Rothwell and Council's submissions
31Unsurprisingly, the submissions of both Rothwell and the Council coincide. Again, without intending disservice to the careful submissions made by those parties, their submissions may be summarised as follows:
(i) the consent to the making of the Development Application for the construction of the collector road through Lot 6 was given by Mr Barker;
(ii) clause 1 of the Deed reflects the broad terms in which that consent was given;
(iii) once that consent was given for the purposes of the EPA Act and Regulation, the Development Consent was able to be amended, the absence of Mr Barker's consent to the amendment being irrelevant to the exercise of the powers and discretions provided by the EPA Act, as they relate to that Application;
(iv) the Council or the Court is able, as a matter of power, to process and determine the Development Application, in the manner provided by the EPA Act and Regulation, including by consenting to an amendment of the Application in accordance with cl 55 of the Regulation; and
(v) clause 7 of the Deed did not gainsay that proposition, its focus being upon change in alignment in the course of road construction following the grant of development consent.
32I am of the opinion that, in substance, the submissions of Rothwell and the Council should be accepted. Although it was submitted otherwise on behalf of Mr Barker, the question in this matter, so it seems to me, is substantially similar to that determined by Bignold J in Rose Bay Afloat Pty Ltd v Woollahra Council [2002] NSWLEC 208; (2002) 126 LGERA 36.
33The facts of that case, so far as they are relevant to the present question, are usefully summarised in the headnote. The owner of the bed of Sydney Harbour, namely the Waterways Authority, had granted owners consent to the lodgement of a development application for a new floating restaurant. Amendments were made to the development application by the applicant following its refusal by the Council. On appeal to this Court a question arose as to whether there was jurisdiction to determine the application in light of the amendments that were made to the application and for which the Waterways Authority, as landowner, had not given its consent. In that case the amendment made involved an additional area over the bed of the harbour; in the present case the amendment involves a change in location of the road that was the subject of the Development Application to which Mr Barker consented as owner of Lot 6.
34In Rose Bay Afloat Pty Ltd , Bignold J addressed the issue presently calling for consideration by posing a number of subsidiary questions. The third question that he posed was, "Has the landowner's consent been granted to the applicant's amended development application?". He addressed this question as involving a determination of fact which he answered in the negative. However, the fourth question that he posed for consideration was, "Is the consent of the landowner required under the Regulation to the applicant's proposed amended development application?". He answered that question "no". In giving that answer his Honour reasoned:
"86. There is an express requirement for landowner's consent to the lodging of a development application by a person who is not the owner of the land to which the development application relates ( vide cl 49 ) and there is a similar requirement for landowner's consent in respect of an application to modify a development consent where the applicant is not the "owner of the land on which the development is to be carried out" (vide cl 115(1)(h).
87. In contrast to these express requirements, cl 55 imposes no such or similar requirement. Instead, it permits "the applicant " to amend or vary a development application (but only with the agreement of the consent authority).
88. There is, in these circumstances, no justification, to seek to imply into the entitlement vested in an applicant that is created by cl 55, a requirement for land owner's consent in a case where the applicant is not the owner of the land to which the development application relates.
89. Nor do I think that there is any legislative gap or omission in cl 55 . On the contrary, the Regulation appears to have been drafted in recognition of the principle established by the decisions of this Court that I have earlier referred to (commencing with the Royal Motor Yacht Club case) that where a landowner has relevantly consented to the lodging of a development application in respect of its land, it is to be taken as intending the full development assessment process or course contained in the EP&A Act, Pt 4 and Pt 6 of the Regulation, to apply to that development application. Such process or course clearly includes the amendment, or variation of the development application by the applicant, in accordance with cl 55 of the Regulation."
35I respectfully concur in the observations made by Bignold J in that case. The provisions of the Regulation to which he referred have not changed in any material respect.
36The position there articulated reflects, in principle, decisions made by this Court in respect of questions of the present kind. Those decisions have been applied over a number of years and by several judges. They are referred to in the judgment in Rose Bay Afloat Pty Ltd.
37The result that the consent of Mr Barker is not required for the amended Development Application to remain a valid application under the EPA Act and Regulation works no injustice to him. A grant of development consent has no impact upon proprietary rights. In particular, if the result of the present appeal to this Court is that development consent is granted to construction of the collector road, that consent, of itself, will afford no right to Rothwell to enter upon Lot 6 and undertake road construction. In that regard the observations of Cripps CJ in Wharf 11 Pty Ltd v Sydney City Council [1991] NSWLEC 21 are relevant to be noticed. His Honour there said:
"A development consent raises a regulatory prohibition, namely, that development cannot be undertaken unless consent is given by a local authority. A development consent does not authorise development. Generally speaking, the process is not concerned with relations between owners and other people who wish to implement the development consent. The fact that a development consent runs with the land does not carry with it the notion that once a development consent has been granted the development can be undertaken on the land against the wishes of the owner."
38The right of Rothwell to enter upon Lot 6 in order to implement any development consent for road construction may turn upon the provisions of the Deed. However, obligations of the parties under the Deed are not matters to be considered by this Court when determining an appeal under s 97 of the EPA Act.
39If the submissions made by Mr McEwen are correct, the consequence would be that the terms in which a landowner's consent is given to the making of a development application impinge upon the exercise of the statutory discretion afforded by the EPA Act to a consent authority when determining that development application. This is a significant consequence. An example is sufficient to indicate why this is so.
40A consent authority may, by exercising the discretion afforded to it under s 80A of the EPA Act, impose a condition upon the grant of development consent that alters, in some respects, the development identified in the development application (see, for example, s 80A(1) paragraphs (c) and (g) as well as s 80A(4)). According to the submission, the power to require alteration in this manner is circumscribed or fettered by the terms in which the landowner's consent has been given to the making of the development application. The argument extends to a submission that any development consent that did not accord with the terms in which landowners consent to the making of the application was given would result in invalidity of that development consent.
41Such a result is neither the consequence of the express provisions of the EPA Act nor is that result to be implied from the terms of the Act and the Regulation. For these reasons I propose to answer the question posed for separate determination in the affirmative.
42Lest there by any doubt as to the consequence of this answer, it is intended to determine that the consent of Mr Barker, as the owner of Lot 6, to the making of the Development Application, is sufficient for the purpose of cl 1(1)(i) of Pt 1 of Sch 1 to the Regulation so as to enable that Development Application to be determined in its amended form. That consent is evidenced by cl 1 of the Deed. In the result, the development appeal instituted by Rothwell may proceed to a determination on issues other than that raised by the separate question.
43It was accepted by Mr McEwen that if I answer the separate question in the affirmative, his client has no further role to play as a party to the appeal. He initially indicated that in the event that I answer the question this way, Mr Barker should be dismissed as a third respondent. However, in deference to his later submission that I should not, at present, make the order that he had initially indicated, I will refrain from making any order directed to the constitution of the proceedings until these reasons can be considered.