Young and Anor v Gosford City Council

APPLICANTS Mr J Thompson (Barrister)

SOLICITORS Kernans Lawyers LEGAL REPRESENTATIVES: RESPONDENT Mr M Fraser (Barrister)

SOLICITORS PJ Donnellan & Co

IN THE LAND AND 10984 of 2000 ENVIRONMENT COURT McEwen AJ OF NEW SOUTH WALES 20 August 2001

Garry Robert Young and Michele Louise Skelton Applicants v

Gosford City Council Respondent

This is an appeal by the respondent Council against the decision by Commissioner Watts (27 February 2001) to uphold an appeal against the Council's refusal of a development application to subdivide the residential block of land commonly known as 9 Cornelian Road, Pearl Beach (being Lot 98A in DP 239908) ("the subject land"). That land had a frontage to Cornelian Road of some 12 metres, and its rear boundary to Jade Place of some 32 metres. The subdivision proposal was to create two lots on the subject land, with access to the western (rear) lot being to Jade Place.

The matter which enlivens this appeal originates from 1966 when the owner of a large parcel of land (some seven acres, being Lot 291 in DP 14817), which in part abutted the subject land, sought its subdivision. The subject land was on the south-east corner of this parcel. The land in Lot 291 had by then been severed by the construction of the road known as Pearl Beach Drive. The subdivision proposal was for 16 residential lots on the eastern side of that road, and a single large parcel on its western side. Access to the 16 lots was to be by way of a right of way to the rear of the lots, on their eastern boundaries, (which right of way was eventually formed as Jade Place). In 1966 Lot 291 was zoned "open space recreation" under the Gosford Planning Scheme.

The Council, as an interim development authority in 1966, was not empowered to determine the subdivision application. An appeal was lodged (supported by the Council) to the State Planning Authority, and was upheld. When the matter was remitted to the Council for approval of subdivision and engineering design plans, Council's Deputy Engineer Mr Prince recommended the submitted design plans be approved on conditions. The relevant condition for present purposes was: (4) Transfer to council in fee simple of a 1 foot wide strip of land along the eastern boundary of the proposed new road.

The "proposed new road" is that which became Jade Place.

Mr Prince's memorandum dealt with engineering matters. After discussing the standard of construction, he concluded: - This is considered to be a satisfactory design standard; however precaution should be taken to prevent further subdivision of existing allotments on the eastern side of this proposed new road.

Consent for the application for subdivision issued by the Council on 30 August 1967, and included the condition numbered 4 referred to in par 3 above. The consent was ultimately implemented by the registration of DP 239908 on 20 July 1970 (see copy attached). Between the date of the consent, 30 August 1967, and the registration of that deposited plan, there were other subdivisions or re-subdivisions which were not put in evidence before the Commissioner, even though he was alive to there being "something missing" from the history (transcript 20 February 2001, p 96). For present purposes that history, and interim steps, have no bearing.

It was the Council's contention before the Commissioner, and the nub of the present appeal, that the only objective, and only work which Condition (4) could do, was to prevent subdivision of existing lots (including the subject land), on the eastern side of Jade Place. The Council's complaint relates to the way in which the Commissioner dealt with that contention, or rather, failed to deal with it adequately.

Apart from the reference in Mr Prince's memorandum concerning the engineering plans to which I have adverted, no other Council record demonstrated a rationale for the inclusion of Condition (4), in the consent which issued. To give effect to Condition (4) the one foot wide strip of land on the eastern boundary of Jade Place was joined in a single title with a 20 foot wide access handle which was previously provided in DP 14817, to give access from Cornelian Road to Lot 291. In DP 239908 this T-shaped section of land which includes the 20 foot wide access handle and the one foot wide strip along the eastern boundary, is identified as Lot 17.

In the Memorandum of Transfer of Lot 17, to the Council, Lot 17 is described as being "…for pathway". No certificate under s 149 of the Environmental Planning and Assessment Act 1979, in respect of the subject land was in evidence. However the Council's "Property Attribute Print" in respect of the subject property formed part of exhibit 1. That Print shows the matters which the Council may include as relevantly affecting the land in respect of which a planning certificate is sought. Whilst the Print lists guidelines, policies, instruments and DCP's (both adopted and in draft form) which would touch upon or be relevant to development or use of the subject land, no reference is made to what the Council now contends is the purported constraint arising from Lot 17. The only other Council record of relevance was an extract from the Register kept under the Local Government Act 1993, where Lot 17 is shown as having been classified as "community" land on 7 January 1993. (The question of whether Lot 17 could be "applied as a constraint" in the manner Council contended for, was not the subject of challenge as to its being a legitimate form of land use control; nor whether this purported "planning purpose" acted as an improper fetter on Council's exercise of its statutory discretion; nor whether as a consideration of subdivision of Lot 291 it could constrain development of land otherwise not the subject of the consent).

