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[2025] NSWLEC 105
General information, not legal advice.
Land and Environment Court (NSW)
2025-09-16
Robson J
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Painters Lane Developments Pty Ltd v Central Coast Council (No 2) [2025] NSWLEC 105
Hearing dates: 02 September 2025
Date of orders: 16 September 2025
Decision date: 16 September 2025
Jurisdiction: Class 4
Before: Robson J
Decision: See orders at [52]
Catchwords: ADMINISTRATIVE LAW — Judicial review — Further amended summons seeking declaration that deferred commencement consent has not lapsed — Interpretation of development consents and conditions — Whether applicant has satisfied deferred commencement condition by provision of a deed — Whether the condition requires Council to reach state of satisfaction — Declaratory relief granted
Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 4.16, 4.17, 4.53
Environmental Planning and Assessment Regulation 2021 (NSW), s 76
Uniform Civil Procedure Rules 2005 (NSW), r 42.1
Cases Cited: Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103; (2013) 195 LGERA 182
Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Ltd [2009] NSWCA 160; (2009) 167 LGERA 395
Bunderra Holdings Pty Ltd v Pasminco Cockle Creek Smelter Pty Ltd (subject to Deed of Company Arrangement) (2017) 96 NSWLR 434; [2017] NSWCA 263
Dennes v Port Macquarie-Hastings Council [2018] NSWLEC 95
Esso Australia Pty Ltd v The Australian Workers’ Union (2017) 263 CLR 551; [2017] HCA 54
Franklins Pty Ltd v Metcash Trading Ltd (2009) 76 NSWLR 603; [2009] NSWCA 407
Ghalayini v Ghalayini [2025] NSWSC 451
J.K. Williams Staff Pty Limited v Sydney Water Corporation [2021] NSWLEC 23; (2021) 249 LGERA 109
Lachlan v HP Mercantile Pty Ltd (2015) 89 NSWLR 198; [2015] NSWCA 130
Milne v The Municipal Council of Sydney (1912) 14 CLR 54; [1912] HCA 25
Mueller v Que Capital Pty Ltd (No 2) [2016] WASCA 157
Painters Lane Developments Pty Ltd v Central Coast Council [2025] NSWLEC 99
Sunland Group Limited v Gold Coast City Council (2021) 274 CLR 325; [2021] HCA 35
Taylor v The Owners - Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9
The Owners - Strata Plan No. 4983 v Canny [2018] NSWCA 275; (2018) 233 LGERA 432
Texts Cited: Perry Herzfeld and Thomas Prince, Interpretation (3rd ed, 2024, Thomson Reuters)
Category: Principal judgment
Parties: Painters Lane Developments Pty Ltd (First Applicant)
Central Coast Council (Respondent)
Representation: Counsel:
G Farland (Applicants)
M Astill (Respondent)
Solicitors:
ZBA Lawyers (Applicants)
Wilshire Webb Staunton Beattie (Respondent)
File Number(s): 2025/00294402
Publication restriction: Nil
Painters Lane Developments Pty Ltd (‘Painters’) commenced these Class 4 proceedings by summons filed on 1 August 2025 (amended 15 August 2025 and further amended with the leave of the Court on 22 August 2025), seeking declaratory relief that conditions in a deferred commencement development consent granted by Central Coast Council (‘Council’) on 29 April 2020 have been complied with.
On 29 April 2020, Council granted deferred commencement development consent DA/49578/2016 to Mann St Enterprises Pty Ltd (‘Mann St’), the then owner of land at 321, 325 and 331 Mann Street, Gosford (‘Site’), for a 20-storey commercial and shop top housing development with 182 units on the Site (‘Consent’). Painters became the registered proprietor of the Site on 26 June 2021.
