Earlier Australian cases
65Biscoe J commenced his summary in Watson with Szabo , but some earlier Australian cases are worthy of mention as well. (It should also be noted that Szabo was decided in 1971, but not reported until 1989).
66In Randwick Municipal Council v Broten ('Broten') (1964) 10 LGRA 271, it was held by Else-Mitchell J that the Council had waived compliance with the rule that detailed plans were to be lodged. The failure to identify the plans approved did not invalidate the approval, because the focus was on merits issues. In Hornsby Council v Devery ('Devery') [1965] NSWR 939; (1965) 12 LGRA 34, Else-Mitchell J said (at [40]) that the Council could waive the requirement to send in plans and could judge the sufficiency of the required documents, for the purposes for which they were required, by the relevant clause of the instrument. The test there was that particulars provided needed to be sufficient to describe the proposal - a failure to observe an apparently mandatory requirement, e.g. for a plan, may not invalidate the consent.
67In the present case the applicant relied upon Broten and Devery in support of a submission that the PSO requirements were directory rather than mandatory, a distinction which the respondent submits was " swept away by the High Court " in Project Blue Sky Inc and Ors v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355.
68In Ryde Homes (1970), the Council sought to restrain the approved use to certain hours of operation. Else-Mitchell J said that "... the mere approval of an application does not, I think, necessarily have the effect of incorporating all the matters stated in the application ". Accordingly, there being no condition concerning operating hours, the approval was held not to incorporate the operating hours proposed in the application. His Honour said (at 323-4):
It was submitted ... that it was not necessary for all the conditions of a development consent to be incorporated in the consent or other document which purported to operate as a consent, and that in the absence of any limitation or express statement to the contrary the consent to the application should be read and construed as incorporating as conditions all the matters set out in the form of application.
I have no doubt that the first of these submissions is sound and that a consent can incorporate conditions contained in another document. But the mere approval of an application does not, I think, necessarily have the effect of incorporating all the matters stated in the application. For one thing, many of the matters so stated are general matters of fact or assertions of intention furnished or made for the purpose of informing the council of the nature of the development, and for another, an application will often consist of or be supplemented by informal documents and even oral statements made by or on behalf of an applicant. Serious inconvenience, ambiguity and confusion could arise if, in all instances, general statements of fact and assertions of intention in an application form, as well as every other statement made in support of an application, were to be regarded as terms or conditions of a development consent, and problems would inevitably arise as to the real scope and tenor of any such consent.
In the present case, the fact that there was no formal consent was urged as a reason for treating the terms of the application as conditions of the consent, but that fact seems to me to point in the contrary direction; and indeed, for what it is worth, the only conditions recorded in the council's register are simply not capable of being construed in an extensive fashion.
It must not be overlooked that a consent to the development of land under a prescribed planning scheme is not personal to the applicant but en-ures for the benefit of subsequent owners and occupiers, and in some respects a consent is equivalent to a document of title.
I therefore think it sound to say that the legal qualities a consent possesses, or which flow from a consent, are so important that care should be taken to ensure that consents are framed in clear terms and conditions are specified with certainty. 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 as well as any conditions to which a consent is subject.
69A few months later, Hope J decided Leichhardt Municipal Council v Terminals Pty Ltd ("Terminals") (1970) 21 LGRA 44, holding that it was permissible to refer to a document " incorporated into the public document of council evincing consent " in order to construe a public approval. His Honour said (at 50-1):
Whilst it is true that generally speaking regard cannot be had to extrinsic evidence, other than evidence to identify a thing or place referred to, in order to interpret a public document such as a planning approval, reference may be had to documents, the terms of which are incorporated into the public document: [Slough; Ryde Homes] . I say generally, for the basis of this view is that a planning approval operates for the benefit of successors in title to the owner who obtained the approval, and it would be quite inapt to alter the apparent meaning of the approval by reason, for example, of negotiations or correspondence between the original applicant and the council. The present approval purports to be limited to use by the defendant only, and its terms are fixed by reference to an inter partes deed. I am by no means clear as to the authority of the council to limit the approval to use by the defendant, but no point has been taken in respect to this limitation before me. It may be, however, that in a case such as the present one reference may be had to extrinsic evidence in those circumstances in which that evidence is admissible in relation to an ordinary inter partes document.
