Big Country Developments Pty Limited v Penrith City Council [1998] Nswlec 247 (8 October 1998)
[1998] NSWLEC 247
•10/08/1998
Land and Environment Court
of New South Wales
CITATION: BIG COUNTRY DEVELOPMENTS PTY LIMITED v. PENRITH CITY COUNCIL [1998] NSWLEC 247 (8 October 1998) [1998] NSWLEC 32 PARTIES: BIG COUNTRY DEVELOPMENTS PTY LIMITED v. PENRITH CITY COUNCIL [1998] NSWLEC 247 (8 October 1998) FILE NUMBER(S): 20062 of 1998 CORAM: Bignold J KEY ISSUES: :- LEGISLATION CITED: Land and Environment Court Act 1979: s.36(5)
Local Government Act 1993: ss.68 and 176CASES CITED: Sydney City Council v. Zizza (1989) 67LGRA 224 espc at 235-236) ;
Proprietors of S.P. 13318 and 13555 v. Lavender View Regency Pty Ltd (1997) 97LGERA 337;
Mulhearn v. Hunters Hill Council (unreported 5 June 1998;
Blair v. Curran (1939) 62CLR 464 at 531 to 534 ;
North Sydney Council v. Michael Standley and Associates Pty Ltd (1998) 97LGERA 433 ;
in Cooma-Monaro Shire Council v. Mannering (1986) 7NSWLR 258DATES OF HEARING: 25 August 1998 DATE OF JUDGMENT:
10/08/1998LEGAL REPRESENTATIVES: Mr. J.J. Webster, Barrister
Mr. D. Wilson, Barrister
JUDGMENT:
A. INTRODUCTION
1. At the conclusion of the hearing of Class 2 proceedings involving an appeal pursuant to s.176 of the Local Government Act 1993 (the LG Act) against the deemed refusal by the Council of the Applicant’s Building Application No. 980437, the Assessor hearing the case, at the joint request of the parties has referred to the Chief Judge for determination pursuant to s.36(5) of the Land and Environment Court Act 1979 (the LEC Act) the following questions of law:
- “1. Whether the Court in these proceedings:
(a) should construe condition 18 of the development consent determined by the Council on 17 May 1997; and
(b) if so, whether the Court on the true construction of condition No.18 of that development consent is limited by the diagram A of Development Control Plan No.27 as it was adopted by the Council on 5 May 1997, effective on 23 May 1997, including the purported constraint on development by that DCP within the site by the internal road design and the provision of a median; or
(c) alternatively, are the works proposed in these proceedings prohibited under the provisions of the EP&A Act and the Local Government Act 1993 and, if so, does that prevent approval of the application in these proceedings?
2. Whether the Court in determining the building application in proceedings No 20062 of 1998 should take into account as a relevant matter the `new’ DCP 27 approved by the Director of Planning on 26 June 1998.
3. If the answer to question 2 is in the affirmative, is the `new’ DCP 27 a prohibition on the approval of the building application for the works otherwise than in accordance with that `new’ DCP 27 including the constraint on development within the site by the internal road design and the provision of a median.”
2. In so referring the questions of law, the Assessor also referred a Statement of Agreed Facts (prepared and adopted by the parties) a copy of which is annexed hereto and marked “A”.
B. THE JURISTIC CONTEXT AND LIMITS OF THE REFERRED QUESTIONS OF LAW
3. It is necessary to appreciate, at the outset, the juristic context and limits of the referred questions of law. In what follows, I emphasise that I am considering the relevant statutory provisions unamended by the radical legislative changes made by the Environmental Planning and Assessment Amendment Act 1997 (Act No. 152) which came into force on 1 July 1998 and does not affect the determination of the pending proceedings.
4. The questions have arisen in the course of the hearing of an appeal under s.176 of the LG Act in respect of an application for approval under Part 1 of Chapter 7 of that Act, the relevant “activity” (s.68(1)) for which approval is sought being the “erection of a building” (Part A of the Table). The proposed building is a motel complex.
5. Such an application is to be determined by (a) granting approval unconditionally or subject to conditions or (b) by refusing approval: s.94(1) of the LG Act.
