Vaisey v Parramatta City Council [2002] NSWLEC 182 | Case summary

We refer to your letter of 10 April 2000 and note that we have heard nothing further from your office since that date. Accordingly, we hereby give notice to Parramatta City Council ("PCC") that Mrs Vaisey, as registered proprietor of the Property, requires PCC to acquire the Property at a value determined as if the Development Application effecting the Property lodged with PCC by Mrs Anne McCusker had been approved. This notice is given pursuant to clause 19 of the Parramatta Planning Scheme Ordinance which is currently applicable to the property, clause 19(1) of which reads as follows: "The owner of any land reserved under Division 2 or 3 upon which the erection of any building or the carrying out or alteration of any work of a permanent character or the making or alteration of any permanent excavation is prohibited except for or incidental to a purpose for which the land is so reserved, or the owner of any land so reserved, in respect of which the responsible authority has refused its consent pursuant to clause 11(2), 14(2) or 18 may, by notice in writing, require the responsible authority to acquire that land." We note that clause 19(2) of the said Planning Scheme states as follows: "Upon receipt of a notice referred to in sub-clause (1) the responsible authority shall acquire the land to which the notice relates." The responsible authority in the context of the Planning Scheme is PCC and the requirements of the Planning Scheme are quite clear in requiring PCC to acquire our client's land. Please provide us with your acknowledgement of receipt of this notice and confirmation that PCC will proceed to comply with its obligations under the Planning Scheme for the acquisition of our client's land. 9. In an internal memorandum prepared for the council's Corporate Committee on 3 October 2000, the council's Acting Property Manager states (inter alia) that the council has received correspondence from lawyers representing the owner of No. 19 Joseph Street, Rydalmere "which serves notice on Council to acquire the whole of the land under clause 19 of the Parramatta Planning Scheme Ordinance". 10. On 25 October 2000 the applicant (by her solicitors) sent a letter to the council. The letter states (inter alia): "the purpose of this letter is to clarify the background to this matter and establish an agreed position in relation to Council's obligation to pay compensation to our client". The letter includes the following: 6. On 18 August 2000, we gave the Council written notice that our client required the Council to acquire the area of our client's property affected by reservation 1(a) Open Space (Parks and Recreation). 7. The Council is obliged, pursuant to sections 26 and 27 of the Environmental Planning and Assessment Act 1979 (the "EP&A Act") and clause 19 of the Parramatta Planning Scheme Ordinance to purchase that part of our client's property subject to the 1(a) Open Space (Parks and Recreation) reservation. 8. The obligation on Council to acquire that part of our client's property as at 18 August 2000 is not affected by any subsequent alteration, variation or repeal of any environmental planning instrument, see section 34(4) of the EP&A Act and the decision of the Court of Appeal in Byron Shire Council v Greenfields Mountain Pty Limited (Court of Appeal 40882/98 13 December 1999) 11. On 7 December 2001 Parramatta Local Environmental Plan 2001 came into effect, under which the whole of the applicant's land was rezoned Residential 2(a). 12. The reference in the letter of the applicant's solicitors dated 25 October 2000 to the decision of the Court of Appeal in Byron Shire Council v Greenfields Mountain Pty Ltd [1999] NSWCA 461 is relevant. In that case the landowner served a notice in writing on Byron Shire Council under the equivalent provisions to cll 11 and 19 of the Ordinance in the present case. It was common ground that upon being served the notice the council then became obliged to use its best endeavours to acquire the land. Subsequently the zoning of the land was changed so that the landowner was no longer entitled to give that council a notice requiring it to acquire the land. It was held that the landowner could continue to rely on the entitlement which it had earlier acquired when it gave the council notice in writing requiring it to acquire the land at the time when that was permitted. Such an entitlement is properly characterised as a substantive right which is preserved by provisions such as s 34(4) of the EP&A Act and s 30(1) of the Interpretation Act 1987. 