Waterways Authority of New South Wales v Coal and Allied Operations Pty Limited

Waterways Authority of New South Wales v Coal and Allied Operations Pty Limited - [2005] NSWSC 1285 - NSWSC 2005 case summary — Zoe

[10]

5099/99 WATERWAYS AUTHORITY OF NEW SOUTH WALES v COAL AND ALLIED OPERATIONS PTY LIMITED JUDGMENT The parties and the leased property 1 By memorandum of lease dated 12 January 1972, the Maritime Services Board of New South Wales granted to J & A Brown Abermain Seaham Collieries Limited a lease of certain land held under the provisions of the Real Property Act 1900, being Lots 1, 2 and 3 in deposited plan 542933 (part of the land in certificate of title volume 5018 folio 1). The rights and obligations of the Maritime Services Board of New South Wales afterwards devolved upon the present plaintiff, Waterways Authority of New South Wales (formerly Marine Ministerial Holding Corporation) but, since relevant events occurred, for the most part, before that devolution, it is convenient to refer to both the Board and the plaintiff, without distinction, as "MSB". The process of devolution will be described presently. The lessee, J & A Brown Abermain Seaham Collieries Limited (which is the defendant), later changed its name to Coal & Allied Operations Pty Limited and will be referred to as "C&A". 2 The dispute between MSB and C&A centres upon a provision of the lease concerning removal of structures from the leased land. The particular structure is a wharf. That wharf is erected mainly on Lot 2 in deposited plan 542933 which has an area of 3 roods 15½ perches and forms part of the bed of Sydney Harbour. Lot 2 is roughly rectangular in shape. One of the shorter boundaries (being the eastern boundary) is the high water mark on the western side of Waverton Peninsula on the northern shore of the harbour. That peninsula extends in a southerly direction from the vicinity of Waverton village and railway station in the north to the headland at Balls Head in the south. The longer boundaries of Lot 2 are generally at right angles to the western shore of the peninsula. They are accordingly the lot's northern and southern boundaries. Each of those longer boundaries is more than 480 feet in length. The distance between them is roughly 60 feet. The eastern boundary corresponding with the high water mark is an irregular line. The western boundary is curved. Viewed on a plan, Lot 2 has the appearance of a long test-tube with a curved bottom and a broken and irregular top. The irregular top represents the high water mark on the western side of the peninsula. The curved bottom represents the offshore end of Lot 2. 3 Outside Lot 2 and to the east of its eastern boundary corresponding with the high water mark is a straight retaining wall made of stone. The wall represents, in physical terms, the shore of the harbour, in that the lower part of its western and visible face is submerged and dry land lies against and hides from view its eastern face. The waters of the harbour permanently cover the area between the high water mark and the western face of the retaining wall; so that Lot 2 is at all times surrounded by water and does not adjoin dry land. 4 The wharf with which the proceedings are concerned stands wholly within (and occupies substantially the whole of) Lot 2 except at its shore end where it extends to occupy also the area between the eastern boundary of Lot 2 and the retaining wall (the area I have described as permanently covered by the waters of the harbour). The shore end of the wharf is affixed to dry land at and slightly inland from the retaining wall. 5 Adjoining Lot 2 at its eastern end is other land held under the provisions of the Real Property Act, being the whole of the land in certificate of title volume 5785 folio 172 of which the Crown is the registered proprietor. That land includes the part of the wharf site extending from the eastern boundary of Lot 2 to dry land at and slightly inland from the retaining wall. Contiguous with the Crown's land and on the harbour shore in positions removed from Lot 2 somewhat to the north and south are the two other lots in the deposited plan in which Lot 2 is included. Those lots (Lots 1 and 3 in deposited plan 542933) are the balance of the land in certificate of title volume 5018 folio 1. Other physical features 6 C&A formerly conducted coal loader operations on a single integrated site consisting of both the land in Crown ownership comprised in certificate of title volume 5785 folio 172 and all three lots comprised in certificate of title volume 5018 folio 1 (that is, Lots 1, 2 and 3 in deposited plan 542933). A wharf installation separate and distinct from the wharf on Lot 2 with which the proceedings are concerned is constructed along the shoreline to the south of Lot 2. Inland from but adjoining that wharf installation are bunkers. In simple terms, operation of the coal loader involved unloading of coal from ships berthed parallel to the shore at the separate wharf installation adjoining the bunkers, storage of unloaded coal in the bunkers, transportation of stored coal from the bunkers out from the shore along the wharf with which the proceedings are concerned and loading of that coal on to ships berthed parallel to that wharf and therefore at right angles to the shore. 7 The wharf with which the proceedings are concerned is of predominantly timber construction. Numerous timber piles sunk into the bed of the harbour support timber cross members to which surface timbers are attached. Affixed to the timber surface of the wharf is a steel frame or gantry bearing rails along which a crane moved to carry coal to ships being loaded. The crane itself has been removed but the steel gantry remains. As I have endeavoured to describe, the timber wharf structure carrying the steel gantry is almost wholly within Lot 2, but with its eastern end (consisting of so much of the timber and steel as is situated between the eastern extremity of Lot 2 and the point at which the wharf joins dry land) upon part of the Crown's land abutting Lot 2. The lease provisions 8 It is common ground that the wharf was in existence when the lease was granted on 13 January 1972. The lease was for a term which expired on 31 December 1989. Subsequent documents executed by MSB and C&A are accepted by the parties as having extended the term to 31 December 1993 on the footing that all the lease provisions continued to apply. By informal arrangement with MSB, C&A in fact remained in possession for a few months after the end of the extended term. It yielded up possession in the second quarter of 1994. 9 It is necessary to quote certain of the lease provisions:

[14]

Clause 11: "That the Lessee shall and will at all times during the said term conform to and comply with (a) all statutes (whether Commonwealth or State and including statutes administered by the Board) and all by-laws regulations or orders thereunder now or hereafter in force in any way applicable to the said demised premises or their use or howsoever otherwise relating thereto including but without affecting the generality of the foregoing the Public Health Act, 1902 the Inflammable Liquids Act, 1915-1953 and the Local Government Act, 1919 and any Act or Acts amending the same (b) the rules regulations and requirements of the Fire and Accident Underwriters Association of New South Wales (c) the requirements now or hereafter imposed of all public municipal and/or other authorities (including the requirements of the Board imposed under any statute administered by it or under any regulation made thereunder) having jurisdiction in respect of the said demised premises and whether such requirements be indicated by order made against or notice served upon the Board or the Lessee or otherwise." 10 The expression "the said demised premises" is not defined and must take its meaning from the operative words: "… DOTH HEREBY LEASE unto J & A Brown Abermain Seaham Collieries Limited …. ALL THAT piece of land situate in the parish of Willoughby County of Cumberland … [as described]." 11 Clause 26 (referred to in clause 7) reserved to MSB the right to terminate the lease by six months notice if the property or any part of it was required for public purposes. Clause 27 (referred to in clause 8) permitted termination by MSB if the demised premises or any adjoining land owned or occupied by C&A was used contrary to the provisions of the County of Cumberland Planning Scheme Ordinance. I mention these provisions merely to elucidate the scope and meaning of clauses 7 and 8. Neither of them plays any direct part in the present controversy, it being accepted that C&A remained lessee until expiration of the term of the lease on 31 December 1993.