There was evidence before the Commissioner that separate development applications had been lodged, and refused, for the construction of a residence on the proposed rear lot on the subject land, and for access to it from Jade Place.

The salient issues, identified by the Commissioner in the hearing before him, were firstly character and amenity, and secondly access over community land (which was a reference to Lot 17). The Commissioner found the matters relating to character and amenity acceptable, and dealt with the question of access over Lot 17 by imposing Condition No 1 as follows: This consent shall not operate until the applicant has obtained an easement three (3) metres wide as per the plan in exhibit E, for a right-of-carriageway over lot 17 DP 239909, pursuant to s 88K of the Conveyancing Act 1919. (The reference to DP 239909, ought have been to DP 239908).

The amended Statement of Issues relevantly provided: Whether the Development Application makes proper provision for access to proposed Lot 982 from a public road. Particulars a. Proposed Lot 982 does not have frontage to any public road.

To meet this issue the applicants for consent proposed pursuing an application in the Equity Division of the Supreme Court to obtain an order for access over Lot 17 pursuant to s 88K of the Conveyancing Act 1919. Consent could be accommodated (the applicant submitted) by way of a deferred commencement condition, dependent upon the outcome of such an application. Whilst Lot 17 remained classified as "community land" neither the Council nor this Court has power to grant an easement over Lot 17. Although that may change if the land was reclassified as "operational land", if it remained "community" the applicant said it could take comfort from the recent decision by Bryson J in Marshall and Anor v The Council of the City of Wollongong [2000] NSWSC 137, unreported. The applicant contended that the question of access was proper to be left in abeyance in this manner, there only being a need for the Court to be satisfied that access was available and appropriate from Jade Place, and it was possible to obtain the necessary easement across Lot 17. (Jeblon Pty Ltd v North Sydney Municipal Council (1982) 48 LGRA 113; Grace Bros Pty Ltd v Willoughby Municipal Council and Ors (1981) 44 LGRA 400, 422).

The Council objected to the issue of access being dealt with in this fashion. It contended that because there was no access the appeal ought be dismissed outright; further that the reason for the creation of Lot 17 was for the specific purpose of preventing access to ensure subdivision of the type applied for, was prevented. This objective was said by the Council to be a planning purpose, and that to achieve it Lot 17 was held by the Council subject to a trust for a public purpose of the kind referred to in Bathurst City Council v PWC Properties Pty Limited (1999) 195 CLR 566. The use for access, would be contrary to both the objectives of that trust, and the planning purpose for which Lot 17 was acquired. Further, that the land remaining classified "community" precluded its use in the manner proposed (per ss 45 and 46 of the LG Act); there was no Plan of Management which would otherwise allow its use in the proposed manner.

Evidence relevant to the issues raised in the present appeal was given by Mr Eyre, the Council's Senior Town Planner, and Mr De Fina a consultant planner for the applicant. There is no issue that traffic and pedestrian ingress and egress off Jade Place to the proposed rear lot on the subject land, would be both safe and acceptable. Mr Eyre agreed that absent Lot 17, access would be available from Jade Place.

Mr Eyre gave evidence that in his opinion the purpose of Lot 17 being created in the manner it was, was to prevent future subdivision of lots to the east of Jade Place, including subdivision of the subject land, by preventing vehicular access from those lots to Jade Place. He was not cross-examined on that issue.

Mr De Fina was of the opinion that the purpose of the one foot wide strip of land was unknown. He observed that the Council had permitted other properties whose rear boundary abutted Jade Place, to access Jade Place for vehicular and pedestrian access. There were a number of examples of lots with access of this nature, onto Jade Place. However when Mr De Fina was cross-examined on this opinion, whilst he initially viewed the suggestion referred to in Mr Prince's memorandum of 18 August 1967 namely "to prevent further subdivision", as a "precaution", he ultimately conceded that the one foot wide strip of land served the claimed town planning purpose of preventing subdivision of lots on the east of Jade Place (transcript 19 February 2001 p 69).

When addresses by counsel commenced on the second day of the hearing before the Commissioner, Mr Fraser, counsel for the Council, handed to the Commissioner a two page "Outline of legislative Regime and Respondent's Submissions, Community Land, and, 88K". This lead to discussion between the Commissioner and the parties representatives, resulting in an agreement for the parties to prepare an Agreed Statement of Facts and Questions of Law for referral to the Chief Judge pursuant to s 36(5) of the Land and Environment Court Act 1979. That statement of Agreed Facts and Questions of Law was provided to the Commissioner on the morning of the third day of the hearing. Questions of law were as follows: 14. The following questions of law are put forward for determination pursuant to section 36(5) of the Land and Environment Court Act.

