North Sydney Council v Ligon 302 Pty Ltd

The Court delivered the following written judgment: -

6 August 1996 Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ

The respondent (Ligon) lodged a development application with the appellant (the Council) on 23 May 1994 in respect of a proposed development on land on which the North Sydney Club is built. The proposed development would extend the Club premises and add a tenstorey residential block. The Club site abuts on the Warringah Expressway. That is the only road frontage, but access can be had to the Club site across an adjoining parcel of land of which Century Plaza is the registered proprietor of an estate in fee simple. Access from Walker Street (which runs parallel to the Expressway) can be had by an easement conferring a right of carriageway across the Century Plaza land to the Club site. Access from Berry Street (which runs at right angles to Walker Street and the Expressway and joins the two) can be had by two easements conferring rights of footway and one easement conferring a right of carriageway across the Century Plaza land to the Club site.

The Club site is zoned No 5(a) - Special Uses (Club) - and the Century Plaza land is zoned No 2(c) - Residential - under the North Sydney Council Local Environmental Plan 1989 as amended. The Plan is made under Div 4 of Pt 3 of the Environmental Planning and Assessment Act 1979 NSW (the Act). Under the Plan, the proposed development of the Club site cannot be carried out except with consent under the Act. The Council is the relevant consent authority (see s 4). Section 76(2) provides as follows:

Subject to this Act, where an environmental planning instrument provides that development specified therein may not be carried out except with consent under this Act being obtained therefor, a person shall not carry out that development on land to which that provision applies unless:

(a) that consent has been obtained and is in force under this Act; and

(b) the development is carried out in accordance with the provisions of any conditions subject to which that consent was granted and of that instrument.

To obtain consent to a development, a development application must be made to the consent authority in the prescribed form and manner (s 77(3)(a), (b)). Section 77(1) of the Act provides: 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.

Ligon's application was made with the consent of the North Sydney Club as the owner of the Club site, but no consent was given to the application by Century Plaza. Nor is Century Plaza willing to give such a consent. A consent authority is required to determine a development application by granting consent to the application (conditionally or unconditionally) or by refusing consent to the application (s 91(1)). The Council refused consent.

Ligon appealed to the Land and Environment Court. In that Court, the Council submitted "that development approval could only be given where the development application was made with the consent in writing of the owners of Century Plaza, pursuant to [s 77] of the Act." Bannon J rejected the submission, holding that the easements were appurtenant to the Club site and, in this respect, resemble "a public road on which citizens may pass and repass about their business".

An appeal was brought by the Council to the New South Wales Court of Appeal, pursuant to s 57 of the Land and Environment Court Act 1979 NSW and s 48 of the Supreme Court Act 1970 NSW. In combination, those provisions limited the appeal to one on a question of law and empowered the Court of Appeal to remit the matter to the Land and Environment Court "for determination in accordance with the decision" of the Court of Appeal. The only issue determined by the Court of Appeal which remains alive in this Court concerns the construction of s 77(1) of the Act. The Court of Appeal allowed the Council's appeal. It did so unanimously on a ground no longer material. However, the Court divided (Clarke and Sheller JJA, Kirby A-CJ dissenting) as to the construction of s 77(1). The majority rejected the Council's submission that consent of Century Plaza was necessary.

The Court of Appeal ordered (par 3) that the proceedings be remitted for determination by the Land and Environment Court "in accordance with" its reasons. In this Court the Council seeks to have that order set aside. The Council does so on the footing that whilst it was successful on one ground of appeal, the order of the Court of Appeal would require redetermination of the proceedings upon what it contends is an erroneous construction of s 77(1). That is, it asserts that the order of the Court of Appeal operates adversely to its interests. Quite properly, no point was taken as to the competency of an appeal to this Court framed in this way [1] . The conclusion we have reached is that whilst the Court of Appeal erred in its construction of s 77(1), nevertheless the true construction of that provision still leads to the conclusion that the consent of Century Plaza was not required.

1. cf Australian Consolidated Press Ltd v Uren (1967) 117 CLR 221 at 226-231; Driclad Pty Ltd v Federal Commissioner of Taxation (1968) 121 CLR 45 at 64-65.

