Mulyan Pty Ltd v Cowra Shire Council & Anor

KEY ISSUES: Development :- Development application - owner's consent - purpose and form of

Environmental Planning & Assessment Act, s 77(1); s 4(9) LEGISLATION CITED: (See now cl 46(1)(b) Environmental Planning & Assessment Regulation 1994) Interpretation Act 1987, s 80

DATE OF JUDGMENT DELIVERY: 09/14/1999

APPLICANT: D E Ryan (Barrister) AND P D A Mallon (Barrister) SOLICITOR: R Forsyth

FIRST RESPONDENT: LEGAL REPRESENTATIVES: G A Green (Solicitor) SOLICITORS: Pike Pike & Fenwick SECOND RESPONDENT: W R Davison SC AND D T Miller (Barrister) SOLICITORS: Clarkes Commercial Lawyers

Conclusions 16 _______________IN THE LAND AND Matter Nos:98/40178; 98/10613; 98/10876 ENVIRONMENT COURT Coram: Lloyd J OF NEW SOUTH WALES Decision date: 14/09/99

This is the separate determination of preliminary questions which are common to the three proceedings before the Court, pursuant to an order made under Pt 31 r 2 of the Supreme Court Rules , which applies to this Court. The preliminary questions identified by the parties are as follows: 1. Did Mulyan Pty Ltd consent to T J Bryant Pty Ltd making development application 125/98 to Cowra Council?

If yes to 1, is the development application of T J Bryant Pty Ltd that is before the Court so different to that which was made to the Cowra Council as to constitute a new development application?

If so, is the consent of Mulyan Pty Ltd necessary for the development application of T J Bryant Pty Ltd which is before the Court? 2. The applicant, Mulyan Pty Ltd ("Mulyan") is the owner of land being lot 51 in deposited plan 606136, Glen Logan Road, Cowra ("the property"). By an agreement dated 13 August 1992 Mulyan granted to the second respondent, T J Bryant Pty Ltd ("Bryant") a licence to win quartzite pebble and sand from the property on terms and conditions. A dispute has arisen between the parties to that agreement, including a purported termination of the agreement by Mulyan because of alleged breaches thereof by Bryant, which is currently the subject of proceedings in the Equity Division of the Supreme Court.

3. On 14 April 1998 Bryant lodged a development application with the first respondent, Cowra Shire Council ("the Council") for an extractive industry on the property. On 18 August 1998 the Council granted consent to the development application subject to conditions. Mulyan contends in these proceedings that the development application is invalid because it was made without the consent in writing of the owner of the land to which the development application relates, in breach of s 77(1)(b) of the Environmental Planning & Assessment Act 1979 (see now clause 46(1)(b), Environmental Planning & Assessment Regulation 1994). Mulyan further alleges that the environmental impact statement which accompanied the development application is invalid and that the development consent which was granted by the Council is invalid for various reasons. It is only the allegation of the absence of the written consent of the owner to the making of the development application which is raised by the preliminary questions.

The preliminary questions turn upon a letter dated 1 April 1998 from Mulyan to Bryant which was attached or annexed to the development application. The respondents contend that this letter is a consent to the making of the development application, whilst Mulyan contends to the contrary. There is no signature on the development application form itself signifying the consent of the owner.

Section 77 of the Environmental Planning & Assessment Act ("the EP&A Act"), as in force at the relevant time, provided as follows: (1) A development application may be made only by: (a) the owner of the land to which that development application relates, or

(b) any person, with the consent in writing of the owner of the land to which that development application relates.

Section 77(3)(b) provided that a development application shall be made in the prescribed form and manner. Clause 45(1) of the Environmental Planning & Assessment Regulation 1994 ("the Regulation") provided as follows: (1) For the purposes of section 77 of the Act, the prescribed form for a development application is Form 1.

Form 1 is set out in Schedule 5 to the Regulation. The form makes provision for the signature of the owner of the property to indicate the owner's consent to the development application.

Section 4(9) of the Act provides: A reference in this Act to a prescribed form includes a reference to a form that is to the effect of that prescribed form.

Section 80 of the Interpretation Act 1987 provides: (1) If an Act or statutory rule prescribes a form, strict compliance with the form is not necessary but substantial compliance is sufficient.

(2) If a form prescribed by the Act or instrument requires the form to be completed in a specified manner, or requires specified information to be included in, attached to or furnished with the form, the form is not duly completed unless it is completed in that manner and unless it includes, or has attached to or furnished with it, that information.

