Allandale Blue Metal Pty Ltd v Roads and Maritime Services
[2013] NSWCA 103
•06 May 2013
Court of Appeal
New South Wales
Case Title: Allandale Blue Metal Pty Ltd v Roads and Maritime Services Medium Neutral Citation: [2013] NSWCA 103 Hearing Date(s): 6 December 2012 Decision Date: 06 May 2013 Before: Macfarlan JA at [1]
Meagher JA at [37]
Ward JA at [59]Decision: 1. Extend the time for filing of the Summons seeking leave to appeal from the decision of Sheahan J to the date of filing the Summons and dismiss the application for leave to extend the time for the filing of the Summons seeking leave to appeal from the decision of Biscoe J.
2. Grant leave to appeal from the decision of Sheahan J and dismiss the appeal.
3. Order the appellant to pay the respondent's costs of the Summons seeking leave to appeal and the appeal.[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords: PRACTICE AND PROCEDURE - extension of time sought for leave to appeal against two interlocutory decisions of the Land and Environment Court New South Wales - where first decision ordered a separate determination of a preliminary question - where appellant delayed seeking leave to appeal pending outcome of the separate determination - whether extension of time would be consistent with the statutory objective of s 56 Civil Procedure Act 2005 (NSW)
PRACTICE AND PROCEDURE - separate determination of a preliminary question - whether resolution of preliminary question would be dispositive of the litigious controversy or substantially narrow the field of litigious controversy - whether issue must be 'critical' - question of construction of a development consent - whether preliminary question was relevant to primary issue in dispute - whether order of a separate determination was open to be made having regard to s 56 Civil Procedure Act 2005 (NSW)
VALUATION - consideration of the operation of s 56(1)(c) of Land Acquisition (Just Terms Compensation) Act 1991 (NSW)
ENVIRONMENT AND PLANNING - development consent - whether on proper construction of the consent extraneous material was incorporated expressly or by necessary implication into the consentLegislation Cited: Civil Procedure Act 2005
Environmental Planning and Assessment Act 1979
Interpretation Act 1987
Land Acquisition (Just Terms Compensation) Act 1991
Land Acquisition Act 1989 (Cth)
Land and Environment Court Act 1979
Land Compensation Act 1961 (UK)
Land Compensation Act 1973 (UK)
Local Government Act 1919
Northumberland County District Planning Scheme Ordinance 1960
Uniform Civil Procedures Rules 2005Cases Cited: ACR Trading Pty Ltd v Fat Sel Pty Ltd (1987) 11 NSWLR 67
Adelaide Corporation Pty Ltd v City of Charles Sturt [2008] SASC 260; 162 LGERA 196
Alcoa Australia Rolled Products Pty Ltd v Weston Aluminium Pty Ltd [2006] NSWCA 273; 148 LGERA 439
Allstate Explorations NL v Beaconsfield Gold NL [1999] NSWSC 832
Auburn Municipal Council v Szabo (1971) 67 LGRA 427
Blackmore v Browne [2011] NSWCA 114
Blue Mountains City Council v Mulchay (1998) 45 NSWLR 577
CBS Productions Pty Limited v O'Neill [1985] 1 NSWLR 601
Codelfa Construction Pty Ltd v State Rail Authority of NSW [1982] HCA 24; 149 CLR 337
Commissioner of Succession Duties (SA) v Executor, Trustee & Agency Co of South Australia Ltd (1947) 74 CLR 358
Doueihi v RTA [2004] NSWLEC 51
Dunstan & Simmie & Co Pty Limited [1978] VR 670
Flore v NSW Department of Education and Training [2006] NSWSC 1227
Halglide Pty Ltd v PT Ltd (1990) 71 LGRA 215
Hornsby Council v Devery [1965] NSWR 939; (1965) 12 LGRA 34
House of Peace Pty Ltd v Bankstown City Council [2000] NSWCA 44; (2000) 48 NSWLR 498; 106 LGERA 440
House v King (1936) 55 CLR 499
Housing Commission NSW v Falconer [1981] 1 NSWLR 547
Hubertus Schuetzenverein Liverpool Rifle Club Limited v Commonwealth of Australia (1994) 51 FCR 213, (1994) 85 LGERA 37
Hughes v Doncaster Metropolitan Borough Council [1991] 1 AC 382
Idoport Pty Limited v National Australia Bank Limited (15) [2000] NSWSC 1215
Leichhardt Municipal Council v Terminals Pty Ltd (1970) 21 LGRA 44
Matrix Film Investment 1 Pty Limited v Alameda Films llc and Warner Brothers Entertainment and Pictures Inc [2007] NSWSC 523
Metropolitan Local Aboriginal Land Council v Minister administering the Crown Lands Act (2006) 145 LGERA 276
Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council (No 2) [2001] NSWCA 28; (2001) 50 NSWLR 665
Minogue v Williams (2000) 60 ALD 366
Oakden Shopping Centre Pty Ltd v City of Port Adelaide Enfield [2004] SASC 373; 137 LGERA 189
Parramatta City Council v Shell Co of Australia Ltd (1972) 2 NSWLR 632
Perre v Appand Pty Ltd (1999) 198 CLR 180
Perry v Hepburn Shire Council [2007] VCAT 1309; (2007) 154 LGERA 182
Pioneer Park Pty Limited (in liquidation) v ANZ Banking Group Limited [2005] NSWSC 832
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Randwick Municipal Council v Broten (1964) 10 LGRA 271
Reysson v Roads and Traffic Authority [2011] NSWLEC 153
Ryde Municipal Council v Royal Ryde Homes (1970) 91 WN (NSW) 440; 19 LGRA 321
Slough Estates Ltd v Slough Borough Council (No 2) [1971] AC 958
Spencer v The Commonwealth (1907) 5 CLR 418
Stebbins v Lismore City Council (1988) 64 LGRA 132
Stewart v Ronalds [2009] NSWSC 455
Strathfield Municipal Council v Poynting (2001) 116 LGERA 319
Strathfield Municipal Council v Poynting [2001] NSWCA 270; (2001) 116 LGERA 319
Street v Luna Park Sydney Pty Limited [2007] NSWSC 697
Sydney Serviced Apartments Pty Ltd v North Sydney Municipal Council (No 2) (1993) 78 LGERA 404
Sydney Water Corporation v Caruso [2009] NSWCA 391
Tallglen v Pay TV Holdings Pty Limited (1996) 22 ACSR 130
Tepko Pty Ltd v Water Board (2001) 206 CLR 1
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; 219 CLR 165
Turner v Minister for Public Instruction (1956) 95 CLR 245
Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335
Western Aluminium v EPA (2007) 239 ALR 641
Winn v Director General National Parks and Wildlife [2001] NSWCA 17; (2001) 130 LGERA 508
Wollongong City Council v Australian Iron and Steel Pty Ltd (1988) 67 LGRA 51
Wyre Forest District Council v Secretary of State for the Environment [1990] 2 AC 357Texts Cited: Australian Law Reform Commission Report No. 14 Category: Principal judgment Parties: Allandale Blue Metal Pty Ltd (Applicant)
Roads and Maritime Services (Respondent)Representation - Counsel: R P L Lancaster SC with M D Seymour (Applicant)
P C Tomasetti SC with N M Eastman (Respondent)- Solicitors: Sparke Helmore Lawyers (Applicant)
Ashurst Australia (Respondent)File Number(s): CA 12/126661 Decision Under Appeal - Before: Biscoe JSheahan J - Citation: Allandale Blue Metal & Anor v Roads and Maritime Services [2011] NSWLEC 242 (Biscoe J)Quarry Products (Newcastle) Pty Ltd & Anor v Roads and Maritime Services (No 3) [2012] NSWLEC 57 (Sheahan J) - Court File Number(s): 10/030851,10/030853
HEADNOTE
[This Headnote is not to be read as part of the judgment]
This judgment relates to applications for leave to appeal from two interlocutory decisions in the Land and Environment Court: a decision by Biscoe J in November 2011 to state a separate question for determination prior to the hearing of the proceedings; and a decision by Sheahan J in March 2012, answering the separate question favourably to Roads and Maritime Services.
