Sertari Pty Limited v Quakers Hill SPV Pty Ltd

Land and Environment Court (NSW)|2013-11-21|Before: Pain J

Section 56A appeal against decision of Commissioner 1This is an appeal under s 56A of the Land and Environment Court Act 1979 (the Court Act) from a decision of Dixon C in Quakers Hill SPV Pty Limited v Blacktown City Council and Sertari Pty Ltd [2013] NSWLEC 1133 in which the Commissioner found that a pedestrian management plan (PMP) met the requirements of deferred commencement condition 3 of a development consent granted by Murrell C on 30 July 2008. An appeal against the decision of a commissioner pursuant to s 56A must be in relation to a question of law. Blacktown City Council (the Council) filed a submitting appearance.

Background 2The Appellant in these proceedings Sertari Pty Limited (Sertari) is the owner of the land being lot 1 DP 806691, known as 7 Nirimba Drive, Quakers Hill. Erected upon the land is a licensed hotel known as Quakers Inn. The First Respondent, Quakers Hill SPV Pty Limited (Quakers Hill) is the registered proprietor of lot 1 in DP 853847, known as 9 Nirimba Drive, Quakers Hill, which adjoins Sertari's land. 3Quakers Hill has the benefit of a right of way 7m wide over Sertari's land, which right of way passes through the car parking area for Quakers Inn. 4In Nirimba Developments Pty Limited v Blacktown CC and Anor [2006] NSWLEC 739 Bly C granted development consent to a residential flat building on the Quakers Hill land. One of the conditions was a deferred commencement condition imposed pursuant to s 80(3) of the Environmental Planning and Assessment Act 1979 (the EPA Act) to the effect that the development could not commence until consent was granted for use of the right of way. 5In a second appeal to this Court in relation to DA 062533, heard by Murrell C, Nirimba Developments Pty Limited v Blacktown City Council and Anor [2008] NSWLEC 1229, consent was granted for use of the right of way subject to conditions, including a number of deferred commencement conditions. Murrell C made the following orders: 1. The appeal, in respect of the right of carriageway burdening Lot 1 DP 806691 that benefits the property known as No 9 Nirimba Drive, Quakers Hill, is upheld. 2. The development application submitted to Blacktown City Council for use of the above right of carriageway is determined by the granting of consent subject to a deferred commencement and other conditions as contained in Annexure 'A'. 3. The exhibits are returned to the parties except Exhibits A, C, J, 12 and 13. 6Annexure A contains in Part A a number of deferred commencement conditions. Condition 3 provides: A Pedestrian Management Plan shall be prepared and submitted to Council for the approval of the Director, Transport and Technical Services ... The Plan shall detail the provision of a safe pedestrian path of movement between Quakers Hill Railway Station and the land to the north-west of Lot 1, DP 806691. It shall also make provision for safe pedestrian access from Railway Avenue to Quaker's Inn ... 7Part B General Conditions of Consent Pre-Construction Certificate Matters (Engineering) include conditions 12 and 14 which provide: 12 Any works required by the Pedestrian Management Plan shall be completed prior to the issue of any Occupation Certificate for the Residential Flat Building development on Lot 1, DP 853847, No 9 Nirimba Drive, Quakers Hill. 14 The applicant shall provide a zebra crossing across Nirimba Drive in accordance with the Pedestrian Management Plan approved under these conditions. These works shall be completed prior to the issue of any Occupational [sic] Certificate for the development. 8The judgment of Murrell C discussed whether the use of the right of way over Sertari's land should be used for vehicular traffic with pedestrian traffic located on other routes. Figure 2 attached to the judgment identified two alternative pedestrian routes including on railway land outside the right of way. 9Quakers Hill submitted a PMP for approval to Blacktown City Council. The Council declined to indicate that it was satisfied as to the terms of the PMP. Quakers Hill filed this Class 1 appeal pursuant to s 97(3) of the EPA Act which was heard by Dixon C. Dixon C upheld the appeal and ordered that the application seeking the Council's satisfaction of deferred commencement condition Part A condition 3 of development consent No 062533 be approved. The PMP approved by Dixon C allows pedestrian traffic on the right of way. 10Section 97(3) of the EPA Act provides: An applicant who is dissatisfied with a decision that a consent authority is not satisfied as to a matter, being a matter as to which it must be satisfied before a "deferred commencement" consent under section 80 (3) can operate, may appeal to the Court within 6 months after the consent authority notifies the applicant of its decision. 11Section 39(2) of the Court Act provides: In addition to any other functions and discretions that the Court has apart from this subsection, the Court shall, for the purposes of hearing and disposing of an appeal, have all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal. 12Sertari tendered two volumes of material which included the judgment of Dixon C, the transcript, exhibits and the statement of facts and contentions before Dixon C (exhibit A). Quakers Hill tendered one volume comprising exhibits A to F before Dixon C (exhibit 1).