(i) Whether the Council holds part of Lot 17 DP 23909 (the land) subject to a trust for a public purpose within the meaning of the Local Government Act, Schedule 7, clause 6(2)(b).

(ii) If the answer to (i) is yes, whether the Council can reclassify the land to operational land.

(iii) Can Gosford City Council, by resolution, grant access to Jade Place over Lot 17 DP 239909 from proposed Lot 982?

(iv) If the answer to question (i) is yes, is it open to the Court in the proceedings to grant access pursuant to s 39(2) of the Land and Environment Court Act 1979?

(v) Am I empowered to grant a deferred commencement consent to permit the Applicants time to obtain consent to the granting of an easement for a right of carriageway over Lot 17 DP 239909 pursuant to section 88K of the Conveyancing Act 1919, by way of an application to the Supreme Court?

(vi) Does this Court have jurisdiction pursuant to section 16(1A) of the Land and Environment Court Act 1979 to hear and dispose of any application by the Applicants to obtain an easement pursuant to section 88K of the Conveyancing Act over Lot 17 DP 239909.

(vii) Whether this Court is empowered to give access for a right of carriageway over community land, being Lot 17 DP 239909. (The reference to DP 23909 in (i) above and to DP 239909 in (iii), (v), (vi) and (vii) ought to have been a reference to DP 239908).

The Council's position was that the Questions need not be referred to the Chief Judge because the application ought be dismissed on its merits (transcript 22 February 2001 p 101). If the Questions of Law were referred to her Honour, Council maintained that the only question of relevance related to the power of the Court to impose a deferred commencement condition (14(v)). However Mr Fraser for the Council enjoined the Commissioner to refer the draft Facts and Questions to the Chief Judge "…in the form that it is".

Mr Thompson, counsel for the applicants, submitted to the Commissioner that it was appropriate for the Questions of Law to be referred to the Chief Judge and for the Commissioner to defer making his final decision until the questions were answered (transcript 22 February p 110). However the Commissioner flagged to the parties that he was minded not to refer the questions to the Chief Judge, and to deal with the application (were he minded to find for the applicants on the merits), by way of staying the consent until access over Lot 17 was obtained. No objection to this proposed course was taken by either of the parties' representatives, other than for Mr Fraser doubting the power of the Commissioner to stay a consent in the manner the Commissioner contemplated.

The Commissioner's findings on the merit matters raised in the Statement of Issues were all in the applicants' favour. He noted, in relation to the Questions of Law, that whilst these had been prepared by the parties, With the imposition of a condition precedent, requiring the applicant obtaining consent for access across lot 17, I have decided not to refer these to the Chief Judge. (The condition precedent was the Condition No 1 referred to in par 11 above).

Due to the manner in which the appellant Council now frames its various challenges to the Commissioner's determination, which relate in the main to the question of access, it is relevant to set out the reasoning by which the Commissioner arrived at his conclusion in relation to that issue: - 68 Proposed Lot 982 does not have frontage to any public road, and before any approval may issue, vehicular and pedestrian access would be necessary over Lot 17 DP 239909, that is classified as "community land" under the Local Government Act 1993, Schedule 7, cl 6.

69 The evidence before me established that Lot 17 DP 239909 was created as a result of a condition of approval of a subdivision approved by letter dated 30 August 1967 which inter alia, stated: 4. Transfer to Council in fee simple of a one foot wide strip of land along the eastern boundary of the proposed new road. [Jade Place]

70 It is open to me to find that if access from Jade Place to proposed Lot 982 is available the land [lot 98A], would be rendered suitable for subdivision.

71 I am satisfied that I am empowered to grant a conditional consent to permit the applicants opportunity to obtain consent to the granting of an easement for a right-of-carriageway over Lot 17 DP 239909 under s 88K of the Conveyancing Act 1919, perhaps by way of an application to the Supreme Court. To this end I will impose a condition requiring the development consent to not operate, until such an easement for a right-of-carriageway is obtained.

72 The purpose of the 0.305 metre wide strip of land is not specifically stated, however, Mr De Fina was prepared to accept that it might be for the planning purpose of limiting access to the lots of land on the eastern side of Jade Place. The applicant argues that that planning purpose has been overtaken by events and that access over that strip of land to the proposed new lot would not frustrate that planning purpose today. I consider that if access were permitted that the planning purpose would not be so compromised that the application for subdivision should be refused.

73 I noted, on the site inspection, that the council has allowed other properties vehicular and pedestrian access over Lot 17.

