Sericott Pty Ltd v Snowy River Shire Council

History of DA 55/92 10 On 8 April 1992 Ragnam Pty Ltd lodged a development application (DA 55/92) with the council seeking development consent for the stated purpose of "subdivision, golf course" of lot 2 in DP 621340. The development application was in the approved form. The approved form required an applicant to state the proposed use of any building which is proposed to be erected as part of the development. On Ragnam's application, a line was drawn through this box, indicating that it was not relevant to the application. 11 In the Statement of Environmental Effects which accompanied the application the proposed development and its effects were described as follows: "PART ONE will ultimately be incorporated into the total development of Rush's Resort, and will utilise the services and amenities which will be provided in the future. Limited development of the site is proposed at this time. The environmental effects of PART ONE are not considered to be excessive, and have been addressed in this application. The approval of PART ONE will enable the commencement of Rush's Resort, pursuant to recent approval of LEP No. 71."

12 There was correspondence with the council in respect of the application. The content of some of this correspondence is not presently relevant. What is relevant is that it consistently referred to the application as being for Rush's Resort Part One or Stage One. 13 On 15 June 1992, the appellant's surveyor wrote to the council in the following terms: "On behalf of our client, we now attach copies of the Master Plan, to assist Council in determining the Development Application, and in understanding the relationship of the current Development Application (comprising 14 residential lots plus a residue), with the total concept of the Resort. The Master Plan indicates :- : the 14 Lots comprising the present application (shown shaded), : the balance of the 50 residential lots (shown hatched), : the Community Title land (comprising the balance of the land), which shows the Development Lots of the all year round tourist complex, and : the Recreational component of the Community Title (coloured green) … Our client looks forward to receiving Council approval for Part One of 'Rush's Resort'." 14 The applicant's surveyor wrote a further letter on 30 June 1992 requesting that DA 55/92 be amended to further subdivide the residue lot 15 as follows: "(a) the balance of the 50 residential lots (shown hatched), and (b) the Community Title land , comprising: (i) Lot 1 (in several parts) being the Community Property, (ii) Lot 2, the Community Hall/Meeting area, (iii) Lot 3, the Bushwalk Trail, (iv) Lot 4, the Golf Course (9 holes), and (v) Lot 5 the Residue of the land, comprising one Development Lot." 15 Development consent was refused and notified to Ragnam on 15 July 1992. 16 Ragnam commenced Class 1 proceedings in the Land and Environment Court appealing against the refusal. 17 On 24 July 1992, Rush's Resorts lodged a further development application (DA 106/92) for the stated purpose of "subdivision/community plan". This application was withdrawn on 31 August 1992 after a recommendation by the assessor, appointed for the purposes of the appeal relating to the council's refusal of DA 55/92, that DA 55/92 itself should be amended to incorporate the community title application. The effect of the amended DA 55/92 was to substitute two tennis courts and a small club-house for the proposed golf course. The golf course was still proposed as part of the development in the later stages of the overall project. Ragnam also lodged a further Statement of Environmental Effects which addressed each of the reasons for refusal of the original application. There was reference throughout this document to various stages of the development. The "staging" for the development was particularised as follows: "STAGES Staging Staging for the development is to be outlined below:-

Stage One. Subdivision of Lots 1-14 inclusive for dwellings, Lot 15 will comprise the remainder of the 50 freehold lots and Lot 16 will comprise the balance of the land. Normal Torrens Title Subdivision Stage Two. Subdivision of Lot 16 to create the Community Plan. This will also create the Community Association, and the development lots. Community Plan Stage Three. Subdivision of the remainder of the 50 freehold lots. This may be further split into smaller stages, depending upon the prevailing demand for this land. Normal Torrens Title Subdivision Stage Four. Each Development Lot will be further subdivided to create Neighbourhood Lots or separate Strata Schemes. Each Development Lot will have individual servicing requirements, and be subject to separate applications to Council. Neighbourhood Lots Strata Subdivisions