Issue 13In the summons commencing this appeal the grounds of appeal identified were: 1. The Commissioner erred in law in concluding that she had jurisdiction to approve the Pedestrian Management Plan (PMP) in Exhibit F (Paragraphs [23] and [24]) in circumstances where: (i) The appeal was filed under s 97(3) of the Environmental Planning and Assessment Act 1979. (ii) The PMP about which the Commissioner expressed satisfaction results in a difference [sic] development to that approved in proceedings 10989 of 2006 [Murrell C judgment] (c.f. paragraph [21]) and (iii) The PMP about which the Commissioner expressed satisfaction conflicts with conditions of development consent approved in proceedings 10989 of 2006 (c.f. paragraph [22]). 14The issues particularised at (ii) and (iii) were not the precise issues pressed in this appeal. The question of law articulated at hearing was that the proposed PMP was beyond the jurisdiction of the Council/Court (Dixon C) to approve because the PMP as proposed was not the same development that was considered and approved by Murrell C as found in deferred commencement condition 3. The PMP before Dixon C did not accord with the pedestrian access arrangement approved by Murrell C. As Quakers Hill submitted it is debateable whether the ground of appeal now articulated gives rise to a question of law or simply impermissibly seeks to review the merits of the Commissioner's decision pursuant to s 97(3). I will consider the issues raised nevertheless. 15One contention in issue before Dixon C was: that the versions of the PMP before the Court are different to the PMP approved by the judgment of Murrell C, therefore, the Court has no jurisdiction to approve either of the proposed PMP. 16At [16] - [22] Dixon C stated: 16 In order to be satisfied that the PMP is what the condition envisaged it is necessary to address the terms of the consent itself and condition 3 in particular. The development consent is to be determined according to its terms: House of Peace v Bankstown City Council (2000) 48 NSWLR 498 at [36]. 17 The development consent, in terms, is with respect to "use of right of carriageway". There is no constraint to that use within the terms of the development consent, either in words, or by reference to any particular plan. Both the applicant and the Council submit that the Court approved the use of the right of carriageway in a general sense. 18 For the purpose of the appeal pursuant to s 97(3), Sertari contends that the Court's jurisdiction is confined to forming a state of satisfaction as to whether the PMP presently before the Court was in accordance with what was envisaged in the judgment of by Commissioner Murrell. I do not accept that submission. It is not necessary in this case to consider the judgment of Commissioner Murrell when the provisions of the development consent granted by the Commissioner are expressed in clear terms. The Order made by the Commissioner is the operative consent and not the reasons for the decision to grant consent. 19 The Murrell judgment approves pedestrian and vehicle use of the right of way subject to a deferred commencement condition for the preparation and submission of a PMP, meeting the requirements of condition 3 and which the nominated officer of the Council approves. 20 While the earlier judgment considered two desired routes of pedestrian access available at that time, it does not approve a particular route. It deals with pedestrian and vehicular access but does not delimit it or set a ratio of pedestrian passage. The reference to sketches at paragraph [16], being the sketches prepared by Mr Logan, identified a desire route not approved route. This is clear at [17] where the Commissioner summarised the different opinions of the 3 experts in the earlier proceedings with respect to access. Mr Logan suggested a pathway on the railway land while Mr Hazell and Mr McLaren proposed the Tavern side. It is clear from the Murrell judgment that the Court was aware of the fact that the lease of the Railcorp land was time limited and, if access was via that path, an extension of that leased land would be necessary. 21 The judgment also records that the Commissioner was aware of advice from Railcorp that the train line was going to be expanded (at [23]). If that happened then Mr Logan's preferred option would not be available permanently. Therefore, I accept it was well within the Commissioner's consideration that the Railcorp land might not be available for access and the submitted PMP may not rely on it. All that the Commissioner did at [15] to [27] was to identify a variety of options discussed by the various experts in their evidence. No single path was finally approved. That was left for another day under the deferred commencement condition 3. 22 The preferred PMP in exhibit F, prepared and submitted in satisfaction of condition 3 in these proceedings, some four years after Murrell C's judgment, of necessity excludes the railway land because it is no longer available having been separated from the road reserve by a fence. The future unavailability of the railway land as a pedestrian access path was canvassed at the hearing before Murrell C and use of that railway land was not mandated by the condition. Relevantly, the plan "A" attached to Murrell C's judgment which refers to the railway land was not incorporated into the terms of the condition 3 expressly or by necessary implication: Allendale [sic] Blue Metal Pty Ltd V Roads and Maritime Services [2013] NSWCA 103 at [43]; 195 LGERA 182; Ryde Municipal Council v The Royal Ryde Homes (1970) 91 WN (NSW) 440 at 443. Therefore, the PMP does not need to reflect that plan. Nor was the reference in condition 14 to a zebra crossing mandated. Accordingly, the PMP does not need to provide a zebra crossing. 17Sertari wishes to pursue two issues in support of its stated appeal ground against the decision of Dixon C. These require focus on the development consent granted by Murrell C dated 30 July 2008, that is the orders and part of the conditions of approval set out above at par 5 - 7. This consent is argued to be ambiguous. It is therefore necessary, it was submitted, for the development application (DA no 062533) to be considered as incorporated expressly or by inference into the consent granted by Murrell C. There is no finding in the judgment of Dixon C on the issue of whether or not the DA was incorporated into the consent granted by Murrell C. In Sertari's written submissions the error according to Sertari is that Dixon C erred in concluding that Fig 2 annexed to the judgment of Murrell C was not incorporated into the terms of deferred commencement condition 3. The importance of the issue of the incorporation of the DA arose explicitly for the first time in oral submissions at the commencement of this appeal hearing. Having reviewed the transcript of the hearing before Dixon C that there is no finding on that issue is not surprising because the primary and dominant argument before Dixon C made by Sertari was that the judgment of Murrell C including the attached Fig 2 was part of the development consent granted (the second issue in this appeal). A faint secondary submission made before Dixon C was that the DA should be considered as part of the consent granted by Murrell C. It is clear from the majority of the transcript and the absence of reference in her judgment that Dixon C did not consider she was being asked to determine that issue. That is now the primary submission in this appeal. As the submission was made below I have allowed this issue to be raised in this appeal as Sertari, just, falls outside the principles articulated in Randall Pty Ltd v Willoughby City Council [2005] NSWCA 205; (2005) 144 LGERA 119 at [19] that a new issue cannot generally be raised in a s 56A appeal. 18The alternative argument in this appeal, reversing the order of priority of issues before Dixon C, is that the Murrell C development consent in relation to DA 062533 is ambiguous and the judgment of Murrell C which includes Fig 2 is necessarily incorporated into the consent. There is a finding by Dixon C that the judgment of Murrell C is not part of the development consent granted in 2008 at [18] and [22].