The proceedings in the Land and Environment Court relate to an application for the determination of compensation payable to Allandale Blue Metal in respect of land acquired by Roads and Maritime Services for the purpose of construction of an expressway in the Hunter Valley. The separate question answered by Sheahan J was as to the ambit of a development consent granted in 1979 for the conduct of quarry operations on land adjacent to the acquired land that was also owned by Allandale. The issue was as to whether, properly construed, the development consent permitted the conduct of quarrying operations in respect of an indeterminate area over the whole of two particular portions of land (as Allandale contended) or only over a smaller area identified by a circle on a plan enclosed with the original development application (as Roads and Maritime Services contended).
Allandale had waited until after the determination of the separate question before seeking leave to appeal from the decision of Biscoe J and therefore an extension of time for the filing of the Summons was sought in relation to the application for leave to appeal related to that decision. A much shorter extension of time was necessary, and sought, for the filing of the Summons in relation to the application for leave to appeal from the decision of Sheahan J (the delay in relation to that application being due to a different reason).
The applications for extension of time and for leave to appeal were heard concurrently with the appeals.
Decision of Biscoe J
Held: (1) by Meagher and Ward JJA (at [39], [82]) (Macfarlan JA dissenting at [20]) that the application for an extension of time for the filing of the application for leave to appeal from the decision of Biscoe J should be refused.
(2) by Macfarlan JA (Meagher JA not deciding) that Biscoe J erred in law in ordering the determination of separate questions on the basis that the determination will not be relevant at the final hearing as to the assessment of market value of the acquired land and no saving in time and expense was likely to result from the separate question order ([17]-[18]) but that the order for separate determination should not be set aside ([20], [35]).
(3) (obiter) by Ward JA that the exercise of discretion to state a separate question for determination did not miscarry and was not plainly wrong ([144], [151]).
Decision of Sheahan J
Held: (1) by the Court that an extension of time for the filing of the application for leave to appeal from the decision of Sheahan J should be granted and that leave to appeal from that decision should be granted (Macfarlan JA [20],[36], Meagher JA [40], Ward JA [77]).
(2) by Meagher and Ward JJA that Sheahan J did not err in answering the stated question in the affirmative (Meagher JA [41], Ward JA [201]) and that reference might permissibly be made to the development application and documents accompanying it (in particular, the "Indicative Plan") when construing the development consent to identify (Meagher JA at [55]) or to resolve the ambiguity as to (Ward JA at [201]) the area referred to in the development consent in respect of which quarrying was approved.
(3) by Macfarlan JA, dissenting, that the separate question as to whether consent to quarrying is limited by the terms of the development application should be answered in the negative and that Sheahan J erred in law in concluding that the consent letter standing alone was not capable of proper construction ([34]).
JUDGMENT
MACFARLAN JA: On 12 February 2010, the respondent, Roads and Maritime Services, compulsorily acquired the interest of Allandale Blue Metal Pty Ltd, the applicant, in part of land at Allandale in the Hunter Valley of which it is the registered proprietor. The land was acquired for the purpose of construction of the Hunter Expressway.
Being dissatisfied with the compensation assessed by the Valuer-General, the applicant commenced Class 3 proceedings in the Land and Environment Court seeking a court determination of the compensation payable to it under the Land Acquisition (Just Terms Compensation) Act, 1991 ("the Act"). One of the matters to which regard must be had in determining the amount of the compensation is the market value of the acquired land at the date of acquisition (s 55(a) of the Act). Another is:
"(f) any increase or decrease in the value of any other land of the person at the date of acquisition which adjoins or is severed from the acquired land by reason of the carrying out of, or the proposal to carry out, the public purpose for which the land was acquired".
In the interlocutory stages of the proceedings, an issue emerged between the parties as to the ambit of a Development Consent dated 8 May 1979 relating to land of the applicant, it being argued that the extent of the applicant's rights under it is relevant to the amount of compensation to which it is entitled. The Consent was issued by the local authority, the Greater Cessnock City Council, for the conduct of quarry operations
The applicant contended that, on its proper construction, the Development Consent applied to the whole of Portions 177 and 198 owned by the applicant; whereas the respondent contended that, in construing the Development Consent, recourse to the Development Application was permitted and from that it was clear that the grant of approval was limited to the conduct of quarry operations on a much smaller area, identified by a circle on a plan enclosed with the Development Application. As senior counsel for the applicant informed the Court that the acquired land did not form part of Portions 177 and 198 (Transcript p 17), the Development Consent is presumably only relevant to the impact of the acquisition of the land and construction of the Expressway on the value of the land retained by the applicant (see s 55(f) referred to in [2] above).
By judgment of 28 November 2011, Biscoe J ordered that the ambit of the Development Consent (together with its validity, which later ceased to be in issue) be determined separately and prior to the principal hearing of the proceedings ([2011] NSWLEC 242). By judgment of 21 March 2012, Sheahan J determined that issue favourably to the respondent ([2012] NSWLEC 57).
By Summons dated 20 April 2012, the applicant seeks leave to appeal to this Court from both decisions. Leave is required because the decisions are interlocutory (Land and Environment Court Act 1979 ("LEC Act") s 57(4)(d)). If leave is granted, an appeal is available only in respect of a question of law (ibid s 57(1)). As the applicant waited until after the decision of Sheahan J before seeking leave to appeal from the decision of Biscoe J, it needs, and seeks, an extension of time for the filing of its Summons, so far as it relates to the decision of Biscoe J.
THE DECISION OF BISCOE J
Biscoe J referred as follows to the respondent's argument in support of its application for the issue of construction to be determined separately:
"The respondent argues that if it is correct in its construction and the existing development consent is limited to the area of the circle, then the applicant would need a new development consent to quarry outside that area and within the acquired land; and in that event the respondent would need to call expert evidence relating to ecology, rivers and (consequently) surveying, all aimed at establishing that such a development consent would not, or would be unlikely to be granted. If, however, the respondent is correct in its construction, the cost of that expert evidence would be avoided and there would be a substantial saving in costs and time at the hearing" (Judgment [5]).
His Honour went on to say:
"It seems that the proposed preliminary questions would otherwise be ventilated at the final hearing as steps in the inquiry into market value but only after substantial costs had been expended which the respondent does not propose to expend if they are answered in the negative before the final hearing date are fixed" ([8]).
His Honour took the view that in these circumstances the separate determination sought by the respondent "would have the prospect of substantially narrowing the field of controversy between the parties with the consequence that there would likely be a significant saving of costs" (at [12]).
At the hearing before this Court, it was common ground between the parties that strong reasons, such as an anticipated significant saving in time and expense in relation to the final hearing, needed to be shown to justify departure from the usual rule that all issues in a proceeding are to be determined at the one time (see for example Tallglen Pty Ltd v TV Holdings Pty Ltd (1996) 22 ACSR 130 at 141 - 2).
