Settlers Estate Pty Ltd v Penrith City Council - [2021] NSWCA 13 - NSWCA 2021 case summary — Zoe

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Settlers Estate Pty Ltd v Penrith City Council

[2021] NSWCA 13

Court of Appeal (NSW)|2021-02-12|Before: Gleeson JA, Payne JA, Preston CJ, Pepper J, Mr P

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Source facts

Court

Court of Appeal (NSW)

Decision date

2021-02-12

Before

Gleeson JA, Payne JA, Preston CJ, Pepper J, Mr P

Catchwords

[2017] NSWCA 263 Burwood Council v Ralan Burwood Ltd (2014) 206 LGERA 40 Gattellaro v Westpac Banking Corporation (2004) 204 ALR 258
[2004] HCA 6 Norrie v NSW Registrar of Births, Deaths and Marriages (2013) 84 NSWLR 697

Source

Original judgment source is linked above.

Catchwords

[2017] NSWCA 263 Burwood Council v Ralan Burwood Ltd (2014) 206 LGERA 40 Gattellaro v Westpac Banking Corporation (2004) 204 ALR 258[2004] HCA 6 Norrie v NSW Registrar of Births, Deaths and Marriages (2013) 84 NSWLR 697

Judgment (15 paragraphs)

[1]

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

[2]

HEADNOTE [This headnote is not to be read as part of the judgment] Development consents had been granted for the subdivision of land and associated works in three stages. The Stage 3 development consent approved construction of a drainage line ("Drainage Line A") to convey stormwater flows from the future development into a riparian corridor. A construction certificate for the drainage works was later issued. The relevant approved plans issued with respect to the construction certificate specified the height (or depth below surface), length, grade and direction of Drainage Line A. These differed in some respects from those specified in the approved development consent plans. The main point of difference, however, was that the construction certificate plan identified the location of the discharge point of Drainage Line A as abutting to the east the existing channel (watercourse), while the development consent plan showed Drainage Line A in an area marked as "Riparian Corridor". Penrith City Council brought proceedings in the Land and Environment Court contending that the applicants had constructed Drainage Line A not in accordance with the development consent and in breach of s 4.2 of the Environmental Planning and Assessment Act 1979 because the drainage line did not discharge at a location abutting to the east the existing channel but instead crossed the existing channel and discharged into a newly formed drainage line to the west of the existing channel that flowed into the existing channel a little downstream of the discharge point. The primary judge ordered and determined a separate question of whether the drainage line had been constructed in accordance with the development consent. The primary judge found that the location of the discharge point abutting to the east the existing channel, shown on the construction certificate plan, was a legal requirement of the development consent, which the applicants had breached by constructing the drainage line in a different location. The applicants sought leave to appeal against the primary judge's finding that the drainage line was constructed not in accordance with the development consent, and in breach of s 4.2 of the EPA Act. The applicants also challenged an interlocutory decision of the primary judge refusing the applicants leave to reopen their case in order to tender additional evidence from a surveyor to establish that the drainage line was constructed in the same direction as the direction shown on the construction certificate plan. The questions for the Court included: (i) Whether the primary judge erred in finding that the drainage line was not constructed in the location depicted in the construction certificate; (ii) Whether the primary judge erred in finding that Drainage Line A could be lawfully constructed in accordance with the construction certificate plan and yet still end on the eastern side of the watercourse; (iii) Whether the primary judge erred in refusing to determine for herself, by either a comparison of different plans or by use of a protractor, that Drainage Line A had been constructed in the same direction as that shown on the construction certificate plan; (iv) Whether the primary judge had misunderstood the relevance of certain construction plans and the applicants' argument concerning these plans; (v) Whether the primary judge's interlocutory decision refusing the applicants leave to reopen their case to tender evidence from a surveyor denied the applicants procedural fairness or was based on incorrect factual and legal assumptions. The Court dismissed the applications for leave to appeal and held: In relation to (i): (1)The primary judge did not err in finding that Drainage Line A was not constructed in accordance with the construction certificate plans: (a) the construction certificate and its approved plans and specifications are taken to form part of the development consent. The construction certificate did more than merely authorise the proposed development; the construction certificate also described and defined the development authorised to be carried out. The specification in the construction certificate plan that Drainage Line A should discharge into the existing channel from the east described and defined an aspect of the development the subject of the development consent: [42]-[43]. (b) the fixing of the location of the discharge point at the existing channel served the functional purpose of discharging stormwater directly into the existing channel. This functional utility supported the conclusion that the location of the discharge point, shown on the construction certificate plan, is a fundamental aspect of the development the subject of the development consent and one in accordance with which the development had to be carried out: [44]. (c) it was irrelevant to the issue of breach of s 4.2 of the EPA Act that it might be impossible to comply with all of the parameters for construction of Drainage Line A shown on the construction certificate plans: [45]. In relation to (ii): (1) The primary judge's statement that "there was no evidence to suggest that the pipe structure could not be constructed in accordance with the plans as approved" meant only that there was "no evidence" of this fact. The statement, read in context, was made in the course of explaining why the primary judge rejected the first of four arguments: [47]-[51]. In relation to (iii): (1) The primary judge did not err in refusing to determine for herself, by either a comparison of different plans or by use of a protractor, that Drainage Line A had been constructed in the same direction as that shown on the construction certificate plan. The angle of the drainage line shown on the plans was not a fact of which the primary judge could take judicial notice under s 144 of the Evidence Act 1995. Evidence was needed to establish the foundational facts upon which the angle was to be measured and to otherwise compare the two plans: [52]-[63]. (2) In addition, the issue of direction was not a principal contested issue. The primary judge did not therefore need to deal with the applicants' submissions about the direction of the drainage line. But insofar as she did, even if she were to have been in error, that error would not be material or vitiating: [64]. In relation to (iv): (1) Irrespective of whether the primary judge misunderstood the applicants' argument about certain construction plans, the primary judge did not err in rejecting the applicants' argument. The submission by the applicants of plans to the Council for review prior to the issue of the construction certificate pursuant to condition 67 of the development consent did not amount to an approval to construct Drainage Line A in a location contrary to the construction certificate and its approved plans and specifications: [71]. The construction certificate that was subsequently issued, and the approved plans and specifications issued with respect to that construction certificate, described and defined the location of the discharge point as abutting to the east the existing channel: [72]. In relation to (v): (1) There was no denial of natural justice. None of the primary judge's reasoning to refuse leave to reopen involved any material error of fact or law of the kind required for an appeal against a matter of practice and procedure: [79]. (2) Even if the primary judge's decision were found to be erroneous, no substantial injustice would result if leave to appeal against the decision were to be refused. The applicants did not have to meet any changed case of the Council concerning the direction in which the drainage line was constructed: [81]-[88].

