Alan Logan and Associates v Byron Shire Council
[1997] NSWLEC 138
•09/22/1997
Land and Environment Court
of New South Wales
CITATION: ALAN LOGAN & ASSOCIATES ARCHITECTS v. BYRON SHIRE COUNCIL No. 10444 of 1997 [1997] NSWLEC 138 (22 September 1997) [1997] NSWLEC 3 PARTIES: ALAN LOGAN & ASSOCIATES ARCHITECTS v. BYRON SHIRE COUNCIL FILE NUMBER(S): 10444 of 1997 CORAM: Sheahan J KEY ISSUES: :- LEGISLATION CITED: Environmental Planning & Assessment Act 1979
Byron Local Environmental Plan 1988CASES CITED: Hecar Investments No.6 Pty Ltd v Lake Macquarie Municipal Council (1984) 53 LGRA 322 at 323 ;
Gill v Donald Humberstone & Co Ltd [1963] 1 WLR 929;
Driscoll v J Scott Pty Ltd (1976) 50 ALJR 528;
Challister Ltd v Blacktown City Council (1992) 76 LGRA 10 ("Challister";
including Napper v Shoalhaven City Council ("Napper") (Land and Environment Court of New South Wales, Stein J, No.40091 of 1987, 26 February 1988, unreported) ;
North Sydney Municipal Council v P D Mayoh Pty Ltd [No.2] ("Mayoh") (1990) 71 LGRA 222 ;
Woollahra Municipal Council v Carr (1985) 62 LGRA 263 ;
Hornsby Shire Council v Malcolm (1986) 60 LGRA 429 ;
Botany Bay City Council v Remath Investments No.6 Pty Ltd (Land and Environment Court of New South Wales, Talbot J, No.10974 of 1995, 12 August 1996, unreported);
Meriton Apartments Pty Limited v Strathfield Council ("Meriton") (Land and Environment Court of New South Wales, Stein J, No.40087 of 1995, 27 June 1995, unreported)DATES OF HEARING: 15 September 1997 DATE OF JUDGMENT:
09/22/1997LEGAL REPRESENTATIVES:
Mr W R Davison SC
Mr G Newport Barrister
JUDGMENT:
These Class 1 proceedings were commenced on 30 July 1997 to appeal against a deemed refusal of consent.
This judgment answers the following question of law posed in the proceedings:
“Whether the following deferred commencement condition is within the power of the Court to impose:
‘The consent shall not operate until the applicant satisfies the consent authority that adequate arrangements have been made for the provision of sewerage services to the land’.”
The Facts
The applicant acts for Northern Rivers Development Corporation Pty Ltd which lodged with the respondent on or about 6 to 11 June 1997 a Development Application (No.97/205) seeking the respondent’s consent to redevelop land at 15-19 Fletcher Street Byron Bay
by the erection of ten shops, a Manager’s Residence and twenty-seven serviced apartments.
The site is currently zoned 3(a) “Business” and the proposed uses are permissible with consent within the Byron Bay shopping and tourist accommodation precinct.
It is proposed that the development connect to the West Byron Sewerage Treatment plant.
On 14 August 1997 the respondent resolved at an Ordinary Meeting as follows:
“Due to the current overloading of the South Byron and West Byron Sewerage Treatment plants and the lodgement of the Class IV proceedings Council resolves to refuse all Development Applications under Clause 45 which would result in any additional load on the South Byron Sewerage Treatment Works and West Byron Sewerage Treatment Works until the outcome of the Class IV proceedings is known, based on the grounds that prior adequate arrangements have not been made under Clause 45 of Byron Local Environmental Plan 1988. Council will consider this matter further on the handing down of the judgment on the Class IV proceedings.”
This resolution was conveyed to the applicant by letter from the respondent dated 20 August 1997.
The “Class IV” proceedings referred to in the above resolution are matter No.40181 of 1997 in which Byron Shire Business for the Future Inc seeks to restrain the respondent from carrying out its proposed augmentation of the West Byron Sewerage Treatment Works.
The Class 4 proceedings are listed for hearing in this Court on Monday 27 October 1997.
The Planning Issues
The planning instrument which governs the application is Byron Local Environmental Plan 1988 (“the LEP”), cl 45 of which provides as follows:
“ Provision of Services
45. The Council shall not consent to the carrying out of development on any land to which this plan applies unless it is satisfied that prior adequate arrangements have been made for the provision of sewerage, drainage and water services to the land.
(2). For the purposes of this clause, satisfactory arrangements for water services, includes the making of satisfactory arrangements with Rous County Council and the council for the augmentation and reticulation of water services to that land.”
It should be noted that, for the purposes of cl 45 and its applicability to this matter, the only relevant service in issue is sewerage.
