Liverpool City Council v Main Homes Pty Ltd

Land and Environment Court (NSW)|2011-10-05|Before: Biscoe J, Mr J, Mr P

Judgment 1The applicant, Liverpool City Council, claims that the first to sixth respondents, Cosmopolitan Homes (NSW) Pty Ltd - now known as Main Homes Pty Ltd - and related companies (collectively, Cosmopolitan ), are in breach of s 76A of the Environmental Planning and Assessment Act 1979 ( EPA Act ) by failing to carry out development in accordance with development consent for subdivision of land at Chipping North. In particular by failing to comply with a requirement of the development consent that one of the subdivision lots, Lot 389 in Deposited Plan 1010609, be dedicated as a public reserve. In order to remedy the breach, the Council seeks an order that the second to sixth respondents, the registered proprietors of Lot 389, transfer that lot to the Council for use as a public reserve. 2The seventh respondent, the Registrar - General, has filed a submitting experience. The only order sought against the Registrar - General is that he be restrained from registering or permitting registration of any dealing affecting Lot 389 other than the said transfer or a caveat or withdrawal of caveat by the Council. 3Cosmopolitan presses two defences: (a)on its proper construction, the development consent did not require dedication of Lot 389 as a public reserve; (b)alternatively, relief should be denied on discretionary grounds. 4The hearing was truncated and simplified by two developments: (a)on the second day of the hearing Cosmopolitan abandoned a third and complex defence that, contrary to s 195J of the Conveyancing Act 1919, the Council is attempting to challenge the validity of the registered plan of subdivision. The reason for the abandonment was that on the second day of the hearing the Council made a new submission, based on its overnight researches, that s 195J was inapplicable in the circumstances of this case. On consideration, Cosmopolitan agreed; and (b)on the first day of the hearing Cosmopolitan consented to dismissal of its separate proceedings against the Council, listed for hearing at the same time. In those proceedings Cosmopolitan claimed that the parties had entered into a contract that settled their differences by a transfer of part of Lot 389 to the Council. 5I reject Cosmopolitan's defences and propose to grant relief.

BACKGROUND 1995 TO 2000 6By development application received by the Council on 18 July 1994, Cosmopolitan sought development consent for the subdivision of land comprising portions 378, 379 and 380 DP 725034 at Chipping Norton in the local government area of the Council. 7The development application was accompanied by a plan of proposed subdivision of the land dated 11 July 1994 reference number 20939 drawn by surveyors. 8Following correspondence between Cosmopolitan and the Council, Cosmopolitan amended the development application and submitted to the Council an amended plan of subdivision of the land by the surveyors, reference number 20939 dated 17 February 1995 ( Amended Plan ). 9The Amended Plan included a lot numbered 389 having an area of 6,521 square metres on which were marked the words and description "(Public Reserve)". Lot 389 was in a similar location to the area on the original plan accompanying the development application marked "Future Open Space": see [ 7 ] above. 10Under cover of a letter dated 9 May 1995, Cosmopolitan further amended the development application and submitted to the Council a further amended plan of subdivision of the land by the surveyor, reference number 20939 dated 5 May 1995 ( Second Amended Plan ). 11The Second Amended Plan showed Lot 389 having an area of 6,340 square metres on which were marked the words and description "(Public Reserve)". 12On 10 May 1995 the Council granted development consent to the development application under delegated authority. 13On 11 May 1995 the Council issued a notice of determination of the development application addressed to "Cosmopolitan Homes" ( Consent Notice ). 14The Consent Notice describes the development approved by the Council as: SUBDIVISION OF LAND INTO 89 LOTS OVER 3 STAGES UNDER THE REAL PROPERTY ACT, INCLUDING THE DEDICATION OF A PUBLIC RESERVE AND ROADS. 15Condition 1 of the Consent Notice is in the following terms: Development must be carried out generally in accordance with Development Application received on 18 July 1994 and accompanying plans marked Reference 2939 [sic] amended 5 May 1995 and as amended in red on Council's file, except where modified by the undermentioned conditions. 16The plan referred to in Condition 1 is the Second Amended Plan. 17In June 1999 Cosmopolitan submitted to the Council a plan of subdivision of the land for the endorsement of the Council's certificate thereon by the General Manager or authorised person of the Council ( First Subdivision Plan ), together with a memorandum of instrument under s 88B of the Conveyancing Act 1919. Lot 389 was shown on the First Subdivision Plan as having an area of 5,248 square metres. The explanation for this smaller area compared with the area marked on the earlier Second Amended Plan (see [ 11 ] above) is that part of the latter area had been designated Public Reserve in an earlier development consent relating to adjoining land: it had therefore been included in error in Lot 389 on the Second Amended Plan. 18On Lot 389 in the First Subdivision Plan were inscribed the words "Public Reserve". The panel in the First Subdivision Plan for statements of intention to dedicate public roads, to create public reserves, drainage reserves, easements, restrictions on the use of land or positive covenants had inscribed therein the following (so far as is relevant): IT IS INTENDED TO:

