Storty Pty Ltd v Campbelltown City Council - [2024] NSWLEC 1397 - NSWLEC 2024 case summary — Zoe

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Storty Pty Ltd v Campbelltown City Council

[2024] NSWLEC 1397

Land and Environment Court (NSW)|2024-04-16

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2024-04-16

Catchwords

[2017] HCA 54 Gantry Acquisition Corporation v Parker & Parsley Petroleum Australia Pty Ltd (1994) 123 ALR 29
(1994) 51 FCR 554 Hillpalm Pty Ltd v Tweed Shire Council (2002) 119 LGERA 86
[2002] NSWLEC 17 Hitchcock v Reed [2022] NSWLEC 81 House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498
[2000] NSWCA 44 Hunter Industrial Rental Equipment Pty Ltd v Dungog Shire Council (2019) 101 NSWLR 1

Source

Original judgment source is linked above.

Catchwords

[2017] HCA 54 Gantry Acquisition Corporation v Parker & Parsley Petroleum Australia Pty Ltd (1994) 123 ALR 29(1994) 51 FCR 554 Hillpalm Pty Ltd v Tweed Shire Council (2002) 119 LGERA 86[2002] NSWLEC 17 Hitchcock v Reed [2022] NSWLEC 81 House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498[2000] NSWCA 44 Hunter Industrial Rental Equipment Pty Ltd v Dungog Shire Council (2019) 101 NSWLR 1[2019] NSWCA 147 J K Williams Staff Pty Ltd v Sydney Water Corporation (2021) 249 LGERA 109[2021] NSWLEC 23 Jolly v Yorketown District Council (1968) 119 CLR 347[1968] HCA 55 K & M Prodanovski Pty Ltd v Wollongong City Council (2013) 195 LGERA 23[2021] HCA 35 Sutherland Shire Council [2021] NSWLEC 69 Taylor v Owners-Strata Plan No 11564 (2014) 253 CLR 531

Judgment (311 paragraphs)

[1]

Solicitors: J Cole Planning Solicitors (Applicant) HWL Ebsworths Lawyers (Respondent) File Number(s): 2023/32461 Publication restriction: Nil

[3]

SCHEDULE A Documentary evidence shall be provided to Council that the subject allotment (Lot 492 DP749194) has lawful two-way vehicular access to Harbord Road. (Deferred Commencement Condition)" (DCC)

The proceedings fall within Class 1 of the Court's jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act).
The Applicant wrote to Council requesting advice from Council that it was satisfied that the DCC had been met pursuant to s 4.16(3) of the EPA Act and s 76(4) of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation) on 4 July 2022 and 23 December 2022. When Council failed to advise that it was satisfied that the DCC had been resolved, the Applicant filed the Class 1 Appeal on 31 January 2023, in compliance with the time period in s 76(4) of the EPA Regulation, 28 days having expired between the Applicant's letter 23 December 2021 and 31 January 2023. Subsequently, Council formally refused the application, and provided the Applicant with reasons as to the basis upon which it was not satisfied with compliance with the DCC (Ex 1 Council's Statement of Facts and Contentions (SOFAC) par [46] p8.
In the Class 1 Application, Ex C, the details of the application were described as: "Failure to be satisfied regarding deferred commencement condition under s 4.16(3) of the Environmental Planning and Assessment Act 1979 (deemed by virtue of 28 day period in cl 76(5) (sic) of the Environmental Planning and Assessment Regulations 2021) in relation to information submitted on 4 July 2022 and 23 December 2022 in satisfaction of deferred commencement condition for consent 962/2021/DA-C. …" The Orders sought were: "1. The deferred commencement condition for development consent 962/2021/DA-C is satisfied. 2. Development consent 962/2021/DA-C is operational. 3. Such other orders as the Court may deem appropriate."
The importance of the documents attached to the Class 1 Application became an issue in the proceedings, and I therefore list the documents attached to the Class 1 Application, Ex C as follows: 1. 2A/03/2021 Application form for Deferred Consent lodged with Council. 2. Notice of Determination of the Deferred Consent granted by Council, noting expiry date of this deferred commencement consent as 7 February 2027. 3. Letter from John Cole of J Cole Planning Solicitors to Council dated 23 December 2022. 4. Folio Identified 492/749194 printed 29/9/2016 showing, inter alia: 1. Storty Pty Ltd as the registered proprietor; and 2. Second Schedule: "… 2. K920878 Covenant affecting the part shown so burdened in the title diagram. 3. Easement(s) appurtenant to the land above described created by: DP713913 Right of Carriageway 5 wide & variable width. 4. Easement(s) affecting the part(s) shown so burdened in the title diagram created by: DP713913 Right of Carriageway. …" 1. Deposited Plan 1080698 showing Lot 1501, and the grant of a Right of Carriageway 5 wide & variable (vide 713914) to Lot 49. This Right of Carriageway was referred to in the proceedings as being along the Lot 1501 panhandle, and granted a right of way to Lot 49 which subsequently became Lots 492 and 491. 2. Deposited Plan 713913 showing, inter alia, a Right of Carriageway 5 wide and variable, in favour of Lot 49 being the dominant tenement, and burdening Lot 50 being the servient tenement. At a later date Council resumed part of Lot 50 for road widening, and granted Lot 1501 (formerly Lot 50) 'left in access' from Campbelltown Road to Lot 1501, with egress via the panhandle, to Tristan Place, and Harbord Road. 3. A copy of the s 88B instrument registered in the Registrar General's Office on 24 July 1988 setting out the terms of easements and restrictions on user to be created pursuant to s 88B of the Conveyancing Act 1919 (Conveyancing Act). The s 88B instrument shows the 'Right of Carriageway 5 wide & Variable' as burdening Lots 49 and 50, and benefitting Lots 50 and 49. 4. Deposited Plan 749194 showing, inter alia, "(W) - right of carriageway 5 wide & variable (vide DP713913)", and further marking the Deposited Plan on both Lots 492 and 491 identifying a right of carriageway with the mark '(W)'. 5. Survey plan by the John McDonald Group dated 16/11/2022 with surveyor's reference 210402.DWG showing the right of carriageway, inter alia: 1. Lot 491 (McDonald's restaurant) shaded red; 2. Lot 492 shaded green; 3. Lot 1501's 'panhandle' shaded blue; and 4. Constructed access road by Council in approximately 1985 shaded in grey.

[4]

Background

Council originally owned the land now known as Lots 1501, 491 and 492. Following a subdivision by Council in 1985, Lots 49 and 50 of DP713913 were created. This is shown in the below Figure 3 below. Figure 3: Council's Statement of Facts and Contentions (SOFAC), Ex 1: Original subdivision pattern - Lots 49 and 50. The panhandle is part of Lot 50, and the Right of Carriageway is delineated as the panhandle to Lot 50, together with a broken line over Lot 49. 1. Lot 50 was to the west, and had access to Harbord Road via Council's access road partly on Lot 50 and also partly on Lot 49, referred to as Tristan Place. 2. At the time DP713913 was registered, a 10m wide right of carriageway was created which: 1. benefited Lot 49 by granting access over the access road (being part of Lot 50 and Lot 49) to allow vehicles to egress Lot 49 onto Harbord Road; and 2. benefited Lot 50 by granting access over the land immediately to the south of the panhandle to allow vehicles to ingress Lot 50 from Harbord Road. 1. Following further subdivision: 1. Lot 50 was redefined as Lot 1501 in DP1080698, and Council granted ingress from Campbelltown Road and egress to Harbord Road via Council's access road; and 2. Lot 49 was further subdivided into two lots in Deposited Plan 749194, being: 1. Lot 492, being the Site, to the west; and 2. Lot 491 to the east (owned and occupied by McDonald's Australia).
Figure 2 of the SOFAC, Ex 1, identifies Council's contention that the Applicant has not met the DCC in the Deferred Consent: Figure 2 of Council's SOFAC, Ex 1. The blue shading identifies the panhandle to Lot 1501, the green shading identifies the land owned by the Applicant which granted a right of carriageway to Lot 1501, and the pink shading demonstrates (from Council's perspective) that part of Lot 491 which granted a right of carriageway to Lot 1501 but not to Lot 492.
Figure 4 of the SOFAC, Ex 1, below identifies the present subdivision (after McDonald's subdivided Lot 49 into Lots 491 and 492 in Deposited Plan 749194). Figure 4, Ex 1: current subdivision patterns for Lots 1501, 492 and 491 and also defining the access road (Tristan Place) built by Council prior to it selling Lots 49 and 50. Harbord Road links Tristan Place to Campbelltown Road. Lot 1501 has left in access from Campbelltown Road, and egress to Harbord Road via Tristan Place. Both Lots 491 and 492 are denied access to Campbelltown Road. Figure 2, Ex 1, clearly shows the access road constructed by Council which traverses part of Lot 1501's panhandle, and part of Lots 491 and 492.

[5]

Environmental Planning and Assessment Act 1979 4.16 Determination (cf previous s 80) (1) General A consent authority is to determine a development application by - (a) granting consent to the application, either unconditionally or subject to conditions, or (b) refusing consent to the application. (2) Despite subsection (1), the consent authority must refuse an application for development, being the subdivision of land, that would, if carried out, result in a contravention of this Act, an environmental planning instrument or the regulations, whether arising in relation to that or any other development. (3) "Deferred commencement" consent A development consent may be granted subject to a condition that the consent is not to operate until the applicant satisfies the consent authority, in accordance with the regulations, as to any matter specified in the condition. Nothing in this Act prevents a person from doing such things as may be necessary to comply with the condition. … 4.17 Imposition of conditions (cf previous s 80A) (1) Conditions - generally A condition of development consent may be imposed if - (a) it relates to any matter referred to in section 4.15(1) of relevance to the development the subject of the consent, or (b) it requires the modification or surrender of a consent granted under this Act or a right conferred by Division 4.11 in relation to the land to which the development application relates, or (c) it requires the modification or cessation of development (including the removal of buildings and works used in connection with that development) carried out on land (whether or not being land to which the development application relates), or (d) it limits the period during which development may be carried out in accordance with the consent so granted, or (e) it requires the removal of buildings and works (or any part of them) at the expiration of the period referred to in paragraph (d), or (f) it requires the carrying out of works (whether or not being works on land to which the application relates) relating to any matter referred to in section 4.15(1) applicable to the development the subject of the consent, or (g) it modifies details of the development the subject of the development application, or (h) it is authorised to be imposed under the following - (i) section 4.16(3) or (5), (ii) subsections (5)-(9) of this section, (iii) section 7.11 or 7.12, (iv) Division 7.1, Subdivision 4, (v) section 7.32. (2) Ancillary aspects of development A consent may be granted subject to a condition that a specified aspect of the development that is ancillary to the core purpose of the development is to be carried out to the satisfaction, determined in accordance with the regulations, of the consent authority or a person specified by the consent authority. (3) A consent authority that has not determined a request to indicate whether a specified aspect of development has been carried out to the satisfaction of the consent authority, or a person specified by the consent authority, within the relevant period, prescribed by the regulations, applicable to the aspect or the development is, for the purpose only of section 8.7, taken to have determined the request by indicating that it, or the person, is not satisfied as to the specified aspect. (4) Conditions expressed in terms of outcomes or objectives A consent may be granted subject to a condition expressed in a manner that identifies both of the following - (a) one or more express outcomes or objectives that the development or a specified part or aspect of the development must achieve, (b) clear criteria against which achievement of the outcome or objective must be assessed. (4A) Conditions replaced by other legislative controls A development consent for the carrying out of development may be granted subject to specified conditions that cease to have effect on the issue of an authorisation under another Act relating to that development (or any part of it) if the consent authority is satisfied that the matters regulated by those conditions will be adequately addressed by such an authorisation when it is issued. The regulations may restrict the imposition of any such condition. … 8.7 Appeal by applicant - applications for development consent (cf previous s 97) (1) An applicant for development consent who is dissatisfied with the determination of the application by the consent authority may appeal to the Court against the determination. (2) For the purposes of this section, the determination of an application by a consent authority includes - (a) any decision subsequently made by the consent authority or other person about an aspect of the development that under the conditions of development consent was required to be carried out to the satisfaction of the consent authority or other person, or (b) any decision subsequently made by the consent authority as to a matter of which the consent authority must be satisfied before a deferred commencement consent can operate. … 8.14 Powers of Court on appeals (cf previous s 39(6A) Land and Environment Court Act) (1) In addition to any other functions and discretions that the Court has apart from this subsection, the Court has, for the purposes of hearing and disposing of an appeal under this Division, all the functions and discretions which the consent authority whose decision is the subject of the appeal had in respect of the matter the subject of the appeal. (2) The decision of the Court on an appeal under this Division is, for the purposes of this or any other Act or instrument, taken to be the final decision of that consent authority and is to be given effect to accordingly. …

[9]

Real Property Act 1900 47 Recording, variation and release of easements etc (1A) In this section, affecting interest means an easement, profit à prendre or restriction on the use of land. (1) When an affecting interest that burdens land under the provisions of this Act is created, the Registrar-General is to record particulars of the dealing creating the affecting interest - (a) in the folio of the Register for the land burdened, and (b) if the affecting interest is an easement or profit à prendre that benefits land under the provisions of this Act - in the folio of the Register for the land benefited. … (5) The Registrar-General may record a dealing effecting a disposition of a registered affecting interest in gross by making such recordings in the Register as the Registrar-General considers appropriate. (5A) The terms or site of a registered affecting interest may be varied by a registered dealing in the approved form, or by such a dealing and a plan illustrating the varied site registered or recorded under Division 3 of Part 23 of the Conveyancing Act 1919. (5B) The dealing effecting the variation and the plan, if any, must be - (a) executed by the registered proprietor of the land benefited and the land burdened by the affecting interest, and (b) accompanied by the written consent of every mortgagee, chargee or covenant chargee under a mortgage, charge or covenant charge recorded in the folio of the Register for the land. (5C) The Registrar-General may refuse to register any such dealing or plan unless it is supported by consents in writing to the registration of the dealing or plan signed by (or by an agent authorised by) such of the following persons as the Registrar-General may determine - (a) the lessee under any lease, or the judgment creditor under any writ, recorded in the folio of the Register relating to that land, (b) the caveator under a caveat relating to any estate or interest in that land. (6) An affecting interest recorded in the Register may be released wholly or partly by a registered dealing in the approved form. … (7) An affecting interest (being an affecting interest that benefits land) recorded in the Register shall not be extinguished solely by reason of the same person becoming proprietor of separate parcels of land respectively burdened and benefited by the affecting interest, notwithstanding any rule of law or equity in that behalf. (8) The provisions of subsection (7) shall only apply to easements and profits à prendre which, according to the Register, subsist at the commencement of the Real Property (Amendment) Act 1970 and to easements and profits à prendre recorded in the Register after that commencement. (9) Subsection (7) applies only to a restriction on the use of land recorded under this section after the commencement of Schedule 1 [10] to the Property Legislation Amendment Act 2005.