[4]

Development consent is granted to construct a drainage line

Development consents have been granted for the subdivision of land at Werrington into residential allotments and associated road construction, drainage and landscaping works in three stages. The Stage 3 development consent, granted on 26 April 2017, was for the subdivision of land into 111 lots and associated works. One of the associated works involved construction of a drainage line, referred to as "Drainage Line A", to convey stormwater flows from the future development into a riparian corridor to the west.
A general arrangements plan for stage 3 of the residential subdivision, one of the plans forming part of the Stage 3 development consent, shows Drainage Line A as having a dog leg. The drainage line starts as a pipe, recorded as a "0.9x0.6m culvert", under a new unnamed road, referred to as Road 7, draining stormwater from east to west until it reaches a junction pit. The junction pit is located underneath the middle of the intersection of Road 7 and another road called Major Tomkins Road. The junction pit is recorded as being at RL38.60 with the pipe having an invert level (IL) of 37.36.
At the junction pit, the drainage line changes direction to run in a north-westerly direction until it reaches the discharge point located in the area marked as "Riparian Corridor" to the west. The pipe in this second section of Drainage Line A after the junction pit is larger than the pipe in the first section, being recorded as a "2.1x0.6m culvert". The grade of this second section of the drainage line is recorded as "0.3%".
At the discharge point in the Riparian Corridor the development consent plan records the drainage line as ending in a "concrete headwall refer detail on DRG C651" discharging into "rip rap rock energy dissipater". Drawing C651 gives the stormwater drainage details, including for the headwall and the pipe discharge structure. Amongst other details for the pipe discharge structure, the drawing specifies: "Natural outlet discharge into the drainage reserve. Use rock rip-rap adequately keyed in the ground…Incorporate vegetation such as sedges and rushes."
The development consent plan did indicate, by way of chainage, the length of the first section of Drainage Line A up to the junction pit, but did not specify the length of the second section of Drainage Line A from the junction pit to the discharge point in the Riparian Corridor. The only means to determine the length of the second section of Drainage Line A is by measuring it using the scale shown on the plans. As this scale is 1:250 on the original size, there will necessarily be error in measuring the length of the drainage line. The discharge point, although shown to be in the "Riparian Corridor", is otherwise not fixed by reference to any surveyed level or point or any topographical feature, such as the watercourse within the Riparian Corridor.
As was required under planning law, construction certificates were subsequently issued for stage 3 of the proposed residential subdivision. The construction certificate that approved drainage works in the Riparian Corridor was issued on 13 July 2018. The construction certificate approved a general arrangements plan for stage 3 of the proposed residential subdivision that differed in certain respects from the general arrangements plan approved by the development consent.
The construction certificate plan still showed the first section of Drainage Line A draining stormwater from east to west under Road 7 until it reached the junction pit, where the drainage line changed direction. However, the junction pit showing the construction certificate plan was located not under the middle of the intersection of Road 7 with Major Tomkins Road, as it was in the development consent plan, but rather about 3.8m to the west of Major Tomkins Road. This changed the respective lengths of the two sections of Drainage Line A.
At this junction pit, Drainage Line A changed direction to run in a north-westerly direction until it reached the discharge point. The direction of this second section of Drainage Line A was shown on the construction certificate plan to run in a similar, if not the same, direction as was shown on the development consent plan, although this became an issue in the hearing in the court below.
The second section of Drainage Line A was recorded on the construction certificate plan as having a steeper grade of "0.52%" than the grade of "0.3%" shown on the development consent plan. In another approved plan issued with respect to the construction certificate, showing Inter-allotment Drainage Lines A and B, the pipe grade in this second section was recorded as being "0.5%", while the pipe grade for most of the length of the first section was recorded as being "3.4%". This inter-allotment drainage line plan also specified the invert levels of the pipe, the finished surface levels above the pipe, and hence the depth to the invert level for various points along Drainage Line A.
The construction certificate plan recorded the need, at the discharge point, to "construct headwall with scour protection undertake minor regrading as required".
As with the development consent plan, the construction certificate plan itself did not specify the length of this section of Drainage Line A from the junction pit to the discharge point. Again, it would be possible to measure the length using the scale shown on the plan, but this would be subject to error as the scale is 1:500 on the original size. The inter-allotment drainage line plan did, however, specify the lengths of the sections of Drainage Line A, including 31.186m for the second section from the junction pit to the discharge point.
Unlike the development consent plan, the construction certificate plan did show the discharge point as corresponding with a topographical feature, referred to as "existing channel". The existing channel was depicted with a dashed blue line. The discharge point of the drainage line, with the proposed headwall and scour protection, was shown to abut to the east, but not to cross to the west, the blue dashed line depicting the existing channel. There was a spot level of "36.17" given on the existing channel line slightly upstream of the discharge point.
The issue of the construction certificate and the approved plans and specifications issued with respect to that construction certificate, including the general arrangements plan and the inter-allotment drainage line plan, in effect amended the development consent so as to add these plans and specifications. Section 4.16(12) of the Environmental Planning and Assessment Act 1979 (EPA Act) provides that a construction certificate and any approved plans and specifications issued with respect to that construction certificate are taken to form part of the relevant development consent. The construction certificate plan, showing differences in the construction of Drainage Line A, therefore formed part of the development consent. To the extent that there is any inconsistency between the plans and specification issued with respect to the construction certificate and the plans and specifications approved by the development consent, the former will prevail: Burwood Council v Ralan Burwood Ltd (2014) 206 LGERA 40; [2014] NSWCA 404 at [202] and Bunderra Holdings Pty Ltd v Pasminco Cockle Creek Smelter Pty Ltd (2017) 96 NSWLR 434; [2017] NSWCA 263 at [47]-[50], [78], [208]-[215]. No issue was raised that the construction certificate and any approved plans and specifications with respect to that certificate were issued in breach of s 6.8(1) of the EPA Act and cl 145 of the Environmental Planning and Assessment Regulation 2000.
A consequence of the approved plans for the development consent and the construction certificate being different is that the parameters for construction of Drainage Line A shown on the plans collectively forming part of the development consent are inconsistent. There are five parameters shown on the development consent plan and the construction certificate plan: the relative height (or depth below surface) of the pipe at various points along the second section of Drainage Line A and at the headwall outlet; the length of the second section from the junction pit to the discharge point; the grade of the second section; the direction the second section runs from the junction pit; and the location of the discharge point. As I have noted, the development consent plan and the construction certificate plans express these parameters differently. The result is that a drainage line constructed in accordance with the development consent plan will be different to a drainage line constructed in accordance with the construction certificate plan. But the problem of inconsistency does not stop here. The parameters for Drainage Line A shown on the construction certificate plan are internally inconsistent. It may not be possible to construct Drainage Line A with the height (depth), length, grade and direction shown on the construction certificate plan, and still have it discharge at the discharge point shown on that plan abutting the existing channel to the east, rather than crossing the channel to the west.
These inconsistencies between the development consent plan and the construction certificate plan, and internally within the construction certificate plan, set the stage for the current dispute between the applicants, who are carrying out the development, and the respondent, Penrith City Council (the Council).