The applicant contended on appeal that the proper construction of the Development Consent will not be a relevant issue at the final hearing at first instance and that its prior determination will not therefore reduce the ambit of that hearing. This was so, it submitted, because the market value of the acquired and retained land on the date of acquisition will be considered, in accordance with established law and s 56(1) of the Act, by having regard to what a hypothetical willing but not anxious buyer would have paid for the land "to a vendor willing to sell it for a fair price but not desirous to sell" (Spencer v The Commonwealth (1907) 5 CLR 418 at 432), that assessment to be take account of all advantages and potentialities of the land known at the date of acquisition (Turner v Minister of Public Instruction [1956] HCA 7; 95 CLR 245 at 268). It further argued, correctly in my view, that because there was no judicial determination prior to the acquisition date of the proper construction of the Development Consent, the Court will have to make an assessment at the final hearing of what the hypothetical purchaser and seller would have thought about the ambit of the Development Consent, based on their own reading of it or on advice given to them. What cannot be done is to impute to the hypothetical parties knowledge at the date of the acquisition of the Court's subsequent determination of the proper construction of the Development Consent. I note in this regard that the respondent eschewed any assertion that evidence of a court determination after the date of acquisition, of the ambit of the Development Consent would be admissible to "confirm a foresight" ("Additional Submissions" dated 11 December 2012 [7]; compare Housing Commission of New South Wales v Falconer [1981] 1 NSWLR 547 at 558 and Minister Administering Crown Lands Act v Deerubbin Local Aboriginal Land Council (No 2) [2001] NSWCA 28; 50 NSWLR 665 at [69] - [71]).
The respondent effectively confined its submissions to one that the proper construction of the Development Consent, as determined at the separate hearing, will be relevant at the final first instance hearing by reason of paragraph (c) of the definition of "market value" in s 56 of the Act. In this regard, senior counsel for the respondent appeared to accept that his support for the separate hearing order was dependent on the success of his submission concerning that paragraph (Transcript p 42, line 8).
That definition of "market value" is in the following terms:
"(1) In this Act:
market value of land at any time means the amount that would have been paid for the land if it had been sold at that time by a willing but not anxious seller to a willing but not anxious buyer, disregarding (for the purpose of determining the amount that would have been paid):
(a) any increase or decrease in the value of the land caused by the carrying out of, or the proposal to carry out, the public purpose for which the land was acquired, and
(b) any increase in the value of the land caused by the carrying out by the authority of the State, before the land is acquired, of improvements for the public purpose for which the land is to be acquired, and
(c) any increase in the value of the land caused by its use in a manner or for a purpose contrary to law".
The respondent argued that, by reason of (c), use prior to the date of acquisition of any part of the land contrary to the conditions of the Development Consent would have affected its market value and that it was therefore necessary to know what was the objectively correct meaning of the Development Consent, even if that had not been known at the date of acquisition.
The difficulty with this argument is that the respondent was unable to identify any way in which use of the land, prior to the date of acquisition, without necessary development consent might, on the facts of this case, have affected its market value at the date of acquisition. It did not, for example, suggest that there had been an unlawful use in the past which had given rise to existing use rights in the applicant, or that any such unlawful use had resulted in improvements to the land that had increased its value.
The respondent further argued that "use" for the purposes of s 56(1)(c) included future use. In my view this argument conflicts with the language of the provision and should be rejected. If a reference to future use had been intended, words such as "intended use" or proposed use" would have to have been used. As it stands, the provision refers to an actual use that has caused an increase in the value of the land.
In these circumstances, the respondent's submission that a post-acquisition judicial determination of the proper construction of the Development Consent will, by reason of s 56(1)(c), be relevant at the final hearing as to the assessment of market value of the acquired land must be rejected. This being the basis upon which it was contended to be relevant, it follows that it must be concluded that determination will not be relevant and no saving in time and expense was likely to result from the separate question order. (Neither party suggested that the inclusion in the application of the subsequently not-pressed question concerning the validity of the Development Consent was of any present significance).
The consequence is that I consider, with respect, that Biscoe J erred in law in ordering the determination of separate questions. I note that it does not seem that his Honour had the benefit of arguments that were as focussed as those that ultimately came to be put on appeal.
I turn then to the application for extension of time to seek leave to appeal. If a party seeks to challenge an order for the determination of separate questions, it should ordinarily do so before delay and expense is incurred in answering those questions. As the applicant did not seek leave to appeal until the questions were answered adversely to it, it seems that the applicant made a tactical decision to delay its application.
This would ordinarily result in refusal of the application. However, as I differ from Sheahan J's view as to the ambit of the Development Consent (see [34] below) and as that issue will not arise on any appeal from the final judgment in the proceedings (because it will not be relevant to the disposition of the proceedings), leave should be granted to enable it to be corrected, in case the Consent still has some potential operation in relation to the applicant's retained land. For the same reasons, I would not set aside Biscoe J's order for separate determination, even though I consider it to have been erroneous.
THE JUDGMENT OF SHEAHAN J
The presently relevant parts of the Council's letter of consent of 8 May 1979 are as follows:
"Dear Sir,
Development Application 118/679/23
For a Blue Metal Quarry on Portions
177 and 198, Parish of AllandaleFurther to the above application it is advised that development consent is granted subject to the following conditions:
1. Overburden be placed so as to form a permanent buffer between the operation and the nearest residents. This should be dressed with top soil and grassed.
2. Dams should be placed on creeks or gullies to act as silt traps and prevent siltation of creeks on neighbouring land.
3. Large areas of clay material should not be permitted to remain exposed, but should be dressed with top soil and grassed.
4. All buildings should be of dark green or earth colours.
5. Closet accommodation shall be provided for at the rate laid down by Ordinance 44. A septic tank shall be installed for the on-site treatment of sewage.
6. Waste material arising from the operations shall be disposed of to the satisfaction of the City Health Surveyor.
7. The applicant shall consult with the Soil Conservation Service and prepare a plan satisfactory to the Service for the control of erosion and for the restoration of quarried areas. The applicant shall adhere to the plan to the satisfaction of the Mines Department, Soil Conservation Service and Council. This condition shall cover the whole of the site including the provision of access roads.
8. The applicant shall retain ownership of all land within 1 kilometre of the quarry whilst the quarry is in operation.
9. Council will not permit the subdivision of land within the 1 kilometre area whilst the quarry is in operation.
10. The majority of timber in the paddock to the North East of the quarry shall be retained to act as a buffer.
11. That the applicants shall provide maintenance materials from the quarry suitable for:
(a) The maintenance of road shoulders; and
(b) The repair of isolated pavement failures at the following sections of the road.
(i) Lovedale Harpers Hill Road between the quarry entrance and the New England Highway at Harpers Hill.
(ii) Weston Sawyers Gully Road between the junction of Weston Sawyers Gully Road and Old Maitland Road and a point 2.3 kilometres toward Weston.
Council agrees that the use of such materials will be made where it can be responsibly determined that the deterioration of the said roads was caused by haulage of materials from the quarry.12. The applicant shall provide base coarse material for the construction of Majors Lane between the quarry access road and the junction of Majors Lane with Old Maitland Road. The depth of material shall be 100mm consolidated spread over the whole of the road formation.
In both conditions 11 and 12 above the applicant shall only be required to supply and load the materials at the quarry and shall not be responsible for the haulage of materials to the work site.
This approval relates to development or land use approval only and before any work is commenced in connection with any building it will be necessary for a building application to be lodged with, and approved by Council. The premises must also comply with the requirements of Council's Health Department".
