Mirvac Homes Pty Ltd v Parramatta City Council

Land and Environment Court (NSW)|1999-09-22|Before: Lloyd J

The applicant does not intend to apply for community title subdivision of the development in Precinct 3: that is to be the subject of a separate application for strata title subdivision.

The whole of the subject land was zoned for residential use by Parramatta Local Environmental Plan No 52 , which commenced on 19 March 1984, having been previously zoned Special Uses - Institution. On 8 October 1985 the respondent adopted a development control plan under s 72 of the Act called "Dalmar Development Control Plan". It provided, inter alia , that development of the Dalmar site shall be carried out in accordance with the "Dalmar Concept Map" prepared by Jackson Teece Chesterman Willis & Partners dated October 1984.

(b) to provide for other types of development which are compatible with a residential environment and are of a similar scale and character to permitted residential development."

The following uses are permissible with development consent within the 2(b) zone:

"Boarding houses; child care centres; community facilities; dual occupancy dwellings; dwelling houses; educational establishments; home occupations; hospitals; medium density housing; places of public worship; recreation facilities; utility installations (other than gas holders or generating works); villa homes."

The subject land is also subject to the Parramatta Development Control Plan Dundas Ward ("the DCP"), which became effective on 21 July 1993. Section 13 of the DCP applies to the Dalmar land. It applies the same controls to the Dalmar land as the 1985 Development Control Plan, including a requirement that development shall be generally distributed as indicated on the "Dalmar Concept Map", defined as being a map prepared by Jackson Teece Chesterman Willis & Partners Pty Ltd dated October 1984. The proposed development conforms with the DCP.

The proposed development has been the subject of previous appeals to the Court. The applicant previously appealed against the deemed refusal of the Council of four development applications for the same land. One of those development applications was for a subdivision of lot 1 in Deposited Plan 739215 into two lots. The other three development applications were for 75 residential dwellings in Precinct 1, 28 residential dwellings in Precinct 3 and 39 residential dwellings in Precinct 2. The residential dwellings which were proposed to be erected comprised variously free-standing dwellings and so-called " courtyard homes ". The latter comprised groups of two dwellings having the appearance of being attached to each other, but in fact being physically separated from each other by a space of 50mm. The present appeals involve applications for the same kind of dwellings, namely free-standing dwellings and courtyard homes of the same kind of construction as those which were the subject of the previous appeal.

In the previous appeals the parties, who were the same as those in the present appeals, raised a preliminary question of law which was heard and determined by Bignold J in October 1998. The question arose because of some doubt as to whether the courtyard homes (or attached dwelling houses as they were called) were " dwelling houses " and thus permissible development within the 2(b) zone. The Council contended that a dwelling house was relevantly defined as a building containing one but not more than one dwelling; and further contended that the courtyard homes being attached dwellings were buildings containing more than one dwelling and were thus prohibited in the 2(b) zone. They could not be regarded as dual occupancy dwellings because a dual occupancy dwelling was relevantly defined as a building consisting of two dwellings on one allotment of land, whereas the application showed each proposed dwelling on its own allotment of land.

The features of the courtyard homes or attached dwellings which were the subject of the previous appeal included the following: each residence is to be constructed on its own concrete slab; there is a 50mm gap between the concrete slabs; the wall of each residence adjacent to the boundary line is of timber frame and brick veneer construction; the boundary line of the allotments runs within the 50mm gap in the centre of the double brick veneer walls; the front and rear elevations show that the residences share a tiled roof line, but the roof tiles are broken at the boundary line and a " mastic joint (ridgelock) " is placed between them, independently sealing the tiled roof of each residence; and the battens are not continuous over the top of the boundary walls.

The question of law which Bignold J considered was framed as follows: Whether the proposed development is permissible under the provisions of the Parramatta Local Environmental Plan 1993 (Dundas Ward) in that the attached dwelling houses are not a permitted form of use.

Bignold J found in Mirvac Homes (NSW) Pty Ltd v Parramatta City Council (No 1) (29 October 1998, unreported) that each dwelling would be structurally independent of the immediately adjacent dwelling. His Honour answered the question of law as follows: The whole of the proposed development is a permissible form of development in terms of the Parramatta Local Environmental Plan 1993 (Dundas Ward) .

The previous appeals were then heard on their merits by me in February 1999. In a reserved judgment delivered on 4 March 1999 ( Mirvac Homes (NSW) Pty Ltd v Parramatta City Council (No 2) [1999] NSWLEC 38) I allowed the appeal for the subdivision but dismissed the appeals for the residential development on the ground that there was insufficient solar access to a number of the proposed dwellings.

The present appeals are the result of my findings on the merits in my judgment of 4 March 1999. The applicant has rectified the shortcomings of the previous applications and the Council now accepts that the design of the buildings insofar as they concern amenity considerations is now satisfactory. It seems that the applicant consulted the expert witness who gave evidence for the Council in the previous proceedings, Mr G W Smith, whose conclusions led me to dismiss the previous appeals. Mr Smith's criticisms have now been satisfied.

The design of the courtyard homes or attached homes remains the same, however, as that which was considered by Bignold J. That is to say, they retain the features which I have described in paragraph 7 above.

Mr P C Tomasetti, who appears for the Council, has sought in these proceedings to re-argue the issues determined by Bignold J. He has sought to argue that the courtyard homes or attached houses are not within the definition of " dwelling house " and are thus prohibited within the 2(b) zone.

The method of construction proposed for the courtyard homes or attached houses is identical to that which was considered by Bignold J. The issue is identical with that which was heard and determined by Bignold J. The development is on the same land and is of the same kind as that which was the subject of Bignold J's determination. The parties are the same as those who were before Bignold J. It would seem that in these circumstances the principal of issue estoppel would operate to prevent the same points being re-litigated.

Mr Tomasetti submits, however, that the principle of issue estoppel does not apply to planning appeals within Class 1 of this Court's jurisdiction. Mr Tomasetti relies upon Capita Financial Group Ltd v Triden Properties Pty Ltd (Cole J, 6 December 1993, unreported) and Lean v Ku-Ring-Gai Council (Talbot J, 24 September 1998, unreported) in support of his submission.

In Capita Financial Group Ltd v Triden Properties Ltd , Cole J construed a clause in a contract differently from a construction of the same clause adopted by Rogers CJ CommD in interlocutory proceedings in the same matter. Cole J held that he was not constrained by way of issue estoppel or otherwise from departing from the construction adopted by Rogers CJ CommD. The decision of Rogers CJ CommD was not a decision pursuant to Pt 31 of the Supreme Court Rules, but was made on a notice of motion pursuant to Pt 72 r 9 of those rules which permits the Court on the motion of a party to give directions with respect to any matter in proceedings under a reference by the Court to a referee. Rogers CJ CommD, in his determination, provided to the referee directions as to the manner in which the referee should, as a matter of law, approach the reference. That reference did not proceed. The decision of Rogers CJ CommD became surplusage and irrelevant. Cole J said: Whilst the matter was obviously argued by Capita and Properties before Rogers CJ CommD, in my view the reasons which he gave are properly characterised as directions given by the Court to a referee pursuant to Pt72 R9 at a time when it was thought the referee would be required to deal with the effect of CL9.3. So characterised as directions by the Court to the referee, I am of the view that they do not create any decision of the court binding upon the parties whether by way of issue estoppel or otherwise, and nor do they constitute a decision in the present proceedings which precludes my reaching an alternate view to that expressed by Rogers CJ CommD.

