Pasminco Cockle Creek Smelter Pty Limited (subject to Deed of Company Arrangement) v Lake Macquarie City Council - [2016] NSWLEC 143 - NSWLEC 2016 case summary — Zoe

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Pasminco Cockle Creek Smelter Pty Limited (subject to Deed of Company Arrangement) v Lake Macquarie City Council

[2016] NSWLEC 143

Land and Environment Court (NSW)|2016-12-21|Before: Robson J, Neighbourhood Association DP

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2016-12-21

Before

Robson J, Neighbourhood Association DP

Catchwords

JUDICIAL REVIEW - construction of development consent - whether development consent required construction of culvert and pipe

Source

Original judgment source is linked above.

Catchwords

JUDICIAL REVIEW - construction of development consent - whether development consent required construction of culvert and pipe

Judgment (25 paragraphs)

[1]

Solicitors: Speirs Ryan Pty Ltd (Applicant) Moray & Agnew Lawyers (First Respondent) Bradley Allen Love Lawyers, Canberra (Second Respondent) File Number(s): 2016/00159532

[2]

Judgment

The applicant, Pasminco Cockle Creek Smelter Pty Limited ('Pasminco'), is the owner of a large block of land approximately 163 ha in area located at Boolaroo, approximately 19km from the Newcastle CBD. On 31 October 2014, it completed the sale of approximately 9 ha of land to the second respondent, Bunderra Holdings Pty Limited ('Bunderra'). This land, known as the 'TriPad site', was the subject of development consent DA/442/2014 issued by the first respondent, Lake Macquarie City Council ('Council'), which allowed the subdivision of the TriPad site into 90 lots ('Consent'). The two sites are separated by a road known as Main Road.
Importantly, there are substantial issues with flooding on the TriPad site at least partially as a result of runoff from the land retained by Pasminco. As such, the Consent included conditions that required the planning and construction of stormwater controls. It is claimed by Pasminco that these controls include a drainage pipe with a diameter of 1.2m and culvert under Main Road to assist with the diversion of runoff from its land ('Main Road pipe'). The Main Road pipe has not yet been constructed.

[4]

Development application

On 24 March 2014, Pasminco lodged a development application with Council seeking development consent to subdivide the TriPad site into 90 residential lots and a drainage reserve. This development application was, prior to the Consent being granted, supplemented by the following two interrelated stormwater management strategy reports prepared by GCA Engineering Solutions ('GCA'); 1. a report entitled "Proposed Subdivision, Tripad Site, Boolaroo - Stormwater Management Strategy (Revision 3)" dated 18 August 2014 ('GCA TriPad Strategy'); and 2. a report entitled "Bunderra Subdivision, Main Road Catchment, Main Road, Boolaroo - Stormwater Management Strategy (Revision 2)" dated 18 August 2014 ('GCA Main Road Strategy').
Although there is some contention, the GCA TriPad Strategy and GCA Main Road Strategy (together, 'August GCA Strategies') both proposed that stormwater from the Pasminco land be conveyed to the TriPad site through the Main Road pipe. Given how contentious these documents have proven at hearing, certain parts should be set out at length.
The GCA TriPad Strategy, as noted in Part 1.4 (Study Methodology), "specifically relates to the treatment of the TriPad site only", and should be read in conjunction with the GCA Main Road Strategy. It then goes on in Part 2 (Stormwater Management Strategy) to state that: Existing stormwater flow from the upstream catchment that flows from the eastern side of the Main Road through proposed [diameter of] 1200 [mm reinforced concrete pipe ('RCP')] will be piped within the subdivision and redirected to bypass the proposed bioretention basin and will outlet to the existing culvert under T.C Frith Avenue. A concept horizontal layout is shown in Figure 4…
This is consistent with Part 5 (Summary and Conclusions), which states that the proposed strategy includes a "1200 RCP network for the connection of the future culvert under Main Road". Further, Figure 4, which is attached to the GCA TriPad Strategy and shows the drainage plans for the TriPad site, clearly shows a pipe running under Main Road with the notation "1200 RCP OUTLET (UNDER FUTURE DEVELOPMENT APPLICATION)".
The GCA Main Road Strategy, which relates to how Main Road interacts with both the Pasminco land and the TriPad site, includes in Part 1.1 (Background) the objective to "size a culvert under Main Road". In particular, it includes in Part 3 (Scope of Work) the following: 3. To determine stormwater detention controls within the site and size the culvert required under Main Road to minimise the impact of the downstream drainage structures required to convey flow to the existing…Reinforced Concrete Box Culvert located under TC Frith Avenue.
The GCA Main Road Strategy goes on to make the following comments about the culvert under Main Road in Parts 2.2, 3.2 and 4: 2.2 Culvert Hydraulic Design The proposed culvert under Main Road will be an extension to the outlet pipe from the proposed basin…located on the high side of Main Road [i.e. the Pasminco land], and will be designed in detail at the Development Application phase when the future land above Main Road is subdivided. Refer to Figure 4. … 3.2 Culvert Design With the proposed basin immediately upstream of the culvert location the culvert will be an extension of the outlet pipe from the basin. This pipe will be designed at the Construction Certificate phase of the basin above Main Road. 4. SUMMARY AND CONCLUSIONS The new stormwater strategy includes: … Limiting the proposed culvert under Main Road to a [diameter] 1200 RCP which relates well to the current Tripad Development Application and [GCA TriPad Strategy]. The final positioning and sizing of the basins and outlet structures will be undertaken at the Development Application phase for the land above Main Road.
It is noted that the Figure 4 in the GCA Main Road Strategy is a different Figure 4 to that in the GCA TriPad Strategy, and shows instead the proposed detention basins on the Pasminco land. However, it also contains the Main Road pipe in approximately the same place as that in the other Figure 4, which it describes as "1200 RCP UNDER MAIN ROAD TO CONNECT TO DOWNSTREAM DRAINAGE NETWORK".