The documents comprising the Development Application are described in [22] to [36] of Sheahan J's Judgment. It is unnecessary to repeat what his Honour says there, other than to note that his Honour indicated that the applicant's total holding (the whole or part of which was leased by it to a related entity) comprised close to 1,000 acres, that the land referred to in the letter of Development Consent of 8 May 1979 (Portions 177 and 198) comprised 540 acres of that land and that the circled, quarrying area shown on the plan accompanying the Development Application comprised (apparently with a small area for stockpiling and plant) about 99 acres of those Portions.
Sheahan J concluded that the Development Consent permitted quarrying only within the circled area labelled "Proposed Quarrying Area" on the plan. The essence of his Honour's reasoning was as follows:
"109 The consent, standing alone, is not capable of proper construction as to some of its necessary and important details. The most crucial details absent are the size and location of the quarry itself in relation to the land portions nominated in the DA as the location of the proposed development.
...
112 Necessary and important detail in the present case was and is contained in those DA documents, which stand as a 'single package' pursuant to the requirements of the [Planning Scheme Ordinance], and all of them must be taken to be incorporated in the consent, including the marked-up plan, both 'expressly', and, to cure ambiguity, 'by necessary implication'".
Both parties to the proceedings in this Court approached the determination of this issue on the basis that, in discerning the ambit of the Development Consent, attention must be confined to the Council's letter of consent unless other documents (in this case the Development Application and accompanying documents) were incorporated in the letter, expressly or by implication. Reference in the letter of consent to the Development Application could not, alone, amount to incorporation of the latter into the Development Consent (see generally Ryde Municipal Council v Royal Ryde Homes (1970) 91 WN (NSW) 440: 19 LGRA 321, Auburn Municipal Council v Szabo (1971) 67 LGRA 427, Alcoa Australia Rolled Products Pty Ltd v Western Aluminium Pty Ltd [2006] NSWCA 273 and other authorities to which the primary judge referred in [51] to [89]).
The principles are consistent with, and give effect to, the approach to construction that Spigelman CJ identified in Winn v Director National Parks and Wildlife (2001) 130 LGERA 508 at [4]:
"A public document, such as a development consent, constitutes a unilateral act on the part of the consent authority expressed in a formal manner, required and intended to operate in accordance with its own terms. It has, as Stein JA points out, an inherent quality that it will be used to the benefit of subsequent owners and occupiers. It is also a document intended to be relied upon by many persons dealing with the original grantee, or assignees of the grantee, in such contexts as the provision of security. In some respects it is equivalent to a document of title. It must be construed in accordance with its enduring functions".
In light of these principles and the absence of any express incorporation of the Development Application documents in the letter of consent, the question for determination in the present case is whether the letter of consent is complete on its face, or whether it is ambiguous or otherwise such that a reader of it, or a person acquainted with the physical features of the land, would conclude that recourse to other documents such as the Development Application documents is necessary to give it a sensible meaning.
I turn then to comment on the terms of the letter of consent of 8 May 1979 (see [21] above).
The heading refers to the Development Application and identifies it by number but, in accordance with the principles referred to above, this does not constitute incorporation of the Application in the Consent. The heading to the letter identifies the land to which the Application, and therefore the Consent, relates (Portions 177 and 198, Parish of Allandale) and it identifies the purpose for which the land is sought to be used, namely "for a Blue Metal Quarry". These are the basic integers of a consent: what can be done and where. Contrary to Sheahan J's view, I consider these to be sufficiently stated.
The first paragraph of the letter refers to the Application but, again, this does not amount to incorporation of the Application in the Consent. The Consent stated to be granted plainly relates to the Application described in the heading.
Many of the Conditions stated in the letter refer to the quarry and its operation, and assume that the quarry will have a specific location which does not necessarily comprise the whole of the land for which the consent to quarrying operations is granted. This does not in my view render the letter ambiguous and result in the implied incorporation of the application documents in the consent for the purpose of resolving the ambiguity. There is nothing surprising or unusual about the contemplation evident in the letter that the whole of the land that is the subject of the Consent might not at all times be used for the permitted use and that some might not be used at all for that purpose. Unsurprisingly, the locality of quarrying operations on the land might expand or move over time. When the operations expand or move within Portions 177 and 198, they will remain covered by the Development Consent.
The respondent did not demonstrate that Conditions 8 and 9, referring to a one kilometre distance and area around the quarry, were inconsistent with Development Consent being granted in relation to the whole of Portions 177 and 198. It was not, for example, shown that in 1979 there was land within one kilometre of Portions 177 and 198 which was not in the ownership of the applicant for consent. Even if there were such land, the effect of Condition 8 would be to limit the locations within Portions 177 and 198 where the quarry might be sited. That would not in my view mean that the consent letter was ambiguous and require recourse to the Development Application documents, thus impliedly incorporating those documents into the Development Consent. Conditions 8 and 9 were, on their face, perfectly comprehensible.
Similarly, Condition 10 was not shown to require recourse to the Development Application documents for it to be understood. As appears from the plan accompanying the Development Application, the paddock to the north-east of the circle describing the "proposed quarrying area" could also be regarded as being to the north-east of Portions 177 and 198 as a whole. Thus the Condition would not be ambiguous to someone who was familiar with the physical features of the land.
I do not consider there to be any other parts of the letter of 8 May 1979 that arguably constitute an implied incorporation of the Development Application documents into the Development Consent.
It follows that I respectfully disagree with Sheahan J's conclusion that the consent letter of 8 May 1979, standing alone, "is not capable of proper construction" because "crucial details" such as the size and location of the quarry are not identified in the letter (Judgment [109]). Being a decision concerning the construction of documents, this conclusion involved an error or law. I would accordingly answer the separate question that is relevant on the appeal (as to whether the Consent to quarrying is limited by the terms of the Development Application) in the negative.
ORDERS
The reason I do not consider that the appeal against the decision of Biscoe J should be allowed and his decision set aside is, in essence, that the separate question he ordered to be determined was in fact subsequently answered (in my view erroneously) (see [20] above). As the respondent's application to Biscoe J should have failed, it should pay the costs of the application. It should also pay the applicant's costs of the application for leave to appeal and appeal against that decision. No special order should be made in relation to the application for extension of time for leave to appeal as the costs referable to it can be assumed to be insignificant in amount.
For the reasons I have given, I propose the following orders:
(1) Extend to 30 April 2012 the time for the applicant to file its application for leave to appeal against the judgment of Biscoe J of 28 November 2011.
(2) Grant leave to appeal against the decisions of Biscoe J of 28 November 2011 and of Sheahan J of 21 March 2012.
(3) Direct that within 28 days of the date of this Judgment, the applicant file and serve Notices to Appeal in relation to those decisions in the form of the drafts provided to the Court.
(4) Dismiss the appeal from the decision of Biscoe J.
(5) Allow the appeal from the decision of Sheahan J.
(6) Set aside Order 1 made by Sheahan J on 21 March 2012 and entered on 18 April 2012.
(7) Answer the following question in the negative:
"Whether Development Consent No 118/679/23 granted by Cessnock City Council on 8 May 1979 for the Allandale Quarry only permits quarrying within the area of the circle labelled "proposed quarrying area" on the Indicative Plan for Quarry Products Pty Ltd Development Application dated 26 March 1979".
(8) Order the respondent to pay the applicant's costs of the applications for leave to appeal and of the appeals.
(9) Grant the respondent a certificate under the Suitors' Fund Act 1951, if qualified.