This case does not, in my opinion, support Mr Tomasetti's submission. The judgment of Bignold J on the question of law was and remains a fundamental question which determined the permissibility or otherwise of the development. Although Bignold J does not expressly say so in his judgment, the determination was and only could have been made as the separate determination of a preliminary question of law pursuant to Pt 31 r 2 of the Supreme Court Rules, which applies in this Court. The decision of Bignold J was neither surplusage nor irrelevant, but was on the contrary a necessary and essential finding in the proceedings. If the case with which Cole J was concerned had been similarly characterised then it seems that his Honour may well have considered himself constrained by the principle of issue estoppel from revisiting the same issue.

In Lean v Ku-ring-Gai Council , Talbot J considered a number of preliminary questions of law in an appeal against the deemed refusal of a development application. There had been a previous appeal which had been heard and dismissed by Sheahan J involving the same parties and the same land. One of the questions of law which Talbot J considered was whether, in the light of the findings of fact by Sheahan J in the previous appeal, issue estoppel arose which precluded evidence to contradict or qualify those findings.

Talbot J held that s 39 of the Land & Environment Court Act ("the Court Act") required the Court to carry out its own assessment of the second proposal in accordance with its statutory duty. That section provides inter alia that the appeal is by way of rehearing and fresh evidence or evidence in addition to, or in substitution for, the evidence given on the making of the decision may be given on the appeal. Talbot J referred to a number of authorities including Southend-on-Sea Corporation v Hodgson (Wickford) Ltd [1962] 1 QB 416 at 423-424, in which Lord Parker said: ... I can see no logical distinction between a case such as that of an estoppel being sought to be raised to prevent the performance of a statutory duty and one where it is sought to be raised to hinder the exercise of a statutory discretion. After all, in a case of discretion there is a duty under the statute to exercise a free and unhindered discretion. There is a long line of cases to which we have not been specifically referred which lay down that a public authority cannot by contract fetter the exercise of its discretion. Similarly, as it seems to me, an estoppel cannot be raised to prevent or hinder the exercise of the discretion.

Talbot J went on to say, however: It is not essential to a determination of the preliminary points raised in this matter for me to finally decide whether an issue estoppel can arise in a second or subsequent appeal from a determination of a development application by a consent authority. Nevertheless where a fact is capable of being finally and conclusively established by the earlier proceedings, it is difficult to perceive how that fact could be afterwards raised between the same parties having regard to the principle expressed in Blair v Curran . Certain facts are immutable and it is hard to see how an estoppel might not be raised in such a case.

Talbot J noted that the applicant in the case before him conceded that the proposal before the Court was a different proposal to that which was considered by Sheahan J. It seems that, for that reason and for the reason that the Court is bound to carry out its own assessment of a second proposal in accordance with its statutory duty, Talbot J held that there was not any issue estoppel which precluded the raising of issues and the admission of evidence to contradict or qualify the findings of Sheahan J in the earlier proceedings.

There are obvious differences between the case with which Talbot J was concerned and the present case. First , in the present case the question determined by Bignold J was the separate determination of a question of law pursuant to Pt 31 r 2 of the Supreme Court Rules , as it applies in this Court. Secondly , the question in issue in the present case is not one which involves the exercise of any discretion; it is whether the courtyard houses or attached dwellings, utilising a special method of construction, is permissible development within the 2(b) zone. Thirdly , unlike the case before Talbot J, there are no differences between the method of construction which was considered by Bignold J and that which is now proposed. The method of construction is identical in each case. Fourthly , although s 39 of the Court Act provides that the appeal is by way of rehearing, the relevant facts on the issue in question in the present case are immutable. Fifthly , the question which was determined by Bignold J was then and remains capable of finally and conclusively resolving the issue. I therefore do not regard Talbot J's judgment as requiring me to find, in the present case, that the principle of issue estoppel is not available.

Issue estoppel is the principle of law that a judicial determination directly involving an issue of fact or law disposes once and for all the issue, so that it cannot afterwards be raised between the same parties ( Halsbury's Laws of Australia , Vol 13 at 370, 214; Blair v Curran (1939) 62 CLR 464 at 531). The rationale for the rule is based on the principles of finality of litigation, preventing a party having to re-litigate matters already determined and the need for decisions to be accepted as correct. For issue estoppel to arise there must be a determination in a judicial manner by a court or tribunal which has authority to decide the matter, an identity of issue and an identity of parties ( Halsbury's Laws of Australia at 370, 214). Orders deciding separate questions are also regarded as being final orders for the principle of res judicata , although interlocutory for purposes of appeal ( Bass v Permanent Trustee Co Ltd (1999) 73 ALJR 522 at 535 [57]) and also, it would seem, for the principle of issue estoppel. Finally, in Lambidis v Commissioner of Police (1995) 37 NSWLR 320, Kirby P at 323-325 expressed the view that the decision of an administrative tribunal may give rise to an estoppel if the same issue is raised in later litigation. Priestley JA at 331-333 (with whom Powell JA agreed) was of the same opinion.

I therefore find, consistently with the above principles, that in the present case, where the issue sought to be raised by the Council has the features which I have described (in paras 14 and 22 above), that the Council is prohibited by the principle of issue estoppel from raising again in these proceedings the same issue as was determined by Bignold J.

Part of the proposed development in Precinct 1 has a frontage to both Marsden Road and Grimes Lane. Access to the garages to five of the proposed dwellings is to be by way of Grimes Lane. In this respect the proposed development is identical with that which was the subject of the previous appeal.

The Council now contends in this appeal that Grimes Lane is not a public road, that there was never any dedication or intention to dedicate it as a public road, that there has never been acceptance by the public of any dedication or intention to dedicate it as a public road and accordingly the proposal insofar as Precinct 1 is concerned cannot be approved because of the proposed access to the garages by way of the lane. Moreover, on 25 August 1999 the Council made an application to the Roads & Traffic Authority of New South Wales for a traffic management plan for the permanent closure of Grimes Lane to vehicular traffic. That application states the purpose of the road closure as being " for the purposes of providing safe pedestrian access and to preserve the laneway ". I observe that this stated purpose appears to be clearly at odds with the Council's contention that the lane is not a public road.

Mr J J Bingham, who appears for the applicant, submits that the Council is estopped by convention from now asserting that Grimes Lane is not a public road. The Council did not raise this as an issue in the previous appeal. The applicant was thus led to alter its position to its detriment by the Council's representation in those proceedings that Grimes Lane was as a public road. One of the issues in the previous appeal was the use of Grimes Lane for vehicular access. The expert evidence adduced by the Council's consultant traffic engineer in that case, Mr C E Hallam (with whose views the applicant's traffic engineer, Mr M B Colston, concurred) was as follows: Apart from the need to prevent direct access to Marsden Road, I see no reason why the five dwellings should not have rear access to this lane.

In the previous appeal I accepted the evidence of Mr Hallam (in whose opinion Mr Colston concurred). The only issue relating to Grimes Lane in that appeal was its use by traffic on amenity grounds. No question of the status of the lane as a public road was raised.

The Council's solicitor, Mr C C Gough, gave evidence. He said that the Council had only recently obtained a search of the title to Grimes Lane. The Council was thus unaware, when the previous appeal was heard, that there was any doubt as to Grimes Lane being a public road. Mr Gough was Council's solicitor in the previous class 1 appeal concerning the same site earlier this year. Mr Gough stated in his evidence that on or about 26 August 1999 he received instructions from Council to investigate the status of Grimes Lane. Council had received a search from Mr Pryde, a legal searcher that indicated that the status of Grimes Lane was inconclusive. Mr Gough instructed Mr Pryde to undertake further and additional searches to determine the ownership of Grimes Lane. Mr Gough stated in his evidence that the first time Council received advice regarding the status of Grimes Lane was on or about 1 August 1999. It was at this time that the status of Grimes Lane was questioned. Mr Gough admitted that Council had assumed during the course of the preparation and conduct of the previous proceedings that Grimes Lane was " available to the public for public use ." The applicant's solicitors were first notified that the status of Grimes Lane was an issue by letter dated 1 September 1999.