DEDICATE LOT 389 TO THE PUBLIC AS PUBLIC RESERVE. 19In mid - June 1999 Cosmopolitan uplifted the First Subdivision Plan to make amendments unrelated to Lot 389. 20Cosmopolitan caused a new transparency ( Second Subdivision Plan ) to be prepared. On or about 17 June 1999 it was lodged with the Council for certification. 21Subsequently, on 30 June 1999, the Council through its delegated employee endorsed its certificate upon the Second Subdivision Plan, thus authorising the registration of that plan as a deposited plan in the office of the Registrar - General. 22On 10 February 2000 the Second Subdivision Plan was registered by the Registrar - General as Deposited Plan 1010609. 23Cosmopolitan has subsequently carried out development in reliance upon the Consent Notice. 24The First Subdivision Plan and the Second Subdivision Plan both contain a panel for statements of intention to dedicate public roads and to create public reserves, drainage reserves, easements, restrictions on the use of land or positive covenants. After the uplifting of the First Subdivision Plan and before the submission of the Second Subdivision Plan (referred to at [ 19 ] and [ 20 ] above), Cosmopolitan caused the panel in the Second Subdivision Plan to be altered from the panel in the First Subdivision plan in the following respects: (a)the words "dedicate Lot 389 to the public as public reserve" had been removed; and (b)the following words and figures were added:

RESTRICTION ON THE USE OF LAND 25The Second Subdivision Plan and Deposited Plan 1010609 were also altered from the form of the first Subdivision Plan in that the words and description "(PUBLIC RESERVE)" were no longer shown on Lot 389 in the Second Subdivision Plan and were not shown on Deposited Plan 1010609. 26Apart from its alterations, the Second Subdivision Plan appears to have been a photocopy of the First Subdivision Plan, even including the certificate signed by Cosmopolitan's Surveyor, Mr Lenton, signed on 9 June 1999. 27These alterations in the Second Subdivision Plan were not approved by the Council nor have they been the subject of any application to the Council for approval. 28Lot 389 has not been dedicated to the public as public reserve.

RELEVANT STATUTORY PROVISIONS 29Section 76A(1) of the EPA Act provides: 76A Development that needs consent (1) General If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless: (a) such a consent has been obtained and is in force, and (b) the development is carried out in accordance with the consent and the instrument. 30It is common ground that an environmental planning instrument required development consent in this case, thus enlivening s 76A(1). 31Section 124(1) of the EPA Act provides: 124 Orders of the Court (1) Where the Court is satisfied that a breach of this Act has been committed or that a breach of this Act will, unless restrained by order of the Court, be committed, it may make such order as it thinks fit to remedy or restrain the breach. 32The Court also has the power of the Supreme Court to enforce obligations imposed by the EPA Act and to make declarations of right in relation to any such obligation: s 20(2)(a), (c) of the Land and Environment Court Act 1979. 33Section 49 of the Local Government Act 1993 relevantly provides: 49 Public reserves and drainage reserves dedicated on subdivision, transfer or conveyance (1) On the registration by the Registrar - General of a plan on which land is marked with the words "public reserve", or of a transfer or conveyance to a Council of land identified in the transfer or conveyance as being for use as a public reserve, the land is dedicated as a public reserve and vests in the Council for an estate in fee simple. (2) If the land so dedicated is under the Real Property Act 1900, the Registrar - General, on registration of the plan or transfer, must create a folio of the Register under that Act for the estate of the Council in the land and record in the folio, by reference to this section or otherwise, that the land is dedicated as a public reserve. 34I observe that s 49(1) expressly contemplates two alternative methods by which land may be dedicated as a public reserve and vest in a council. The first is registration of a plan on which land is marked "public reserve". The second is a transfer to a council of land identified in the transfer as being for use as a public reserve. In the present case the first method was not employed and the Council seeks an order that the second method be employed. 35"Public reserve" is defined in the Dictionary of the Local Government Act to include a "public park", or "any land dedicated or taken to be dedicated under section 49 or 50". The term "public park" is not defined by the Act, however, "park" is defined as meaning "in relation to land...an area of open space used for recreation, not being bushland".