[18]

the Court may award damages to the party injured either in addition to or in substitution for the injunction or specific performance." 13 The specific performance claim is thus maintained to the extent necessary to create the foundation for an award of damages in lieu of specific performance pursuant to s.68. C&A's defence 14 By its further amended defence, C&A denies that its failure to remove the wharf constitutes a breach of the lease provisions. This is in part because clause 7 is, in C&A's submission, a code carrying within it its own scheme of vindication. C&A further says that it would have been unlawful for it to remove the wharf during the term (and would be unlawful for it to remove it now) and, in that connection, refers to a number of statutory provisions and statutory instruments. C&A says that, even if its failure to remove was a breach of the lease provisions, specific performance would be an inappropriate remedy, damages being an adequate remedy - but MSB has not suffered any relevantly compensable loss or damage since it has not incurred any cost in itself removing the wharf. There is also an estoppel defence. Construing clause 7 in its context 15 MSB bases its claims squarely on clause 7. Several features of that clause must be noticed. First, the lessee's obligation to remove structures extends to structures "now erected or at any time hereafter to be erected" on the leased land (except seawalls and reclamations), with the result that it applies to the wharf which existed at the time the lease was granted. The clause is thus not concerned with tenant's fixtures as such, even though it would extend to any tenant's fixture properly described as a "structure". 16 Secondly, clause 7 specifies the time at (or within) which removal of structures is to be effected. Leaving to one side as presently irrelevant the case of termination under clause 26, structures are to be removed "prior to the expiration of the said term". Clause 7 does not contemplate removal after expiry of the term. In that respect, it is to be contrasted with clause 8 which, dealing with certain classes of termination before the end of the term, contemplates removal of structures by the lessee after the lessee's right of possession has ended and, to cater for that, creates a special right of occupation for the period during which removal is to be effected. 17 Thirdly, clause 7 deals expressly with the case where a structure is not removed as the clause stipulates ("… and should any such structure or any part thereof not be so removed…"). In that event, the lessor may, according to clause 7, do one of two things, that is, "retain the same" or "itself remove and sell or otherwise dispose of the same". Clearly enough, this involves a choice by the lessor. 18 As it relates to the wharf, clause 7 deals with a fixture forming part of the lessor's land. Removal by the lessee would thus involve removing and taking away the part of the lessor's land that is the wharf. That is something that the lessee would otherwise have no right to do, but the removal requirement imposed upon the lessee by clause 7 must, of necessity, carry with it a right to remove: see Starline Drive-In Theatre Ltd v Federal Commissioner of Taxation (1964) 112 CLR 458. The concept underlying clause 7 is thus not one of the lessee's recapturing for itself something that is, broadly speaking, its own. Rather, the concept is that the lessee will perform a service for the lessor by providing, at the end of the term, land cleared of structures other than seawalls and reclamations. The lessee's obligation is, in substance, an obligation to yield up the land in the condition it was in before structures other than seawalls and reclamations were placed upon it. The covenant is, in that sense, a covenant for the doing of certain work upon and in relation to the land before the expiration of the term. 19 The interaction between clause 7 and clause 4 should be mentioned. Clause 4 requires the lessee to place and keep structures "in good and efficient condition and in a thorough state of repair" and to deliver them up at the expiration or sooner determination of the term "in such condition and state of repair" - subject, however, to the qualification arising from the words "save as hereinafter mentioned". That qualification accommodates and affords precedence to clause 7 in such a way that the clause 4 obligation to deliver up in a thorough state of repair at the expiration of the term does not apply to structures which, having regard to clause 7, the lessee is to remove before that expiration. By definition, things that must be removed beforehand are beyond the contemplation of a provision imposing an obligation to deliver up at the term's end. 20 While clause 7 is not a covenant to repair or a covenant to yield up in repair, it shares with a covenant of the latter kind the characteristic that it is a covenant for the doing of certain work on and in relation to the land before the term's end and, to the extent necessary to ensure that the work is duly completed, for the incurring and defraying of all relevant expenditure. The effect of clause 7 is to require the lessee to yield up and deliver to the lessor, at the expiration of the term, land in a particular state, that is, devoid of "structures" other than seawalls and reclamations. It is, in that way, similar to clause 4 which requires the lessee to yield up and deliver to the lessor, at the expiration of the term, land in a particular state, that is, with seawalls and reclamations (being the structures not affected by the overriding operation of clause 7) in good repair. Each provision is a provision by which the lessee is bound to leave the leased property in a particular condition. 21 There is, however, a conceptual difference between the two. A property on which there are structures in good repair is, in the absence of exceptional circumstances, more desirable and therefore more valuable than the same property on which there are structures in a state of disrepair. But the same cannot be said of a parcel of land that is devoid of structures, compared with the same parcel on which there are structures. Land in a commercial centre on which there stands an office building in good repair and fully let at market rentals is more valuable than if it were devoid of structures. But the vacant land will have the greater value if the office building is untenanted, useless and condemned. 22 The two types of covenant - a covenant to leave in good repair and a covenant to leave devoid of structures - are also distinguishable because the former, but not the latter, attracts the operation of s.133A of the Conveyancing Act 1919. That section applies to a "covenant to leave or put premises in repair at the termination of a lease". Its effect is to limit damages for breach of covenant to, in effect, the reduction in value of the reversion occasioned by the breach of covenant. The covenant in clause 7 - a covenant to leave or put the leased property, at the termination of the lease, in a state where it is devoid of "structures" is, of its nature, not a covenant to "leave or put premises in repair", with the result that the statutory limitation upon damages is not attracted. 