74 On or about 18 January 2001 a development application for a 3m driveway to provide access across Lot 17 DP 239908 to proposed Lot 982 was lodged with the council (Development Application 10724/2001). That development application was refused by Notice of Determination dated 19 February 2001. Should approval be obtained, a 3m wide accessway to lot 982, similar to that proposed in Development Application No 10724/2001, would be acceptable. (Again, the reference to DP 239909 in paras 68, 69 and 71 ought to have been a reference to DP 239908).

The appellant Council's allegations of errors of law committed by the Commissioner ran to 18 separate challenges. In recognition that some of these were repetitive, cumbersome and convoluted, Mr Fraser identified the grounds of challenge/errors of law as being:-

(i) A failure to consider relevant matters (namely the planning purpose of Lot 17). ("Relevant matters")

(ii) Imposing a condition, namely Condition No 1, which was alleged to be ultra vires. ("Ultra Vires")

(iii) That the Commissioner failed to finally determine the application in so far as Condition 1 postpones until later the determination of a matter essential to it. ("Finality")

(iv) That there was a denial of procedural fairness in failing to disclose that the Questions of Law were not being referred to the Chief Judge, thereby depriving the parties an opportunity to make submissions on those questions. ("Procedural Failures")

The relevant matter which the appellant says was either ignored or not given appropriate weight, was the role of Lot 17 - its claimed "planning purpose". In contrast to the Commissioner's finding that the purpose of the one foot wide strip was "not specifically stated…" (par 72 of the judgment), the appellant points to the agreed conclusion by both Mr Eyre and Mr De Fina that the planning purpose of Lot 17 was to inhibit access so as to prevent subdivision of, inter alia, the subject land. It is put that this evidence is neither considered, nor is an explanation for its rejection adumbrated. However there was no evidence of a planning nature, or rationale of the type one expects with planning objectives which explained why it was desirable to prevent subdivision of the lots on the eastern side of Jade Place. As to the "planning purpose of limiting access", it is put by the appellant that the Commissioner's conclusion demonstrates a failure both to understand the expert evidence as to what the planning purpose was, and to give it due and proper consideration and weight, this being apparent from the conclusion of the Commissioner, viz: I consider that if access were permitted that the planning purpose would not be so compromised that the application for subdivision should be refused (par 72 of the judgment).

The Council says that if the planning purpose of Lot 17 was the prevention of subdivision (which the planning experts agreed it was), then this conclusion is fundamentally incompatible with that purpose and hence wrong. If access were permitted the planning purpose would not just be compromised, but abrogated.

This conclusion is predicated on the inference that the planning purpose being referred to by the Commissioner was to limit access "for the purpose of subdivision". However in his judgment he doesn't say that. He simply says that the purpose might be for "limiting access" per se. However any observer of the proceedings could not be left in any doubt that the Commissioner's reference "limiting access" was a reference by him to the claimed trust for the purpose of preventing subdivision. It is correct that the purpose of the one foot wide strip of land "is not specifically stated", merely being referred to en passant in the report by the engineer Mr Prince, in his report of 18 August 1967, which was obviously dealing with engineering plans and issues, not planning matters. Nowhere in Council's records from 1967 to the present is there to be found any reference to Mr Prince's memorandum or the claimed objective the one foot wide strip was to serve. There was no evidence before the Commissioner of any planning rationale in 1967 to support restricting subdivision on the eastern side of Jade Place, and given the silence of the Council's controls and records over the intervening 34 years on the subject, it was open to the Commissioner to conclude that the purpose of limiting access had either evaporated or become subsumed in other controls and policies.

Without the Questions of Law being referred to the Chief Judge, the Council says that the Commissioner was unable to consider the relevance of the purported "public purpose" under the claimed trust. This restriction it is said so inhibited the Commissioner's consideration of the access issue that the exercise of his discretion miscarried. It is said that this is demonstrated by the Commissioner imposing Condition 1, which in turn is said to defer for another day the question of access. The Commissioner was thereby precluded from exercising his discretion in a proper manner, as he did not have before him (and did not consider) the claimed planning purpose of Lot 17. However a reading of the whole of the Commissioner's judgment does not accord with that conclusion. He was alive to the classification of the land as community land (par 27, par 45 and par 68); and he was alive to the alleged purpose of Lot 17 being to prevent further subdivision of the lots on the eastern side of Jade Place (par 63, par 69). He had had detailed submissions put to him on the land being in "trust for a public purpose" and was taken at some length to the decision in Bathurst CC v PWC Properties (op. cit.), and Mareen Developments v Brisbane City Council (1972) 24 LGRA 363.

