Issue (i) - Certainty, Finality, and Validity
188I agree with the submissions of the Council that A(iv) clearly says to the applicants what it means - i.e., you must ascertain and incorporate in your plans what the RFS requires, and submit to Council the plans, as so amended, for approval, but those plans must accommodate the RFS requirements without "further impact upon existing vegetation ...". Council, therefore, submits that, as imposed, that condition can be accepted as "certain".
189Insofar as it is also submitted that the DC, as a result, lacked finality, I adopt and apply what the Court of Appeal said in Scott v Wollongong City Council ("Scott") (1992) 75 LGRA 112, per Samuels AP (at 118 - 119):
...The principle of "finality" is intended to protect both the developer and those in the neighbourhood who may be affected by a proposal, against the consent authority's reservation of power to alter the character of the development in some significant respect, thereby changing the expectations settled by the consent already granted. That consent may, of course, be subject to conditions; and those conditions are subject to principle.
However, it is common to find that development consent is subject to conditions which provide for some aspects of the matter stipulated to be left for later and final decision by the consent authority or by some delegate or officer to whose satisfaction, for example, specified work is to be performed. Such provisions are inevitable since it cannot be supposed that a development application can contain ultimate detail or that a consent can finally resolve all aspects of the development with absolute precision.
...
However, what distinguishes them is that the exercise of the decision-making power they each contemplate will certainly not alter the development "in a fundamental respect", nor will the development be "significantly different" from that which the application for consent contemplated. They are all conditions which may be described as ancillary to the core purpose of the application. Moreover, in my view the attachment of conditions of this kind, which leave final details to be settled, should be approached with the degree of flexibility indicated, for example, by Pape J in Weigall Constructions Pty Ltd v Melbourne & Metropolitan Board of Works [1972] VR 781; (1972) 30 LGRA 333. ...
190His Honour found in Scott (at 119) that the DC had settled, in final terms, the particular use of the land, and the specific character of the building, and that the circumstances of the use had been substantially prescribed, leaving only ancillary matters for final determination.
191In Kindimindi, Basten JA (Handley JA and Hunt AJA, agreeing) determined an appeal in relation to the validity of conditions of a development consent. His Honour explained the Court of Appeal's earlier decision in Mison v Randwick Municipal Council ("Mison") (1991) 23 NSWLR 734, and the subsequent amendment of the EPA Act, when dealing with the first ground of appeal in Kindimindi, which challenged "uncertain conditions", and some of His Honour's remarks bear repetition, although rather lengthy:
[28] Although different language is used in relation to the separate categories of invalidity, it would seem that the test of uncertainty or lack of finality, being determined by reference to an important aspect of the development, requires that what is left uncertain must be the possibility that the development as approved may be significantly different from the development the subject of the application. Thus, the result should not be different depending upon which approach is adopted: a consent will only fail for uncertainty where it leaves open the possibility of a significantly different development. On other hand, a consent may fail, within the first category, where a condition of great precision and certainty of operation results in a significantly different development. Whichever category is preferred in the case of a consent which lacks certainty or finality, it is helpful to bear in mind the relationship between the two tests.
[29] Since Mison, the EP&A Act has been amended to include new s 80A and in particular subs (4), which provides as follows:
(4) Conditions expressed in terms of outcomes or objectives
A consent may granted subject to a condition expressed in a manner that identifies both of the following:
(a) one or more express outcomes or objectives that the development or a specified part or aspect of the development must achieve,
(b) clear criteria against which achievement of the outcome or objective must be assessed.
...
[35] ... It is those plans to which express reference is made in condition 1, noted above. It is those plans to which certain alterations or modifications are required to be made by the conditions of consent. It follows that the conditions of consent, and therefore the consent itself, will be meaningless unless taken to incorporate those plans.
[36] ... The same analysis as set out above with respect to condition 1 applies to condition 2, which may be treated as incorporating the relevant plans.
