The consent was subject to 33 conditions, and the reasons for the imposition of those conditions were listed. None of those conditions related to the protection of the habitat of endangered fauna. While Mr Larkin does not challenge the validity of the consent or the conditions thereof, he challenges the reasons therefor, and it appears to me that he may do so. Section 92(4)(a) of the Environmental Planning and Assessment Act, 1979 ("the EPA Act") requires the consent authority to indicate the reasons for the imposition of conditions, but where public notice of the grant of consent has been given under s.104A of the Act, it does not protect the validity of those reasons, but only the consent itself. The reasons themselves may be open to challenge Pyx Granite Co. Ltd. v Ministry of Housing and Local Government and Another (1958) 1 QB 554 at 572. But the premise on which Mr Larkin proceeds, namely the validity of the subdivision consent of 22 September 1992, places a severe limitation upon any attack made on the Council's reasons for the conditions imposed on that consent. If the attack on any one reason succeeds, the Court has no jurisdiction in these Class 4 proceedings to substitute a different reason. Furthermore, given the starting premise, when the successful attack on a reason succeeds, resulting in the invalidity of the condition supported by that reason, such attack must also be limited to reasons supporting conditions which are not central to the consent, otherwise the whole consent would be void Lloyd and Others and Robinson and Another [1962] HCA 36; (1962) 107 CLR 142 at 152; Randwick Municipal Council v Pacific-Seven Pty Ltd (1989) 69 LGRA 13 at 16-19 per Stein J. The limitations upon judicial review of consents should be borne steadily in mind: Minister for Aboriginal Affairs and Another and Peko-Wallsend Limited and Others [1986] HCA 40; (1986) 162 CLR 24 at 39-42.

Mr Larkin alleged that six measures directed to ameliorate the impact of the proposed development on endangered fauna, or on its habitat, were discussed at a General Purposes Committee Meeting of the Council on 8 September 1992 (Exhibit A, p.121). Of those six measures, Mr Larkin said that three ended up as conditions of consent. So far as I can judge, it is possible that Measure 1 corresponds to Condition 25; Measure 2 bears a faint resemblance to Condition 1(b); Condition 3 does not appear to be adopted as a condition; Measure 4 appears similar to Condition (1)(a); Measure 5 does not appear to correspond to a condition; and Measure 6 bears a faint resemblance to Condition 1(f). However, the reasons for imposing those conditions (Exhibit A, p.149), do not relate to amelioration of the impact of the development on endangered fauna or on its habitat.

The original development application (Exhibit A, p.33) was for a subdivision of eight residential lots. This concept was altered prior to approval and the consent (Exhibit A, p.145) states that it was to create 13 Residential Allotments and Community Land under the Community Land Development Act, 1989 ("the Community Act"). The notion that the grant of subdivision approval is to be for a purpose appears to me to be somewhat unusual. Suppose a subdivision be permitted to establish factories but the owners of the subdivided lots decide to use them for agriculture. Once title passes, the owners and their assigns may use their land for any permissible purpose unless a condition of consent relating to user is attached to the development approval. The Community Act contains its own provisions as to subdivision by registration of a community plan (s.5) and for severance of a development lot from a community scheme (s.15). Those provisions do not impinge on the requirement for development consent for subdivision under the EPA Act.

The conditions of development consent provided in Condition 1 that before the final plan of survey was approved, the developer was to submit to Council with the Final Plan, a management statement and a development contract prepared in accordance with the Community Act. Those provisions refer to ss.5(4) and 26 of the Community Act. The "community management statement" is defined in s.3 ibid as a statement registered with a community plan as a statement of the by-laws and other particulars governing participation in a community scheme. A development contract is also defined in s.3 as meaning instruments, plans and drawings that are registered with a community plan, precinct plan or neighbourhood plan, and describe the manner in which it is proposed to develop the land in the community plan, precinct plan or neighbourhood plan to which they relate. Section 8 provides for subdivision of community development lots in a community plan of subdivision. It is conceded between the parties that the development consent for subdivision granted on 22 September 1992 is valid.