[11]

Applicant's submissions

The Applicant submits that Council's contentions are based on inadmissible extrinsic evidence, a flawed approach to construction and rewriting the DCC to achieve a so-called 'practical' effect, contrary to interpretive principles and the constating power in the EPA Act.
The matters for Council's satisfaction must be "specified" in the condition pursuant to s 4.16(3) of the EPA Act. "Specified" in this context means to state in explicit terms (Jolly v Yorketown District Council (1968) 119 CLR 347; [1968] HCA 55 at 351) rather than leaving matters to inference or speculation; it requires unambiguous clarity and precision: Gantry Acquisition Corporation v Parker & Parsley Petroleum Australia Pty Ltd (1994) 123 ALR 29; 51 FCR 554 at [569]-[570]. Council relies on matters listed in par [12] above that are not specified in the condition. 'Lawful' access is not limited to the registration of an easement on title, and 'two-way access' is not limited to passage across Lot 1501. The condition does not stipulate a minimum width or a standard for construction of the accessway nor that vehicles must be able to pass in different directions at the one time.
In any event, Lot 492 enjoys existing access over Lot 491 by: 1. Consent; 2. A cross-easement which is registered on the titles to Lot 491 and 492, as required by Condition 1.7 of Development Consent D86/379 for the McDonald's restaurant on Lot 49 (McDonald's DC); or 3. Condition 1.7 of McDonald's DC.
Presently, the Site and its neighbours comprise a small business park (Lot 1501, formerly Lot 50), a McDonald's Restaurant (Lot 491, formerly part of Lot 49), and the Site with a now closed Sizzlers restaurant (Lot 492, formerly part of Lot 49). Each lot has a frontage to Campbelltown Road, with Lots 491 and 492 having restricted access, and Lot 1501 having 'left-in access' only.
Council was the owner of all lots immediately before the 1985 subdivision which created Lots 49 and 50 in DP713913, when cross-easements were created "5 metres wide and variable" which were registered on the title of Lots 49 and 50. The cross-easements gave Lot 50 access across Lot 49 to Harbord Road, and Lot 49 was given similar access across the panhandle of Lot 50. The cross-easements enabled the construction of rear lane access for both Lots 49 and 50 to Harbord Road. A restriction on user was simultaneously imposed by Council on both Lots 49 and 50 to deny access to Campbelltown Road, hence making the cross-easements as the only lawful access to a public road for each Lot 491 and 492.
Relevantly, Council constructed the existing access road from Harbord Place to Lots 49 and 50 prior to the sale of those Lots. The alignment of the access road is not in conformance with the cross-easements as created, but rather partly on one and partly on the other, as demonstrated in Figure 4 of Ex 2 above. The existing access road is known as Tristan Place.
In 1987, Lot 49 was re-divided into Lots 491 and 492 in DP749194. McDonald's sealed the registered plan of subdivision, and it then sold Lot 492 to Collins Foods International, which obtained consent to erect a Sizzlers restaurant on the Site (DA 2730/87). At about the same time, McDonald's erected a restaurant on Lot 491 pursuant to McDonald's DC.
The Applicant purchased the Site in 2016, and the Sizzlers restaurant continued to operate until its lease expired in 2021. The Site is presently occupied by the now closed Sizzlers restaurant and carpark. The use can be revived at any time, and the consent does not have any conditions relating to external access to Harbord Road.
From approximately 1987 to date, the owners and invitees for Lots 1501, 492 and 491 have had the continuous use of the access road (approximately 6m wide) originally constructed by Council, with Lots 492 and 491 having two-way access, and Lot 1501 having egress only. The access road to Harbord Place incorporates part of the panhandle and part of the rear frontage of Lots 491 and 492, as is shown in Figure 4, Ex 1 above. Lot 492 has enjoyed free and full access for almost four decades through the access road (and across Lot 491) to and from Harbord Place. There are two reasons (at least) why that is so: 1. There is an easement for access benefitting Lot 492 and burdening Lot 491; and 2. Condition 1.7 of McDonald's DC required it to make available "appropriate access" to its neighbours.
The starting point in this case must be to determine what matters the DCC specified: ("Documentary evidence shall be provided to Council that the subject allotment (Lot 492 DP749194) has lawful two-way vehicular access to Harbord Road.") 1. Nature of the DCC: 1. The DCC's operation is very different to other conditions imposed by s 4.17(1)(h)(i) of the EPA Act. It relates only to a matter or event which must exist or not before the consent can commence to operate. It may require something to be done in order to achieve this position which is why s 4.16(3) of the EPA Act provides that nothing in the EPA Act prevents a person from doing such things as may be necessary to comply with the condition, such as acquiring an easement right that benefits Lot 492 and burdens Lot 491. However, once the DCC is satisfied, it is discharged and has no continuing operation, i.e. it is not an operational condition of consent. This distinction is reinforced by s 76(2) of the EPA Regulation, which provides that a DCC must clearly distinguish between conditions that relate to matters about which the consent authority must be satisfied before the consent can operate and other conditions. Of course, nothing prevents the consent authority from providing that the event or matter, the subject of such a condition, should also exist during the operation of the development, but to do so would involve imposing a different type of condition under s 4.17 of the EPA Act. Nothing in the terms of the operational consent required lawful two-way access to Harbord Place. It follows that the DCC does not have any enduring effect. 2. Council relies upon extrinsic material to construe this condition, as set out in par A.6 and A.7 of Council's SOFAC Ex 1: Mr Brown's letter to Council dated 13 December 2021, requesting Council to grant a DCC to give the Applicant an opportunity to obtain access rights over Lot 491. Ordinarily development consents must be construed in accordance with their terms and without regard to extrinsic material unless incorporated expressly or by necessary implication: Hunter Industrial Rental Equipment Pty Ltd v Dungog Shire Council (2019) 101 NSWLR 1; [2019] NSWCA 147 (HIRE) at pars [47], [268]. However, it is also permissible to refer to the development application and documents that were statutorily required to accompany the DA, and to be notified to objectors, solely to understand the nature, extent and other features of the development for which consent was sought: HIRE at pars [64], [80], and [311]. 3. The request (Mr Brown's letter 13 December 2021) is not part of the development application, so its terms would not have been notified to objectors and it has nothing to do with the description of the development for which consent was sought. It does not fall into the category of extrinsic material that may be considered in determining the scope of approved development. It cannot therefore be used in construing the condition. 4. The use of this extrinsic evidence also offends the principle that conditions must be given an objective construction, and the subjective intentions of the drafter and the Applicant for consent are irrelevant: House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498; [2000] NSWCA 44 at par [37]; K & M Prodanovski Pty Ltd v Wollongong City Council (2013) 195 LGERA 23; [2013] NSWCA 202 at par [23]. 5. The DCC requires a lawful access, not an easement. One reason why this is significant is that the terms of the condition do not reflect the request (Mr Brown's letter 13/12/21) by the Applicant. The request was predicated on the Applicant not having existing access rights over Lot 491. The request (Ex 2, tab 36, pp 340-341) speaks of the need for the Applicant to acquire a legal right over Lot 491. The words 'right', 'easement' and 'Lot 491' do not appear in, and are not specified by, the condition. Instead, the condition specifies lawful access, whereas the "right" envisaged in the request was one to be created by agreement or court order - inevitably, by the creation of an easement for access (right of carriageway) over Lot 491. 6. Council when imposing the DCC did not specify the kind of lawful access which it sought. The condition requires only lawful access and not the creation of an easement. It should be contrasted with the DCC that was considered in Hillpalm Pty Ltd v Tweed Shire Council (2002) 119 LGERA 86; [2002] NSWLEC 17 (Hillpalm) at par [7]. "… 1. Submission of documentary evidence to the satisfaction of the Director of Development Services demonstrating that the proposed right of carriageway, 10 metre wide, shown on DP 601049 or the amended right of way alignment, shown on Appendix C of the development application has been created and registered in the Land Titles Office…" It was open to Council to specify with particularity the nature of the interest to be acquired in order to secure access, but it failed to do so. It cannot now revisit history by relying upon the request to give force to its construction of the condition in order to displace its literal meaning when it chose to apply terms that were flexible, and did not specify the registration of an easement on title. Precisely the same point was made in Sunland Group Ltd v Gold Coast City Council (2021) 274 CLR 325; [2021] HCA 35 (Sunland) at pars [4], [30] and [56 - 57], where a comparison was made between a specific condition imposing a liability in another consent and the failure to do so in the Sunland consent, a comparison that the plurality described as telling in par [4]. 1. Council's additions concerning width and vehicle behaviour are based on a misconstruction of the condition. Council has not only added a requirement for an easement over a specific lot, but it also argues that the condition should have a practical effect by requiring the access to be 6m wide (kerb to kerb) in accordance with a particular Australian Standard, and to allow vehicles to pass whilst travelling in opposite directions. None of these matters are specified in the condition: s 4.16(3) of the EPA Act. 2. Previously conditions of consent were construed so as to give them "practical effect". The practical approach to construction has been endorsed in numerous cases in this Court and the Court of Appeal based upon a statement by Hodgson JA in Westfield Management Ltd v Perpetual Trustee Company Ltd [2006] NSWCA 245 at pars [36] and [40] (Westfield) to the effect that a development consent should be construed like a contract to preserve its validity and to avoid uncertainty to give practical effect to the object of the consent. The first principle of construction of consents applied by the Court and based on Westfield was that "consents are to be construed not as documents drafted with legal expertise, but to achieve practical results": Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd (3) [2015] NSWLEC 75 at par [93] (Westlime); Roberts v Blue Mountains City Council [2012] NSWLEC 2 at par [53]. Although Preston CJ and Robson J (correctly in the Applicant's view) said that "practical considerations do not permit a rewriting to meet what the Court may think is a practical outcome": Hitchcock v Reed [2022] NSWLEC 81 at par [63], citing J K Williams Staff Pty Ltd v Sydney Water Corporation (2021) 249 LGERA 109; [2021] NSWLEC 23 at par [61], and a similar approach was taken by Duggan J in Omaya Investments Pty Ltd v Dean Street Holdings Pty Ltd (No 5) [2020] NSWLEC 9 at pars [30] - [31]. These later decisions reflect the criticism of the practical approach to the construction of planning instruments which Basten JA levelled in Wingecarribee Shire Council v De Angelis [2016] NSWCA 189 at par [20] and 4 Nature Inc v Centennial Springvale Pty Ltd (2017) 95 NSWLR 361; [2017] NSWCA 191 at pars [43] - [46]. 3. The first principle is no longer of authority and should not be followed. Development consents, including their conditions, must be construed as any other statutory instrument, according to the principles of interpretation that apply to statutes generally. In Sunland, the High Court rejected the approach to construction of conditions of a development consent as proposed in Westfield and adopted in Westlime. The appellants had submitted that the conditions were to be read not in a technical way, but to bring about a practical result and so resolve any uncertainty in the language used, and the Court should not scrutinise the conditions in the same way as the words used by a parliamentary draftsperson: Sunland at pars [50], [51]. Steward J (with whose conclusions Kiefel CJ, Keane and Gleeson JJ agreed) said that the conditions were not to be construed like any other contract, but: "…rather in accordance with the rules of construction governing the interpretation of Acts of Parliament and subordinate instruments…" par [58]. Gordon J, although dissenting in part, also expressly rejected the appellant's submission at par [21]. The dispositive reasoning of Sunland is inconsistent with Hodgson JA's statement in Westfield and therefore Westlime's first principle of construction. 1. In Sunland, the conditions in question did not require a payment of a contribution nor did they specify a due date for payment or a formula for calculating such a date, but it was nonetheless submitted that the payment obligation could be inferred by departing from the meaning of the conditions to achieve what was presumed to be the object of the transaction as if the principles of contractual interpretation applied. That approach to construction was rejected by the Court. 2. There is therefore no ground for loosely construing the condition to achieve some practical effect, such as the registration of an easement burdening a particular title or the creation of an enduring right for some numeric width of access to enable simultaneous passing of vehicles travelling in opposite directions, each of which involves a departure from the literal meaning of the DCC. 1. Result of Council's errors of construction: the three props for Council's construction of the condition are removed: 1. Inadmissible extrinsic evidence to prove subjective intention. It cannot be used to supply words which narrow its import. 2. Recourse to the assumption that some practical consequence is sought to be achieved and words that effect that consequence can therefore be added or implied, in defiance of the requirement for specificity, and the terms of the DCC itself. 3. Departure from literal meaning is justified because conditions should not be construed as if they have been drafted by Parliamentary Counsel. On the contrary, literal meaning may only be displaced in the circumstances authorised by the principles of statutory interpretation. 1. It is highly improbable that a condition whose purpose is to specify matters would be construed to depart from literal meaning by implying or adding matters not so specified. That would offend two principles of statutory construction; the first that words must be construed in context and the second that no construction should displace or undermine the statutory scheme: Taylor v Owners-Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9 at par [39]. Moreover, that Council now regrets having drafted the conditions without specificity is irrelevant; the Court has no authority to reconstruct the condition in order to overcome unintended consequences: Esso Australia Pty Ltd v Australian Workers' Union (2017) 263 CLR 551; [2017] HCA 54 at par [52].