No submission was put by the Council to the Commissioner that it was not open to him to grant a consent in the way he has, albeit a question of his power to do so was flagged but not pressed. Relevantly it was not put to the Commissioner that without the Questions of Law being determined he was unable to proceed to either properly consider the relevance in planning terms of the "purpose" of Lot 17, or proceed to determine the application in that context. Consistent with the approach taken by Cripps J (as he then was) in Page v Parkes Shire Council (1991) 72 LGRA 97, the Council ought not be now heard to complain that the Commissioner has failed to take the steps it now says that he ought to have taken (p 102.4 - 103.5). When the Commissioner made it plain that he was considering not referring the Questions of Law to the Chief Judge (transcript p 102, p 110), no submission was put that determination of the Questions of Law by the Chief Judge was essential as a preliminary step. Notwithstanding proceedings in Class 1 before the Commissioner being conducted "…with as little formality and technicality… as the proper considerations before the Court permit" (s 38(1) of the Court Act), and notwithstanding that the rules of evidence don't apply and a Commissioner may inform themself as he or she sees fit (s 38(2)), none the less the proceedings are not inquisitorial but adversarial, and there is no reason why the principle that decisions and choices made by parties in the conduct of the hearing, ought not be binding upon them. There is a long list of authority to the effect that points not raised at an initial hearing ought not, except in exceptional circumstances, be permitted to be raised on appeal. Had the Commissioner been pressed to refer the Questions for determination by the Chief Judge, those questions by their nature would have admitted of the opportunity to adduce further evidence, relevant to their determination. The Commissioner not being pressed to make the reference, that opportunity has now gone, to the possible and probable prejudice of the applicants. (Holcomb and Ors v Coulton and Ors (1989) 17 NSWLR 71; Future Graphics Pty Ltd v Fuelpoint Pty Ltd (Young J, NSWSC Eq. D. 12 June 1990, unreported, cited in Leslie, par 120:20)). No submission was put to the Commissioner that it was imperative for him to refer the Questions, to enable him to proceed to a proper merit consideration. In the absence of such a submission being put at the hearing, it is inappropriate for the Council now to complain that the Commissioner failed to do so.

Mr Thompson, counsel for the respondents (the applicants in the proceedings) put the following submissions in relation to the purported absence of consideration of "relevant matters", namely the claimed trust for the public purpose of inhibiting subdivision of lots on the eastern side of Jade Place: -

(i) The question as framed by the Council in the hearing before the Commissioner as to the "trust for a public or planning purpose" was not flagged in any meaningful way in the amended Statement of Issues. All that was said was that recited in issue No 1 (par 12 above). He notes that there was no dispute between the parties that Lot 17 was community land, and it was necessary for an easement to be obtained over it before any consent could operate.

(ii) The Commissioner had been addressed at length as to the relevance and impact of the land being classified "community", and the need to make application under s 88K of the Conveyancing Act for access.

(iii) Although the Commissioner was aware of the purported public purpose in the creation of Lot 17, he was not required to determine, and in fact could not determine, the purported public purpose of the claimed trust, that being a question of law. He was simply left with a question as to the prospect of access being obtained over Lot 17, and directed to the decision of Bryson J in Marshall (op. cit.). (iv) In looking to whether or not the Commissioner exercised his discretion correctly, it was relevant to have regard to the fact that he was not bound by the rules of evidence (s 38(2) of the Court Act 1979), and was alive to the fact that both the land was community land, and there was a claimed trust for a public purpose. (v) As to the question of inadequate or improper weight being given to the purpose of Lot 17, reference was made to the decision in Randwick Municipal Council v Manousaki (1988) 66 LGERA 330 at 336, where Clarke JA observed that weight to be accorded to particular matters for consideration was a question of fact, and hence not the subject of challenge under s 56A of the Court Act. (vi) As to the alleged failure by the Commissioner to consider or make a finding about the planning purpose of Lot 17, reference was made to par 72 of the judgment, which I have reproduced above. It is plain that the Commissioner's findings were findings of fact, and hence not susceptible of challenge. (vii) As to the allegation of manifest unreasonableness by misattribution of weight, the submission was put that weight was a matter of fact, to which needs to be added the observation that it could not be said that there were no facts available to the Commissioner to reach the conclusion which he did.

Mr Thompson emphasised that the present application for subdivision was not an application for "use" of the land, when subdivided (see ss 4 and 4B of the EP&A Act). It has long been accepted that subdivision per se is not a "use", but the rearrangement of boundaries or allotments which does not approve any particular use (Nancy Shetland Pty Ltd v Melbourne and Metropolitan Board of Works (1974) 34 LGRA 151, Lyne and Anor v Moree Plains Shire Council (2000) 110 LGERA 120). Mr Thompson submitted that consistent with the line of authority accepted by the High Court in North Sydney Council v Ligon 302 Pty Ltd (1996) 185 CLR 470, consent for the use of the subdivided land and the question of access, was to be the subject of a separate application, albeit the relationship of the present application with the ultimate prospective use was a relevant factor to be taken into consideration: Although related developments on adjoining parcels of land may each require consent before they are carried out, each development is on its own parcel of land and any necessary consent must be sought by a development application that relates to that parcel - not to the adjoining parcel. (at p 477) The need to obtain consent for ultimate use whilst relevant to be considered in planning terms in the subject application, does not invalidate the instant application, or consent ( Grace Bros Pty Ltd v Willoughby Municipal Council and Ors (1981) 44 LGRA 422; Jeblon v North Sydney (op. cit.); Bluewater District Services v Sutherland Shire Council (1998) 97 LGERA 389).