[6]

Granting of the Consent

The Consent was granted on 2 September 2014 pursuant to the Environmental Planning and Assessment Act 1979 (NSW) ('EPA Act'). The Consent provided for the subdivision of the TriPad site into 90 residential lots and a drainage reserve subject to conditions. It is noted that this did not include Lot 2, which was (and is) owned by Council and used as a drainage reserve.
For present purposes, there are four provisions of relevance.
The first of these is Condition 1, which relevantly states: 1. Compliance with Conditions The approval comprises the application, the plans, and the documents set out in the paragraph below and the conditions of consent. The proposed development may only proceed in accordance with these documents. The development shall be carried out in accordance with the conditions of consent and the following documents (as may be varied by the conditions of consent):- … C. [the GCA TriPad Strategy] D. [the GCA Main Road Strategy]…
The second relevant provision is Condition 16. This is the most important condition for present purposes, and should be recited in full. It states: 16. Stormwater Detention / Overland Flows Council has relied on the information provided in the Stormwater Management Strategies by GCA in formulating this condition. The Applicant shall show by plans and calculations that the flows from the catchment above Main Road are able to the [sic] safely conveyed past Main Road and through the [TriPad site] and under TC Frith Avenue. It shall be shown that the development runoff from within the Main Road and TriPad Sites does not exceed the capacity of any existing or proposed culverts under Main Road and TC Frith Avenue. Any required stormwater detention structures shall be constructed with the civil works for the TriPad site. A covenant shall be placed over any required stormwater detention facilities that are on the main Pasminco [land] that are relied upon to "protect" the drainage downstream. The covenant shall be to the effect that the approved detention volumes and outflow rates from the facilities are to be maintained until such time as an approved replacement facility is operational. Plans and calculations for such stormwater controls shall be submitted prior to the issue of a Construction Certificate and the works shall be completed as part of the initial construction work in the first stage of the development.
The third provision, Condition 20, is of less importance than the other three for present purposes, but in any event relevantly states: 20. Stormwater Standards The Applicant shall arrange for the design and construction of stormwater drainage works in accordance with the requirements of the publications and standards in this consent. No works shall commence on site prior to the issue of a Construction Certificate and all works shall be completed prior to the issue of a Subdivision Certificate.
The fourth and final provision, Condition 41, relates to the issuing of a subdivision certificate, and relevantly states: 41. Final Plan Submission The Applicant shall submit an application for a Subdivision Certificate… When all conditions of the Development Consent relating to this subdivision have been satisfactorily complied with the Subdivision Certificate will be issued.

[7]

Further GCA strategy

On 30 September 2014, GCA produced Revision 3 of the GCA Main Road Strategy ('September GCA Strategy'). The September GCA Strategy was provided to Council in early October 2014.
The September GCA Strategy includes a number of amendments. In particular, it has the added objective in Part 1.1 (Background) to "provide detail design plans and levels of the proposed basins to satisfy Condition 16 of the [Consent]", and quotes the same as being part of its scope of works in Part 1.3 (Scope of Works). Further, it includes an amended Part 3.2 (Culvert Design) which states the following: 3.2 Culvert Design With the proposed basin immediately upstream of the culvert location the culvert will be an extension of the outlet pipe from the basin. The design is shown on Figure 9 & 10. The culvert has been designed as part of Condition 16 of the [Consent] and should be constructed to the boundary of Lot 1002 as part of the TriPad works. The extension of the pipe within Lot 1002 and the basin construction shall be constructed upon future approvals of the land above Main Road.
Figures 9 and Figure 10, which are attached to the September GCA Strategy, again clearly show the Main Road pipe, which they both describe as "1200 RCP TO BE CONSTRUCTED TO BOUNDARY OF LOT 1002 AS PART OF THE TRIPAD WORKS". Figure 9 also shows Lot 1002 as being immediately to the west of Main Road on the Pasminco land. A further Figure 4, which is again of a different nature to that contained in the August GCA Strategies, also shows the Main Road pipe, which it describes as "1200 RCP UNDER MAIN ROAD TO CONNECT TO DOWNSTREAM DRAINAGE NETWORK".
On 13 October 2014, Council sent a letter which stated it had undertaken a preliminary assessment of the September GCA Strategy to determine whether it satisfied the relevant aspects of Condition 16. The letter continued: Council is satisfied with the approach and concepts of the strategy and is generally satisfied with the design of the proposed stormwater structures (these structures would need further refinement in the future and would be subject to detailed design).
The letter also provided the precise wording it recommended for the covenant proposed under Condition 16. Whilst there is a signed covenant between Pasminco and Council in evidence that contains substantially the same words as those proposed in the letter, it is undated and has not been registered.