In relation to the proper construction of the DCC: 1. The DCC calls for evidence that Lot 492 'has' lawful access, ie. the present tense, not the future tense, and so addresses the position existing at the date on which the evidence is provided in order to satisfy the condition. For these proceedings, that is before the trial. The DCC could have been expressed as requiring enduring access, or linked to the period of operation of the DC. Just as in Sunland, those temporal variations are not to be found in the condition. That this might limit the DCC's effectiveness (the 'practical' approach) is irrelevant. 2. The fact that the condition is exhausted once satisfaction occurs, unlike s 4.17 of the EPA Act conditions, is relevant to its construction. Council could have adopted a Hillpalm condition and imposed a requirement to obtain registration of an easement. It did not do so. 3. In drafting the DCC, Council made a deliberate choice not to employ the familiar language which calls up the obligation to register interests on title for ancillary infrastructure necessary to make the development work. 4. The DCC does not require access over any particular land. It is not limited to access over Lot 491, as Council contends. Although consistent with the request, such an implication could only be made by recourse to inadmissible extrinsic evidence, or by ignoring the requirement for specificity, or by a wholesale departure from principles of statutory construction.
Four conclusions follow from this analysis: 1. Sufficient compliance with the DCC will be demonstrated by proof of lawful access in the present. 2. Lawful access is not restricted to the creation and registration of an easement on title. 3. Lawful access is not limited to access over Lot 491. 4. No Australian Standards, such as road width, are imposed by the DCC.
Misuse of extrinsic evidence to construe a condition - see pars [A.6 -A.7] of Council's SOFAC Ex 1. It is a letter on behalf of the Applicant to Council dated 13 December 2021, requesting Council to grant a DCC to give the Applicant an opportunity to obtain access rights over Lot 491; "We lodged an amendment to the application on 4 November 2021 seeking vehicular access from Campbelltown Road. We also note Transport for NSW and Campbelltown City Council resistance to such access arrangements. Access from such road was sought on the basis that legal access from Tristan Place was not available for the full width of such right of carriageway, as documented in previous correspondence and shown below (meaning Ex 1 Figure 2 as above) with the red shaded area owned by the adjoining property of Lot 491… … To obtain consent in a form that would be suitable to the three (3) franchises we request that Council issue a "Deferred Commencement" consent with Part A of the "Approval" stipulating a time period of five (5) years in which to obtain a legal right over Lot 491…" 1. Before the proceedings commenced, the Applicant formed the view that there was no legal right of access over Lot 491 to Lot 492, despite the fact that access had been achieved successfully over approximately 40 years. The Applicant subsequently wrote to McDonald's on 24 August 2023 and attached a valuation by Mr Kent Wood, and offered them more than that shown in the valuation. The Applicant offered McDonald's $150,000 whereas Mr Wood's valuation determined the value of the easement at $114,000 (Ex B, tab 10, pp 56-97). By email on 20/09/2023, McDonald's rejected the offer on the basis of their legal advice that the easement existed, and McDonald's had an obligation to provide that access, as they had been doing since 1987 (Ex B, tab 9, p 54). 2. So that's the first extraordinary feature of this case, that both the party burdened and the party benefited by the right of carriageway do not make any complaint about it not existing or not being sufficient. The private parties who own the easement for access and own the land say there is an easement for access and that, therefore, access is undertaken lawfully in accordance with it. It is only Council that is not a party to the easement which, as a third party, says "No, this easement does not exist". 3. In relation to Council's reliance on extrinsic material, the Applicant submits that ordinarily development consents must be construed in accordance with their terms, and without regard to extrinsic material unless incorporated expressly or by necessary implication: HIRE at par [47]. However, it is also permissible now to refer to the development application and documents that were statutorily required to accompany the development application, and to be notified to objectors, solely to understand the nature, extent, and other features of the proposed development: HIRE at pars [64], [80] and [311]. 4. The Applicant's request for confirmation that it has met the DCC is not part of the development application. It does not fall into the category of extrinsic material that may be considered in determining the scope of approved development. It cannot therefore be used in construing the condition. 5. The use of the identified extrinsic material also offends the principle that conditions must be given an objective construction, and the subjective intentions of the drafter and the Applicant for consent are irrelevant: House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498; [2000] NSWCA 44 at par [37]; K & M Prodanovski Pty Ltd v Wollongong City Council (2013) 195 LGERA 23; [2013] NSWCA 202 at par [23]. 6. The second feature is that prior to the purchase of the Site, the Applicant took advice from a leading property lawyer, Mr Gary Best, a partner of Clayton Utz, and asked him to perform due diligence. Mr Best's due diligence report concluded that there was an easement (Ex B, tab 12 pp 100 and 106): "Right of Carriageway DP 713913: The owner of the Property has the right to go, pass and repass (with or without animals or vehicles or both) over that part of the adjoining land marked '(W)' (as shown on DP 749194 at Attachment 1)." 1. The third matter of significance is the original development consent for the McDonald's subdivision of Lot 49 into Lots 491 and 492 being McDonald's DC, and Condition 1.7 states (Ex B, tab 5 p 19): "The site shall be subdivided and appropriate access made available to adjoining land. In this regard, a subdivision application shall be lodged with Council for approval prior to the release of the building application." 1. The application for both development consent and subdivision is in Ex B, tab 3, p 5 Deposited Plan 749194, signed by the surveyor Antony John Thorne dated 26 August 1987, and Council's certification that "the requirements of the Local Government Act 1919 (other than the requirement of the registration of plans), …" was dated 7 September 1987 Council's File No. F.19246. Further, Ex B, tab 3, p 7 states in the Condition of Consent: "2.0 Road Construction Notwithstanding the specific conditions of this approval all lots and roads created shall conform with Council's current Specification for Construction of Subdivisional Road and Drainage Works, and Stormwater Management Policy. In this regard the applicant is to liaise with the City Engineer." 1. The subdivision application is No S30/187 (Ex B, tab 10, p 110), and the description of the proposed subdivision is at the bottom of p 110: "Two-lot subdivision in accordance with Clause 1.7 of Development Application Consent No. 86/379 lodged by McDonald's Properties (Aust.) Pty. Ltd". There were 3 further communications in Ex B, as follows: 1. Tab 14 pp 112-113: McDonald's letter to Council dated March 30, 1987, enclosing the Subdivision Application; "Mr Moore indicated that NSW Traffic Authority guidelines may require the provision of a 6.5 metre wide access road having regard to the developments which will utilise the properties. The constructed road width is 6 metres (as advised by Council) … it has been suggested that this width should be increased to 6.5 metres Having regard to the nature of the uses that will utilise the right-of-way i.e. two family restaurants and a furniture store, it would appear that the traffic generated by such developments would be a constant flow rather than experiencing peak periods and low periods. Due to the even traffic flow, it is suggested that the existing carriageway of 5 metres would be sufficient to accommodate vehicular traffic generated by the proposed developments It is requested that the existing width be considered satisfactory for the proposed subdivision." The transfer of Lots 492 from McDonald's to Collins Foods International (Properties) Pty Ltd is in Ex B, tab 14, p 114 and dated 19 October 1987 with the Land Titles Office registration No. X166260. 1. On 13 July 1987 Kevin F Brown and Associates, on behalf of the Applicant, wrote to the Council (Ex B, tab 13 p 111): "…We would be pleased if your City Engineer would advise us as to what works, if any, are required by your Council in this subdivision." 2. Council responded to Kevin F Brown & Associates in a letter dated 4 August 1987 (Ex B, tab 13 p 109): "…All Public Works associated with the above lot have already been completed and no further engineering condition related to works in the Public Road Reserve are required." 1. So therefore, Council approved the subdivision No S30/87, and the City Engineer replied to the enquiry by Kevin F Brown & Associates dated 13/07/1987 through the Town Clerk (Ex B, tab 13 p 109) that the roads were satisfactory, no further works were necessary, so the road did not have to be widened to 6.5m. 2. This subdivision No S30/87 is the one which produced the title diagram that the Applicant says is the starting point for analysing easement rights, and it's the title that was created as a consequence that is the source of the rights, and the relevant subdivision plan that was approved is behind tab 3 of Ex B. This is the stamped plan, and the reference to the consent is S30/87 (Ex B, tab 3, p 4). 3. In Ex B, at tab 3 on p 4, the stamped plan of subdivision No S30/87 shows the legend on the right hand side of the page, and the circle crossed through is the right of carriageway, 5m wide and variable, and so it shows both the right of carriageway affecting Lots 492, 491 and 50. Then in Ex B, at tab 3 on p 5, there is the registered plan for DP749194, and it has the Council Clerk's Certificate on the left-hand panel, that it has complied with the provision relating to the Local Government Act 1919 dated 7 September 1987 and signed by Council Clerk. The notation '(W)' Right of Carriageway 5 wide & Variable (vide DP713919) is on Lots 491 and 492, but no notation is on Lot 150's panhandle. There is no indication of an easement in the panhandle because this was a subdivision creating rights between Lots 491 and 492. The notation '(W)' reflects the easements referred to on title. 4. There are only two locations to which the benefit and burden of the right of carriageway could relate in reference to notation '(W)', so that's the cross easements for Lots 491 and 492 and that was done in order to implement Condition 1.7 of McDonald's DC. The fact that the easement is shown on an earlier title diagram as being the point at which it was created is interesting, but under the current Torrens system principles, it is not the primary source of evidence; that is the title diagram and the title. 5. On 20 September 2023, Katherine Chapman, Senior Legal Counsel, McDonald's Australia emailed the Applicant's solicitor, John Cole (Ex B, tab 9 p 54) stating, inter alia: "…I believe your client (Storty Pty Ltd) already has the rights of carriageway easement over McDonald's land which you are proposing to purchase. For your benefit, I have set out my summary of the title documents below: - Title documents * Storty's title (being, Lot 492/DP749194) specifies that Storty has the benefit and burden of carriageway easement created by DP713913 (see Ref 3 & 4 of the title). * The carriageway easement is shown marked '(W)' on the title plan (DP749194). - Original document creating easement DP713913 * The carriageway easement was originally created by DP713913, and shows a carriageway easement marked over "Lot 49". * Lot 49 was later subdivided to Lot 491 and 492. As the carriageway easement runs with the land, when Lot 49 was subdivided the carriageway created on that Lot 49 land carried over on the new title documents created. The carriageway easement shown on Lot 49 is the same easement area marked '(W)' shown on DP749194 (being the new title plan post-subdivision). - Easement terms (section 88B referred on DP713913) * Ref 4 of the 88B Instrument states that the relevant carriageway easement benefits and burdens both Lot 49 (now Lots 491 and 492) & Lot 50 (being the far end lot). Unless I have missed something, the easement rights your client is proposing to purchase are already shown as benefitting you (sic) client's title (as referred to on the title and marked on the title plan)."
The Court would be satisfied that McDonald's granted lawful access to Lot 492 over Lot 491 pursuant to Condition 1.7 of the McDonald's DC by the Plan Showing Proposed Subdivision of Lot 49 in DP713913 (Ex B, tab 3 p4) and the Certification by Council and registration at the Land Titles Office of DP749194 (Ex B, tab 3 p 5).
In the alternative, the Applicant has always had, and still has, the right to enforce McDonald's to comply with Condition 1.7 of McDonald's DC. The planning purpose of Condition 1.7 is evident, and it would be enforceable today in the event of breach, as McDonald's continues to carry out the development authorised by the McDonald's Consent. There is no problem such as that which arose in Hillpalm, where the relevant development (subdivision) had been completed and was not being carried out so as to engage the prohibition in the EPA Act and enable enforcement of its condition. Here the relevant consent was for the erection and use of food premises, which continues to this day, and Condition 1.7 applies to provide access across McDonald's land to and from Lot 492.
On any view of the DCC, it has been satisfied.