In support of his submission that estoppel by convention is available against the Council, Mr Bingham relies upon Nelson v Ballina Shire Council (1993) 80 LGERA 271. In that case an applicant for development consent for the subdivision of land offered by letter to pay a sum toward the cost of sealing the adjacent public road. The Council granted development consent subject to a condition which referred to the offer and which required the applicant to meet the cost of sealing the road. Subsequently the Council advised the applicant by letter that it would be happy to accept a bond for the cost of the sealing of the road. Thereafter the applicant lodged an amended development application for subdivision, which the Council granted subject to the same condition. On the same day on which the development consent was granted the Council wrote to the applicant acknowledging the deposit of the bond. The Council cashed in the bond and used the money for roadworks elsewhere. The applicants brought proceedings for declarations and a mandatory injunction to compel the Council to complete the roadworks. Bignold J held the Council to be estopped by convention from denying that the effect of the condition was otherwise than agreed by the parties as set out in the correspondence.

In so holding Bignold J regarded the parties as being involved in a legal relationship of applicant for development consent and of consent authority having the function of determining the application. After referring to a number of authorities, Bignold J held that it would be unconscionable to allow the Council to depart from the basis of the assumption (in the correspondence) that the applicant's payment was for the sealing of the adjacent public road.

As I understand it, estoppel by convention is a form of estoppel by representation by treating the "convention" as involving mutual representations. The representation in the present case is an assumption in the previous appeal that Grimes Lane was a public road. Both parties were then unaware, however, that there was any doubt as to the status of the lane as a public road. Unlike the case of Nelson v Ballina , upon which Mr Bingham relies, there is nothing unconscionable about the Council's present conduct. Having now discovered by a search of the title that Grimes Lane may not be a public road, there does not seem to be anything unconscionable in the Council now raising it as an issue in this appeal. At most there was in the previous appeal a mutual mistake by the parties as to the status of the lane.

In Thompson v Palmer (1933) 49 CLR 507, Dixon J, speaking of estoppel in pais (of which estoppel by convention is a species) said (at 547): The object of the estoppel in pais is to prevent an unjust departure by one person from an assumption adopted by another as the basis of some act or omission which, unless the assumption be adhered to, would operate to that other's detriment. Whether a departure by a party from the assumption should be considered unjust and inadmissible depends on the part taken by him in occasioning its adoption by the other party .

In Grundt v Great Boulder Pty Gold Mines Ltd (1937) 59 CLR 641 at 674 Dixon said: The principle upon which estoppel in pais is founded is that the law should not permit an unjust departure by a party from an assumption of fact which he has caused another party to adopt or accept for the purpose of their legal relationship. This is, of course, a very general statement, but it is the basis of the rules governing estoppel.

It is difficult, in a case involving mutual mistake, to find anything unjust in allowing one of the mistaken parties to depart from the assumption. Mr Bingham has not pointed to any authority in which it has been held that an assumption arising from the mutual mistake of the parties can amount to an estoppel. Neither has Mr Bingham pointed to any authority which suggests that a party in the position of the Council here, which was unaware of the state of the title to the lane, being subsequently estopped by convention from asserting the true title. As stated by Dixon J in Thompson v Palmer and in Grundt the object of estoppel is to prevent an unjust departure by one person from an assumption adopted by another as the basis of some act or omission which, unless the assumption be adhered to, would operate to that other's detriment. That is the basis of the rules governing estoppel. I am thus not persuaded that the Council is now estopped by convention from raising the issue of the status of the lane.

I note in passing that Mr Bingham does not rely upon the Anshun principle of estoppel (being the principle described in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589).

Mr Bingham also relies upon estoppel by representation and on common law estoppel. The difference between these two forms of estoppel is somewhat blurred, since they are both forms of estoppel in pais . I am also mindful of the view of Mason CJ in The Commonwealth v Verwayen (1990) 170 CLR 394, that there is but one doctrine of estoppel; that all of the categories and distinctions serve the same fundamental purpose; that there is one overriding doctrine of estoppel rather than a series of independent rules; and that the underlying function of the principle is the concept of unconscionability.

Mr Bingham relies upon the representation by the Council to the public at large that Grimes Lane is a public road. It has done so in a number of ways. It has erected a street sign at the end of Mulyan Avenue which points along the lane and which states " Grimes Lane ". It has permitted the construction of a vehicular turning circle at the end of Mulyan Avenue within the site of the lane. It has permitted the extension of Dalmar Crescent across the lane to a turning circle on the other side of the lane. It has permitted the extension of Freeman Place across the lane. It has permitted a number of medium density developments in the extension of Freeman Place, the only access to such development being across the lane. It has permitted the extension of Lomax Street across the lane. It has permitted the widening of the lane for vehicular traffic between Second Avenue and Chelmsford Avenue. It has permitted the construction of concrete footpaths along various sections of the lane. In applying to the Roads and Traffic Authority to regulate traffic in the lane, the Council has asserted that its purpose in doing so is to provide " safe pedestrian access and to preserve the laneway "; and it has thus asserted a right to regulate traffic on the lane. It has permitted the erection of garages fronting onto the lane.

Since the underlying foundation of the principle of estoppel is unconscionability, the applicant must show in this case that the submission of the Council that Grimes Lane is not a public road is an unjust departure from the common assumption that Grimes Lane was a public road. All of the acts of the Council which I have recited in paragraph 38 above were done on the assumption that Grimes Lane was a public road. As I have noted (in paragraph 29 above) the Council has only recently come into possession of information which suggests that this assumption might be misplaced. What is the Council to do? Should it stand by and ignore the information which it now has? If it were to do that, then it may only compound the problem if the successor in title to the owner of the lane were to subsequently appear and claim ownership of it. If the Council were to stand by and not take the point, it could conceivably be sued by the applicant if, having constructed the garages fronting onto the lane, either it or those who purchase the houses from it were to be denied access by the true owner. It could be argued that, rather than acting unconscionably, by taking the point now the Council may be acting responsibly. Although the likelihood of the true owner of the lane or his successor in title turning up is only a remote possibility, it cannot be ruled out altogether. Stranger things have happened in the past, particularly in the ownership of Old System land, as this is. Accordingly, I am not persuaded that the Council is prevented by estoppel by representation or by common law estoppel from now raising as an issue the status of Grimes Lane.

Grimes Lane was originally part of a Crown grant of 427 acres, being portion 76, granted to James Dunlop on 30 June 1823. On 30 April 1850, by deed Book 18 No 564, 377 acres in the aforesaid grant was conveyed to William Mobbs Sr. After the death of William Mobbs Sr and pursuant to his will, a parcel containing 237 acres was devised to his sons, George Mobbs, John Mobbs and Thomas Mobbs. After partition, each son received his allotted part, but no deed was ever prepared.

Thereafter the land was progressively subdivided and sold. By deed dated 25 June 1860, Book 67 No 707, Thomas Mobbs conveyed to Henry Johnston a parcel containing 10 acres fronting Church Street (now called Marsden Road) but which excluded the site of Grimes Lane which was alongside the north west boundary of the parcel. Part of this land comprising about 5 acres was the subject of primary application No 30716 (deposited plan 80716) for which certificate of title Volume 4513 Folio 145 was issued on 17 December 1931. The plan forming part of the primary application shows Grimes Lane as being fenced on each side, including what is described as an old fence on the south eastern side of the lane. The lane is shown as unfenced at its junction with Church Street.