[5]

The claim that the constructed drainage line breached the development consent

The Council brought proceedings in the Land and Environment Court contending that the applicants had constructed Drainage Line A not in accordance with the development consent, in breach of s 4.2 of the EPA Act in that the drainage line was constructed in accordance with neither the general arrangements plan approved by the development consent nor the general arrangements plan approved by the construction certificate, which forms part of the development consent. Although in the court below the Council had alleged other respects in which the drainage line was not constructed in accordance with either plan, ultimately the only respect the Council relied on was that the drainage line did not discharge at a location abutting to the east the existing channel but instead crossed the existing channel and discharged into a newly formed drainage line to the west of the existing channel (which the Council claimed was also constructed not in accordance with the development consent) that flowed into the existing channel a little downstream of the discharge point.
The primary judge agreed with this argument, finding: "The stage 3 roads and drainage CC approved plans show the works on the eastern side of the watercourse (see Rev E). The construction of the culvert and drainage line A was therefore not in accordance with the stage 3 consent when read (as required) with the stage 3 roads and drainage CC. The consent and cognate CC permitted water to be directed into, and to flow in the same direction as, the water in the creek; not to traverse the watercourse as the impugned works did.": at [65] of Penrith City Council v Settlers Estate Pty Ltd (No 2) [2020] NSWLEC 128.
The applicants did not contest that, as a matter of fact, the drainage line as constructed does cross the existing watercourse and discharge into a formed channel to the west of the watercourse that then flows into the watercourse a little further downstream: see paragraph 28 of the agreed statement of facts. The applicants contended, however, that this did not mean that Drainage Line A was not constructed in accordance with the development consent.
The applicants submitted that the construction certificate plan incorrectly records the location of the existing channel. In fact, the existing channel should have been marked on the plan as being further to the east, so that a drainage line of the height (depth), length, grade and direction shown on the construction certificate plan would cross the existing channel and discharge to the west of the channel. The applicants submitted that the location of the discharge point of the Drainage Line A should not be taken to be the point shown on the construction certificate plan abutting to the east the existing channel but rather whatever location results from constructing the drainage line in accordance with the four parameters of height (depth), length, grade and direction shown on the construction certificate plan.
The Council acknowledged the potential for inconsistency in the parameters for Drainage Line A shown on the construction certificate plan. Its primary contention was that this potential inconsistency did not relieve the applicants from compliance with all of the parameters of Drainage Line A, including in particular, the parameter specifying that the drainage line discharge at the location shown on the construction certificate plan of abutting to the east the existing channel. This parameter of the location of the discharge point is paramount and must be achieved even if this might mean that one or more of the other parameters might not be achieved, such as the direction of the drainage line.
The upshot is that if all five parameters specified in the construction certificate plans are required to be met, it might not be possible to construct Drainage Line A in accordance with the development consent. No matter how the drainage line is constructed, one or more parameters might be breached. This conundrum can only be solved if one or more of the five parameters for Drainage Line A are not in fact requirements of the development consent and, in particular, if the parameter shown on the construction certificate plan of the drainage line having a discharge point abutting to the east the existing channel is not a legal requirement of the development consent. This would require construing the location of the discharge point shown on the construction certificate plan of abutting to the east the existing channel as indicative only and not a legal requirement of the development consent with which the drainage line needs to be constructed. This was the applicants' position, but not the Council's position.