[12]

Council's submissions

On 29 March 2021 Development Application No 962/2021/DA-C was submitted to Council, and on 8 February 2022 Council granted a deferred development consent (Deferred Consent), with the DCC as set out in par [3] above.
On 4 July 2022 and 23 December 2022, the following documentation was submitted to Council to seek to satisfy the DCC: 1. Letter from Michael Brown Planning Strategies dated 4 July 2022; 2. Deed of Agreement made on 1 July 2022 between Galop Holdings Pty Ltd (registered proprietor of Lot 1501 in DP1080698) and the Applicant (Deed); and 3. Letter from J Cole Planning Solicitors dated 23 December 2022 expressing the opinion that the DCC had been satisfied.
On 17 January 2023 the deemed refusal period commenced in respect of the application to satisfy the DCC. On 27 January 2023 Council refused the application.
On 31 January 2023 the Applicant filed the Class 1 Application which comprises the Deferred Consent 962/2021/DA-C and the documents identified in par [20] above.
Firstly I shall take you through Ex 2, Council's Bundle of Documents:

Tab 1: Deferred Commencement Consent No 962/2021-DA-C, and p 1 has the Notice of Determination dated 7 February 2021, expiring on 7 February 1927. On p 2 there is the DCC which begins with "Documentary evidence". So that is the matter of controversy which you have the benefit of submissions from the parties on.
Then there are the following conditions of consent, but I draw to your attention:
Condition 7 which required gradients in driveways and manoeuvring areas to the design in accordance with AS.2890.1 and AS 2890.2 as amended.
Condition 44 relates to protection of existing trees.
Condition 52 - associated works. The parties agree that this condition is of assistance to reconstruct the drainage, the dish drain, which clearly has been affected by time and use over the years, which cars must pass across to get to the existing laneway and works of that kind of a minor nature within the existing laneway. This is referring to wear and tear on the existing Tristan Place roadway constructed by Council in approximately 1987.
Tab 2 correspondence setting out negotiations between the parties and Council's refusal to be satisfied in relation to compliance with the DCC. This correspondence is no longer relied upon by the Applicant.
Tabs 3, 4, 5, 6, 7 and 8 contain certificates of title respectively for Lots 491 (McDonald's land), 492 (Storty's land) and 1501. My submission is the way you read those references to the easements shown in the second schedule at items 3 and 4 is those matters identify the right of carriageway as shown in DP713913. So in order to understand what rights those easements grant, you need to also look at DP713913 because when you look at Tab 6, p 49 of Ex 2 DP749194, the '(W)' in brackets shown as the right of way and the reference to it on the plan where it has the description '(W)', right of carriageway, 5 wide and variable, vide DP713913, is the direct same reference to the right of carriageway, 5 wide and variable, shown on DP713913. Tab 6, p 50 contains DP713913 and in the right hand column it identifies "4. Rights of carriageway 5 wide & variable". Tab 8, p 51 contains the 88B instrument: "4. …Right of Carriageway, 5 wide and Variable", and you will see those words on DP749194 under Tab 6 p 49. So that part of the lot that is burdened on Lot 49 being the right of carriageway 5 wide & variable benefits Lot 50, and that part of the right of carriageway that burdens Lot 50 benefits Lot 49, as set out in the 88B instrument. So, when you come back to Tab 6 p 49 of Ex 2, that is how you read the reference to '(W)' in terms of its right of way because it says "vide 713913". Deposited Plan 749194 does not create cross easements. All it does is note that same right of carriageway that is shown in DP713913, because if the Applicant is correct and DP749194 does create cross easements for Lots 491 and 492, then without reference to DP713913 there is no right over what everyone is calling the panhandle on Lot 1501 by reference to DP749194. If DP749194 was to create cross easements between Lots 492 and 491 that were different to those created in DP713913, then that would have been stated in the right hand panel of DP749194: "Panel for use for statement of intention to dedicate public roads or to create public reserves, drainage reserves, easements or restrictions as to user". When you look at DP713913, there is no reciprocal right of carriageway between Lots 491 and 492 - there could not be because the lots were not created at that time. When you look at DP713913, the only rights are for people to travel across Lot 49 (later known as Lots 491 and 492) to access Lot 1501. In other words, the burden did not flow between Lots 491 and 492 but the benefit to Lot 1501 did. There is no right of way that burdens Lot 491 for the benefit of Lot 492.
Tab 10 p 53: Deposited Plan 1080698 which created a plan of definition for Lot 1501, depicts as 'E' right of carriageway 5 wide & variable (vide DP713913). It refers to DP713913 in order to interpret the terms of the easements. So there is an inconsistency between the approved plan in Ex B, Tab 3 p 4 "Proposed Plan of Subdivision of Lot 49 DP713913" and p 5 DP749194. The Proposed Plan on p 4 depicts the panhandle easement as a circle with a line through it, and the easements on Lots 491 and 492 with a '(W)'. The DP749194 on p 5 does not depict any easement on the panhandle, only the easements on Lots 491 and 492 as '(W)'.
At Tab 11 pp 55-57 there are some extracts from the NSW planning portal and spatial viewer, showing the site boundaries, and on p 57 an aerial photograph of the Site and surrounds. Consistent with what we saw on the site view, Tristan Place is not entirely within the panhandle, as there is a small section of the panhandle located within the right of way and the entry within Lot 491.
Tab 12 p 58 contains a survey of the Site.
Tabs 15 to 36 pp 80 - 431 (excluding Tabs 22-32) contain a number of documents that formed part of the development application. The relevance of these documents is that they all propose access via Tristan Place. Tab 36 pp 430 and 431 is a letter from Michael Brown, the Applicant's town planner, to Council dated 13 December 2021. Mr Robertson SC objected to this letter, but Council presses it as part of the development application documentation.
Tab 37A contains relevant extracts from the EPA Act.
Tab 37B contains s 8.7 of the EPA Act. The appeal is pursuant to s 8.7(1) and the relevant part is s 8.7(2)(b) relating to satisfaction of a deferred condition of consent - Council was not satisfied by the application. That is, the application that was before the Council, and as set out in AQC Dartbrook Management Pty Ltd v Minister for Planning and Public Spaces [2021] NSWCA 112 (AQC Dartbrook), the exercise of that power, of the Council's power to be satisfied relates specifically to the application that was before Council. In applying AQC Dartbrook [235] to [244], the only documents you are permitted to consider are those documents attached to the Class 1 Application. Council submits that it is the same here because there is no express entitlement in the EPA Act to amend the application made to satisfy a deferred commencement condition. If the Council is not satisfied, then the Applicant can make a further application to satisfy the DCC, provide further documentary evidence or other documentary evidence. That's how the statutory scheme works in terms of the Council.
Tab 41A - the road rules. There is a difference of opinion as to the proper interpretation of the definitions of "road" and "road related" area, upon ss 11 and 12 of the Road Rules 2014: 11 Rules apply to vehicles and road users on roads and road related areas (1) These rules apply to vehicles and road users on roads and road related areas. … 12 What is a road (1) a road is an area that is open to or used by the public and is developed for, or has as one of its many uses, the driving or riding of motor vehicles. …

When you read ss 11 and 12 of the Road Rules 2014 it says nothing about whether the road must be owned by a public authority. It just says, "an area that is open to be used by the public and is developed for or has as one of its main uses the driving or the riding of motor vehicles". There is no distinction between the boundary of Lot 491 and the panhandle, and the public road of Tristan Place. There is nothing to stop people from entering onto it or continuing through. It is, for all intents and purposes, for the driving or riding of motor vehicles. It is open and it is used by the public that wish to travel to Lots 1501 491 to go to McDonald's, so it is the Council's position that the Road Rules 2014 apply equally to Tristan Place that is in private ownership, and Tristan Place that is in public ownership. The Road Rules 2014 do not apply on entering through the gates to Lots 1501 or 491. So when you come to construe what lawful two-way access requires in development consent, lawful also must include being in compliance with the Australian Road Rules, and the relevant part of the Road Rules 2014 is s 129 (Ex 2, Tab 41C p 555), except a multi-lane road, where a vehicle must drive as near as practicable to the left side of the road, and s 131 keeping to the left of oncoming vehicles.
Council accepts that if on the application of the deposited plans attached to the Class 1 Application (Ex C), the Court finds that those documents do show a right of carriageway over Lot 491 in favour of Lot 492, then the DCC is satisfied.
In considering whether Lot 492 has an existing right to traverse Lot 491, Council sets out in detail the subdivision history of the Site and adjoining land as follows: 1. When Lot 49 in DP713913 was subdivided into Lots 491 and 492 in DP749194, DP749194 conferred no rights of access over Lot 491 to the benefit of Lot 492 (which would have ensured access to Lot 492 over the formed road which is Tristan Place, which goes across Lot 491). 2. Rather: 1. Lots 491 and 492 only had the benefit of the right of carriageway (created by DP713913) over the panhandle of what is now Lot 1501. This is the right of carriageway identified in item 3 of Schedule 2 of the title which is appurtenant to Lot 492 being DP749194 (Ex 2 tab 4 p 46); and 2. Lots 491 and 492 were burdened by the right of carriageway (also created by DP713913) in favour of what is now Lot 1501. This is the right of carriageway identified in item 4 of Schedule 2 of the title which burdens Lot 492, ie DP749194. 1. In effect, this created the undesirable practical outcome whereby, to enter or exit the Site via Tristan Place to get onto Harbord Road, vehicles traverse over Lot 491, for which there was no right of access. This is set out in detail below. 2. Council accepts that the starting position is the title for Lot 492. The title relevantly provides: 1. In the Second Schedule, at item 3: "3. Easement(s) appurtenant to the land above described created by: … DP713913 Right of Carriageway 5 wide & variable width" 1. In the Second Schedule, at item 4: "4. Easement(s) affecting the part(s) shown so burdened in the title diagram created by: DP713913 Right of Carriageway" 1. Both Items 3 and 4 identify the same right of carriageway and direct attention to the DP713913. Item 3 identifies that Lot 492 is benefitted by the right of carriageway in DP713913, while item 4 identifies that it is also burdened by that right of carriageway. 2. The title diagram DP713913 depicts the following (yellow highlighting added): 3. Furthermore, the inset on the left-hand side of DP713913, of the intersection of Tristan Place with Harbord Road, depicts the following (yellow highlighting added): 4. The key in DP713913 with the circle struck through and half shaded indicates the right of carriageway 5 wide. 5. It follows that DP713913 does in fact show the "right of carriageway, 5 wide and variable", contrary to the Applicant's submission, the Applicant wrongly asserts that "[a]lthough created by the registration of DP713913 as a right of carriageway, that is not the plan which shows the location of the easement." 6. Further, the "[i]nstrument setting out terms of easement and restrictions as to user intended to be created pursuant to section 88B of the Conveyancing Act, 1919, as amended" identifies the following in relation to the rights of carriageway: "4. Identity of easement Right of carriageway 5 wide and or restriction fourthly variable referred to in above- mentioned plan. Schedule of lots, etc, affected Lot burdened Lots, name of road, or Authority, benefited 49 50 50 49" 1. This instrument therefore: 1. Burdens Lot 49 (and all future emanations of Lot 49, namely Lots 491 and 492) with a right of carriageway 5 wide and variable (over that area to the south of the panhandle), and Lot 50 (and all future emanations of Lot 50, relevantly Lot 1501) has the benefit of this right of carriageway. Thus, in its current form, both Lots 491 and 492 are burdened by the requirement to allow traffic to travel across that part of their Lots to access Lot 1501; and 2. Burdens Lot 50 (and all future emanations of Lot 50, relevantly Lot 1501) with a right of carriageway 5 wide and variable (over the panhandle portion of Lot 50), and Lot 49 (and all future emanations of Lot 49) has the benefit of this right of carriageway. Thus, in its current form, Lots 491 and 492 benefit from a right of carriageway over Lot 1501 (ie the panhandle). 1. The instrument says nothing about any interest Lot 492 has over Lot 491. Nor could it, because neither of those lots had been created at the time title diagram DP713913 was registered. This occurred later. 2. There is nothing further to be discerned from Schedule 2, items 3 and 4 of the Certificate of Title. The easement appurtenant to Lot 492, that is the easement over which Lot 492 has the benefit, is that over Lot 1501. That is all. That is all that is created by DP713913. There is no benefit created by DP713913 for Lot 492 over 491, those two lots were simply not in existence, so no such interest could be created. 3. When Lot 49 was subdivided (by DP749194), it was necessary for the lot to the east, closest to Harbord Road (ie Lot 491), to have a registered easement over it to allow the lot to its west (ie Lot 492) to have access over it. This did not occur, and this is the reason why the DCC was imposed. 4. The Applicant's submissions erroneously direct and sought to fixate the Court's attention to title plan DP749194. The Applicant says in its written submissions are pars [51] and [52]: "[51] Although created by the registration of DP713913 as a right of carriageway, that is not the plan which shows the location of the easement. DP749194 is that plan and it shows an easement in the location of the symbol "(W)". That symbol appears on both Lots 491 and 491. … The symbol is not similarly placed within the panhandle on Lot 1501 (at the time it was shown as Lot 150 DP733438 - Lot 1501 was created subsequently). So, it must be the case that Lot 491 is burdened by an easement that can only benefit Lot 492. … "[53] …They are cross-easements which both benefit and burden Lots 491 and 492…That the panhandle is also a beneficiary of this arrangement is irrelevant because the critical document is not DP713913 but DP749194, the title diagram to Lots 491 and 492. It does not describe an easement benefiting nor burdening the panhandle but two easements, one benefiting, and the other burdening Lots 491 and 492." 1. The fundamental error in the Applicant's submission is the suggestion that DP713913 does not show the right of carriageway. This is wrong, DP713913 does in fact show the right of carriageway. 2. The Applicant seeks to convince the Court that the right of carriageway shown on DP749194 and marked with a '(W)' on Lots 491 and 492, but not on what is shown as Lot 150, indicates that there is in fact an easement benefiting Lot 492 over Lot 491. This is wrong for two reasons. 1. First, it ignores the notation on DP749194. The key in DP749194 indicates: "'(W)' - right of carriageway 5 wide & variable (vide DP713913)" 1. The word "vide" means "see" or "consult". That is, the notation directs the user to consult DP713913. The '(W)' does not purport to show the whole of the right of carriageway created by DP713913; and therefore does not create any new rights between Lots 491 and 492. All the notation '(W)' does is identify the area within DP749194 that is subject to the right of carriageway and direct the user to consult DP713913. And, as explained above, DP713913 indicates that there is a right of carriageway which provides benefit to Lot 49 over the panhandle, and burdens that part of Lot 49 for 5m south of the panhandle for the benefit of Lot 50 only (not future subdivisions of Lot 49). 2. Second, the Applicant places substantial weight on the '(W)' being drawn only in respect of Lots 491 and 492, but not Lot 150. However, this creates no new rights. DP749194 continues to reference the original instrument, "vide DP713913". Further, the Panel containing the description "PANEL FOR USE ONLY for statements of intention to dedicate public roads or to create public reserves, drainage reserves, easements or restrictions as to user" is left blank. 3. DP749194 is a "Plan of subdivision of Lot 49 in DP713913". It appears to only show notations within that deposited plan. Lot 150, as it was at the time, was in a different deposited plan, namely DP733438. The user is required to go both to DP713913 and to DP733438 to understand how the right of carriageway operates in respect of Lot 150. 1. Indeed, the Applicant has omitted reference to the relevant plans and subdivision history (necessary to understand the operation of the right of carriageway established in DP713913, not, as the Applicant appears to assert, as some form of derivative indefeasibility). Briefly setting out these plans provides necessary clarity: 1. DP713913 is a "Plan of subdivision of Lots 5, 7 & 8 DP261672" registered on 24 July 1985. It depicts a large Lot 51 (7.609 ha), a smaller Lot 50 to the east (8,067m2), and to the east again Lot 49 (1.201 ha). Portions of this plan are extracted above (see par [20] and following), but a wider extract of this plan is extracted below (yellow highlighting added showing the creation of the right of carriageway): 1. DP733438 is a "Plan of subdivision of Lot 50 DP713913 and Lot 16 DP713914" registered on 23 May 1986. The former Lot 50 DP713913 is replaced by Lot 150 DP733438 and increases in size (to 1.009 ha). In this plan Lot 49 remains intact. This plan shows the right of carriageway marked with a half-shaded triangle on both the panhandle of the new Lot 150, and to the south of the panhandle on Lot 49. This is extracted below (yellow highlighting added): The key in DP733438 indicates: circle struck through with half shading: right of carriageway 5 wide & variable vide DP731913. 1. DP749194 is a "Plan of subdivision of Lot 49 in DP713913" registered on 22 September 1987. The former Lot 49 DP713913 is replaced by Lots 491 and 492. This is extracted below (yellow highlighting added): 1. DP1080698 is a "Plan of redefinition of Lot 150 in DP733438" registered on 4 April 2005. It depicts DP749194, and identifies the Right of Carriageway by the letter "E" within a circle. This is extracted below (yellow highlighting added): The Key in DP733438 indicates: E in a circle: Right of Carriageway 5 wide & variable (vide DP713913) 1. It is accepted that in DP749194, the notation '(W)' does not appear on the panhandle. However, Council's position is that nothing can be made of this when proper regard is had: 1. to DP713913, being the instrument that created the right of carriageway. This instrument has been referenced in every deposited plan since DP713913 (see DP733438, DP749194 and DP733438). DP713913 only created legal benefits and burdens as between Lots 49 and 50; it did not create any rights as between Lot 491 and Lot 492, nor could it as these lots did not exist; 2. the panel in DP749194 (being the instrument which created Lots 491 and 492 from Lot 49) records no proposed new easements. This disavows the interpretation advanced by the Applicant that somehow DP749194 created a cross-easement or right of carriageway burdening Lot 491 and benefitting Lot 492; and 3. the subdivision history, and the other deposited plans. It is necessary to have regard to other plans, starting with DP713913 and now including DP1080698 (prior to 2005, reference needed to be had to DP733438) to understand the full extent of the right of carriageway created by DP713913. 1. To construe the right of carriageway only by reference to DP749194, disregarding DP713913 and its clear notations (being the half-coloured circles), disregarding the terms of the easement set out in DP713913 which limits the benefits and burdens to the original Lots 49 and 50, and disregarding DP733438 and DP1080698 which reference the very same right of carriageway, is in error. 2. The conclusion the Court will arrive at, when properly interrogating the right of carriageway created by DP713913 is that it creates no easement over Lot 491 benefitting Lot 492, and that the subdivision of Lot 49 creating Lots 491 and 492, left Lot 492 without the benefit of a similar right of carriageway over Lot 491. 3. This is the base factual position from which these proceedings should commence.

