Moss v Kiama Municipal Council

In advancing these submissions, the Applicant adopts the following approaches to this Court's decisions in Rutland and in Mason Architects.

The Applicant's principal submission is that both decisions are distinguishable on their facts. In particular, the decision in Rutland that the condition of the development consent requiring the creation of a s 88B Restriction on User absolutely forbidding "any further subdivision" of a specified lot in the approved subdivision operated (despite the existence of the s 88B Restriction on User) as a condition of development consent absolutely forbidding the further subdivision of one of the lots created by the development consent, is distinguishable on the facts of the present case.

The Applicant's alternative submission is that the decision in Rutland does not stand in the way of the acceptance of the following general proposition that had been formulated by Talbot J in Silverwater Estate Pty Ltd v Auburn Council (2001) NSWLEC 60: The contradiction of a condition in an earlier consent by the granting of a further development consent does not, of itself, result in a contravention of the Act, an environmental planning instrument or the regulations "

The ultimate submission made by the Applicant in relation to the Court's decisions in Rutland and Mason Architects is that part of the reasoning adopted in those decisions that was unrelated to the EP&A Act, s 91(2) (now s 80(2)) has been doubted and not followed by the more recent decision of the Court of Appeal in Wingecarribee Shire Council v Pancho Properties Pty Ltd (2001) 117 LGERA 104.

In that case, the preliminary question of law raised in three related pending development appeals was whether the development application to use an existing dwelling for a manager's residence was "competent" in view of the fact that there was a condition of an existing development consent for the erection of a new dwelling-house on the same land requiring upon completion of the replacement dwelling that the original dwelling be removed from the site (see at 107). In challenging Talbot J's decision in this Court that the development application was competent, the appellant argued that since the use of the existing dwelling would involve a contravention of the condition of the existing development consent requiring its removal upon the completion of the new dwelling approved by that consent, the developer in pursuing the appeal was seeking the Court's approval to the developer's illegal conduct which was contrary to the established principle that the law will not allow a person to take advantage of his criminality.

At 112, Giles JA (with whose judgment the other members of the Court agreed), rejected the argument holding that the facts of the case did not attract the relevant principle that the law would not allow a person to take advantage of his own criminality.

In so concluding, his Honour was prepared to assume the existence of a relevant breach of the EP&A Act by virtue of the developer's failure to comply with the condition of the development consent requiring the removal of the existing dwelling. However, his Honour held that this assumed breach of the Act was "subject to a successful appeal in relation to the relevant condition". (This was a reference to the fact that one of the three related proceedings considered in the case was an appeal against the imposition on the existing development consent of the condition requiring the removal of the existing dwelling-house.)

Giles JA concluded his discussion of the Appellant's argument in the following passage at 112: The law recognises that failure to comply with the condition does not inevitably mean that one or other of the existing dwelling and the new dwelling must be removed. Moreover, to ascribe to the applicant's breach such criminality as to preclude it from appealing in order to get itself out of a position of breach would be a distortion of the principle.

Immediately thereafter Giles JA discusses what he thought was the appellant's "separate argument" based upon Rutland and Mason Architects that the application to use the existing dwelling could not be approved because approval "would conflict with the condition of the earlier consent" requiring the removal from the site of the existing dwelling upon completion of the approved new dwelling.

Giles JA rejected this argument by holding that the relevant condition "does not preclude consent to a use of the existing dwelling whereby it does not have to be removed from the land" but immediately noted that the existence of the relevant condition was "a very relevant matter in considering whether or not one or other of the applications should be granted" (see at 113).

In the course of his reasoning to this conclusion, Giles JA made the following observations on the decisions in Rutland and Mason Architects: Section 91(2) of the Act is concerned with subdivision and is not presently relevant. What appear to be the relevant passages in Laidlaw Pty Ltd v Cleverley and Woollahra Municipal Council v Banool Developments Pty Ltd are to the effect that consent can not be given to a development which would be contrary to an environmental planning instrument. With respect, there is not a necessary transmission to conflict with a condition of an earlier development consent, and I do not think these cases provided a sound basis for the decision in Rutland v Shoalhaven City Council . In Mason Architects v North Sydney Council development consent had been granted on conditions which included that a restriction as to user be created limiting dwelling size on some of the lots to be developed. Application was then made for consent to development whereby the dwelling size would be greater than earlier stated. It was held that the judgment in Rutland v Shoalhaven city Council was determinative and that the application could not be approved. D. DETERMINATION OF THE QUESTIONS OF LAW

As already noted, the parties agree that questions 1 and 2 are to be answered in the affirmative to the intent I have earlier identified.