The timing of Stages Three and Four will depend upon the sequence adopted to construct the infrastructure and services and also upon the market conditions prevailing in the future. These Stages may be interchanged as the project proceeds, however all development of Stages Three and Four will be subject to separate applications to Council." 18 On 29 September 1992 Mr Roberts wrote to the council advising: "The application is the first stage of an overall plan and can be read in conjunction with the Community Title Management Statement, Plans and individual consultants' reports." 19 On 1 October 1992, in further support of the amended application, the solicitors for the applicant lodged a further Statement of Environmental Effects, plans AO1, AO2, AO3, drawings of the tennis court site, together with other documentation. They advised: "The purpose for lodging this information is to clarify the staging of the proposal in its overall context and to supply more details as to the adequacy of services for the first stages - bearing in mind the amount of detail required for development application as opposed to a building application." 20 Plan AO1 showed the location of key facilities over the whole project. Plan AO2 was an Amended Plan of Subdivision showing the layout of lots 1 - 14, lots 15 - 50 and the community title land. Lots 15 - 50 referred to in this plan was the proposed subdivision referred to in earlier documentation. The community title land was a reference to Lot 16. Plan AO3 was a staging plan of the proposed staging of the development. 21 The Statement of Environmental Effects lodged at this time stated that: "This application is the first stage of an overall plan, to be read in conjunction with the Management Statement, plans and separate consultants reports as attached." 22 The 'proposal' was defined in para 3.3 as being: "It is intended that the application proceed in stages; this application being principally for subdivision of most of the land; with successive applications to follow for subdivision and development of the majority of the Torrens Title lots and the golf course." 23 This was expanded in para 3.4 - 3.6: "In addition to the subdivision sought, it is proposed to immediately service 14 of the Torrens Title lots and the tennis court facilities making those lots suitable for development. The balance of the subdivision to be serviced, in stages, in a manner acceptable to Council, but anticipated to mean by connecting to sub-regional sewer and water services external to the site. Separate building development applications will follow for the uses specified in the Plan of Subdivision, including the houses on the Torrens Title lots now proposed to be released as fully serviced lots. Consistent with the aim of producing an 'integrated all year round tourist complex' application is also made in this First Stage for the development of tennis courts and a facilities building, as part of the community title facilities, which will also be made available to the Torrens Title land holders, as provided for under the Community Plan. See By law 74.

and in para 3.11: "Lot 15 is identified as a separate lot under Torrens Title which will be subject to further application for subdivision, in order to achieve the full complement of 50 Torrens Title lots, developed in Stage II." 24 The purpose of Plan AO2 was further explained in para 3.15: "The recreation lots are shown on amended plan of subdivision A.O2, and identify indicative land uses , pending separate development applications to confirm the recreational nature of the developments intended." (emphasis added) 25 There were other references to the need for further development approval throughout the document. The following are some examples: "Also on this plan is an indication noted of the density of bed numbers, according to indicative use and subject to further development approval when servicing, survey plans and architectural plans are provided. … All housing will be the subject of future development applications ." (emphasis added). 26 Para 4.3 should also be noted: "The Master Plan demonstrates the general outline of the proposal and how the facilities relate, both to each other and to the opportunities provided by the site, without undue impact upon views of the Lake Jindabyne Foreshore." 27 The Statement concluded: "The proposal is consistent with the objectives of the LEP and provides for the implementation of the objectives in various stages. The future context is known, as the balance of the site usage has been determined by the proposed plan of subdivision in accordance with Council's plans for servicing. … Current servicing will be adequate for this minor first Stage of development, beyond actual subdivision." 28 There was other correspondence with the council which referred to DA 55/92 as relating to Stage I. 29 On 3 December 1992, the Class 1 proceedings were withdrawn and the Notice of Determination approving amended DA 55/92 was issued. The consent was subject to fifty eight conditions. Those conditions are consistent in their reference to "14 Torrens Title lots" (condition 2, 7 and 13); "lots 1 to 14" (conditions 29 and 30); "the 14 lots in Stage I" (conditions 5); "the 14 lots" (conditions 43, 46 and 52); "Stage 1 lots 1 to 14" (conditions 30 and 39); and to "subsequent development" or "future … development" (conditions 26, 30, 38 and 39). Drawings AO1, AO2 and AO3 were also endorsed by the council on that date. 30 There was a subsequent amendment to condition 12 pursuant to s 102 of the Act. The tennis courts and clubhouse were to be constructed before the release of the final linen plan for the fourteen Torrens Title lots. Further, the council approved the lots on the basis of a s 88 instrument to be placed on each Torrens Title lot, to ensure that no structure would be erected until all conditions of DA55/92 were completed to the satisfaction of the council. 31 After the consent was granted on 3 December 1992, work was carried out on the land. As at 13 March 1997 (the date of cessation of LEP 71) the following works had been carried out: · bulk earthworks associated with roads 1, 2, 3 and 4 shown on the engineering plans forming part of exhibit 'PWB - 1' (which are roads shown on the amended development consent 55/92, servicing the 14 lots the subject of that consent) · erection of power poles, power lines and transformers · excavation associated with a septic tank · a double tennis court with surrounding wire fence enclosures · construction of a tennis club house · earthworks associated with carparking for the tennis club · PVC pipe for water reticulation · a water reservoir 32 There is no dispute that the work carried out on the land up to that point was sufficient to preserve the consent under the Act.