[6]

The primary judge's finding of breach of development consent

The primary judge found that the parameter of the location of the discharge point abutting to the east the existing channel was a legal requirement of the development consent. This location of the discharge point was shown on the construction certificate plan, which formed part of the development consent.
The primary judge noted the applicant's argument that it was not possible to construct the drainage line in accordance with the height, length and grade shown on the construction certificate plan and still have a discharge point of the drainage line at the location contended for by the Council of the eastern side of the watercourse. Rather, the applicants argued, if the drainage line were to be constructed to the height, length and grade specified in the construction certificate plan, the discharge point would be in its ultimate location, that is transecting the watercourse to the western side: at [73]. The primary judge noted the applicant's argument that, to the extent the parameters of height, length and grade of the drainage line were in conflict with the parameter of the location of the discharge point, those three parameters should prevail over the parameter of the location of the discharge point: at [72].
The primary judge rejected the applicant's arguments. While it may be accepted that, by reference to the work as executed drawings tendered, the drainage line had been constructed in accordance with the three parameters of height, length and grade, those plans did not indicate where the drainage line had been built: [74]. This was because one of the work as executed plans was an annotated section of the drainage line, marking up the as-built height, length and grade of the drainage line on the construction certificate section.
There was, however, other evidence of where the pipe had been built. The statement of facts, paragraph 28, stated: "Drainage Line A runs from Major Tomkins Parade on the eastern side of the riparian corridor in a north-westerly direction towards the unnamed watercourse/drainage channel. Drainage Line A transects the watercourse/drainage channel and discharges from a Culvert which is located on the western side of the unnamed watercourse/drainage channel. Drainage Line A passes under a sewerage pipe the position and level of which are shown in the Stage 3 Roads and Drainage CC."
The additional statement of agreed facts supplemented this agreed fact, stating: "1. As constructed, Drainage Line A and the Culvert: (a) transects the channel to its western side in the manner depicted on drawing no. LCON-102 Rev 10 (Bundle, Folio 674)."
The plan referred to was a landscape plan that showed Drainage Line A crossing the watercourse before discharging to the west of the watercourse into a new formed channel that ran into the watercourse a little further downstream.
The primary judge held that if it was "impossible" to construct the drainage line in accordance with the three parameters of height, length and grade and still meet the parameter of the location of the discharge point shown on the construction certificate plan, as the applicants had argued, a modification of the development consent "could and should have been sought and obtained": at [75]. The applicants were not permitted to "unilaterally carry out development contrary to their authorisation to do so": at [75].

[7]

The applicants' challenge to the finding of breach of development consent

The applicants seek to challenge the primary judge's finding that the drainage line was constructed not in accordance with the development consent, and hence in breach of s 4.2 of the EPA Act. The applicants raised four grounds. First, the primary judge erred in finding that the drainage line was not constructed in the location depicted in the construction certificate plan (ground 3 and ground 5(c)). Second, the primary judge erred in finding that Drainage Line A could be lawfully constructed in accordance with the construction certificate plan and yet still end on the eastern side of the watercourse (ground 4).
Third, the primary judge erred when she refused to: "(a) compare the CC plans with the plan LCON-102 which latter plan the Respondent accepted showed the Drainage Line A as constructed and where the court accepted that the pipe structure had been built in accordance with Drawing LCON-102 (Rev 10)). (b) Measure the direction or bearing of Drainage Line A by using a simple scale ruler or protractor holding that to do so would be to ask the Court to conduct an experiment with instruments and that she could not take judicial notice of an angle absent from expert evidence." (Ground 5 (a) and (b)).
Fourth, the primary judge misunderstood the relevance of the plans "170112C1.19 sheets 19 - 35 Rev D". Condition 67 of the Stage 3 development consent required the appellants, prior to the issue of a construction certificate, to submit to Council for review the detailed construction plans including all calculations, drawings and designs". The applicants provided to the Council for review these plans and the Council concluded that they satisfied condition 67 (ground 6).
As the primary judge's decision was of an interlocutory nature, and not final, being a determination of the separate questions, the applicants seek leave to appeal against the decision on these grounds. Critical to the decision of whether leave should be granted to appeal is whether there is any substance to these grounds. I therefore proceed below to address these grounds.

[9]

