robertson's submission that this characteristic distinguishes the present case from the earlier authorities. I cannot see how a practice of notification, which depended upon the council's perception of the likely impact on other properties, and which had resulted in so few notifications, could realistically have given rise to an expectation on the part of any particular property owner to be notified of any particular development application.
Moreover, I am not convinced on the evidence that the practice, such as it was, should have led to a notification in this particular case.
I favour Mr Anderson's interpretation of the criteria for notification over Ms Shapland's, as Mr Anderson's criteria are more consistent with the small number of notifications which actually occurred. They are also supported by Mr Ender's evidence that notifications only occurred where particular public interest issues were raised by an application. In other words, the evidence does not support Ms Shapland's opinion that, under the council's informal practice, this development application was one which would and should have been notified.
Ms Shapland conceded in cross-examination that if the development application had not proposed any works on the applicant's land, there would have been no need to notify. I have found as a matter of fact that the development application did not seek the creation of a right of way, neither did it propose the construction of works on the right of way, rather that carrying out of any such works would have required a further application. Neither does it seem to me that the intensification of traffic on a right of way would necessarily have triggered the practice and policy of notification to the adjoining landowner. The evidence shows that the provision of access to rural residential subdivisions by a right of way is not uncommon. Moreover, the benefit of a right of way attaches to the dominant tenements in their subdivided form, so that Hillpalm could not in any event complain of any increased use of the right of way (Gallagher v Rainbow (1994) 179 CLR 624).
I accept Mr Anderson's evidence that there were no particular public interest issues raised by the subject development application; that it was a conventional rural residential subdivision which complied with all of the council's relevant planning controls and did not appear to pose any significant environmental impacts. I thus agree with the opinion of Mr Anderson that, under the council's then general practice or policy, the development application was not one which would normally have been either advertised or notified.
I find that Hillpalm did not have a legitimate expectation that it would be notified based on the council's practices and policy. It is therefore unnecessary to decide the interesting question raised by Mr Robertson of whether the 1997 changes to the EP&A Act require a re-assessment of the common law principles relating to the policies of notification and whether they can give rise to a legitimate expectation notwithstanding the existence of a comprehensive legislative scheme governing the notification of development applications. Nor is it necessary to decide the question raised by Mr Webster of whether Hillpalm needs to show an actual expectation.
I now turn to Mr Officer's submission that regardless of council policy, given the nature of what was proposed, and the fact that council was intending to impose conditions which would eventually require work to be carried out on its land, Hillpalm should have been notified as a matter of procedural fairness, and given an opportunity of making submissions.
The underlying principles of common law were stated in Kioa v West by Mason J as follows (at 582): [W] hen an order is to be made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it…
It can be seen from this that although the category of persons entitled to complain of a lack of procedural fairness is fairly broad and does not depend upon the existence of a strict legal entitlement, the person still needs to be able to show that they are affected in a particular way by the making of the decision; that they have at the very least a "legitimate expectation" in relation to that decision. That expectation may be of a substantive right or benefit, or it may merely be an expectation that the complainant would have the benefit of certain procedures being followed (Attorney-General (NSW) v Quin at 21).
A further exposition of the principle of a legitimate expectation and the circumstances in which it will arise is given by Mason CJ in Attorney-General (NSW) v Quin, at 20: It is the presence of a legitimate expectation which conditions the existence of a claimant's right to procedural fairness and the corresponding duty of the decision-maker to observe procedural fairness in the treatment of the claimant's case. The content of that duty is dependent upon the circumstances of the particular case, but its existence is determined by reference to legal principle. So, a legitimate expectation may be created by the giving of an assurance [ Salemi v MacKellar (1977) 137 C.L.R. 487, at p. 440; Kioa v West (1985) 159 C.L.R. 550, at p. 583; Council of Civil Service Unions v Minister for the Civil Service [1985] A.C. 374, at p. 401], the existence of a regular practice [ Heatley v Tasmanian Racing and Gaming Commission (1977) 137 C.L.R. 487, at pp. 508-509 ; Kioa at p. 583 ]; Council of Civil Service Unions at p. 401] , the consequences of denial of the benefit to which the expectation relates [ F.A.I. Insurances Ltd v Winneke (1982) 151 C.L.R. 342 ; Kioa at p. 583] or the satisfaction of statutory conditions [ In re H.K. (An Infant) [1967] 2 Q.B 61]. The list is not exhaustive, but provides indications of the kinds of factors which a court will take into account in deciding whether or not an expectation is legitimate .