The disputed question 3 is to be resolved with the benefit of the competing arguments that have advanced by the parties, which I have summarised above.

In answering this question, it is the first imperative task to properly construe condition 18 of the 1999 development consent. In particular, is it to be construed in the manner that a similar condition of development consent was construed in Rutland? On this fundamental question the parties are at issue.

The Applicant's argument that Condition 18 properly construed, only required the creation of the relevant Restriction on User pursuant to s 88B of the Conveyancing Act 1919 has the support of the plain language of the condition. Additionally, the Applicant has pointed to the background facts in Rutland which supported the construction adopted in that case of the relevant development consent and the relevant condition, which facts are absent from the present case.

In Rutland, the relevant condition was formulated in similar terms to Condition 18 in the present case. On its face, the condition in Rutland required no more than the creation of the required Restriction on User. However, based upon the facts of that case (which included the crucial fact that the decisions of the consent authority and the concurrence authority were to conditionally uphold an objection made pursuant to State Environmental Planning Policy No 1 - Development Standards) I concluded that properly construed, the relevant development consent "imposed as a condition of that consent the absolute prohibition of any further subdivision of the subject land" (at 375).

My reasons for so concluding are expressed in the following passages at 374: Condition 4 of the development consent is an obvious attempt to implement the decisions of the Council and of the Director of the Department of Planning to uphold the objection pursuant to the State Policy by granting consent to the two lot subdivision subject to the condition or stipulation that the larger lot (comprising the subject land) be not further subdivided. It is obvious that that stipulation was intended to operate as a condition of development consent within the meaning of s.91(1)(a) and (3) and s.79(1)(a) of the EP&A Act. It is equally clear that the object and content of the condition was to forbid any further subdivision of the subject land. The condition also prescribed the means of achieving that object, namely by way of a restriction on user created by Instrument registered pursuant to s.88B of the Conveyancing Act 1919. However, it is a matter of vital legal significance that the stipulation emanates from the exercise of statutory power conferred by the EP&A Act (in the present case the relevant powers are those conferred by s.79(1)(a) and s.91(1)(a)) and not for example, as may have been the case, the statutory power conferred upon the Council by s.88E of the Conveyancing Act 1919. Although it is also apparent that the registered s.88B Instrument in the present case purports to implement this condition, it is doubtful whether it implements it fully or satisfactorily. Certainly the content of the restriction on user does not fulfil the terms of the condition because instead of proscribing further subdivision absolutely, it proscribes it conditionally or provisionally by stipulating that "there shall be no subdivision without the consent of the Shoalhaven City Council". Moreover, the efficacy of the restriction on user must be doubtful in the present case because it purports to create a restriction in gross (i.e. without benefiting any land) without purporting to be created pursuant to s.88E of the Conveyancing Act which authorises, inter, the creation of restrictions on user in gross. However that may be, it is in my judgment, perfectly clear that condition 4 was deliberately imposed to forbid the further subdivision of the subject land which would otherwise be a permissible development conformably to the provisions of cl.11 of the LEP which do not restrict the number of lots that may be created by the subdivision of land within zone No.1(a) where those lots have an area of not less than the 40ha minimum prescribed by cl.11(3) of the LEP. That, in my view, is the substantive effect of the condition and the operation and effect of that condition do not merge in the s.88B Instrument creating the restriction on the user (which though, the prescribed means of implementing the condition does not supplant or negate the effectiveness of the condition operating as a condition of development consent under the EP&A Act).

(The references to s 91(1)(a) and (3) and s 79(1)(a) are references to relevant provisions of the EP&A Act as in force when the relevant development consent was granted in Rutland. Those sections have since been repealed and re-enacted as ss 80(1)(a), 80A(1) and 79B(8) respectively of the EP&A Act as currently in force.)