13. These facts give rise to the three issues which I have reformulated as follows: (1) The validity of the notice requiring the council to acquire the land; (2) Whether the council's refusal of its consent to the development application was a determination pursuant to cl 11(2) of the Ordinance. (3) Whether the council's refusal of its consent to the development application extending over that part of the land which was reserved, the remaining part of the land and the adjoining land, which were not reserved under Pt II Div 2 of the Ordinance, was a refusal in respect of "that land". Issue (1): The validity of the Notice 14. Mr P C Tomasetti, appearing for the council, submits that the notice given on 18 August 2000 is not a valid notice. The following was put in support of the submission: (a) Clause 19(1) of the Ordinance entitles the owner of "land reserved under Div 2 or 3" by notice in writing to require the council to acquire "that land" ; (b) The notice that was served requires the council to acquire "the Property" , identified as No. 19 Joseph Street, Rydalmere; (c) The subsequent letter dated 25 October 2000 does not constitute a notice under cl 19(2); (d) The notice was understood by the council as being a notice to acquire the whole of the land. (He referred to Carter v Hyde (1923) 33 CLR 115 at 126 and MacDonald v Robins (1954) 90 CLR 515 at 525) (e) The notice is thus a demand to require the council to acquire the whole of the applicant's land, whereas cl 19 of the Ordinance only enables the applicant to require the council to acquire that part of it which is reserved under Div 2 or 3 of the Ordinance. 15. Mr J B Maston, appearing for the applicant, made the following submissions on this issue: (a) the two letters of 18 August 2000 and 25 October 2000 must be read together and make clear that the applicant requires the council to acquire that part of the property affected by the reservation; (b) in any event the letter of 18 August 2000 must be read as a whole and it expressly refers to and sets out the terms of cl 19 of the Ordinance; (c) notice is not given in a vacuum and the identity and knowledge of the recipient is relevant; and (d) the council understood the notice to have the effect contended for, namely, that it was a notice pursuant to cl 19 of the Ordinance. (He referred to Lewis v Bell (1985) 1 NSWLR 731 at 739 and Carter v Hyde). 16. In considering these submissions of the parties I accept the principle that the recipient's understanding of what the notice requires may be relevant. In Carter v Hyde, Isaacs J said (at 126), quoting Romer J in Jones v Daniel (1894) 2 Ch at 335: "Now, what would anybody when he received that letter fairly understand to be the meaning of it?" I add, of course, "in the circumstances of its receipt". His own attitude shows that he understood it, and I think reasonably understood it, as adding nothing to the conditions. 17. In MacDonald v Robins (1954) 90 CLR 515, however, Dixon CJ said (at 525): The ultimate question in the case is whether the notice to the defendant of 15th January 1952 is sufficient to amount to a use of this power. The answer depends, not upon the plaintiff's appreciation of the niceties of the legal situation in which he stood, but upon the character of the document and the information it conveyed. 18. In Lewis v Bell (1985) 1 NSWLR 731, Mahoney JA, in considering a notice of termination of a lease, said (at 739): Whatever be the requirements of a notice to quite to terminate a lease, a notice to terminate a licence of the present kind is in my opinion sufficient if it adequately conveys to the recipient that the agreement in question is terminated by it. 19. The question then in the present case is: what does the notice convey to the recipient and how was it understood by the recipient? I have set out above (par [8]) the full text of the notice. It defines "the Property" as No. 19 Joseph Street, Rydalmere. As previously noted, the property was zoned partly Residential 2(a4) and was partly reserved for parks and recreation under Pt II of Div 2 of the Ordinance. The notice then proceeds to require the council to acquire "the Property". The notice then sets out the full text of cl 19(1) of the Ordinance as being the source of statutory power for giving the notice. It is clearly, in my opinion, intended to be a notice pursuant to cl 19(1). The notice concludes with two references to the council's obligation to acquire "our client's land". 20. How was the notice understood by the council? As previously noted, the council's Acting Property Manager reported to the council's Corporate Committee on 3 October 2000 that: "Council has received correspondence, from Henry Davis York, lawyers representing the owner of 19 Joseph Street Rydalmere, which service notice on Council to acquire the whole of the land under cl 19 of the Parramatta Planning Scheme Ordinance" (Emphasis added). 21. The notice thus required the council, in terms which are clear and unambiguous, to acquire the whole of the applicant's land. This is the sense in which it was understood by the recipient. 