23 Where a covenant by a lessee to leave the leased property in a particular condition is not performed by the lessee, there accrues to the lessor a right to sue for damages at common law. The way in which damages are to be assessed in case of breach of a tenant's covenant to leave premises in good and tenantable repair was explained by Fullagar J in Telecom & CPS Community Credit Cooperative Ltd v Heberg Pty Ltd [1993] ANZ ConvR 312 (there being, in Victoria, no equivalent of s.133A of the Conveyancing Act). His Honour said (at pp. 65,273-65,274): "Cases in England decided at the end of the nineteenth century establish clearly that at common law the measure of damages for breach of a covenant to repair in the circumstances of the present case is not the diminution in the value of the reversion. For the purposes of the present case the most succinct affirmative statement of the applicable measure of damages that I have found is contained in the small Victorian text book, Brooking and Chernov: Tenancy Law and Practice in Victoria (1st Ed 1972) at 121, in the following passage: 'At common law the measure of damages, where an action is brought upon the covenant to repair at the end of the term, is such a sum as will put the premises into the state of repair in which the tenant was bound to leave them.' To apply this measure of damages, the Court looks at the state of the premises at the end of the term. It then has to consider what it is that a landlord - a hypothetical and reasonable landlord wishing to put the premises into the state of repair in which the tenant was bound to leave them - would have to expend in money in order to put the premises into the latter state of repair. I shall call this sum of money the "essential expenditure". I have called the person concerned a hypothetical landlord because it is immaterial whether the actual landlord wishes to repair the premises or not, and immaterial whether they ever will be repaired by anybody. Save in one respect, it is immaterial to know that the actual landlord has repaired the premises. In a case where the actual landlord has done the breach - necessitated repairs or some of them by the time of the trial, all the repairs he has actually done and the cost of them are material only because they may afford reliable (or unreliable) evidence of what the relevant repairs would have cost a reasonable landlord to do. I have called the person concerned a reasonable landlord, because when the Court is seeking to determine what is the essential expenditure, breach necessitated, it must bear in mind that the hypothetical landlord would be bound to mitigate his loss, in that he would be bound to do the repairs in a reasonable way for a reasonable price and within a reasonable time. It might or might not be a reasonable course, if breach unrelated operations are also in fact to be done, to do the breach necessitated repairs along with or before or after the unrelated operations; but the enquiry is and remains, in the sense which I have endeavoured to spell out, what is, at the termination, the sum which 'will put the premises into the state of repair in which the tenant was bound to leave them'. For the word 'will' one could as well substitute 'would', because the substituted word emphasizes what should be apparent from the text book version, namely that the essential expenditure is a sum that remains constant irrespective of what the actual landlord does or does not do, and irrespective of what the actual landlord intends at any particular time to do or not do. The measure of damages at common law is the expenditure to be necessarily encountered by a reasonable landlord who put the premises into the state of repair contracted for, whether the actual landlord does those repairs or not." 24 This measure of common damages is sometimes described as the measure in Joyner v Weeks [1891] 2 QB 31. Lord Esher MR said in that case, at p.43: "That rule is that, when there is a lease with a covenant to leave the premises in repair at the end of the term, and such covenant is broken, the lessee must pay what the lessor proves to be a reasonable and proper amount for putting the premises into the state of repair in which they ought to have been left." 25 The correctness of this approach, in an appropriate case, was recognised by the High Court in Graham v Market Hotels Ltd (1943) 67 CLR 567. 26 There may, however, be circumstances in which the cost of putting the premises into the contracted state does not represent the applicable measure of damages. That will be so where, for example, the lessor does not, in reality, want or require premises in the contracted state and is well content to have and enjoy the premises in the state in which they actually exist at the end of the term. As is recognised in cases such as James v Hutton and J Cook and Sons Ltd [1950] 1 KB 9 and Re Zis; O'Donnell v Keogh [1961] WAR 120, such a lessor does not suffer through the breach damages commensurate with the cost of causing the premises to be in the contracted state, although that lessor may suffer damage to the extent of any reduction in the value of the reversion and, if there is no basis on which the court can come to that conclusion, damages will be nominal only. Is clause 7 a code? 27 In the present case, the covenant to yield up land in a particular state (that is, with all structures other than seawalls and reclamations removed) goes on to deal expressly with the possibility that the lessee may, in fact, yield up land which is not in that state (being land upon which structures in addition to seawalls and reclamations remain). If that happens, the lessee may, in accordance with the contract, "retain" the structures in question or itself remove them. In the latter event, the lessor is entitled, as a matter of contract, to recover from the lessee the cost of removal less the net proceeds of any sale of the removed items. The existence of these contractual rights of the lessee raises the question whether the right of MSB to sue for damages or specific performance is, by the parties' contract, displaced. C&A maintains that it is. This is the basis on which C&A argues that clause 7 is in the nature of a self-contained code. 28 Clause 7 bears some resemblance to a lease provision considered by Smith J in Gimtak Pty Ltd v Cathie [2001] V ConvR 54-645. His Honour decided that the particular clause did not have the effect of causing the ordinary right to sue for damages to be overtaken by the contractual right to recover, as a liquidated sum, the net cost incurred by the lessor in effecting the work not done by the lessee. The provision before me differs in an important respect from the provision that was before Smith J. 29 The relevant provision of the lease under consideration in Gimtak was clause 8.2(b). Its effect will be better understood if clause 8.2 as a whole is quoted: " 8.2(a) The Lessee shall at the expiration or sooner determination of this lease peaceably surrender and yield up unto the Lessor the whole of the demised premises and every part thereof clean and free from rubbish and in a state of repair order and condition which is in all respects consistent with the covenants on the part of the Lessee herein contained; (b) If the Lessee shall not have done so as of right under any provision hereof the Lessee shall if required so to do by the Lessor remove from the demised premises within fourteen days from the expiration or sooner determination of the term hereof any fixtures, fittings and floor coverings (to which such requirement shall relate) erected or installed by the Lessee during or prior to the term hereof and shall make good any damage whatsoever caused to the demised premises by such removal and if required by the Lessor shall re-alter any alterations made by the Lessee so that the demised premises shall be converted back to their original condition provided always that the Lessor may at its option itself cause any such fixtures or fittings to be removed and any such damage to be made good and any such alterations to be so re-altered and may recover the costs thereof from the Lessee as a liquidated debt payable on demand." 