The factor which is distinctive in the present case is that the decision to grant consent for a subdivision of the second respondent's land involved the imposition of a condition which required construction of a road across the applicant's land. I have found that the construction of this road was not actually consented to as part of the development consent. The approval of the subdivision led, however, to the need for a road of a certain standard. Therefore, it was proper to consider the potential impacts of the construction of such a road at the time when the subdivision application was being determined. For this reason the Statement of Environmental Effects included consideration of the environmental impacts of the road; for example, the need for erosion control measures and the removal of vegetation.
A separate consent would need to be sought for the construction of the access road, and it is at that stage when Hillpalm's consent would have to be obtained. I do not agree with Mr Robertson, however, that this would be the most appropriate time for Hillpalm to make its submissions. Once application for the subdivision had been approved, the road works over Hillpalm's land became the most viable access option; and the council was almost certain to grant consent to the construction of road works, as they were requested by its own conditions in the consent. It would be practically impossible at this point for Hillpalm to convince the council that the road should not be built, although it may be able to have some say as to the manner in which it may be built. Nonetheless, if it had been consulted at an earlier stage it may have been able to put forward submissions as to why the development taken together with all its impacts, including the impacts of the road, should be refused or modified on planning grounds.
I would regard Hillpalm as potentially seriously affected by the application were it not for the fact that Hillpalm's land was already subject to a development consent requiring the creation of the access road across its land. By dint of the 1977 consent, Hillpalm was already bound to construct a gravel road 2.5 metres wide across its property and provide a 10 metres access corridor to the lot (now owned by Heavens Door) which had been excised from its own lot. The new approval would eventually require the road to be upgraded to a 4.0 metres wide pavement and sealed with bitumen, but not at Hillpalm's cost. Ms Shapland testified that this was in itself an impact, but was unable to identify any adverse consequences to Hillpalm arising from the road upgrading.
In these circumstances, the potential impact of the decision on the applicant is comparatively minor. I would not, therefore, regard the applicant as standing in any special relationship to the subject-matter of the decision which would give rise to a legitimate expectation. The cases referred to by Mason CJ above where the "consequences of denial" of the relevant benefit created a legitimate expectation were cases where these consequences were extremely grave. In F.A.I. Insurances Limited v Winneke (1982) 151 CLR 342, the applicant was threatened with the loss of a licence to carry on workers compensation insurance, which deprived it of a large part of its business. In Kioa v West the applicants faced deportation. The present case does not fall into one of these categories, nor in my view does it have any other characteristics which gave rise to a legitimate expectation on the part of the applicant.
These reasons are sufficient to dispose of the ground, but for completeness I should also note, as submitted by both Mr Webster and Mr Robertson, that it appears that the implication of a statutory duty to accord with the rules of procedural fairness is excluded by the statutory framework governing the determination of development consents in this State.
Mr Webster contends that there is no room for the implication except where there is an established policy of notification on the part of the council. Mr Robertson would take this one step further and say that the provisions for public participation in the EP&A Act are now so comprehensive that there is no room at all for the implication and the line of authority relating to notification policies is no longer applicable.