THE CONSTRUCTION ISSUE 36Cosmopolitan submits that, on its proper construction, the Consent Notice does not require that Lot 389 be a public reserve. 37In Chanrich Properties Pty Ltd v Baulkham Hills Shire Council [2001] NSWSC 229 at [69] Hodgson CJ in Eq said (omitting citations): One consequence of the fact that development consents are impersonal and equivalent to documents of title is that in construing a consent, it is generally impermissible to go beyond the four corners of that consent and any document incorporated in it. 38The Consent Notice describes the development as follows: DESCRIPTION OF DEVELOPMENT: SUBDIVISION OF LAND INTO 89 LOTS OVER 3 STAGES UNDER THE REAL PROPERTY ACT, INCLUDING THE DEDICATION OF A PUBLIC RESERVE AND ROADS.

39Attached to the Consent Notice is the amended plan marked Reference 20939. It is the amended plan referred to in Condition 1 where it is erroneously numbered 2939. 40Cosmopolitan places reliance on Conditions 1, 3, 6 and 28 in the Consent Notice, which provide: THE DEVELOPMENT The following conditions have been imposed to achieve the objectives of the relevant planning instruments and policies.

Development must be carried out generally in accordance with Development Application received 18 July 1994 and accompanying plans marked Reference 2939 amended 5 May 1995 and as amended in red on Council's file, except where modified by the undermentioned conditions. EXTERNAL APPEARANCE The following condition has been imposed to provide for a satisfactory appearance of the development.
Decorative see through pool type fencing is to be erected along the eastern boundary of Lot 370. The fencing must not exceed 1.5 m in height and be of materials having a low reflective finish and of a colour that will blend with the proposed open space adjoining. Details are to be submitted with engineering plans. LANDSCAPING AND OPEN SPACE The following condition has been imposed to ensure adequate provision is made for landscaping and open space in association with the development and the protection of existing trees.
No trees to be removed without the prior approval of Council. PUBLIC ROADS AND FOOTPATHS ...
All lots are to have frontage to a dedicated and constructed public road that gives access to another public road. 41The "adjoining" open space referred to in Condition 3 is Lot 389. 42Cosmopolitan submits that the development consent does not require that Lot 389 be a public reserve but rather that it be open space, which may remain in its ownership. In aid of that construction Cosmopolitan argues as follows: (a)no condition of the development consent expressly requires dedication of Lot 389 as a public reserve, in contrast to Condition 28 which expressly concerns public roads; (b)the construction is open that the words "including the dedication of a public reserve" on Lot 389 in the description of the development and "public reserve" in the attached plan should be put aside in favour of the reference in Conditions 3 and 6 to "open space". This accords with the principle that where two constructions are available, that construction will be chosen which interferes least with private property rights: R & R Fazzolari Pty Ltd v Parramatta City Council [2009] HCA 12, 237 CLR 603 at [40] - [43]; (c)Condition 1 is inconsistent because it provides that the development must be carried out in accordance both with the attached amended plan and in accordance with the original unamended plan attached to the development application which designated Lot 389 not as a public reserve but as open space, and the inconsistency should be resolved in favour of the designation open space in the original plan; (d)the description of the development does not control the operation of the consent; and (e)the registered plan is generally in accordance with the development consent. 43I do not accept the submission. In my opinion it is clear from the words "including the dedication of a public reserve" in the description of the development and the notation "public reserve" on Lot 389 in the attached plan that the consent requires Lot 389 to be a public reserve in the ownership of the Council. Indeed, that was part of the very development that Cosmopolitan had proposed by earlier submitting that plan to the Council. The fact that Condition 28 expressly refers to a dedicated public road but there is no condition which expressly requires a dedicated public reserve does not matter. This is because the dedication of the public reserve did not have to be dealt with by way of a condition. It was plain from the description of the development itself and the attached plan. The expression "open space" in conditions 3 and 6, which are concerned with ancillary aspects of the development, describe the physical state of Lot 389, not its legal status. There is no inconsistency in Condition 1. Relevantly, it only refers to the latest amended plan attached to the notice of determination, not the superseded original plan. So far as it goes, the registered plan may be said to have been generally in accordance with the consent. But as the plan was registered without reference to the public reserve, the further step was required of transferring Lot 389 to the Council for that purpose. 44Accordingly, I reject the construction defence.