Grounds 3 and 5(c): Interpretation of construction certificate plans

I will first deal with the challenge to the primary judge's finding that the drainage line was constructed not in accordance with the development consent (ground 3 and ground 5(c)), as this raises the central question of construction of the development consent, including the construction certificate plans.
The applicants' argument is that the construction certificate and the approved plans and specifications issued with respect to that construction certificate showing the construction of Drainage Line A only approve the physical form of the drainage line, not its relationship to any feature in the landscape, such as the existing watercourse. The physical form of Drainage Line A was fixed by the parameters of height, length, grade and direction. The last mentioned parameter was added to meet what the applicants alleged was an argument raised by the Council in reply submissions before the primary judge that the drainage line had been constructed in a different direction to that shown in the construction certificate plan. It was to meet this argument that the applicants applied to reopen their case to tender survey evidence seeking to establish that the drainage line had been constructed in the same direction as shown in the construction certificate plan. I will deal with this argument later. For the present argument, however, I can proceed on the assumption that the Council had not proven that the drainage line had been constructed in a different direction.
The applicants contended that if the drainage line is constructed to the height, length, grade and direction shown in the construction certificate plans, its discharge point will inevitably be to the west of the existing watercourse in the location of the discharge point as constructed by the applicants. The applicants contended, however, that this was legally irrelevant as the only parameters which Drainage Line A was required to meet were the physical form parameters of height, length, grade and direction of the drainage line. These physical form parameters fix the location of the discharge point. Drainage Line A was required to discharge the stormwaters it conveyed at the location where a pipe with the height, length, grade and direction specified in the construction certificate plan would end. If this happens to be beyond and to the west of the existing watercourse, so be it. Works might then need to be done, as in fact were done, to direct the discharged water back to the existing watercourse.
The applicants contended that the discharge point shown on the construction certificate plan abutting to the east the existing channel was indicative only and not a legal requirement of the development consent. A construction certificate authorises the construction of a building, which includes a structure, such as the drainage pipe, not the relationship of a building to any feature of the land, such as a watercourse. Accordingly, the construction certificate plan did not fix the location of the discharge point of Drainage Line A (being the relevant building or structure) as abutting to the east the existing watercourse and there was no legal requirement for Drainage Line A to discharge at this point.
I reject this construction of the construction certificate and the approved plans and specifications. First, it is important that the construction certificate and the approved plans and specifications are taken to form part of the development consent: s 4.16(12) of the EPA Act. The construction certificate therefore does more than merely authorise the construction of any building (including a structure) that is part of the proposed development; the construction certificate also describes and defines the development authorised to be carried out. This flows from the fact that the construction certificate and the approved plans and specification issued with respect to that construction certificate form part of the development consent. The consequence in this case is that the specification in the construction certificate plan that Drainage Line A should discharge into the existing channel from the east describes and defines an aspect of the development the subject of the development consent. The development involves not merely a drainage line constructed in accordance with the specifications of height, length, grade and direction, but also a drainage line that discharges at a point defined by reference to a physical feature of the landscape, being the existing watercourse.
This aspect of the development was added by the construction certificate plan. The development consent plan merely showed Drainage Line A discharging into the "Riparian Corridor" but did not specify the location of the discharge point by reference to any physical feature in that riparian corridor. The construction certificate plan remedied this lack of specificity by fixing the location of the discharge point of Drainage Line A by reference to the existing channel.
Secondly, the fixing of the location of the discharge point as being the existing channel serves a functional purpose. The purpose of Drainage Line A was to collect and convey stormwater flows from the future development to the existing watercourse. The most direct point of discharge of the drainage line is the watercourse. It is not functionally efficient or effective for a drainage line to cross the existing channel so as to discharge stormwater beyond and to the west of the existing channel, as that would require a new channel to be constructed to convey the discharge stormwater back into the existing channel. This functional utility of fixing the discharge point of Drainage Line A on the eastern side of the existing channel supports the conclusion that this location of the discharge point, shown on the construction certificate plan, is a fundamental aspect of the development the subject of the development consent and one in accordance with which the development had to be carried out.
Thirdly, it is irrelevant to the issue of breach of s 4.2 of the EPA Act of carrying out development otherwise than in accordance with a development consent that it might be impossible to comply with all of the parameters for construction of Drainage Line A shown on the construction certificate plans. Assume the applicants are correct (although it is not necessary to decide) that it is not possible to construct Drainage Line A to the height, length, grade and direction shown on the construction certificate plans and still have Drainage Line A discharge into the existing watercourse as shown on the construction certificate plan, rather than crossing and discharging to the west of the existing watercourse as actually occurred. That would simply mean that such a drainage line would meet the parameters of height, length, grade and direction but not the parameter of the location of the discharge point required by the construction certificate plan, which forms part of the development consent. The drainage line as constructed would still not be in accordance with the development consent. The only way the applicants could avoid this breach would be to apply to modify the development consent to delete one or more of the parameters that describe and define the development of Drainage Line A.
For these reasons, the applicants have not established that the primary judge erred in finding that Drainage Line A was not constructed in accordance with the construction certificate plans which form part of the development consent. I reject ground 3 and ground 5(c).

[10]

Ground 4: Finding that drainage line could be constructed lawfully

Ground 4 challenges a statement of the primary judge uttered in the course of her reasoning that "there was no evidence to suggest that the pipe structure could not be constructed in accordance with the plans as approved": at [75]. The applicants contest the factual accuracy of this statement.
As I have earlier recorded, the applicants argued that if Drainage Line A were to be constructed in accordance with the height, length, grade and direction specified in the construction certificate plans, it could not discharge at the location shown on the construction certificate plans abutting to the east the existing channel. There are two answers to this argument.
First, the primary judge's statement was only that there was "no evidence" of this fact. True the applicants had made submissions to this effect, but they did not call evidence proving this fact. The primary judge was therefore correct in what she said.
Secondly, the statement was made in the course of explaining why the primary judge rejected the first of four arguments put by the applicant. The statement needs to be read in the context of not only the rest of [75] but also the rest of her reasoning on this first argument, which commences at [72] and concludes at [78]. This first argument was the argument the applicants have made on the appeal that it is impossible to meet the physical form parameters of height, length, grade and direction of the drainage line and still meet the parameter of the location of the discharge point of the drainage line abutting to the east the existing channel. The primary judge's statement was just one statement, although perhaps unnecessary, in her dealing with this first argument of the applicants. She immediately followed the statement, however, with the statements that, even if the applicants were correct that it would be impossible to comply with all of these parameters, this fact "did not permit them to unilaterally carry out development contrary to their authorisation to do so. If as alleged, the development was 'impossible' to carry out as approved, a modification could and should have been sought and obtained by the respondents": at [75]. These statements are correct.
I reject ground 4.