6. In determining such an application, s.89 of the LG Act prescribes relevant matters to be considered and is supplemented by Regulations made pursuant to s.748(2) and Schedule 6 which Regulations includes cl.12 of the Local Government (Approvals) Regulation 1993.
7. Although it will be necessary hereafter to refer in more detail to these statutory provisions, it can be said at once that there is nothing in them that operates to deny the determination of the present application on the merits. Speaking generally, this outcome of the statutory regime in force under the LG Act in respect of an activity requiring approval also applies to the determination, on appeal by this Court: vide s.39(2) of the LEC Act.
8. It is in the foregoing juristic context that the referred questions of law are to be understood, and where necessary, to be answered. I put the matter in that fashion because a possible outcome of a reference of a question of law, pursuant to s.36(5) of the LEC Act is a decision that the question “…need not be determined because it is not relevant to the particular proceedings”: vide s.36(7).
9. On their face, the referred questions of law are very generalised (particularly when considered against the Statement of Agreed Facts) and do not appear to fully recognise the limits of the juristic context in which they must necessarily arise and be determined.
10. The explanation for this state of affairs appears to be found in the litigation history (some of which is referred to in the Statement of Agreed Facts) of the present proceedings and earlier proceedings relating to the development consent granted, subject to conditions, in respect of the same development site in respect of the following development, which includes the proposed motel complex: “motel”; “family restaurant”; “drive-through take-away restaurant”; “hotel extension” (“the development consent”).
11. Ultimately, it is the relationship (i) between that development consent and the present application, reflecting the relationship (ii) between the Environmental Planning and Assessment Act 1979 (EP&A Act) and the LG Act, that is relied upon by the Council in justifying the reference of the questions of law, and in founding the Council’s contentions in respect of those questions.
12. Before considering each of the referred questions of law, it may be helpful to identify the true nature of the dispute between the parties in the present case. It is that the Council seeks to restrict the vehicular traffic usage of the internal access road from Mulgoa Road to traffic destined for the motel development on the site (existing and proposed) whereas the Applicant seeks to broaden that usage so as to additionally include traffic destined for other developments located on the development site i.e. the hotel, restaurant and take-away food shops.
13. The nature of the restriction sought by the Council, and the means of achieving it, is the construction of a mounted median on a section of the access road to physically prevent vehicular traffic from turning right, off the access road, to the existing or proposed facilities (other than the proposed motel development, the subject of the present proceedings).
14. To this end, in the proceedings before the Assessor, the Council contended for the imposition of the following condition:
- “885. Detailed plans of the access road and slip lane to the Motel from Mulgoa Road shall be provided before construction of the Motel is commenced, and shall incorporate the median strip and driveway configuration as shown on plan attached to these conditions and marked Diagram “A” and dated 6 July 1998, to the satisfaction of Council’s Technical Services Manager.”
15. The “Diagram” referred to in the proposed condition is the diagram that forms part of Development Control Plan—South Penrith No. 27 (the new DCP) as referred to in paragraph 12 of the Statement of Agreed Facts.
16. The Applicant opposes the imposition of proposed condition 885 and the dispute on this issue was the principal (if not exclusive) matter agitated in the proceedings before the Assessor.
17. Curiously, however, none of the referred questions of law directly addresses that proposed condition. Instead, the Council has propounded the questions of law and contended for answers which would advance the Council’s case to an impregnable level than would otherwise be the case if the question of the imposition of the proposed condition 885 were to be determined as a matter of planning merit, namely by contending for the legal conclusion that unless the building application be made conformable to the requirements of the new DCP, the application must, as a matter of law, be refused. So much flows from the Council’s contentions in respect of Questions 1(c) and 3 in the reference.
18. The Council relies upon a twofold fallback position assuming its contentions on these questions fail, namely:
i) that the new DCP is, in any event, “relevant” to the determination of the building application (Question 2); and
ii) that properly construed, Condition 18 of the development consent has the same effect of requiring the construction of the median on the internal access road. (Questions (1)(a) and 1(b)).
19. It is now opportune to consider separately each of the questions of law, the subject of the reference.
C. DETERMINATION OF REFERRED QUESTIONS OF LAW
QUESTION 1
20. There are three parts to this question, two of which refer in terms to condition 18 of the development consent, but the remaining part does not.