THE DISCRETION ISSUE 45Cosmopolitan submits that, in its discretion, the Court should decline to grant relief. 46The power conferred on this Court by s 124 of the EPA Act is wide but not unconfined and must be exercised having regard to the scope and purpose of the Act: Botany Bay City Council v Saab Corp Pty Ltd [2011] NSWCA 308 at [156]. 47The principles on the exercise of discretion are well settled. They can be found in the decisions of the Court of Appeal in Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335; and ACR Trading Pty Ltd v Fat - Sel Pty Ltd (1987) 11 NSWLR 67. In a familiar passage in Sedevcic at 339 - 341 Kirby P stated the following guidelines (note, there is no guideline 3) (citations omitted): A number of guidelines may usefully be stated as applicable to the exercise of the Court's discretion in a case such as the present:

The discretionary power conferred on the Court by s 124 of the Act is wide. Relevantly to the present case, it is as wide as the discretion enjoyed by the Supreme Court in its equitable jurisdiction.
It is undesirable to endeavour, by drawing upon decisions in differing fact situations which have presented in earlier cases, to attempt to catalogue or classify all of the circumstances which will enliven the exercise of the discretion in cases yet to come. By the statute, the discretion is not fettered. It is not limited either to particular classes of case or to limited or special cases: Nonetheless, keeping that salutory warning in mind, it can be instructive, and helpful in the achievement of the generally consistent application of the law (which the creation of a specialist Land and Environment Court facilitates) to consider the variety of circumstances in which the discretion conferred by the section has been exercised. The Council itself conceded that relevant factors would include the fact that the breach complained of was a purely technical breach which was unnoticeable other than to a person well versed in the relevant law or the fact that the local authority had delayed the bringing of its action, or the fact that, far from having an adverse effect on the environment or the amenity of the locality, the breach, in reality, had been shown to have a beneficial effect.
In exercising the discretion, it must be kept in mind that the restraint sought is not, in its nature, the enforcement of a private right, whether in equity or otherwise. It is the enforcement of a public duty imposed by or under an Act of Parliament, by which Parliament has expressed itself on the public interest which exists in the orderly development and use of the environment. Because s 123 of the Act permits any person (and not just the Attorney - General or a person with a sufficient interest), to bring proceedings in the Court for an order to remedy or restrain a breach of the Act, there is indicated a legislative purpose of upholding, in the normal case, the integrated and co - ordinated nature of planning law. Unless this is done, equal justice may not be secured. Private advantage may be won by a particular individual which others cannot enjoy. Damage may be done to the environment which it is the purpose of the orderly enforcement of environmental law to avoid.
It is only in this sense that "special" circumstances need to be established to secure a favourable exercise of the discretion provided by s 124. There is nothing in the Act by which the discretion is fettered or limited to "special cases"... But the obvious intention of the Act is that, normally, those concerned in development and use of the environment will comply with the terms of the legislation. Otherwise, if unlawful exceptions and exemptions became a frequent occurrence, condoned by the exercise of the discretion under s 124, the equal and orderly enforcement of the Act could be undermined. A sense of inequity could then be felt by those who complied with the requirements of the Act or who failed to secure the favourable exercise of the discretion under s 124.
Where the application for the enforcement of the Act is made by the Attorney - General, or a Council, a court may be less likely to deny equitable relief than it would in litigation between private citizens. This is because the Attorney - General or the Council are seen as the proper guardians of public rights. Their interest is deemed to be protective and beneficial, not private or pecuniary. Of course, as the development or administrative law demonstrates, administrators who advise the Attorney - General or Councils can sometimes act from motives which are less disinterested. Courts will be alert to insensitive, unthinking administration in this as in other fields of law.