MEAGHER JA: Allandale seeks leave to appeal from two interlocutory decisions given in proceedings in the Land and Environment Court. In those proceedings, it seeks an order as to the amount of compensation payable consequent upon the compulsory acquisition by the respondent of land required for the construction of the Hunter Expressway. By the first of those decisions, Biscoe J stated a question for separate determination. By the second, Sheahan J answered the first part of that separate question in the affirmative. That question was whether the development consent granted by Cessnock City Council on 8 May 1979, for what was described as the Allandale Quarry, only permitted quarrying within the area of the circle labelled "Proposed Quarrying Area" on the Indicative Plan which accompanied the relevant Development Application. The other part of the question ordered for separate determination was not pressed before or answered by Sheahan J.
Before Biscoe J, Allandale opposed the making of orders for separate determination on bases which included that there was little or no utility in deciding the question posed. That was so, it was argued, because ultimately the valuation issues in the proceedings would turn on what would have been paid for the relevant land assuming hypothetical willing but not anxious buyers and sellers not having the benefit of any judicial determination as to whether the development approval limited quarrying operations to that area. Biscoe J made the order for separate questions on 28 November 2011. The separate question was then argued in February 2012 and decided by Sheahan J on 21 March 2012. Allandale did not seek leave to appeal from the decision of Biscoe J until after the decision of Sheahan J had been delivered, and then by applications for leave to appeal from each decision which required extensions of the time for the making of each application.
In relation to the application for leave to appeal from the decision of Biscoe J, I agree with the observations of Ward JA at [80]-[82]. Where Allandale decided to "take its chances" with respect to the determination of the separate questions and in doing so committed both parties to incurring the costs of that argument, the application for an extension of the time to seek leave to appeal from Biscoe J's decision should be refused.
As the respondent does not oppose the grant of leave to appeal from the decision of Sheahan J, or the extension of time for the making of that application, and as the determination of that question has possible significance in the underlying proceedings (for the reason referred to by Ward JA at [139]), the extension of time for the making of the application for leave should be granted, as should leave to appeal.
In my view, Sheahan J did not err in answering the separate question (being that part which was pressed) in the affirmative. The answer to that question depended on the construction of the document constituting the development consent, taking into account any other document or evidence to which reference legitimately could be made for that purpose. That document is the letter from Greater Cessnock City Council to Quarry Products Pty Ltd dated 8 May 1979. The relevant parts of that letter are set out by Macfarlan JA at [21].
The relevant principles are, in some respects, more easily stated than applied. The task is to construe the document constituting the consent mindful of the fact that the approval is a unilateral act of the consent authority which has an enduring function. The consent is not the result of a bargaining process between two or more parties, and is not personal to the applicant but enures for the benefit of subsequent owners and occupiers. Its meaning must be determined objectively, having regard to these matters which do not focus on the circumstances in which the consent was given by reference to what was known both to the applicant and the consent authority. To that extent, the principles of construction appropriate to contracts, which provide that in the case of ambiguity or uncertainty reference may be made to surrounding circumstances known to the relevant parties, do not apply: cf Codelfa Construction Pty Ltd v State Rail Authority of NSW [1982] HCA 24; 149 CLR 337 at 352; Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; 219 CLR 165 at [40], [41].
The extrinsic evidence to which reference legitimately may be made when construing a public document, such as a development consent, is more limited. Reference may be made to documents other than the consent itself if those documents, or parts of them, are incorporated into the consent expressly or by necessary implication: see generally, Ryde Municipal Council v The Royal Ryde Homes (1970) 91 WN (NSW) 440 at 443; Auburn Municipal Council v Szabo (1971) 67 LGRA 427 at 433-434; and the decisions of this Court in Sydney Serviced Apartments Pty Ltd v North Sydney Municipal Council (No 2) (1993) 78 LGERA 404 at 407-408; House of Peace Pty Ltd v Bankstown City Council [2000] NSWCA 44; 48 NSWLR 498 at [23], Winn v Director-General of National Parks & Wildlife [2001] NSWCA 17; 130 LGERA 508 at [2], [4], [199]; and Alcoa Australia Rolled Products Pty Ltd v Weston Aluminium Pty Ltd [2006] NSWCA 273; 148 LGERA 439 at [1], [3], [35]-[36]. See also Adelaide Corporation Pty Ltd v City of Charles Sturt [2008] SASC 260; 162 LGERA 106 at [33], [49], [50].
Evidence may also be led to identify a thing or place referred to in the consent: Slough Estates Ltd v Slough Borough Council (No 2) [1971] AC 958 at 962; Wyre Forest District Council v Secretary of State for the Environment [1990] 2 AC 357 at 370-371; Leichhardt Municipal Council v Terminals Pty Ltd (1970) 21 LGRA 44 at 50-51; Sydney Serviced Apartments Pty Ltd at 407. That evidence is not led to vary the consent but to identify the thing referred to in it. Evidence as to the nature or physical features of the land or site may also be admissible for that purpose: Parramatta City Council v Shell Co of Australia Ltd (1972) 2 NSWLR 632 at 637.
A document which is attached to the consent or otherwise referred to in it for the purpose of identifying or describing something dealt with in the consent will, for that reason, be expressly incorporated in it: Szabo at 434; Sydney Serviced Apartments Pty Ltd at 408. However, the mere reference to a document, such as a development application, is usually not sufficient to constitute express incorporation for this purpose. In each case, whether the reference is sufficient will depend upon the reason for the reference as appears from the consent itself: Sydney Serviced Apartments Pty Ltd at 408; Alcoa at [39], [40].
What is sufficient to constitute incorporation, by necessary implication, for the purpose of these principles is less clear. If the consent in terms does no more than approve the application, it will be necessary to go to the application at least to identify the subject matter of the consent: Royal Ryde Homes at 442-443; Szabo at 434; Winn at [5], [199]. A consent in those terms would not necessarily have the effect of incorporating all of the matters dealt with in the application. For example, general matters of fact or assertions of intention furnished or made for the purpose of informing the consent authority of the nature of the development, are not likely to be incorporated: Royal Ryde Homes at 442-443. In Winn, Stein J (with whom Spigelman CJ and Powell JA agreed on this point) rejected an argument that reference could be made to a letter to the consent authority which had accompanied the development application, on the basis that it was not necessary to have regard to the letter in order to resolve any uncertainty as to what the Council had approved. Specifically, that question was whether consents which authorised a mineral sands mine also authorised re-mining or deep mining. It was held that the consents and their conditions sufficiently delineated what the Council had approved: Winn at [5], [108], [199]-[202]. The argument for incorporation of the development application was not rejected on the basis that it was not permissible to refer to it even if the consent and conditions did not sufficiently delineate what had been approved.
In Stebbins v Lismore City Council (1988) 64 LGRA 132, the issue was whether the consent to a development application for a motel extension included the construction of an entrance or driveway from the motel to the new Bruxner Highway. This Court held (at 135) that the documents constituting the consent included a plan which had accompanied the development application and been marked up and returned with the notice advising of consent. The Court also considered the position on the basis that the notice alone constituted the consent. In that circumstance, the Court said (at 136) that recourse could be had to the application and its accompanying plan because it was not possible to gain a full appreciation of the terms of the approval from the notice of consent alone. In other words, it was permissible to look at the application and its accompanying plans if that was necessary to understand what had been approved.