By deed dated 10 June 1884, Book 290 No 966, George Mobbs (with John Mobbs and Thomas Mobbs joining in) conveyed to John Grime a parcel containing 41 acres on the north west side of Grimes Lane. The plan annexed to the deed shows Grimes Lane as " one rod road " (one rod being 25 links or 16.5 feet, the present width of the lane). This 1884 plan is the earliest plan showing the lane as a road. The land the subject of this conveyance was the subject of a primary application 23846 for which certificate of title Volume 3429 Folio 233 was issued on 13 March 1923. The plan forming part of the primary application shows the lane fenced on one side by an " old and irregular 2 rail fence " and on the other side by an " old fence in bad repair ". This land is the subject of the present development application. According to the evidence of Mr T Pryde, the legal searcher who gave evidence for the Council, it is reasonable to infer from this plan that the fences were in existence in the 1880s or 1890s.

There were other subdivisions and sales of parcels of land along the lane between 1878 and 1896. On the north west side of the lane three parcels were conveyed out of the estate of William Mobbs to Bartholomew Allen, being 27 acres by deed dated 14 February 1878, Book 177 No 865; 10 acres by deed dated 12 June 1880, Book 203 No 543; and 10 acres on 3 September 1890, Book 443 No 823. Such land was subsequently brought under the provisions of the Real Property Act by primary application 21759 in 1918 for which certificate of title volume 2977 Folio 136 was issued on 7 October 1919. The plan which accompanied the primary application shows Grimes Lane as being substantially fenced on its north western side and " remains of old fence " on its south eastern side.

On the south eastern side of the lane a parcel containing about 84 acres was conveyed out of the estate of William Mobbs to Joseph Eyles on 17 May 1864, Book 88 No 389. This land was then further subdivided. Pursuant to primary application 10003 dated 29 November 1895, a parcel of about 29 acres was brought under the predecessor to the Real Property Act 1900 and certificate of title volume 1208 Folio 194 was issued on 9 December 1896. Both the plan for the primary application and the certificate of title show the lane as " road 25 links wide " and show the land the subject of the primary application as being fully fenced.

A further parcel of about 10 acres on the south east side of the lane was the subject of primary application 9705, for which certificate of title volume 1186 folio 219 was issued on 2 April 1896. Both documents again show the lane as " road 25 links wide " and fenced on both sides.

Another parcel of about 10 acres on the south east side of the lane was the subject of primary application 9710, for which certificate of title volume 1186 folio 217 was issued on 2 April 1896. Again, both documents show the lane as " road 25 links wide " and fenced on both sides.

A parcel of about 9 acres on the south east side of the lane was the subject of primary application 9741, for which certificate of title volume 1186 folio 135 was issued on 17 April 1896 (in the name of Mary Walton as registered proprietor). Again the lane is shown as " road 25 links wide " but appears to be fenced only on one side at the location of the parcel of 9 acres.

It is thus apparent that by 1896 there were four parcels of land fronting the lane on its north west side and five parcels of land fronting the lane on its south west side. Each parcel, however, also had a frontage to another road: those on the north west side to Government Road (now called Dunlop Street) and those on the south east side to Mobbs Lane. The 1884 plan in the conveyance from George Mobbs to John Grime shows the lane as " 1 rod road " and all subsequent plans show the lane as either " road 25 links wide " or " road 16'6" wide ". The various plans show fencing on both sides of the road for most of its length and the lane is shown on all the various plans as unfenced at its junction with what is now called Marsden Road. Mr Pryde said in evidence that having regard to the age of the fencing noted on the plans, it was a reasonable inference that Grimes Lane was in use from the 1880s or 1890s.

The plans to which I have referred above show the lane extending from Marsden Road at its western end and terminating at the boundary of the land in what is now deposited plan 8390. The lane was not opened up at its eastern end until 1919 with the registration of deposited plan 9770, which created First Avenue. That deposited plan shows First Avenue connecting with Grimes Lane. Deposited plan 8390, registered in 1915, created the subdivision which in turn created Chelmsford Avenue. The lane is shown in the 1915 deposited plan, however, as being in existence on the adjoining land.

Since 1919 there has been a number of subdivisions and dealings involving land adjacent to Grimes Lane and involving Grimes Lane itself which strongly leads to the inference that the lane was a public road. These are itemised in the statement of Mr W D Bragg, the legal searcher who gave evidence for the applicant. They include the dedication of splayed corners at intersections with Grimes Lane, the extension of Freeman Place across Grimes Lane; the extension of Lomax Street across Grimes Lane; the provision of a pathway from Meredith Street to Grimes Lane; the dedication of land adjacent to Grimes Lane as road widening; and the creation of an allotment of land with frontage only to Grimes Lane. In 1951 land along Marsden Road was resumed for road widening. Whilst the land on either side of Grimes Lane was resumed, Grimes Lane was not itself resumed, which suggests that it was already a public road. The primary applications for the land on either side of Grimes Lane do not include the lane in such applications, and the lane is shown as a road and fenced on each side. The dedication of Mulyan Avenue in deposited plan 31829 extends up to but does not include the site of Grimes Lane. The more recent subdivision in deposited plan 739215 shows the turning circle of Mulyan Avenue across the lane, the turning circle for Dalmar Crescent East across the lane and the extension of Freeman Place across the lane. All of this suggests that Grimes Lane was already a public road.

The lane is physically used by the public. According to the evidence of a number of local residents, Grimes Lane has always been used on a regular basis by pedestrians for as long as they have lived in the area, which in some cases is 36-37 years. The lane is signposted by the Council at Mulyan Avenue as "Grimes Lane". There is evidence of a similar sign having existed at Marsden Road. The house at the end of Mulyan Avenue has its address on the letter box as No 7 Grimes Lane. A dish crossing at the intersection of Grimes Lane and Marsden Road provides vehicular access to the lane, although removable bollards have been place at various points along the lane to prevent through traffic. There is a line of electricity poles and wires along the lane, which are occasionally serviced by electricity workers using motor vehicles. Motor vehicles make use of the lane for the purpose of the turning circle in Mulyan Avenue and in Dalmar Crescent, for access to Freeman Place, for access across Lomax Street and along the widened section of the lane between Second Avenue and Chelmsford Avenue, part of which is kerbed, guttered and bituminised. A concrete pathway extends along the lane from Mulyan Avenue to Lomax Street, but from Lomax Street to Second Avenue the lane is a bush track.

Since 1 January 1907 a public road could only be opened in New South Wales when approved by a local government council ( Local Government Act 1906, ss 99-101; Local Government Act 1919, s 323). Before then a road could be created at common law. At common law a road could be created when a competent landowner sufficiently evidenced an intention to dedicate it as a public road and there was acceptance by the public of the offer of dedication ( Permanent Trustee Co of New South Wales v Campbelltown Municipal Council (1960) 105 CLR 401 at 420, per Windeyer J). Any act which indicates an intention on the part of the owner of land to abandon to the public right of passage over it will be effectual as a dedication ( Pratt and McKenzie On Highways , 19th Edition, 1952; Permanent Trustee Co case, at 422). The lodging of a plan of subdivision is an offer to dedicate the roads shown in it ( Permanent Trustee Co case, at 422). The offer to the public is ripened into a complete dedication only by its acceptance by the public ( Permanent Trustee Co case at 422). Once the intended dedication has been accepted by the public a public road came into existence ( Permanent Trustee Co case, at 422).

If the intention to dedicate is expressed on the face of a plan of subdivision, no great amount of public use was necessary to make the dedication complete ( Permanent Trustee Co case, at 423). Public acceptance of an intention to dedicate made before the commencement of the Local Government Act 1906 could occur after the commencement of that Act on 1 January 1907; and public use of the road after the commencement of the Local Government Act 1919 on 1 January 1920 it connected with use before that date could complete the dedication ( Owen v O'Connor (1963) SR(NSW) 1051 at 1059; 9 LGRA 159, per Sugarman J; Newington v Windeyer (1985) 3 NSWLR 555 at 563, 58 LGRA 289 at 296, per McHugh JA).