In my judgment, the construction of the relevant development consent in the present case and of Condition 18 in particular, does not yield the same result as was reached in Rutland, in the process of construction aided by the background facts concerning the grant of the development consent. In the present case, there are no counterpart background facts that assist in the process of construing the 1999 development consent and Condition 18 thereof.

Once it is concluded, as I have concluded that Condition 18 of the 1999 development consent does not have an operation independent of the existence of the s 88B Restriction on User, the Council's argument that the proposed development will, if carried out, involve or result in a contravention of Condition 18 is simply not available.

In this respect, it is to be noted that the Council does not argue that the proposed development will involve a contravention of the s 88B Restriction on User. This is because the Council accepts that (i) that Restriction on User is not absolute in its prohibitions inasmuch as the Council is given the express power "to release, vary or modify" the relevant restrictions and (ii) that express power to release, vary or modify the relevant restrictions is available to this Court, on the hearing of the development appeal, by virtue of the operation of s 39(2) of the Land and Environment Court Act 1979 - see Rutland at 378.

In the absence of Condition 18 operating independently of its requirement for the creation of the s 88B Restriction on User (which occurred upon the registration of the Deposited Plan) the carrying out of the proposed development (if development consent is granted) would not involve, or result in, any contravention of the 1999 development consent or of Condition 18 in particular.

For the foregoing reasons, I determine question 3 in the affirmative.

For completeness, I should deal with the competing submissions upon the assumption (contrary to the construction I have adopted of the 1999 development consent and of Condition 18 thereof) that Condition 18 operates, independently of the s 88B Restriction on User, to impose as a condition of the 1999 development consent absolute prohibitions on the colour and height of "any future dwelling" to be erected on the lots created in the approved subdivision.

On that assumption, I am of the opinion that Condition 18 would have a continuing meaning and effect, according to its plain terms in the sense explained in Rutland at 376/377 and that the Applicant's development application, the subject of the pending development appeal, would, although being a "competent" application in the sense held and explained in Pancho Properties, nonetheless not be legally capable of being carried out (if approved) without involving a direct contravention of that Condition, which contravention would relevantly constitute a breach of the EP&A Act by virtue of ss 122, 123, 124 and 125.

Whereas in Pancho Properties, Giles JA was prepared to assume that the non-compliance with the relevant condition requiring the removal from the site of the existing dwelling-house would constitute a "breach of the Act", the later decision of the Court of Appeal in Hillpalm v Heaven's Door (2002) NSWCA 301 is emphatic authority for holding that such non-compliance constitutes a contravention of the condition and hence, a breach of the EP&A Act.

This analysis is made very clear in the following passage at par 19 from the judgment of Hodgson JA which emphasises (i) the continuing effect of the condition imposed by a prior development consent - and (ii) the effective enforceability of that condition - If the development in question is a use of land, then any person who makes that use of the land pursuant to the consent without complying with the condition will be in breach of the Act and can plainly be ordered to rectify that breach, irrespective of what appears on the title to the land. If the development in question is a subdivision, then a later owner of the subdivided land or of a subdivided part of it may not be guilty of any breach of the Act, but nevertheless, so long as the land remains subdivided in accordance with a development consent without a condition of that consent being fulfilled, there is objectively speaking a continuing contravention of the condition; and s.123 of the Act then gives power to the Land & Environment Court to order the rectification of that contravention by such person as is able to do so, again irrespective of what appears on the title of the land.

Moreover, such non-compliance with the Condition of the development consent clearly would also constitute an offence against s 125 of the EP&A Act - see Rao v Canterbury City Council (2000) 112 LGERA 360.

Moreover, the decisions in Hillpalm and Rao mean that such non-compliance with the condition of the development consent has far wider implications in terms of the EP&A Act, than the mere "conflict with the condition of the earlier development consent" as referred to in Pancho Properties. These implications clearly include the inevitable conclusion that the non-compliance with a condition of an earlier development consent, where that condition has an ongoing effect (ie including beyond the life of the existing development consent) constitutes a breach of the EP&A Act - both civil and criminal and is enforceable as such.

That consequence would bring the present case within the scope of the established authority in this Court that development consent should not, or cannot, be granted to sanction an unlawful or criminal activity: see Lee v Sydney City Council (1983) 50LGRA 382; Gray v Fairfield City Council (unreported 27 November 1987); Parramatta City Council v Locker (1989) 68 LGRA 334.