A similar exposition of the circumstances in which reference may be made to documents which are not expressly incorporated in the consent, is given in Oakden Shopping Centre Pty Ltd v City of Port Adelaide Enfield [2004] SASC 373; 137 LGERA 189 in the judgment of Doyle CJ (with whom Duggan and Anderson JJ agreed). In summarising the principles by reference to which a court should interpret a development consent, Doyle CJ said (at [45]) that it was usually the case that a consent "will be meaningless" without reference to the plans and proposals submitted and, that being the position, it "must be permissible" when deciding the "meaning, scope and effect of a development authorisation, to refer to the plans or other documents constituting the proposal submitted for authorisation". See also Adelaide Corporation Pty Ltd at [33], [49], [50].
It is with these principles in mind that the terms of the letter dated 8 May 1979 advising of development consent must be considered. In its introductory words, the letter says that development consent has been granted "further to the above application" and subject to 12 numbered conditions. The second paragraph, appearing after Condition 12, says that the consent relates to "development or land use approval only", and not approval of any building work to be undertaken as part of that development or use. The heading to the letter identifies the land which was the subject of the application and contains a general description of the use which has been approved. The land is described as Portions 177 and 198, Parish of Allandale. The use is "for a Blue Metal Quarry". What the heading and introductory words do not expressly address is whether the consent permits quarrying operations over the whole of the land or only over some part or parts of it.
Nor do Conditions 1 to 7 expressly address that question. They contain references to the "operation" (Condition 1), "operations" (Condition 6) and "quarried areas" (Condition 7). Whilst some of these conditions are more consistent with the quarrying operations being confined to a specific area, they do not say that in express terms. Condition 1 refers to the "nearest residents". That is better understood as a reference to the "nearest residence". The obligation imposed is to form a "permanent buffer" between the "operation" and that residence. The language is more consistent with the reference being to a buffer between two places, each of which was specifically identifiable at the time the consent was given. That could not be the position in relation to the "nearest residence", if the "operation" described any area on any part of the site in which quarrying operations were at some time being conducted. There is also an indication in Condition 7 that the "quarried areas" which were to be restored would not extend over "the whole of the site". Otherwise, it may not have been necessary to state expressly that the soil conservation plan should cover "the whole of the site", meaning the whole of Portions 177 and 198.
Conditions 8 to 12 contain a number of references to "the quarry". In Conditions 8 and 9 that phrase is used to indicate a period of time, namely "whilst the quarry is in operation". It is also used to identify an area. During the same period of time, Condition 8 requires that the applicant retain ownership of all land "within one kilometre of the quarry". Condition 9 records that during the same period the Council will not permit the subdivision of land within "the one kilometre area". Condition 10 requires that the applicant retain the majority of the timber in the "paddock to the North East of the quarry". Conditions 11 and 12 contain references to the "quarry entrance" and the "quarry access road", in each case describing a specific place or thing.
A number of these references to "the quarry" assume that there will be an area capable of answering that description at all times during the period that quarry operations are conducted. The question of construction which arises is whether those references are to a specifically designated area of Portions 177 and 198 or to the area within that land on which, at any particular time, quarrying operations are being conducted.
The "one kilometre area" referred to in Condition 9 is the same area as is described in Condition 8. The use of the definite article in Condition 9 to describe that area suggests that the reference is to a specific and definite area for the whole of the relevant period. That meaning of the expression "the quarry" would give Conditions 8 and 9 a clear and certain operation. If the position was otherwise and the expression described whatever area was being used for quarrying operations from time to time, the obligation imposed by Condition 8 would apply to different land at different points in time depending upon the area or areas of the site on which quarrying operations were being conducted. For the same reason, the undertaking of the Council in Condition 9 would apply to different land at different points in time over that same period. If "the quarry" is read as referring to whatever area within the site, consistently with the satisfaction of any other relevant conditions, was being used for quarrying operations, Conditions 8 and 9 could at some time during the life of the quarry apply to all lands outside but within one kilometre of Portions 177 and 198. If it had been intended that they apply to that area of land, different language could and would have been used.
The obligation in Condition 10 is to retain timber by reference to its location in a paddock which is to the "North East of the quarry". The reference to a paddock would ordinarily be understood as to an enclosed piece of land. In Condition 10 that enclosed land is identified by its constant location in relation to an area described as "the quarry". The obligation is not in terms to retain timber in a paddock which may at one time be to the north east, and at others to the north or east of "the quarry" depending upon where on the site the quarrying operations are being conducted from time to time. The use of the expression "the quarry" in Condition 10 is only consistent with it being a reference to a specifically designated area and not to an area which may be anywhere on the site and expand or move over the life of quarrying operations.
These considerations lead me to conclude that, properly understood, the references to the "quarry" in the consent, especially in Conditions 8, 9 and 10, are to a specifically designated and definite area which is not the whole of the site. The location and size of that area are not described in, and cannot otherwise be identified from, the letter of consent. For that reason, it is necessary to go to the application for development approval in order to identify the area referred to. That is permissible in accordance with the principles referred to above because by using that expression without identifying the area, the consent must be taken necessarily to incorporate the development application for the purpose of identifying that area.
When reference is made to the development application, the heading "General information" directs the reader to the "attached letter" which is the letter of Quarry Products Pty Ltd to Greater Cessnock City Council dated 26 March 1979. The Indicative Plan is in turn referred to in that letter as the "attached map". The circled area on that map containing the words "Proposed Quarrying Area" is described on page 2 of the letter as follows:
"The proposed maximum area involved in quarrying activities is 40 hectares as indicated in the diagram."
and the letter concludes by requesting that the Council "give the proposal" its early and favourable consideration.
Allandale put various arguments as to why reference to the development application and the attached letter of 26 March 1979 and plan, did not have the consequence that the consent to a quarry was to be understood as a consent to a quarry within that designated area. For the reasons which Ward JA gives (esp at [193]-[200]), those arguments should be rejected.
Sheahan J did not err in answering the stated question in the affirmative. I agree with the orders proposed by Ward JA.
WARD JA: Allandale Blue Metal Pty Ltd seeks both an extension of time and leave to appeal from two interlocutory decisions in the Land and Environment Court. The first is the decision of Biscoe J on 28 November 2011, exercising the power pursuant to Rule 28.2 of the Uniform Civil Procedures Rules 2005 (NSW) to state a separate question for determination prior to the hearing of the proceedings. The second is the subsequent decision of Sheahan J on 21 March 2012, answering the first part of that separate question in the affirmative (the second part of that question not having been pressed at the hearing before his Honour). By direction of this Court all issues were heard and are to be determined concurrently.
Background
The proceedings in the Land and Environment Court in which the separate question was stated for determination are proceedings in class 3 of its jurisdiction, concerning an appeal by Allandale from the Valuer-General's determination of the compensation payable to it under the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) as a consequence of the compulsory acquisition by the respondent (Roads and Maritime Services) on 12 February 2010 of land owned by Allandale in Allandale, NSW. The land so acquired previously formed part (54.6892 ha) of an irregularly shaped eight lot holding with a combined area of 630.78 ha. On part of the overall landholding (part of what I will refer to as lots 177 and 198), an andesite quarry was operated by Allandale's lessee (Quarry Products (Newcastle) Pty Limited) at the relevant time. (Quarry Products was also an applicant for compensation in the Land and Environment Court and had similarly lodged a summons for leave to appeal from the respective decisions but its claim has since been resolved and the dispute in the present proceedings is solely between Allandale and Roads and Maritime Services.)