The applicant’s Statement of Facts acknowledges that the applicant has not supplied to the respondent information which satisfies it that prior adequate arrangements have been made for the provision of sewerage services to the land.
“Deferred commencement” consents are provided for in s 91AA of the Environmental Planning & Assessment Act 1979 (“the Act”).
Section 91AA was inserted in the Act in 1993 and amended in 1994, and provides as follows:
“(1) A development consent may be granted subject to a condition that the consent is not to operate until the applicant satisfies the consent authority 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.
(2) Such a consent must be clearly identified as a ‘deferred commencement’ consent (whether by the use of that expression or by reference to this section or otherwise).
(3) A ‘deferred commencement’ consent must clearly distinguish conditions concerning matters as to which the consent authority must be satisfied before the consent can operate from any other conditions.
(4) A consent authority may specify the period in which the applicant must produce evidence to the consent authority sufficient to enable it to be satisfied as to those matters.
(5) The applicant may produce evidence to the consent authority sufficient to enable it to be satisfied as to those matters and, if the consent authority has specified a period for the purpose, the evidence must be produced within that period.
(6) If the applicant produces evidence in accordance with this section, the consent authority must notify the applicant whether or not it is satisfied as to the relevant matters. If the consent authority has not notified the applicant within the period of 28 days after the applicant’s evidence is produced to it, the consent authority is, for the purposes only of section 97, taken to have notified the applicant that it is not satisfied as to those matters on the date on which that period expires.”
The Question
The question posed in this matter turns on whether the correct construction of cl 45 requires that the council be satisfied of the adequacy of sewerage arrangements prior to the granting of consent, or prior to the development commencing in accordance with a “deferred commencement” consent granted pursuant to s 91AA of the Act.
The applicant submits that the relevant time for the assessment of the adequacy of sewerage services is the commencement of the development and the respondent submits that the Council must be satisfied of the adequacy of sewerage services prior to granting consent, whatever conditions it might apply to the consent.
In other words, the respondent contends that its primary responsibility is to abide by the provisions of cl 45 in deciding whether or not to grant consent, before it moves to the question of when or how any such consent is to operate.
The respondent believes that the adequacy of sewerage services is so fundamental a responsibility of the Council that it must be satisfied on the question before it contemplates consent. In this way cl 45 is not answerable to the use of s 91AA; it prohibits the granting of consent before or until Council is satisfied of certain prerequisites.
Alternatively, the applicant submits that cl 45 is a “development standard” because it specifies requirements in respect of an aspect of the development, namely the
provision of sewerage services, within the meaning of s 4(1)(m) of the Act.
The respondent rejects this submission.
The Case Law
The Court has been referred to a number of authorities, some of which predate the enactment of s 91AA, and some which follow it.
In Hecar Investments No.6 Pty Ltd v Lake Macquarie Municipal Council (1984) 53 LGRA 322 at 323 ( “Hecar” ), Cripps J had to interpret the term “marine” which was not defined in the relevant Local Environmental Plan, nor in the model provisions adopted for the purpose of the LEP.
His Honour followed the principles stated by Lord Reid in Gill v Donald Humberstone & Co Ltd [1963] 1 WLR 929 that when interpreting such instruments:
“the court ought be concerned with practical considerations rather than construing it by meticulous comparison of the language of the various provisions such as might be appropriate in construing sections of an Act of Parliament and ... ought discard the more natural meaning if it leads to an unreasonable result, and adopt that interpretation which leads to a reasonably practical result.”
Lord Reid’s observation was followed by Murphy J in Driscoll v J Scott Pty Ltd (1976) 50 ALJR 528 at 531.
On the basis of those authorities the applicant in this case postulates that the intent of
cl 45 is that the Council should require adequate servicing prior to commencement of the development and can stipulate that requirement as a condition of consent.
The respondent agrees that the instrument should be interpreted in a purposive way but invites the Court to draw the conclusion that the purpose of cl 45 is to ensure that the Council is satisfied of the adequacy of sewerage provisions prior to granting consent.
In Challister Ltd v Blacktown City Council (1992) 76 LGRA 10 (“ Challister ”), Talbot J held that a vehicular access restriction was a development standard within the meaning of SEPP 1.
In the course of his judgment His Honour carefully reviewed a number of relevant authorities referred to in the course of argument in this case, including Napper v Shoalhaven City Council (“ Napper ”) (Land and Environment Court of New South Wales, Stein J, No.40091 of 1987, 26 February 1988, unreported) and North Sydney Municipal Council v P D Mayoh Pty Ltd [No.2] (“ Mayoh ”) (1990) 71 LGRA 222 on the question of whether a provision in a LEP is a development standard or an absolute prohibition.