Development application incorporated in development consent 19The consent granted by Murrell C in terms of the orders and deferred commencement condition 3 is ambiguous because the purpose of the use of the right of way is not clear. Based on the principles identified in Allandale Blue Metal Pty Ltd V Roads and Maritime Services [2013] NSWCA 103; (2013) 195 LGERA 182 by Meagher JA at [46] and Ward JA at [89] it is necessary to consider the DA as part of the consent as that is the only way the purpose of the use can be identified. If this is done it becomes clear that Dixon C could not lawfully be satisfied under s 97(3) that the PMP before her could be approved. 20Even if regard is had only to the orders and conditions made by Murrell C, order 2 makes express reference to the DA so that it must be incorporated. Alternatively, the DA is impliedly incorporated as it is necessary to understand what Murrell C approved in 2008. 21The DA 062533 dated 7 September 2006 for use of the right of way consists of the application form which states the subject of the application is use of a right of way, a letter from the applicant's solicitor stating that the application includes various matters including a report of Mr Coady, traffic engineer, on traffic and parking with a plan attached. It is necessary to look at the traffic report to understand the purpose of the right of way as depicted in the plan annexed to the report. It is evident from the description of the development provided in the documents submitted with the DA that the proposed development anticipated use of the right of way for vehicular access only. Pedestrian access was anticipated to occur only on the railway land as described except where crossings were to be provided across Nirimba Drive.

