IGS Enterprises Pty Limited v Hornsby Shire Council & Anor

KEY ISSUES: Development Application :- Crown land - licence to occupy land below mean high water mark - express refusal of owner's consent to a development application - licence does not constitute owner's consent - remaining merit issues - jurisdiction

Crown Lands Act 1989 s 34 Environmental Planning and Assessment Act 1979 s 78A LEGISLATION CITED: Environmental Planning and Assessment Regulation 2000 cl 49 Interpretation Act 1987 s 80(1) Land and Environment Court Act 1979 ss 20(3), 16(1A)

117 York Street Pty Ltd v Proprietors of Strata Plan No. 16123 (1998) 43 NSWLR 504 Amacon Pty Ltd v Concord Municipal Council (unreported, NSWLEC, Hemmings J, 2 December 1987) Bluewater District Services Pty Ltd v Sutherland Shire Council (1997) 97 LGERA 389 Botany Bay City Council v Remath Investments No. 6 Pty Ltd (2000) 50 NSWLR 312 Jeblon Pty Ltd v North Sydney Municipal Council (1982) 48 LGRA 113 Kirkjian v Towers (Unreported New South Wales Supreme Court, Waddell CJ in Eq, 6 July 1987) CASES CITED: Maule v Liporoni (2002) 122 LGERA 140 Mulyan Pty Ltd v Cowra Shire Council (1999) 105 LGERA 26 North Sydney Council v Ligon 302 Pty Ltd (1996) 185 CLR 470 Owners Strata Plan No. 50411 v Cameron North Sydney Investments Pty Ltd [2003] NSWCA 5 Rose Bay Afloat Pty Ltd v Woollahra Municipal Council [2003] NSWLEC 116 Sertari Pty Ltd v Nirimba Developments Pty Ltd [2007] NSWCA 324 Sydney City Council v Ipoh Pty Ltd (2006) 68 NSWLR 411 Woolworths Ltd & Anor v Bathurst City Council & Anor (1987) 63 LGRA 55

TEXTS CITED: Megarry and Wade, The Law of Real Property (5th ed, London, 1984) Butt, P, Land Law (5th ed, Sydney, 2006)

APPLICANT: J J Webster SC M D Seymour (barrister) SOLICITORS Michael Bowe

FIRST RESPONDENT: LEGAL REPRESENTATIVES: P R Clay (barrister) SOLICITORS: Storey & Gough

SECOND RESPONDENT: I M Khan (barrister) SOLICITORS: Kelvin O'Keefe (Department of Lands)

JUDGMENT:

• 7 - IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

IGS ENTERPRISES PTY LIMITED v HORNSBY SHIRE COUNCIL & ANOR [2008] NSWLEC 304

JUDGMENT 1 HIS HONOUR: On 16 October 1996, the Minister for Land and Water Conservation, being the Minister administering the Crown Lands Act 1989, granted a licence under s 34 of the Crown Lands Act to the applicant, IGS Enterprises Pty Limited, to occupy certain Crown land below the mean high water mark at Fishermans Point, Berowra Creek. On 30 October 2007, the applicant made a development application to Hornsby Shire Council to erect a new boatshed and pontoon on the land. On 19 March 2008, the council refused the development application on various grounds, including that the owner's consent had not been provided with the application. On 11 April 2008, the applicant appealed to the Court against the council's refusal of its development application. On 27 August 2008, the Department of Lands expressly refused to provide the owner's consent for the making of the development application. 2 The parties have now asked the Court for the separate determination of the following questions:

(a) Whether the licence is deemed to be a statement signed by the owner of the land to the effect that the owner consents to the making of the development application.

(b) Is the Minister required to consent to the lodgement of the application so as not to derogate from the grant of licence?

(c) If the answer to questions (a) and (b) is "no", can the Court determine the remaining merit issues?

(d) If the answer to question (c) is "yes", but for the absence of the owner's consent, would the Court grant consent to the development application?

The statutory requirements 3 Section 78A of the Environmental Planning and Assessment Act 1979 states that a person may, subject to the regulations, apply to a consent authority for consent to carry out development, and the regulations may specify things that are required to be submitted with the development application. Clause 49(1) of the Environmental Planning and Assessment Regulation 2000 states that a development application may be made by the owner of the land to which the development application relates, or by any other person with the consent in writing of the owner of that land. Importantly, for the purpose of the present case sub-cl 49(3) states: Despite subclause (1), a development application made by a lessee of Crown land may only be made with the consent in writing given by or on behalf of the Crown.