In the Court of Appeal, Sheller JA (with whose judgment Clarke JA concurred) approached the construction of s 77(1) as follows [2] :

No one proposes to carry out any development, as the Act defines that word, on the Century Plaza land. If they were it would be necessary to determine whether the proposed development was prohibited or required consent. If the consent authority's consent was required, the developer would have to make a development application and to do so would need the consent in writing of the owner of the Century Plaza land, being land to which the development application related. The fact that the Century Plaza land is subject to easements in favour of the land the subject of a development application is of itself of no significance. If the easements may currently be used as they will be used if the development on the Club land goes ahead, no development of the land the subject of the easements is to be carried out and no development application relating to that land needs to be made. If the development on the Club land involved a different or excessive use of the rights of footway it would be outside the permit of the easements and may well amount to a proposed development of the servient tenement for which the consent of the owner of that land and of the consent authority would be required. This approach focuses on the servient tenements and refers to the user permitted by the respective easements in order to determine whether there is a need for consent to development on the land subject to the easements. Finding that there was no evidence of proposed user outside the terms of the easements, his Honour held that [3] "the making of the development application in relation to the Club land did not require the consent of the owner of the Century Plaza land." 1. North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA 435 at 450-451. 2. North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA 435 at 451.

With respect, the need for consent to a use of land is not dependent on the terms of the proprietary or contractual rights of persons proposing to use the land or to suffer the use of the land by others. The Act is concerned with the environment and amenities of the various areas of the State [4] . The statutory powers to control planning of those areas are not qualified or affected by private rights except in so far as the Act fastens on the holders of interests in land to impose certain restrictions or duties. Nor is it self-evident that a relationship for the purposes of s 77(1)(b) between a development application for consent to erect a building on one parcel of land and an adjoining parcel of land is established by the need for consent to a development on the adjoining parcel.

The context of s 77(1)(b) reveals the meaning of "relates" in that paragraph. A development application seeks consent to a development that a person would otherwise be prohibited from carrying out by s 76(2). The prohibition contained in s 76(2) is against the carrying out of a "development on land to which [a provision in an environmental planning instrument] applies". Such a provision applies to particular parcels of land. A "development" can be carried out only on a particular parcel. Thus the prohibition is against the carrying out of a specific development on a particular parcel. When a development application is made for consent to a specified development, the land to which the application "relates" must therefore be the land on which the specified development is proposed to be carried out.

In some cases a development carried out on one parcel of land may entail a development on an adjoining parcel or on another parcel in the locality. In such a situation, s 90(1)(h) comes into play. It provides:

In determining a development application, a consent authority shall take into consideration such of the following matters as are of relevance to the development the subject of that development application:

(h) the relationship of that development to development on adjoining land or on other land in the locality.

As the opening words of s 90(1) state, it is only the development which is the subject of the development application that the consent authority is considering, but the relationship of that development to development on adjoining land is a relevant factor for consideration. Thus pars (i) and (j) of s 90(1) prescribe other factors relevant to the use of land other than the land the subject of the development application:

(i) whether the proposed means of entrance to and exit from that development and the land to which that development application relates are adequate and whether adequate provision has been made for the loading, unloading, manoeuvring and parking of vehicles within that development or on that land;

(j) the amount of traffic likely to be generated by the development, particularly in relation to the capacity of the road system in the locality and the probable effect of that traffic on the movement of traffic on that road system.

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.

If a development application were held to "relate to" "other land in the locality" merely because a development on the other land related to the development the subject of an application, each owner of other land would possess a power to prevent the subject development. The power would be exercised by denying consent to the application. A relationship between developments might be established merely by use of the other land in some manner related to the development proposed on the subject land. The use of land, in any way, falls within the wide definition of development contained in s 4(1). The term is defined to mean -

(b) the carrying out of a work in, on, over or under that land;

(c) the use of that land or of a building or work on that land; and

but does not include any development of a class or description prescribed by the regulations for the purposes of this definition. The inclusion of "use" in this definition brings all manner of activity - or even inactivity [5] - into the statutory concept of "development". And so, if any "use" of "other land in the locality" were related to a proposed development and if that relationship were held automatically to establish a relationship of the development application to that other land for the purposes of s 77(1)(b), the owner of that other land would have the power to veto that development. That would be so even if the use of that other land were an existing use which does not require consent. 1. Parramatta City Council v Brickworks Ltd (1972) 128 CLR 1 at 21-22.