The general principles by which the implication to accord with the rules of procedural fairness may be excluded, were expounded by Barwick CJ in Twist v Randwick Municipal Council (1976) 136 CLR 106 at 109-110 as follows: 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: see Cooper v. Wandsworth Board of Works [(1863) 14 C.B. (N.S.) 180 [143 E.R. 414] and R. v. Electricity Commissioners; Ex parte London Electricity Joint Committee Co. (1920) Ltd. [[1924] 1 K.B. 171, at p. 205] . But the legislature may displace the rule and provide for the exercise of such a power without any opportunity being afforded the affected person to oppose its exercise. However, if that is the legislative intention it must be made unambiguously clear. In the event that the legislation does not clearly preclude such a course, the court will, as it were, itself supplement the legislation by insisting that the statutory powers are to be exercised only after an appropriate opportunity has been afforded the subject whose person or property is the subject of the exercise of the statutory power. But, if the legislation has made provision for that opportunity to be given to the subject before his person or property is so affected, the court will not be warranted in supplementing the legislation, even if the legislative provision is not as full and complete as the court might think appropriate. Thus, if the legislature has addressed itself to the question whether an opportunity should be afforded the citizen to be relevantly heard and has either made it clear that no such opportunity is to be given or has, by its legislation, decided what opportunity should be afforded, the court, being bound by the legislation as much as the citizen, has no warrant to vary the legislative scheme.
In Somerville v Dalby (1990) 69 LGRA 422 to which I have referred, Hemmings J at 427 referred to both the policy doctrine and the general exclusion of procedural fairness encapsulated in the planning law. With respect, I believe that his Honour may have overstated the scope of the latter principle. The relevant passage of the judgement is set out at par [97] above.
Hemmings J cited no additional authorities for the latter proposition and did not base his conclusion on the analysis of the provisions of the EP&A Act. Of the two authorities he cited, Hardi does not discuss the possibility of the exclusion of the implication, while in Rapid Transport (noted in par [98] above) Stein J found that the implication is excluded, but made it clear that his finding was based upon the circumstances of the case and the particular legislative framework in which the decision was made. I would not, therefore, rely on this case alone as an authority for the proposition that the rules of natural justice are displaced by the statutory code in all cases relating to the EP&A Act where there was not a regular policy in place.
In Rapid Transport Pty Ltd v Sutherland Shire Council (1987) 62 LGRA 88 Stein J followed, and quoted extensively from, the decision of the Federal Court in Idonz Pty Ltd v National Capital Development Commission (1986) 58 LGRA 99. In particular, he noted (Rapid Transport at 92) Fox J's observation in Council of Civil Service Unions v Minister for Civil Service [1985] 1 AC 374 that the difficulty of determining planning applications and the need to take into account broader interest "adds conviction to the view that, in general, the consideration of a planning matter does not invoke the rules of natural justice so far as concerns third parties." That decision, however, also turned on an application of the relevant statutory requirements, and did not lay down any universal principle as to the exclusion of the implication of procedural fairness in planning law cases.
Ultimately, in order to determine whether the obligation to accord with the rules of procedural fairness is excluded, one must look at the whole of the statutory framework in which the decision is made, and ask the question which Barwick CJ posed in Twist, namely, whether the legislature "addressed itself to the question whether an opportunity should be afforded the citizen to be relevantly heard and has either made it clear that no such opportunity is to be given or has, by its legislation, decided what opportunity should be afforded", so that the court has no warrant to supplement what is provided by the legislation.
Rapid Transport itself concerned the determination of a consent for a residential dwelling together with an objection under State Environmental Planning Policy No. 1 to vary a foreshore building line. The complainant was an adjoining landowner whose views were affected by the proposed development. Stein J found that there was no obligation to notify the complainant of either the application itself or the objection under the State Environmental Planning Policy No. 1. His Honour endorsed the following submissions of counsel (at 94): It is the submission of Mr Hemmings that the legislation provides a code for the right to be heard in the determination of the variation to the FBL [Foreshore Building Line] under SEPP 1 and that such code does not require the giving of notice or a right to be heard. Clause 34 of the Sutherland Planning Scheme Ordinance, a deemed environmental planning instrument under the Environmental Planning and Assessment Act, provides that notice must be given by advertisement for all applications other than development of land for the purpose of a dwellinghouse or residential flat building. Section 84 of the Act sets out specific notice requirements in relation to designated development, which are not relevant here. Regulation 14 of the Miscellaneous Acts (Planning) Savings and Transitional Regulation 1980 requires notice to be given of applications to erect residential flat buildings as previously required by s 342ZA of the Local Government Act. SEPP 1 contains no express obligation to notify any person who may be considered to be affected by a variation of a development standard, here the FBL. And in this respect the council's adopted code for foreshore development makes it plain that the objectives of the FBL are twofold: to maintain the foreshore in its natural state and to have regard to the view of the foreshore from the waterway. Who then, one might ask, should be notified of the application to vary the standard under SEPP 1?