21. Accordingly, I shall consider Questions 1(a) and 1(b) in tandem, and separately consider Question 1(c).
Questions 1(a) and 1(b)
22. Condition 18 of the development consent is in the following terms:
- “18. The slip lane and driveway off Mulgoa Road are to be provided and maintained at the applicant’s cost, in accordance with the Development Control Plan and limited to entry only access. Design plans showing all proposed roadworks are to be submitted to the Roads and Traffic Authority (RTA) for approval and project management. It is to be noted that a plan checking fee and bank guarantee will be required by the RTA to cover the extent of the work. A copy of the stamped approved plans is to be submitted with the Building Application.“
23. Generally speaking, it will not be appropriate on the hearing of an appeal pursuant to s.176 of the LG Act for the Court to be called upon to declare the true meaning of a condition of a pre-existing development consent in respect of the same or similar development or activity for which approval under Part 1 of chapter 7 of the LG Act is being sought.
24. The fundamental reason for this conclusion is the legal proposition that an application for approval under part 1 of Chapter 7 of the LG Act is not dependent upon the existence or pre-existence of any requisite development consent for the carrying out of the same activity under the EP&A Act. In this respect, the LG Act is materially different from the Local Government Act 1919 by virtue of the absence from the LG Act of any counterpart to s.314(1)(b) and s.314(4) of the former Act, (as to which see Sydney City Council v. Zizza (1989) 67LGRA 224 espc at 235-236) cf. Proprietors of S.P. 13318 and 13555 v. Lavender View Regency Pty Ltd (1997) 97LGERA 337.
25. A secondary reason is to be found in the nature of the jurisdiction conferred by s.176 of the LG Act. It is simply not the type of jurisdiction (especially given the prevailing practice of the Court for assessors to hear and determine such proceedings) in which it would normally become necessary to authoritatively construe a condition of a relevant pre-existing development consent. (The fact that the question of the construction of a condition of the development consent has come before a judge of the Court by virtue of a reference pursuant to s.36(5) of the LEC Act should not be allowed to alter the general incidence and nature of proceedings involving an appeal under s.176 of the LG Act.)
26. Based upon the foregoing considerations, my initial response to these two Questions is that they are not relevant to the proceedings heard by the Assessor: s.36(7) of the LEC Act.
27. The Council seeks to avoid this consequence by relying upon the fact that one of the conditions of approval proposed by the Council in the proceedings before the Assessor was as follows:
- “851 Compliance with all conditions of Development Consent 960232 dated 15 May 1997.”
28. However, I am entirely unaware (and the matter is not mentioned in the Statement of Agreed Facts) whether that proposed condition was in dispute, or whether the Assessor proposes to adopt it, if he is disposed to allow the appeal and grant approval.
29. These uncertainties only serve to underscore the theoretical basis of the suggested relevance to the present proceedings of condition 18 of the development consent.
30. There is a matter of principle that should be noted in relation to proposed condition 851, namely that although such conditions are apparently commonly imposed on the grant of building approvals in circumstances where there is a pre-existing development consent, the soundness (if not the validity) of the practice is open to serious doubt for a number of separate reasons. Firstly, there is the fact (already mentioned) that the statutory regimes imposed by the EP&A Act and the LG Act respectively for controlling the carrying out of “development” and for controlling the carrying out of an “activity” (where the proposed development and the proposed activity are the same building) are separate regimes. This does not deny that they are related regimes, but nonetheless they are legally separate regimes: see Mulhearn v. Hunters Hill Council (unreported 5 June 1998). Secondly, as separate regimes, imposing separate controls, neither regime, nor the controls it imposes, depends for its operation and effect upon the other. Thirdly, although related and to some extent, overlapping, the controls enforced by the separate regimes are not the same and in particular, they are not co-extensive. Fourthly, attempts to condition an approval granted under Part 1 of chapter 7 of the LG Act to “compliance with all conditions of a pre-existing development consent” is at best, essentially redundant (when the effect is merely to replicate the earlier consent) but at worst potentially confusing and contradictory (when the effect is to propound conflicting sets of conditions). Accordingly, not only is the effect of such a standard or commonplace condition potentially legally unsatisfactory in the result, but there is the ever present administrative risk that resort to the imposition of commonplace condition, will operate as a substitute for proper scrutiny and assessment of the pending application.