Is the licence also a consent to the making of the development application? 4 The applicant submits that:

(a) a development application is a form prescribed by the Regulation and accordingly substantial compliance but not strict compliance therewith is sufficient: s 80(1) Interpretation Act 1987; and

(b) it is not, therefore, essential for there to be a specific statement from an owner of land and a grant of the licence is sufficient to amount to substantial compliance for that purpose. 5 I do not accept the submission. The requirement of cl 49 of the Regulation is not a form but rather is a specific requirement imposed by s 78A of the Act and sub-cl 49(3) of the Regulation. The development application "may only be made" in the manner described. This leaves no room for the concept of substantial compliance. 6 The statutory interest thus conferred on an owner of land has been described by the High Court, when considering its antecedent counterpart in s 77(1) of the Act as then in force, as a power of veto to that development: North Sydney Council v Ligon 302 Pty Ltd (1996) 185 CLR 470 at 477. In Mulyan Pty Ltd v Cowra Shire Council (1999) 105 LGERA 26 at 35 [32] I held that the section affords a veto to the owner of the land to which the development application relates. As Tobias JA observed in Sydney City Council v Ipoh Pty Ltd (2006) 68 NSWLR 411 at 420; 149 LGERA 329 at 340 [34(g)]: The Court cannot exercise its function of determining the appeal by the granting of development consent to the application, if it is otherwise minded to do so, without the owner of the land having given its consent to the making of the application. This is because it is basic to the function of granting consent to a development. 7 This leads to a consideration of the applicant's submission that the licence itself is deemed to be a statement which satisfies sub-cl 49(3). 8 As noted above, the licence was granted on 16 October 1996. Condition 20 of the licence states that the conditions, covenants and provisions contained in the licence cover and comprise the whole agreement. By condition 21, the licence confers on the holder the right to occupy the premises for the purposes specified or referred to in column 2 of item 4 in Sch 1. The purposes stated in the schedule are: "Boatshed (including boatshelter), Jetty, Pontoon, Ramp, Reclamation, Sliprails". As I understand it, there were existing structures on the land at the time that the licence was granted. Special condition 78 states that notwithstanding other conditions in the licence which require structures to be maintained in a state of good repair, the holder shall remove a boatshed when, in the opinion of the Minister or his/her delegate, it has reached the end of its useful economic life. Under condition 26(b) the Minister may in his absolute discretion revoke the licence at any time. 9 Condition 44(b) of the licence states: The Holder will not construct effect erect or undertake any Improvements on the Premises other than with the prior consent in writing of the Minister.

It is clear that the effect of this condition, together with the fact that condition 20 allows no room for any implied terms, is that I must reject the applicant's submission that the licence is deemed to be a consent within the meaning of cl 49(3) of the Regulation. The express terms of the licence are to the contrary of the submission. 10 Moreover, cl 49(3) of the Regulation refers to a consent to the making of a development application. There is nothing in the licence - remembering that it comprises the whole agreement - which can amount to a deemed consent to the making of a development application.

Is the Minister required to give consent so as not to derogate from the grant? 11 The applicant submits that the withholding of consent by the Minister amounts to a derogation from the grant of the licence. The applicant further submits that the licence in the present case is to use land for a specific purpose and that must necessarily imply that the licensee has a right to carry out that purpose. The applicant relies upon a number of cases where courts have required the owner of a servient tenement to provide the necessary consent where a refusal would obstruct the dominant owner in exercising rights granted under an easement (citing Kirkjian v Towers, NSWSC, Waddell CJ in Eq, 6 July 1987, unreported; 117 York Street Pty Ltd v Proprietors of Strata Plan No. 16123 (1998) 43 NSWLR 504; Owners Strata Plan No. 50411 v Cameron North Sydney Investments Pty Ltd [2003] NSWCA 5, and; Sertari Pty Ltd v Nirimba Developments Pty Ltd [2007] NSWCA 324). 12 There are, however, a number of answers to the submission. Firstly, by agreeing to accept the licence on the basis that its provisions contain the whole of the agreement, the applicant also agreed to be bound by condition 44(b), noted in par [9] above. The licence is effective according to its terms. Secondly, the question raised is one involving private rights between contracting parties, the resolution of which does not fall within the jurisdiction of this Court. Thirdly, neither do questions arising under the grant of licences under s 34 of the Crown Lands Act fall within the definition of a planning or environmental law so as to bring them within the jurisdiction of the Court (s 20(3), Land and Environment Court Act 1979). And fourthly, the submission raises substantive questions of both contract and property law which are not truly ancillary to a matter that falls within the Court's jurisdiction (s 16(1A), Land and Environment Court Act). For these reasons the question of whether the withholding of consent amounts to derogation from the grant, thereby requiring the Minister to give his consent, is not one that the Court can determine; but if the Court did have jurisdiction to determine the question then I would be inclined to reject the applicant's submission.

