Birdon Contracting Pty Ltd v Hawkesbury City Council

[2009] NSWLEC 85

Land and Environment Court

of New South Wales

CITATION:	Birdon Contracting Pty Ltd v Hawkesbury City Council [2009] NSWLEC 85
PARTIES:	APPLICANT Birdon Contracting Pty Ltd RESPONDENT Hawkesbury City Council
FILE NUMBER(S):	11133 of 2008
CORAM:	Pain J
KEY ISSUES:	DEVELOPMENT CONSENT :- preliminary question of fact/law in Class 1 proceedings - whether development consent has lapsed - whether condition of consent requiring approval of statutory body valid - whether jurisdiction in Class 1 matters to determine validity of condition of development consent - onus of proof in preliminary question of law
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 s 91 (repealed), s 95, s 96, Interpretation Act 1987 s 32 Rivers and Foreshores Improvement Act 1948 (repealed)
CASES CITED:	Coalcliff Community Association Inc v Minister for Urban Affairs and Planning (1997) 95 LGERA 114 Davi Developments Pty Ltd v Leichhardt Council [2007] NSWLEC 106 Dillon v Gosford City Council (New South Wales Court of Appeal, Sheller, Handley and Powell JJA, 7 April 1995, unreported) Drummoyne Municipal Council v Lebnan (1974) 131 CLR 350 Fast Buck$ v Dudley Pastoral Co Pty Limited [2001] NSWLEC 183 Hilltop Planners Pty Ltd v Great Lakes Council (2003) 127 LGERA 333 House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498 Hubertus Schuetzenverein Liverpool Rifle Club Ltd v Commonwealth of Australia (1994) 51 FCR 213 Iron Gates Developments Pty Ltd v Richmond-Evans Environmental Society Inc (1992) 81 LGERA 132 Jeblon Pty Ltd v North Sydney Municipal Council (1982) 48 LGRA 113 Kinder Investments Pty Ltd v Sydney City Council (2005) 143 LGERA 237 Loreto Normanhurst Association Inc v Hornsby Shire Council (2002) 122 LGERA 347 Maitland City Council v Anambah Homes Pty Ltd (2005) 64 NSWLR 695 Mison v Randwick Municipal Council (1991) 23 NSWLR 734 Swadling v Sutherland Shire Council (1994) 82 LGERA 431 Westfield Management Ltd v Perpetual Trustee Company Ltd [2005] NSWLEC 510 Woolworths Ltd v Campbells Cash and Carry Pty Ltd (1996) 92 LGERA 244 Zhang v Canterbury City Council (1999) 105 LGERA 18
TEXTS CITED:	Pearson L, Local Government Law in New South Wales, Federation Press, Sydney 1994
DATES OF HEARING:	16 March 2009 17 March 2009 18 March 2009 20 March 2009 24 March 2009 (written subs) 27 March 2009 (written subs)
DATE OF JUDGMENT:	18 June 2009
LEGAL REPRESENTATIVES:	APPLICANT Mr J Webster SC SOLICITORS Russell C Byrnes Solicitor RESPONDENT Mr S Griffiths (solicitor) SOLICITORS Pikes Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

18 June 2009

11133 of 2008 Birdon Consulting Pty Limited v Hawkesbury City Council

JUDGMENT ON PRELIMINARY POINT OF FACT/LAW

1 Her Honour: The Applicant filed an application under s 96 of the Environmental Planning and Assessment Act 1979 (EP&A Act) to modify an existing development consent granted by the Council in December 1996 (DA 0134/95) for use of land at Singleton Road, Colo Heights as a sand quarry. That modification application was refused by the Council on 11 November 2008 and the Applicant filed an appeal under s 96(6) of the EP&A Act in this Court. The only reason given for refusal of the s 96 modification application by the Council was that the development consent for which modification was sought had lapsed because a condition of consent had not been complied with. It is not disputed that the consent has been taken up and the quarrying operation has continued since shortly after the original grant of development consent in 1996.

Preliminary issue raised

2 At the outset the Council raised the following issue of law which the parties agreed should be determined as a preliminary question of mixed fact and law:

The s 96 application cannot be considered due to the development consent for DA 0134/95 having lapsed as through non-compliance with the provisions of condition 4 of the development consent was not legally commenced.

3 The Council argues that the consent lapsed under s 95 of the EP&A Act because condition 4 has not been complied with. Condition 4 provides:

Erosion and sedimentation control drains shall be installed and maintained during construction and ongoing operations. Details shall be submitted and approved by the Department of Land & Water Conservation prior to any works commencing.