22. It does not seem to me that the subsequent letter from the applicant's solicitors to the council dated 25 October 2000 can be regarded as being part of the notice served under cl 19(1) of the ordinance. The second paragraph of the letter states its purpose, namely: [t]he purpose of this letter is to clarify the background to this matter and establish an agreed position". The balance of the letter, read as a whole, appears to be an attempt to negotiate a settlement. It is not part of the statutory notice. 23. In applying the principles explained by Dixon J in MacDonald v Robins, the character of the notice of 18 August 2000 and the information conveyed by it leads to the conclusion that it was intended to be a notice under cl 19(1) of the Ordinance, but it required the council to acquire the whole of the applicant's property, including that part of it that was not reserved under Div 2 and 3. Moreover, this was the sense in which it was understood by the council. It is thus not a notice authorised by cl 19(1) and is not a valid notice pursuant to that clause. Issue (2): Whether the council's refusal of its consent to the development application was a determination pursuant to cl 11(2) of the Ordinance. 24. Mr Maston submits that the only power to consider a development application for land which is reserved under Pt II Div 2 of the Ordinance, is cl 11(2). The development application was assessed pursuant to that clause. There being no other power to deal with development applications on such land, the finding must be made that the development application was refused under cl 11(2). In Mr Maston's submission cl 19 has two limbs: (i) whether the land is reserved under Div 2, upon which the erection of any building or the carrying out or alteration of any work of a permanent character is prohibited; and (ii) whether the responsible authority has refused its consent pursuant to cll 11(2), 14(2) or 18 of the Ordinance. These limbs pose an absolute test which, if satisfied, affords no discretion - the council must acquire. (He referred to Wilson Bros (Partners) Pty Ltd v South Sydney City Council (NSWLEC, Bannon J, 24 August 1992, unreported) and to Port Stephens Council v Fidler (1997) 94 LGERA 298 at 303). 25. Mr Tomasetti submits that the development application was refused for reasons unrelated to whether the purpose for which the reserved land to be carried into effect within a reasonable time, but solely on its merits on consideration of the heads of consideration arising under s 79C of the EP&A Act. The council had not "refused its consent pursuant to cl 11(2)" as required by cl 19, but refused its consent pursuant to s 79C. 26. In my opinion this issue turns on the meaning and operation of cll 11(2) and 19. 27. Clause 11(2) of the Ordinance enables the responsible authority, where it appears to it that the purpose for which the land is reserved cannot be carried into effect within a reasonable time after the appointed day, to consent to the erection of a building etc. The responsible authority must refuse such an application if it is not satisfied that the precondition described in the sub-clause is met. That is, it has no power to consent, unless it is of the opinion that the purpose for which the land is reserved cannot be carried into effect within a reasonable time. 28. The consent authority may, however, refuse the development application for other reasons. Those reasons may include a failure to satisfy the tests set out in s 79C of the EP&A Act. That is, the consent authority may be satisfied that it has power to consent under 11(2) of the Ordinance, but may refuse its consent on grounds unconnected with cl 11(2). 29. Clause 19(1) of the Ordinance provides that the owner of land which is reserved under Div 2 or 3, in respect of which the responsible authority has refused its consent pursuant to cll 11(2), 14(2) or 18, may by notice in writing require the authority to acquire the land. Clause 19 makes no reference to a case where the consent authority refuses its consent under some other provision, such as s 79C of the EP&A Act. That is, cl 19(1) only applies where the responsible authority has refused its consent pursuant to cll 11(2), 14 or 18 of the Ordinance, not where it has refused its consent pursuant to some other provision. 30. The conclusion contended for by the applicant could lead to absurd consequences. It would mean that an applicant could apply to the council to carry out any kind of development whatsoever, which, if refused (as it inevitably would if it were for a totally unsuitable kind of development) would trigger the operation of cl 19. 31. Where two or more meanings of a statutory provision are open, it is a strong reason against adopting a particular interpretation if the result would be unreasonable (Attorney General v Till (1910) AC 50 at 51, Dickson v Edwards (1910) 10 CLR 243 at 265). The applicant's construction of the operation of cl 19 would be unreasonable. 