Is it open to challenge the Commissioner's findings in regard to these claimed "relevant matters"? Only questions of law are open to scrutiny. Findings of fact which are erroneous are not susceptible to challenge under s 56A. Nor is it open to challenge a demonstrably unsound reasoning process, or a conclusion reached without foundation in evidence, (Azzopardi v Tasman UEB Industries Ltd (1986) 4 NSWLR 139 at 155G - 156F). Nor will the fact that the Commissioner may have given inadequate weight to the matters before him convert a question of fact into a question of law (Minister for Aboriginal Affairs and Anor v Peko-Wallsend Limited and Ors (1987) 162 CLR 24 at 41). This will be so so long as the conclusion by the tribunal was not manifestly unreasonable. Given the lengthy history of planning controls for the subject land, the dearth of evidence in any contemporaneous or subsequent Council documents of Lot 17 being for a public purpose or planning policy, and other matters which were before the Commissioner as to user on other lots in Jade Place, it would be difficult to conclude that this was so. The role which the "relevant matter" of Lot 17 was to play in the merit assessment of the subdivision application was a question of fact. That the Commissioner may have assigned a relevance to its importance which is arguable, or misattributed the weight it ought to have, are questions of fact not open to review under s 56A. His judgment shows he was alive to the issue, but from an assessment of the planning merits concluded that the proposal was acceptable subject to the obtaining, legally, access over Lot 17. Hence I conclude that this ground of challenge fails.

It is submitted on behalf of the Council that Condition 1 is not authorised under s 80 of the EP&A Act, firstly for the reason that it does not fit conformably with the requirements for a deferred commencement condition (s 80(3) and Regulation 95); and otherwise is beyond the general power in s 80(1)(a). (i) Deferred Commencement

Section 80(3) of the EP&A Act provides: (3) "Deferred commencement" consent A development consent may be granted subject to a condition that the consent is not to operate until the applicant satisfies the consent authority, in accordance with the regulations, as to any matter specified in the condition. Nothing in this Act prevents a person from doing such things as may be necessary to comply with the condition.

Regulation 95(1) provides: 95. (1) A "deferred commencement" consent must be clearly identified as a "deferred commencement" consent (whether by the use of that expression or by reference to section 80(3) of the Act or otherwise).

The appellant Council submits that where Condition 1 provides - "this consent shall not operate until…", it is bad in form because it does not say, clearly, it is a "deferred commencement". The regulation, the appellant says, requires the use of the specific expression "deferred commencement", or as the regulation says, "…reference to s 80(3)". Condition 1 does neither and hence it is said, it is bad.

However Regulation 95(1) enables clear identification of a condition by use of a phrase or nomenclature which "otherwise" identifies it as a deferred commencement. To "defer" is to "put to one side, put off to some time later, delay or postpone" (OED).

It was put in submissions that the operation of the words in Condition 1 "this consent shall not operate until…", had the effect of staying the consent until the identified easement was obtained. The effect of these words is to suspend, delay and postpone the operation of the consent until the easement is obtained. The ordinary understanding of that bar, as recited in Condition 1 in my view "otherwise" sufficiently describes a "deferred commencement".

The Council also submitted that Condition 1 failed to comply with the procedural requirements provided in Regulations 95(2)-(6). In a "rolled up" fashion the manner in which Condition 1 has been drafted addresses the various steps in Regulations 95(2)-(6): -

(i) It clearly distinguished the condition which the consent authority (the Court) needed to be satisfied about before the consent could operate (95(2)). (ii) A period within which evidence was to be produced to satisfy the consent authority (95(3)) was in the consent authority's (the Court's) discretion; here Condition 1 acts as a permanent bar, time wise, until it is satisfied.

(iii) The production of evidence to satisfy the consent authority (Regulation 95(4)) is in the discretion of the applicant; procedural steps in obtaining registration of the proposed plan of subdivision, here, will not be achieved until evidence satisfying the requirements of Condition 1 is produced to the Council.

(iv) Once evidence is produced the consent authority needs to notify whether it is satisfied with the necessary evidence (95(5)); again, a plan of subdivision will not be processed by the Council until the necessary evidence satisfying Condition 1 is produced; similarly in relation to the proscribed 28 day period (Regulation 95(6)).