The land that was acquired by Roads and Maritime Services (which was outside lots 177 and 198) was acquired for a public purpose, namely the proposed construction of the Hunter Expressway. It forms a road corridor that passes through a number of Allandale's lots. Allandale claims that the effect of the acquisition is that quarrying can no longer occur on areas of residue land adjacent to the road corridor (as a result of the requirement for an offset or buffer from the road corridor to be created over the remaining Allandale land due to the nature of quarrying operations). (Because the acquired land fell outside lots 177 and 198, there was no suggestion that the acquired land could have been used for quarrying at any time under the existing development consent.)
It is contended by Allandale that the requirement for a buffer from the road corridor means that a significant amount of the andesite resource on Allandale's land will become inaccessible or sterilised (reducing the remaining life of the quarry by about 1¼ years). In Allandale's Points of Claim in the Land and Environment Court proceedings it claims compensation in the sum of $2,706,320 under section 55(a) of the Land Acquisition (Just Terms Compensation) Act on the basis that this is the market value of the acquired land. (It makes a relatively minor claim under s 55(d) of the Act for disturbance.) The Valuer-General determined compensation in the amount of $1,162,919.
By letter dated 2 March 2011, Allandale's lawyers provided, by way of further details of its claim, an itemised calculation of the market value of the acquired land. That value was arrived at by deducting, from what Allandale contends is the pre-acquisition value of the overall landholding, the after-acquisition value of the remaining land. Allandale's calculations include a reduction in the present value of the royalties from the quarry land on the apparent assumption (as explained by Allandale's lawyers in the March 2011 letter, albeit in relation to Quarry Products' sterilised resource claim which in effect mirrored the quantum of Allandale's market value claim) that there is a reduced life of the quarry due to the inability to access andesite from the buffer required to be adjacent to the acquired land. Roads and Maritime Services points to these calculations as showing that Allandale's claim for compensation is underpinned by the assumption that it is lawfully entitled to have access to andesite resource from the whole of lots 177 and 198 (rather than simply from the area in a circle labelled on the Indicative Plan lodged with the development application as the proposed quarry) and that Allandale's claim presupposes that there is a different market value between land on which quarrying is permissible and land on which quarrying is not permissible.
The circumstances in which Roads and Maritime Services came to seek an order for the separate determination of a preliminary question are set out in the affidavit affirmed on 24 October 2011 in support of that application by its solicitor, Ms Li. Biscoe J referred to this evidence as being uncontentious for the purpose of the application for separate determination.
In essence, in the compensation proceedings Roads and Maritime Services wishes to put in issue the assumption that quarrying within the buffer area is permissible under the existing development consent for the quarry (that being a development consent granted in May 1979). In her affidavit, Ms Li refers to advice received from a town planning expert that under the terms of the current development consent quarrying is permitted only within a particular area (described as "the Circle" about 500 metres from the eastern boundary of lot 198) and that a development application would be required to expand the quarry operations beyond that area. Ms Li has also deposed that the respondent's quarry valuer expressed an inability to proceed with the valuation until it was known whether a development application would be needed in relation to the quarry (on the basis that this would affect the question of which "buffers" would apply to the valuation, whether they needed "offsets" and when the "rehabilitation" would occur).
The position of Roads and Maritime Services (as subsequently recorded by Sheahan J at [3]) is that the area to be quarried cannot be expanded (beyond that permitted by the 1979 development consent) without a further consent "the grant of which could be problematic, given that it would involve 'designated development'". (No allegation of prior unlawful use, as such, has been raised in the Points of Defence filed by Roads and Maritime Services.)
The reference to the Circle (being the only area within which Roads and Maritime Services says quarrying is permitted under the existing development consent) is a reference to an area marked on a map labelled an "Indicative Plan" that was submitted to Cessnock Council when a development application was lodged in March 1979 for consent to carry on blue metal quarrying operations on portions of two of the lots now owned by Allandale (lots 177 and 198). The development application (which noted the proposed use as including grazing, thus does not appear to have contemplated quarrying across the whole of the land in question) was lodged by Quarry Products Pty Limited (acting with the consent of the then owner), who wrote to the Council by letter dated 26 March 1979 advising, relevantly, that:
The quarry operation would initially take place on areas in both portions 198 & 177 above the 60 metre contour level (see attached map). At a later date, extraction would move down to the 40 metre contour level which would allow natural drainage to continue to the existing creeks.
...
The proposed maximum area involved in quarrying activities is 40 hectares as indicated in the diagram. Initially, only a small portion of this will be used - starting locations to be dependent on detail test drilling. (my emphasis)
However, his Honour's finding goes to the question whether the development consent is capable of being interpreted as a stand-alone document or, as a question of construction, necessary and important details are required to be interpolated into it by way of necessary implication. That question of construction is a question of law even though, in determining it, some preliminary findings of fact may need to be made. Therefore, this Court has jurisdiction to entertain the challenge to that finding.
Turning then to the question whether there is ambiguity on the face of the development consent so as to permit reference to the extraneous material to which his Honour had regard, it is submitted for Allandale that the development consent clearly relates to the whole of the land referred to in the header ("Portions 198 and 177") and that the finding that the development consent does not disclose the size and location of the quarry in relation to the land portions nominated in the development application is inconsistent with the terms of the consent (the header to referring to the blue metal quarry 'on' Portions 198 and 177 and there being no specific geographical limitation on size or location).
This submission requires much weight to be placed on what is clearly a reference header to the letter (and not a condition of the consent as such). The header can also be read (and in my view this would be the better construction) as identifying the overall boundaries of the land on which quarrying operations were permitted to be carried on in accordance with the conditions of consent (i.e. not as consent to quarrying across the whole of that land). Once reference is made to the various conditions of consent (to which I refer below) that make reference to "the quarry" in terms suggesting that it is a specifically identifiable location (and not the whole of the land in lots 198 and 177), there is at least an inconsistency with the proposition that the consent was to cover quarrying operations over the whole of the land, so as to give rise to a relevant ambiguity.
In substance, Allandale's construction of the development consent is that it permits quarrying on any part of those two portions of land, subject to the ability of the quarry wherever located (and arguably wherever it may be located from time to time) to comply with the written conditions of consent, and that it does not limit quarrying to a 40ha area. It is submitted by Mr Lancaster that the size of the quarrying operation (and its location) depends upon the position of the resource within those property boundaries and that, on a reasonable construction of the development consent, the size and location of the quarry in relation to the land portions are discernible. (In this regard it is submitted that Sheahan J incorrectly assumed that a consent must be comprehensive and must state in detail numerous features of the development for which approval has been given.) However, the question is whether (having regard to the enduring nature of the consent) a reader would be able to determine on the face of the letter and with reference to the physical features of the land where quarrying could lawfully be conducted. If not, or if there is some ambiguity as to that issue, then the authorities referred to earlier would permit reference to just such material as that to which his Honour had regard.
Mr Lancaster calls in aid the generality of various conditions of the consent (such as (1), (2), (7), (8) and (9)) as supporting the conclusion that approval for the quarry was not limited to a particular location. It is submitted that had Council wished to impose greater geographical specificity on the quarry for which approval was given it could have done so. Obviously, it would have been open for the Council to have worded the consent more clearly in that regard. However, it does not necessarily follow that the consent, as properly construed, was to be largely unlimited (i.e. save only for compliance with the physical constraints imposed by the stated conditions). The question is not as to what Council's actual intention was or could be inferred to be.