4 Section 95 of the EP&A Act provides that:

(1) A development consent lapses 5 years after the date from which it operates.

(2) However, a consent authority may reduce that period of 5 years in granting development consent. This subsection does not apply to development consent granted to a staged development application under Division 2A for development that requires a subsequent development application and consent.
…

5 If the consent has lapsed that would take effect under s 95(2) of the EP&A Act from two years after the date of consent as the development consent was granted in 1996 for a period of two years (condition 3). There was no dispute that based on the principles in Iron Gates Developments Pty Ltd v Richmond-Evans Environmental Society Inc (1992) 81 LGERA 132 and Coalcliff Community Association Inc v Minister for Urban Affairs and Planning (1997) 95 LGERA 114 that work undertaken that was not in accordance with the consent is not legally authorised.

6 The parties’ arguments evolved over the three hearing days. As expressed by me during the hearing this is an unusual matter to consider in the context of a preliminary question of fact and law in Class 1 proceedings. The issues raised would have been more appropriately dealt with in Class 4 proceedings where issues concerning the exercise of discretion of the Court whether to issue any relief, if there was a finding that the consent had lapsed, could be considered. The parties agreed that it was not open to me to consider discretionary issues given that I am simply making a finding on a question of mixed fact and law (albeit with significant implications for the Applicant which has been operating for over 12 years and continues to operate under the 1996 consent). The Applicant’s submissions in opening raising the exercise of the Court’s discretion were not pressed in closing submissions.

7 The Council generally maintained its argument that the consent had lapsed because the second sentence of condition 4 had not been complied with. No approval from Department of Land and Water Conservation (DLWC) had been provided for details of erosion and sediment control before work commenced. The Applicant’s final case was based on two submissions. Firstly, that the second sentence of condition 4 was invalid and could not have been imposed under the EP&A Act. Secondly, condition 4 had been complied with. If the first submission is correct the issue of lapsing does not arise because the failure to comply alleged by the Council related only to the second sentence, that the Applicant did not provide details to DLWC prior to works commencing. The Council argued that the validity of a condition of consent could not be raised in Class 1 proceedings. Reflecting the change in the issues raised during the hearing, amended questions of law were filed at the end of the hearing as follows:

Issue I: Validity of the second sentence of condition 4, given the now repealed s 91(3A) of the EP&A Act

(a) Is the second sentence of condition 4 invalid at law in that it imposes an obligation of providing an “approval” from a statutory authority that has no power to grant such an approval?

(b) Alternatively, on the proper interpretation of the conditions to the consent DA0134/95 and in particular condition 4 therein, is the second sentence of condition 4 incapable of compliance due to the lack of power in the statutory authority to grant such an approval?

Issue II: Can issue I be raised?

(a) For the purposes of these proceedings is it permissible to question the validity of the second sentence of condition 4 now in Class 1 proceedings?

(b) If the answer to (a) is in the affirmative does this conclusion mean that the consent did not as a matter of law require compliance with the second sentence of condition 4?

Issue III: Whether actual compliance with the second sentence of condition 4
On the proper interpretation of the conditions to the consent DA0134/95 and in particular condition 4 therein, has there in fact been compliance with condition 4?

8 In order to resolve Issue III a number of factual findings need to be made. The documentary evidence relied on by both parties was contained in two volumes of an agreed bundle of documents prepared from the Council’s files and the files of DLWC. Affidavit evidence was also relied on by both parties. That is detailed later in the judgment.

Issue II: can the second sentence of condition 4 be challenged in these Class 1 proceedings ?

9 Although the questions provided by the parties identified Issue II after Issue I, it is most logical to answer Issue II first because it raises the fundamental question of whether Issue I can be considered at all in the context of these Class 1 proceedings. I therefore propose to consider Issue II first.

Council’s submissions

10 The Council argued that no challenge to the invalidity of the second sentence of condition 4 is available in this Class 1 appeal. The Applicant is essentially asking the Court to “sever” the second sentence by saying it should be ignored. This is not open to the Applicant in Class 1 proceedings, per Talbot J in Swadling v Sutherland Shire Council (1994) 82 LGERA 431 at 436. See also Hilltop Planners Pty Ltd v Great Lakes Council (2003) 127 LGERA 333 at 344.