Judgment incorporated in development consent 22Dixon C incorrectly concluded at [18] that the plan annexed to the judgment of Murrell C (Fig 2) together with that judgment was not expressly or by necessary implication incorporated into the terms of deferred commencement condition 3. Dixon C's conclusion that the PMP required by deferred commencement condition 3 would not need to reflect that plan in order for the Court to reach a state of satisfaction under s 97(3) is an error of law. 23Allandale as a whole supports Sertari's case, not just [43] referred to by Dixon C at [22]. Meagher JA states at [44] - [46] that what is sufficient to constitute incorporation by necessary implication for the purpose of these principles is less clear. The plan (Fig 2) annexed to Murrell C's judgment and the judgment were incorporated into the consent expressly or by necessary implication. Meagher JA in Allandale at [45] states: A document which is attached to the consent or otherwise 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 it... 24The orders and reasons for judgment were part of the same document to which the conditions and a plan were annexed. The judgment cannot be excised from the orders because the orders were contained in it. The plan was annexed to the judgment and the conditions. A decision of the Court and the reasons for judgment are not to be equated with an administrative decision. Murrell C's orders were consequent on her reasons for judgment. Unlike an administrative decision-maker like a Council, a commissioner in an appeal is bound to give reasons for the decision: Segal v Waverley Council [2005] NSWCA 310; (2005) 64 NSWLR 177 at [43], [51]. Thus, for the purposes of determining what it was that Murrell C had approved, the reasons cannot be ignored as might the processes of consideration of a Council officer or collegiate body of a Council. The Uniform Civil Procedure Rules (UCPR) r 36.11 which applied when judgment was delivered by Murrell C on 30 July 2008 provides for entry of judgments and orders. The orders were part of the judgment. Once entered in the court computer system the judgment and orders became the official record of the development consent granted by the Court. The judgment cannot be ignored. 25The conditions of consent, particularly deferred commencement condition 3, and conditions 12 and 14 relating to pedestrian crossings, can only make sense if regard is had to the reasons for judgment and Fig 2. Conditions 12 and 14 contemplated that works would be necessary, at least in the form of two pedestrian crossings, in order to achieve safe pedestrian access. The conditions must be read as a whole with condition 14 requiring a zebra crossing to be constructed across Nirimba Drive. Plainly the expectation from the conditions was that the pedestrian crossings and any other works recommended in the PMP would be necessary to make the selected pedestrian route preferable to the pedestrian desire line referred to in the evidence. It can be surmised that the PMP itself was a necessary condition because the pedestrian route proposed did not follow the natural pedestrian desire line through the right of way: Murrell C at [22]. Condition 14 only makes sense if read with the reasons for judgment because it can then be understood that the crossing related to the pedestrian access approved in the railway corridor. Condition 14 also confirms that Murrell C was intending to approve a pedestrian route off the right of way. 26When the DA or the judgment of Murrell C are considered as part of the development consent granted by Murrell C it is clear that the DA proposed vehicular use only of the right of way, not pedestrian access. The PMP before Dixon C proposed an entirely different means of pedestrian access, namely use of the right of way, to that considered by Murrell C and was not in accordance with the 2008 development consent.