The extent to which use is sufficient to amount to an acceptance by the public of an offer of dedication is a question of fact in each case. If roads are shown on a plan of subdivision and if there is any use of such a road as a means of passage by any members of the public, then it is a public road ( Owen v O'Connor at 1059).

Use of the road by the owners of land in the subdivision creating it, provided it is open to a public road system, is sufficient to amount to a use by the public. In the Permanent Trustee Co case, Menzies J said (at 415): Coming now to whether it was doubtful whether St George's Parade is a public road, I would say first that I regard it an artificial and unreal conception that when roads are left in subdivision they are left as private roads merely for the use of those who want to get to land in the subdivision. It seems more realistic to treat such roads as shown as part of the general roadway system and as open to all so that unless access is prevented by fencing or otherwise, roads shown upon a plan of subdivision are properly to be regarded as open to the public, with the consequence that if there is use of such a road as a means of passage by any members of the public, whether owners of land in the subdivision or not, then it is a public road: Attorney-General v The City Bank of Sydney (1920) 20 SR(NSW) 216: 37 WN 51.

56 . It follows from this passage that when a road is left in a subdivision and runs into a public road system, an inference may be drawn that it was dedicated as a public road unless access to the road is prevented by fencing or other action ( Newington v Windeyer , at 559).

Tomark Pty Ltd v Bellevue Crescent Pty Ltd (1999) NSWCA 347 (28 September 1999, unreported) was a case about whether a lane off George Street in Sydney was a public road. Stein JA with whom Priestley and Beazley JJA agreed) said, at [48] and [49]: The absence of any evidence of gates at the George Street entry to the lane also tends to support the likely use by members of the public. That is, that the road was left open for use by the public. The absence of fencing off a road has been seen as important to the issue of dedication. See Harvey J in Attorney-General v City Bank of Sydney (1920) 20 SR(NSW) 216 at 221; Sugarman J in Owen v O'Connor (1963) 63 SR(NSW) 1051 at 1053 and Newington v Windeyer at 559. Young J believed that there was a presumption in relation to roads connecting to a public road being open to all, so that if they were not fenced off, they were to be properly regarded as open to the public. He cited Menzies J in Permanent Trustee Co of New South Wales Ltd v Campbelltown Corporation (1960) 105 CLR 401 at 405.

I am unsure whether what Menzies J said about roads left in subdivisions rises to a legal presumption. However, his approach is a realistic one. I agree that it is an artificial and unreal approach to treat such roads as private unless access to the public is prevented.

So, too, in the present case, the fact that the lane was fenced on both sides for most of its length and was unfenced at its connection with the road now known as Marsden Road allows the inference to be drawn that it was open to the public and thus it was intended to be dedicated for public use. There is no evidence to displace the available inference.

Mr Tomasetti submits that the various subdivisions of portion 76 do not show on their face an intention to create or dedicate a road and that Grimes Lane appears to be no more than an access handle to the land at the rear of what is now called Marsden Road. Mr Tomasetti relies upon Newington v Windeyer in support of a submission that Grimes Lane was nothing more than a private road. He further submits that Grimes Lane is a residual parcel of land the fee simple of which vests in William Mobbs or his successors, heirs and/or assigns.

I do not derive much assistance from Newington v Windeyer . In that case the facts were quite different to those in the present case. In that case no inference could be drawn of an intention to dedicate: the road in question was shown on a survey plan made in 1903 as " private "; it was shown on a map published in 1889 as a " private laneway "; and by 1910 and possibly much earlier it was fenced off and " was like a private garden ".

In the present case there are numerous facts from which an inference may be drawn of an intention to create or dedicate a road. The earliest plan of subdivision, that of 1884, shows the lane as " one rod road ". Although the plan is annexed to a deed of conveyance from George Mobbs to John Grime, both John Mobbs and Thomas Mobbs joined in the conveyance. Thomas Mobbs owned the land on the opposite side of the lane; and the original parcel had been devised to the three brothers; so that the deed was effective in that all persons having an interest in the land, including the site of the lane, had executed the deed. The showing of the lane on the plan as a " one rod road " outside the subdivision suggests that it was not intended to be a private road. The registration of the deed showing the road entitles me to infer an intention by the three brothers to create or dedicate the lane as a road.

All subsequent subdivisions and conveyances of the original estate show the lane, typically described as " road 25 links wide " and later as " 16'6" wide ". In no case does the lane form part of the land conveyed. It is shown on the various plans as being fenced on both sides for most of its length; and I accept the evidence of Mr Pryde that it is reasonable to infer that the fences were there in the 1880s and in the 1890s. I also accept the evidence of Mr Pryde that it was a reasonable inference that Grimes Lane was, having regard to the age of the fencing noted on the plans, in use from the 1880s or 1890s.

Although shown as being fenced on both sides, the road appears at all times to have been open to Marsden Road (as it is now called). It thus ran into the public road system and the public could enter it from the public road system. This fact also entitles me to infer that the lane was dedicated as a public road. It was an invitation to the public to use the road as such. There is no direct evidence of use by members of the public before 1 January 1920, which is understandable, since there must be very few people, if any, who are alive today who would then have lived in the area and would have any direct knowledge of its use. But the existence of the fences and the fact that the lane ran into the public road system suggests that an inference may be drawn that it was used by the various owners of the land which it served and thus by members of the public in the manner described by Menzies J in the Permanent Trustee case, to which I have referred. Moreover, as noted by Stein JA in Tomark Pty Ltd v Bellevue Crescent Pty Ltd , the absence of any gates or fencing at the Marsden Road entry to the lane tends to support the likely use of it by members of the public.

I thus reject Mr Tomasetti's submission that the road could be regarded as no more than a private right of way for the owners of the land which it serves. As Menzies J stated in the passage which I have cited, " I regard it as an artificial and unreal conception that when roads are left in a subdivision they are left as private roads merely for the use of those who want to get to the land in the subdivision ".

I am thus inclined to the view that Grimes Lane was left in various subdivisions of land, particularly the subdivision of 1884, with the intention that it be dedicated as a public road by those who were entitled to so dedicate it, namely George Mobbs, John Mobbs and Thomas Mobbs, all of whom joined in the deed which created it and being the three sons of William Mobbs Sr and to whom the latter had devised the original parcel. The subsequent subdivision of the other parcels showing the lane as " road one rod wide " confirm, in my opinion, the intention to dedicate the lane as a public road. As I have noted, the fact that the lane was left open to the public road system provides further confirmation of the view to which I have come. I have referred above to the inference which I am prepared to draw that there was relevantly use of the road, particularly since it was fenced on both sides and open to the public road system and such use may be regarded as use by the public.

There is also a statutory presumption that in such circumstances the road is deemed to be a public road. Section 47 of the Police (Towns) Act 1838, 2 Vic No 2, relevantly provides: .. provided also that all land which shall have been at the time of the publication of the general objects of this Act in New South Wales Government Gazette or shall hereafter be left open and used as a carriage or foot way within any of the towns aforesaid as well as all land which has been or shall hereafter be formed into a street within any of the said towns at the public expense shall be deemed and taken to be dedicated to the public and shall not be fenced in or reserved on any pretence whatsoever but shall be subject to all such and the like regulations orders powers authorities and provisions to which land used as a public thoroughfare now is or hereafter shall be subject by law ....