13 In passing, I would also reject the Minister's submission that derogation from a grant only operates against positive acts of the owner which might hinder the use of the land for the purpose for which it was licensed. The reliance on Megarry and Wade, The Law of Real Property, 5th ed, 1984 at p 648 is misplaced. Later authorities show that the former insistence on direct physical interference must now be regarded as untenable: see P Butt, Land Law, 5th ed, 2006, at p 304 [1563]. In the present case, the question must be resolved having regard to the provisions of the Act under the power of which the licence was granted and the terms of agreement itself.

Should the Court assess and determine the remaining issues? 14 The applicant's submits that the requirement for the owner's consent is not jurisdictional. No authority is cited in support of the submission. There is, however, authority to the contrary: for example, Jeblon Pty Ltd v North Sydney Municipal Council (1982) 48 LGRA 113 at 119-120 and Bluewater District Services Pty Ltd v Sutherland Shire Council (1997) 97 LGERA 389 at 395-396, amongst others. 15 The applicant further submits that a consent authority may consider a development application without the written statement, although it would lack power to issue a development consent without the requirement being fulfilled; but this is not to say that the development application cannot be assessed until the written consent has been provided (citing Botany Bay City Council v Remath Investments No. 6 Pty Ltd (2000) 50 NSWLR 312 and Rose Bay Afloat Pty Ltd v Woollahra Municipal Council [2003] NSWLEC 116). 16 The absence of the owner's consent in writing can, of course, be cured at any time until the determination of the development application: Woolworths Ltd & Anor v Bathurst City Council & Anor (1987) 63 LGRA 55; Amacon Pty Ltd v Concord Municipal Council (unreported, NSWLEC, Hemmings J, 2 December 1987) and; Maule v Liporoni (2002) 122 LGERA 140 at 155. In the present case, however, the Minister has expressly refused his consent to the making of the development application. The letter refusing consent, dated 27 August 2008, relevantly states: The application does not conform to the Department's Foreshore Tenures Policy in relation to occupation of, and adjoining, Crown land reserved for Public Recreation and/or Access. .... I regret to advise that the Department will not provide owner's consent for the lodgement of a development application and construction certificate for the current and proposed works. 17 In these circumstances there would be no utility in assessing and determining the remaining issues in the appeal and which go to the planning merits of the application. I respectfully adopt the statement by Hodgson JA in Sydney City Council v Ipoh Ltd at 412[5], that the requirement of consent of the owner to a development application is a means of ensuring that consent authorities are not troubled by applications that are pointless because title requirements for carrying them out will not be satisfied. Although the Court may have jurisdiction to assess and determine the remaining issues it could not issues orders granting any consent if it were otherwise minded to do so. Apart from the fact that this would be a waste of the Court's time and an unnecessary cost to the parties, the Court does not hear and determine hypothetical questions. 18 Accordingly, the Court should not proceed to assess and determine the remaining issues in the appeal.

Conclusion 19 I therefore answer the questions for separate determination as follows:

(a) For the determination of the development application No 1631/2007 (the Application), is Licence No. 302108, dated 16 October 1996, issued under s 34 of the Crown Lands Act 1989 ("the Licence"), deemed to be a statement signed by the owner of the land to the effect that the owner of the land the subject of the application consents to the making of the application?

(b) Is the Second Respondent required to consent to the lodgement of the Application in order for it to be determined: (i) so as not to derogate from the grant of the Licence; and

(ii) as long as there is no inconsistency between the Application and the Crown Land Foreshore Tenures Policy (Non-Commercial Operation)?

Answer: The Court does not have jurisdiction to answer this question, but would be otherwise inclined to answer it, "no".

(c) If the answer to (a) and (b) is "no", can the Court determine contentions 2-22 of the Respondent's Statement of Contentions separate to the determination of contention 1?

Answer: Yes, but having regard to the reasons expressed in paragraph [17] of this judgment, it is not appropriate for the Court to do so.

(d) If the answer to (c) is "yes", but for contention 1 of the Respondent's Statement of Contentions, would the Court grant development consent to Application?

Answer: This question can only be determined on a consideration of the remaining issues in the appeal, which for the reasons expressed in paragraph [17] of this judgment, it would be inappropriate for the Court to hear and determine.

I hereby certify that the preceding 19 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice D H Lloyd.

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