[8]

Subdivision of TriPad site

On 31 October 2014, the TriPad site was transferred to Bunderra, who became the registered proprietor of the land.
On 1 June 2015, Council (who was the principal certifying authority, as well as the consent authority) issued Construction Certificate SCC/11/2015 that allowed Bunderra to commence works on the "Road & Drainage Works For 90 Lot Residential Subdivision & Drainage Reserve".
On 26 August 2015, on the application of Bunderra, the Consent was modified by Council pursuant to s 96 of the EPA Act. The purpose of this modification was to allow the subdivision of the TriPad site to occur in two stages, namely: 1. Stage 1, which involved subdividing part of the TriPad site to create 69 residential lots, 2 drainage reserves and 1 residue lot; and 2. Stage 2, which involved subdividing the remaining part of the TriPad site to create 21 residential lots and conducting some road widening.
Aside from renumbering within Condition 1 (and making reference to further reports that are not relevant for present purposes), adding the phrase "for that respective stage" in Condition 20 and replacing the phrase "this subdivision" with "the subdivision stage" in Condition 41, this modification had no impact on the relevant conditions extracted above.
Since this modification, Council issued a further three construction certificates, being: 1. Construction Certificate SCC/22/2015 for "Civil Works In Main Road For 90 Lot Residential Subdivision & Drainage Reserve"; 2. Construction Certificate SCC/11/2015/A, which modified SCC/11/2015 "To Reduce To 70 Lots"; and 3. Construction Certificate SCC/22/2015/A, which modified SCC/22/2015 to make "amendment To Drainage And Bus Stop".
On 17 May 2016, Bunderra wrote to the Council seeking a subdivision certificate for the Stage 1 works. To date, no subdivision certificate has been issued. However, on 16 June 2016, Council issued a certificate of practical completion with regard to Stage 1 of the subdivision works on the TriPad site. Whilst the certificate did not make reference to it in the part entitled "outstanding works", it is common ground that the proposed Main Road pipe has not been constructed.

[10]

Pasminco's submissions

Pasminco's primary position was that Condition 16 required three things.
First, Pasminco submitted that Condition 16 required that the information demonstrating the following be submitted to Council: 1. that the flows from the Pasminco land can be safely conveyed past Main Road, through the TriPad site and under TC Frith Avenue; and 2. that the "development runoff", which was submitted to mean the runoff from the Pasminco land once it was developed, does not exceed the capacity of any "existing or proposed culverts" under Main Road and TC Frith Avenue.
Pasminco noted that the only "proposed culvert" was the Main Road pipe, and submitted that this information had to be provided before a construction certificate was issued.
Second, Pasminco submitted that Condition 16 then required that the following works be undertaken: 1. any required stormwater detention structures shall be constructed with the civil works on the TriPad site; and 2. stormwater control works, as submitted to Council under the first requirement, shall be completed as "part of the initial construction work in the first stage of the development".
It was submitted that the Main Road pipe conformed with the first limb of this requirement, as it formed a necessary part of the stormwater detention structures and would be used to convey stormwater to the drainage reserve on Lot 2.
It was also submitted that the Main Road pipe should be constructed under the second limb in any event. It was submitted that the August GCA Strategies demonstrated that, with regard to the first requirement, the flows from the Pasminco land could not be safely conveyed using existing infrastructure. As such, it was submitted that the Main Road pipe formed part of the stormwater control works which were required to ensure that runoff did not exceed capacity. It was also noted that the reference to the phrase "first stage" was included before the modification of the Consent, and so did not actually refer to the technical first stage under the modified Consent.
Third, Pasminco submitted that Condition 16 required that a positive covenant be imposed on the Pasminco land to cap flows from the site until detention facilities were constructed on the Pasminco land. It was submitted that this would be registered once the Main Road pipe was constructed.
Put together, it was submitted that Bunderra, who was the owner of the land subject to the Consent, was required to construct the Main Road pipe both to ensure that stormwater flows from the Pasminco land are able to be safely conveyed through the TriPad site and to ensure that drainage works are carried out in accordance with the August GCA Strategies. These works, it was submitted, should have been conducted as part of the initial works on the TriPad site, but at least before the completion of the civil works the subject of the Consent. It submitted that a subdivision certificate cannot be issued under Conditions 20 and 41 until this occurs.
It is noted that Pasminco also relied upon the below submission of Council as an alternate construction of Condition 16.