In so concluding, there is no doubt that the Applicant's development application, the subject of the pending appeal, is a competent application, but in my judgment, there is equally no doubt that the appeal in respect of that application is bound to fail, because it is inconceivable that the Legislature would have intended that the discretionary power vested in a consent authority pursuant s 80(1) of the EP&A Act to determine a development application could be exercised so as to create or result in a direct and deliberate contravention of the EP&A Act. In so concluding, I do not think the fact that that the Legislature has expressly provided in s 80(2) for the mandatory refusal of a development application, being for the subdivision of land, which if carried out would result in a contravention of the Act, indicates a legislative intention to confer a discretion upon the consent authority to approve of other forms of development (ie not involving the subdivision of land) which would result in a direct contravention of the EP&A Act. In other words, I do not think the maxim expressio unius est exclusio alterius should be applied to the interpretation of the EP&A Act, s 80(1) and (2) because it would create a repugnancy to the overall harmony in the operation of the Act as it comprehensively regulates the carrying out of development, in which regime the grant of development consent is of pivotal and prime significance.

Accordingly, if contrary to the construction of Condition 18 of the 1999 development consent that I have adopted, Condition 18 had its own independent and continuing operation to absolutely prohibit certain types of dwelling-house development from being carried out on the two lots created by the 1999 development consent for the subdivision of the land, then I would have concluded that development consent to the Applicant's development application must have been refused in the absence of the statutory modification of the condition which would be achievable pursuant to the EP&A Act, s 96.

In so concluding, I would emphatically reject the Applicant's alternative argument that I have summarised in par 16 (the fourth point) since all of the relevant cases I have cited recognise the capacity of a condition of an existing development consent to have a continuing operation beyond the life of the approved development in a manner that necessarily affects future development possibilities.

The general proposition cited from the judgment in Silverwater Estate does not support the Applicant's argument. In any event, it is to be understood in context, and most importantly in the light of Talbot J's finding that no relevant contravention of the condition of the earlier development consent had been demonstrated; see at pars 97 and 98.

Pancho Properties is clearly distinguishable on its facts because in that case there were two related pending development appeals (in addition to the appeal concerning the use of the existing dwelling-house) the grant of either of which would have entirely overcome the possibility of there being any contravention of the condition of the existing development consent. As Giles JA noted at 112, these separate development appeals provided the means for the appellant "to get itself out of a position of breach".

Finally, I would reject the Applicant's argument that the pending development application and the grant of development consent to it, would constitute a "fresh chapter" in the planning history of the subject land. More often than not the grant of development consent for the carrying out of development will operate as a new chapter in the planning history of a development site. But this will demonstrably not be the case where a condition of an existing development has continuing effect and the proposed development if carried out would involve, or result in, a contravention of that condition.

This does not mean that there can be no new chapter in the planning history where the proposed development would involve, or result in, a contravention of a condition of an existing development consent where that condition has continuing effect. Nor does it mean that the past absolutely fetters present and future opportunities to obtain development consent for new development. This is because of the faculty provided by s 96 of the EP&A Act to obtain the modification of an existing development consent and thereby to eliminate the prior condition that creates the legal impasse.

Notwithstanding my construction of Condition 18 which accepts the correctness of the Applicant's primary case, I have dealt at some length with the Applicant's alternative argument for two reasons - (i) lest I be wrong in point of construction of Condition 18 of the 1999 development consent; and (ii) because of the importance as a matter of planning principle of the issue raised by the argument. E. CONCLUSIONS AND ORDERS

For all of the foregoing reasons, I make the following orders:-

1. The questions of law be determined as follows - Question 1 - Does condition 18 of development consent DA 112/97 granted on 18 March 1999 apply to Lot 103 DP1035721 which is the property the subject of the appeal (the property)? Answer: Yes. Question 2 - Would the erection of a dwelling house on the property in the manner proposed by the applicant's development application D247/02 involve a contravention of condition 18 of the development consent DA112/97? Answer: Yes. Question 3 - If the answer to (2) is yes, is development application D247/02 capable of approval without prior modification of the development consent DA112/97? Answer: Yes.
2. The matter be listed for the Registrar's callover on 21 July 2003.

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