31. In these circumstances, I am of the opinion that Questions 1(a) and 1(b) are not relevant to the proceedings before the Assessor (at least so far as I have been apprised of the issues raised in the proceedings by virtue of the Statement of Agreed Facts).
32. In so concluding, I would make three further observations.
33. Firstly, it does not follow that the existence of a relevant development consent is not relevant to the determination of a building application under Part 1 of Chapter 7 of the LG Act. On the contrary, Clause 12(2) of the Regulation stipulates additional matters to be considered in determining an application for approval to erect a building “if consent under the Environmental Planning and Assessment Act 1979 is not required to the erection of the building”.
34. However, the relevance of the existence of any requisite development consent under the EP&A Act does not require an authoritative construction of the meaning of a condition of such a consent.
35. That brings me to my second observation. It is simply this—that in the context of proceedings involving an appeal under s.176 of the LG Act, a construction of condition 18 of the development consent would not be an authoritative construction in the sense that it would be incapable of creating an issue estoppel between the parties concerning the construction of condition 18 of the development consent because the construction of the condition is not “fundamental or cardinal” to the decision reached on the s.176 appeal—see Blair v. Curran (1939) 62CLR 464 at 531 to 534 (incl) per Dixon J.
36. The third observation is that the construction of condition 18 of the development consent contended for by the Council is essentially contrary to the construction of the relevant development control plan adopted by Pearlman CJ in the earlier proceedings between the same parties involving an appeal against certain conditions imposed upon the development consent: see (1998) 98LGERA 14. The parties having already agitated the meaning and effect of that development control plan in the earlier proceedings, ought not be permitted to re-agitate what is essentially the same question in the present proceedings by way of a reference pursuant to s.36(5) of the LEC Act of a question of law.
37. For all the foregoing reasons, I hold that Questions 1(a) and (b) need not be determined because they are not relevant to the present proceedings: see s.36(7) of the LEC Act.
Question 1(c)
38. This question really involves three separate questions:-
i) Is the proposed activity for which approval is sought under Part 1 of Chapter 7 of the LG Act prohibited by or under the LG Act?
ii) Is that activity prohibited by or under the EP&A Act?
iii) If the activity is prohibited by or under the LG Act or the EP&A Act (or both) does that prohibition prevent approval being granted under Part 1 of Chapter 7 of the LG Act to the pending application?
39. I shall deal with these three questions separately.
i) The “activity” is, as I have earlier said, relevantly the “erection of a building” (namely the motel complex). It has not been argued (nor could it reasonably have been so argued) that that activity is prohibited by the LG Act. This is inevitable having regard to the structure of Part 1 of Chapter 7 of the LG Act which relevantly provides:
a) that specified “activities” may only be carried out “with the prior approval of the council”: s.68(1);
b) that an application for such approval may be made: s.75;
c) that the council is to determine the application by reference to relevant considerations: s.89; and
d) that the council’s determination is either to approve the application unconditionally or conditionally or to refuse approval: s.94(1).
The structure of Part 1 of Chapter 7 of the LG Act does not contain any counterpart to s.76(3) of the EP&A Act which prohibits the carrying out of specified development.
Having regard to the relevant provisions of the LG Act there is no relevant prohibition on the carrying out of the proposed activity provided that the requisite approval is obtained therefor beforehand.
40. The only source of suggested prohibition by or under the EP&A Act on the carrying out of the proposed activity is the combined operation of
a) Clause 13 of Interim Development Order No. 28—City of Penrith (the IDO);
b) Clause 7 of the new DCP ; and
c) Section 76(3) of the EP&A Act .
41. Clause 13 of the IDO (which is recited in paragraph 2 of the Statement of Agreed Facts) relevantly provides as follows:
- “(1)Notwithstanding the provisions of clause 4 of this order, no development shall be carried out within Zone No. 3(d) except in accordance with a development control plan approved by the Authority”
(It is common ground that the subject land is included within Zone 3(d).)