Issues 33 The appellant claims to be entitled to existing use rights in respect of the whole of the land with the intent that it can proceed to complete the development of Rush's Resort. That claim will depend in the first instance on whether the validity of the consent can now be challenged or whether it is protected by s 104A and secondly on the scope of the consent.

Section 104A 34 A consent authority is empowered by s 91(1) of the Act to grant a consent, either unconditionally or subject to conditions or to refuse consent. The council argued that having refused consent to the original DA 55/92, its functions and powers in relation to that application were complete and that it had no further or other power to deal with it, save in accordance with the Act: see for example the power to vary or amend conditions of consent under s 102. There is no further or ancillary power granted by the Act to a council to deal with a development application following upon a refusal of consent. It was submitted therefore that the council having refused consent to DA 55/92 on 15 July 1992, the consent granted on 3 December 1992 was a nullity. It was further submitted that being a nullity it was not protected by the privative provisions of s 104A of the Act. 35 I will assume without deciding that the council had no power to grant consent on 3 December 1992. The question is, therefore, whether the validity of that consent can be questioned in these proceedings, given that they were commenced more than three months after the giving of public notice. 36 Section 104A of the Act provides: "In the event that public notice of the granting of a consent is given in accordance with the regulations by a consent authority, the validity of the consent shall not be questioned in any legal proceedings except those commenced in the Court by any person at any time before the expiration of 3 months from the date on which public notice was so given." 37 Section 104A operates as a privative clause once the three month period specified in the section has elapsed: Vanmeld Pty Limited v Fairfield City Council (1998) 101 LGERA 297. 38 The operation and effect of a privative clause, which had been considered by Dixon J in R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 598 was again considered by the High Court in Darling Casino v NSW Casino Control Authority (1997) 191 CLR 602 In that case Gaudron and Gummow JJ stated (at 630) that : "In [Hickman], Dixon J said that the effect of privative clauses, which purport to exclude judicial review entirely, is that decisions are not 'considered invalid if they do not upon their face exceed the …authority [conferred by the legislation in question] and if they do amount to a bona fide attempt to exercise the powers [conferred] and relate to the subject matter of the [legislation]'. A little later, he explained that such clauses 'have a protective operation upon the action of [decision-makers] acting irregularly or outside their formal authority'". 39 Their Honours stated that the Hickman principle allows the privative clause to operate in the fashion identified in Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 164 where Brennan J stated at 194: "The privative clause treats an impugned act as if it were valid. In so far as the privative clause withdraws jurisdiction to challenge a purported exercise of power by the repository, the validity of acts done by the repository is expanded"

40 Gaudron and Gummow JJ continued at 633-4: "The operation of a State privative clause is purely a matter of its proper meaning ascertained in its legislative context. However, privative clauses, whether in State or Commonwealth legislation, are construed 'by reference to a presumption that the legislature does not intend to deprive the citizens of access to the courts, other than to the extent expressly stated or necessarily to be implied'. Thus, a clause which merely provides that a decision is to be final and conclusive is construed as not excluding certiorari for error of law on the face of the record. So, too, a clause which provides only that a decision may not be called into question in a court of law is construed as not excluding review on the ground that the decision involved jurisdictional error, at least in the sense that it involved a refusal to exercise jurisdiction or that it exceeded the jurisdiction of the decision-maker. However and provided the intention is clear, a privative clause in a valid State enactment may preclude review for errors of any kind. And if it does, the decision in question is entirely beyond review so long as it satisfies the Hickman principle".