The Consent was granted subject to two deferred commencement conditions, being Condition 1.1(a) and Condition 1.1(b), which relevantly provide:
“1.1. This consent does not operate until the following have been satisfied
a) The Applicant shall prepare and provide to Sydney Trains for approval/certification the following items:
i. Geotechnical and Structural report/drawings that meet Sydney Trains requirements. The Geotechnical Report must be based on actual borehole testing conducting on the site closest to the rail corridor.
ii. Construction methodology with construction details pertaining to structural support during excavation. The Applicant is to be aware that Sydney Trains will not permit any rock anchors/bolts (whether temporary or permanent) within its land or easements.
iii. Cross sectional drawings showing the rail corridor, sub soil profile, proposed basement excavation and structural design of sub ground support adjacent to the rail corridor. All measurements are to be verified by a Registered Surveyor.
iv. Detailed Survey Plan showing the relationship of the proposed developed with respect to Sydney Trains easement and rail corridor land.
v. If required by Sydney Trains, an FE analysis which assesses the different stages of loading-unloading of the site and its effect on the rock mass surrounding the rail corridor.
...
b) The submission of the following to allow the applicant to gain permission to undertake sewer relocation work:
i. Written permission and deed of agreement to enter the site and construct the sewer location is to be obtained from the owners of No. 333-337 Mann Street.
Evidence must be produced to the consent authority sufficient to enable it to be satisfied that above conditions have been complied within Twelve (12) months of the date of this approval, otherwise this consent will lapse.
...” (Emphasis added.)
As Council has accepted that Condition 1.1(a) has been complied with, these proceedings primarily concern whether a document titled “Deed of Undertaking” provided to Council on 18 March 2021 has satisfied Condition 1.1(b) of the Consent.
For the reasons that follow, I find that Condition 1.1(b) has been complied with and that Painters is entitled to the relief it seeks in the further amended summons filed 22 August 2025.
On 5 November 2019, the Joint Regional Planning Panel (Hunter and Central Coast) provided to Council a report recommending deferred commencement development approval which resulted in Council’s determination on 29 April 2020. In its report, the panel noted that it had received a proposal that an issue in relation to sewer location (which had been of earlier concern to Council) was able to be met by a consolidation of services with the neighbouring property (333-337 Mann Street) and that “final sewer location plans” (having been reviewed by Council) were acceptable on the basis that any proposal to use the neighbouring land would require written consent from the landowner of 333-337 Mann Street.
As originally determined on 29 April 2020, the Consent required that evidence to enable Council to be satisfied that Conditions 1.1(a) and 1.1(b) had been complied with needed to be produced to Council within 12 months of the date of the approval (effectively by 29 April 2021). Otherwise, the Consent would lapse.
On 18 March 2021, a time within 12 months of the date of approval, the sole director of Painters, James Moses, provided to Erin Murphy, a Council planning officer, a copy of an executed but undated “Deed of Undertaking” apparently signed by Mann St NSW Pty Ltd, the then owner of 333-337 Mann Street, Mann St and Mr Moses (‘Deed’), purportedly authorising entry onto that adjacent property. The Deed (sometimes referred to in the evidence as “sewer access deed”) had been signed by Mann St NSW Pty Ltd by its sole director and sole shareholder, Dino Dinov, and forwarded to Mr Moses on 5 March 2021. For convenience, a copy of the Deed is Annexure “A” to this judgment.
The “RECITALS” of the Deed included Recital E, which effectively provided:
“E. MNSW [“the owner of the MNSW Property ..., the real property situated at and known as 333 Mann St, Gosford NSW”] has agreed to allow the Works [“sewerage works forming part of the Development”] to proceed, and access to and interference with the MNSW Property for that purpose, in consideration for the undertaking provided in this Deed, which in turn is given subject to the conditions set out herein.”
Ms Murphy replied to Mr Moses’ email, advising that the period for satisfaction of Conditions 1.1(a) and 1.1(b) “may get automatically extended due to COVID” and that Mr Moses “get [his] own advice”. Ms Murphy’s email did not refer to the Deed nor advise that Condition 1.1(b) had not been complied with. Mr Moses deposes that he was “of the understanding and belief that provision of the Deed on 18 March 2021 was sufficient to comply with [Condition 1.1(b)]”.