On this analysis Condition 1 could not be said to not comply with the necessary requirements of Regulation 95. To paraphrase the approach by Talbot J in Designlink International v Baulkham Hills Shire Council (2000) 105 LGERA 299, in the present instance Condition 1 has been fixed after the "parameters of the (proposal) have been set and (its) impacts determined" (at par 17). Given that the purpose of the introduction of s 80(3) (previously s 91AA) was to codify a procedure to overcome the problems with lack of finality which had presented in a number of decisions (Yoemans and Anor v Woollahra Municipal Council (1980) 36 LGRA 81; Lend Lease Management Pty Ltd and Anor v Sydney City Council and Ors (1989) 68 LGRA 61; Mison and Ors v Randwick Municipal Council (1991) 73 LGRA 349), here, on the assumption that the deferred commencement provisions in the Act and regulations are to be "...construed... to give effect to harmonious goals" (per the decision of the majority in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 72 ALJR 841 at [70]), then such an approach would have the subject condition seen to be fulfilling the requirements of s 80(3) and Regulation 95. I so find. (ii) Section 80(1)(a)

Section 80(1) of the EP&A Act reads: 80. (1) General A consent authority is to determine a development application by: (a) granting consent to the application, either unconditionally or subject to conditions, or (b) refusing consent to the application.

If my conclusion in relation to deferred commencement (s 80(3)) is wrong, then it is still open to categorise Condition 1 as a valid condition under s 80(1)(a), so long as it meets the test of "finality". In my view it is sufficiently final, and also meets the necessary nexus test (Pyx Granite Co v The Ministry of Housing and Local Government an Anor [1958] 1 QB 554 at 572; Allen Commercial Constructions Pty Ltd v North Sydney Municipal Council (1970) 20 LGRA 208 at 216). (iii) Section 80A(4)

The Council submitted that Condition 1 could not be categorised as complying with either subsections (2) (3) or (4) of s 80A. Section 80A(4) reads: (4) Conditions expressed in terms of outcomes or objectives A consent may be granted subject to a condition expressed in a manner that identifies both of the following: (a) one or more express outcomes or objectives that the development or a specified part or aspect of the development must achieve, (b) clear criteria against which achievement of the outcome or objective must be assessed.

Here Condition 1 identifies the express objective that is to be achieved (an easement over Lot 17) and also identifies the criteria which is to be achieved (an easement for carriageway three metres wide as per the plan in exhibit E over Lot 17 pursuant to s 88K of the Conveyancing Act.

Again, if I am wrong in relation to s 80(3) or s 80(1)(a) in my view the condition is valid pursuant to s 80A(4).

In the context of access being fundamental to the grant of consent for subdivision, and given that the Council has refused consent for access over Lot 17, it is submitted that Condition 1 is flawed in the following ways:

(i) It means the consent is not final and certain. (Tier Consulting Group Pty Ltd v Blue Mountains City Council (1998) 99 LGERA 31; Helman v Byron Shire Council and Anor (1995) 87 LGERA 349; Mison v Randwick (op. cit.); Scott and Ors v Wollongong City Council and Anor (1992) 75 LGERA 112). (ii) It defers an essential matter for later consideration. (Remath Investments No 6 Pty Ltd v Botany CC (No 2) (Talbot J, NSWLEC, 11 December 1996, unreported); Weal v Bathurst City Council and Anor (2000) 111 LGERA 181; Zhang v Canterbury City Council [2001] NSWCA 167, unreported, at [62]). (iii) By deferring the matter it demonstrates that the Commissioner failed to understand matters relevant to the issue of access over Lot 17 such that rather than evaluate the proposal in town planning terms, he approached it as an opportunity in development terms. (Memel Holdings Pty Ltd v Pittwater Council (2000) 110 LGERA 217 at par 18).

To answer the question as to whether Condition 1 is final and certain, one asks, whether the condition allows the consent to be fundamentally or significantly altered by the subsequent determination of the matter which has been deferred. If it is possible that, consequent upon the matter which has been left open, the consent as ultimately implemented may be significantly different from that which the consent purportedly approved, then the condition falls foul of the requirement that it be final and certain (per the judgments of Priestly JA and Meagher JA in Mison v Randwick Municipal Council (1991) 73 LGRA 349 at 351[4], 354[1]). Here Condition 1 does not leave open an opportunity for the consent to be anyway different to that which is contemplated by the approval granted by the Commissioner. Either the subdivision will occur with access over Lot 17, or without that access, it will not. The proposal is not changed or altered, by the easement ultimately being obtained; rather, if it is to proceed it can only occur in one way, viz, with the benefit of the easement.