As can be seen from the above citation, this decision relied more heavily on the provisions of the relevant subordinate instruments, none of which are relevant here, than it did on the provisions of the EP&A Act. However, the same considerations lead to a finding that in the present case the legislation has also precluded the implication of any further requirements to fulfil the duty of procedural fairness.
Under the current Pt 4 of the EP&A Act, development may be classified as State significant development or local development (of which there is a further sub-category, namely, complying development). There is also provision for the kinds of development to be declared as advertised development or designated development by the regulations, local environmental plan, or development control plan (ss 4, 72, 77Aof the EP&A Act). Depending on how an application is classified, the EP&A Act sets out different notification and advertising procedures. These procedures are extremely detailed and specific. For example, if an application is for designated development, the council must notify adjoining landowners and any other person whose use or enjoyment of their land may, in the opinion of the council, be detrimentally affected by the application, and publish a notice in a local newspaper (s 79). It must also exhibit the application for 30 days and receive submissions.
The 1994 Regulation stipulated similar notification requirements for State significant development, integrated development and advertised development (see cll 64 and 65).
The local environmental plan also forms part of the legislative framework. Ms Shapland testifies that at the time when the subject application was lodged, the applicable local environmental plan was the Tweed Local Environmental Plan 2000. Though it contained limited provisions for the notification or advertisement of development applications, there was no requirement that development such as the subject development be notified.
In my view this complex and highly prescriptive scheme for public participation in the determination of development applications leaves no room for the implication that the legislature intended that there should be any additional requirements of notification. It has clearly turned its mind to the question of who needs be notified and who does not need to be notified; and having provided a detailed answer to that question, there is no warrant for the court to supplement that answer.
It is not necessary to decide whether, as submitted by Mr Robertson, this statutory code excludes the implication even where there is an established policy of notification.
For completeness, I should also state my findings on the question of whether Hillpam actually received notification or had a legitimate expectation to receive a notification.
Mr Robertson adduced evidence to show that Hillpalm had, in any event, been given notice that Heavens Door had lodged a development application for a subdivision. On 27 October 2000, in the course of the previous proceedings which were determined by Sheahan J, the solicitor for Heavens Door, Mr B Woolf, handed to Mr Newton, who was representing Hillpalm, an affidavit sworn by Mr Weller, director of Heavens Door. The affidavit was also read to the Court on that day. Paragraph [13] of the affidavit states: "On 21st day of September 2000 I caused to be lodged a development application for the subject land for subdivision of land into 5 lots." The affidavit is equivocal, however, because it annexed (inter alia) a letter from Mr Woolf to Hillpalm's solicitor dated 23 October 2000 which includes the following statement: "Our client has applied for development approval for the subdivision of land. The application has been rejected by the council due to lack of formal access." This statement would suggest to the reader that, although a development application had been lodged, there would be no point in making any submission to the council because it had been rejected. In my opinion it would not be correct to say, as Mr Robertson suggested, that Hillpalm knew the development application was before the council and still chose to do nothing about it.
Both Mr Webster and Mr Robertson also submit that there was no evidence adduced by Hillpalm to suggest that it had a legitimate expectation to be notified of the subject development application. Further, there is no evidence from Hillpalm of what it would have done if it had been notified and, in particular, no evidence that it would have made any submissions to the council at all, for that matter.