70In Szabo , the issue before Hope J was whether additions covered by an approval could be used only for a particular purpose. Contrary to what Else-Mitchell J had decided in Ryde Homes , Hope J indicated that, if a Council did no more than approve the application, it seemed to him that by necessary implication, the terms of the application " must be incorporated ". (It is to be noted that in par 29 of the respondent's submissions in the present case, dated 13 February 2012, the passage from Szabo quoted by Biscoe J in Watson is inverted).
71Biscoe J next referred, in Watson , to Shell (1972), in which the consent made no reference to filling of the site. Very limited plans were presented at the time of the approval and showed no levels. The Council contended that the relevant plan, on its true construction, depicted a service station sitting on the natural surface of the land, and not one on a level surface with some excavation or filling to achieve that result. Shell contended that the plans showed a service station on a flat or horizontal surface at a level approximating the level of the road to which it had frontages, and that filling was necessary in order to produce that surface. After the passage quoted by Biscoe J (at [51] (390) above), Hope JA said (at 107-8):
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. Construing the subject instrument of approval, I have come to the conclusion that the learned primary judge was right in holding that the development approved by the State Planning Authority was that of a service station on a flat or horizontal surface at a level approximating the level of the roads to which the site has frontages, and that it authorized any filling which was necessary for the purpose of producing such a surface. In addition to the matters to which he referred, I would add that it is apparent from the plan that aport from the surrounding garden strip, the service station was not to be stepped in any way, that is, it was not to be constructed at different levels on different parts of the land, for there are no marks on the plan which suggest that anything of this kind was intended. Furthermore, although no doubt there are service stations constructed upon sloping sites, the subject site was not one the surface of which sloped gradually from one end to the other; it has a very gradual slope over a large part of its area but a quite steep slope towards its north-eastern corner. It is in this corner that the plan shows provision for the off-street parking motor cars, the positions of the parking sites for single vehicles being marked upon the plan. The situation of these parking places strongly suggests to me that the plan was not intended to show that the surface of the service station should, in this corner, have that slope which the surface of the land had, but rather that it was intended to show a flat surface. The council has relied upon the garden strips shown in the plan to support its claim, but it seems to me that at the best the existence of these strips on the plan is equivocal, for they are quite consistent with "plantation areas" at ground level to screen the filling as well as the service station structures and activities.
72Also in 1972, Pape J, in the Supreme Court of Victoria, decided Weigall Constructions Pty Ltd v Melbourne and Metropolitan Board of Works (" Weigall ") [1972] VR 781; (1972) 30 LGRA 333. A submission was made that the decision of the Town Planning Appeals Tribunal should be construed as incorporating the whole of a letter of consent, such that a further restriction was imposed on subdivision or use for detached housing. His Honour held (at 353) that:
The wording of the Tribunal's determination does not justify the view that they intended to incorporate the entire letter of consent into their determination. It is true that they refer to the letter of consent, but only for the purpose of identifying condition (1) set out therein, which says nothing of electricity services. Secondly, if the entire letter were to be incorporated Mr Voumard's suggested construction of the condition would not be in accordance with the opening paragraph of the letter, which seems to indicate that the Board had not determined presently to grant a permit subject to a condition, but had determined to do so in the future 'when reticulated water supply sewerage and electricity services are available'.
73Biscoe J quoted also from Stebbins (1988) and Liverpool Rifle Club (1994), and his quotation from Winn (2001) referred to SSA (1993).
74It is noteworthy that, in Stebbins, the Court of Appeal expressed approval of Else-Mitchell's classic statement in Ryde Homes, before making the point quoted by Biscoe J, namely that accompanying plans are crucial in construing the application itself.
75Some other cases from the period 1990-94 are also worthy of notation.