Mr D E J Ryan, who (with Mr T D A Mallon) appears for Mulyan submits that s 77 of the EP&A Act is a mandatory provision ( Jeblon Pty Ltd v North Sydney Municipal Council (1982) 48 LGRA 113 at 120). According to the submission, the development application had to be completed in the prescribed form and manner: that is to say, with the consent of the owner endorsed upon the form. In the present case the development application had been submitted to the Council with the words " see attached letter " in place of the signature of the owner of the property. The letter of 1 April 1998 sent by Mulyan to Bryant was attached or annexed to the development application. Mr Ryan relies upon s 80(2) of the Interpretation Act for a submission that the making of the development application in that form cannot be a valid development application. In the present case, he submits, the development application satisfied neither strict compliance nor substantial compliance with the prescribed form.

Mr Ryan's principal submission is that Mulyan's letter of 1 April 1998 is not in terms a consent. Alternatively, if the letter can be construed as the giving of the owner's consent, it was a conditional consent which is not yet operative and which cannot amount to a consent for the purpose of s77(1)(b) of the EP&A Act: none of the conditions referred to in the letter have been fulfilled. In particular, Mr Ryan submits that Mulyan's letter does not constitute a consent for the following principal reasons: (a) in returning the development application form to Bryant, Mulyan did not sign it or execute it under seal as requested by Bryant, but instead sent the letter of 1 April 1998;

(b) the " consent " was conditional upon Bryant being successful in the proceedings in the Equity Division. The letter states: In the event that the Equity Court finds in favour of Bryant (which on its legal advice, Mulyan does not expect) Mulyan as owner hereby gives its consent to this DA only on the basis set out in this letter.

(c) under the heading " Conditions Imposed on Its Consent to this DA by Mulyan " the letter states: Mulyan hereby consents to the DA only on the basis set out in this letter.

(d) The letter raises three further conditions of consent, namely the non-disturbance of a natural water course, the provision of new water supply to two paddocks; and the construction of certain gates and a roadway, all being conditions precedent to the making of the development application;

(e) the letter is conditional upon Bryant obtaining attachments specified therein before making the development application. Under the heading " Attachments Omitted from the DA " the letter states: In order for the DA to be complete it appears that the following (none of which are presently attached to the DA) should be attached to the DA before it is submitted to Mulyan Pty Ltd (as owner) for consent, and, if that consent is granted, its subsequent submission to the Cowra Shire Council for its consent; ...

None of the attachments specified in the letter were attached to the development application and submitted to Mulyan for the owner's consent before the submission of the development application to the Council;

(f) the letter sets out a number of suggested corrections to the development application and the environmental impact statement ("the EIS"). For example, the letter refers ( inter alia ) to the need for " a comprehensive rehabilitation plan (to be formulated in consultation with Mulyan) to be annexed to the EIS " and states that the " plan should be attached to the EIS before it is submitted ". Neither this nor have a large number of other requirements specified by Mulyan in the letter been done. The Council's submissions

Mr G A Green, who appears for the Council, submits that where, as in this case, the letter evidencing an owner's consent cannot fit on the prescribed form of development application then the annexing of such consent to the form is allowed by s 4(9) of the EP&A Act.

Mr Green relies further upon Crowley v Hastings Municipal Council (1982) 4 APA for a submission that s 77(1) of the EP&A Act does not contemplate a qualified consent and that concepts and notions from the law of contract have no place in the administrative process of making and determining development applications.

Mr Green further submits that the letter of 1 April 1998 on its face is a consent and the Council viewed it as a consent. The Council was unaware of some matters referred to in the letter, such as the litigation in the Equity Division. The Council's acceptance of the letter as a consent was a decision which was reasonably open to it and which cannot be disturbed.

Mr W R Davison SC, who (with Mr D T Miller) appears for Bryant made the following submissions: (a) Section 77 of the EP&A Act requires no more than that the owner of the land provide consent in writing. Mr Davison submits that nowhere are any words found in s 77, or on the face of the prescribed form, which suggests that an owner's consent in writing cannot be proffered in the form of a letter accompanying the form. Mr Davison also relies upon s 80 of the Interpretation Act in support of this submission.

(b) As a matter of construction Mulyan's letter of 1 April 1998, when considered in the context of s 77 of the Act, was a consent in writing to the making of the development application.

(c) Section 77 of the Act is not intended to afford a veto to the owner of land to which a development application relates. It is a provision designed to ensure that owners are on notice of such development applications. He referred to Crowley v Hastings Municipal Council , North Sydney Municipal Council v Ligon 302 Pty Ltd (1995) 87 LGERA 435 and 117 York Street Pty Ltd v Proprietors of Strata Plan No 16123 (Hodgson CJ in Eq, 9 April 1998, unreported).