Mr Larkin claimed that the Council, when granting that original approval, had before it material which showed that the land proposed to be subdivided formed part of the habitat of endangered fauna. The creatures in question were listed at relevant times in Schedule 12 to the National Parks and Wildlife Act, 1974 ("the NPW Act") and are the following:

It would appear from Council's files, that in respect to an earlier development application No.92/86 (which was refused) relating to the subject land, that its General Purposes Committee was aware of submissions by the National Parks and Wildlife Service (NPWS) as to the environmental importance of the Taylors Lakes area, including Lots 36 and 37 (includes the subject land). The NPWS had stated that the proposed development was an incursion into this natural area and would result in habitat loss (Exhibit B, p.42). At its meeting on 25 August 1992 the Council's General Purposes Committee (Exhibit B, p.47) considered these submissions and also the observations of its own staff. That meeting recommended approval of DA 92/86. The same Committee dealt with DA 92/219 (Exhibit B, p.50), so it is clear that wildlife habitat was an issue in the process of approval. That Committee report came before a Council Meeting on 8 September 1992 (Exhibit A, p.114) which adopted the report of the General Purposes Committee Meeting, subject to modification. It emerges from Exhibit A, p.116 (part of the Council Meeting of 8 September 1992) that Condition 27 of the Conditions of Approval for DA 92/219 was imposed to protect the wetlands, the habitat of endangered fauna, and not for the reasons stated. It also appears from Exhibit A, p.117 that Condition A1(e) was also amended to protect the neighbouring wetlands. See also the Minutes of the General Purposes Committee Meeting of 8 September 1992 (Exhibit A, p.129). The fact that some of the terms of the management statement imposed by the Council were imposed to mitigate the impact on endangered species was confirmed by a letter from its General Manager to the Director of the National Parks and Wildlife Service dated 23 February 1993 (Exhibit A, pp.170, 171).

From the above matrix of documents it appears that the Council, in granting development consent in respect to subdivision under Application 92/219, did so on the basis that the land to be subdivided was to create 13 residential allotments to be held under the Community Act, and Condition A1 required that the management statement required by s.5(4) of that Act contain provisions to protect the habitat of endangered fauna. Condition 27 was also imposed to protect the habitat of endangered fauna.

EFFECT OF COMMUNITY LAND DEVELOPMENT ACT, 1989

The agreement by the parties that the original subdivision consent is valid, imports the consequence that it complies with the requirements of s.26 of the Community Act. Section 26(1), (3) and (4) is in the following terms:

" 26. (1) If an application for development consent to development in accordance with a proposed community scheme or precinct scheme is accompanied by a proposed development contract, the consent authority may not grant the development consent unless the proposed development contract complies with Schedule 2 and is approved by the consent authority in the approved form.

(3) The granting of a development consent referred to in subsection (1) or (2) is subject to a condition requiring the community parcel, precinct parcel or neighbourhood parcel to be developed in accordance with the development contract.

(4) A condition under subsection (3) has effect as a condition authorised by, and imposed under, section 91 of the Environmental Planning and Assessment Act 1979."

THE SECTION 102 MODIFICATION

On 8 September 1993 the developer wrote to the Council a letter (Exhibit A, p.178), which, omitting formalities, said:

"Please review the attached 102 variation generally requesting the switch of Lot 13 to Torrens Freehold to see if I have got it the way we discussed. ..."

The development application pursuant to s.102 of the EPA Act appears at Exhibit A, 179. The Council approved the application on 21 December 1993 and notified its decision in a document (Exhibit A, p.153). The effect of the modification is to remove Lot 13 from development under the Community Act and to remove from it those conditions of development in Condition A1 of the original consent, which had been inserted for the protection of endangered fauna and from all original conditions, including Condition 27.

In order to be a valid modification, s.102 of the EPA Act provides that the consent as modified must relate to substantially the same development. Where the application is in respect to a development likely to significantly effect the environment of endangered fauna, s.77(3)(d1) of the EPA Act requires it to be accompanied by a fauna impact statement. No fauna impact statement accompanied the s.102 application. It is obvious from the Council's Conditions of the original consent, and the reasons therefor emerging from the Minutes of the Council Meeting of 8 September 1992, and its Manager's letter to the Director of National Parks and Wildlife Service of 23 February 1993 (Exhibit A, pp.170-171), that the Council was aware that the modification was likely to significantly affect the environment of endangered fauna. Lot 13 is about 500 metres from wetlands and about one quarter of it is covered by trees and bushland which are connected to those wetlands. The presence of cats and dogs would be likely to drive the endangered creatures from habitat. In addition to the advice from the NPWS, Council had on its file a letter from an ecologist, Mr D. Milledge, dated 21 August 1992 (Exhibit A, pp.107-109) warning it of the danger to habitat.