Existing uses constitute "development" under the Act but do not require consent when they are covered by exempting provisions. Although the word "use" in a definition of development in the Local Government Act 1919 NSW was construed by this Court in Vumbaca v Baulkham Hills Shire Council [6] to mean a change of use after the making of an interim development order under that Act [7] , the present Act contains different provisions [8] . The present Act expressly deals with existing uses in a way that fills in the lacuna exposed by Vumbaca in the definition of development in the 1919 Act, but the present Act contains provisions dispensing with the need for consent to some existing uses. Section 109 relevantly provides as follows:

(1) Nothing in an environmental planning instrument operates so as to require consent to be obtained under this Act for the continuance of a use of a building, work or land for a lawful purpose for which it was being used immediately before the coming into force of the instrument or so as to prevent the continuance of that use except with consent under this Act being obtained.

(a) any alteration or extension to or rebuilding of a building or work;

(b) any increase in the area of the use made of a building, work or land from the area actually physically and lawfully used immediately before the coming into operation of the instrument therein mentioned;

(c) without affecting paragraph (a) or (b), any enlargement or expansion or intensification of the use therein mentioned.

Similar provisions in s 107 permit existing uses to continue notwithstanding prohibitory provisions in the Act or in an environmental planning instrument. For the purposes of s 77(1)(b), however, it would be immaterial whether a use of adjoining land were or were not an existing use which does not require consent. Any use of land is "development". If s 77(1)(b) were to be construed as the Council submits it should be construed, the discretion vested in a consenting authority by s 90(1)(h) could not be exercised in favour of a proposed development without the consent of all owners of land in the locality the use of which - whether existing or not - would be related to the proposed development. It is unlikely that the Legislature intended to confer such a power to veto a proposed development on the owners of "other land in the locality". 1. (1979) 141 CLR 614. 2. Local Government Act 1919 NSW, ss 342T, 342U. 3. Div 2 of Pt 4 of the Act.

In the present case, it may be that the use of the Century Plaza land the subject of the easements for access to the Club site is an existing use for the purposes of s 109(2)(c), but an intensification of that use consequent on the development of the Club site would constitute a development of the land the subject of the easements for which consent would be required. That question has not arisen for determination. There is no development application for consent to a use of the land the subject of the easements.

The Council's argument in support of the proposition that Ligon's application is invalid for want of Century Plaza's consent emphasises the wide import of the word "relates". So much can be accepted. Gibbs J accepted the same proposition in Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council [9] , but the meaning of "relates" depends on its context in the particular Act in which the term appears [10] . The definition of "use" considered by the Court in Pioneer Concrete included [11] "any use which is incidental to and necessarily associated with the lawful use of the land in question". The extension of "use" to incidental and associated uses has no counterpart in the Act now under consideration. It is not relevant to this case that Wilson J said in Pioneer Concrete [12] :

The extent of the land in respect of which an applicant must seek consent is dictated by the proposed use including all incidental uses necessarily associated with the primary use in respect of which consent is required. That was a case in which an application was made to the Brisbane City Council for permission to use part of a large parcel of land as a quarry. An access road was intended to be used to remove the rock extracted from the quarry but the application did not cover the access road. Stephen J (with the concurrence of Murphy J) held that "all the land involved in the use must be the subject of the application" [13] . His Honour also said [14] : "It is only where land is proposed to be used for the one purpose at the one time that consent for its use must be applied for in the one application." Partly because of the definition of "use" and partly because Stephen J regarded quarrying and removal as a single use [15] , his Honour held the application to be invalid. Wilson J, basing his conclusion on the definition of "use", came to the same conclusion. Pioneer Concrete is distinguishable from the present case both textually and factually. Textually, the definition of "use" in the present case does not include incidental and associated uses. Factually, the development for which consent was sought in the Pioneer Concrete case was use for the one purpose: the carrying out of quarry operations. In this case, the development for which consent is sought is the erection of a building. The use of the Century Plaza land as a carriageway and footway to the Club site is a different use that will be made either after the building development is commenced or, more significantly, after it is complete. 1. (1980) 145 CLR 485 at 498. 2. eg, see O'Grady v Northern Queensland Co Ltd (1990) 169 CLR 356 at 367, 373-374. 3. s 3 of the City of Brisbane Town Planning Act 1964 Q. 4. (1980) 145 CLR 485 at 514. 5. Pioneer Concrete (1980) 145 CLR 485 at 500. 6. Pioneer Concrete (1980) 145 CLR 485 at 505. 7. Pioneer Concrete (1980) 145 CLR 485 at 502.