[13]

Condition 16

First, it was submitted that there is no obligation contained in the Consent that requires the Main Road pipe to be constructed.
Bunderra submitted that the August GCA Strategies were expressly incorporated into the Consent pursuant to Condition 1. It submitted that the GCA TriPad Strategy proposed a stormwater system was designed only to integrate with the Main Road pipe, which was to be constructed at some point in the future. It was submitted this was consistent with the language of the document, which referred to "the future culvert under Main Road". This, it submitted, was complementary to the language in the GCA Main Road Strategy, which refers to the "proposed culvert under Main Road" that was to be designed when the Pasminco land is subdivided.
Bunderra went on to submit that whilst the August GCA Strategies could plausibly be varied by the terms of the Consent pursuant to Condition 1, this had not occurred because Condition 16 made no such variation. In particular, it was submitted that this was the case because Condition 16 states that "Council has relied upon the information provided in the stormwater management strategies by GCA in formulating this condition". It therefore submitted that, in the absence of a clear divergence from the terms of the August GCA Strategies, Condition 16 places no obligation on it to construct the Main Road pipe.
This, it was submitted, was consistent with the fact that the Main Road pipe would serve no purpose until stormwater detention facilities were constructed on the Pasminco land pursuant to a consent that was not yet in force.
With regard to the September GCA Strategy and the letter from Council dated 13 October 2014, Bunderra submitted that neither could be relied upon by Council or Pasminco because: 1. neither document is expressly included in Condition 1, despite the fact that Condition 1 was amended to include other documents in August 2015; 2. the requirement to construct the Main Road pipe would "fundamentally change" the obligations on Bunderra under Condition 16, as it would place an obligation on it that was previously placed on Pasminco, and would amount to a modification that was beyond Council's power; and 3. regardless, the September GCA Strategy, like the GCA Main Road Strategy, did not relate to works to be done on the TriPad site, but rather supplemented the GCA TriPad Strategy, which contained the obligations on Bunderra to undertake stormwater works on the TriPad site.
Bunderra therefore submitted that Condition 16, properly construed, required that (a) detention structures (excluding the Main Road pipe) be constructed on the TriPad site, (b) a covenant be entered into by Pasminco to take steps to prevent further stormwater from entering the TriPad site from the Pasminco land, and (c) that plans and calculations regarding the adequacy of the detention structures (this time including the Main Road pipes) be submitted to Council prior to the issuing of a construction certificate. It was submitted that the construction of the Main Road pipe did not form part of Condition 16, and would be the subject of a future development application.

[18]

Legal principles

The relevant principles relating to the construction of development consents are well settled. They were carefully summarised by Biscoe J in Lake Macquarie City Council v Australian Native Landscapes Pty Ltd (No 2) [2015] NSWLEC 114 at [39]-[48] ('ANL') which I repeat: [39] "The nature and extent of the approved development must be determined by construing the document of approval, including any plans or other documents which it incorporates, aided only by that evidence admissible in relation to construction which establishes, or helps to establish, the true meaning of the document as the unilateral act of the relevant authority, not the result of a bilateral transaction between the applicant and the council. Thus evidence of the nature of the site would always be admissible for this purpose, as would be, in appropriate cases, evidence as to the meaning of the marks on plans, or indeed, the meaning of the absence of particular marks": Parramatta City Council v Shell Co of Australia Ltd [1972] 2 NSWLR 632 at 637 (Hope JA). [40] A development consent is to be construed according to its terms, having regard to its enduring nature. A development consent has an enduring nature because it is not personal to the applicant but is a public document operating in rem for the benefit of third parties such as subsequent owners, occupiers and security holders, and in some respects is equivalent to a document of title: House of Peace Pty Ltd v Bankstown City Council [2000] NSWCA 44, 48 NSWLR 498 at [23]; Winn v Director-General of National Parks and Wildlife [2001] NSWCA 17, 130 LGERA 508 at [4]: Ryde Municipal Council v Royal Ryde Homes [1970] 1 NSWR 277 19 LGRA 321 at 324 (Else-Mitchell J). The enduring nature of a development consent encourages a fair but