With regard to the s.102 application, the Council simply failed to advert to the requirements of s.77(3)(d1) of the EPA Act in granting consent. Further, I do not consider a consent to a subdivision in which one lot, Lot 13 (consisting of 2963m2 out of a 3 ha subdivision (Exhibit C), is to be subdivided as a Real Property Act lot free of conditions and of the controls imposed under the Community Act whereas the other 12 lots are to be under a community development scheme pursuant to s.26 of the Community Act, can be said to be substantially the same development as a subdivision in which 13 lots are under a community development scheme with a management statement containing provisions to protect the habitat of endangered fauna, and subject to numerous conditions of approval. Toohey Miller & Associates Pty Ltd v Ku-Ring-Gai Council (1995) 88 LGERA 82 at 84.

My conclusion is that the s.102 modification consent is invalid and that the onus on the applicant has been discharged Danis Hotels Pty Ltd v Dubbo City Council (1991) 72 LGRA 35 at 37. The consent has not been shown to be protected by s.104A of the EPA Act. Lend Lease Management Pty Ltd and Burns Philp Trustee Co. Ltd v Sydney City Council, Heritage Council of New South Wales and New World Properties (NSW) Pty Ltd (1986) 68 LGRA 61 at 87.

On 23 December 1994 Byron Properties lodged Development Applicant No.95/006 with the Council for consent to develop the said Lot 13 (Exhibit A, pp.180-183) for eight detached dwellings. A statement of environmental effects (Exhibit A, pp.189-198) referred to the proximity of the wetlands but claimed the development was unlikely to significantly affect flora and fauna in the wetland (this is not the question posed by s.77(3)(d1) of the EPA Act). A further report on flora and fauna (Exhibit A, pp.201-215) by Mr I. Pickles, Town Planner, was also before the Council. It did deal with habitat of endangered fauna at p.207. The Council determined the application at its Meeting of 4 April 1995 (Exhibit A, p.226) by granting the application on conditions, the formal determination being at Exhibit A, pp.216-225. The approval states the reasons for conditions but none of them relate to the preservation of the habitat of endangered fauna.

In my opinion, the development consent is vitiated by the invalidity of the s.102 modification and by the purported removal of conditions intended to protect the habitat of endangered fauna. Again the consent is not protected pursuant to s.104A of the EPA Act.

Byron Properties became the owner of Lot 13 pursuant to contract dated 29 August 1994 (Exhibit 3). The Director of Planning gave concurrence to the subdivision on 27 November 1992 (Exhibit 2). A title search of 20 July 1995 revealed no clog (Exhibit 4). None of these, in my opinion, affect the binding effect of the restrictions imposed by the original conditions of consent, including those pursuant to Condition A1 of the Development Consent 92/219 on Lot 13. These do not go to title, but apply to the land in whosoever's hands. Royal Sydney Golf Club and Federal Commissioner of Taxation [1955] HCA 13; (1955) 91 CLR 610 at 624; R v District Council of Berri: Ex parte H.L. Clark (Berri) Pty Ltd and Others (1984) 52 LGRA 137 at 139; Randwick Municipal Council v Pacific-Seven Pty Ltd (1989) 69 LGRA 13 at 15.

Accordingly, I am of opinion that, subject to what follows, Byron Properties should be restrained from using the subject land except in accordance with the restrictions imposed by the original consent granted to Mr E.P. Freeman, viz., No.92/219 of 22 September 1992.

The case concerning the Registrar General may be disposed of shortly. The Real Property Act gives the Supreme Court jurisdiction to direct alterations to the Registrar. Such jurisdiction is not given to this Court. However, this Court may require Byron Properties to take the necessary steps to enforce planning restrictions, and may injunct that company from developing the subject land otherwise than in accordance with the consent of 22 September 1992.

Mr M. Craig, Q.C., for Byron Properties, submitted that the Court in its discretion would not enforce the terms of the original consent. Mr Larkin submitted that the Particulars of Defence delivered on behalf of Byron Properties did not disclose grounds for the exercise of discretion. Part 15 Rule 7 of the Supreme Court Rules provides that a pleading shall contain a statement in summary form of the material facts on which a party relies. Although Part 15 is not adopted by this Court under its own rules, the principle appears applicable to all pleadings, even in a Court which is not a Court of strict pleading.

However, affidavits filed on behalf of Byron Properties have been read and if they disclosed material leading me to believe discretionary relief should be given, I would not regard a failure to plead discretionary matters as a bar to granting relief, subject to a suitable amendment of the pleadings.