Quakers Hill's submissions 27Dixon C was correct in her reasoning at [16] - [24] of the judgment. Deferred commencement condition 3 specified a matter that was to be the subject of the PMP. That is specified in the condition: The Plan shall detail the provisions of a safe pedestrian path of movement between Quakers Hill Railway Station and the land to the north-west of Lot 1, DP 806691. It shall also make provision for safe pedestrian access from Railway Avenue to the Quakers Inn. 28The Commissioner made a factual finding that the PMP did satisfy that deferred commencement condition, which finding cannot be challenged in a limited appeal as provided in s 56A. 29The development consent is to be determined according to its terms per House of Peace Pty Ltd v Bankstown City Council [2000] NSWCA 44; (2000) 106 LGERA 440. Its terms are "use of right of carriageway". There is no constraint to that use within the terms of the development consent, either in words, or by reference to any plan whether in the DA or Fig 2 attached to Murrell C's judgment which Sertari seeks to rely on. 30Sertari's case depends on a construction of the consent which requires the incorporation of the plan Fig 2 attached to Murrell C's judgment by necessary implication. Figure 2 is not referred to in the terms of the consent. Dixon C did not fail to correctly apply Allandale. Further, Allandale supports a conclusion that the DA was not incorporated. The mere reference to a DA does not incorporate the application, see also Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Ltd [2009] NSWCA 160; (2009) 167 LGERA 395 at [112] - [113]. 31Deferred commencement condition 3 can only relate to the land the subject of the DA, which did not include the railway land. The description of use of the right of way does not need to state the purpose in the grant of the consent. That the use is for a purpose is encapsulated in the instrument of the grant of the interest in the right of way. That is the manner in which the right of way is referred to in the orders of Murrell C. 32The judgment of Murrell C is not part of the consent. The obligation to give reasons is embedded in procedural fairness. Just because the judgment is published in a formal sense does not mean it is part of the consent. The Court's practice is to issue a minute of the orders made with the conditions attached, as occurred in this case also. That is the development consent.