[13]

Objections to evidence

First objection: The Applicant objects to the Council relying on the letter from Michael Brown, the Applicant's planner, to Council dated 13 December 2021 (Ex 2 tab 36 pp 430-431). In this letter Mr Brown requested Council insert the DCC.
Second objection: The Council objects to the Applicant relying upon McDonald's Properties (Aust) Pty Ltd Development Consent D96/379 granted on 8 January 1987, Ex B, tab 5 pp 17-21 (McDonald's DC), with particular reference to Condition 1.7 on p 19: "1.7 The site shall be subdivided and appropriate access made available to adjoining land. In this regard, a subdivision application shall be lodged with Council for approval prior to the release of the building application."
Dealing with the first objection: Prior to the lodgement of the Deferred Consent, both parties appeared to believe that Lot 492 had no right of access over Lot 491 along Tristan Place to Harbord Road. This belief lead the Applicant's experts to take the following course of action: 1. On 4/11/2021, the Applicant lodged an amendment to the proposed vehicular access in the development application seeking access to Campbelltown Road which was not supported by Council and denied by Roads and Maritime Services (Ex 1, pars [40-41] on p 8). 2. The denial of access to Campbelltown Road lead to the request (Mr Brown's letter 13/12/21) to Council for the DCC to enable the Applicant to 'purchase' a right of way over McDonald's land being Lot 491. The Applicant's approach to McDonald's was denied (as set out in pars [25(1), (14), & (26)] above) as McDonald's senior legal officer believed that McDonald's had already granted lawful access to Lot 492. 3. During the course of these proceedings the Applicant served a Notice to Produce on the Council dated 18 January 2023 (sic - 2024) requiring: "Copy of any conditions of consent/approval and approved architectural, landscape and engineering plans for the construction and use of the McDonald's restaurant located at Lot 491 DP729194 …" 1. After production of various documents, and further negotiations between the parties regarding compliance with the Notice to Produce, the Council produced McDonald's DC on 12 March 2024, thus revealing Condition 1.7 of McDonald's DC (Chronology of Document production, Ex D). 2. Upon receipt of McDonald's DC, the Applicant no longer relied on the following documents attached to Ex C: 1. Letter from John Cole of J Cole Planning Solutions to Council dated 23 December 2023 (par [7(3)] above); and 2. Letter from Michael J Brown to Council dated 4 July 2022 together with Deed between the owners of Lots 1501 and 492 dated 1 July 2022. 1. The Applicant relied upon the further documents produced under the Notice to Produce. 1. Plan Showing Proposed Subdivision of Lot 49 in DP713913 with stamp from Council: "Campbelltown City Council plan approved under consent no. S30/87" dated 19 March 1987 (Ex B tab 3 p 4). 2. McDonald's DC dated 5 May 2987, and in particular Condition 1.7 (Ex B tab 4 pp 6-7). 1. In relation to the first objection by the Applicant, I find the following: 1. Regarding the access to Lot 492, it appears that the Applicant came to the conclusion that in order to satisfy Council it would need to obtain a registered right of carriageway over Lot 491 in favour of Lot 492. The Applicant did not have McDonald's DC in its possession until 12 March 2024, but it was always in Council's possession. 2. Council did not include reference to McDonald's DC it in its SOFAC, Ex 1, and nor did it seek to amend its SOFAC after the documents relating to the McDonald's DC and subdivision No S30/87 came to light. 3. By not having reference to McDonald's DC or subdivision No S30/87, the Applicant tried every avenue possible to get Council approval for access to Lot 492 (ie access to Campbelltown Road, access via existing right of way by Lot 1501, and offering to purchase a right of way over Lot 491). The end result of Council withholding this information, although initially I accept it was not intentional and simply an error on Council's behalf, it resulted in the Applicant engaging a traffic expert to advise on building the 5m wide panhandle on Lot 1501 so as to give access to Lot 492 confined to the panhandle, noting that the access road constructed by Council in approximately 1985 had been operational for almost 40 years. 4. On the facts presented, I place little weight on the letter from Michael Brown to Council dated 13 December 2021. If Council had presented all the facts in its possession in relation to the access road, and the full history of Council's own subdivision, and Lots 1501, 49, 491 and 492, then the letter would likely not have been sent. 1. In relation to the second objection, the reliance by the Applicant on McDonald's DC and subdivision No 30/87, the Council puts the following submissions to support its position that these documents should not be allowed into evidence: 1. The decision in question in this case is the decision of Council that, based on the documents submitted to it by or on behalf of the Applicant, the DCC had not been satisfied, and accordingly the Deferred Consent did not operate. 2. It is this decision which is the subject of this appeal, and which the Court has the powers conferred on it by s 8.14 of the EPA Act, which include "all the functions and discretions which the consent authority whose decision is the subject of the appeal had in respect of the matter the subject of the appeal". 3. The Council submits that the Class 1 Application (Ex C) comprised the Deferred Consent and 3 documents, being listed as documents 2, 3, and 4 on the Index (Ex C, p 4). However, as set out in par [7] above, there were nine documents attached to Ex C, and of the nine, six remain relevant to the proceedings. 4. Council submits that the Court is limited to the documents attached to Ex C, and cannot consider any other documents, relying upon AQC Dartbrook, as per par [33] tab 37B above; Duke Developments Australia 4 Pty Limited v Sutherland Shire Council [2021] NSWLEC 69 (Duke), and Scarf v Shoalhaven City Council [2021] NSWLEC 128 (Scarf). There is no application to amend Ex C, the Class 1 Application. 1. In AQC Dartbrook, the applicant made an application to modify a development consent for an underground coal mine. During the conciliation conference pursuant to s 34(1) of the LEC Act the applicant sought to modify its modification application. The Court of Appeal held on an appeal against joinder of the second Respondent: "[227] …there is no power to amend a request or an application to modify a development consent or an approval, so that no question arises as to the scope of the power to allow the amendment of the request to modify the development consent sought by Dartbrook and the Minister… … [239] The power to modify a development consent or an approval must be exercised in relation to the particular modification sought in the particular application or request that has been made to the relevant decision maker. An exercise of the power will not be valid unless it constitutes a determination of that application or request: see similarly, as to the need for a consent to be given to the application that has been made: Hunter Industrial Rental Equipment Pty Ltd v Dungog Shire Council (2019) 101 NSWLR 1; [2019] NSWCA at [296], [297] and [57]. … [260] …the court has no power under s 64 of the Civil Procedure Act 2005 or Part 19 of the UCPR to amend, or to allow the amendment of, the application or request for modification of a development consent or an approval. Both s 64 of the Civil Procedure Act and Part 19 of the UCPR apply to civil proceedings in the Land and Environment Court including an appeal in Class 1 of the Court's jurisdiction. However, these provisions do not authorise amendment of documents that are not documents of the kind to which the provisions apply. [261] For s 64 of the Civil Procedure Act, "any document in the proceedings" refers to documents created for the purpose of the proceedings, including the originating process, pleadings, notices of motion, subpoenas, notices to produce, affidavits and other statement of evidence filed in the proceedings. A document brought into existence before the proceedings are commenced and for a purpose other than the purpose of the proceedings is not a "document in the proceedings". … [263] The result is that the power of amendment of any document in the proceedings in s64 of the Civil Procedure Act does not extend to allow amendment of an application for development consent or an application to modify a development consent." 1. Robson J in Duke applied Dartbrook, at paragraphs: "[106] …Put simply, following the determination of an application for the modification of a development consent by a consent authority, a development consent by a consent authority, the applicant can appeal to the Court against that determination. It is the determination of the application to modify the development consent that founds the right to appeal: Dartbrook CA at [240]. The effect of the amendment sought by the Applicant is that the appeal is no longer against the determination of the Modification Application by Council, but rather a version of the Modification Application amended by reference to the amended plans which was not considered by Council. [107] In this respect, the Court has no power to consider a development that is not the subject of a development application, or to determine a development application that is not the subject of an appeal (absent an application for amendment being made): Bunnings at [151], [202]. This same principle applies in relation to a modification application where, as set out in my findings above, no application for amendment can be made." 1. In Scarf, Pain J applied the reasoning in AQC Dartbrook and Duke in relation to a Notice of Motion to modify a Building Information Certificate, and held that there was no power to modify a building information certificate (BIC) application which was subject to appeal before the Court. 2. The EPA Act has addressed the issue in relation to modification applications via s 113 of the EPA Regulation. No amendments have been made to the EPA Regulation so as to allow a BIC application to be amended, so this position remains. Council's position is that a similar position arises in relation to this Class 1 appeal in relation to satisfaction of the DCC. 3. The ability to amend Ex C is a right only conferred by the statute (or delegated legislation). A Class 1 merits appeal is a rehearing, with the Court permitted to received 'fresh evidence or evidence in addition to, or in substitution for, the evidence given on the making of the decision may be given on the appeal" (s 39(3) of the EPA Act). But fresh evidence is not, of course, a fresh application. 4. The specific objection by Council is in relation to any documents not included in the Applicant's Class 1 Application which is in terms: "Failure to be satisfied regarding deferred commencement condition under s 4.16(3) of the EPA Act …. In relation to information submitted on 4 July 2022 and 23 December 2022 in satisfaction of deferred commencement condition for consent 962/2021/DA-C." and the Orders sought: "The deferred commencement condition for development 962/2021/DA-C is satisfied." 1. Council maintains its position that permitting any further documentation, other than that attached to the Class 1, would be to seek to amend documents that were not prepared for the purposes of the proceedings. Any new documents will represent a new application to meet the condition of the DCC. 1. I find that this case is distinguishable from AQC Dartbrook, Duke and Scarf for the following reasons: 1. AQC Dartbrook and Duke both involved an appeal against refusal of a modification of a development consent. The proposed modification of the modification took the form of amended plans. Those amended plans were not a 'document in the proceedings' (in relation to s 64 of the Uniform Civil Procedure Rules (2005) (UCPR)) because the modification falls outside the scope to which these provisions apply. 2. Similarly in Scarf, the amended BIC involved the amendment of the required building works. Again, the proposed amendment was not a document in the proceedings. 3. This case is different. In AQC Dartbrook, Duke and Scarf, the Applicants in each case produced new documents in an endeavour to resolve the proceedings, after the proceedings had commenced. In the present case, the Applicant seeks to rely not on new documents generated by it, but on documents produced under a Notice to Produce on Council (Ex D). 4. The documents produced under the Notice to Produce (Ex D) fall within the definition of 'documents in the proceedings' pursuant to s 64 of the Civil Procedure Act 2005. Further, there is no term in s 76(4) of the EPA Regulation which denies the Applicant relying upon public documents, which were in the possession of the Council and did not come to light until almost 18 months after the Application was lodged with Council, noting that previous informal discussions had occurred between the parties well prior to lodgement of the development application. 5. I give little weight to the documents referred to in the Index on p 4 of the Class 1 Application (Ex C) numbered 2, 3 and 4. Pursuant to s 39(3) of the LEC Act, I will allow the documents produced by Council pursuant to the Notice to Produce (Ex D) which include inter alia the McDonald's DC and subdivision S30/87, and their relevant documentation. 6. Any confusion about the access road and its relevance to these proceedings cannot be the total responsibility of the Applicant. Council had several occasions when it could, and should, have disclosed this information to the Applicant: at the pre-lodgement meeting(s) for the original development application, during the period of time when the Applicant tried to meet Council's wishes by gaining access to Campbelltown Road, negotiating a Deed with the owner of Lot 1501, and offering McDonald's consideration of $150,000 for it to grant a right of way from Lot 492 over Lot 491 to that part of the public road of Tristan Place. Especially so when Council was the original subdivider of Lots 49 and 50, and built the access road.