Where the relief is sought against a "static" development (ie the erection of a building) which, once having occurred can only be remedied at great cost or inconvenience, the discretion may, in the normal case, be more readily exercised than where what is involved is a continuing breach by conduct which could quite easily be modified to bring it into compliance with the law. But this observation is simply a reflection of the judicial perception in balancing, on the one hand, the public interest in equal compliance with the law and, on the other, the degree of irremediability occasioned by the breach and the expense or inconvenience which would follow the law's enforcement: cf Associated Minerals case (at 692). It does not amount to a hard and fast exception to the discretion. That discretion must be exercised in every case in which it is invoked. Nor is it a reason to refuse relief where no "static" development can be proved.
The wide discretion has been described as "an adequate safeguard against abuse of a salutary procedure". It permits the court to soften, according to the justice of particular circumstances, the application of rules which, though right in the general, may produce an unjust result in the particular case. Sometimes this "softening" can be achieved by postponing the effect of injunctive relief. Sometimes that evidence will not achieve a just result. The remedy of injunction, with its powerful sanctions, is not, after all, the only remedy available to a local government authority for breaches of the Act. Criminal prosecution, with its heavier onus of proof and rigorous procedures may offer an inadequate means, in the typical case, for the enforcement of environmental law in the public interest. Furthermore the provisions of s 123 of the Act indicate an enlargement of the availability of injunction for breach of that law. However the refusal of a court to grant an injunction, in the exercise of its discretion, does not necessarily conclude the authority's remedies.
On appeal to this Court, due regard will be had to the exercise by a judge of the Land and Environment Court of his discretion to decline or grant an injunction. This is not only because of the well - known principles which restrain the interference of appellate courts in the exercise of a discretion committed by law to trial judges. Nor is it so simply to avoid the burden of primary decision - making which would result from too ready an interference in the exercise or such discretions. Restraint is also called for because Parliament has established a specialist court, with a large measure of exclusive jurisdiction. That Court necessarily superintendends the application of the legislation in its jurisdiction having regard to the merits of particular cases and, as well, the way individual decisions operate to achieve a consistent and a principled application of that legislation. 48In ACR at [82] Kirby P said (Samuels JA and Hunt AJA agreeing): ...it is important to appreciate the wide scope and purpose of the discretion conferred by s 124 of the Act. Clearly, it is not a warrant to set at nought the complicated and sensitively balanced provisions of the legislation, substituting for the operation of the law laid down by Parliament, the personal opinions of the judge hearing the case. On the other hand, it would be equally erroneous to ignore the discretion or to give it an unduly restricted operation. It is just as much part of the structure and scheme of the Act, for the enforcement of planning law, as are the other parts. In Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335, I collected the authorities and the principles which are applicable to the approach to be taken by a judge exercising the discretion conferred by s 124(1). That discretion is a mollifying one. It permits, in appropriate cases, the refusal of injunctive relief where to grant such relief would work such an injustice as to be disproportionate to the ends secured by enforcement of the legislation including by injunction. 49Where an applicant acts in a representative capacity in the public interest, mere excessive delay will rarely disentitle the applicant to relief vindicating or protecting the public interest: World Series Cricket Pty Ltd v Parish (1977) 16 ALR 181 (FCA) at 189 - 191 per Bowen CJ. In addition to excessive delay, substantial prejudice, such as a vital change of circumstances, may be necessary to enliven the discretion: eg Ex parte Gosford District Land Council and Investment Co Pty Ltd; Re Gosford Shire Council (1951) 18 LGR (NSW) 173 at 177 (FC, NSWSC). The enforcement of planning laws is action for the public benefit and is in the public interest: Associated Minerals Consolidated Ltd v Wyong Shire Council (1974) 29 LGRA 323 at 334. See also Botany Bay City Council v Saab Corp Pty Ltd [2011] NSWCA 308 at [179(g)] (NSWCA); Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 at 339 (NSWCA); ACR Trading Pty Ltd v Fat - Sel Pty Ltd (1987) 11 NSWLR 67 at 82 (NSWCA). 50Cosmopolitan submits that the Court's discretion should be exercised adversely to the Council for the following reasons.