(d) If the purpose of s 77 was, contrary to his submission, to permit owners of land to veto development applications relating thereto, such owners would be able to later withdraw their consents, a concept long ago rejected by the Court. He referred to Stafford Quarries Pty Ltd v Kempsey Shire Council (1992) 76 LGRA 52 and Donald Crone & Associates v Bathurst City Council (Cripps J, October 1988, unreported).

The consent in writing of the owner of the land to which the development application relates need not be executed upon the prescribed form. Section 77(1) of the EP&A Act relevantly requires that a development application be made with the consent in writing of the owner. The requirement in subsection (3) that a development application be made in the prescribed form and manner is governed by the terms of s 4(9): " A reference in this Act to a prescribed form includes a reference to a form that is to the effect of that prescribed form ". This latter provision is reinforced by s 80 of the Interpretation Act , subsection (1) of which provides: If any Act or statutory rules prescribes a form, strict compliance with the form is not necessary but substantial compliance is sufficient .

Moreover, under subsection (2) where a form requires specified information to be included in the form (in this case the signature evidencing the owner's consent), the form will be duly completed where " it includes, or has attached to, or furnished with it, that information ". In the present case it was sufficient for the letter of 1 April 1998 to be attached or annexed to the prescribed form.

The letter of 1 April 1998 is not in terms a consent as required by s 77(1) of the Act. In short, I accept the submissions of Mr Ryan on this point, which are compelling. The terms of the letter make this clear. The consent is expressed in the letter to be " only on the basis set out in this letter ". For example, the consent is not intended to operate until the Equity Court finds in favour of Bryant, which event has not occurred. That is a condition precedent to the consent becoming operative. In another way, it is a condition precedent to the making of the development application. The conditional nature of the consent is reinforced by the other conditions which are expressed to form its basis, which I have summarised in paragraph 11 above. In particular, the statement that I have quoted in subpara 11(e) above shows clearly that Mulyan expected the completed development application and its attachments to be submitted to it as owner for consent and then, only if that consent were granted, was it to be subsequently submitted to the Council. In short, as a matter of construction the letter is a conditional consent which is not intended to become operative unless and until the various matters described in it and to which it is said to be subject have been satisfied.

Can a document which does not amount to a consent nevertheless be a consent for the purpose of s 77(1) of the EP&A Act? The respondents rely upon the authorities to which they have referred for a submission that the answer to this question must be " yes ".

The first case relied upon is Crowley v Hastings Municipal Council , a decision of Bignold J when he was the Senior Technical & Conciliation Assessor of the Court. In that case the owner of the land to which the development application related, namely the Maritime Services Board, had furnished a letter stating that " no objection will be raised " to the development and a further letter to a like effect. The Senior Assessor (as he then was), in a lengthy passage, said (at 121): The respondent disputed that these letters represented the 'consent' required by s 77(1), pointing out that in terms they revealed merely an absence of objection from the Land Board Office in the applicant continuing his operations for the term of the current licence issued by the Maritime Services Board. The court has concluded that the letters constitute sufficient evidence of the 'owner's consent' within the meaning of s 77(1), despite their obvious failure, in terms, to grant an unqualified consent to the making of the development application. In the present circumstances where the activity, the subject of the development application, has already been commenced and is continuing, an expression of the owner's absence of objection to the continuance of that activity is tantamount to the owner's consent to the making of a development application for the carrying out of that activity. The apparent purpose or policy underlying the requirement of s 77(1) is as well satisfied by the owner's expression of no objection as by its expression of consent to the making of the development application. The respondent pressed the qualified nature of the ' consent ' in that it was expressly limited to the term of the then current licence from the Maritime Services Board, arguing that such a qualified consent was not capable of supporting the grant of a development consent in any manner inconsistent with the qualification In the present case acceptance of this argument would mean that any development consent could not operate beyond the expiry date of the current licence. Section 77(1) does not in terms refer to a qualified consent: it merely refers to and contemplates a consent. In the court's opinion a qualified consent should nonetheless be treated as a consent for the purposes of s 77(1). It has not been demonstrated that the apparent policy or purpose of the requirement of s 77(1) would be frustrated or undermined by adopting such an approach, even though it has the effect of ignoring the qualification imposed by the owner in granting consent. On the other hand, it is not difficult to appreciate the considerable potential for mischief if the qualifications imposed by an owner in granting consent were recognised and enforced by the consent authority and the court. It would be highly undesirable to allow concepts and notions from the law of contract to impinge upon the essentially straightforward elements relating to development applications and development consents contained in Part IV of the Environmental Planning & Assessment Act , 1979 (cf. The observations of Hutley JA in Cambridge Credit Corporation Ltd v Parkes Developments Pty Ltd [1974] 2 NSWLR 590; 33 LGRA 196). ... The section should not be construed in a manner which unnecessarily complicates or stultifies the administrative process of making and determining development applications.