On 4 September 2023, Mr Moses received an email from the Department of Planning and Environment advising that the lapsing date of the Consent had been extended to 29 April 2025 (due to legislative amendments to s 4.53 of the EPA Act induced by the COVID-19 pandemic).
On 29 April 2025, Mr Moses provided by email to a Council officer, Ailsa Prendergast, an email received from Sarkis Yalda, Program Manager, Sydney Trains at Transport for NSW (‘TfNSW’), stating that “... Sydney Trains is prepared on a without precedent basis to support Council granting the Deferred Commencement Conditions” in respect of the satisfaction of parts of Condition 1.1(a). As noted earlier, Council now accepts that this material satisfies Condition 1.1(a).
On 8 May 2025, Council’s Principal Development Planner, Robert Eyre, emailed Mr Moses stating:
“...
The previous attached deed does not purport to bind successors in title. It is not the consent from the owner of the adjoining land at the date it was provided to the Council.
The information submitted was not provided sufficiently in advance of the lapse date (29 April 2025) so the Council could not be satisfied as required before the consent lapsed in any event.
I advise that the conditions of the deferred commencement consent have not been satisfied (particularly condition 1.1 b) and the consent ... lapsed on 29 April 2025.”
Given the narrowing of Painters’ claims in the further amended summons and Council’s acceptance of certain background facts, the remaining two material issues in these proceedings, as agreed between the parties, are:
What does Condition 1.1(b) of the Consent require?
Did the provision of the Deed on 18 March 2021 satisfy that requirement?
(1) General A consent authority is to determine a development application by—
(a) granting consent to the application, either unconditionally or subject to conditions, or
(b) refusing consent to the application.
...
(3) “Deferred commencement” consent A development consent may be granted subject to a condition that the consent is not to operate until the applicant satisfies the consent authority, in accordance with the regulations, as to any matter specified in the condition. Nothing in this Act prevents a person from doing such things as may be necessary to comply with the condition.
...
(1) Conditions—generally A condition of development consent may be imposed if—
(a) it relates to any matter referred to in section 4.15(1) of relevance to the development the subject of the consent, or
...
(f) it requires the carrying out of works (whether or not being works on land to which the application relates) relating to any matter referred to in section 4.15(1) applicable to the development the subject of the consent, or
...
(h) it is authorised to be imposed under the following—
(i) section 4.16(3) or (5),
...
Section 4.53(6) of the EPA Act relevantly provides that “…a development consent that is subject to a deferred commencement condition under section 4.16(3) lapses if the applicant fails to satisfy the consent authority as to the matter specified in the condition within ... [5 years]…”.
Section 76 of the Environmental Planning and Assessment Regulation 2021 (NSW) (‘EPA Regulation’) relevantly provides:
(1) A development consent with a deferred commencement, as referred to in the Act, section 4.16(3), must be clearly identified as a “deferred commencement” consent, whether by using the expression, referring to that section or otherwise.
(2) A deferred commencement consent must clearly distinguish between—
(a) conditions that relate to matters about which the consent authority must be satisfied before the consent can operate (the relevant matters), and
(b) other conditions.
...
(4) If the applicant produces evidence in accordance with this section, the consent authority must notify the applicant whether it is satisfied about the relevant matters.
(5) If the consent authority does not notify the applicant within 28 days after the applicant produces the evidence, the consent authority is taken to have notified the applicant, on the day on which the period expires, that it is not satisfied about the relevant matters.
(6) Subsection (5) applies for the purposes of the Act, section 8.7 only.
Painters contends that Condition 1.1(b) was complied with on or before 29 April 2025 and, in summary, submits:
Condition 1.1(b) does not require the submitted material to be approved or certified by anyone (including Council) before it is complied with, and the provision of the Deed on 18 March 2021 was sufficient to “enable” Council to be satisfied that Condition 1.1(b) has been complied with.