30 The respective submissions concerning the meaning and effect of the relevant aspect of clause 8.2(b), as well as his Honour's decision on the matter, emerge from the following passage in the judgment (at p.62,335): " Construction of cl 8.2(b) - pre-conditions to lessor's entitlement to Compensation The defendants submit that the parties agreed upon a regime to deal with the consequences of the failure of the lessee to remove fixtures and fittings or to realter alterations when requested to do so under clause 8.2(b). They argue that the plaintiff could require the lessee to undertake such works and that, if it did not, the plaintiff could undertake the works itself and recover the cost as a liquidated debt from the lessees. The defendants submit that as a matter of construction the plaintiff was obliged to incur the cost before it was entitled to recover any compensation from them. It seems to me that the plaintiff's response to this argument is correct. Clause 8.2(b) gives the lessor an option, which the lessor may or may not exercise, to remove the fixtures, fittings and floor coverings and realter the alterations. The lessor does not have to do so. If the lessor chooses to do so then the consequences are set out in the words that follow - the plaintiff may recover the costs incurred as a liquidated debt payable on demand. If the plaintiff chooses not to exercise that option the plaintiff is left with its rights under clause 8.2(b) to seek damages for breach of the obligations set out in that clause." 31 In the present case, clause 7, dealing with the situation where the lessee does not remove the structures as the clause requires, not only allows the lessor to remove them itself and recover, as a liquidated sum, the net cost of doing so but also creates an alternative. The alternative allows the lessor to "retain the same". There was no equivalent provision in Gimtak. A supposed right of a landowner, as against a lessee, to "retain" fixtures forming part of the landowner's land is, in reality, not a right at all. Even if the fixtures are tenant's fixtures, they are the property of the landlord, although subject to a limited right of the tenant to convert them again into chattels, being a right exercisable during the term or during subsequent holding of possession: see Vopak Terminals Australia Pty Ltd v Commissioner of State Revenue (2004) 55 ATR 1. 32 Since, on this basis, a provision allowing a landowner to retain fixtures after the expiration of a lease cannot be said to create in the landowner any right or interest the landowner does not already have, the creation of that permission by clause 7 must be seen to have some other significance. I have already said that a contractual requirement that a lessee remove fixtures must, of necessity, carry with it a right to remove. I have referred in that connection to Starline Drive-In Theatre Ltd v Federal Commissioner of Taxation. The lease in that case required the lessee to remove certain erections and works before the end of the term. The following observation of Kitto J, at p.460, seems to me to be equally relevant to the circumstances of the case before me: "Bearing in mind that at the time when the leases were executed no one could tell whether removal of the improvements immediately prior to the determination of the term would be more advantageous to the lessors or to the lessee, the sense of the covenants, as I read them, is that the lessee is entitled as against the lessors as well as bound in their favour to remove the improvements, so that the lessors may not prevent the lessee from removing them if he desires to do so. In other words the manifested intention of the parties in each instrument appears to me to be that the implied licence to the lessee to remove the improvements at the stipulated time is not to be revocable at the will of the lessor." 33 In the present case, the lessee is given an implied licence to remove structures (being a concomitant of the lessee's contractual duty to remove them) and the lessor is given an express right to revoke that licence. The lessor would invoke that right by electing to "retain the same". If that election were made, the lessee would no longer have either the duty to remove or the right to remove. And if such a situation arose, there would be no default by the lessee capable of being regarded as a breach of covenant in respect of which an action for damages lay. It is in this respect that the provision before me differs from the provision considered in Gimtak. 34 The true effect of clause 7, it seems to me, is to preclude any right of the lessor to sue for damages if one of two things happens: the lessor elects to retain the structures or the lessor elects to remove the structures. In the first situation, for reasons I have stated, there is a revocation by the lessor of the lessee's right to remove and therefore a relaxation or forgiving of the lessee's duty to remove. In the second situation, it simply cannot be the case that the lessor's contractual right to be paid by the lessee the net cost of removal by the lessor co-exists with a right to sue for damages for breach by the lessee of the covenant to remove. It is inconceivable that the lessor could both recover as against the lessee damages for breach of covenant and, having itself removed the structures, recover from the lessee under clause 7 the net cost of doing so. 35 I have said that the ordinary right to sue for damages is precluded if the lessor resorts to either of the alternatives expressly made available by clause 7. This means that, upon the proper construction of clause 7, there is no breach of contract by the lessee if the lessor acts in either of those ways. But there will be a breach of contract, actionable as such, if the lessor resorts to neither of the alternatives expressly made available by clause 7 - that is, if it does not itself remove the structures and does not take advantage of the part of the clause expressed by the words "may if it so desires retain the same". 36 It follows that, in my opinion, clause 7 is not a "code", in the sense for which C&A contends. I do not accept the contention of C&A that there can never be a complaint of breach of contract in relation to failure by C&A to remove structures and that the only remedy available to MSB in that eventuality is the self-help remedy made available by clause 7 itself. The correct characterisation, as I see it, is that a breach of contract will be seen to have been committed by C&A (and to be actionable accordingly) if two conditions are satisfied after the end of the term (C&A having failed to remove structures during the term): first, MSB did not act in accordance with the part of clause 7 contemplating removal of structures by it; and, second, MSB did not act in accordance with the part of the clause expressed by the words "may if it so desires retain the same". Has MSB elected to retain the wharf? 37 It is clear on the facts that the wharf is in place. A factual finding that MSB has not removed it and, to that extent, has not resorted to the alternatives made available by clause 7 necessarily follows. But does it also follow that MSB has taken advantage of the part of the clause expressed by the words "may if it so desires retain the same"? 38 In my opinion, the mere fact that the wharf continues to exist upon and as part of the MSB's land does not mean that MSB has elected to retain it. Such an election would be seen to have been made only if some relevant conduct of MSB were established. The conduct would have to be conduct evidencing the formation and implementation of MSB's "desire" to "retain the same". 39 Both during the term and after its expiration, MSB demanded that C&A remove the wharf. A letter from Mr Lonie of MSB to Mr MacLeod of C&A dated 10 November 1992 said, "All structures and equipment should be removed and the land returned to its pre-existing condition …. All costs in respect of the removal of the structures and the undertaking of the survey shall be borne by Coal and Allied". A letter from Mr Booth of MSB to Mr Mackrill of C&A dated 13 June 1995 said that MSB held C&A "responsible for the removal and reinstatement in accordance with the lease, and for any liability which may arise from the continuing presence of the structure on MSB lands". MSB also provided its consent, as owner, to C&A's lodging a development application with the North Sydney Council in connection with demolition of the wharf in a letter from Mr Lonie to the Council dated 7 September 1993: "[T]he Board as owner consents to the application being lodged."