See also Vanmeld at 324. 41 In the present case, section 104A is quite clear. It provides that in relation to consents of which public notice was given in accordance with the regulations, the validity of a consent shall not be questioned except in legal proceedings commenced within 3 months from the date on which public notice was given. In the present case, the council gave public notice of the consent on 9 February 1993. Proceedings were not commenced until 31 July 1997. There was no suggestion that the consent was given in bad faith or that it did not relate to the subject matter of the legislation. The only submission put is that it was in fact a nullity. It was not suggested that on its face the consent exceeded the council's authority as conferred by the Act. In those circumstances, even if the council had no power to grant the consent, the validity of the consent is protected by s 104A.

Scope of the Consent 42 The principles as to the proper construction of a development consent were not in dispute. Regard is had primarily to the terms of the consent as it appears on the face of the Notice of Determination, together with any documents which are specifically or by necessary inference imported into the consent: Auburn Municipal Council v Szabo (1989) 67 LGRA 427; North Sydney Municipal Council v Sydney Serviced Apartments Pty Ltd (1990) 71 LGRA 432. 43 The effect of my conclusion in respect of s 104A is that the relevant application is the amended application, comprising documents lodged on 31 August 1992 and, more particularly, the documents lodged on 1 October 1992, including plans AO1, AO2 and AO3. The consent is that granted on 3 December 1992. 44 The October documents made it clear that the reference to further stages in the development were to enable the amended DA 55/92 to be understood in the context of the overall project. This was relevant for a number of reasons, including in relation to the conditions which might be imposed. The Statement of Environmental Effects lodged at that time specified that the application before the council was "principally for subdivision of most of the land" and that "successive applications [would] follow for subdivision and development of the majority of the Torrens Title lots and the golf course" 45 The appellant also placed reliance upon the fact that the council had endorsed plans AO1, 2 and 3 as part of the consent given on the 3 December and that these plans related to the whole development. However, the plans cannot be considered in isolation. They formed part of the overall documentation lodged with the council in October and must be considered in the context of the documents lodged at that time. Their purpose for inclusion at that time was clear - namely to provide a context for the overall proposal. They did not have the effect of enlarging the application then before the council 46 The consent granted can, of course, be no wider than the application to which it relates. In my opinion, the application before the council was in respect of the subdivision of the land into 16 lots, being Lots 1-14 for the erection of dwellings, Lot 15, which was to the be subject of a further development application for the creation of 50 freehold lots and a residue described as Lot 16, and for the erection of the tennis courts and a club house on the latter. 47 It follows from the above that in my opinion, the development consent on 3 December 1992 was in respect of Part I of the project only. That conclusion disposes of the next issue in the appeal, that is whether the appellant has existing use rights in respect of an integrated tourist development. The answer to that issue must be in the negative. The lawfulness of the continued use of the land was dependent upon the grant of a development consent and the extent of the permitted existing use was defined by that consent. The only consent granted was to Part 1 of Rush's Resort. The appellant has established existing use rights to that only. It does not have existing use rights in relation to anything proposed in the later stages of the development. 48 Once the consent is construed as relating to Part I of the overall project, no further question arises on the appeal as to existing use rights. 49 That raised the question of costs. The issues raised on the cross-appeal and the appeal in 40635/98 were within a narrow factual and legal compass. Rather than making separate orders for costs on the appeal and cross-appeal, it is preferable to make a single order for costs reflecting the time devoted to the appeal and cross-appeal in the matter 40627/98 and the appeal in 40635/98. I would propose that the appellant having been unsuccessful on the appeal, but successful on the cross-appeal, should pay ninety per cent of the respondent's costs. 50 Accordingly, I would propose the following orders:

(i) Appeal 40635/98 dismissed with no order as to costs.

(iii) Cross-appeal dismissed with no order as to costs.

(iv) Appellant to pay ninety per cent of the respondent's costs. ***************************

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