liberal reading of the rights it confers upon a landowner who may spend considerable money acting upon it who and is likely to wish to sell the land sooner or later: House of Peace at [41]. [41] A development consent is to be construed not as a document drafted with legal expertise, but to achieve practical results: Westfield Management Limited v Perpetual Trustee Company Limited [2006] NSWCA 245 at [36]; Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Ltd [2009] NSWCA 160, 167 LGERA 395 at [96]-[99] and [105]. [42] Any lack of clarity or certainty in a council development consent is the responsibility of the council and it must take the consequences: Royal Ryde Homes at 324. [43] As a development consent is a document in rem, communications between the parties do not form part of the matrix relevant to construction: Westfield Management at [41]. [44] As a general rule, a development consent, being a public document operating in rem for the benefit of third parties, should be construed without reference to extrinsic evidence other than to identify a thing or place referred to in it. That extrinsic evidence is not led to vary the consent but to identify a thing or place referred to in it. Evidence as to the nature or physical features of the land may also be admissible for that purpose, at least those features observable by a third party at the time of the consent: Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103, 195 LGERA 182 at [44]; Shell Co of Australia at 637. … [46] Plans and other documents may be incorporated in a development consent expressly or by necessary implication: Allandale at [24], [43]-[48], [153]-[163]. A document attached to a development consent or referred to in it for the purpose of identifying or describing something dealt with in the consent, will for that reason be expressly incorporated in the consent: Allandale at [45]. The mere approval of a development application does not necessarily have the effect of incorporating everything stated in the application, such as assertions of intention: Royal Ryde Homes… [47] The ordinary rules of construction and principles of interpretation apply to a development consent as with any other statutory instrument: Ko-veda at [97]-[99]. Like all legal documents, a development consent must be read as a whole. The effect of doing so may be to depart from the material and ordinary meaning of the words of one provision, where it is necessary to do so to avoid absurdity or inconsistency with the rest of the instrument: [Tempe Recreation (D.500215 and D.1000502) Reserve Trust v Sydney Water Corporation [2014] NSWCA 437] at [53]-[54]. [48] A development consent that requires development to proceed "generally in accordance with" approved plans, allows for some latitude and deviation from the approved plans of a relatively minor nature: Oshlack v Irongates Pty Ltd (1997) 130 LGERA 189 at 196-197 per Stein J; Wingecarribee Council v CSR Limited [1993] NSWLEC 184 per Stein J; Katoomba Gospel Trust v Blue Mountains City Council [1994] NSWLEC 107 per Talbot J; Grace Bros Pty Ltd v Willoughby Municipal Council (1980) 44 LGRA 400 at 406 per Wootten J (SC/NSW); Maybury v Weston Aluminium (Producers) Pty Limited [1998] NSWLEC 17 per Talbot J. However, the question whether development is "generally in accordance" with approved plans is one of fact and degree in the context of the overall development: Oshlack at 196; Wingecarribee.
Further, the relevant principles which apply to construction certificates pursuant to s 80(12) of the EPA Act were outlined by Sackville AJA (with McColl and Barrett JJA agreeing) in Burwood Council v Ralan Burwood Pty Ltd (No 3) (2014) 206 LGERA 40; [2014] NSWCA 404 ('Ralan'), and are as follows: [201] …it is necessary to consider s 80(12). It provides relevantly that if an accredited certifier issues a construction certificate, the certificate and any plans and specifications issued with respect to that certificate are taken to form part of the relevant development consent, other than for the purposes of s 96. [202] In this case, an accredited certifier issued the CCs. They are valid, at least until set aside. The plain words of s 80(12) have the effect of deeming the plans and specifications issued by the accredited certifier with respect to the construction certificate to be part of the DA. To the extent that there is an inconsistency between those plans and specifications and the plans and specifications approved in the DA, the former must prevail… [203] Neither party made any point of the concluding words of s 80(12) "(other than for the purposes of section 96)". The words do not, in any event, detract from this construction of s 80(12). Section 96 of the EPA Act permits a consent authority to modify a consent. The evident purpose of the quoted words is to ensure that on an application under s 96, a subsisting construction certificate does not prevent the consent authority exercising its powers.