[37] Condition 3 is in a different form and reads as follows:
A complete set of revised plans, addressing the matters in conditions 1 and 2 above, to the satisfaction of Lane Cove Council, shall be submitted to Council PRIOR TO THE ISSUE OF A CONSTRUCTION CERTIFICATE. The development shall be completed generally in accordance with the plans approved to satisfy this condition except as otherwise modified by this Notice.
This condition would appear to be, in large part, administrative or mechanical in effect. Rather than requiring reference to a set of plans, plus a further set of amendments, a single complete revised set of plans was required to be lodged. A second purpose was to permit Council to satisfy itself that the operative plans reflected the changes which Council required or which had been agreed. Except to the extent that conditions 1 and 2 required alterations, the substantial effect of conditions 1, 2 and 3 taken cumulatively, was to approve the plans lodged with the statement of environmental effects which, by express reference in the development application, constituted the description of the proposed development. In my view, there is no substance in the first ground of appeal.
Grounds 2 and 3: Changes to proposed development
[38] The preceding conclusion leaves open a possible challenge based on the nature and extent of the alterations required by conditions 1 and 2. Ground 2 alleged both that the conditions of the original consent rendered the consent otherwise than final and certain in that they altered the development in a significant or fundamental respect. The underlying premise of this ground was that the plans had not been incorporated into the consent. That conclusion being rejected, ground 2 must fail.
[39] Ground 3, however, challenged the validity of conditions 1(b) and (e) and 2(m) on the basis that they failed to comply with the requirements of s 80A(4) and were therefore invalid. The cumulative effect of those conditions, together with condition 1(a), which the trial judge had accepted failed to comply with s 80A(4), was to render the consent invalid. Because the appeal relied upon, rather than asserting, a finding of invalidity in relation to condition 1(a), it is convenient to deal first with the three other conditions said not to satisfy s 80A(4).
[40] Section 80A makes provision in a number of respects in relation to the imposition of conditions: thus, subs (4), set out at [29] above, identifies a form of condition which may be imposed in granting a consent. Unlike Mison, it says nothing about the validity of a consent which is subject to a condition which fails to comply with s 80A(4). It is appropriate therefore to consider whether the challenged conditions are valid, before considering the possible consequences of invalidity of a condition for the validity of the consent.
...
[54] According to the first category identified in Mison, the imposition of a condition which has the effect of significantly altering the development, will invalidate the consent because the development consented to is not that for which approval was sought. That test requires, of course, an evaluative judgment. Mison itself involved the construction of a single house. The principle it established would not necessarily operate in the same way in relation to a complex and extensive development with a number of severable elements. In the present case, accepting that a certain lack of precision in the two conditions 1(a) and (b) may make an evaluative judgment difficult, treating the development as a whole, neither the proposed change to the roof line of the residential component, nor the closing in of two sides of the carpark component, could be seen as significantly affecting the development. On the other hand, it would be possible, in some circumstances, to treat a change in the roofline of the residential part of the development as a significant alteration, if viewed in isolation as a separate part of the development. Whether that is the appropriate question to ask is an issue which can be put to one side, however, as no challenge was mounted on that basis.
[55] A challenge based on the second category identified in Mison, which was relied upon, involves two elements which may need to be separated. Thus, a condition may be uncertain but final, in the sense that it does not foreshadow a further judgment, either by the consent authority, or by a delegate or a third party. However, as noted by Mason P in Transport Action Group Against Motorways Inc v Rd and Traffic Authority [("Transport Action Group")] (1999) 46 NSWLR 598 at [112] mere uncertainty may not give rise to invalidity. Whether or not it does is likely to depend upon a different question, namely whether the condition complies with the statutory limits imposed upon the power of the authority. To the extent that the cases accept that a degree of "practical flexibility" (as in Scott ... at 118 per Samuels AP) or imprecision (as in Genkem Pty Ltd v Environment Protection Authority ["Genkem"] (1994) 35 NSWLR 33, per Gleeson CJ) may not result in invalidity, the reason is that the relevant degree of flexibility or imprecision does not contravene any statutory limit on the power being exercised.