Delay 51Cosmopolitan submits that: (a)Council's delay in bringing these proceedings is inordinate, inexcusable and unexplained. The consent issued in May 1995. The Second Subdivision Plan was prepared in June 1999 and was registered in February 2000. The development the subject of the consent was subsequently carried out in reliance on the consent; (b)the Council ought to have been aware from shortly after registration of the Second Subdivision Plan that Lot 389 had not been transferred to it. The Council at that time (apparently) had no expectation that Lot 389 would be so transferred - as demonstrated by it not being raised until the caveat was lodged in February 2006. The Council was self evidently aware of Lot 389's ownership at the time of the further development application in December 2002; (c)further, in February 2006, the Council lodged a caveat on title to Lot 389 and, despite the lapse of years, failed to take any action. These proceedings were commenced in September 2010; (d)notwithstanding the caveat, the Council continued to negotiate a voluntary planning agreement; and (e)the inordinate length of time alone may not justify the Court exercising its discretion adversely to the Council. But that delay combined with severe prejudice, substantial financial impacts and acquiescence by the Council warrant the Court exercising its discretion in that way. Further, the Council has abstained from interfering while damage and loss has been incurred by Cosmopolitan. 52The chronology to February 2000 when the Second Subdivision Plan was registered has been set out at [ 6 ] - [ 28 ] above. The chronology thereafter is relevant to Cosmopolitan's discretionary ground of delay and may be summarised as follows: (a)on 30 December 2002 Cosmopolitan lodged with the Council a development application for development inter alia of Lot 389 for medium density housing; (b)on 11 June 2003 Cosmopolitan enquired of the Council regarding the status of an assessment and determination of that development application; (c)on 26 July 2003 the Council replied by letter; (d)on 4 and 28 August 2003 Cosmopolitan made similar enquiries and added reference to resolution of an ownership issue concerning Lot 389; (e)on 17 February 2006 the Council lodged a caveat on the title to Lot 389; (f)from about early 2003 to late 2009 there were negotiations between the parties concerning the 2002 development application and the issue of whether Lot 389 or part of it should be transferred to the Council; (g)following further communications between the parties on 8 September 2010 these proceedings were commenced; (h)since 2000 Cosmopolitan has paid land tax on Lot 389 in the approximate sum of $225,610; and (i)from 2000 to 2006 Cosmopolitan paid the Council rates in respect of Lot 389 in the approximate sum of $8616.25.. 53For present purposes the Council's delay should be measured from after registration of DP101609 in 2000. It was the registration which crystallised the potential for breach to occur because until that act the Second Subdivision Plan could have been amended by marking Lot 389 with the words "public reserve". This would have satisfied the consent by the operation of the first limb of s 49(1) of the Local Government Act . After that act the dedication could have been achieved by utilisation of the second limb of s 49, namely, by transfer of Lot 389 to the Council for use as a public reserve. 54The existence of the problem caused by the registration of the deposited plan without a notation that Lot 389 was a public reserve does not appear to have come to the attention of any person in the Council's service until another development application was made by Cosmopolitan in December 2002 to develop Lot 389 for medium density housing. Thereafter negotiations and discussions between Cosmopolitan and Council officers concerning Lot 389 continued, on and off, until about late 2009, when they terminated. During this period, in 2006, Council lodged a caveat. Negotiations had reached the stage of preparation of a draft voluntary planning agreement under which part of Lot 389 would be transferred to the Council. After negotiations terminated, the Council decided to pursue the course embodied in these proceedings. These proceedings were commenced in 2010. 55Although the commencement of proceedings was long delayed, the delay was influenced by the Council's ignorance, until after the 2002 development application was received, that the registered plan did not mark Lot 389 "Public Reserve" with the consequence that the dedication had not taken place. Thereafter negotiations between the parties must have been thought to have had a real prospect of achieving a result which would have rendered the proceedings unnecessary. 56The Council's delay cannot be denied but should not of itself disentitle the Council from obtaining relief.

Acquiescence 57Cosmopolitan submits that the Council acquiesced because: (a)it is evident from the correspondence sent by the Council in the context of the assessment of the 2002 development application that it was entertaining (even in the face of resident objections to development of Lot 389) the development of Lot 389 for residential purposes; and (b)the Council was aware that Lot 389 had not been transferred to it and notwithstanding that knowledge and the residents' objections to the development of Lot 389, it proceeded to entertain the application and in fact prepared, and agreed in principle to enter into, a voluntary planning agreement with Cosmopolitan in respect of the proposed development of Lot 389. 58There is no evidence that the events described demonstrate that the Council has acquiesced in Cosmopolitan's conduct, in the sense of standing by while Cosmopolitan dealt with the subject lot in a manner inconsistent with the Council's right to require compliance with the consent. Nor did the Council refrain from seeking redress and in so doing accept that the continuing breach was seen by it as something about which it needed to do nothing. While there were discussions with Council officers after 2002 concerning the possibility that part of Lot 389 might not be required as a public reserve, they were dependent upon a Council resolution, which did not eventuate, to approve a voluntary planning agreement which would first have to be subjected to public examination and to proper consideration of matters raised as a result.