42. Clause 7 of the new DCP provides as follows:
- “The design and construction of roads, and any other areas on which vehicular movements occur or are to occur, on the subject land is to be in accordance with the road design, including (without limitation) the use of a median strip and the use of a slip-lane as traffic control devices, detailed on “Diagram A” which is attached to, and is part of, this Plan.”
A copy of “Diagram A’ referred to in cl. 7 of the new DCP is annexed hereto and marked “B” . (It is common ground that cl.7 applies to the subject land.)
43. Section 76(3) of the EP&A Act provides as follows:
- “(3) Subject to this Act, where an environmental planning instrument provides that development specified therein is prohibited, a person shall not carry out that development on land to which that provision applies.”
44. Although not covered by the Statement of Agreed Facts, it is not in dispute that the internal access road leading from Mulgoa Road proposed to provide ingress to the Applicant’s proposed development and proposed “activity” (i.e. the motel complex) does not adopt the provision and use of the median strip as depicted on “Diagram A” referred to in cl. 7 of the new DCP.
45. In respect of this matter, the Applicant has not submitted that the proposed development (being the proposed activity) is “in accordance with” the new DCP. Nor has the Applicant submitted that in these circumstances, cl.13 of the IDO does not relevantly prohibit the carrying out of the proposed development.
46. I take the absence of any such submissions from the Applicant, to be an acknowledgment that the decision of Pearlman CJ in the earlier proceedings holding that cl.13 of the IDO relevantly imposes a “prohibition’ (rather than provide for a “development standard”—see especially at 17) governs the question.
47. Thus, it appears to be conceded that as from the date of the adoption of the new DCP (which replaced the DCP considered by Pearlman CJ in the earlier proceedings: vide cl.4 of the new DCP), the Applicant’s proposed development (being the “activity”) is prohibited by virtue of cl.13 of the IDO because the internal road access to that development is not in accordance with the new DCP.
48. However, the Applicant submits that this prohibition is completely overcome by virtue of the existence of the development consent (which pre-dated the adoption of the new DCP) and of the effect, in relation to that development consent, of s.109B of the EP&A Act.
49. Section 109B(1) is in the following terms:
- “Nothing in an environmental planning instrument prohibits, or requires a further development consent to authorise the carrying out of development in accordance with a consent that has been granted and is in force.”
50. Since the development consent was granted on 5 May 1997 ( Para 8 of Statement of Agreed Facts), it is currently in force and in terms of s.99 of the EP&A Act , (as appears from the express terms of the development consent, the relevant lapsing period is two years from that date: see s.99(2)(3) and (4) ).
51. Accordingly, the Applicant submits that by virtue of s.109B of the EP&A Act operating in respect of the development consent, there is no relevant prohibition by or under the EP&A Act in respect of the carrying out of the proposed development in accordance with that development consent.
52. In my opinion, the Applicant’s submission is correct. It is to be noted that the “prohibition” operating by virtue of s.76(3) of the EP&A Act expressly applies “subject to this Act”. Section 109B is obviously a provision which has paramountcy over s.76(3) or put another way, s.109B obviously is a provision to which s.76(3) is itself subject: cf. North Sydney Council v. Michael Standley and Associates Pty Ltd (1998) 97LGERA 433 at 445 per Mason P interpreting s.76(3) in a manner that expressly recognises the prevailing effect thereon, of the exercise of the modification power conferred by s.102 of the Act.
53. It may even be that the mere existence of the development consent is sufficient in itself to displace the prohibition effected by s.76(3) on the basis that the relevant prohibition as ultimately sourced in cl.7 of the new DCP came into force subsequent to the grant of the development consent and thereby cannot derogate from that consent.
54. A further possible displacement of the prohibition contained in s.76(3) may be found in s.106(b) of the EP&A Act.
55. However, despite these realistic alternative sources for displacing the prohibition effected by s.76(3), the position is obviously clearer by virtue of the operation of s.109B of the EP&A Act, which has been exclusively relied upon by the Applicant, and in my opinion, successfully so.
56. Accordingly, for the foregoing reasons, I hold that the proposed activity is not prohibited by or under the EP&A Act provided that it is carried out in accordance with the development consent..