[30]

44 The conduct of MSB in the period between the expiry of the term and commencement of proceedings would not support any finding that MSB had expressed or otherwise manifested any "desire" to "retain" the wharf, as contemplated by clause 7 of the lease. It is true that MSB has, since the expiration of the lease, made some use of the wharf. But that cannot, in my view, displace the clear conclusion that, as between lessor and lessee, there was never any conduct on the part of MSB inconsistent with its stated desire that C&A remove the wharf in accordance with the lease. Was it unlawful for the defendant to demolish the wharf during the term? 45 The findings to date make it necessary to consider whether performance by C&A of the obligation to remove the wharf not later than the expiration of the term would have involved the doing of something that was unlawful for C&A to do at that time. The only conceivable illegality would have been statutory. It is therefore necessary to consider the state of legislation affecting the matter as it existed at the expiration of the term on 31 December 1993. 46 Specifically, the matter needs to be addressed by reference to the Local Government Act 1993, the Environmental Planning and Assessment Act 1979 (together with relevant environmental planning instruments) and the Heritage Act 1977, these being the measures identified in submissions as potentially relevant. The versions considered are those in force on 31 December 1993. Later amendments or repeals affecting the legislation, regulations and environmental planning instruments and the introduction of the State Environmental Planning Policy No 56 are thus left to one side at this stage. Local Government Act 1993, s.68 - submissions 47 C&A submits that it would have been unlawful for it to demolish the wharf on 31 December 1993 because of the impact of s.68 of the Local Government Act 1993. Several propositions combine to give rise to that submission: first, that the wharf fell within the area administered by North Sydney Council; second that demolition of the wharf would have constituted an activity that required prior council approval under s.68 of the Local Government Act 1993; third, that that Act overrode the Maritime Services Act 1935 to the extent of any inconsistency because (a) MSB was a statutory body representing the Crown and the Local Government Act 1993 bound the Crown; and (b) the Local Government Act, being a later Act, and therefore impliedly repealed the earlier inconsistent Acts (leges posteriores priores contraries abrogant). 48 MSB's submissions are as follows:

[50]

(4) This section is subject to any proclamation made under this Division." 56 The Local Government Act contains no definition of "foreshore" or "foreshores". At common law, the inter-tidal zone is treated as the shore or foreshore - that is to say, "the land lying between the ordinary flux and reflux of the tide between the mean high water mark and the mean low water mark of ordinary tides occurring between the spring and the neap (that is, ordinary) tides, which is alternatively covered and left dry by the flux and reflux of the ride": Commonwealth v Yarmirr (1999) 101 FCR 171 at p.221 per Beaumont J and von Doussa J. On this basis, the low water mark represents the outer boundary of the foreshore, viewed from the shore. When s.205(3)(b) refers to land that "is on the foreshores of the area and beyond low-water mark", it must have in contemplation land that has two characteristics: first, that it is between high water mark and low water mark in the way referred to in Commonwealth v Yarmirr (above); and, second, that it is "beyond low-water mark" when viewed from the shore. Land having the first characteristic only is within s.205(1) and included in a local government area accordingly. If the second characteristic also exists in relation to a parcel of the land, that parcel is not within the local government area unless included by s.205(3). To be so included, it must also satisfy one of the concluding criteria in s.205(3), that is, it must be privately owned or have a structure erected on it. 57 The wharf with which this case is concerned extends from dry land for some 480 feet into Sydney Harbour. It is therefore erected on three relevant portions of land. Part of it is on land above high water mark. Part of it further into the harbour must be on land between high water mark and low water mark. The remainder is on land beyond low water mark. The first part is within the local government area of North Sydney without any assistance from s.205. The second and third parts, taken as a composite whole, are within paragraph (b) and the concluding words of s.205(3), "has a structure erected on it". 58 It follows that the whole of the land occupied by the wharf is comprehended by s.205 of the Local Government Act 1993, with the result that the powers of North Sydney Council under that Act extended to the wharf as at 31 December 1993. The applicability of prohibitions imposed by that Act is therefore a matter necessary to be explored further.

[51]

Did the Local Government Act regulate demolition of the wharf? 59 Section 68 of the Local Government Act, as in force on 31 December 1993, required a person to obtain council approval before demolishing a building. The definition of "building" clearly extended to the wharf as a "structure". 60 Section 4 of the Act provided that the Act bound the Crown "except to the extent that the Act otherwise provides". Under section 69, the Crown was exempt from requiring council approval to demolish a building. It is not disputed that MSB was a statutory body representing the Crown and that s.69 applied to it. Although MSB was thus exempt, C&A was bound by s.68 because the prerogative of the Crown and its freedom from interference by a council in the matter of building operations does not extend to Crown lessees or licensees: Hornsby Shire Council v Danglade (1928) 29 SR (NSW) 118 and Ex parte O'Neill (1892) 13 LR (NSW) 280. In Danglade, the council obtained orders requiring the defendant lessees of Crown land to demolish and remove buildings that had been erected without council approval contrary to the Local Government Act 1919. In Ex parte O'Neill, the court held that a licensee of land vested in the Crown was bound by a by-law and thus liable for failing to notify the council before blasting rocks on the land. 61 Based on Citizens Airport Association v MSB and FAC and R v Portus; Ex parte Federated Clerks Union of Australia, however, MSB submits that C&A would have been acting "for the benefit and in the interest of" MSB and thus "on behalf of" the Crown, in demolishing the wharf at MSB's request, with the result that C&A would have been exempted by s.69 from the impact of s.68 regarding demolition of the wharf. The cases mentioned consider the concept of "on behalf of a public authority" within definitions of various statutory terms appearing in other legislation. The phrase "on behalf of" does not appear in the relevant sections of the Local Government Act 1993. It therefore seems immaterial whether C&A would be acting "on behalf of" the Crown in relation to the demolition of the wharf. I am, in any event, not satisfied that the circumstance that demolition by C&A would be pursuant to a contract with MSB would cause C&A to be acting "on behalf of" MSB. 62 It follows that, subject to the impact of other legislation, demolition of the wharf could not lawfully have been carried out on 31 December 1993 in the absence of an approval of North Sydney Council under the Local Government Act 1993. The powers of MSB in relation to the wharf 63 Section 33 of the Sydney Harbour Trust Act 1900 (as in force on 31 December 1993 but repealed in 1995) vested in the Sydney Harbour Trust Commissioners "exclusive control of the port [of Sydney] and of … wharfs". The Commissioners' powers were subsequently transferred to and became exercisable by MSB: Maritime Services Act, s.6. 64 The reference to "wharfs" in s.33 of the Sydney Harbour Trust Act 1900 are sufficient to cause that section to apply to the wharf with which these proceedings are concerned. That wharf, in any event, falls within the definition of "installation" and "structure" in the Maritime Services Act (see paragraph [53] above). By the legislation as in force at 31 December 1993, MSB therefore exercised control over the wharf as an installation used in connection with trading vessels (defined in s.2), in the sense that the erection or use of installations in the vicinity of any port or navigable waters required the written permission of MSB and had to accord with any condition of the permission (s.13JE). A person who used any unauthorised installation would be liable to pay a monetary penalty (s.13JG(1)) and the Board was empowered to remove and dispose of an unauthorised installation, and recover the cost of removal as a debt from the person (s.13JG(2)-(4)). A person who erected any structure in waters vested in or controlled by MSB required the permission of MSB (s.13T(3), (5)) and MSB was empowered to remove and dispose of unauthorised structures, and recover the cost of removal as a debt (s.13T(4), (9)).