It is immediately apparent that the facts in Crowley are distinguishable from those in the present case. In Crowley the letters said to amount to a consent state that " no objection " will be raised to the development. That is not the case here. In the present case Mulyan does object to the development unless and until certain events have occurred and certain conditions are satisfied.

The next distinguishing feature in Crowley is the then Senior Assessor's reference to " an expression of the owner's absence of objection to the continuance of that activity is tantamount to the owner's consent to the making of a development application for the carrying out of that activity ". In the present case, however, Mulyan opposes the continuance of the activity by Bryant. It has purported to terminate the licence agreement which permitted Bryant to win quartzite pebble and sand from the property. Mulyan takes the position that Bryant is a trespasser on its land. The validity of the purported termination of the licence agreement is now the subject of the proceedings in the Equity Division. As noted above, the letter of 1 April 1998 states that the consent is given " in the event that the Equity Court finds in favour of Bryant ".

I next refer to the following statement in the decision of the then Senior Assessor: Section 77(1) does not in terms refer to a qualified consent: it merely refers to and contemplates a consent. In the Court's opinion a qualified consent should nonetheless be treated as a consent for the purposes of s 77(1).

In the present case, however, the letter of 1 April 1998 is not in truth a consent at all. It is at most a " consent " which is intended to operate upon the happening of a future event (or events) and at a future date. And if the specified event or events does not or do not occur then the " consent " does not operate at all.

The next statement in Crowley upon which I comment is: It would be highly undesirable to allow concepts and notions from the law of contract to impinge upon the essentially straightforward elements relating to development applications and development consents contained in Pt IV of the Environmental Planning & Assessment Act 1979.

Section 77(1) of the Act provides that a development application may be made only by " ... a person, with the consent in writing of the owner of the land to which that development application relates ". If a purported consent is not in law a consent at all, then in my opinion the mandatory requirement of s 77(1) is not satisfied. Neither the Council nor the Court could determine otherwise. A consent authority cannot convert something that is not in law a consent into something that it is not. The abovementioned statement must be seen in its context and, as I have indicated, the context here is quite different to that which obtained in Crowley . For the reasons described in paragraphs 20-23 hereof, I do not think that Crowley is of any assistance in this case.

Mr Davison relies next upon the dissenting judgment of Kirby ACJ in North Sydney Council v Ligon 302 Pty Ltd . In discussing s 77 of the EP&A Act Kirby ACJ said (at 447): It is a procedural requirement. It is there for a purpose. It is to ensure that owners of land affected by a development application are notified of the application and afforded the opportunity of protecting their ownership rights by the requirement to signify, in writing, their consent. In certain circumstances, if consent of the owner of related land were unlawfully or reasonably withheld, a facility would exist to apply for relief against such refusal.

It is to be noted, however, that Kirby ACJ also said (at 448): If there is a doubt in the construction of s 77(1) I consider that the approach which I favour is one defensive of private property rights in land which the law would normally uphold. It would take clearer language in s 77(1) effectively to deprive the owners of related land of the rights which parliament has afforded them by the terms of s 77 (" may be made only ").

I do not accept Mr Davison's submission that the purpose of s 77(1) is merely to ensure that the owner of land is on notice of any development application over that land. Neither do I accept Mr Davison's submission that s 77 is not intended to afford a veto to the owner of land to which a development application relates. I refer, in particular, to the passage in the judgment of Kirby ACJ which I have quoted (in paragraph 25 above). The provision is defensive of property rights. As noted by his Honour, the terms of the section are clear (" may be made only by "). If it was intended merely to ensure that an owner is on notice of a development application relating to his or her land, the section could have readily so provided. But it does not. It expressly requires " the consent " of the owner. The corollary of this is that an owner can withhold consent.