32. The reasons for refusal of the development application make no reference to cl 11(2) of the Ordinance or whether the purpose for which the land is reserved can be carried into effect within a reasonable time. I have set out the reasons for refusal above (in par [7] above). They are all considerations which arise under s 79C of the EP&A Act, being merit considerations. The council refused the development application for reasons entirely related to those considerations. Presumably, if the development were to be re-designed to overcome the various reasons for the refusal, it would have been approved. 33. In my opinion it is also relevant that the application was to construct nine town houses on both lot 2 (No. 19 Joseph Street) and lot 1 (No. 17 Joseph Street). The proposed development straddles both lots and straddles the zone boundary on lot 2. That is, it straddles both the Residential 2(a4) zone and the Open Space 1(a) reservation. 34. The proposed development could only be considered in its entirety. A consideration of s 79C matters which apply to that part of the development which is within the Residential 2(a4) zone (lot 1) could not be undertaken in isolation from that part of the development which is on the reserved land. 35. I conclude, therefore, that the council has not "refused its consent pursuant to cl 11(2)" within the meaning of cl 19 of the Ordinance, but has refused its consent pursuant to s 79C of the EP&A Act. Accordingly, the trigger for the operation of cl 19 has not occurred. This is sufficient to distinguish the facts in the present case from the authorities relied upon by Mr Maston, namely Wilson Bros (Partners) Pty Ltd v South Sydney City Council and Port Stephens Council v Fidler. I accept those cases as being authority for the proposition that, if the trigger for the operation of cl 19 had occurred, then it would not be open to the Court, as a matter of discretion, to refuse to make an order for compulsory acquisition; but that is not the case here. Issue (3): Whether there has been a refusal of an application in respect of "that land". 36. In Mr Tomasetti's submission, the application for consent was in respect of development of the reserved land together with other land, including land not owned by the applicant (being No. 17 Joseph Street, Rydalmere). This much is plain. The words of notice of cl 19(1) require, as the trigger, a refusal of consent pursuant to cl 11(2). That clause in turn allows consent to be given over land which is reserved under Pt II Div 2. That does not mean that land and other land. It means only the land which is reserved under Div 2. (Mr Tomasetti referred to Polarizers (Aust.) Pty Ltd v Marrickville Municipal Council (1979) 40 LGRA 18). Mr Maston, on the other hand, sought to distinguish the Polarizers' case on its facts. Alternatively, he submitted that the case was wrongly decided and should not be followed. 37. In Polarizers the relevant environmental planning instrument contained two clauses which were the equivalent of cll 11 and 19 in the present case; cl 10(2) being the equivalent of cl 11(2) and cl 18 being the equivalent of cl 19. A development application was made seeking the consent of the council to the use of land to which cl 10(2) applied, in conjunction with adjoining land. The development application was refused. The owner of the land formally required the council to acquire the land pursuant to cl 18. The council declined to do so and the owner sought a declaration that the council was bound to acquire. 38. Sheppard J held (at 26) that there was no refusal in relation to the subject land: The application for consent was in respect of the development of the premises which included the plaintiff's premises and other premises. The words of the clause contemplate the refusal of consent pursuant to cl. 10(2). That in turn provides for consent to be given the owner of land which is reserved pursuant to cl. 9. That does not mean that land and other land. It means only the land which is reserved pursuant to cl. 9. Furthermore, the defendant indicated quite clearly that it was prepared to consider a further application involving only the premises Nos 16-22 Australia Street. In my opinion there was, therefore, no refusal. 39. Although the precise facts in Polarizers are not the same as in the present case, I am unable to distinguish the principle described by Sheppard J above. The judgment has stood the test of time and I am not persuaded that it was wrongly decided. As previously noted, the development application in the present case was for a development that straddles both No. 19 Joseph Street and No. 17 Joseph Street (the latter owned by others). There was a refusal of a proposed development over both properties. There was, therefore, no refusal by the council of its consent in respect of "that land" within the meaning of cl 19(1). Orders 40. For each of the foregoing reasons the following orders are made. (1) The application is dismissed. (2) The applicant must pay the respondent's costs. (3) The exhibits, other than Exhibit A, may be returned.

Vaisey v Parramatta City Council

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