[52]

65 The meaning of "exclusive control" is explained by cases on s.33 and analogous provisions of other legislation. In Parramatta City Council v Stauffer Chemical Co (Aust) Pty Ltd [1971] 2 NSWLR 500, it was submitted that the word "exclusive" in s.33 contains an implied negative, and that the exercise by a council, in respect of any area within the Port of Sydney, of any power within the scope of s.33 affects the operation of s.33. Hope J referred to Beaver v The Justices of Williamstown; Ex parte Hammond (1883) 9 VLR 454 and James Paterson & Co Pty Ltd v Melbourne Harbour Trust Commissioners [1961] VR 343 both of which considered analogous provisions of Victorian legislation. Those cases support a construction of the provisions as conferring control of the relevant port "as a public port". 66 In Beaver, Stawell CJ said at p.456: "It would in my opinion require very clear and distinct language in an Act of Parliament to justify the Court in holding that it was intended that the general Government should hand over exclusive control over general matters of Government to persons who are qualified to discharge duties relating to nautical matters but who may not be qualified to discharge the duties of the general government." 67 In James Paterson, Adam J said at pp.351-352: "By s.47 of the Act there is vested in the Commissioners the exclusive management and control and the preservation and improvement of the port generally. … Apart from specific authority, I should have thought that the exclusive powers of management and control conferred in general terms on the Commissioners by s.47 should be construed as conferring on them power to administer the Port of Melbourne as a public port, but not as warranting interference with a due and proper exercise of public rights in a manner consistent with the management, maintenance and conduct of the port as a public port …" 68 Although in Stauffer Hope J did not think it material to consider the precise extent of the control, he adopted the "as a public port" construction in determining how the Sydney Harbour Trust Act was affected by s.289(f) of the Local Government Act 1919 and Ordinance No. 37. I quote from p.508: "Can it be said, in any real sense, that the operation of a power by councils to control pollution in the Port of Sydney and on its shores and foreshores, or the prohibitions and powers to be found in the Ordinance, in any way affect the exclusive control given by s.33 of the Sydney Harbour Trust Act ? I do not think they do; a power to prevent pollution does not seem to me to impinge upon the control of the Port of Sydney as a public port in the sense of interfering with or affecting that control. It may be that if councils had a power to license the placing of polluting material in the waters of the port, the exercise of such a power could affect the exclusive control given to the Maritime Services Board, but a power to prevent pollution and prohibition of pollution seem to me to be capable of standing with the Maritime Service Board's right to control without affecting it." 69 The decision of Hope J was affirmed on appeal: Parramatta City Council v Stauffer Chemical Co (Aust) Pty Ltd [1973] 1 NSWLR 229. Hutley JA said(at pp.231-2): "I agree with the judgment [of Hope J] except on one small question. The point at which my views diverge from his is probably without any significance in the litigation between the parties, but it may be significant in other contexts. My caveat is solely directed to certain remarks of Hope J as to the effect of s.33 of the Sydney Harbour Trust Act , 1900, which gives the exclusive control of the Port of Sydney to the Maritime Services Board.

[55]

The possibility of a genuine legal collision proceeds on the basis that the Local Government Act and the Sydney Harbour Trust Act operate on the same level. This is not so. … I think that the effect of [section 10(1) of the Local Government Act ] is to make the Local Government Act subject to the Sydney Harbour Trust Act so that any inconsistency between the two Acts does not result in the invalidation of one by the other. Both operate, but when a collision does occur, the exercise of authority based on the Sydney Harbour Trust Act prevails. This means that the provisions of the Sydney Harbour Trust Act can never invalidate s.289(f), but where, under the authority of that Act something is done which, if done otherwise, would be a breach of Ord. 37, it is not such a breach. In the hierarchy of powers those of the Trust prevail by force of s.10 of the Local Government Act . In other words, if any alleged polluter could rely upon any authority conferred by the Sydney Harbour Trust Act , it would have an effective defence to any charges based on Ord. 37." 70 The cases of Woollahra Municipal Council v MacLennon, both at first instance ([1969] 1 NSWR 609) and on appeal ([1970] 1 NSWR 273) and Royal Sydney Yacht Squadron v North Sydney Municipal Council (NSWLEC, McClelland J, 18 September 1981) concerning the coexistence of the Local Government Act 1919, the Sydney Harbour Trust Act and the Maritime Services Act support the analysis in the judgment of Hutley JA. 71 Section 10 of the Local Government Act 1919 was activated (so as to make that Act subject to the Sydney Harbour Trust Act) only when the Local Government Act actually affected the Sydney Harbour Trust Act. There is no equivalent of s.10 of the Local Government Act 1919 in the Local Government Act 1993 as in force on 31 December 1993. Nor are there any cases concerning the coexistence of the Act of 1993 and the Sydney Harbour Trust Act or the Maritime Services Act, so far as I am aware. It therefore becomes necessary to resolve the tension between the two enactments. Statutory inconsistency

[59]