Prejudice and loss 59Cosmopolitan submits that: (a)as a result of the coming into force of the Liverpool Local Environmental Plan 2008, the proposed development the subject of the 2002 development application became prohibited (because of changes to the permissible uses on the subject land). I accept that that is so. Therefore, Cosmopolitan submits, the delay and acquiescence by the Council has resulted in Cosmopolitan being no longer able to pursue that development despite having incurred expense in pursuing that application; and (b)between 2001 and 2010, Cosmopolitan has paid a total of about $225,610 in land tax on Lot 389. However, it is possible that it can obtain a refusal of land tax for at least five years if Lot 389 were now transferred to the Council. Cosmopolitan has also paid Council rates on Lot 389 until 2006 in the approximate total sum of $8,616.25. 60In my view, the delay has caused no prejudice to Cosmopolitan apart from the fact that it has borne the responsibility of paying land tax and, until 2006, rates. However, it would not have had to pay land tax and rates if the development had been carried out in accordance with the consent. In that sense the prejudice is one Cosmopolitan has brought upon itself and is not to be entirely sheeted home to the Council's delay. Cosmopolitan was well aware, even if the Council was not, that it had presented a plan for registration which did not divest Cosmopolitan of title to Lot 389. It did not transfer Lot 389 to the Council. Land tax and rates would have been paid by Cosmopolitan from 1995 to 2000 in any event because it did not act on the consent until then. Indeed it would have had to pay land tax and rates for some years after 2000 even if the Council had commenced these proceedings in, say, 2001 pending adjudication of the proceedings. On the other hand, the Council levied and has received the benefit of the rates payments. I am inclined to think that it would be just to impose a condition on any order that Lot 389 be transferred to the Council, that it refund those rates payments to Cosmopolitan. 61Cosmopolitan's submission that it has been prejudiced by the Council's delay because it can no longer pursue the medium density development application is unpersuasive. It chose to pursue over several years a course of action which involved negotiations with the Council on a reduction in the size of the public reserve, supported by a voluntary planning agreement. In that regard, this was a delay for which Cosmopolitan volunteered.

Inconsistencies 62Cosmopolitan submits that the Council acted inconsistently because shortly before its consent was granted, the Council had granted development consent for another development in the locality of Cosmopolitan's subdivision, comprising a small residential subdivision, without requiring any dedication of land or payment of monetary contributions under s 94 of the EPA Act or otherwise. 63I do not consider that any such inconsistency is relevant to the discretion issue nor, if it is relevant, that it is significant. In any event, in the present case the Council did not demand dedication of land pursuant to s 94, but accepted the dedication proposed by Cosmopolitan as part of the description of the development.

Harm 64Cosmopolitan submits as follows in relation to harm. There is no environmental harm arising from Lot 389 remaining in its ownership. Further, to the extent there is any risk that Lot 389 may be developed for purposes other than its current use as open space, s 79C of the EPA Act will apply to the merit assessment of any such development application. In light of the history of Lot 389, the Council (or the Court on appeal) may for example determine that Lot 389 is "unsuitable" for any other form of development and refuse such consent. Although speculative, if the Council's primary concern is the possibility of future development on Lot 389, the fact is that Lot 389 cannot be developed unless justified on planning merit grounds. This demonstrates not only that no harm has been caused is or is currently being caused to the Council (or indeed the public), but that no future harm will be caused. It must be assumed that if development consent is granted, it would be granted on planning merits. No harm will flow if an application is determined in accordance with applicable planning instruments based on the merits of an application. 65The absence of environmental harm is said to weigh against exercising the discretion in favour of the Council. In my view, this is of little, if any, weight, particularly when balanced against the harm to the community in being denied dedication of a public reserve.