Applicant’s submissions

11 A challenge to the invalidity of part of the consent based on s 32 of the Interpretation Act 1987 is open. The authorities relied on by the Respondent concern the complete invalidity of a consent. Swadling did not have to consider if the original condition of consent was invalid but rather whether the council had power to vary a consent by removing a condition which there was no power under the Act to impose. Hilltop considered a different condition to that in this case as the condition itself stated that it lapsed in certain circumstances. It is not necessary to sever the second sentence of condition 4 in order to determine this issue. Further support for this approach is found in Westfield Management Ltd v Perpetual Trustee Company Ltd [2005] NSWLEC 510.

Finding on issue II

12 The Applicant has relied on s 32 of the Interpretation Act to argue the invalidity of the condition of consent in issue can be raised in these proceedings. Section 32 states that an instrument must be construed as operating to the full extent of but not so as to exceed the power conferred by an Act under which it is made. Section 32 on its own does not provide any basis for raising invalidity of a condition of consent in these proceedings. It is a rule of construction to be applied in the interpretation of an instrument. It is therefore necessary to consider the cases referred to by the parties as this matter has been considered on several occasions in this Court and also in the Court of Appeal.

13 In Swadling Class 4 proceedings were commenced challenging the power of the council to determine an application for modification of development consent (involving the removal of a condition) while an objector to the initial grant of consent was before the Court in Class 1 proceedings appealing the decision of the council to grant the consent. Talbot J held that ordinarily a council could consider the modification application despite the Class 1 proceedings being on foot. However in considering the modification application the council had to assume that there was a valid grant of consent in deciding whether a modification should be allowed. It was not for the council to decide if the condition which was the basis of the applicant’s modification application had been invalidly imposed. That required a finding of invalidity by the Court. His Honour held that the determination of the modification application by the council was invalid.

14 In Hilltop an application was made to the council to extend the time before a development consent for a tourist caravan park would lapse. The request was acceded to and a modification of the consent was made to allow for staged development and thereby preventing lapsing of the consent. The applicant sought an amendment of the modified consent to allow further time to carry out the development which the council refused on the grounds that the consent had lapsed. In appealing the council’s refusal in Class 1 proceedings the applicant argued the condition imposed after the first request to the council was invalid. Talbot J found that the condition for staged development was beyond the power of the council because the provisions for lapsing were within the EP&A Act and the council could not vary the application of these provisions. However, notwithstanding this finding, Talbot J stated that while the condition remained as part of the consent it did have the legal effect claimed by the council because no declaration of invalidity of the condition could be made in the Class 1 proceedings. The Court was therefore bound to accept that the consent had lapsed as provided for in the staged development condition and therefore no modification of it was possible.

15 In Maitland City Council v Anambah Homes Pty Ltd (2005) 64 NSWLR 695 Tobias JA (Spigelman CJ and Ipp JA agreeing on this issue) recognised at [94] that a challenge to the validity of a condition of consent in a Class 1 appeal against the grant of that conditional consent was only made possible by the existence of concurrent Class 4 proceedings which gave the Court power to make a declaration of invalidity of the condition.

16 All three cases suggest that the Council’s argument is correct, namely that it is not open in these Class 1 proceedings to seek to have a condition of development consent or part thereof declared invalid. That can only occur in Class 4 proceedings and there are none on foot. The bases on which the Applicant sought to distinguish Swadling and Hilltop because of their different facts are not relevant. The Applicant also relied on Westfield as supportive of its argument. That case however was also a Class 4 proceeding which included a cross-claim seeking orders that the conditions of development consent were invalid. It is not authority that such arguments can be raised in Class 1 proceedings.

17 The general principle that the validity of a condition of development consent cannot be challenged in Class 1 proceedings applies in this matter. Accordingly, it is not open to the Applicant to raise Issue I concerning the validity of the second sentence of condition 4 in these proceedings.

Issue I – validity of the second sentence of condition 4

18 I will make some preliminary findings in relation to Issue I as I heard argument on this matter, although my finding above on Issue II means that Issue I does not strictly arise. When development consent was granted by the Council in December 1996 the provision providing the basis for the imposition of development consent conditions was s 91 of the EP&A Act. Section 91(3A) (since amended) then relevantly provided:

A consent may be granted subject to a condition that a specified aspect of the development that is ancillary to the core purpose of the development is to be carried out to the satisfaction, determined in accordance with the regulations, of the consent authority or a person specified by the consent authority.

19 The second sentence of condition 4 provides that details of the sedimentation control drains and erosion works must be submitted to and approved by DLWC prior to works commencing.

