Motbey v Hollis and Eurobodalla Shire Council

APPLICANT Mr D. Wilson (Barrister)

SOLICITORS Kearns & Garside

FIRST RESPONDENT Tim Robertson SC LEGAL REPRESENTATIVES: SOLICITORS Woolf Associates

SECOND RESPONDENT Mr A. Bradbury (Solicitor)

SOLICITORS Minter Ellison Lawyers

JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 10775 of 2002

28/02/2003 PETER JAMES MOTBEY Applicant v MAUREEN HOLLIS First Respondent EUROBODALLA SHIRE COUNCIL Second Respondent

Facts 1 By Application for Development ("the application") dated 2 April 2002 made to the second respondent ("the council") the first respondent applied for development consent ("the consent") in respect of land described in the application as being part of Elizabeth Farm being "Part Lots 31 DP854280 and Part Lots 106 and 107 DP752156" ("the subject land") located on Nerrigundah Mountain Road in the town of Bodalla and in the Parish of Nerrigundah.

2 Such application identified the proposed development as:- Proposed hard rock quarry on part of "Elizabeth Farm" property

The estimated cost of the proposed development was stated to be $10,000. The development of the land was more fully described in the Environmental Impact Statement ("EIS") which was attached to the application. 3 By letter dated the 23 September 2002 the council granted approval to the application, as follows:- Pursuant to Section 80(3) of the Environmental Planning and Assessment Act 1979, notice is hereby given of the determination of the consent authority of the designated and integrated development application number 848/02 dated 3 April 2002 relating to land described as Lot 31 DP854280 and Lots 106 and 107 DP752156 Nerrigundah Mountain Road Bodalla.

Date of determination: 17 September 2002 Consent to Lapse on: 24 September 2005

The development application has been determined by granting of a DEFERRED COMMENCEMENT consent subject to the following conditions:

Thereafter numerous conditions followed which required the undertaking of road works on Eurobodalla Road and Nerrigundah Mountain Road ("the haul roads"). Such works included the provision of suitable intersections, signage and other works to be carried out in consultation with the council as the appropriate roads authority pursuant to s 138 of the Roads Act 1993. Applicant's Submissions 4 The applicant challenges the validity of the consent and the following questions of law are raised for determination:- (a) Whether the development application relates only to the subject land being part lot 31 DP 854280 and part lots 106 and 107 DP 752156.

(b) If not, whether consent can be granted to the development application in the absence of the owner's consent by the Crown.

(c) Whether the development application is for integrated development because it required an approval under Part 3A of the Rivers and Foreshores Improvement Act, 1948, or section 200 [sic] of the Fisheries Management Act 1994.

Identification of Land 5 The applicant submits that the application and its accompanying EIS related not only to the land identified in the application but also to the haul roads. The applicant submits that the subject land could not be developed without the use of the haul roads and that the extensive conditions attached to the consent demonstrates that such roads, of necessity, formed part of the development application. The applicant claims that the haul roads referred to in the conditions of the consent are vested in the Crown and require approval from the Crown to carry out work thereon. 6 The applicant says that the application was one made for designated development as defined in s 4 of the Environmental Planning and Assessment Act 1979 ("the EP&A Act"). The applicant submits that the decisions of Lloyd J in Hillpalm Pty Ltd v Tweed Shire Council (2002) 119 LGERA 86 and of the New South Wales Court of Appeal in Hillpalm Pty Ltd v Tweed Shire Council [2002] NSWCA 332, which define the land to which a development application relates, are distinguishable on the ground that the application in those proceedings did not relate to designated development.

Respondents' Submissions 7 The respondent says that the application is confined solely to the subject land and that it does not extend to the haul roads. The respondents submit that the findings of Lloyd J and of the New South Wales Court of Appeal in Hillpalm answer the submission of the applicant concerning the identification of land. The respondents also rely upon the decision of the High Court of Australia in North Sydney Council v Ligon 302 Pty Limited (1996) 185 CLR 470 in which the High Court of Australia determined that a development application related to the land so identified in the development application and not to adjoining land. 8 The respondents acknowledge that development consent granted pursuant to the EP&A Act may require the grantee to obtain rights over land or to gain approvals or permits to fulfil conditions, as discussed by the New South Wales Court of Appeal in Winn v Director General of National Parks and Wildlife and Ors [2001] NSWCA 17. However the respondents submit that the fact that the consent of a third party may be required to fulfil a condition of the consent is irrelevant to the validity of the consent. 9 The respondents also submit that the making of a development application is a formal process. They refer to cl 50 of the Environmental Planning and Assessment Regulation 2000 ("Regulation 2000") which specifies the prescribed form required for the making of a development application. They also refer to the requirements of the EIS necessitated under s 78A(8)(a) of the EP&A Act which are set out in cl 71, 72 & 73 of Regulation 2000. The respondents submit that the application was correctly made in respect of the subject land, and that there is no requirement for the haul roads to be incorporated since the consent sought related solely to the subject land.