The " towns aforesaid " to which this section refers were those specified in the Act. The subject land was within the municipality of Dundas until 1949, when that municipality was amalgamated with the City of Parramatta. Dundas was not proclaimed to be a town until 31 October 1889, whereupon it became subject to the Act. The provisions of the section were substantially re-enacted by the Police Offences Act 1901, s 49. The towns to which that section applied are listed in Schedule 3 to the Act and include Dundas. In Newington v Windeyer , McHugh JA (at 561-562) interpreted the words in the section " left open " as " allowed to be used by the public ". He said: If a road was allowed to be used by the public, it became a public road whether or not there was an actual intention to dedicate the road to the public. If a lessee " left open " a road, the lessor would be bound by the operation of the section. I do not think that it is correct to treat the expression " left open " as equivalent to " was open as a road ". The expression " left open " in this context seems to connote the occupier allowing other persons, without discrimination, to use the land as a road. The words "used as a carriageway or footway within any of the towns " support this interpretation. They seem to be a reflection of two of Coke's three fold classification of the highways over which the public have rights: see Co Lit (at 56).

Mr Tomasetti relies upon the judgment of Bignold J in Luka v Lake Macquarie City Council (21 June 1996, unreported) in support of his submission that there had to be evidence of public use and acceptance of the road before the commencement on 1 January 1920 of the 1919 Local Government Act . Bignold J referred in this context to both Owen v O'Connor and to the Permanent Trustee Co case.

I have noted (at paragraph 53 above) that in Owen v O'Connor , Sugarman J considered that public acceptance of an intention to dedicate made before the commencement of the 1906 Local Government Act could occur after the commencement of that Act on 1 January 1907 and public use of the road after the commencement of the 1919 Act on 1 January 1920, if connected with use before that date could complete the dedication. Although Windeyer J expressed a contrary opinion in the Permanent Trustee case, McHugh JA in Newington v Windeyer expressed a preference for the view of Sugarman J in Owen v O'Connor .

I do not understand Bignold J to have disputed Owen v O'Connor . On the contrary, my reading of Luka suggests that his Honour both accepted and applied it. The reason for Bignold J finding that there had not been acceptance of the dedication in that case was based upon the particular facts in that case, including the fact that the Council had consistently expressed the opinion that the roads in question were not dedicated public roads and had levied and collected rates on the land over many years.

There is, as I have noted, ample evidence of the use of Grimes Lane by members of the public since 1 January 1920. This includes use by the Council. I refer to its use of sections of Grimes Lane for the turning circle at the end of Mulyan Avenue, for the turning circle at the end of Dalmar Crescent, for the extension of Freeman Place, for the extension of Lomax Street, for the widening of the lane between Second Avenue and Chelmsford Avenue, in its acceptance of splayed corners at various points along the lane and in its attempt to regulate traffic in the lane. The Council has never levied rates on the lane. In short, the Council has itself regarded the lane as a public road. I have referred to the extensive use of Grimes Lane as a pedestrian way by members of the public.

In Ensile Pty Ltd v Wollongong City Council (1994) 83 LGERA 289 at 292, Bannon J had regard to the fact that the roads in question had been utilised by public utilities. His Honour accepted that it is more likely that a public utility would make use of a road if available rather than privately owned land. In the present case electricity poles and wires have been placed along the lane and are serviced from time to time by persons using motor vehicles for that purpose.

I am thus inclined to the view that Grimes Lane is a public road. If I am wrong, however, then the ramifications are considerable. It would mean that the many instances of the use of the lane over many years (and which is continuing) is unlawful. I have described such use of Grimes Lane in paragraphs 38, 50, 51, 70 and 71 above. I have no doubt that if the lane were now to be found not to be a public road, any responsible council would exercise its powers under s 16 of the Roads Act 1993 by publishing a notice in the Gazette dedicating the lane as a public road.

The merits of the proposed development are all one way. The development is entirely consistent with the zoning and is entirely appropriate for the site. I so found in my judgment in the previous appeal which I delivered in March 1999. No town planning or other expert evidence was called by the Council to attest to the contrary.

I have noted that a number of local residents gave evidence. They object to the proposed development on various grounds, but principally on the ground that the development site is part of the heritage listed Dalmar Estate and it should not be developed at all; on the ground of the alleged excessive density of the proposal; on the ground of excessive traffic generation in local streets; and on the ground that part of Grimes Lane which has hitherto been used only by pedestrians will now be used by vehicular traffic.

In my previous judgment I considered the heritage issues. It was my opinion, based upon the expert evidence, that the essential heritage values of the Dalmar Estate would be protected by the retention of the tree-lined heritage driveway from Marsden Road and by the reservation of a generous curtilage around the heritage buildings which are to remain. Nothing has been presented to me in this case by way of new evidence to change that opinion. In particular I note that the New South Wales Heritage Office has raised no objection to the proposed development.

The zoning of the land permits residential development thereon of the density which is proposed. The land could have been zoned for low density residential development, such as Residential 2(a), but it was not. In zoning the land as Residential 2(b) the Council clearly intended that it be developed for medium density residential development such as is now proposed. I note that the only expert evidence from a town planner which has been tendered in this case is that of Mr N Ingham on behalf of the applicant and who states that the proposed development is worthy of support. In the absence of any expert evidence to the contrary I have no reason not to accept this opinion.

The issue of traffic generation was considered in the previous appeal. As noted by my judgment in that case, the traffic engineers who gave evidence, Mr M B Colston for the applicant and Mr C Hallam for the Council, were both of the opinion that the impact of the development on the existing roads are reasonable and well below the environmental goals for local roads. Nothing has changed between the hearing of the previous appeal and the hearing of the present appeal in that respect. The only traffic engineering evidence tendered in this case is by Mr Colston, whose opinion is that the external implications of the present proposal will be virtually identical to those of the original proposal. In the absence of any expert evidence to the contrary, I have no reason not to accept Mr Colston's opinion.

The use of part of Grimes Lane by traffic was also proposed in the previous appeal. In that case Mr Hallam (with whose views Mr Colston concurred) stated: Apart from the need to prevent direct access to Marsden Road, I see no reason why the five dwellings should not have rear access to this lane.

I saw no reason to reject the opinions of both Mr Hallam and Mr Colston. In the present case there is no expert evidence to contradict the opinions which I accepted in the previous appeal. Some of the residents, however, objected to the use of Grimes Lane by traffic. The lane has been used mainly by pedestrians, apart from the occasional use by vehicles employed in maintaining the line of electricity poles and electricity lines within it. All of the residents would have known or ought to have known that the lane was a public road. The Council must have thought so, especially when it erected a street sign designating the lane as " Grimes Lane ". Parts of the lane are already used by traffic; for example, the turning circle at the end of Mulyan Avenue and at the other locations which I have noted in paragraph 51 above. I am not persuaded to disregard the evidence of the traffic engineers on this issue. I see no reason why the applicant should not be allowed to make use of Grimes Lane for vehicular access. That is what it is there for.

It follows that there are no merit considerations which justify a refusal of the proposed development. The parties agreed that, in the event that the appeals are allowed, none of the proposed conditions of development consent as annexed to this judgment and marked "A", "B" and "C" are disputed.

For the abovementioned reasons I make the following orders.

I answer the questions of law raised in the applicant's Notice of Motion dated 6 September 1999 as follows: 1. Whether Grimes Lane between Marsden Road and Mulyan Avenue, Carlingford is a public road the fee simple of which is vested in Parramatta City Council or whether it is a residue parcel of land standing in the name of William Mobbs, his heirs, successors and assigns? Answer : Grimes Lane between Marsden Road and Mulyan Avenue, Carlingford is a public road the fee simple of which is vested in Parramatta City Council 2. Whether the Applicant is entitled to use Grimes Lane for access to proposed Lots 18 to 22 inclusive . Answer : yes

Development consent is granted for the development of 71 residential dwellings and associated civil and landscaping works and for community title subdivision of the land under the Community Land Development Act 1989 on lots 2 and 4 in Deposited Plan 739215 subject to the conditions attached to this judgment and marked "A".

Development consent is granted for the development of 24 residential dwellings and associated civil and landscaping works on lot 5 in Deposited Plan 739215 subject to the conditions attached to this judgment and marked "B".