Cosmopolitan's Conduct 66In my view a relevant discretionary consideration is the unsatisfactory conduct of Cosmopolitan in unilaterally deleting references to the public reserve on its Second Subdivision Plan, without obtaining the Council's approval. The plan was submitted to the Council without drawing the Council's attention to the deletion. 67The context was that in 1995 the Council consented to a development which Cosmopolitan had proposed and which included the dedication of Lot 389 as a public reserve. This was not a demand by the Council for the dedication of land under s 94 of the EPA Act; it was part of the description of the development that Cosmopolitan itself had proposed. It was an integral part of the consent as issued. 68In 1999 Cosmopolitan submitted the First Subdivision Plan to the Council for certification in order that it could be registered. It clearly provided that Lot 389 was to be dedicated as a public reserve. However, when Cosmopolitan uplifted the First Subdivision Plan to attend to unrelated amendments, it caused its surveyor to delete all reference to a public reserve on Lot 389 in the Second Subdivision Plan. It then submitted the Second Subdivision Plan to the Council for certification. 69There is evidence from Cosmopolitan's surveyor, Mr Lenton, who prepared the Second Subdivision Plan, to the effect that a Mr Peacock of Cosmopolitan instructed him to make the deletion. Mr Lenton recalls that Mr Peacock was able to demonstrate that there was no specific condition of consent which required the designation of Lot 389. Mr Lenton claims he would not have amended the plan without being satisfied that there were "good reasons" that the plan should be changed. He was in error. 70Cosmopolitan tendered no evidence from any Cosmopolitan officer to explain its conduct, or to suggest that it made Council aware of the deletions it instructed Mr Lenton to make. I conclude that the Council was unaware of the critical deletion until after Cosmopolitan lodged the 2002 development application. Council's failure to detect the deletion in 1999 is evidenced inter alia by the Council's internal Final Plan of Subdivision checklist of 30 June 1999, which described the proposal as including Lot 389 as a public reserve. No doubt the Council should have been more alert and detected the deletion. However, this oversight must be considered in the context in which it was made, being that the First Subdivision Plan was uplifted for purposes unrelated to the dedication of Lot 389. At first glance, the subdivision plans appear identical, even down to the signature of Mr Lenton of 9 June 1999. The amendments made for the unrelated purposes (being the purposes for which the first plan was uplifted) are marked by hand, and can thus be identified with some ease. Conversely, it is understandable that the Council could have overlooked the deletions as it did, particularly when no approval for the deletions was sought by Cosmopolitan. 71Had the Council been aware of the deletions at the time, it could have either insisted upon reinstatement of the public reserve designation in the Second Subdivision Plan or upon a transfer of Lot 389 to the Council for that use. Either course would have been effective under s 49 of the Local Government Act . 72Moreover, in mid 1999 Cosmopolitan submitted a plan to utility providers which indicated that the nature of the subdivision was 37 residential lots and a public reserve. On that basis the utility providers provided the necessary certificates that Cosmopolitan had complied with relevant statutory requirements or had made satisfactory or suitable arrangements relating to the proposed subdivision. Cosmopolitan provided the Council with those certificates in June 1999 as part of the final requirements for release of the subdivision plan for registration, and requested the Council to release the plan. This conduct sits unhappily with Cosmopolitan's subsequent conduct in submitting the Second Subdivision Plan to the Council with all reference to public reserve deleted and without seeking the Council's approval.

Conclusion on discretion 73I do not consider that the discretionary considerations on which Cosmopolitan relies justify refusal of relief to the Council. In particular, they do not outweigh the public interest in ensuring that the development consent is complied with. Cosmopolitan's conduct discussed above fortifies that conclusion.

ORDERS 74The Council has been successful. The orders of the Court are as follows: (1)Declaration that the first to sixth respondents in failing to dedicate Lot 389 in Deposited Plan 1010609 to the Council for use as a public reserve, carried out development otherwise than in accordance with development consent communicated by the applicant to Cosmopolitan Homes by Notice of Determination dated 11 May 1995, contrary to s 76A(1)(b) of the Environmental Planning and Assessment Act 1979. (2)Order that the second to sixth respondents transfer to the Council within 28 days Lot 389 in Deposited Plan 1010609 freed and discharged from all encumbrances and identified in the transfer as being for use as a public reserve. (3)Order that upon compliance with Order 2 the Council promptly refund, by payment to the solicitors of the first to sixth respondents, the rates paid to the Council in and after 2000 by any of the first to sixth respondents in respect of Lot 389 in Deposited Plan 1010609, which the parties agree total $8,616.25. (4)Order that pending registration of a transfer to give effect to Order 2 the seventh respondent be restrained from registering or permitting registration of any dealing affecting Lot 389 in Deposited Plan 1010609 other than: (a) a transfer to give effect to Order 2 above; and (b) a caveat or withdrawal of caveat by the applicant. (5)Order that the first to sixth respondents pay the costs of the applicant and the seventh respondent. (6)Liberty to apply. (7)The exhibits may be returned. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 October 2011

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