It is true that in some circumstances an owner of land may be ordered to provide a written consent to a development application relating to his or her land. A typical example of such a circumstance is illustrated by the case of Kirkjian v Towers (Waddell CJ in Eq, 6 July 1987, unreported). In that case Mr and Mrs Kirkjian were the owners of a "battle-axe" allotment which had the benefit of a right of way to the nearest street over an adjoining allotment owned by Mr and Mrs Towers. Mr and Mrs Kirkjian wanted to construct a concrete driveway over the right of way. Mr and Mrs Towers, as owners of the land, refused to give their consent in writing to the Kirkjian's development application to construct the driveway. Mr and Mrs Kirkjian brought proceedings in the Equity Division of the Supreme Court against Mr and Mrs Towers for a mandatory injunction requiring the defendants to consent to the Kirkjian's development application. Waddell CJ in Eq held that the plaintiffs were entitled to relief in the nature of an order requiring the defendants to give their consent to so much of the plaintiff's application as involved work on the defendant's land. His Honour said, however, that what the Court is applying is the law relating to rights of way and the general law of property.

The present case is somewhat different. Mulyan is the owner of the land. It has terminated the licence agreement between it and Bryant. It regards Bryant as a trespasser. Under these circumstances a court of equity is not likely to compel Mulyan to provide the necessary owner's consent to Bryant's development application, at least not unless Bryant is ultimately successful in its proceedings against Mulyan which are at present pending in the Equity Division.

Mr Davison also relies upon the judgment of Hodgson CJ in Eq in 117 York Street Pty Ltd v Proprietors of Strata Plan No 16123 . That was a case in which his Honour made an order imposing an easement over land under s 88K of the Conveyancing Act 1919. The plaintiff also sought an order requiring the defendant to give written consent to the making of a development application for the erection of a crane which was to occupy the air space within the easement. His Honour accepted the plaintiff's submission that, at common law, the grant of an easement is also the grant of such ancillary rights as are reasonably necessary for its exercise or enjoyment; that such ancillary rights included, where appropriate, a right to written consent for the lodging of a development application; that such a right would probably be implied in any event in a statutory grant of an easement; but it is also appropriate to make it express.

Hodgson CJ in Eq also expressed the opinion, however, that the obligation on the defendant to give written consent can only be imposed as part of the easement, not by order of the Court which is independent of the easement. His Honour then proceeded to make it a specific term of the easement that the defendant, on the written request of the plaintiff or its solicitors, shall forthwith give its written consent for the purpose only of s 77(1)(b) of the EP&A Act for the lodging by the plaintiff of a development application (for the erection of the crane and its use within the air space of the defendant's land in the manner contemplated by the easement).

It is significant that in both Kirkjian v Towers and 117 York Street Pty Ltd , the Court was applying the law relating to rights of way (in Kirkjian ) and the law relating to easements ( 117 York Street Pty Ltd ) and the general law of property. In 117 York Street , Hodgson CJ in Eq expressed the opinion that the obligation on the owner to give consent can only be imposed as part of the easement and not by order of the Court which is independent of the easement; and the obligation in that case was made a specific term of the easement. This suggests to me that the requirement for the giving of an owner's consent to the making of a development application is not a mere formality which serves only to establish that an owner is aware of such development applications. An owner of land over which there is no other propriety or other enforceable interest is entitled to withhold consent.

In the present case Bryant has not established that it has any proprietary or other interest in the property. There is thus no basis, at present, upon which Bryant is able to found an application for a mandatory injunction requiring Mulyan to give its consent in writing to the development application. Contrary to Mr Davison's submission, s 77(1)(b) does afford a veto to the owner of land to which the development application relates, subject to the general law of property as applied in cases such as Kirkjian v Towers and 117 York Street Pty Ltd.

It is not necessary in this case to consider Mr Davison's final submission as to whether an owner of land may withdraw a consent which had been given to the making of a development application. That is not the case here. In the present case the consent, not being operative until the happening of future events, is not in truth a consent at all.

It remains to consider Mr Green's final submissions (noted in paragraph 14 above). I have held that a plain reading of the letter of 1 April 1998 shows that it is not intended to operate as a consent unless and until certain things have happened. There is nothing else in the body of the letter to suggest that the various conditions upon which it issued have been fulfilled. If a document cannot in law be a consent, then the opinion of the Council as to whether it was or was not a consent is irrelevant. Section 77(1)(b) is not expressed to be dependent upon any opinion of the Council. It is a condition precedent to the making of a valid development application. It is either complied with or it is not. In the present case it is not.

I therefore find that the letter of 1 April 1998 which accompanied the development application is not a consent of the owner of the land to which the development application relates within the meaning of s 77(1) of the EP&A Act. I therefore answer the first preliminary question identified by the parties as follows: Did Mulyan consent to Bryant making development application 125/98 to the Council?

Answer: No. 36. The answer to this question means that it is not necessary to consider the second and third preliminary questions identified by the parties.

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