[14]

The Deferred Commencement Condition

Having considered the submissions of the Applicant and the Council, I prefer the submissions of the Applicant. (pars [16]-[28] above] over Council's submissions pars [29 - 35 above]. My findings in relation to the meaning and application of the DCC are as follows.
The meaning of the DCC: 1. The DCC is imposed pursuant to s 4.17(1)(h)(i) of the EPA Act, and it relates only to a matter or event which must exist (in this case) before the consent becomes operational. The DCC is not an operational condition. 2. Section 76(2) of the EPA Regulation provides that a DCC must clearly distinguish between conditions that relate to matters about which the consent authority must be satisfied before the consent can operate. 3. Development consents must be construed in accordance with their terms and without regard to extrinsic material unless incorporated expressly or by necessary implication: HIRE at pars [47], [268]. (Extrinsic material here refers to Council relying upon the letter from Mr K Brown dated 13 December 2021 of which I have given little weight). 4. The use of this extrinsic evidence also offends the principle that conditions must be given an objective construction, and the subjective intentions of the drafter and the Applicant for consent are irrelevant: House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498; [2000] NSWCA 44 at par [37]; "[37] How then is the language of an historical consent to be construed? In ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 11 NSWLR 67 at 77 Kirby P (with whom Samuels JA and Hunt AJA agreed) referred to "what, objectively determined, it might be said the Council meant by the permission which it gave to the … predecessor [in title]". I respectfully agree, but with this emphasis. The search is not for what the Council actually intended or what, if it had been interrogated about various possibilities, it would have said it intended. As an instrument having the characteristics referred to by Else-Mitchell J and Stephen J in the passages cited at par 23, it must speak according to its written terms, construed in context but having regard to its enduring function. Cases such as Auburn Municipal Council v Szabo (1971) 67 LGRA 427 expound the textual interpretative principles involved." And in K & M Prodanovski Pty Ltd v Wollongong City Council (2013) 195 LGERA 23; [2013] NSWCA 202 at par [23]. "[23] The principles governing the construction of the consent are not in issue and were summarised by this Court in House of Peace v Bankstown City Council [2000] NSWCA 44; 48 NSWLR 498 at [23], [37]-[41] per Mason P (Stein and Giles JJA agreeing). The meaning of the language is to be determined objectively having regard to the context in which the consent was issued and taking into account the fact that, unlike a contract between parties, the consent operates in rem and is for the benefit of subsequent owners and occupiers, as well as the applicant. In this case the relevant context is provided by the June 2004 report, which explains the reasons for the requirement of the further geotechnical investigation and the purpose for the imposition of Conditions 6 and 13. The consent specifically stated that the development was to be carried out in compliance with the plans and documents listed, including the June 2004 report." 1. The DCC requires lawful access, not a registered easement. It was open to Council to impose a condition requiring a registered easement, as per the condition in Hillpalm at par [7]. 2. Council cannot now add further 'conditions' to the DCC, thus requiring compliance with a particular Australian Standard for road construction, i.e. kerb to kerb 6m wide pavement, or to allow vehicles to pass whilst travelling in opposite directions. 3. A practical approach to the construction of the DCC does not permit the rewriting of the DCC to meet what the 'Council' or the Court may think is a practical outcome (per Robson J in Hitchcock v Reed [2022] NSWLEC 81 At pars [63-65]: "[63] I note that the view that any ambiguity or uncertainty in a development consent condition should be construed against the consent authority who granted the consent has been widely considered (Leda Manorstead at [94]-[97]; Canny at [70]-[71]; Ryde Municipal Council v Royal Ryde Homes [1970] 1 NSWR 277; (1970) 19 LGRA 321 at 323-324); however, where I consider this view may be subject to some doubt (Sunland Group Limited v Gold Coast City Council [2021] FCA 1473; (2021) 158 ACSR 342 at [21], [58]; Westfield Management Ltd v Perpetual Trustee Co Ltd [2007] HCATrans 367 at 126-127), and where it may not be strictly applicable to the present circumstances because Council is not a party to these proceedings and has not asserted any entitlement for relief against the respondent, I consider that any ambiguities in the text of a development consent (as a statutory instrument) should be construed according to the ordinary rules of construction and the principles of interpretation (Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Ltd [2009] NSWCA 160; (2009) 167 LGERA 395 at [99]), particularly in light of the context (which itself should not be confined to the immediate context supplied by the provisions in an instrument) and purpose of the text: Sydney Seaplanes Pty Ltd v Page (2021) 106 NSWLR 1; [2021] NSWCA 204 at [27]-[31] (Bell P, Leeming JA and Emmett AJA agreeing). I also remain conscious that there is no specific principle requiring laxity or flexibility in construing a development consent and that practical considerations do not permit a rewriting to meet what the Court may think is a practical outcome. [64] Notwithstanding the above, I note, as Meagher JA explained in Allandale Blue Metal at [42] (and noted by Payne JA in Canny at [65]), the relevant principles concerning the construction of a development consent are more easily stated than applied. [65] While conscious of the manner in which the principles referred to above have been expressed and restated, I have also approached the interpretation of the subject conditions, both individually and collectively, by asking "what a reasonable reader would understand the words to mean when reading the condition in the context of the other conditions and of the consent as a whole": Trump International Golf Club Scotland Ltd v Scottish Ministers [2017] 1 All ER 307; [2015] UKSC 74 at [34] (Lord Hodge SCJ, with Lords Neuberger, Mance, Reed and Carnwath SCJJ agreeing); J.K. Williams at [62])." 1. And as per Duggan J in Omaya Investments Pty Ltd v Dean Street Holdings Pty Ltd (No 5) [2020] NSWLEC 9 at pars [30-31]: "[30] As noted above, the Respondents contended that it was a principle of construction that consents were required to be construed such that a practical approach is to be taken to permit practical results to be achieved. If this submission is intended to suggest that consents and like instruments are not to be construed in accordance with the principles outlined above but rather be subject to an overarching obligation (independent of the general principles of construction) to construe the terms by determining what is practical and what will achieve a practical result I do not accept such formulation, nor is such formulation reflected in the authorities cited in support of the submission. [31] The authorities cited do not create an independent rule of construction for "practical results". Rather the authorities recognise that the general principles of construction permit consideration to be given to the purpose and object of the instrument and to determine a construction that best meets that purpose by employing the usual principles of statutory construction which includes a consideration of the context and purpose of the instrument. In that respect, the fact that a development consent, or similar instrument, is prepared with practical application in mind for the undertaking of physical work by practical people may be of assistance in determining the construction of the instrument. This approach is mere recognition that the task of construction permits text, context and purpose to be considered in that exercise. The authorities do not elevate that single factor to a separate and independent requirement to be applied outside the context of the interwoven and complex considerations that apply to the task of construction: Bunderra Holdings Pty Limited v Pasminco Cockle Creek Smelter Pty Ltd at [72]." 1. I consider the DCC means what it says: "Documentary evidence shall be provided to Council that the subject allotment (Lot 492 in DP749194) has lawful two-way vehicular access to Harbord Road" and not with the additional words as contended by the Council 'in accordance with the Australian Standard for a paved road 6m wide kerb to kerb and a new s 88B instrument pursuant to the Conveyancing Act, and registered on the title to FI 492/749194 and FI 491/749194 pursuant to the RP Act. 2. It is difficult for Council to prove that Lot 492 does not have 'lawful two-way vehicular access to Harbord Road' when the owner of Lot 492 has been traversing the access road (Tristan Place) for almost 40 years, and which was built by Council in approximately 1985.
Has lawful two-way access been achieved? 1. As referenced by both parties, the Council was the original subdivider, and subdivided the land into Lots 49 and 50, whilst also creating a panhandle 5m wide for access by Lot 50 to Harbord Road, and south of the panhandle a registered right of carriageway 5m wide on Lot 49. 2. An access road has not been constructed 5m wide on the panhandle to Lot 50 (now Lot 1501), and nor has the right of carriageway 5m wide been constructed on Lot 49 (now Lots 491 and 492). 3. Rather, Council constructed the access road, and named it Tristan Place, partly on Lot 1501 and partly on Lots 491 and 492. That access road has been operational for almost 40 years. 4. McDonald's DC provided for the construction of a McDonald's restaurant on Lot 491, and the creation of Lot 492. Condition 1.7 of the McDonald's DC stated: "The site shall be subdivided and appropriate access made available to adjoining land. In this regard, a subdivision application shall be lodged with Council for approval prior to the release of the building application." 1. The application for both development consent and subdivision is in Ex B, Tab 3, p 5. Deposited Plan 749194 is signed by the surveyor, Antony John Thorne dated 26 August 1987, and Council's certification that "the requirements of the Local Government Act 1919 (other than the requirement of the registration of plans), …" was dated 7 September 1987 Council's File No. F.19246." Further, Ex B, tab 3, p 7 states in the Condition of Consent: "2.0 Road Construction Notwithstanding the specific conditions of this approval all lots and roads created shall conform with Council's current Specification for Construction of Subdivisional Road and Drainage Works, and Stormwater Management Policy. In this regard the applicant is to liaise with the City Engineer." 1. The subdivision application is No S30/187 (Ex B, Tab 10, p 110), and the description of the proposed subdivision is at the bottom of p 110: "Two-lot subdivision in accordance with Clause 1.7 of Development Application Consent No. 86/379 lodged by McDonald's Properties (Aust.) Pty. Ltd". There were 3 further communications in Ex B, as follows: 1. Tab 14 pp 112-113: McDonald's letter to Council dated March 30, 1987, enclosing the Subdivision Application: "Mr Moore indicated that NSW Traffic Authority guidelines may require the provision of a 6.5 metre wide access road having regard to the developments which will utilise the properties. The constructed road width is 6 metres (as advised by Council) … it has been suggested that this width should be increased to 6.5 metres Having regard to the nature of the uses that will utilise the right-of-way i.e. two family restaurants and a furniture store, it would appear that the traffic generated by such developments would be a constant flow rather than experiencing peak periods and low periods. Due to the even traffic flow, it is suggested that the existing carriageway of 5 metres would be sufficient to accommodate vehicular traffic generated by the proposed developments It is requested that the existing width be considered satisfactory for the proposed subdivision." The transfer of Lots 492 from McDonald's to Collins Foods International (Properties) Pty Ltd is in Ex B, Tab 14, p 114 and dated 19 October 2087 with the Land Titles Office registration no X166260. 1. On 13 July 2087 Kevin F Brown and Associates, on behalf of the Applicant, wrote to the Council (Ex B, tab 13 p 111): "…We would be pleased if your City Engineer would advise us as to what works, if any, are required by your Council in this subdivision." 2. Council responded to Kevin F Brown & Associates in a letter dated 4 August 1987 (Ex B, Tab 13 p 109): "…All Public Works associated with the above lot have already been completed and no further engineering condition related to works in the Public Road Reserve are required." 1. So therefore Council approved the subdivision No S30/87, and the City Engineer replied to the enquiry by Kevin F Brown & Associates dated 13/07/1987 through the Town Clerk (Ex B, tab 13 p 109) that the road was satisfactory, and no further works were necessary. Therefore the road did not have to be widened to 6.5m. 2. This subdivision No. S30/87 is the one which produced the title diagram that the Applicants says is the starting point for analysing easement rights, and it's the title that was created as a consequence that is the source of the rights, and the relevant subdivision plan that was approved is behind tab 3 of Ex B. This is the stamped plan, and the reference to the consent is S30/87 (Ex B, tab 3, p 4). 3. In Ex B, tab 3 p 4 the stamped plan of subdivision No S30/87 shows the legend on the right hand side of the page, and the circle crossed through is the right of carriageway, 5m wide and variable, and so it shows both the right of carriageway affecting Lots 492, 491 and 50. Then in Ex B, tab 3 p 5, there is the registered plan for DP749194, and it has the Council Clerk's Certificate on the left-hand panel, that it has complied with the provisions relating to the Local Government Act 1919 dated 7 September 1987 and signed by Council Clerk. The notation '(W)' Right of Carriageway 5 wide & Variable (vide DP713919) is on Lots 491 and 492, but no notation is on Lot 150's panhandle. There is no indication of an easement in the panhandle because this was a subdivision creating rights between Lots 491 and 492. The notation '(W)' reflects the easements referred to on title. 4. There are only two locations to which the benefit and burden of the right of carriageway could relate in reference to notation '(W)', so that's the cross easements for Lots 491 and 492 and that was done in order to implement Condition 1.7 of McDonald's DC. The fact that the easement is shown on an earlier title diagram as being the point at which it was created is interesting, but under the current Torrens system principles, it is not the primary source of evidence; that is the title diagram and the title. 5. On 20 September 2023, Katherine Chapman, Senior Legal Counsel, McDonald's Australia confirmed to the Applicant's Solicitor that McDonald's had provided lawful access since the 1987, and therefore there is no need to create another right of carriageway as it already exists (Ex B, tab 9 p 54). 6. The planning purpose of Condition 1.7 of McDonald's DC is evident and it would be enforceable today in the event of breach, as McDonalds continues to carry out the development authorised by the consent on the Site. There is no problem such as that which arose in Hillpalm where the relevant development (subdivision) had been completed and was not being carried out so as to engage the prohibition in the EPA Act and enable enforcement of its conditions. Here the relevant consent (McDonald's DC) was for the erection and use of food premises, which continues to this day, and Condition 1.7 applies to provides access across McDonald's land to and from Lot 492. 7. The relief sought by the Applicant remains as set out in the Class 1 Application. Pursuant to s 39(3) of the LEC Act, I accept the fresh evidence relied upon by the Applicant being the McDonald's DC, McDonald's subdivision No S30/87 and the confirmation by Council that McDonald's had complied with subdivision S30/87. If this was not so, then Council exercising its regulatory functions, would have taken action against McDonald's to enforce Condition 1.7 of the McDonald's DC between late 1987 and the present day. 8. I find that lawful two-way access has been achieved.
Does the Applicant have a registered right of carriageway over Lot 491? 1. Council submits that it does not, as set out in pars [33-35] above. 1. In summary the Council submits that the Applicant does not have an easement creating a right of carriageway over Lot 491 because Deposited Plan 749194 was not completed sufficiently to allow registration of an easement by the Registrar General, and further that there was no s 88B instrument lodged with the Registrar General setting out the rights and obligations of the dominant and servient tenement in accordance with ss 47(1A),(1) and (5) of the Real Property Act 1900 (RP Act). 2. The Council also submits that Condition 1.7 of McDonald's DC is spent because in its terms it says, "[t]his site shall be subdivided and appropriate access made available to adjoining land", and "[a] subdivision application shall be lodged with Council, or approval prior to the release of a building application". That's all that condition requires McDonald's to do. It requires them to lodge a subdivision application prior to the release of the building application, and once that was done that condition has no more work to do. McDonald's has provided lawful access to Lot 492 in accordance with Condition 1.7 of McDonald's DC. 1. The Registrar General's records show: 1. Historical search dated 28/3/24 @ 12.45M for FI 492/749194 (Ex B, Tab 6 p 22) inter alia: 1. 16/11/89 Y650358 Transfer granting easement Edition 3 2. 8/3/2001 Transfer Edition 5 1. Folio Identifier 492/749194 on search date 28/3/2024 @ 12:49PM (Ex B, Tab 8, p29) inter alia: 1. 3 Easement(s) appurtenant to the land above described created by DP713913 right of Carriageway 5 wide & Variable Width. 2. 4 Easement(s) affecting the part(s) shown so burdened in the title diagram created by: DP713913 Right of Carriageway. 3. Unregistered dealings: NIL 1. DP749194 being the subdivision of Lot 49 to Lots 491 and 492 shows on the title diagram (Ex 2, Tab 6, p 49): "(W) - right of carriageway 5 wide & variable (vide DP713913)." Noting nothing is stated in the right-hand corner Panel for Use only for Statements, and the Council Clerk's Certificate in the left-hand corner panel is executed and dated 7 September 1987, for the proposed subdivision, and being Council's File No F.19246. DP749194 was registered on 23 September 1987. 1. DP713913 being Council's subdivision of Lots 5, 6, 7, and 8 in DP261672 creating Lots 49, 50 and 51 (Ex 2, Tab 7, p 50): 1. In the right-hand corner, Panel for Use only for Statement shows inter alia: "Pursuant to section 88B of the Conveyancing Act 1919, as amended, it is intended to create; … 4 Rights of Carriageway 5 wide & Variable" 1. In the left-hand corner, Council Clerk's Certificate for subdivision 39/85 is dated 19 April 1985 and signed. 2. The s 88B instrument is in Ex 2, Tab 8, p 51 showing the schedule of lots affected as: Lots burdened: 49 and 50 Lots benefited: 50 and 49 1. The s 88B instrument does not further define the rights and obligations in relation to the rights of carriageway, and relies on the Conveyancing Act, at Sch 4A Easements in Gross, Part 1 Right of carriage way "Full and free right for the body in whose favour this easement is created, and every person authorised by it, to go, pass and repass at all times and for all purposes with or without animals or vehicles or both over the land indicated herein as the servient tenement." (Ex 2, tab 40, p547) 1. Deposited Plan 1080698 (Ex 2, Tab 10 p 53) is a "Plan of redefinition of Lot 150 in DP733436" registered on 4 April 2005, and shows 'E' circled in both Lot 1501's panhandle, and the easement for right of way in both Lots 491 and 492. 'E' is described as: Right of Carriageway 5 wide & Variable (vide DP713913). 2. Folio Identifier 1501/1080698 (Ex 2, Tab 5 p 45) shows: "6 DP713013 Right of Carriageway 5 metre(s) wide and Variable appurtenant to the land above described" 1. I also note the Plan showing proposed Subdivision of Lot 49 in DP713913 Harbord and Campbelltown Roads Campbelltown, dated 19 March 1987, identifying the rights of carriageway on Lots 491, 492 and the panhandle with a line striking through a circle (Ex B, tab 3, p 4). The Plan has a Council stamp: Campbelltown City Council: Plan approved under Consent No. S30/87. This Plan is the forerunner of Deposited Plan 749194 registered by the Registrar General on 23 September 1987. 2. The Applicant submits that the answer lies in what is recorded in the folio of either the servient or dominant tenements. The title diagram is DP749194, and in the second schedule of FI 492/749194 has an easement affecting the "part shown so burdened in the title diagram". Although created by the registration of DP713913 as a right of carriageway, that is not the plan which shows the location of the easement. It is DP749194 which shows an easement in the location of the symbol '(W)'. That symbol appears on both Lots 491 and 492. The symbol is not similarly placed on the panhandle to Lot 150 (Lot 1501 was created subsequently). So, it must be the case that Lot 491 is burdened by an easement that can only benefit FI 492/749194. Folio Identifier 492/749194 shows the same title diagram as DP713913. The folio refers to an easement in item 3 of the Second Schedule appurtenant to the land above described, created by DP 713913 Right of Carriageway 5 wide & Variable width". Pursuant to s 88(1)(a) of the Conveyancing Act, the 'land above described" is DP749194. Lot 492 has the benefit of that easement, and the only land shown in DP749194 as burdened by the easement is Lot 491, and not the panhandle in Lot 1501. That is confirmed in FI 491/749194 which describes the easement in the same terms as FI 492/749194. 3. I find that Lot 492 has an easement (right of carriageway 5 wide & variable) over Lot 491 as: 1. Folio Identifiers 492 and 491/DP749194 both identify the right of carriageway, as set out above. 2. Deposited Plan 749194 is the title diagram, and it identifies the right of carriageway 5m wide & variable on the Plan, and marks it in the diagram as '(W)' both on Lots 491 and 492. Council approved DP749194, and also the Plan of Subdivision for Consent No S30/76 dated 19 March 1987. 3. The terms of the right of carriageway are referenced "(vide DP713913) and are as set out in Schedule 4A Easements in Gross Part 1 Rights of carriageway in the Conveyancing Act: "Full and free right for the body in whose favour the easement is created, and every person authorised by it, to go, pass and repass at all times and for all purposes with or without animals or vehicles or both over the land indicated herein as the servient tenement" 1. The existing right of carriageways created by DP713913 are clearly notated by "E" in a circle in DP1080698. 2. No notation for the right of carriageway on Lot 1501 is made on DP749194, but the notation '(W)' is made. If the notation '(W)' is ignored, or presumed to only refer to the right of carriageway between Lots 50 and 49, then the panhandle on Lot 1501 should have a similar notation on it in DP749194. 3. Notation '(W)' right of carriageway on DP749194 has no other work to do other than granting cross easements on Lots 491 and 492 in terms of the right of carriageway set out in DP713913, pursuant to Schedule 4A Easements in Gross Part 1 Rights of Carriageway in the Conveyancing Act. 4. Council submits that Condition 1.7 in McDonald's DC has been spent by McDonald's obtaining consent to subdivision No S30/87 (T p 49 L40-50). But following the Council's correspondence with McDonald's, clearly the access way as originally constructed by Council in approximately 1985 satisfied Condition 1.7 as set out in pars [25(7)-26] above. Condition 1.7 of McDonald's DC could not be satisfied by lodging a subdivision application and not providing lawful access to Lot 492. 5. Both Council and the Registrar-General were satisfied with Deposited Plan 749194, and Council was satisfied with McDonald's subdivision No. 30/87 which resulted in DP749194. Pursuant to ss 47 (1A) and (1) of the RP Act, if the Registrar-General did not accept the reference "(vide DP713913)" on DP749194, he would have refused to register the deposited plan. Further, the Registrar General exercised his power under s 47(5) of the RP Act: "The Registrar General may record a dealing effecting a disposition of a registered affecting interest in gross by making such recordings in the Register as the Registrar-General considers appropriate". Subsequently, the Registrar-General did register DP749194, and the Register recorded the dealing in the Second Schedule on FI 492/749194 as entry number "3".
The Applicant originally brought its case as set out above, but also relied upon its enforceable right against the owner of Lot 491 to grant access to Lot 492 pursuant to Condition 1.7 of McDonald's DC, and in the alternative, an equitable right in estoppel resulting in the behaviour of McDonald's selling the land and granting access to the land over Lot 491 for nearly 40 years.
The Council also tendered Ex 3 Joint Report of the Town Planners, and Ex 4 Joint Report of the Traffic Experts. Neither of these reports were pressed and the traffic experts were not called for cross examination. The Council requested the town planners be called for limited cross examination: 1. Mr Brown, town planner for the Applicant, was cross examined by the Council in relation to his letter to Council dated 13 December 2021; and 2. Mr Yohanna, town planner for the Council, was cross examined on his understanding of McDonald's DC, Condition 1.7 thereof, and lawful access to Lot 492.
Having determined the weight to be given to Mr Brown's letter 13/12/21, and that DP749194 created a right of carriageway from Lot 492 across Lot 491 to the public part of Tristan Place, there is no need for me to consider the further submissions and evidence in relation to constructing the right of carriageway over Lot 1501's panhandle, which is what much of the expert evidence explored.
Pursuant to s 39(2), (3) of the LEC Act, and ss 4.16(3) and 14(1),(2) of the EPA Act, I shall uphold the appeal by finding that the DCC is satisfied, and that Development Consent 962/2021/DA-C is operational.