[11]

Ground 5(a) and (b): Use of protractor and comparison of plans

Ground 5(a) and (b) challenge the primary judge's refusal to determine for herself, by either a comparison of different plans or by use of a protractor, that Drainage Line A had been constructed in the same direction as that shown on the construction certificate plan. This ground raises a straw man argument regarding the direction of Drainage Line A. It is of no utility.
The Council's case of breach of s 4.2 of the EPA Act was that Drainage Line A had not been constructed in accordance with the development consent in two respects only, the height or depth of the drainage line and the location of the drainage line (see paragraph 31 of the points of claim). The claim concerning the depth of the drainage line (in particulars (a) and (b) of [31]) was resolved once the applicants tendered survey evidence establishing that the heights at various points of the constructed drainage line accorded with the heights specified in the construction certificate plans: see primary judge's findings at [56], [57].
That left location (paragraph (c) and (d) of [31]). That claim was that the drainage line had not been constructed in the location approved by the construction certificate plan because it transects the watercourse and the discharge point is located further to the west of the watercourse. The primary judge recorded that the only issue left was this issue of location: "That is, whether Drainage Line A and the culvert (and by extension the associated channelling works) were constructed as approved because they transacted the watercourse to the west": at [58]. The primary judge determined this issue at [65], in the passage I have earlier quoted. The primary judge found that the drainage line had been constructed not in accordance with the construction certificate plan because it transected the watercourse so as to discharge to the west of the watercourse rather than into the watercourse from the eastern side.
The Council did not plead, and the primary judge did not determine, that the applicants had carried out development otherwise than in accordance with the development consent by constructing the drainage line in the wrong direction.
The issue of the direction of the drainage line only arose late in final submissions when counsel for the Council sought to offer an explanation for why the drainage line, if it had been constructed to the height, length and grade specified in the construction certificate plan, might not discharge at the location shown on the construction certificate plan abutting to the east the existing channel. He invoked the metaphor of the hands of a clock. Imagine the two sections of Drainage Line A are two clock hands, revolving around the junction pit. He suggested that if the direction of the second section of the drainage line had been rotated anticlockwise from that shown on the construction certificate plan, the drainage line might discharge to the west of the existing channel rather than into the existing channel at the location shown on the construction certificate plan. This attempted explanation was not needed in order to establish the Council's case, which was simply that, as a matter of agreed fact, the drainage line did not discharge at the location shown on the construction certificate plan of abutting to the east the existing channel, but rather discharged to the west of the existing channel. It mattered not how this outcome had come about, only that it had.
Senior Counsel for the applicants apprehended, wrongly, that the Council's case had changed, that the Council was now claiming that the drainage line had not been constructed in accordance with the construction certificate plan, which was part of the development consent, because it ran in a different direction to that shown in the construction certificate plan. To meet what the applicants perceived was this new case, the applicants sought to do two things.
First, in their further written submissions, they included two plans, overlaid with a protractor, in an attempt to demonstrate that the angle or direction of the drainage line was the same on the construction certificate plan (showing the drainage line needing to be constructed) and the landscape plan (showing the drainage line that had been constructed). The applicants submitted that these plans revealed that the angle of the drainage line from the property boundary was the same, around 33 degrees.
Secondly, the applicants, by notice of motion filed after filing this submission, applied to reopen their case in order to tender a plan marked up by a surveyor showing that the drainage line was constructed in the same direction as that shown on the construction certificate plan.
Ground 5 seeks to challenge the primary judge's refusal, in her second judgment, to rely on either method of demonstrating that the drainage line had been constructed in the same direction as that shown on the construction certificate plan. As to the applicants' submission that the primary judge should use a protractor to measure the angle of the drainage line, the primary judge did not accept either the applicants' written submission that sought to demonstrate this on the marked up plans or the applicants' invitation that she should herself use a protractor to measure the angle. The primary judge said: "First, in Class 4 proceedings the Court is neither permitted to undertake experiments with instruments to establish nor to take judicial notice of matters that ought properly be demonstrated by evidence, and in this instance, expert evidence, presumably by a surveyor": at [86(a)].
The primary judge did not err in doing so. First, the angle of the drainage line shown on the plans was not a fact of which the primary judge could take judicial notice under s 144 of the Evidence Act 1995. This fact was not "knowledge that is not reasonably open to question", or "common knowledge in the locality in which the proceeding is brought", or knowledge "capable of verification by reference to a document the authority of which cannot reasonably be questioned": s 144(1). The common law doctrine of judicial notice, if it operated since the enactment of s 144, did not assist, as the common law test for facts that can be judicially noticed may be more stringent than the statutory test: Gattellaro v Westpac Banking Corporation (2004) 204 ALR 258; [2004] HCA 6 at [17] and Norrie v NSW Registrar of Births, Deaths and Marriages (2013) 84 NSWLR 697; [2013] NSWCA 145 at [104].
Secondly, evidence was needed to establish the foundational facts upon which the angle was to be measured. The applicants had photocopied two plans, the construction certificate plan and the landscape plan, and sought to measure the angle of the second section of Drainage Line A from the property boundary of the land with the riparian corridor. There was no evidence establishing that this was the appropriate reference point from which to determine whether the direction of the second section of the drainage line as constructed was the same as the drainage line as shown in the construction certificate plan. There was also no evidence that the line shown on the construction certificate plan and the landscape plan, said to be the property boundary, was accurate. Without such evidence, the reference point from which the angle of the drainage line was sought to be measured was not established.
Thirdly, there was a need for evidence to otherwise compare the two plans. The applicants submitted that the primary judge could, by her own observation, compare the construction certificate plan with the landscape plan and that this would reveal that the angle of the drainage line on the two plans was "congruent": [85]. Again, however, evidence was needed to establish that what one might observe from comparing the plans is in fact correct. The foundation upon which any conclusion of the angle of the drainage line on each plan could be made needed to be established.
Fourthly, this argument of the applicants about the direction of the drainage line was not a principal contested issue in the case. As I have said, the Council did not plead and the primary judge did not find that the drainage line had been constructed in a direction different to that shown on the construction certificate plan. The fact that the Council's counsel had proffered in reply submissions a possible explanation for how the discharge point of the drainage line came to be constructed at a location different from that shown on the construction certificate plan of abutting to the east of the existing channel did not change the Council's case. No application was made by the Council or granted by the Court to amend the points of claim to plead as a particular of breach that the drainage line was constructed in a direction other than that shown in the construction certificate plan. The primary judge was required to determine, and give reasons for her determination of, the principal contested issues. The direction of the drainage line was not a principal contested issue. The primary judge did not therefore need to deal with the applicants' submissions about the direction of the drainage line. But insofar as she did, even if she were to have been in error (which I do not find), that error would not be material or vitiating.