As was demonstrated by the Court of Appeal when the government by mistake passed the Education Acts in the wrong order, it is not just because one Act is later than another that the later Act will prevail: see Black v Director General of Education [1982] 2 NSWLR 714 ." 76 The Sydney Harbour Trust Act and the Maritime Services Act vested "exclusive control" of the port of Sydney, including wharfs, in MSB. The Local Government Act 1993 provides for the regulatory functions of councils generally. Both the presumption of consistency between statutes and the rule of commonsense would militate against the implied repeal of s.33 of Sydney Harbour Trust Act and s.6 of the Maritime Services Act. In light of the rule that subsequent general legislation which is inconsistent with particular legislation does not repeal the particular legislation (generalia specialibus non derogant), the specific provisions of the Sydney Harbour Trust Act and the Maritime Services Act were not impliedly repealed by s.68 of the Local Government Act 1993, an apparently inconsistent provision cast in general terms. On that basis C&A did not require the prior approval of North Sydney Council under the Local Government Act 1993 for the demolition of the wharf on 31 December 1993. 77 The Sydney Harbour Trust Act and Maritime Services Act, as in force on 31 December 1993, referred to certain things that could not be done in relation to "installations" without the permission of MSB: see paragraph [64] above. Demolition is not one of the things expressly mentioned. It may well be, however, that it would have been inconsistent with MSB's "exclusive control" of the wharf for C&A to demolish it, at least in the absence of MSB's concurrence in that course of action. Even if that were so, the Act would not have stood in the way of demolition by C&A, given the terms of the lease between MSB as lessor and C&A as lessee and the course of dealings in which MSB had actively sought to have MSB effect demolition. I refer in that connection to relevant correspondence. MSB had requested C&A to demolish the wharf during the term: see the letter from the "A/Property Controller" of MSB Mr Michael J. Lonie to the Assistant Superintendent of C&A Mr Ian MacLeod dated 10 November 1992. MSB also indicated that it consented to the development application being lodged with the North Sydney Council by C&A in a letter from Mr Lonie to the Council dated 7 September 1993: see paragraph [39] above. Environmental planning instruments

[72]

(2) Nothing in this clause excludes the application of section 33 of the Sydney Harbour Trust Act 1900 otherwise than in respect of the obtaining of development consent in accordance with this plan." 90 Mr Einfeld QC for MSB submitted that the definition of "development" under SREP 23 was the same as the definition in s.4 of the Environmental Planning and Assessment Act, which was extended to include demolition of buildings by s.75 and the NSLEP 1989. The relevant provisions of the Environmental Planning and Assessment Act are: " Contents of environmental planning instruments 26. Without affecting the generality of … any … provision of this Act, an environmental planning instrument may make provision for or with respect to any of the following: …. (d) controlling the demolition of buildings or works; …" " Definition 75. (1) In this Part , a reference to development includes a reference to any other act, matter or thing referred to in section 26 which is controlled by an environmental planning instrument." [Emphasis added] 91 It is sufficient to note that the extended definition of "development" provided by section 75 applies only to Part 4 of the Environmental Planning and Assessment Act. It was therefore not imported into SREP 23 which, in the relevant respect, continued to take its meaning from the definition of "development" in s.4(1) of the Act. Heritage Act 1977 92 C&A also relies on the Heritage Act to support its submission that the demolition of the wharf on 31 December 1993 would have been unlawful. Specifically, C&A says that the Heritage Act was binding on MSB and applicable to the wharf. This submission is based on the proposition that the wharf was a "relic" for the purpose of the Heritage Act and could not be lawfully demolished without a permit under s.139. 93 The Heritage Act as in force on 31 December 1993 contained the following definition of "relic" (s.4): "'relic' means any deposit, object or material evidence: (a) which relates to the settlement of the area that comprises New South Wales, not being aboriginal settlement; and (b) which is 50 or more years old." 94 This definition of "relic" in the Heritage Act has never been the subject of judicial comment, as far as I am aware. Mr Dicker of counsel for the defendant submitted that the wharf should be regarded as a relic because of its age, its clear heritage significance and the fact that it exists in Sydney Harbour. 95 That the wharf is at least 50 years old is not disputed. I note that a report regarding the coal loader prepared for the North Sydney Council by "Conservation Planner, C Kemp" and dated 16 August 1993, states: "The wharf was built progressively from 1918 to 1920." 96 The Waverton Peninsula Industrial Sites - Conservation Management Plan dated May 2000 also states: "With the land prepared, a wharf was built into Balls Head Bay between 1918 and 1920." 97 Mr Dicker submitted that "the settlement of … New South Wales" may include the provision of commercial and marine facilities. That may be so, but the essential aspect of "settlement", it seems to me, is that it causes to be settled, used and inhabited territory which, from a non-Aboriginal perspective, was not previously settled, used and inhabited. The "settlement" referred to is that of "the area that comprises New South Wales", not of some locality within or forming part of New South Wales. On that footing, an item could, in my opinion, be a "relic" as defined only if it related to the process that saw New South Wales converted from what was once called "waste lands" into a community of the European (specifically, British) kind. 98 Verse is not evidence. I nevertheless set out in full a poem written by Henry Lawson in 1916: " The Sacrifice of Ball's Head They're taking it, the shipping push, As all the rest must go - The only spot of cliff and bush That harbour people know. The spirit of the past is dead North Sydney has no soul - The State is cutting down Ball's Head. To make a wharf for coal. Where picnic parties used to go To spend a glorious day, With all the scenery of a coast And not a cent to pay. The deep cool tangle shall be cleared To make the glaring roads And motor lorries jolt and grind And drag their sordid loads.

[75]