[19]

Pasminco's construction of Condition 16

For the reasons below, I find that Bunderra is required to construct the Main Road pipe pursuant to Condition 16, and that a subdivision certificate cannot be issued by Council pursuant to Condition 41 until this is completed.
Condition 16 is not a provision drafted with legal expertise. It contains a number of typographical errors and, on one view, failed to explicitly define phrases such as "proposed culverts", "stormwater detention structures", "stormwater detention facilities" and "stormwater controls". However, the task before the Court is not to construe Condition 16 as if it were drafted with legal expertise, but rather to construe it as a provision drafted to achieve practical results.
I accept Pasminco's submission that Condition 16 requires that further information be provided comprising "plans and calculations that the flows from [the Pasminco land] are able to be safely conveyed" through the TriPad site. However, I consider that the 'second' request for information is not a separate request, but is rather subsumed into the first request. As such, I consider that the same "plans and calculations" must also show that the runoff from the Pasminco land "does not exceed the capacity of existing or proposed culverts under Main Road". This is consistent with the slight difference at the beginning of both sentences in the second paragraph of Condition 16, insofar as the primary request begins "The Applicant shall show", whilst the secondary request used the phrase "It shall be shown", implying that the primary request will show the information required in the secondary request.
I also consider that this information is required to be provided to Council. The verbs used in the primary and secondary requests are "show" and "shown". In order to allow this aspect of Condition 16 to achieve practical results, and given that the Consent was granted by Council, it is clear that this information should be provided to Council.
It is clear from the August GCA Strategies, which are referred to in Conditions 1 and 16 and expressly form part of the Consent, that the existing pipes and culverts under Main Road will be insufficient, and that the Main Road pipe will need to be constructed. However, as submitted by Bunderra, the August GCA Strategies also clearly presume that the Main Road pipe will be part of a future development application. This conclusion is not necessarily implied by the use of the words "future" and "proposed" to describe the Main Road pipe, particularly given that the word "proposed" is also used to describe the lots to be created as a result of the TriPad site subdivision. However, it is made clear by the notation on Figure 4 of the GCA TriPad Strategy which describes the Main Road pipe as being "under future development application".
However, it does not follow that this conclusion carries any significant weight. Condition 1 clearly states that the August GCA Strategies, like all other expressly incorporated documents, may be varied by terms of the Consent. I consider that Condition 16 has varied the August GCA Strategies in a number of important ways, as outlined below. I do not accept Bunderra's submission that the existence of the first paragraph of Condition 16 means that the August GCA Strategies were not varied. It is entirely plausible (and I find it to be the case) that Council is able to rely on "information provided in the [August GCA Strategies] in formulating [Condition 16]" without being entirely bound to it.
The question therefore turns to whether Condition 16 did vary the August GCA Strategies insofar as it required the Main Road pipe to be constructed as part of the TriPad subdivision works.
Condition 16 provides two obligations on the owner of the land, being Bunderra, to undertake works. The first of these is the obligation to construct "any required stormwater detention structures…with the civil works for the TriPad site". The second is an obligation to undertake "works" relating to the "plans and calculations for… stormwater controls…as part of the initial construction work in the first stage of the development".
With regard to the first obligation, and as noted above, it is clear that the August GCA Strategies considered it necessary for the Main Road pipe to be constructed, but noted that this should occur at a later point under another development application. This is different to the wording of Condition 16, which requires that "any required stormwater detention structures" be constructed alongside the other works being undertaken pursuant to the Consent. This phrase, importantly, is qualified by the immediately preceding paragraph, which implies that the necessary structures include those which ensure that the capacity of the "existing and proposed culverts under Main Road" is sufficient to transport the stormwater runoff.
It is clear that the Main Road pipe is a required part of the stormwater detention structures. Its primary purpose is to transport stormwater collected on the Pasminco land and carry it to the 1.2m pipe network that forms part of the proposed civil works on the TriPad site, which in turn transports the water to the Council drainage reserve. Without it, that network would serve little purpose. It is also clear that the Main Road pipe is a proposed culvert under Main Road, which allows it to be distinguished from other works proposed in accordance with the August GCA Strategies, such as the stormwater detention basins on the Pasminco land.
With regard to the second obligation, I accept Pasminco's submission that the August GCA Strategies demonstrate that the stormwater from the Pasminco land cannot be conveyed across the TriPad site without the Main Road pipe. This obligation, which relates specifically to the "plans and calculations" in the second paragraph of Condition 16, again requires that works be undertaken to ensure that there is sufficient capacity to convey water under Main Road. This purpose is again served by the Main Road pipe.
Given this, whilst the August GCA Strategies were inconclusive on the point of who should construct the Main Road pipe, I consider that these two requirements to conduct works under Condition 16 have, in effect and read in the context of the Consent as a whole, varied what was required under those documents in accordance with Condition 1.
The final question on this point therefore relates to when these works should be undertaken. The August GCA Strategies state that the works should be designed during the construction certificate stage of the stormwater detention structures on the Pasminco land and be the subject of a "future development consent". However, this is inconsistent with the clear terms of Condition 16, which states that the works are to be conducted at least "with civil works on the TriPad site", if not some point earlier during the "initial construction work". In any event, it is clear that the Main Road pipe should be completed at some point before the other Consent works are completed. This interpretation is consistent with Condition 20, which requires that a subdivision certificate not be issued for Stage 1 unless the "construction of stormwater drainage works" is completed.
As such, I find that Bunderra is required to construct the Main Road pipe prior to the issuing of a subdivision certificate pursuant to Condition 16 and the August GCA Strategies.
This is, in itself, sufficient to entitle Pasminco to the relief sought. However, to the extent that I am incorrect, I consider it appropriate to provide alternate findings on Council's construction of Condition 16.

[20]