By way of example, Condition 1.1(b) stands in contrast to the deferred commencement condition considered by the Court in Dennes v Port Macquarie*-Hastings* Council [2018] NSWLEC 95 (‘Dennes’), which required the proponent to submit to the council “for approval a Flood Emergency Response Plan” which “must be determined to be satisfactory”, such that Preston CJ of LEC found that the mere submission of the Flood Emergency Response Plan did not satisfy the deferred commencement condition: Dennes at [39]. Neither the requirement to submit to Council for approval a document nor the requirement that the document be determined as satisfactory by Council appears in Condition 1.1(b), which is sufficient to distinguish the condition from that in Dennes.
Condition 1.1(b), as a deferred commencement condition, is unlike other conditions imposed under s 4.17(1) of the EPA Act in that it only relates to a matter or event which must exist before the consent can commence to operate. A deferred commencement condition may require something to be done in order to achieve this position, which is why s 4.16(3) of the EPA Act provides that “Nothing in this Act prevents a person from doing such things as may be necessary to comply with the condition” (such as acquiring a deed to secure access over the neighbouring property). However, once Condition 1.1(b) is satisfied, it is satisfied for all time and discharged. This distinction is reinforced by s 76(2) of the EPA Regulation.
Nothing in the terms of the operational aspects of the Consent required ongoing access to the neighbouring property, and as such, Condition 1.1(b) does not have any enduring effect. Painters has met the requirement in s 4.16(3) of the EPA Act by satisfying the consent authority in accordance with the EPA Regulation (in particular, s 76(4)) as to the matter specified in Condition 1.1(b), being the lodgement of evidence comprising “[w]ritten permission and deed of agreement to enter the site and construct the sewer location...” (recorded at [3] above).
Although it was open to Council to specify that it must determine that the Deed was satisfactory before Condition 1.1(b) is complied with, Council did not do so. Conversely, the wording of Condition 1.1(a) required such “approval/certification” by Sydney Trains (a NSW Government agency within TfNSW). It was also open to Council to specify that both Conditions 1.1(a) and 1.1(b) were required to be complied with at the same time. Council cannot now “revisit history” by relying upon additional requirements to support its construction of Condition 1.1(b) in an attempt to displace its literal meaning when it chose to apply terms that were “flexible” and did not specify a requirement that its approval was required before Condition 1.1(b) was complied with. Similarly, in Sunland Group Limited v Gold Coast City Council (2021) 274 CLR 325; [2021] HCA 35 (‘Sunland’) at [4], [56]-[57], a comparison was made between a specific condition imposing a liability in another development consent using unequivocal language and the failure to do so in the conditions imposed by the consent under consideration in Sunland, which comparison the plurality described as “telling”.
The additional requirement contended for by Council concerning its “satisfaction” of the submitted documentation is based on a misconstruction of Condition 1.1(b), as this is not a “matter specified in the condition” (per s 4.16(3) of the EPA Act).
It is highly improbable that a condition in a deferred commencement consent whose purpose is to specify matters to be done by an applicant in order for the development consent to become operational would be construed to depart from its literal meaning by implying or adding matters not so specified, which would offend two principles of statutory construction: first, that words must be construed in context; and second, that no construction should displace or undermine the statutory scheme: Taylor v The Owners - Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9 (‘Taylor’) at [38]-[39]. That Council may now regret having drafted Condition 1.1(b) without specificity is irrelevant, as the Court has no authority to reconstruct the condition (construed as a statutory provision) in order to “overcome unintended consequences”: Esso Australia Pty Ltd v The Australian Workers*’* Union (2017) 263 CLR 551; [2017] HCA 54 (‘Esso’) at [52].