There is in evidence, however, of a letter from Hillpalm's solicitors to the council dated 2 February 2001. That letter states: Our client has never been informed of this application being made and our client's consent has not been obtained to the making of the application. Our client was not even notified that the application was before the Council.
Whilst no evidence is adduced from Hillpalm or any of its directors or officers, it would appear from the terms of this letter that, if notified, it would not have passively done nothing. Hillpalm's complaint that it was not notified that the application was before the council suggests that, if notified, it would have made a submission with regard to the application subdivision.
Whether any submission may have made a difference to the council's decision is doubtful, however, in view of the right of the landowner or landowners of the dominant tenement to use the right of way; to require Hillpalm to consent to any development application for construction of the right of way (Kirkjian v Towers, unreported, Waddell CJ in Eq, 6 July 1987; 117 York Street Pty Ltd v Proprietors of Strata Plan No. 16123 (1998) 98 LGERA 171); and the right to construct the right ofway for the purpose of carrying the traffic for which purpose it was created or required to be created (Newcomen v Coulson (1877) 5 Ch D 133 at 143). In so saying I accept, as I must, the judgment and orders of Sheahan J of 7 June 2001 (see Heavens Door Pty Ltd v Hillpalm Pty Ltd (2001) 116 LGERA 138).
The question remains, however, as to whether, in the absence of any evidence adduced from Hillpalm, it can be said that it had a reasonable expectation to be notified by the council of the development application. It seems to me that the facts in the present case do not fall within the principles expounded in Kioa v West. The development application that was made expressly stated that it was seeking the subdivision of lot 1 and had sought a deferred commencement consent "pending finalisation of the right of carriageway access". The construction of the right of way was to be the subject of a further and separate application. No consent was sought by this development application for the carrying out of works upon Hillpalm's land being the right of way. Moreover, it is Heavens Door which has the benefit of the right of way and it, rather than Hillpalm, is the party who is potentially affected by both the use and the construction of the right of way.
Any subsequent development application for the construction of the right of way, of course, would require the consent in writing of the owner of the land to which such a development application related, namely, Hillpalm as the owner in fee simple. Moreover, any application for a construction certificate for the construction of the right of way (if that is all that is required) must be made with the consent in writing of the owner of the land (s 109(I)(a) of the EP&A Act; cl 139(1)(a) and Sch 1, Pt 3, cl 5(g) of the Environmental Planning and Assessment Regulation 2000). In either case, Hillplam, being aware of the application, would have the opportunity to make submissions thereon to the consent authority.
As Mason J said in Kioa v West (at 585): The critical question in most cases is not whether the principles of natural justice apply. It is: what does the duty to act fairly require in the circumstances of the particular case?
In the present case the considerations outlined above suggest that there would be a clear opportunity for Hillpalm to be notified (and to make any submissions or representations to the council) when application is made in due course for a construction of the right of way road. The present development application does not "deprive a person of some right or interest" (per Mason J at 582). In particular, it does not deprive Hillpalm of "proprietary rights or interests" (per Mason J at 582). Ground (3) Deferred Commencement
In Mr Officer's submission, the effect of each of the three deferred commencement conditions was that the consent was neither final nor certain (as required by s 80(1) of the EP&A Act) and the council had failed to give the development application the consideration required by law by leaving for later decision fundamental or critical aspects of the development. (He referred to Mison v Randwick Municipal Council (1991) 73 LGRA 349, Glowpace Pty Ltd v South Sydney City Council (2000) 111 LGERA 84, and Weal v Bathurst City Council (2000) 111 LGERA 181.)