[130]

Presently, the Site and its neighbours comprise a small business park (Lot 1501, formerly Lot 50), a McDonald's Restaurant (Lot 491, formerly part of Lot 49), and the Site with a now closed Sizzlers restaurant (Lot 492, formerly part of Lot 49). Each lot has a frontage to Campbelltown Road, with Lots 491 and 492 having restricted access, and Lot 1501 having 'left-in access' only.
Council was the owner of all lots immediately before the 1985 subdivision which created Lots 49 and 50 in DP713913, when cross-easements were created "5 metres wide and variable" which were registered on the title of Lots 49 and 50. The cross-easements gave Lot 50 access across Lot 49 to Harbord Road, and Lot 49 was given similar access across the panhandle of Lot 50. The cross-easements enabled the construction of rear lane access for both Lots 49 and 50 to Harbord Road. A restriction on user was simultaneously imposed by Council on both Lots 49 and 50 to deny access to Campbelltown Road, hence making the cross-easements as the only lawful access to a public road for each Lot 491 and 492.
Relevantly, Council constructed the existing access road from Harbord Place to Lots 49 and 50 prior to the sale of those Lots. The alignment of the access road is not in conformance with the cross-easements as created, but rather partly on one and partly on the other, as demonstrated in Figure 4 of Ex 2 above. The existing access road is known as Tristan Place.
In 1987, Lot 49 was re-divided into Lots 491 and 492 in DP749194. McDonald's sealed the registered plan of subdivision, and it then sold Lot 492 to Collins Foods International, which obtained consent to erect a Sizzlers restaurant on the Site (DA 2730/87). At about the same time, McDonald's erected a restaurant on Lot 491 pursuant to McDonald's DC.
The Applicant purchased the Site in 2016, and the Sizzlers restaurant continued to operate until its lease expired in 2021. The Site is presently occupied by the now closed Sizzlers restaurant and carpark. The use can be revived at any time, and the consent does not have any conditions relating to external access to Harbord Road.
From approximately 1987 to date, the owners and invitees for Lots 1501, 492 and 491 have had the continuous use of the access road (approximately 6m wide) originally constructed by Council, with Lots 492 and 491 having two-way access, and Lot 1501 having egress only. The access road to Harbord Place incorporates part of the panhandle and part of the rear frontage of Lots 491 and 492, as is shown in Figure [1849] EngR 656; 4, Ex 1 above. Lot 492 has enjoyed free and full access for almost four decades through the access road (and across Lot 491) to and from Harbord Place. There are two reasons (at least) why that is so:

[133]

(1) Nature of the DCC:

(a) The DCC's operation is very different to other conditions imposed by s 4.17(1)(h)(i) of the EPA Act. It relates only to a matter or event which must exist or not before the consent can commence to operate. It may require something to be done in order to achieve this position which is why s 4.16(3) of the EPA Act provides that nothing in the EPA Act prevents a person from doing such things as may be necessary to comply with the condition, such as acquiring an easement right that benefits Lot 492 and burdens Lot 491. However, once the DCC is satisfied, it is discharged and has no continuing operation, i.e. it is not an operational condition of consent. This distinction is reinforced by s 76(2) of the EPA Regulation, which provides that a DCC must clearly distinguish between conditions that relate to matters about which the consent authority must be satisfied before the consent can operate and other conditions. Of course, nothing prevents the consent authority from providing that the event or matter, the subject of such a condition, should also exist during the operation of the development, but to do so would involve imposing a different type of condition under s 4.17 of the EPA Act. Nothing in the terms of the operational consent required lawful two-way access to Harbord Place. It follows that the DCC does not have any enduring effect.