However, I am not persuaded that the evidence gives rise to grounds for discretionary relief. Evidence that Byron Properties is a bona fide purchaser for value without notice of title defects, does not disclose any proper inquiry as to restrictions on user, imposed under the EPA Act. Annexed hereto as a schedule to this judgment is the Council's "Chronology of Significant Events", but I am of opinion that they do not disclose any adequate ground for the exercise of discretion in favour of the Council or the second respondent.

Evidence called by Mr Craig, and in particular the evidence of Mr F.D. Fanning, a biological consultant, contained in his affidavit of 22 December 1995 and further oral evidence, strongly suggested that Lot 13 is not in fact part of the habitat of the specified endangered species. Mr Milledge, whose affidavit of 19 February 1996 was read, also gave oral evidence. He admitted finding no evidence of the presence of the specified endangered fauna on Lot 13.

There may be a case for the Council to grant fresh development consents regarding Lot 13 and the remaining lots, or to grant a modification under s.102 of the EPA Act, taking Lot 13 out of the Community Act subdivision and removing the restrictions to protect the habitat of endangered fauna after proper consideration of that issue. However, I consider this to be a matter for the Council which can consider the evidence of Messrs Milledge and Fanning, and not for this Court in Class 4 proceedings. There is no s.102 application pending before this Court.

1. A declaration that the modification of development consent No.92/219 by the First Respondent on 21 December 1993 is void and of no effect.

2. A declaration that the development consent No.95/006 issued by the First Respondent to the Second Respondent on or about 4 April 1995 is void and of no effect.

3. An order that the Second Respondent be restrained from carrying out any development including the clearing or excavation of any land, pursuant to the said development consent until further order.

4. An order that Byron Properties be restrained from developing Lot 52 Deposited Plan 838451 (formerly Lot 13) except in accordance with the terms of Development Consent 92/219 granted by the Council on 22 September 1992 until further order.

5. Liberty to apply, costs reserved. Exhibits to be returned.

I HEREBY CERTIFY TYHAT THIS AND THE PRECEDING 14 PAGES ARE A TRUE AND ACCURATE COPY OF THE REASONS FOR JUDGMENT HEREIN OF THE HONOURABLE MR JUSTICE BANNON.

17 March 1992 Development application 92/86 lodged with the Council for subdivision of Lot 36 in DP209520 situate in McGregor Street, Suffolk Park so as to create 5 residential allotments, open space, road and a residue lot. Total area of the land involved was 1.083 hectares.

9 June 1992 Development application 92/219 lodged with the Council seeking consent and subdivision approval for the subdivision of the balance of Lot 36 DP209520 and Lot 37 in DP612321, being an extension of the subdivision contemplated by DA 92/86 and involving the creation of a further 7 house lots, one medium density lot, public reserve and open space. The total area involved was 3.03 hectares.

8 September 1992 Council resolved to grant development consent for a 9 lot subdivision.

22 September 1992 Council resolved to grant development consent in respect of DA 92/219 for 13 residential lots together with a community lot and public reserve lot subject to receiving concurrence of the Department of Planning.

27 November 1992 Concurrence of the Department of Planning received.

3 December 1992 Development consent DA 92/219 notified to the applicant.

8 September 1993 Application made to modify consent 92/219 to enable Lot 13 of the subdivision to be created as a Torrens Title lot instead of a lot under the Community Land Development Act.

21 December 1993 Notification of approval of modification application subject to conditions.

31 January 1994 General Manager signs clerks certificate attached to the plan of subdivision so as to create Lot 13 as a Torrens Title lot - such lot then being shown as Lot 52 in the plan of subdivision.

2 May 1994 DP838451 creating Lot 52 (Lot 13) as a lot in a current plan of subdivision and having an area of 2963m2.

28 October 1994 Settlement of purchase of Lot 52 in DP838451 from Freeman to Byron Properties Pty Ltd effected.

17 November 1994 Folio identifier 52/838451 issued showing Byron Properties Pty Ltd as registered proprietor following registration of transfer U790857.

23 December 1994 Development application 95/006 lodged with the Council seeking development consent for the erection of 8 two storey townhouses upon Lot 52 in DP838451.

4 April 1995 Development consent to DA 95/006 granted subject to conditions.

24 April 1995 Development consent No. DA 95/006 notified to Byron Properties Pty Ltd.