In the Act there are some other indicia suggesting (though not compelling) the conclusion that the land to which a development application "relates" is solely the land on which it is proposed that the development the subject of the application is to be carried out. Those indicia can be found in provisions which draw a distinction between two types of development: designated development [16] and other development. Section 84(1) provides that, when an application is made for consent to carry out designated development, the Council -

(a) give written notice of that development application:

(i) to such persons as appear to it to own or occupy the land adjoining the land to which the development application relates;

(ii) where practicable, to such other persons as appear to it to own or occupy land the use and enjoyment of which, in the opinion of the consent authority, may be detrimentally affected if that designated development is carried out; and

(iii) to such public authorities as, in the opinion of the consent authority, may have an interest in the determination of that development application;

(b) cause notice to be exhibited in the prescribed manner on the land to which that development application relates; and

(c) cause notice of that development application to be published in a newspaper circulating in the locality.

No requirement to give notice of a development application for consent to a non-designated development is contained in the Act, although such a requirement may attach to applications for consent to carry out a non-designated development if an environmental planning instrument so provides: s 30(4). The requirement of notice to adjoining owners and owners whose land may be detrimentally affected by a development suggests that that is the means by which such owners are given the opportunity to take a part in the consent authority's consideration of a development application. It is unlikely that the Act would require notice to be given to owners of the land mentioned in s 84 if those owners possessed a power to veto a development by refusing consent to the making of a development application. 1. See the definition in s 4.

Ligon, concerned to meet the proposition accepted by Kirby A-CJ in the Court of Appeal that a valid development application had to relate to the Century Plaza easements, mounted a further argument. It submitted that the North Sydney Club, the owner of the dominant tenement, is also the "owner" of the relevant "land", being the easements - incorporeal hereditaments - rather than the topographical entity (the land subject to easements). The submission is based on the definition of land in the Interpretation Act 1987 NSW [17] , s 21(1) of which provides that -

"land" includes messuages, tenements and hereditaments, corporeal and incorporeal, of any tenure or description, and whatever may be the estate or interest therein.

However, s 5(2) of the Interpretation Act limits the application of this definition to Acts in which no contrary intention appears. A contrary intention does appear in the Act. The Act contains a definition of land in these terms (s 4): land includes:

(b) a bay, inlet, lagoon, lake or body of water, whether inland or not and whether tidal or non-tidal; and

(c) a river, stream or watercourse, whether tidal or non-tidal.

The definition, though inclusive only, speaks only of land as a topographical entity, not as a bundle of rights. As the Act is not concerned with the regulation of private rights of ownership but with the physical use made of, or affecting, the topographical entity of land, the term "land" in ss 76 and 77 of the Act and perhaps in the Act generally is not defined by s 21(1) of the Interpretation Act. 1. The definition of land in s 21(e) of the Interpretation Act 1987 NSW which was in operation when the Act came into force was not relevantly different.

The development application in the instant case is for consent only to a development to be carried out on the Club site. The development application relates solely to the Club site. The use of the Century Plaza land to give access to the Club site is an existing use and, unless that use be intensified, no question of consent to a development of the Century Plaza land will arise. It may be expected that the use will be intensified but it does not follow that the prospect of intensification makes the application already lodged by Ligon invalid for want of the consent of Century Plaza. The prospect of intensification of use is capable of affecting the discretion to grant or refuse Ligon's application, but that is a different problem.

It follows that the decision of the majority of the Court of Appeal was right, though not for the reasons which their Honours assign. The appropriate order is therefore to dismiss the appeal, except so far as it is necessary to vary the order of the Court of Appeal by deleting par 3 of that order and inserting in lieu thereof an order in the terms following:

In lieu thereof the proceedings be remitted to the Land and Environment Court for determination by that Court in accordance with the decision of the High Court of Australia. The respondent is entitled to costs.