[56] In [Winn v Director-General of National Parks and Wildlife ("Winn") [2001] NSWCA 17; (2001) 130 LGERA 508], Stein JA at [213], cited with approval a statement of Lord Reid in Kent County Council v Kingsway Investments (Kent) Ltd [1971] AC 72 at 90:
Suppose that a planning authority purports to impose a condition which has nothing whatever to do with planning considerations, but is only calculated to achieve some ulterior object thought to be in the public interest. Clearly in my view the condition should be severed and the permission should stand.
The reference to an "ulterior object" clearly suggests an impermissible, and therefore legally invalid, exercise of power. On the other hand, in the previous paragraph, Stein JA had noted:
A condition (or part of one) may be severable where it is superimposed on a consent if it is incidental, trivial, unimportant or mere surplusage.
If one is considering the effect of invalidity, that point may be accepted. However, there is an antecedent question to be answered, which concerns the lawfulness of the condition. A condition will not necessarily be beyond power because it is incidental, trivial, unimportant or mere surplusage, or because, as in Genkem, it lacks specificity or particularity.
192In Transport Action Group, Mason P also said (at [136]):
136 There is nothing objectionable in deferring to the greater expertise of appropriate authorities such as the Environment Protection Authority, Department of Land and Water Conservation, National Parks and Wildlife Service or Sydney Water Corporation, or contemplating that such bodies will exercise their statutory powers in future as particular issues are referable to their severable expertises arises. Mison or any variant of it does not precule such a sensible way of carrying out an activity in the future.
193In GPT Re Limited v Bellmorgan Property Development Pty Ltd ("GPT") [2008] NSWCA 256; (2008) 72 NSWLR 647, Basten JA (Bell JA and Young CJ in Eq, agreeing) again outlined the relevant principles in relation to the validity of conditions of consent:
[45] ... Aspects of an application, especially one involving a large development with disparate elements, are likely to give rise to a number of matters requiring evaluative judgment on the part of the consent authority. These are likely to be the subject of conditions. Such conditions may fall into one of four broad categories (though the categorisation is not intended to be exclusive):
(a) variation to aspects of the development identified in the application;
(b) compliance with the requirements of other agencies (including those responsible for road safety and fire safety);
(c) control of the construction of the development, and
(d) control of its operation once constructed.
[46] It is only in relation to the first category of conditions that issues arise in the present case. Where a consent requires a variation of the application, there is potential for departure from so much of the statutory scheme as requires that the consent be given or refused in relation to the development identified in the application: [EPA Act], s 80. Whether specific conditions involve such a departure from the application as to prevent the consent satisfying the scheme of the Act will involve questions of degree. Such questions have been the subject of consideration by this Court in a number of cases over the years. In [Mison], this Court identified two broad categories of case in which a consent might fail to comply with the statutory scheme. These were later described in [Kindimindi] at [54]-[55] ...
[47] In Transport Action Group ..., this Court considered whether certain decisions with respect to the construction of a motorway were invalid because of modifications to the proposed works after the completion of a required environmental impact assessment. This provided a different context (the relevant statutory provisions being found in Pt 5 of the EP&A Act) to questions of consent to a development application. Nevertheless, the Court noted, with respect to Mison, two different aspects of a valid consent, namely that a condition should not significantly alter the nature of the development and that the granting of consent imported a requirement of finality and certainty: at [115] (Mason P).