Council opposes the relief sought by Painters and contends that Condition 1.1(b) was not satisfied. In summary, Council submits:
The relevant principles require consideration of the context of Condition 1.1(b) including the notice of determination dated 11 May 2020, and some of the plans and supporting documentation. These include, first, the approved plans which show a proposed mixed-use building at the Site providing for: three levels of basement; three commercial and retail levels; and sixteen levels of residential apartments; and second, the Statement of Environmental Effects dated 5 June 2018 which describes the relocation of the existing sewer main to accommodate the basement levels of the proposed development and the construction of a new sewer main on the adjoining property (being 333 Mann Street), which involves the “extinguishment” of the existing sewer mains and, as such, the Consent requires the relocation of certain works, including a manhole on 333 Mann Street.
The central concern of Condition 1.1(b) is that the “sewer relocation work” actually takes place given that some of that work is to take place on 333 Mann Street, being land owned by a third party, and this is clear from both the context of the whole of the Consent and the words actually used in Condition 1.1(b) (namely, that Mann St “gain permission to undertake sewer relocation work”). Therefore, Condition 1.1(b) required some legal right be secured as it required a “deed of agreement”, and the relevant time for such right to exist is the time that the works are to be carried out. Given that this was always an uncertain future date, it would need to bind not only the current owner but also the owner from time to time.
As such, Condition 1.1(b) required, first, that evidence in the form of a legally binding deed be produced showing that when the time came for the construction of the sewer-related works on 333 Mann Street, the proponent would have a legal right to do so; and second, that Council be “satisfied” that this had been done.
So understood, the Deed does not satisfy the requirements for four reasons:
(a) First, the Deed is void for uncertainty as it has numerous drafting errors and does not identify with precision (or at all) essential matters such as the land involved, the “Development”, or the “Works”. Mann St’s land is not identified at all, as the only reference to the properties it could own is in Recital B and the reader has no idea what those properties are. Further, there is no reference to the development the subject of the Consent, and the “Works” is defined as “sewerage works” but there is no description as to what this is physically or where it is proposed other than in the most general terms. (b) Second, the Deed is not enforceable in equity as there is no consideration by Mann St and Mr Moses (now on behalf of Painters). It is necessary for Painters to be able to specifically enforce the Deed in equity to satisfy the Consent’s requirements (namely, to build the sewer). While there is no requirement that consideration be adequate and only that it be sufficient in that it have some real value and not be nominal (Ghalayini v Ghalayini [2025] NSWSC 451 at [100]), Recital E refers to “in consideration” for the “undertaking” provided in the Deed which appears to be a reference to the “Undertakings” in cl 4 by Mann St and Mr Moses to indemnify Mann St NSW Pty Ltd in respect of either loss or damage occasioned to 333 Mann Street, or a claim made by a lessee. This does not constitute consideration, but rather conditions on the exercise of the rights granted to Mann St and Mr Moses. (c) Third, there is no grant of rights at all. Clause 3 (the clause that comes closest to this) only identifies the “purpose” of the Deed (being to “set out and formalise the terms upon which the Parties will effect a full and final resolution”) and not how that purpose is to be achieved, nor does it specify any “essential terms” agreed to between the parties. Moreover, the recitals do not state that the Deed is for the purpose of acknowledging the agreement referred to in Recital E, and therefore they are not operative. (d) Fourth, the Deed only purports to bind the (then) current owner of 333 Mann Street (being Mann St NSW Pty Ltd). While third parties can benefit under the Deed, they cannot be bound, which fails to satisfy the requirement that a new owner be bound.
In reply to Council’s submissions, Painters points to a number of facts which it submits provide context for the proper construction of Condition 1.1(b). These include that the approved plans show a new sewer manhole on 333 Mann Street (which effectively relocat**es an existing manhole that was servicing 333 Mann Street) and a new sewer line will be located along the eastern boundary of the Site. As such, there was no “new sewer” to be constructed on 333 Mann Street as suggested in Council’s submissions.
The broader context is that the applicant was to undertake certain sewerage works which were in fact for the benefit of 333 Mann Street as well as the Site. In those circumstances, again all that was needed was permission to carry out the works and there was no need to “bind ... the owner from time to time”, as submitted by Council. All that was required was permission from the neighbour at 333 Mann Street to enter and undertake the necessary works, and to the extent that a third party is concerned, cl 6 of the Deed imposes an obligation on Mann St NSW Pty Ltd (the then owner of 333 Mann Street) to cause third parties (including successors in title) to do such things as to allow the Deed to be carried out.