(b) Council relies upon extrinsic material to construe this condition, as set out in par A.6 and A.7 of Council's SOFAC Ex 1: Mr Brown's letter to Council dated 13 December 2021, requesting Council to grant a DCC to give the Applicant an opportunity to obtain access rights over Lot 491. Ordinarily development consents must be construed in accordance with their terms and without regard to extrinsic material unless incorporated expressly or by necessary implication: Hunter Industrial Rental Equipment Pty Ltd v Dungog Shire Council (2019) 101 NSWLR 1; [2019] NSWCA 147 (HIRE) at pars [47], [268]. However, it is also permissible to refer to the development application and documents that were statutorily required to accompany the DA, and to be notified to objectors, solely to understand the nature, extent and other features of the development for which consent was sought: HIRE at pars [64], [80], and [311].

(c) The request (Mr Brown's letter 13 December 2021) is not part of the development application, so its terms would not have been notified to objectors and it has nothing to do with the description of the development for which consent was sought. It does not fall into the category of extrinsic material that may be considered in determining the scope of approved development. It cannot therefore be used in construing the condition.

(d) The use of this extrinsic evidence also offends the principle that conditions must be given an objective construction, and the subjective intentions of the drafter and the Applicant for consent are irrelevant: House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498; [2000] NSWCA 44 at par [37]; K & M Prodanovski Pty Ltd v Wollongong City Council (2013) 195 LGERA 23; [2013] NSWCA 202 at par [23].

(e) The DCC requires a lawful access, not an easement. One reason why this is significant is that the terms of the condition do not reflect the request (Mr Brown's letter 13/12/21) by the Applicant. The request was predicated on the Applicant not having existing access rights over Lot 491. The request (Ex 2, tab 36, pp 340-341) speaks of the need for the Applicant to acquire a legal right over Lot 491. The words 'right', 'easement' and 'Lot 491' do not appear in, and are not specified by, the condition. Instead, the condition specifies lawful access, whereas the "right" envisaged in the request was one to be created by agreement or court order - inevitably, by the creation of an easement for access (right of carriageway) over Lot 491.

(f) Council when imposing the DCC did not specify the kind of lawful access which it sought. The condition requires only lawful access and not the creation of an easement. It should be contrasted with the DCC that was considered in Hillpalm Pty Ltd v Tweed Shire Council (2002) 119 LGERA 86; [2002] NSWLEC 17 (Hillpalm) at par [7].

[136]

(g) Council's additions concerning width and vehicle behaviour are based on a misconstruction of the condition. Council has not only added a requirement for an easement over a specific lot, but it also argues that the condition should have a practical effect by requiring the access to be 6m wide (kerb to kerb) in accordance with a particular Australian Standard, and to allow vehicles to pass whilst travelling in opposite directions. None of these matters are specified in the condition: s 4.16(3) of the EPA Act.

(h) Previously conditions of consent were construed so as to give them "practical effect". The practical approach to construction has been endorsed in numerous cases in this Court and the Court of Appeal based upon a statement by Hodgson JA in Westfield Management Ltd v Perpetual Trustee Company Ltd [2006] NSWCA 245 at pars [36] and [40] (Westfield) to the effect that a development consent should be construed like a contract to preserve its validity and to avoid uncertainty to give practical effect to the object of the consent. The first principle of construction of consents applied by the Court and based on Westfield was that "consents are to be construed not as documents drafted with legal expertise, but to achieve practical results": Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd (3) [2015] NSWLEC 75 at par [93] (Westlime); Roberts v Blue Mountains City Council [2012] NSWLEC 2 at par [53]. Although Preston CJ and Robson J (correctly in the Applicant's view) said that "practical considerations do not permit a rewriting to meet what the Court may think is a practical outcome": Hitchcock v Reed [2022] NSWLEC 81 at par [63], citing J K Williams Staff Pty Ltd v Sydney Water Corporation (2021) 249 LGERA 109; [2021] NSWLEC 23 at par [61], and a similar approach was taken by Duggan J in Omaya Investments Pty Ltd v Dean Street Holdings Pty Ltd (No 5) [2020] NSWLEC 9 at pars [30] - [31]. These later decisions reflect the criticism of the practical approach to the construction of planning instruments which Basten JA levelled in Wingecarribee Shire Council v De Angelis [2016] NSWCA 189 at par [20] and 4 Nature Inc v Centennial Springvale Pty Ltd (2017) 95 NSWLR 361; [2017] NSWCA 191 at pars [43] - [46].

(i) The first principle is no longer of authority and should not be followed. Development consents, including their conditions, must be construed as any other statutory instrument, according to the principles of interpretation that apply to statutes generally. In Sunland, the High Court rejected the approach to construction of conditions of a development consent as proposed in Westfield and adopted in Westlime. The appellants had submitted that the conditions were to be read not in a technical way, but to bring about a practical result and so resolve any uncertainty in the language used, and the Court should not scrutinise the conditions in the same way as the words used by a parliamentary draftsperson: Sunland at pars [50], [51]. Steward J (with whose conclusions Kiefel CJ, Keane and Gleeson JJ agreed) said that the conditions were not to be construed like any other contract, but:

[186]

On 17 January 2023 the deemed refusal period commenced in respect of the application to satisfy the DCC. On 27 January 2023 Council refused the application.
On 31 January 2023 the Applicant filed the Class 1 Application which comprises the Deferred Consent 962/2021/DA-C and the documents identified in par [20] above.
Firstly I shall take you through Ex 2, Council's Bundle of Documents:
- Tab 1: Deferred Commencement Consent No 962/2021-DA-C, and p 1 has the Notice of Determination dated 7 February 2021, expiring on 7 February 1927. On p 2 there is the DCC which begins with "Documentary evidence". So that is the matter of controversy which you have the benefit of submissions from the parties on.
- Then there are the following conditions of consent, but I draw to your attention:
- Condition 7 which required gradients in driveways and manoeuvring areas to the design in accordance with AS.2890.1 and AS 2890.2 as amended.
- Condition 44 relates to protection of existing trees.
- Condition 52 - associated works. The parties agree that this condition is of assistance to reconstruct the drainage, the dish drain, which clearly has been affected by time and use over the years, which cars must pass across to get to the existing laneway and works of that kind of a minor nature within the existing laneway. This is referring to wear and tear on the existing Tristan Place roadway constructed by Council in approximately 1987.
- Tab 2 correspondence setting out negotiations between the parties and Council's refusal to be satisfied in relation to compliance with the DCC. This correspondence is no longer relied upon by the Applicant.
- Tabs 3, 4, 5, 6, 7 and 8 contain certificates of title respectively for Lots 491 (McDonald's land), 492 (Storty's land) and 1501. My submission is the way you read those references to the easements shown in the second schedule at items 3 and 4 is those matters identify the right of carriageway as shown in DP713913. So in order to understand what rights those easements grant, you need to also look at DP713913 because when you look at Tab 6, p 49 of Ex 2 DP749194, the '(W)' in brackets shown as the right of way and the reference to it on the plan where it has the description '(W)', right of carriageway, 5 wide and variable, vide DP713913, is the direct same reference to the right of carriageway, 5 wide and variable, shown on DP713913. Tab 6, p 50 contains DP713913 and in the right hand column it identifies "4. Rights of carriageway 5 wide & variable". Tab 8, p 51 contains the 88B instrument: "4. ...Right of Carriageway, 5 wide and Variable", and you will see those words on DP749194 under Tab 6 p 49. So that part of the lot that is burdened on Lot 49 being the right of carriageway 5 wide & variable benefits Lot 50, and that part of the right of carriageway that burdens Lot 50 benefits Lot 49, as set out in the 88B instrument. So, when you come back to Tab 6 p 49 of Ex 2, that is how you read the reference to '(W)' in terms of its right of way because it says "vide 713913". Deposited Plan 749194 does not create cross easements. All it does is note that same right of carriageway that is shown in DP713913, because if the Applicant is correct and DP749194 does create cross easements for Lots 491 and 492, then without reference to DP713913 there is no right over what everyone is calling the panhandle on Lot 1501 by reference to DP749194. If DP749194 was to create cross easements between Lots 492 and 491 that were different to those created in DP713913, then that would have been stated in the right hand panel of DP749194: "Panel for use for statement of intention to dedicate public roads or to create public reserves, drainage reserves, easements or restrictions as to user". When you look at DP713913, there is no reciprocal right of carriageway between Lots 491 and 492 - there could not be because the lots were not created at that time. When you look at DP713913, the only rights are for people to travel across Lot 49 (later known as Lots 491 and 492) to access Lot 1501. In other words, the burden did not flow between Lots 491 and 492 but the benefit to Lot 1501 did. There is no right of way that burdens Lot 491 for the benefit of Lot 492.
- Tab 10 p 53: Deposited Plan 1080698 which created a plan of definition for Lot 1501, depicts as 'E' right of carriageway 5 wide & variable (vide DP713913). It refers to DP713913 in order to interpret the terms of the easements. So there is an inconsistency between the approved plan in Ex B, Tab 3 p 4 "Proposed Plan of Subdivision of Lot 49 DP713913" and p 5 DP749194. The Proposed Plan on p 4 depicts the panhandle easement as a circle with a line through it, and the easements on Lots 491 and 492 with a '(W)'. The DP749194 on p 5 does not depict any easement on the panhandle, only the easements on Lots 491 and 492 as '(W)'.
- At Tab 11 pp 55-57 there are some extracts from the NSW planning portal and spatial viewer, showing the site boundaries, and on p 57 an aerial photograph of the Site and surrounds. Consistent with what we saw on the site view, Tristan Place is not entirely within the panhandle, as there is a small section of the panhandle located within the right of way and the entry within Lot 491.
- Tab 12 p 58 contains a survey of the Site.
- Tabs 15 to 36 pp 80 - 431 (excluding Tabs 22-32) contain a number of documents that formed part of the development application. The relevance of these documents is that they all propose access via Tristan Place. Tab 36 pp 430 and 431 is a letter from Michael Brown, the Applicant's town planner, to Council dated 13 December 2021. Mr Robertson SC objected to this letter, but Council presses it as part of the development application documentation.
- Tab 37A contains relevant extracts from the EPA Act.
- Tab 37B contains s 8.7 of the EPA Act. The appeal is pursuant to s 8.7(1) and the relevant part is s 8.7(2)(b) relating to satisfaction of a deferred condition of consent - Council was not satisfied by the application. That is, the application that was before the Council, and as set out in AQC Dartbrook Management Pty Ltd v Minister for Planning and Public Spaces [2021] NSWCA 112 (AQC Dartbrook), the exercise of that power, of the Council's power to be satisfied relates specifically to the application that was before Council. In applying AQC Dartbrook [235] to [244], the only documents you are permitted to consider are those documents attached to the Class 1 Application. Council submits that it is the same here because there is no express entitlement in the EPA Act to amend the application made to satisfy a deferred commencement condition. If the Council is not satisfied, then the Applicant can make a further application to satisfy the DCC, provide further documentary evidence or other documentary evidence. That's how the statutory scheme works in terms of the Council.
- Tab 41A - the road rules. There is a difference of opinion as to the proper interpretation of the definitions of "road" and "road related" area, upon ss 11 and 12 of the Road Rules 2014:

[252]

(vii) Council maintains its position that permitting any further documentation, other than that attached to the Class 1, would be to seek to amend documents that were not prepared for the purposes of the proceedings. Any new documents will represent a new application to meet the condition of the DCC.

(e) I find that this case is distinguishable from AQC Dartbrook, Duke and Scarf for the following reasons:

(i) AQC Dartbrook and Duke both involved an appeal against refusal of a modification of a development consent. The proposed modification of the modification took the form of amended plans. Those amended plans were not a 'document in the proceedings' (in relation to s 64 of the Uniform Civil Procedure Rules (2005) (UCPR)) because the modification falls outside the scope to which these provisions apply.

(ii) Similarly in Scarf, the amended BIC involved the amendment of the required building works. Again, the proposed amendment was not a document in the proceedings.

(iii) This case is different. In AQC Dartbrook, Duke and Scarf, the Applicants in each case produced new documents in an endeavour to resolve the proceedings, after the proceedings had commenced. In the present case, the Applicant seeks to rely not on new documents generated by it, but on documents produced under a Notice to Produce on Council (Ex D).

(iv) The documents produced under the Notice to Produce (Ex D) fall within the definition of 'documents in the proceedings' pursuant to s 64 of the Civil Procedure Act 2005. Further, there is no term in s 76(4) of the EPA Regulation which denies the Applicant relying upon public documents, which were in the possession of the Council and did not come to light until almost 18 months after the Application was lodged with Council, noting that previous informal discussions had occurred between the parties well prior to lodgement of the development application.

(v) I give little weight to the documents referred to in the Index on p 4 of the Class 1 Application (Ex C) numbered 2, 3 and 4. Pursuant to s 39(3) of the LEC Act, I will allow the documents produced by Council pursuant to the Notice to Produce (Ex D) which include inter alia the McDonald's DC and subdivision S30/87, and their relevant documentation.

(vi) Any confusion about the access road and its relevance to these proceedings cannot be the total responsibility of the Applicant. Council had several occasions when it could, and should, have disclosed this information to the Applicant: at the pre-lodgement meeting(s) for the original development application, during the period of time when the Applicant tried to meet Council's wishes by gaining access to Campbelltown Road, negotiating a Deed with the owner of Lot 1501, and offering McDonald's consideration of $150,000 for it to grant a right of way from Lot 492 over Lot 491 to that part of the public road of Tristan Place. Especially so when Council was the original subdivider of Lots 49 and 50, and built the access road.

Storty Pty Ltd v Campbelltown City Council

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