It is convenient to consider each of the deferred commencement conditions separately. Deferred commencement condition (1)
In the present case it is again necessary to consider what development was sought by development application. It was, as previously noted, an application for the subdivision of lot 1. It expressly sought a deferred commencement consent. Construction of the access road was not part of the application. The references in the accompanying reports to the construction of the access road seem to show what was intended to be done upon the further application for these works. As noted above, the conditions of the consent which relate to the standard or method of construction of the access road clearly indicate that an application for a construction certificate is required. Since the development application itself was not for the construction of the access road, it cannot be said that a fundamental or critical aspect of the application was deferred for later consideration. If the access via right of way question is not resolved, then the consent will simply lapse. The council was, in any event, aware of the location of the access, it width and the type of construction proposed. It gave consideration, by the conditions to which I have referred, to the type and method of construction which it would require. Thus, even though the development application did not extend to the access road, the council nevertheless gave consideration to the question of access and imposed conditions relating thereto. It cannot be said, therefore, that a fundamental or critical aspects of the development was not considered. In my opinion this deferred commencement condition does not, when taken with the conditions to which I have referred, infringe the principles upon which Mr Officer relies. Deferred commencement condition (2)
Part of the land, namely the south-western corner of the site, was formerly used as a banana plantation. As a consequence of this there was a potential for pesticide residues to remain in the soil. A preliminary soil contamination assessment prepared by a firm of soil consultants, Gilbert & Sutherland Pty Ltd, was submitted to the council with the development application. The preliminary soil contamination assessment provided a preliminary assessment as to whether the land was likely to be contaminated. The assessment included the collection and analysis of three soil samples in the south-western corner of the subject land near proposed houses sites to determine the presence or absence of remnant contaminants. The analysis showed that testing for all suspected contaminants was below the relevant guidelines. The report concluded that there is a very low risk that the portion of the land previously used as a banana plantation is contaminated and there would appear to be little environmental or health hazard associated with those soils. The report concludes: Based on these findings it is concluded that further sampling and laboratory analysis is not required and that the subject land can reasonably be considered, for the purpose of the proposed development, uncontaminated.
In a report on the development application prepared by Mr G J Edwards, the council's manager environment and health services, dated 19 October 2000, the issue of contaminated land is described as the major environmental and health issue. The report continues: A Preliminary Site Contamination Assessment has been provided for consideration. Soil tests were not conducted on lots 4 & 5 as aerials do not indicate bananas to have been grown in location of nominated house sites. This Assessment is considered inadequate to reasonable [sic] clear proposed house sites of potential contamination for the following reasons: · Fails to test soils for lead, which is clearly nominated in the relevant EPA Guidelines as a contaminant of concern. · Appears to have reviewed ariels photos only as source of information (which is good because it indicates the extent of bananas on site). However fails to discuss chemical storage and mixing on the site, which was likely to have occurred given extent of bananas areas. EPA Guidelines clearly indicate that mixing and storage 'hot spots' should be researched. · 3 samples only were taken, one from each site. Reference is made to Table A of the EPA Guidelines which indicate the minimum sampling regime necessary. A plan is required of the exact sampling location relevant to the proposed house sites (approval of future variations to the house site will be relevant to these sampling locations). I have discussed the above issues with the consultant and advised that they can either furnish an amended Assessment or rely on the current information for the issue of an approval which is subject to a deferred commencement condition which requires the submission of an Assessment which complies with the EPA guidelines prior to release of the linen plan.
The report of Mr Edwards recommends approval of the development application subject to a deferred commencement condition in similar terms to the condition which became deferred commencement condition (2).
In his affidavit, Mr Edwards states: [8] In the past Council had dealt, in a number of instances with similar subdivision applications where some of the land the subject of the application had been identified as ex-banana plantation by granting a deferred consent where a further soil analysis was required as a deferred condition of that consent to confirm Council's view based on experience that there is no issue with contamination based on the sort of analysis which had been supplied in this instance by Gilbert & Sutherland, consultants for the applicant. [9] In previous instances our Council had looked to the applicant to be able to provide soil analysis for those areas where it is identified that house sites are likely to be. [10] Therefore when Peter Ainsworth appraised me of the application by Heavens Door Pty and the soil analysis which had been provided by their consultants, Gilbert & Sutherland, I felt it was appropriate to recommend approval for the development with a deferred condition of consent requiring a further soil analysis. I cannot recall any instances prior to that where similar deferred commencement has been granted on contamination issues where subsequent soil analysis has indicated that there is an issue with such contamination and hence I was prepared, in this instance, to recommend consent be granted with a deferred condition.