[48] Questions of finality and uncertainty will often be related, but are likely to bear upon the same question as that addressed in the first category discussed in Mison. In each respect the question must be whether a consent has been given to the development which was the subject of the application. Where conditions give rise to uncertainty, the fact that it is not possible to know whether the satisfaction of the conditions will give rise to a significantly different development may demonstrate that the consent is not a final and valid consent to the development as proposed. A degree of "practical flexibility" is likely to be necessary, especially in respect of complex developments: see Scott ... . Where a condition requires variations which can be checked and approved by a council officer, by reference to prescribed criteria, it may readily be said that the consent is sufficiently final and certain. Where the criteria for future assessment are imprecise or unspecified, there may be an effective delegation of authority to the officer to exercise his or her judgment: if the delegation is not in itself a valid means of disposing of the application, the result will be invalid. On the other hand, if the delegation is valid, it may suggest that the consent purportedly given by the Council is not itself a valid consent.
[49] The extent to which departure from the development described in the application is permissible may depend in part upon the requirements of public notice and the opportunity to be given for those potentially affected by the development to lodge objections.
194After quoting the statutory provisions of s 80 and s 80A (in [52] and [53]), His Honour made some observations in relation to the validity of consents subject to DCCs ([54] - [57]):
[54] These provisions have a number of aspects. First, s 80(1) is permissive as to the scope of conditions but appears not to expand that scope beyond conditions which would be permissible in the legal exercise of the powers of a planning authority: see generally, Winn ... at [213] (Stein JA).
[55] Secondly, and consistently with Mison, s 80A permits the modification of "details" of the development. This language appears to be inconsistent with any suggestion, contrary to Mison, that the condition could significantly alter the development: see s 80A(1)(g).
[56] Thirdly, to the extent that a consent may not be final in the sense of being immediately operative, but may have effect only upon the satisfaction of one or more conditions, it would appear that the principles expressed in Mison in relation to uncertainty are qualified by the validation of consents conditioned upon the requirement to achieve an express outcome or objective, assessable according to "clear criteria": s 80A(4).
[57] As noted in Kindimindi (at 293 [57]) the various elements of s 80A, subs (1)-subs (6) are permissive and, at least in some parts, address different aspects of development approval, thus suggesting that they are not cumulative. They affect the statutory scheme, but not the test of validity of a consent. They allow that the conditions will not be uncertain or imprecise if, although in general terms, they identify the outer limits of what is being authorised: see Genkem ... at 44 per Gleeson CJ, 49 per Powell JA, Dunford JA agreeing with both.
195The law on construction of consents/conditions has been well established by the higher courts, and it will suffice for the purposes of this judgment for me to now quote it from two recent Court of Appeal judgments (in cases unsuccessfully appealed from decisions given by me in this Court).
196In K and M Prodanovski Pty Ltd v Wollongong City Council ("Prodanovski") [2013] NSWCA 202; (2013) 195 LGERA 23, Meagher JA said (at [23]):
The principles governing the construction of the consent are not in issue and were summarised by this Court in House of Peace v Bankstown City Council [2000] NSWCA 44; 48 NSWLR 498 at [23], [37]-[41] per Mason P (Stein and Giles JJA agreeing). The meaning of the language is to be determined objectively having regard to the context in which the consent was issued and taking into account the fact that, unlike a contract between parties, the consent operates in rem and is for the benefit of subsequent owners and occupiers, as well as the applicant ...
197His Honour had earlier said, in Allandale (omitting citations):
42 The relevant principles are, in some respects, more easily stated than applied. The task is to construe the document constituting the consent mindful of the fact that the approval is a unilateral act of the consent authority which has an enduring function. The consent is not the result of a bargaining process between two or more parties, and is not personal to the applicant but enures for the benefit of subsequent owners and occupiers. Its meaning must be determined objectively, having regard to these matters which do not focus on the circumstances in which the consent was given by reference to what was known both to the applicant and the consent authority. To that extent, the principles of construction appropriate to contracts, which provide that in the case of ambiguity or uncertainty reference may be made to surrounding circumstances known to the relevant parties, do not apply: ...
43 The extrinsic evidence to which reference legitimately may be made when construing a public document, such as a development consent, is more limited. Reference may be made to documents other than the consent itself if those documents, or parts of them, are incorporated into the consent expressly or by necessary implication: ...