In Napper , Stein J relied on the reasoning of the Court of Appeal in Woollahra Municipal Council v Carr (1985) 62 LGRA 263 to hold that the relevant clause (said to be a standard) served a zoning function. This is a subsidiary argument advanced by the respondent in this matter.
In Challister , Talbot J distinguished Napper and other cases and held that the access provision was a development standard. Development was not prohibited by the clause; the clause merely stipulated that development may be carried out in such a way that the vehicular access condition was complied with.
His Honour distinguished the Court of Appeal decision in Mayoh on the basis that the relevant clause in that case, held by the majority not to be a development standard, laid
down an absolute prohibition on the building of a residential flat building where neighbouring buildings were less than three storeys.
In the course of his judgment in Mayoh , Mahoney JA said:
“There is, in my opinion, a distinction in the provisions between a provision which in form provides: ‘On land of characteristic X no development may be carried out’ and a provision which in form provides: ‘On such land development may be carried out in a particular way or to a particular extent.’ The provision in cl 14A(2) is, I think, of the latter kind. If cl 14A(1)(a) provided merely that ‘no building shall be erected on land in Zone No 2(c) if …’ the position would, in my opinion, be clear. In fact cl 14A(1)(a) prohibits erection on the land described in par (a) not of all buildings but only of ‘a residential flat building’. But it remains correct, I think, to say that, in respect of the land referred to in par (a) what is done is to prohibit the erection of the relevant kind of building, not to make a provision in relation to ‘the carrying out of’ development of that or any other kind. If regard be had to purpose, the purpose of the provision was, I think, to proscribe development by buildings which would overshadow smaller buildings at the particular place. This is not a matter relating to ‘development standards’ but to the carrying out of development at all” (at 234).
The applicant in this case contends that as the extent of the proposed development is quite clear, the assessment of the adequacy of the sewerage system would require only a simple calculation.
The respondent contends that if all that was intended by cl 45 was that adequate sewerage facilities be available at the commencement of the development, there would be no need to include such a clause in the LEP as s 90(1)(l) of the Act requires the consent authority to “take into consideration … whether utility services are available and adequate for that development”.
In Hornsby Shire Council v Malcolm (1986) 60 LGRA 429 the Court considered a clause of SEPP 5 which required that the satisfaction as to the adequacy of “support services” to which it applied must be based on written evidence by responsible persons.
The Court of Appeal held that such questions have to be answered by the consent authority in advance of the grant of consent.
In Botany Bay City Council v Remath Investments No.6 Pty Ltd (Land and Environment Court of New South Wales, Talbot J, No.10974 of 1995, 12 August 1996, unreported), Talbot J dealt with a clause in a LEP which provided that the council must not consent to any development to which the clause applied unless it had considered a particular assessment of the site and was “satisfied that remedial measures are either not necessary or have been (or will be) undertaken to make the site suitable for the proposed development”.
At p 8 Talbot J said:
“There is nothing wrong with imposing conditions on the grant of a development consent where the conditions are designed to ensure that statutory obligations are satisfied. However, in this case, according to the natural meaning of the words used, and a practical consideration of the intended effect, it is appropriate to construe cl 29(3)(b) as requiring that remedial measures be identified and a feasible regime established for their successful achievement as a prerequisite to the granting of development consent. Compliance with cl 29(3)(b) is an essential condition of the existence of jurisdiction with respect to the grant of development consent. The Assessors were in error when they acted to grant consent where the Court had not been satisfied that the remedial measures ‘have been (or will be) undertaken’.”
In Meriton Apartments Pty Limited v Strathfield Council (“ Meriton ”) (Land and Environment Court of New South Wales, Stein J, No.40087 of 1995, 27 June 1995, unreported), Stein J considered whether a clause in a LEP purporting to apply only to applications for consent involving “the whole of the land” could be applied to part of the site and held that the Court had to “construe the words and glean the intent … within the context of the whole of the clause”. He went on to find that the clause served a zoning function and his decision was relied upon by the respondent in this case.
Finding
In considering all the submissions that have been made and all the authorities to which I have been referred, I have come to the view that this case is most akin to Mayoh , and that cl 45, construed in accordance with the principles laid down in Hecar and Meriton , requires the consent authority to satisfy itself of the adequacy of the provision of sewerage facilities prior to granting development consent to the applicant.
Accordingly I answer the question in the negative.
In accordance with the usual practice I make no order as to costs.
I HEREBY CERTIFY THAT THIS AND THE PRECEDING 8 PAGES ARE A TRUE AND ACCURATE RECORD OF THE REASONS FOR JUDGMENT HEREIN OF THE HONOURABLE JUSTICE T.W. SHEAHAN.
Associate:
Dated: 22 September 1997
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