The reference to Mr Peter Ainsworth in par [10] of the affidavit is a reference to the council's senior environmental health officer. Mr Ainsworth states in his affidavit: [4] Deferred commencement condition No. 2 was nominated by me and applied following consideration of the Preliminary Site Contamination Assessment Lot 1 DP 601049, Clothiers Creek Road, Bogangar (Gilbert and Sutherland, August 2000), a copy of which is provide [sic] in Attachment A. I had previously dealt with a number of similar situations where land was used for banana planting. [5] The Gilbert and Sutherland Assessment provided a preliminary indication as to whether the site is likely to be contaminated…. However, as one sample only per lot had been taken and the levels of lead in soils had not been examined the deferred commencement condition was applied. This was deemed appropriate as it was considered necessary that additional samples be taken and lead levels be sampled and tested as per Table B of the Guidelines for Assessing Banana Plantation Sites (NSW EPA, 1997 - Attachment C). [8] …It was my opinion based upon the earlier report of Gilbert & Sutherland that the likelihood of any contamination was low but if there was any discovered by the deferred condition, it could be remediated.
Subsequently, in accordance with the condition of consent, a revised soil contamination report was obtained from HMC Environmental Services and forwarded to the council on 25 May 2001. As to this report Mr Ainsworth deposes as follows: [7] …HMC Environmental took four soil samples for each proposed house site on lots 1, 2 and 3 (refer Attachment B - HMC Report, Appendix 3). These samples were combined in a 'composite' form, and the soil test results indicated that the house sites can reasonably considered to be uncontaminated. This conclusion is accepted, and therefore the house sites on lots 1,2 and 3 are not considered to be actually or potentially contaminated, and no remediation of the site is necessary. [8] …Further the subsequent HMC Environmental Services Report concluded that the relevant house sites are not considered to be contaminated and remediation is therefore not applicable. [9] It appears that the major concern expressed in regard to contamination is that 'certain aspects' were left for later consideration by way of deferred commencement conditions. …
The facts show that since the granting of consent with deferred commencement conditions, the applicant has supplied a further soil analysis by HMC Environmental (which forms Annexure B to the affidavit of Mr P Ainsworth sworn 31 July 2001) and which shows that there is no issue regarding contamination over likely house sites identified in the development. It is clear that the report referred to in deferred commencement condition (2) has been provided.
No evidence to contradict the evidence of Mr Edwards and Mr Ainsworth was adduced, neither were they cross-examined. I therefore accept their evidence.
Mr Officer, again relying upon Weal and Glowpace, submits that at the time of the determination of the development application by the council the question of contamination was and remained a major concern. Mr Robertson submits that the information on the question of soil contamination which was provided by the applicant for consent, namely the report of Gilbert & Sutheland Pty Ltd, states that the land did not have any machinery sheds or the like and thus there were no "hot spots" of contamination; that the levels of contamination identified in the report were so extremely low that no one could have been concerned; that there was no real likelihood of any risk; that the council had more than sufficient information upon which it could be satisfied that the issue of contamination was met; and that the council clearly gave careful consideration to the question before it endeavoured to grant the consent. It could not be said, in Mr Robertson's submission, that the council infringed the principles in Weal or Glowpace. In the light of the evidence which I have set out above I am inclined to agree with Mr Robertson.