Council's construction of Condition 16

Irrespective of my finding in favour of Pasminco in relation to its primary argument regarding the proper construction of Condition 16, I also consider that the secondary argument, originally raised by Council and adopted by Pasminco, leads to a similar conclusion for the reasons below.
As a preliminary matter, to the extent that it was faintly suggested by Bunderra that Condition 16 is invalid because it lacks certainty and finality insofar as it requires further information, pursuant to Mison v Randwick Municipal Council (1991) 23 NSWLR 734 at [738] (Priestley JA), this perspective has been at least qualified since the introduction of s 80A(4) of the EPA Act: Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277; [2006] NSWCA 23 at [40] (Basten JA, with Handley JA and Hunt AJA agreeing).
I accept that Condition 16, properly construed, constitutes a condition expressed in terms of outcomes or objectives pursuant to s 80A(4) of the EPA Act. It specifies that a clear outcome of the development is to ensure that stormwater from the Pasminco land can be safely conveyed through the TriPad site. Further, it clearly specifies that this can be assessed against the criterion of whether this stormwater flow will exceed the capacity of the existing or proposed culverts under Main Road. The corollary of this is, if the projections do exceed the existing culverts, or the existing and proposed culverts, further culverts will need to be constructed to ensure that the overall outcome of allowing the safe conveyance of stormwater is achieved.
As such, I find that Condition 16 as construed above is a valid condition pursuant to s 80A(4) of the EPA Act.
It was then submitted by Council (and, consequently, Pasminco) that this construction of Condition 16 meant that the September GCA Strategy should, in effect, be incorporated as part of the Consent, either expressly or by way of necessary implication.
As stated by Meagher JA in Allandale Blue Metal Pty Ltd v Roads and Maritime Services (2013) 195 LGERA 182; [2013] NSWCA 103 ('Allandale') at [43]: The extrinsic evidence to which reference legitimately may be made when construing a public document, such as a development consent, is more limited. Reference may be made to documents other than the consent itself if those documents, or parts of them, are incorporated into the consent expressly or by necessary implication…
The September GCA Strategy is not expressly included in its list of documents in Condition 1, despite the fact that the Consent was modified after the document was provided to Council. As such, it may only form part of the Consent through necessary implication.
As noted above, it is clear from the August GCA Strategies that the existing culverts were insufficient, and that the Main Road pipe would be required to ensure that stormwater was able to be conveyed across the TriPad site. However, neither of the August GCA Strategies made provision for the actual construction of the Main Road pipe, but rather relegated it to be dealt with at some point in the future. As such, there were no specific plans in either of the August GCA Strategies which provided key information, such as levels and the connection point on the Pasminco land.
The September GCA Strategy was clearly produced in response to the direction for further plans and calculations contained in Condition 16. This is particularly true, given its references to Condition 16 in Parts 1.1 (Background), 1.3 (Scope of Work) and 3.2 (Culvert Design), and its proposal that the Main Road pipe would be constructed as part of the TriPad site works. It also gave a number of further specifics regarding the design of the Main Road pipe in Figures 9 and 10, including both where it would connect with the Pasminco land and the underground levels at which it would be constructed.
I recognise that authorities which have incorporated a document by way of necessary implication have generally only done so with regard to documents which were available at some stage before consent was granted, and usually as part of a development application: See for example Allandale at [46]-[49] (Meagher JA); ANL at [46] (Biscoe J); Neighbourhood Association DP 285249 v Watson (2008) 162 LGERA 322; [2008] NSWSC 876 at [388] (Biscoe J); Alcoa Australia Rolled Products Pty Ltd v Weston Aluminium Pty Ltd (2006) 148 LGERA 439; [2006] NSWCA 273 at [36]-[42]; Winn v Director-General of National Parks & Wildlife (2001) 130 LGERA 508; [2001] NSWCA 17 at [200] (Stein JA); Sydney Serviced Apartments Pty Ltd v North Sydney Municipal Council (No 2) (1993) 78 LGERA 404 at [407]-[408] (Handley JA, with Cripps and Clarke JJA agreeing); Auburn Municipal Council v Szabo (1971) 67 LGRA 427 at [433]-[434] (Hope J); Ryde Municipal Council v The Royal Ryde Homes (1970) 19 LGRA 321 at [323] (Else-Mitchell J).
Despite this, I also note that no binding authority has explicitly addressed the question of what might be a form of necessary implication in light of s 80A(4) of the EPA Act. Section 80A(4) of the EPA Act permits and requires, by its nature, an applicant to obtain further information to assess whether an outcome can be achieved after consent has been granted. It would not be possible to give s 80A(4) practical effect if it were not possible to incorporate this assessment, and the precise works that the assessment requires, into the consent. As such, some degree of retrospective incorporation should be permissible to allow a document to form part of a consent through necessary implication. Further, whilst this may ultimately be achieved by the issuing of a construction certificate, such an assessment should be undertaken before the construction certificate stage of the development process so that it can be understood in the context of the other obligations contained in the consent.
I therefore accept the submissions of Council and Pasminco on this point, and find that the September GCA Strategy should be incorporated by way of necessary implication for four reasons: 1. it is a revision of the GCA Main Road Strategy (which is expressly incorporated into the Consent through Condition 1) that seeks to rectify various insufficiencies contained in the earlier version; 2. this finding is necessary to allow s 80A(4) of the EPA Act, as it applies to Condition 16, to have practical effect; 3. it was produced specifically to respond to the obligations contained in Condition 16; and 4. it provides necessary details about where the Main Road pipe should be constructed.
The corollary of incorporating the September GCA Strategy into the Consent is that it provides certainty regarding Bunderra's obligation to construct the Main Road pipe as part of the TriPad works, rather than that duty falling upon Pasminco.
Given the above findings, it is not necessary for me to consider whether Council's letter dated 13 October 2014 should also be incorporated, although I do note that it is consistent with my findings above.
To the extent that it is relevant, it was submitted by Bunderra that the requirement to construct the Main Road pipe would "fundamentally change" the terms of the Consent, as it would transfer the obligation (on Bunderra's construction) to construct the Main Road pipe from Pasminco to Bunderra. However, I do not consider this to be the case. Development consents attach to the land, not the entity or person that owns the land from time to time, and travel in rem: Westfield Management Limited v Perpetual Trustee Company Limited [2006] NSWCA 245 at [41] (Hodgson JA, with Tobias and Basten JJA agreeing on this point). The requirement to construct the Main Road pipe, as the "proposed culvert" under Main Road that would allow stormwater to be safely conveyed across the TriPad site, existed as part of the Consent at the time it was initially granted. The requirement is therefore attached to the TriPad site, and is the responsibility of whomever seeks to act on the Consent. Whilst this requirement may be different from what was contained in the August GCA Strategies, this is of little consequence as it is not a change from the terms of the Consent.
Further, it was submitted by Bunderra that it should not be required to undertake the Main Road pipe works, as they did not occur on its land. This submission is in stark contrast to the approved plans under Construction Certificate SCC/22/2015/A which show that the boundary of works was on the eastern side of Main Road, and that Bunderra was required to complete at least some works on and under Main Road.
As such, and in the alternative to my findings in paragraph 77 above, I find that Bunderra is required to construct the Main Road pipe prior to the issuing of a subdivision certificate pursuant to Condition 16, s 80A(4) of the EPA Act and the September GCA Strategies.