Mr Tomasetti points to at least some of those same consent conditions as indicating what is unclear to the reader about the development consent without reference to other documents to interpret it. Leaving aside the threshold question as to whether it can be determined from the consent what in fact was being approved, he points to the uncertainty as to what is the nearest residence (from which an overburden is to be placed so as to form a permanent buffer between the quarrying operations) for the purposes of condition (1) (the Indicative Plan providing that information); what are the operations referred to in condition (6); what is "the quarry" from which for one kilometre land is to be retained while the quarry is in operation for the purposes of condition (8); what is "the quarry" for the purposes of conditions (9), (10) and (11); an what is the "quarry access road" for the purposes of condition (12) (that also being something marked on the Indicative Plan).
A review of the consent conditions in my view leads to the conclusion that approval was being given for a quarry (or the quarrying operations) to be at a specific location (in particular, conditions (1) and (8) but also the various references to "the quarry"). The inability to discern, from the consent alone where that location was to be, gives rise to an uncertainty warranting reference to the development application and accompanying documents for the limited purpose of establishing what was the location (and hence the size) of the quarry for which approval was being given. At the very least, the room for uncertainty as to whether the consent was relatively free-ranging or limited to a particular location is one that would permit reference to extraneous documents.
The construction for which Allandale contends is one that suggests a variable location (or one that might be determined at Allandale's whim subject only to the physical constraints imposed by conditions such as condition (10) that refers to a timbered paddock to the north east of the quarry). That seems to me to be inconsistent with the requirement under the consent conditions for particular steps to be taken or not taken having regard to distances from the quarry or other places (such as the nearest residence to the quarry). (Mr Tomasetti points to the documents accompanying the development application as highlighting what might perhaps be seen as the opportunism of Allandale's current position - namely, that the accompanying documents made clear that approval was not being sought for the potential quarrying of the whole 540 acres but it is contended by Allandale that the generality of the approval had the effect of permitting a very large proportion of that area, albeit not all, to be quarried. Nevertheless, one could not exclude the possibility that the Council, faced with an application for approval for quarrying for a proposed maximum 40ha, chose to approve quarrying over a far greater area. The real difficulty with the consent is that there is room for doubt as to the area over which quarrying was approved.)
True it is that certain conditions (such as condition (2)) are expressed by reference to the outcome desired by the Council rather than the location of the quarry itself (i.e. the placement of dams on creeks or gullies to act as silt traps and prevent siltation of creeks on neighbouring land) but this still indicates that there is to be a particular location of the quarry on an identifiable part of the land comprised in lots 198 and 177.
I consider that the development consent is ambiguous as to the location of the quarry to which reference is therein made in the conditions of consent. The specificity of the reference to the nearest residence and the one kilometre conditions that are explicable only by an understanding of where the quarry was to be indicate that what was being approved was the proposal for quarrying at a particular location. Since that location is not able to be gleaned from the terms of the development consent itself, it was permissible for his Honour to have reference to the development application and accompanying documents to confirm whether what was approved was a particular sized quarry in a particular location (as Roads and Maritime Services contends) or a relatively free-ranging quarry (as Allandale appears to contend).
For Allandale, there were various submissions put against or said to be inconsistent with such a conclusion, including the difficulty or confusion which it was said would arise if the March 1979 letter and accompanying documents were treated as consent conditions and indications in the accompanying documents said to be inconsistent with a quarry limited in the manner for which the Roads and Maritime Services had contended. It was submitted that his Honour had made various assumptions not based on the evidence before him (such as the assumption that the red circle labelled "proposed quarrying area" represented a 40 hectare area).
I do not consider that those matters overcome the uncertainty on the face of the letter as to the location of the quarry that was the subject of the approval. For example, the 40 ha area of the proposed quarrying area is something that can be discerned from the Indicative Plan itself (and is consistent with the appendix to the March 1979 letter which noted the proposed maximum area of the land said to be suitable for quarrying).
The submission that there was ambiguity in the March 1979 letter as to the reference to extraction moving down from above the 60 metre contour line to the 40 metre contour level (namely as to whether it refers to the geographical location expanding outside the red line on the proposed quarrying area down to a 40 metre contour (the construction that Allandale contends would be the better construction) or means an operation confined within the red circle but down to a 40 metre level (the construction that Roads and Maritime Services contends is the obvious one)) is another issue raised by Allandale. However, it is by no means clear that quarrying from the 60 to 40 metre contour levels could not have the drainage advantage contemplated by the letter (and in any event I do not accept that this was a condition incorporated into the consent conditions).
Similarly, the difficulty said to arise from incorporating general statements of intention (such as to operating hours) into the consent does not arise where the incorporation need only be for the limited purpose of determining that which is unclear on the face of the development consent (namely, the location and size of the quarry for which approval was given).
It is submitted by Mr Lancaster that the labelling of the map as an "lndicative Plan" and the identification on the map of the area in the Circle as a "proposed quarrying area" is not consistent with or appropriate for the imposition of strict legal obligations and that Sheahan J erred in not taking those labels into account. His Honour expressly considered the use of the word "Indicative" on the map and said that he was not troubled by this (and presumably was similarly not troubled by the use of the word "proposed" within the circle on the Indicative Plan). In that regard, his Honour referred to the discussion in Perry v Hepburn Shire Council [2007] VCAT 1309; (2007) 154 LGERA 182, where the Tribunal accepted a plan labelled as indicative as accurately indicating the relative locations of the turbines that had been there approved by the relevant authority. (His Honour in the present case accepted that the plan was probably labelled indicative only because the locations circled were not accurately mapped according to surveyor "best practice". That is clearly an assumption but not one that appears to have been determinative of the construction his Honour placed on the wording of the plan.)
I am not persuaded that his Honour's treatment of the labels "indicative" or "proposed" was plainly wrong. It seems to me not surprising that an application for a proposed change of use would use such words referable to what was being proposed. The provision of an "[i]ndicative" plan is consistent with it being indicative of where the applicant was seeking approval for the proposed change of use.
As to the use in the accompanying documents of the word "initially", his Honour said (at [114]):
The applicants sought approval to quarry the 40ha circled area on the plan, and no more, down to the 40m contour level. I do not believe that their use of the word "initially" is to be taken to mean that they sought, at that "initial" stage, approval to quarry the whole 500 acres, but would start only in the circled 40ha.
and was of the view that quarrying outside that 40ha area "even elsewhere on portions 177 and 198" would require consent. I consider that the use of the word "initially", that is consistent with the meaning attributed to it by his Honour.
It was also submitted that the Indicative Plan could at most assist only to construe the terms of the consent (and to confirm the approximate location of the quarry) and could not be used (as it had been) to prescribe and cut down the scope of all activities permitted on the land (by reference to the caution expressed in Hubertus). That submission assumes that the development consent on its face clearly permits quarrying across the whole of the lots in question. That is not the construction I would place on the development consent (and, though I accept that reference to the development application is permitted only after it is determined that there is a relevant basis for so doing, such a construction would be inconsistent with the contemplation in the development application itself that part of the land would also be used for grazing).
Conclusion on (ii)
For the reasons above, I am of the view that reference may permissibly be made to the development application and documents accompanying it (in particular, the Indicative Plan) when construing the development consent as this is necessary to resolve the ambiguity as to the area in respect of which quarrying was approved and that, having regard to those documents, Sheahan J did not err in answering the stated question in the affirmative.
Orders
I would therefore make the following orders:
1 Extend the time for filing of the Summons seeking leave to appeal from the decision of Sheahan J to the date of filing the Summons and dismiss the application for leave to extend the time for the filing of the Summons seeking leave to appeal from the decision of Biscoe J.
2 Grant leave to appeal from the decision of Sheahan J and dismiss the appeal.
3 Order the appellant to pay the respondent's costs of the Summons seeking leave to appeal and the appeal.**********
150
14
11