Applicant’s submissions

20 The Applicant argued the second sentence was invalid because there was no statutory power under the EP&A Act as then in place which enabled a consent condition to require approval of another department as a condition of consent. Where the condition is not expressed to be to the “satisfaction” of a person specified by the consent authority as referred to in s 91(3A), then the condition of consent cannot be effective, particularly where the condition is expressed in terms of an “approval” as opposed to satisfaction. This condition is to be contrasted with the condition upheld in Fast Buck$ v Dudley Pastoral Co Pty Limited [2001] NSWLEC 183 which only required a report addressing land contamination to be submitted by an expert. Even if the second sentence was valid in terms of the Council’s power to impose it, there was no power vested in the relevant department to grant such an approval. That is clear from the oral evidence of Mr El-Chamy (set out below at par 43-45) as to the role of DLWC.

Council’s submissions

21 The Council argued that s 91(3A) provided sufficiently broad powers to impose development consent conditions such as the second sentence of condition 4. It related to an impact of the development as it concerned erosion and sedimentation control devices which are ancillary to the purpose of sandmining, see Pearson L, Local Government Law in New South Wales, Federation Press, Sydney 1994 at 219.

22 It does not matter that DLWC did not have formal statutory approval power under the legislation it administered because the power to impose the second sentence of condition 4 was available by virtue of s 91(3A) of the EP&A Act. The word approval has a broad meaning including that it “be carried out to the satisfaction” of a particular body as per s 91(3A). The Macquarie Dictionary definition of “approval” is broad and this common sense meaning can be applied in the condition to give it effect.

Finding

23 I consider as a preliminary finding that the Council’s submissions on this issue are correct so that it was open to the Council to impose the second sentence of condition 4 in the terms expressed. As suggested by Pearson at 219, Mison v Randwick Municipal Council (1991) 23 NSWLR 734 requires that issues fundamental to the development must be determined at the time consent was granted. Issues that are ancillary to the core purpose of the development which will not result in significantly different development could be the basis of a development consent condition under s 91(3A). It is clear from the evidence of Mr El-Chamy that DLWC did not have statutory approval power under the legislation it administered. The Council was not prevented from imposing such a condition by whether DLWC had a statutory responsibility to provide a formal approval under the legislation that department administered. Approval has a broad meaning and that can encompass satisfaction of a person specified by the Council as referred to in s 91(3A).

Issue III: whether compliance with condition 4

24 The affidavit and oral evidence in the proceedings largely concerned the issue of whether the second sentence of condition 4 was in fact complied with by the Applicant. The issue firstly arises of which party bears the onus of proof on this issue. The Council argued that the Applicant has the onus of proving that the consent was complied with and had not lapsed. It commenced these Class 1 proceedings because it does not accept the Council’s view that the consent has lapsed and bears the onus of establishing that the consent has been complied with. The Applicant argued that the Council had the onus of proving on the civil standard that the development consent had lapsed, by analogy with existing use rights cases such as Jeblon Pty Ltd v North Sydney Municipal Council (1982) 48 LGRA 113 per Cripps J at 118.

25 Who bears the onus is not immediately obvious given that these are Class 1 proceedings concerning a s 96 modification application in which the only issue raised by the Council is a question of mixed fact and law of whether the Applicant’s development consent has lapsed. To answer that question does require that the Court determine which facts apply to the question of whether the consent has lapsed and it is usual that an onus of proof would apply in these circumstances. The preliminary issue arises separately from any merit consideration.

26 Jeblon was the only case referred to on this issue by either party. In Jeblon a Class 1 appeal was commenced after the deemed refusal of a development application which sought the council’s consent to change the existing use of a site from a hairdresser’s salon to a coffee shop. Objectors to the proposed development filed Class 4 proceedings seeking a declaration that the council had no power to grant the consent to the change of use because the existing use on which the applicant for development relied had been abandoned. Cripps J stated at 118 that it was a question of fact as to whether the existing use had been abandoned and that the onus of asserting an abandonment lies on the person who asserts it. The Class 1 and Class 4 proceedings were heard together. It was held, inter alia, that the use had not been abandoned and the development application was granted subject to conditions.