The evidence of Mr Edwards and Mr Ainsworth shows that the condition has now been satisfied. Moreover, for the reasons set out by Mr Ainsworth (in pars [7] and [8] of his affidavit) and by Mr Edwards (in his affidavit) it is apparent that there never was any problem with contamination on this land. Even if Hillpalm is correct in its assertion that, in this instance, a critical aspect of the development was left for later consideration, I would not in the exercise of the Court's discretion grant relief just on this ground. There would be no utility in setting aside the development application on this ground and requiring the council to re-consider the application when it is now abundantly clear that contamination cannot be an issue. Deferred commencement condition (3)
Mr Officer relies upon the following evidence in the affidavit of Mr Glazebrook: [22] Condition 3 requires the submission to the First Respondent '.. of a detailed water supply management plan" [sic]. This would require the identification of the size of the proposed tank; its location; how it is to be mounted; the further elevation that such mounting may result in; the need to clear vegetation and other growth; the visual impact of the tank on all 5 Lots and any adjoining property; the location of pumps to carry water to each site; and the creation of easements and/or cross easements to enable a water supply to each of the 5 Lots. [23] It is my view that any justification of the location and size of the proposed water tank and associated infrastructure put forward by the Second Respondent could lack finality due to further considerations that would need to be taken into account by the First Respondent before a final decision could be made. [24] The size and location of the proposed tank and associated infrastructure, would raise merit considerations, such as the visual impact of the proposal on adjoining Lots and properties as well as the removal of further vegetation. These merit considerations are fundamental to the First Respondent discharging its responsibilities under Section 79c of the Environmental Planning and Assessment Act 1979. [25] The location of any proposed easements would also require consideration by the First Respondent, not to mention any third parties that may refuse the creation of any easement and render the development incapable of proving a reticulated water supply. [26] There is also no proposal in relation to the future management and maintenance of the water supply to indemnify the First Respondent from any management and maintenance responsibilities.
Mr Officer also relies upon the report of Mr Boyd, the council's subdivision engineer, dated 13 November 2001 which states (inter alia): A detailed analysis of the existing water supply capacity and pressure would need to accompany the development…
I have referred (in pars [33] to [37] above) to the application for modification of the consent made on 3 April 2001, by which the previous water supply scheme was abandoned and in lieu thereof it was proposed to provide individual 20,000 litres potable rainwater tanks on each lot in conjunction to the erection of future dwellings. I have noted that on 28 June 2001 the council modified the consent by deleting the deferred commencement condition (3).
In MLC Properties v Camden Council (1997) 96 LGERA 52 I expressed the view (at 60) for the reasons I set out, that unless or until a consent or a condition of consent is found to be void, a consent authority may modify the consent by deleting a condition. If the effect of the modification is to remove the cause of the suggested invalidity, then there is no longer any basis upon which it can be said that the consent is void.
It follows that the evidence upon which Mr Officer relies is no longer relevant. It is the development consent as modified which is the relevant consent. The modification of the consent is not to be construed as the granting of a further development consent (s 96(4) of the EP&A Act). The development consent granted on 19 January 2001 remains, but which has been modified by the deletion of the impugned condition. This consequence is also consistent with the general principle that when a document is amended, the amendment takes effect not from the date on which the amendment is made, but from the date of the original document which it amends (Baldry v Jackson (1976) 2 NSWLR 415, ANZ Banking Group Ltd v Larcos (1987) 13 NSWLR 286). It follows that this ground of challenge to the validity of the consent must also fail.
Moreover, even if I am wrong and it remains open to Hillpalm to challenge the validity of the development consent based upon deferred commencement condition (3), I would not, in the exercise of the Court's discretion, have granted relief. This is because a water supply management plan is no longer required as a result of the modification to the consent. It will be a pointless exercise to set aside the consent on this ground and require the council to re-consider the question of the absence of a water supply management plan when there is no longer any need for such a management plan. No utility would be served by sending the application back to the council for re-consideration. Costs
The parties agreed that costs should follow the event, but if Hillpalm had been successful there would have been an argument as to whether one or both of the respondents should bear those costs. Since Hillpalm has failed on each ground of its claim that the development consent is invalid, there will be an order that it pay the respondents' costs. Orders
I make the following orders: (1) The application is dismissed. (2) The applicant shall pay the respondents' costs. (3) The exhibits may be returned. I hereby certify that the preceding 159 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice Lloyd.

Hillpalm Pty Ltd v Tweed Shire Council & Anor

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