57. It follows from my answers to the earlier questions that there is nothing in the EP&A Act or the LG Act to prevent the exercise of the statutory discretion conferred by s.94 of the LG Act to approve the present application.
58. For all the foregoing reasons, I answer Question 1(c) in the negative.
QUESTION 2
59. Clause 12(1) of the Regulation provides that “in determining an application for approval to erect a building, the council must take the following matters into consideration:
“……….
…………
(i) the means of access generally and particularly the means of access for the purposes of the removal of human waste and other waste.”
60. The counterpart provision previously in force as s.313(1)(i) of the Local Government Act 1919 was interpreted by the Court of Appeal in Cooma-Monaro Shire Council v. Mannering (1986) 7NSWLR 258 to mean “…..every means of access to the building. That includes access external to the particular building site as well as means of access to the building from within the parcel of land” per McHugh JA at 261.
61. Clause 7 of the new DCP obviously deals with the question of access to and within the development site. For this reason, it may properly be regarded as being relevant to the issue of access raised by the Council in the proceedings.
62. It is “relevant” to that issue in the sense defined by s.55(1) of the Evidence Act 1995, namely:
- “The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceedings.”
63. I take it that in the proceedings before the Assessor, the central fact in issue is whether the Council’s proposed condition 885 should be imposed as a condition of approval thereby restricting the destinations of vehicular traffic using the internal access road and thus indirectly restricting traffic volumes on that road.
64. The new DCP is clearly relevant to that issue, if for no other reason that it appears to be the origin, inspiration and justification for the Council’s suggested condition. Indeed, that is its immediate (and perhaps sole) relevance.
65. For completeness, I should add that the quite separate question of the weight to be given to the new DCP, (as relevant evidence), is a matter entirely for the Assessor’s judgment. Obviously, its weight on the issue of “access” within the meaning of cl.12(1)(i) of the Regulation, and in the context of an appeal pursuant to s.176 of the LG Act, is different from the weight it would have in the different context of an appeal pursuant to s.97 of the EP&A Act in respect of a development application to carrying out development as occurred in the earlier proceedings determined by Pearlman CJ. In that latter context, its weight may be conclusive by virtue of the prohibition created by cl.13 of the IDO based upon the new DCP.
66. However, the present context is quite different from that of a planning appeal and the weight to be given to the new DCP is entirely divorced from the prohibitory effect of cl.13 of the IDO. It is so divorced because of the existence of the development consent and the operation in relation to that consent of s.109B of the EP&A Act. However, as I have also earlier held, it is divorced because the statutory regime imposed by Part 1 of Chapter 7 of the LG Act which governs the determination of the pending application is a separate and independent regime from that imposed by Part 4 of the EP&A Act.
67. Subject to the foregoing observations concerning the weight of the evidence, I hold that the new DCP is relevant evidence to the issue of access raised by the Council in the present proceedings.
68. Accordingly, I would answer question 2 in the affirmative.
QUESTION 3
69. My earlier determinations in respect of Question 1(c) and Question (2) have already answered this question. For the reasons given in support of my answers to those questions, I would answer Question 3 in the negative.
D. CONCLUSIONS AND ORDERS
70. For all the foregoing reasons, I make the following orders:
1. My determinations in respect of each of the questions of law, the subject of reference pursuant to s.36(5) of the Land and Environment Court Act 1979 are as follows:
(i) Questions 1(a) and 1(b)— Answer:
These questions need not be determined because they are not relevant to the proceedings.
(ii) Question 1(c)—Answer:
No
(iii) Question 2—Answer:
Yes
(iv) Question 3—Answer:
No
2. My determinations are remitted to the Assessor for decision in accordance with s.36(6)(d) of the Land and Environment Court Act 1979, subject to Order 3.
3. Liberty is reserved to either party to restore the matter to the Assessor on two days’ notice at any time within the next 14 days.
4. Exhibits To remain on Court file.
I HEREBY CERTIFY THAT THIS AND THE PRECEDING 22 PAGES ARE A TRUE AND ACCURATE COPY OF THE REASONS FOR JUDGMENT HEREIN OF HIS HONOUR MR JUSTICE N R BIGNOLD.
Associate
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