27 If this issue was considered in Class 4 proceedings (which I consider would be more appropriate) seeking a declaration that the consent had lapsed, the onus would arguably fall on the Council to establish that the development consent had lapsed, per Gibbs J in Drummoyne Municipal Council v Lebnan (1974) 131 CLR 350 at 360. Where the onus lies will depend on the particular circumstances before the Court as identified by by Sheller JA (Handley JA concurring, Powell JA not considering this issue) in Dillon v Gosford City Council (New South Wales Court of Appeal, Sheller, Handley and Powell JJA, 7 April 1995, unreported) where it was held the appellant in that case had the onus of establishing that work had commenced. That case was an appeal from this Court in Class 4 civil enforcement proceedings seeking a declaration that the appellant had carried out development without the respondent’s consent on the basis that the consent on which the appellant relied had lapsed. The approach in Class 4 proceedings can inform the issue of where the onus lies in preliminary issues of law raised in these Class 1 proceedings. It may not always be the case that the applicant in Class 1 proceedings has the onus of proof in relation to a preliminary question of law depending on the issues raised. There do not appear to be many cases where this issue has been considered.

28 One case is Davi Developments Pty Ltd v Leichhardt Council [2007] NSWLEC 106, a Class 1 appeal against the deemed refusal of a modification application. A preliminary question of law of whether the consent which was sought to be modified had been substantially commenced arose, inter alia. In relation to the onus of proof on that issue, Talbot J stated at [32]:

The rules of evidence do not apply in Class 1 proceedings but where the court is moved to determine legal issues in accordance with proved facts then it is appropriate to adopt the customary standards of proof applicable in civil proceedings. The applicant has the onus to prove its case.

29 Unlike the circumstances in Davi where Talbot J held the applicant had the onus of establishing that a consent had been substantially commenced, a matter particularly within the knowledge of the applicant, the circumstances here suggest that the Council has the onus of establishing that the consent has lapsed. As identified in Kinder Investments Pty Ltd v Sydney City Council (2005) 143 LGERA 237, the lapsing of a development consent gives rise to a major concern for the holder of a consent, it being a valuable right which runs with the land. The holder of a consent would generally consider that it was entitled to rely on a development consent once granted. The issue of lapsing arises in Class 1 proceedings commenced by the Applicant appealing the refusal of a s 96 modification application, the sole reason for refusal by the Council being that the consent has lapsed. But for that resolution to refuse of the Council the Applicant would have been entitled to rely on the development consent. I consider that the Council bears the onus of establishing on the balance of probabilities that the consent has lapsed. There is some analogy to be drawn with the circumstances in Jeblon to support the view that the Council bears the onus of proof.

30 Both parties have adduced evidence on the issue of whether condition 4 has been complied with. The Applicant’s evidence concerns its efforts to comply with the condition and the Council’s seeks to demonstrate that there is no evidence of compliance to be found in the DLWC files.

Applicant’s affidavit evidence

31 An affidavit of Thomas Bruce sworn 12 February 2009 was read for the Applicant. Mr Bruce is the director of the Applicant and had responsibility for the development application in 1995. Mr Bruce states that David Wilson of Port Stephen’s Design Services acted on behalf of the Applicant to prepare the development application and an erosion and sediment control plan (hereinafter the ESCP but labelled as the “Rehabilitation Plan” on the plan filed with the Council). Mr Bruce received a copy of a letter dated 15 December 1995 from Mr El-Chamy addressed to the Council after an inspection of the site by DLWC which raised a number of issues. In response to this letter, Mr Wilson produced a modified set of three plans including the ESCP in April 1996. These plans were lodged with DLWC and the Council. This was the final plan existing at 10 December 2006 when approval of the development was given and then implemented by the Applicant.

32 At the mediation on 4 December 1996 Mr Bruce asked Greg Brady of DLWC for a contact number. These were written on the front of Mr Bruce’s copy of the environmental impact study (EIS). In early 1997 Mr Bruce phoned the number and was told Mr Brady was away. There was a subsequent phone call from a person from DLWC who Mr Bruce recalls saying was from another area office and that he would meet Mr Bruce at the site. The officer attended the site and Mr Bruce attests that he appeared to be in his thirties and had told Mr Bruce he was not from the Penrith office of DLWC. Mr Bruce told the officer that someone needed to approve the erosion and sediment control plan (the ESCP). Mr Bruce showed the officer the plans and walked around the site. The officer told Mr Bruce that the drains on the eastern side should be wider and that the drains on the eastern and northern sides needed to be battered. Mr Bruce decided to refer to Mr Pye at the Council as to whether the large saplings should be removed.