Development consent is granted for the development of 34 residential dwellings and associated civil and landscaping works and for community title subdivision of the land on part of lot 1 in Deposited Plan 739215 subject to the conditions attached to this judgment and marked "C".

The exhibits, other than Exhibits "A1", "B1", "C1", "J" and "H" may be returned.

4 Mirvac Homes PL v Parramatta CC "A" Conditions of Consent Precinct 1

This consent relates to the following plans DA-1, DA1-01, DA1-02, DA1-03, DA1-04, DA1-05, DA1-06, DA1-07, DA1-08, DA1-09, DA1-10, DA1-11, DA1-12, DA1-13, DA1-14, DA1-15, DA1-16, DA1-17, revision B dated 30/4/99 and 23/6/99.

Prior to work commencing a Construction Certificate must be obtained. A separate application must be made for a Construction Certificate. Reason: To comply with legislative requirements.

Prior to the commencement of any works that involve the physical disturbance of the site, surface water and sediment control measures, including those shown in the approved plan(s), shall be implemented. The measures shall be utilised and maintained during the development at all times. Reason: To prevent erosion and control sediment.

Prior to the commencement of any works in the vicinity of trees or other existing site features that are to be retained (either on-site or on adjoining street reserve), physical protection measures including those shown in the approved plans shall be implemented and maintained at all times. Reason: To ensure protection measures are in place.

Building work may only be carried out six (6) days a week, Monday to Friday between the hours of 7.00 am to 8.00 pm and Saturday 8.00 am to 8.00 pm. No work is to permitted to be carried out on Sundays or public holidays. Reason: To protect the amenity of the area.

A house number is to be placed on the building in a readily visible location prior to occupation of the building. Reason: To ensure a visible house number is provided.

The following inspections shall be undertaken to ensure compliance with the Development Consent and/or Construction Certificate: (a) Pier holes prior to placing of concrete. (b) Steel reinforcement in position and prior to the pouring of concrete for all footing, columns, slabs, walls, piers and stairs. (c) Stormwater drainage lines, disposal trenches and on-site detention systems prior to covering. (d) Timber and metal framework complete prior to covering. (e) Wet area flashings and waterproofing. (f) All work completed in accordance with the Development Consent. Reason: To ensure compliance with the Development Approval.

The Applicant shall construct a vehicular crossing in accordance with Council's requirements and shall provide an Engineer's Certificate that such construction has been carried out in accordance with such requirements. Reason: To provide vehicular access.

Works as executed plans certified by a suitably qualified person are to be submitted to the Principal Certifying Authority prior to occupation of the premises certifying that the stormwater drainage system has been constructed in accordance with the approved plans. A copy of the works as executed plans is to be submitted to Council's Development Unit to update the on-site detention database for the Upper Parramatta River Catchment Trust. Reason: To ensure works comply with approved plans and for data for the Upper Parramatta River Catchment Trust.

The proposed on-site detention system shall be consistent with the stormwater concept plan approved with the Development Consent and be designed in accordance with the Upper Parramatta River Catchment Trust On-Site Detention Handbook and Council's Drainage Code. The design shall achieve a Site Storage Requirement of 250m3/ha and a Permissible Site Discharge of 210 1/s/ha. Reason: To provide on-site detention.

A Positive Covenant and a Restriction is to be created on the property title (under the provisions of the Conveyancing Act) to ensure that the required on-site detention system will be adequately maintained. A copy of the typical covenant may be obtained from the Council's Development Unit. Proof of registration shall be submitted to the Principal Certifying Authority prior to occupation or use of the premises. Reason: To ensure maintenance of on-site detention facilities.

The landscaping shall be completed in accordance with the consent and approved plans, prior to occupation or use of the premises and shall be maintained at all times. Reason: To ensure landscaping is completed in accordance with the approved plans and maintained.

A Compliance Certificate under Section 73 of the Water Board (Corporation) Act 1994 is to be submitted prior to issue of the Linen Plan or Construction Certificate (whichever is applicable). Reason: To ensure the requirements of Sydney Water have been complied with.

The payment of a monetary contribution in accordance with Council's Section 94 Contributions Plan No. 1 for Parramatta - Open Space and Recreation and Community Facilities. The contribution is levied for the provision of public open space, child care centres, public libraries, community and youth centres and administration. The contribution rate is $5,834 per separate dwelling and $4,210 per semi-detached, row or terrace dwelling. This results in a total contribution of $366,818, to be paid to Council prior to the issue of the Construction/Subdivision Certificate. The Section 94 Contributions Plan may be inspected at the first floor of the Council's Development Unit, 30 Darcy Street, Parramatta during normal business hours. Reason: To enable Council to levy developer contributions for open space, recreation and community facilities which have been or will be provided by Council to meet the increased demand for public services and amenities arising from new development.

A Certificate from a qualified Geotechnical Engineer showing that the existing soil is suitable for intended development of the site shall be submitted to the Certifying Authority in conjunction with the Construction Certificate application. Reason: To ensure the site is suitable for development.

The road shoulder across the frontage of the site to Mulyan Avenue shall be reconstructed. This work is to include saw-cutting and necessary adjustments to the existing road pavement. This work is to comply with Council's infrastructure standards and specifications. Reason: To maintain Council's assets and to improve access to the property.

In each case, where one dwelling house in the development abuts another dwelling house, the houses shall be constructed in the manner described in paragraph 19 of the annexure to the judgment of Bignold J dated 29th October 1998 in proceedings Nos 10512, 10513 and 10514 of 1998 (Mirvac Homes (NSW) Pty Ltd v Parramatta City Council).

This consent relates to the following plans DA-3-B, DA3-01-B, DA3-02-B, DA3-03-B, DA3-04-B, DA3-05-B, DA3-06-B, DA3-07-B, dated 15/5/99 and 23/6/99.

Prior to work commencing a construction certificate must be obtained. A separate application must be made for a Construction Certificate. Reason: To comply with legislative requirements.

Prior to the commencement of any works that involve the physical disturbance of the site, surface water and sediment control measures, including those shown in the approved plans(s), shall be implemented. The measures shall be utilised and maintained during the development at all times. Reason: To prevent erosion and control sediment.

Prior to the commencement of any works in the vicinity of trees or other existing site features that are to be retained (either on-site or on adjoining street reserve), physical protection measures including those shown in the approved plans shall be implemented and maintained at all times. Reason: To ensure protection measures are in place.

Building work may only be carried out six (6) days a week, Monday to Friday between the hours of 7.00 am to 8.00 pm and Saturday 8.00 am to 8.00 pm. No work is to permitted to be carried out on Sundays or public holidays. Reason: To protect the amenity of the area.

A house number is to be placed on the building in a readily visible location prior to occupation of the building. Reason: To ensure a visible house number is provided.

The following inspections shall be undertaken to ensure compliance with the Development Consent and/or Construction Certificate: (a) Pier holes prior to placing of concrete. (b) Steel reinforcement in position and prior to the pouring of concrete for all footing, columns, slabs, walls, piers and stairs. (c) Stormwater drainage lines, disposal trenches and on-site detention systems prior to covering. (d) Timber and metal framework complete prior to covering. (e) Wet area flashings and waterproofing. (f) All work completed in accordance with the Development Consent. Reason: To ensure compliance with the Development Approval.

The Applicant shall construct a vehicular crossing in accordance with Council's requirements and shall provide an Engineer's Certificate that such construction has been carried out in accordance with such requirements. Reason: To provide vehicular access.

Works as executed plans certified by a suitably qualified person are to be submitted to the Principal Certifying Authority prior to occupation of the premises certifying that the stormwater drainage system has been constructed in accordance with the approved plans. A copy of the works as executed plans is to be submitted to Council's Development Unit to update the on-site detention database for the Upper Parramatta River Catchment Trust. Reason: To ensure works comply with approved plans and for data for the Upper Parramatta River Catchment Trust.