[12]

Ground 6: Misunderstanding construction plans

Ground 6 contended that the primary judge had misunderstood the relevance of certain construction plans, being plans 170112C1.19 sheets 19 to 35 Rev D, and the applicants' argument concerning these plans.
The primary judge had understood the applicants' argument to be that, because these plans had been accepted by the Office of Water as accompanying the controlled activity approvals under the Water Management Act in satisfaction of condition 67 of the Stage 3 Development Consent, this amounted to an authorisation to build Drainage Line A to the height, depth, length and location in the Riparian Corridor: at [87]. The primary judge rejected this argument, stating that "merely because the Office of Water concluded that the requirements of the Stage 3 consent were 'satisfied', does not amount to an approval to construct the pipe structure in a location contrary to the Stage 3 Roads and Drainage CC, which it plainly was. Nor could the 'satisfaction' of the Office of Water amount to a modification of any existing approval": at [88].
The applicants contended that this was not the argument they had made. Instead, they said their argument was as follows. Condition 67 of the Stage 3 development consent required the applicants, prior to the issue of a construction certificate, to submit to the Council for review certain information, including: "Detailed construction plans including all calculations, drawings and designs which are consistent with the design parameters used in the modelling and approved concept drawing from the Development Application."
The applicants contended that plan 170112C1.19 Sheets 19-35 Rev D were amongst the plans submitted to the Council for review under condition 67. The applicants submitted that the Council's Senior Development Assessment Planner on 7 May 2018 confirmed that the Council had "reviewed the information submitted regarding Condition 67 of the approval for DA16/0566" and had said that: "They have concluded that the above information satisfies the requirements of Condition 67 of DA16/0566".
The applicants argued that this established that the Council had "accepted" those plans "as complying with condition 67 of the Stage 3 consent and that condition did not concern the Office of Water."
If this was the argument the applicants had made to the primary judge, she may have misunderstood who was the body that was said by the applicants to have "accepted" the submitted plans as complying with condition 67 of the development consent. But the primary judge was nevertheless correct in rejecting the applicant's argument.
First, condition 67 does not require the Council to "accept" the detailed construction plans submitted to the Council, only that detailed constructed plans be "submitted" to the Council "for review" prior to the issue of a construction certificate. Of course, the submission of detailed construction plans for review by the Council presupposes that the Council might raise concerns if its review found the submitted plans did not meet the criteria of condition 67, including that the plans be "consistent with the design parameters used in the modelling and approved concept designs from the Development Application". However, this process of review by the Council under condition 67 does not constitute any "acceptance" or "approval" of the submitted detailed construction plans or effect any modification of the development consent.
Secondly, the construction certificate that was subsequently issued, and the approved plans and specifications issued with respect to that construction certificate, described and defined Drainage Line A in terms not only of its height, grade, length and direction, but also the location of the discharge point as abutting to the east the existing channel. That construction certificate and approved plans and specifications were taken to form part of the development consent. Drainage Line A thereafter was statutorily required to be constructed in accordance with the construction certificate and its approved plans and specifications. The fact that detailed construction plans might have been submitted to the Council for review under condition 67 before the construction certificate was issued could not and did not alter either this legal effect of the construction certificate and its approved plans and specifications forming part of the development consent or this legal requirement to construct Drainage Line A in accordance with the construction certificate and its approved plans and specifications.
The primary judge was therefore correct in finding that, irrespective of whether the requirements of condition 67 of the development consent were found to be satisfied (although this would be by the Council, rather than by the Office of Water), this did not amount to an approval to construct Drainage Line A in a location contrary to the construction certificate and its approved plans and specifications.
I reject ground 6.