Painters submits that the Deed is not uncertain, as it is clear as to, first, “the Works” to be undertaken; second, its objects; and third, its parties. It cannot be void for uncertainty when the recitals (in particular, Recital E) and cl 3 (read in light of the recitals) make the purpose of the Deed clear. The fact that the agreement was contained in a recital of a deed does not mean that it is not effective. Moreover, the agreement in Recital E cannot be ignored as the definitions in cl 1 make clear the subject matter of the agreement, particularly the definitions of “The Development” and “The Works”.
In relation to Council’s contention that the Deed does not specify “essential terms”, Painters submits that the Deed clearly provides that Mann St NSW Pty Ltd was bound, and had agreed to permit access to, and interference with, its property.
Contrary to Council’s submission, there is no requirement to identify the neighbouring properties and there is no lack of description of the sewer works.
Further, the fact is the subject document is a deed, and therefore no consideration is necessary for enforcement, and, in any event, the sewer works are plainly of benefit to the parties to the Deed as recorded in Recital E.
In the above circumstances, Condition 1.1(b) has been complied with and Painters is entitled to a declaration of right as there are no discretionary considerations that would militate against Painters being granted the relief it seeks.
The principles applicable to the construction of development consents are well-known and have been considered extensively: Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103; (2013) 195 LGERA 182 at [42]-[48]; The Owners - Strata Plan No. 4983 v Canny [2018] NSWCA 275; (2018) 233 LGERA 432 (‘Canny’) at [59]-[65]; Bunderra Holdings Pty Ltd v Pasminco Cockle Creek Smelter Pty Ltd (subject to Deed of Company Arrangement) (2017) 96 NSWLR 434; [2017] NSWCA 263 at [158]; J.K. Williams Staff Pty Limited v Sydney Water Corporation [2021] NSWLEC 23; (2021) 249 LGERA 109 (‘J.K. Williams’) at [59]-[62]; Perry Herzfeld and Thomas Prince, Interpretation (3rd ed, 2024, Thomson Reuters) at (16.190).
In J.K. Williams, Preston CJ of LEC noted:
“[59] ... [A development consent] speaks ‘according to its written terms, construed in context but having regard to its enduring function’: House of Peace v Bankstown City Council (2000) 48 NSWLR 498; [2000] NSWCA 44 at [37] and see [23]. The meaning of the language used in the consent or approval ‘is to be determined objectively having regard to the context in which the consent was issued and taking into account the fact that, unlike a contract between parties, the consent operates in rem and is for the benefit of subsequent owners and occupiers, as well as the applicant’: K&M Prodanovski Pty Ltd v Wollongong City Council (2013) 195 LGERA 23; [2013] NSWCA 202 at [23].”
In the present circumstances, I remain conscious that any ambiguity or uncertainty in the text of a condition of a development consent should be construed according to the ordinary rules and principles of statutory interpretation (Sunland at [58]), and that there is no principle requiring laxity or flexibility in construing a development consent (including a condition of consent) nor requiring that ambiguity be resolved against the consent authority who granted the consent, nor do practical considerations permit a rewriting to meet what a court may think is a practical outcome: *Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Ltd [2009] NSWCA 160; (2009) 167 LGERA 395 at [99]; J.*K. Williams at [61].
To the extent that Council contends that Painters’ construction of Condition 1.1(b) lacks certainty, I consider that the following observations of Payne JA in Canny at [71] are apposite:
“[71] What must be discerned is the true meaning of the consent as the unilateral act of the Council, not the result of a bilateral transaction between the appellant and the Council. It is for that reason that development consents are required to be framed in clear terms and any relevant conditions specified with certainty. I agree with Else-Mitchell J [in Ryde Municipal Council v Royal Ryde Homes [1970] 1 NSWLR 277; (1970) 19 LGRA 321 at 324] that any lack of clarity or certainty is the responsibility of the Council and it must take the consequences of any failure to specify accurately or in detail what is consented to.”