The proposed on-site detention system shall be consistent with the stormwater concept plan approved with the Development Consent and be designed in accordance with the Upper Parramatta River Catchment Trust On-Site Detention Handbook and Council's Drainage Code. The design shall achieve a Site Storage Requirement of 250m3/ha and a Permissible Site Discharge of 210 1/s/ha. Reason: To provide on-site detention.

A Positive Covenant and a Restriction is to be created on the property title (under the provisions of the Conveyancing Act) to ensure that the required on-site detention system will be adequately maintained. A copy of the typical covenant may be obtained from the Council's Development Unit. Proof of registration shall be submitted to the Principal Certifying Authority prior to occupation or use of the premises. Reason: To ensure maintenance of on-site detention facilities.

The landscaping shall be completed in accordance with the consent and approved plans, prior to occupation or use of the premises and shall be maintained at all times. Reason: To ensure landscaping is completed in accordance with the approved plans and maintained.

A Compliance Certificate under Section 73 of the Water Board (Corporation) Act 1994 is to be submitted prior to issue of the Linen Plan or Construction Certificate (whichever is applicable). Reason: To ensure the requirements of Sydney Water have been complied with.

The payment of a monetary contribution in accordance with Council's Section 94 Contributions Plan No. 1 for Parramatta - Open Space and Recreation and Community Facilities. The contribution is levied for the provision of public open space, child care centres, public libraries, community and youth centres and administration. The contribution rate is $5,834 per separate dwelling and $4,210 per semi-detached, row or terrace dwelling. This results in a total contribution of $114,994, to be paid to Council prior to the issue of the Construction/Subdivision Certificate. The Section 94 Contributions Plan may be inspected at the first floor of the Council's Development Unit, 30 Darcy Street, Parramatta during normal business hours. Reason: To enable Council to levy developer contributions for open space, recreation and community facilities which have been or will be provided by Council to meet the increased demand for public services and amenities arising from new development.

A Certificate from a qualified Geotechnical Engineer showing that the existing soil is suitable for intended development of the site shall be submitted to the Certifying Authority in conjunction with the Construction Certificate application. Reason: To ensure the site is suitable for development.

In each case, where one dwelling house in the development abuts another dwelling house, the houses shall be constructed in the manner described in paragraph 19 of the annexure to the judgment of Bignold J dated 29th October 1998 in proceedings Nos 10512, 10513 and 10514 of 1998 (Mirvac Homes (NSW) Pty Ltd v Parramatta City Council).

This consent relates to the following plans DA-2-B, DA2-01-B, DA2-02-B, DA2-03-B, DA2-04-B, DA2-05-B, DA2-06-B, DA2-07-B, DA2-08-B, DA2-09-B, DA2-10-B, DA2-11-B, DA2-12-B, DA2-13-B, DA2-14-B, dated 15/5/99 and 23/6/99.

Prior to work commencing a construction certificate must be obtained. A separate application must be made for a Construction Certificate. Reason: To comply with legislative requirements.

Prior to the commencement of any works that involve the physical disturbance of the site, surface water and sediment control measures, including those shown in the approved plans(s), shall be implemented. The measures shall be utilised and maintained during the development at all times. Reason: To prevent erosion and control sediment.

Prior to the commencement of any works in the vicinity of trees or other existing site features that are to be retained (either on-site or on adjoining street reserve), physical protection measures including those shown in the approved plans shall be implemented and maintained at all times. Reason: To ensure protection measures are in place.

All demolition work shall be carried out in accordance with AS2601-1991. Reason: To ensure appropriate demolition.

Building work may only be carried out six (6) days a week, Monday to Friday between the hours of 7.00 am to 8.00 pm and Saturday 8.00 am to 8.00 pm. No work is to permitted to be carried out on Sundays or public holidays. Reason: To protect the amenity of the area.

A house number is to be placed on the building in a readily visible location prior to occupation of the building. Reason: To ensure a visible house number is provided.

The following inspections shall be undertaken to ensure compliance with the Development Consent and/or Construction Certificate: (a) Pier holes prior to placing of concrete. (b) Steel reinforcement in position and prior to the pouring of concrete for all footing, columns, slabs, walls, piers and stairs. (c) Stormwater drainage lines, disposal trenches and on-site detention systems prior to covering. (d) Timber and metal framework complete prior to covering. (e) Wet area flashings and waterproofing. (f) All work completed in accordance with the Development Consent. Reason: To ensure compliance with the Development Approval.

The Applicant shall construct a vehicular crossing in accordance with Council's requirements and shall provide an Engineer's Certificate that such construction has been carried out in accordance with such requirements. Reason: To provide vehicular access.

Works as executed plans certified by a suitably qualified person are to be submitted to the Principal Certifying Authority prior to occupation of the premises certifying that the stormwater drainage s has been constructed in accordance with the approved plans. A copy of the works as executed plans is to be submitted to Council's Development Unit to update the on-site detention database for the Upper Parramatta River Catchment Trust. Reason: To ensure works comply with approved plans and for data for the Upper Parramatta River Catchment Trust.

The proposed on-site detention system shall be consistent with the stormwater concept plan approved with the Development Consent and be designed in accordance with the Upper Parramatta River Catchment Trust On-Site Detention Handbook and Council's Drainage Code. The design shall achieve a Site Storage Requirement of 250m3/ha and a Permissible Site Discharge of 210 1/s/ha. Reason: To provide on-site detention.

A Positive Covenant and a Restriction is to be created on the property title (under the provisions of the Conveyancing Act) to ensure that the required on-site detention system will be adequately maintained. A copy of the typical covenant may be obtained from the Council's Development Unit. Proof of registration shall be submitted to the Principal Certifying Authority prior to occupation or use of the premises. Reason: To ensure maintenance of on-site detention facilities.

The landscaping shall be completed in accordance with the consent and approved plans, prior to occupation or use of the premises and shall be maintained at all times. Reason: To ensure landscaping is completed in accordance with the approved plans and maintained.

A Compliance Certificate under Section 73 of the Water Board (Corporation) Act 1994 is to be submitted prior to issue of the Linen Plan or Construction Certificate (whichever is applicable). Reason: To ensure the requirements of Sydney Water have been complied with.

The payment of a monetary contribution in accordance with Council's Section 94 Contributions Plan No. 1 for Parramatta - Open Space and Recreation and Community Facilities. The contribution is levied for the provision of public open space, child care centres, public libraries, community and youth centres and administration. The contribution rate is $5,834 per separate dwelling and $4,210 per semi-detached, row or terrace dwelling. This results in a total contribution of $176,282, to be paid to Council prior to the issue of the Construction/Subdivision Certificate. The Section 94 Contributions Plan may be inspected at the first floor of the Council's Development Unit, 30 Darcy Street, Parramatta during normal business hours. Reason: To enable Council to levy developer contributions for open space, recreation and community facilities which have been or will be provided by Council to meet the increased demand for public services and amenities arising from new development.

A Certificate from a qualified Geotechnical Engineer showing that the existing soil is suitable for intended development of the site shall be submitted to the Certifying Authority in conjunction with the Construction Certificate application. Reason: To ensure the site is suitable for development.

In each case, where one dwelling house in the development abuts another dwelling house, the houses shall be constructed in the manner described in paragraph 19 of the annexure to the judgment of Bignold J dated 29th October 1998 in proceedings Nos 10512, 10513 and 10514 of 1998 (Mirvac Homes (NSW) Pty Ltd v Parramatta City Council).

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.

Land and Environment Court of New South Wales CITATION: Mirvac Homes Pty Ltd v Parramatta City Council [1999] NSWLEC 239

At a glance

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Judgment (143 paragraphs)

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Cases Cited (13)

Cited By (4)