99 Taken at face value, this suggests that Balls Head was "settled" at that time. It was then, as now, a popular recreation area visited by "boating couples" and "picnic parties". Common knowledge would testify that the whole of Sydney Harbour was, by the second decade of the twentieth century, part of "settled" New South Wales and had been for a considerable period. 100 I find that the wharf was not, at 31 December 1993, a "relic" as defined by the Heritage Act as then in force. Conclusion on the illegality question as at 31 December 1993 101 As the law stood on 31 December 1993, no provision of a statute or statutory instrument would have prohibited demolition of the wharf by C&A, either absolutely or in the absence of some form of official consent or permission. Unilateral action by C&A to demolish may well have been inconsistent with MSB's "exclusive control" under the Sydney Harbour Trust Act and the Maritime Services Act. But demolition by C&A in conformity with the lease terms - that is, in satisfaction of a contractual obligation owed to MSB - would not have been inconsistent with that "exclusive control", particularly in the factual circumstances where MSB was actively seeking compliance with the obligation by C&A. Indeed, MSB, by requiring demolition, was exercising an aspect of its "exclusive control". The need to consider the illegality question at a later time 102 In Mills v Ruthol (2004) 61 NSWLR 1, Palmer J undertook a comprehensive review of decided cases and textbook commentary on the question of the point of time at which a party seeking equitable damages under s.68 of the Supreme Court Act must be seen to have a right to specific performance or injunction. His Honour demonstrates convincingly that damages in lieu cannot be awarded unless it is shown that the equitable relief could have been granted at the commencement of proceedings. Palmer J stated his conclusion as follows (at p.13): "… I am of the opinion that … in order to invoke the discretionary power of the court to award damages under s 68 of the Supreme Court Act , the plaintiff must demonstrate that as at the date of commencement of the proceedings the circumstances were such that the court could , not necessarily would , have granted … specific performance. If such circumstances change after the commencement of the proceedings so that specific performance … becomes impossible or would be refused on discretionary grounds, the court's power to award damages under s 68 is not thereby lost." 103 Where, as in the present case, questions of statutory illegality arise for consideration, the impact of relevant statutory provisions thus needs to be examined as at the time of commencement of the proceedings in which the equity founding a right to specific performance is asserted. The court will not decree specific performance where the act compelled would have been unlawful at the time proceedings were commenced. Such a case is one in which, in Palmer J's terminology, the court neither "could" nor "would" have granted specific performance. The consequences, in terms of damages in lieu of specific performance, were stated by Isaacs J in Norton v Angus (1926) 38 CLR 523 at p.534, a case concerning the impact of Queensland Crown lands legislation: "For the reasons given, the nature of the case itself, as matters stood at the institution of the action and as they still stand, renders it absolutely impossible, in my opinion, to order specific performance. Such an order would violate the statute. It would compel the parties to do what, if done, would be a breach of a statute regulating a matter of high public policy. It would direct an act in breach of a condition imposed by the Crown and Parliament in relation to the tenancy of Crown lands. Whatever the penalty for such a breach, the breach itself is unlawful, and no Court, in my opinion, is empowered to direct any breach of a statute. Therefore, equitable damages in substitution for specific performance seem to me to be altogether out of consideration." 104 Because these proceedings were commenced by statement of claim filed on 17 December 1999, it is necessary to consider whether any order for specific performance of the promise to remove the wharf made on that date would have compelled C&A to act unlawfully. Changes to relevant legislation and other measures between 31 December 1993 and 17 December 1999 105 The first matter to be mentioned under this heading is that, with effect from 1 July 1995, s.6 of the Maritime Services Act was repealed by the Ports Corporatisation and Waterways Management Act 1995 (Schedule 4.15 [6]). The Ports Corporatisation and Waterways Management Act dissolved MSB (and its subsidiaries) (s.5), established the Marine Ministerial Holdings Corporations (s.29) and the Waterways Authority (s.35), and transferred the powers, authorities, duties and functions of MSB under the Maritime Services Act to the Minister for Ports and Waterways ("the Minister") (Schedule 4.15 [5]; Maritime Services Act, s.2B). The Ports Corporatisation and Waterways Management Act also repealed the Sydney Harbour Trust Act as of 1 July 1995 (s.111 and Schedule 3). 106 The Environmental Planning and Assessment Act was amended, as from 1 July 1998, so as to include "demolition of a building" within the definition of "development". 107 With effect from 22 March 1994, SREP 23 (Amendment No. 1) caused the category of wharfs to be included under Schedule 3(o) of SREP, amended clause 8 and inserted Schedule 5. 108 On 21 August 1998, the Sydney Environmental Planning Policy No. 56 - Sydney Harbour Foreshores and Tributaries ("SEPP 56") was introduced. It was amended on 1 April 1999. 109 The Waverton Peninsula Strategic Masterplan (the "Waverton Masterplan") was made pursuant to SEPP 56 in March 1999. 110 On 3 March 1999, clause 73 of NSLEP and clause 4(3) and Schedules 3 and 5 of SREP 23 were amended by NSLEP 1989 (Amendment No 60). Did any of these changes cause demolition of the wharf to be unlawful in 17 December 1999? 111 From 1 July 1998, the definition of "development" in s.4 of the Environmental Planning and Assessment Act was amended by the Environmental Planning and Assessment Amendment Act 1997, to include a reference to the "demolition of a building or work": "'development' means: (a) the use of land, and (b) the subdivision of land, and (c) the erection of a building, and (d) the carrying out of a work, and (e) the demolition of a building or work, and (f) any other act, matter or thing referred to in section 26 that is controlled by an environmental planning instrument, but does not include any development of a class or description prescribed by the regulations for the purposes of this definition." 112 The term "development" in clause 5 of SREP 23 continued to have the meaning given by s.4 of the Environmental Planning and Assessment Act. By clauses 4(1) and 4(3) SREP 23 was applicable to the wharf and prevailed over the NSLEP 1989 to the extent of any inconsistency, except for clause 73 of the NSLEP. Specifically, clause 73 of the NSLEP provided:

[80]

As a result of the statutory changes of 1 July 1995 outlined at paragraph [105] above, the reference here to "the Board" (that is, MSB) became, in effect, a reference to the Minister for Ports and Waterways since the functions with respect to consent expressed to be vested in "the Board" became vested instead in the Minister. 115 As the wharf was zoned "W1 - General Waterways" (clause 9 and the Map) and demolition was not a purpose permitted without development consent under the development control table for Zone No. W1 - General Waterways (see paragraph [81] above), C&A would have required development consent to demolish the wharf on 17 December 1999. 116 The Sydney Environmental Planning Policy 56 (SEPP 56) was also applicable to the wharf (clause 4). It prevailed over other environmental planning instruments (e.g. SREP 23, NSLEP) to the extent of any inconsistency (clause 5(1); Environmental Planning and Assessment Act 1979, s.36). 117 SEPP 56 listed the "Coal Loader Site, Balls Head" as a "site of strategic significance" (Schedule 2, Map 10). Clause 14(1) of SEPP 56 provided that development consent for the Coal Loader Site must not be granted unless there was a master plan for the land, the consent authority had considered the master plan and the development was consistent with the master plan. The Minister for Urban Affairs and Planning was empowered to waive compliance with the requirements of clause 14(1) (clause 14(2)). In addition, the consent authority was required to seek the views of the Director General before granting consent to a development application (clause 15). These requirements effectively guided the ministerial consideration of a development application for consent to the demolition of the wharf. 118 The Waverton Masterplan concerns strategies for the future development of the Coal Loader Site. In relation to the wharf, the Masterplan noted: "COAL LOADER WHARF - Investigate potential uses subject to full structural evaluation and commercial viability that might include: - intermittent ferry access - mooring and basic ancillary support for medium to large vessels - public access"

At a glance

Court

Decision date

Before

Source

Judgment (91 paragraphs)

Parties

Cases Cited (9)

Cited By (5)