Findings 10 Clause 49(1) of Regulation 2000 provides that a development application may be made by:- 49(1) (a) by the owner of the land to which the development application relates, or (b) by any other person, with the consent in writing of the owner of that land. 11 In Ligon Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ determined that an application for a development consent made pursuant to the EP&A Act is restricted to the land the subject of the application. At p. 477 of the joint judgment their Honours stated:- Although related developments on adjoining parcels of land may each require consent before they are carried out, each development is on its own parcel of land and any necessary consent must be sought by a development application that relates to that parcel - not to the adjoining parcel.

12 In Hillpalm an application for development of land was made which was specifically identified in the development application. At first instance, Lloyd J referred to the fact that the statement of environmental effects accompanying the development application referred to an easement over an adjoining lot but no application was made to develop such easement. His Honour held that the reference to such works did not lead to the conclusion that the road comprised part of the land to be developed. Rather, such works could properly be made the subject of conditions of consent. Lloyd J at p. 103 said:- The application, very properly, considered the possible impacts on Hillpalm's land by virtue of the possible construction of the access road to the subdivision, but this did not convert it into an application relating to Hillpalm's land. 13 On appeal Meagher JA said at par 12:- What land an application "relates to" must primarily, if not exclusively, be determined by an examination of the terms of the application itself, which, of course, is a written document.

Hodgson JA, in agreeing with Meagher JA, said at par 216:- There was nothing in the application or accompanying documents inconsistent with this identification; and in those circumstances it could not possibly have been contended by the respondent that consent to that application amounted to consent to carry out any work on Lot 2.

14 This Court respectfully adopts the reasoning of the Court of Appeal and of Lloyd J in Hillpalm, and finds that it applies to applications for development generally, including applications for designated or integrated development. It is irrelevant that the consent requires something to be done by the grantee on the haul roads before the consent can be acted upon. Further it does not matter that the haul roads are vested in the Crown and that permission from the Crown to undertake work thereon has not yet been obtained. It is also irrelevant that the EIS which accompanied the development application referred to work which might be required on such roads. 15 The decisions in Ligon and Hillpalm establish that if a condition of consent requires some act or permission which affects land other than that referred to in the development application, it does not affect the validity of the consent. It merely has the consequence that the consent cannot be acted upon until such condition is fulfilled. 16 The application made reference to the EIS. The EIS, after referring to the land by the lot description stated:- Includes right of carriageway and public road to south

Clause 1(c) of Pt 1 of Sch 1 to Regulation 2000 specifies that particulars of the land must be included in an application made under s 78A of the EP&A Act. No such requirement exists for an environmental impact statement. Whilst the EIS refers to a need to improve and construct haul roads from the proposed quarry, such statements do not render the haul roads part of the development application. The " Site Description " contained in the EIS identifies the land the subject of the application as part of Elizabeth Farm, and does not include the haul roads. Accordingly, the application made to the council is to be construed as being confined to the subject land.

Whether the development application is for integrated development. 17 The applicant contends the haul roads cross or are situated within forty metres of tributaries of the Tuross River. The applicant claims that an approval was therefore required pursuant to Part 3A of the Rivers and Foreshores Improvement Act 1948 or s 200 of the Fisheries Management Act 1994 ("the Fisheries Act"). Accordingly it is submitted that the application is one for integrated development and consent has not yet been obtained as required by such Acts. 18 The Court observes that s 200 of the Fisheries Act is not referred to in s 91 of the EP&A Act which defines integrated development. Section 201 of the Fisheries Act is included in such Act. Such discrepancy was corrected by the applicant after the hearing by the filing of its statement of issues on 14 February 2003 which refers to s 201. In view of the Court's finding that the application does not include the haul roads it is unnecessary to consider this issue further. The Court observes that even if such consents were necessary, it was not essential for the first respondent to have obtained such consent prior to lodging the application for development. Such consent could have been obtained at a subsequent date. In Maule v Liporoni and Another (2002) 122 LGERA 140, Lloyd J held (at p. 172):- In making the development application Mr Liporoni did not tick the box in the application form to indicate that consent was being sought for an integrated development approval. In so doing he elected to have his development application processed as if it were not an application for integrated development. That was his choice. There was and is no compulsion on an applicant to make an application for an integrated development approval, if he or she choses not to do so.

The Court respectfully adopts the observations of Lloyd J as a correct statement of the law. If consents under the above statutes were required, the principle in Maule would apply. Answers to Questions of Law 19 The Court answers the questions of law asked of it as follows:-

(c) There is no evidence before the Court that approval under Part 3A of the Rivers and Foreshores Improvement Act 1948 or the Fisheries Management Act 1994 was required. Even if such approvals were required there is no obligation on the first respondent to integrate such approvals in the application for development.

20 The Court orders that:-

1. These proceedings be referred to the Registrar's list on 5 March 2003 for further directions.
2. The exhibits be returned. 3. Costs be reserved. 4. Remaining notice of motion in these proceedings is stood over to first day of hearing.

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