In light of the above principles and commentary, I find that the requirements of Condition 1.1(b) have been appropriately complied with for the following reasons (which generally accord with Painters’ position summarised at [21], [23]-[28] above), and that Painters is entitled to the primary declaration it seeks.
Leaving aside my view that neither Condition 1.1(b) nor (as will be seen) the Deed itself is an eloquent example of the draftsman’s art, bearing in mind the observations in each of Sunland at [56]-[57]; Canny at [71]; Taylor at [38]-[39]; and Esso at [52] referred to above, it is clear that Condition 1.1(b) calls for the provision of “evidence” sufficient to “enable” Council to be satisfied that a “[w]ritten permission and deed of agreement” to enter the neighbouring land has been obtained from the “owners of ... 333-337 Mann Street.”
Condition 1.1(b) is written in the present tense and was drafted in circumstances where Council had an option to employ language which creates a more specific requirement (as it did in Condition 1.1(a)).
I find that Condition 1.1(b) does not require Council’s discrete determination that the Deed was satisfactory (and I find, as noted below, that the Deed is “satisfactory”) and, as such, there has been sufficient compliance with Condition 1.1(b) by the provision of the Deed on 18 March 2021.
I find that the Deed, despite its ineloquence, sufficiently addresses that which is required by Condition 1.1(b). Although not common drafting practice, the recitals in the Deed read together with the Deed’s operative provisions are, in this case, effective in acknowledging what the parties to the Deed have agreed to do (relevantly, the owner of 333 Mann Street has agreed to allow “The Works” to proceed (and allow access to, and interference with, its property)): Milne v The Municipal Council of Sydney (1912) 14 CLR 54 at 72; [1912] HCA 25; Mueller v Q**ue Capital Pty Ltd (No 2*)* [2016] WASCA 157 at [52]. To the extent that Council submitted otherwise, I consider that it is legitimate to refer to, and rely on, recitals in the interpretation of a document: Franklins Pty Ltd v Metcash Trading Ltd (2009) 76 NSWLR 603; [2009] NSWCA 407 at [379]-[390]. Further, recitals can be at least an admission by a party to a deed of the truth of the matter stated: Lachlan v HP Mercantile Pty Ltd (2015) 89 NSWLR 198; [2015] NSWCA 130 at [53].
Having set out the basis of the agreement between the parties and the ownership of 333 Mann Street in the recitals, the Deed contains definitions which make clear each of “The Development”, the identification of the relevant property (being 333 Mann Street) and, importantly, “The Works”. I find that in addition to the context which I will consider in more detail below, “The Works” is defined as “sewerage works forming part of the Development”. “The Development” means “the property and commercial development envisaged” for “the real properties neighbouring [333 Mann Street]” which does not include 333 Mann Street. Thus, I do not accept the Deed is void for uncertainty given my view of the definitions, the recitals and the operative provisions.
Apart from the above textual construction of Condition 1.1(b) and the Deed, contextually I find that the Consent provided for (the applicant to undertake) certain sewerage works which were (and were stated to be in the definitions in cl 1 of the Deed) on, and of benefit to, the land at 333 Mann Street. As such, I am satisfied that, by reference to the documents necessarily incorporated into the Consent (being the plans to which Council took the Court), the reference to “sewer relocation work” and “the sewer location” falls within the terms of the definition of “The Works” (noted at [39] above).
Seen in this way, what was required was written permission to enter 333 Mann Street and change the location and size of the sewer manhole, that is, to carry out the works on 333 Mann Street. I do not consider that there was any requirement that the permission “bind ... the owner from time to time” as suggested by Council. In any event, as Painters submits (noted at [24] above), cl 6 of the Deed required Mann St NSW Pty Ltd (the then owner of 333 Mann Street) to use all reasonable endeavours to cause a third party (including a new owner or successor in title) to do such things as to carry out the Deed.