This is not unlike many examples which come before councils, and the Court, where the approval of the consent authority is predicated on the applicant obtaining a further consent, or consents from other regulatory bodies by way of a licence or permit, or from neighbours for the purpose of drainage or other forms of easements. Consents issued conditional upon the approval of those other bodies or persons does not necessarily mean that the consent is not final and certain. (ii) Deferral of Essential Matters

The Council contended, in paraphrase of the approach taken by Giles JA in Weal v Bathurst City Council (op. cit.) at [80], that the Commissioner in imposing Condition 1 failed "…to understand (the issue)… and the significance of the decision to be made about (it), (failed) to understand a process of evaluation (of the issue) sufficient to warrant the description of matters being taken into consideration".

The submission of the Council confuses the deferral of the legal argument as to an entitlement to obtain access across Lot 17, with the obligation on the shoulders of the Commissioner to make an evaluation as to the impacts which would or might flow from consent being granted with access over Lot 17. It was no part of the Commissioner's function to make an assessment of the legal arguments which may or may not be put in an application under s 88K of the Conveyancing Act. His duty was to make an assessment under s 79C of the EP&A Act of the impacts likely to flow from development in the manner contemplated, relevantly with access over Lot 17. This is what he did.

The Commissioner's judgment discloses that he was alive to the need for access over Lot 17, and was aware of the constraints it presented both as community land and the claimed "trust for a public purpose" (judgment paragraphs 27, 28, 45, 47, 53 and 68 - 74). As to the impact of access being granted, in town planning terms, it was uncontroversial that no deleterious impact would arise (his judgment par 50, par 60). (iii) Failure to Understand Relevant Matters-"opportunity in development terms"

In Memel Holdings (op. cit.) Talbot J dealt with a claimed failure to consider an application in the context of given objectives in town planning terms. In the present instance it is clear from the judgment of the Commissioner that he paid regard to town planning considerations; Condition 1 did not defer consideration of town planning matters but rather deferred the sole question of legality of access. He was not, as Talbot J found in Memel Holdings (op. cit.), "devising a concept of flexibility related to the benefit of developers or the building of houses". That is not what the Commissioner did here.

I have noted the references in the Commissioner's judgment where he makes it plain that he understood the submission being put to him by the Council as to the purported effect of the claimed trust impressed on Lot 17. Contrary to the submission that he failed to understand that issue, he dealt with it by Condition 1 deferring for proper consideration the legal issues which may be argued by Council either in relation to the claimed public purpose/trust, or the land being categorised as "community land". It was opened to the Commissioner to accept or reject submissions put to him as to the manner in which the purported constraints in relation to Lot 17 may or could work, the requirement being for him to evaluate what those constraints may mean, in town planning terms. The imposition of Condition 1 demonstrates that rather than failing to make such an evaluation, the Commissioner did just that. This was not approaching the problem as to the "opportunity in development terms", but rather conceding that there may be a bar to the proposal proceeding, albeit a bar which was beyond the determination of the Commissioner and would of necessity have to await determination in another place at some future time.

I conclude that the challenge that the imposition of Condition 1 deferred an essential matter and the consent thereby lacked certainty, is not made good.

The Council submits that both parties to the application expected the Commissioner to refer the Questions of Law (par 18 above) to the Chief Judge prior to his final determination. In not doing so it is alleged that he breached the rules of procedural fairness by not allowing the parties an opportunity to make submissions to him prior to deciding not to refer those questions, and to decide the application without having answers to the questions.

The power and decision to refer questions of law is in the gift of the Commissioner (s 36(5) of the Court Act).

The transcript discloses that whilst there was an expectation by the representatives of the parties that the questions would be referred, not only did the Commissioner give no unequivocal undertaking to do so, but to the contrary he made it plain that he was considering not doing so (transcript 22 February 2001 p 101 at L 53, p 102 at L 10 - 14, p 102 at L 56, p 110 at L 40 - p 111 at L11). As I have noted, no submission was put to him that this would be an erroneous step on his part, or that it was in some way essential for the Questions to be referred before the merit assessment was proceeded with.

The Commissioner's duty was to make the appropriate assessment under s 79C of the EP&A Act of the impacts likely to flow from implementation of the application were it granted consent. It is clear that he did this. Determination of the legal arguments as to whether or not access was available across Lot 17 would not change the merit assessment the Commissioner needed to make. It was opened to him to proceed with that assessment without having the points of law determined, if he was of the view that their determination would not assist him in deciding the task he had at hand. He makes it plain that he is able to proceed with that assessment without referring the questions to the Chief Judge, so long as implementation of consent for subdivision is subject to the obtaining of the easement.

Having concluded that each of the grounds of challenge fails, the appeal will be dismissed, with costs, and I so order.

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