76In Halglide Pty Ltd v P T Ltd ("Halglide") (1990) 71 LGRA 215, Hemmings J held that it was permissible for him to have regard to plans specifically referred to in the DC, and that they were sufficient to make it plain that the DC was intended to provide for pedestrian access to two neighbouring shopping complexes. His Honour distinguished Ryde Homes, which he described as a legalistic approach to the construction of a consent prior to enactment of the EPA Act . His Honour said that plans accompanying the DA are most often taken into consideration and included as part of the approval, and he had no doubt that he had the power to go behind the consent document in order to construe it.
77In SSA , the terms of the approval referred to both working plans, and an agreement between the parties. Handley JA accepted that both the plans in the agreement were incorporated, but not a letter which was also referred to in the terms of the approval. No relevant construction purpose was served by the incorporation of that letter - it served only to identify plans otherwise incorporated. His Honour said (at 407-8):
As a general rule development consents, being public documents operating in rem for the benefit of successors in title, should be construed without reference to extrinsic evidence other than to identify a thing or place referred to in it: see [Terminals] at 50; ... H owever reference may properly be made to documents incorporated expressly or by implication into the consent. The relevant principles are conveniently summarised by Hope J in [ Szabo] at 433-434 where he said:
'The question arises whether, in order to determine what develop ment that consent authorised, one is required or permitted to go to the application for approval or to any other document. This matter was considered by this Court in [Ryde Homes] and by the Court of Appeal in [Miller-Mead] . It is apparent from these decisions that in determining what a council has approved one primarily looks at the document constituting the approval, and construes it ... it would create a confusing and difficult, if not impossible, position if in order to determine what a council had approved one had to go to a whole series of documents and try to determine which of the documents and which part of any particular document the council intended to incorporate in its approval. The terms of another document may be incorporated in the development approval either expressly or by necessary implication but I do not think that it is possible otherwise to go to documents outside the formal approval in order to determine what has been approved.' In that case Hope J held that plans and specifications described in the consent as 'attached' were incorporated in it (at 434).
78AGC (Advances) Ltd v Road and Traffic Authority of NSW ("AGC") (1993) 30 NSWLR 391 was a case involving the provisions of an Environmental Impact Statement. It was held that they did not create any legally enforceable rights against the Highway Authority in respect of properties affected by the construction of the highway, but merely created an obligation to consult and negotiate with interested parties, with a view to reaching agreement if possible on specified matters. Cripps JA commented (at 399G):
Not even by the most elastic interpretation of the words used in the environmental impact statement could it be said that the RTA undertook any legal obligation to any identified landowners much less an obligation to the appellant .
79Both sides in the present argument referred extensively to Liverpool Rifle Club (1994) , in which there was no dispute that a valid DC was given in 1973, and acted upon, but the description of the development in the consent included no reference to an outdoor rifle range, and the evidence did not demonstrate to the court whether the omission was deliberate, or accidental, or whether the Council was opposed to an outdoor range. The Club argued there was an implied consent for one.
80Wilcox J quoted from Ryde Homes , Szabo , Miller-Mead , Shell , and Stebbins , but said it was not necessary to consider AIS and Halglide . One key point His Honour made, to which Biscoe J referred in quoting him, and which should be repeated now, was (LGERA report at 46):
It is not legitimate to look at the documents that accompanied the application, or even the application itself, to contradict (whether by way of extension or contraction) the scope of a consent stated in clear terms. Stebbins is consistent with the last-stated proposition. On the view of the case taken by the Court of Appeal, in order to learn the terms of the council's consent it was necessary for a person to read the notification of consent in conjunction with the copy plan endorsed by the council. When the documents were read together, it became apparent that the unrestricted consent suggested by the letter of notification was in fact given subject to the elimination of the new entrance. Applying these principles to the present case, it seems to me that, if a question ever arose as to what Liverpool City Council intended by its reference, in the letter of 10 October 1973 or the subsequent formal consent, to club building, beer garden or children's playground, it would be legitimate to look at the plan dated January 1973 in which each of these facilities was graphically described. To look at the plan for that purpose would be to use it to interpret the consent. But it is not legitimate, in my opinion, to look at the plan for the purpose of extending the consent; for the purpose of adding a facility that was not mentioned in the consent document to those listed as approved. This would be to use the plan to contradict the document, not to interpret it.