[23]

Orders

In the light of my findings, the applicant is entitled to relief generally in accordance with that sought in the amended summons filed 25 July 2016.
Unless otherwise notified by the parties on or before 25 November 2016, the orders of the Court are as follows: 1. The Court declares that on the proper construction of development consent DA/442/2014/A initially approved by Lake Macquarie City Council on 2 September 2014 and modified on 26 August 2015 ('TriPad Consent') the Council (or other Principal Certifying Authority) may not issue a subdivision certificate in relation to the subdivision of Lot 2 DP 1183441 ('TriPad site') until all conditions of the TriPad Consent relating to the subdivision have been satisfactorily complied with, including Condition 16 of the TriPad Consent. 2. The Court declares that on the proper construction of the TriPad Consent, Conditions 1, 16 and 41 impose requirements (which must be established to the satisfaction of the Council before the Council (or other Principal Certifying Authority) may issue a subdivision certificate) that the second respondent: 1. carry out stormwater drainage works (including the installation of a 1.2m drain pipe and culvert depicted on Figure 4 of the document entitled "Bunderra Subdivision, Main Road Catchment, Main Road, Boolaroo - Stormwater Management Strategy (Revision 2)" prepared by GCA Engineering Solutions dated 18 August 2014 and Figure 4 of the document entitled "Bunderra Subdivision, Main Road Catchment, Main Road, Boolaroo - Stormwater Management Strategy (Revision 3)" prepared by GCA Engineering Solutions dated 30 September 2014); 2. carry out stormwater drainage works (including the 1.2m drainage pipe and culvert referred to in (1) above) to ensure that flows from the catchment above Main Road are able to be safely conveyed past Main Road and through the TriPad site and under TC Frith Avenue; 3. construct such stormwater drainage and storage works with the civil works for the TriPad site; and 4. complete such works as part of the initial construction work in the first stage of the development. 1. The Council (or other Principal Certifying Authority) is restrained from issuing a subdivision certificate in relation to the subdivision of Lot 2 DP 1183441 until it is satisfied of each of the matters set out in paragraph 2 above. 2. Second respondent is to pay the costs of the applicant and the first respondent.

[24]

Addendum made on 21 December 2016

In accordance with the terms of paragraph 101 above, the parties notified the Court by 25 November 2016 that they each sought amendments to the orders. Given that the parties were unable to agree on these amendments, I heard submissions on the point of final orders on 21 December 2016.
I am satisfied that certain amendments should be made to the final orders, and order as follows: 1. The Court declares that on the proper construction of development consent DA/442/2014/A initially approved by Lake Macquarie City Council on 2 September 2014 and modified on 26 August 2015 ('TriPad Consent'), the Council (or other Principal Certifying Authority) may not issue a subdivision certificate in relation to the subdivision of Lot 1 DP 1183441 ('TriPad site') until all conditions of the TriPad Consent relating to the subdivision have been satisfactorily complied with, including Condition 16 of the TriPad Consent. 2. The Court declares that on the proper construction of the TriPad Consent, Conditions 1, 16 and 41 impose requirements (which must be established to the satisfaction of the Council before it (or another Principal Certifying Authority) may issue a subdivision certificate) that the second respondent (or any other person acting on the Tripad Consent): 1. carry out stormwater drainage works (including the installation of a 1.2m drainage pipe and culvert to be constructed to the boundary of Lot 1002 as depicted on Figures 4 and 9 of the document entitled "Bunderra Subdivision, Main Road Catchment, Main Road, Boolaroo - Stormwater Management Strategy (Revision 3)" prepared by GCA Engineering Solutions dated 30 September 2014); 2. carry out stormwater drainage works (including the 1.2m drainage pipe and culvert referred to in paragraph (2)(a) above) to ensure that flows from the catchment above Main Road are able to be safely conveyed past Main Road and through the TriPad site and under TC Frith Avenue; 3. construct such stormwater drainage and stormwater detention works with the civil works for the TriPad site; and 4. complete such works as part of the initial construction work in the first stage of the development. 1. The Council (or other Principal Certifying Authority) is restrained from issuing a subdivision certificate in relation to the subdivision of Lot 1 DP 1183441 until it is satisfied of each of the matters set out in paragraph (2) above. 2. Second respondent is to pay the costs of the applicant and the first respondent.

Pasminco Cockle Creek Smelter Pty Limited (subject to Deed of Company Arrangement) v Lake Macquarie City Council

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