Finding 33The alleged failure on the part of Dixon C to be properly satisfied that the PMP before her met the deferred commencement condition 3 as required under s 97(3) (assuming this can be a question of law) was based on a somewhat circuitous argument. Dixon C's finding that she was satisfied that the PMP was in accordance with deferred commencement condition 3 imposed by Murrell C was said by Sertari to be legally erroneous because she could not properly be satisfied as required under s 97(3). The development consent granted by Murrell C, consisting of orders and attached conditions, is ambiguous according to Sertari, as the purpose of the use of the right of way is unclear. It was therefore submitted to be necessary to consider other documents, firstly the DA or, alternatively, the judgment of Murrell C in order to interpret the development consent dated 30 July 2008. If this is done the purpose of the use of the right of way considered by Murrell C is established to be for vehicular use only, not for pedestrian traffic. Therefore the preferred PMP before Dixon C which proposed use of the right of way for pedestrian use could not satisfy deferred commencement condition 3 and Dixon C erred in finding that it did. 34As Quakers Hill submitted, s 97(3) required Dixon C to be satisfied as to a matter before a deferred commencement condition, and hence deferred consent, could operate. She was so satisfied of a matter, being a PMP prepared in accordance with deferred commencement condition 3, and on a simple view this finding is sufficient to discharge this appeal. 35As to whether the development consent granted by Murrell C is ambiguous, I consider that the orders made and conditions imposed are clear in their terms. There is nothing in the terms of order 2 and the attached conditions which gives rise to ambiguity. That order 2 refers to the DA made to the Council for use of the right of way does not require elaboration. As Quakers Hill submitted the scope of the right of way is in the instrument creating it and there is no necessity for an explicit purpose to be described when a development consent is granted. The absence of such words does not give rise to any inherent ambiguity. Deferred commencement condition 3 is directed solely to the preparation of a PMP with certain provisos specified to be in it. No specific route is identified. It is clear in its terms and no submission was made that it is unclear. Condition 12 requires that the PMP shall be completed prior to the issue of an occupation certificate for the residential flat building approved by Bly C. That condition 14 requires the provision of a pedestrian crossing across Nirimba Avenue in accordance with the PMP approved under those conditions does not mean that is a compulsory requirement in the absence of a PMP providing for it, as Dixon C held at [22]. Sertari submitted that Quakers Hill's approach leaves the right of way available for use for any purpose. Any use must be subject to planning controls as recognised in Sertari's submissions in reply at par 10, hence the Class 1 appeal before Dixon C. Any use for a PMP is conditional as identified in deferred commencement condition 3 imposed by Murrell C. 36My finding that the consent is not ambiguous provides limited scope for additional documents to be incorporated where these are not expressly referred to in the consent, as I find below. 37Various authorities on the issue of what may be considered to be incorporated in a development consent were considered in the recent Court of Appeal decision of Allandale by Ward JA in the principal judgment at [155] - [163], Meagher JA at [42] - [48] and MacFarlan JA (in dissent but not in relation to applicable principle) at [25] citing Spigelman CJ in Winn v Director-General of National Parks and Wildlife [2001] NSWCA 17; (2001) 130 LGERA 508 at [4]. 38There is no basis for the express incorporation of the DA into the consent simply because it is referred to in order 2 made by Murrell C. At [45] Meagher JA stated a document referred to in a consent can be expressly incorporated into it but the mere reference to a document such as a DA is usually not sufficient to constitute express incorporation for this purpose. A similar conclusion was reached by the Court of Appeal in Ko-veda Holiday Park at [112]-[113]. 39As Quakers Hill submitted, reference to the DA is unlikely to lead to greater clarity in any event. The DA form states the application relates to the use of a right of way and specifies no purpose for the use. The Coady traffic and parking report with plan attached which was the part of the DA relied on by Sertari was prepared for the residential development the substantive subject of the proceedings before Bly C. It is apparent from Murrell C's judgment that the project evolved over time. Sertari fails on its first issue. 40The second issue, that the judgment of Murrell C forms part of the consent granted in the orders and conditions, is novel. There is no express reference to the judgment and/or Fig 2 in the development consent. No authority on precisely these facts was cited to me perhaps because this submission has not been made before in this Court until the Class 1 appeal before Dixon C. Dixon C was referred to Allandale but I do not consider that case has any relevance to the incorporation of the judgment in the absence of any express reference to it in the orders made by Murrell C. The thrust of numerous authorities such as Royal Ryde Homes, Auburn Municipal Council v Szabo (1971) 67 LGRA 427 and House of Peace is that additional documents should not be lightly incorporated into development consents by implication because of the need for certainty in their construction. This is reflected in the extracts from Winn and Szabo quoted by Ward JA in Allandale at [155] - [156]. 41A judgment of a court contains reasons for a decision being reached, here the decision to grant a development consent. I do not consider there is an automatic inclusion of a judgment as part of any order made by any court, contrary to what Sertari's counsel argued. The reasons in the judgment are not the development consent. As Quakers Hill submitted, reasons are provided so that the parties are aware of the basis for a decision. Reasons are necessary to afford procedural fairness to the parties. That there are procedures for the formal recording of judgments and orders under the UCPR does not render the judgment part of the orders made by a court. 42As I have concluded that the judgment, including Fig 2, of Murrell C is not incorporated into the 2008 development consent, I have not summarised the submissions or made findings about the content of Murrell C's judgment made by Sertari and responded to by Quakers Hill as to the consequences if the DA and/or the judgment were incorporated into the consent. It is also not necessary to consider the documents submitted before Dixon C which included the DA before Murrell C. 43I have not found in Sertari's favour on the issues raised by it in challenging Dixon C's finding of satisfaction under s 97(3) in relation to the PMP before her. Consequently, this appeal fails and will be dismissed. Costs are reserved.

Orders 44The Court makes the following orders: (1)Appeal dismissed. (2)Costs reserved.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 December 2013

(2013) 195 LGERA 182

(2009) 167 LGERA 395

(2000) 106 LGERA 440

(2005) 144 LGERA 119

(2001) 130 LGERA 508

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