[13]

Grounds 1 and 2: refusal of leave to reopen

I turn now to deal with the applicants' challenge to the primary judge's interlocutory decision not to grant the applicants leave to reopen their case in order to tender survey evidence establishing that Drainage Line A was constructed in the direction shown on the construction certificate plan.
The foundation of the applicants' argument was that the survey evidence was necessary in order to meet the Council's changed case that the applicants had constructed the second section of Drainage Line A at a different angle than that shown on the construction certificate plan so as to terminate on the western side rather than the eastern side of the existing watercourse. The applicants submitted that the primary judge had acknowledged that this argument of the Council was raised for the first time in reply: at [38] of the interlocutory decision. The applicants submitted that, up until that time, they had thought the Council's case was that Drainage Line A had been constructed "to the requisite height/depth and length, and at the grade and in the direction, as shown in the CC".
The applicants sought to challenge each of the primary judge's reasons (given in [60]), rebutting the applicants' arguments made at trial (given in [59]). None of these challenges, articulated in the applicants' submissions, has substance.
First, the primary judge's decision refusing leave to reopen related to a matter of practice and procedure. As I summarised in Ralph Lauren 57 Pty Ltd v Byron Shire Council (2014) 199 LGERA 424; [2014] NSWCA 107 at [13]: "Appeals from decisions relating to matters of practice and procedure attract the same general principles as those that apply to any appeal against the exercise of a judicial discretion. Ordinarily, in order to overturn such a decision on appeal, the applicant should demonstrate that the decision-maker made an error of legal principle, made a material error of fact, took into account some irrelevant matter, failed to take into account or gave insufficient weight to some relevant matter, or arrived at a decision so unreasonable or unjust as to suggest that one of these categories of error had occurred, even though the error in question did not explicitly appear on the face of the reasoning: Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 at [45] and House v The King (1936) 55 CLR 499 at 504-505."
None of the primary judge's reasoning for her decision to refuse leave to reopen involved any material error of fact or law of the kind required for an appeal against a matter of practice and procedure. In particular, having regard to ground 1, the primary judge did not deny the applicants procedural fairness in refusing leave to reopen their case. The applicants have not established that, contrary to the reasons the primary judge gave, there would be a denial of natural justice. Moreover, for the reasons I give below, there is no substantive injustice by the applicants' not being able to tender the proposed survey evidence.
Secondly, as the primary judge's decision refusing leave to reopen was also an interlocutory decision, leave of the Court of Appeal is required: s 101(2)(e) of the Supreme Court Act 1970. As I noted in Ralph Lauren 57 Pty Ltd v Byron Shire Council at [14]: "Leave to appeal such an interlocutory order involving a matter of practice and procedure ordinarily should not be granted unless the decision involves such a material error of fact or law and substantial injustice would result if leave were to be refused, supposing the decision be erroneous: Minogue v Williams [2000] FCA 125 at [19]."
Although I do not find that the primary judge's decision was erroneous, even if it were to have been, no substantial injustice will result if leave to appeal against the decision were to be refused. There are two, related reasons.
First, the Council did not actually change its case to claim that the applicants breached s 4.2 of the EPA Act by constructing Drainage Line A in a different direction to that shown on the construction certificate plan that formed part of the development consent. The Council never applied for, and the Court did not grant, leave to amend its points of claim to raise this particular of breach. The Council's case, as it ended up, concerned the location of Drainage Line A not being in accordance with the construction certificate plan and, in particular, the location of the discharge point not abutting to the east the existing channel. The applicants, therefore, did not have to meet any changed case of the Council concerning the direction in which the drainage line was constructed.
Second, the applicants have misunderstood the argument raised by the Council's counsel in his reply submissions. The Council's counsel was replying to the applicants' argument that, because Drainage Line A had been constructed in accordance with the height (depth), grade and length specified in the construction certificate plan, it must be taken to have been constructed in the correct location. The Council's counsel reiterated the Council's case that, as a matter of agreed fact, Drainage Line A had not been constructed in the correct location because it crossed the existing watercourse to discharge on the western side instead of discharging into the watercourse from the eastern side as was shown on the construction certificate plan. Council's counsel proffered an explanation of how the drainage line, although constructed to the height, grade and length specified in the construction certificate plan, could end up at a different location to that shown on the construction certificate plan.
This explanation invoked the metaphor of the hands of a clock, the two hands being the two sections of Drainage Line A pivoting around the junction pit. The thought experiment was that if the clock hand representing the second section of Drainage Line A were to be rotated anticlockwise, the end of the clock hand would not be at the location shown on the construction certificate plan abutting to the east the existing watercourse, but rather would be across the watercourse on the western side.
This was not to advance a positive case that this rotation in direction of the drainage line had in fact occurred, but merely proffered an explanation of how the drainage line might have come to end up where it did, notwithstanding being constructed to the height, grade and length specified in the construction certificate plan. There are, of course, other possible explanations, including the one offered by the applicants that the construction certificate plan had drawn the existing channel in the wrong location.
Nevertheless, the offering of an explanation for how the drainage line might have come to be constructed in the wrong location was legally irrelevant to the Council's case of breach of the development consent. All that the Council needed to establish, and which had been established as it was an agreed fact, was that the drainage line ended up on the western side of the watercourse instead of the eastern side as specified in the construction certificate plan.
The survey evidence that the applicant sought leave to reopen to tender did not disprove this agreed fact that the drainage line had ended up on the western side rather than the eastern side of the watercourse. At best, the survey evidence could only have disproved the proffered explanation for this outcome, but this was irrelevant. That would only mean there was some other explanation for how the drainage line came to end up on the western side rather than the eastern side of the watercourse. But it would not change the fact that the drainage line did end up on the western side rather than the eastern side of the watercourse.
For these related reasons, there was not, by reason of the primary judge's refusal of leave to reopen to tender the survey evidence, and there will not by reason of this Court refusing leave to appeal against the primary judge's decision, be any substantial injustice to the applicant.
I reject grounds 1 and 2 challenging the primary judge's interlocutory decision.

Settlers Estate Pty Ltd v Penrith City Council

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