Apart from the above, I do not accept Council’s submission that the Deed is void or insufficient because there is no consideration, in circumstances where the subject document is a deed pursuant to which no consideration is necessary for enforcement.
Further, I do not accept Council’s submission that there was no “grant of rights”, in circumstances where, first, Recital E clearly contains the terms of what is agreed and provides a right of access to, and (in the circumstances) interference with, 333 Mann Street; and second, cl 3 identifies the purpose and essential terms of the Deed (including the parties’ obligations in order to allow the Works to proceed).
I accept Painters’ position that the deferred commencement condition in Dennes is clearly distinguishable from Condition 1.1(b), which does not require Council to approve or to determine as satisfactory the material in question (here, the Deed), but rather, requires the submission and provision of evidence to Council that is sufficient to enable Council to be satisfied that Condition 1.1(b) has been complied with. In particular, I consider that the lack of any precise and unequivocal obligation in Condition 1.1(b) for Council to determine the Deed “for approval” or “to be [made] satisfactory” is telling: cf. Sunland at [57].
As such, I reject Council’s contention that Condition 1.1(b) required a state of satisfaction or approval by Council (pursuant to s 4.16(3) of the EPA Act) which was not reached on the present facts. Such an interpretation of Condition 1.1(b) is not available applying the ordinary principles of construction, because nothing in the text, context or purpose of Condition 1.1(b) justifies an equivalent state of satisfaction to that suggested by Council. To the extent that Council submits that the Court cannot cause Condition 1.1(b) to operate because the Consent has lapsed per s 4.53(6) of the EPA Act, I disagree because this reasoning is circular and represents a misunderstanding of the declaratory relief sought by Painters, namely, that Condition 1.1(b) was satisfied on 18 March 2021 (before the lapsing date of the Consent) and that therefore the Consent is operational and has not lapsed.
For completeness, I accept Painter’s submission that nothing in the operational aspects of the Consent required “ongoing” access to the neighbouring property and that, in those circumstances, the matter to be complied with in Condition 1.1(b) was the lodgement of evidence which I have found was complied with.
Moreover, Council’s state of satisfaction is not “a matter specified in [Condition 1.1(b)]” under s 4.16(3) of the EPA Act. While there is little doubt that the central concern in the imposition of Condition 1.1(b) was the ability to undertake the “sewer relocation work” on the neighbouring land, I consider that which was provided to Council satisfies that concern.
Although I initially maintained a concern in relation to s 4.16(3) which provides that a deferred commencement consent is not to operate until the applicant satisf**ies the consent authority as to any matter specified in any condition imposed thereunder, I do not consider that this wording necessarily trumps the wording of Condition 1.1(b) remaining conscious of the comments of Payne JA in Canny at [71] noted above.
For the above reasons, I am satisfied that what was required to achieve compliance with Condition 1.1(b) was undertaken, and that the provision of the Deed to Council (despite my concerns about its form and eloquence) was sufficient (considering the Deed’s purpose and content) to enable Council to be satisfied that written permission and a deed of agreement had been obtained from the owner of 333 Mann Street.
The orders of the Court are:
Declare that deferred commencement Condition 1.1(b) attached to development consent DA/49578/2016 was satisfied on or around 18 March 2021.
Central Coast Council is to pay Painters Lane Developments Pty Ltd’s costs of the proceedings.
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Annexure A (271 KB, pdf)
Painters Lane Developments Pty Ltd
Central Coast Council
(2013) 195 LGERA 182
(2009) 167 LGERA 395
(2017) 96 NSWLR 434
(2017) 263 CLR 551
(2009) 76 NSWLR 603
(2021) 249 LGERA 109
(2015) 89 NSWLR 198
(1912) 14 CLR 54
(2021) 274 CLR 325
(2014) 253 CLR 531
(2018) 233 LGERA 432
(2000) 48 NSWLR 498
(2013) 195 LGERA 23