33 In April 2007 when replying to Council correspondence, Mr Bruce initially believed that it was Mr Brady who attended the site. By June 2007 Mr Bruce believed he had made a mistake in nominating Mr Brady. Subsequently he found out that he had met Mr Brady at the mediation. After conversations with Ray Bygraves and Steven Skarstrom, both employees, Mr Bruce recalled that it was another officer who attended on site in early 1997 and not Mr Brady. Council was told of this mistake in a letter on 22 October 2007. The letter attached a signed statutory declaration of Mr Bruce concerning the events in 1996 and early 1997.

34 Mr Bruce recalls Mr Pye from the Council coming to the site in early 1997 after the DLWC officer’s visit. Mr Bruce told Mr Pye about the recommendations of the officer. Mr Pye agreed that the eastern side should be battered but expressed concerns about the northern side because of the saplings present. Mr Pye came back on another visit with Colin Hamilton, introduced as a flora and fauna officer of the Council, who agreed that the saplings should stay. Mr Pye sent Mr Bruce a follow-up letter dated 22 April 1997. Further inspections by Mr Pye occurred in May and June 1997. He stated that he was satisfied with the work done to the drains and that there was compliance with condition 4. A letter received by Mr Bruce dated 30 June 1997 from Mr Pye raised the issue of conditions not yet complied with but did not refer to condition 4. Compliance with condition 4 was never raised as an issue again in the Council’s correspondence with Mr Bruce until the consideration of the s 96 modification application in 2007. Mr Bruce also attests that the Environmental Protection Authority (EPA), DLWC, the Council and the Applicant have had numerous site meetings since 1998 and always appeared to be satisfied with the drainage system.

35 Mr Bruce gave oral evidence in chief that he was never advised of a letter from Mr El-Chamy of DLWC to the Council dated 15 July 1996 which raised concerns in relation the erosion and sediment control plan (the ESCP). He was never asked to change the plans produced in April 1996. In cross-examination Mr Bruce stated that he believed he was not at the site when Mr Brady attended in March 1997 and he became aware of the letter written by Mr Brady to the Council only prior to this hearing. He stated that in 1997 visitors to the site did not have to sign a visitor’s book. Mr Brady said that he had seen the Council’s report when he attended the Committee meeting and had read the conditions of consent when it was granted. He had phoned DLWC after the consent was granted because he thought they were required to visit the site as a condition of consent.

36 An affidavit of Steven Skarstrom sworn 12 February 2009 was read. Mr Skarstrom is employed by the Applicant as a plant operator and has worked at the site for 26 years. Mr Skarstrom recalls in his affidavit that after the development application was approved a plan entitled “Erosion and Sedimentation Plan” was affixed to a wall in the site office. Shortly after this plan was affixed to the wall, a man attended the site looking for Mr Bruce. He stated that he was from the Water Department, had an appointment with Mr Bruce and was there to inspect the site for the first time. Mr Skarstrom walked him around the site and showed him the diversion drains and dredge pond. When Mr Bruce arrived the man asked if he had any plans with him. Mr Bruce took the man toward the office. Mr Skarstrom attests that the man was around 40, just under six feet tall and clean-shaven. Mr Skarstrom states that work on the drains occurred over the next few months.

Mr Pye

37 An affidavit of John Pye sworn 12 February 2009 was read. Mr Pye was a development control officer for the Council between February 1994 and 2005. Mr Pye attests that his duties included checking compliance with the conditions of development consent obtained by the Applicant. Mr Pye recalls the plans which were submitted with the development application and that drains on the eastern and northern sides of the site had already been created. Mr Pye attended the site on a fairly regular basis throughout 1997 to check compliance with the conditions. Mr Pye attests that prior to 22 April 1997 he had inspected the site with Colin Hamilton, a tree preservation officer, who had advised him that the saplings and trees should not be removed from the embankments of the drains. Mr Pye recalls meeting Mr Bruce at the site in early 1997. Mr Bruce told him that an officer from DLWC had inspected the site and had made suggestions that Mr Bruce should discuss with Mr Pye. The officer had told Mr Bruce to batter all of the drains and increase their size and width on the eastern side. Mr Pye told Mr Bruce that he should not remove trees from the embankment on the northern side.

38 Shortly afterwards Mr Pye attended the site again with Mr Hamilton to inspect the saplings on the northern side. Mr Pye decided to direct Mr Bruce not to batter the drain on that side as this would require taking out the trees and also would have extended the quarry area outside of the area of stage one of the development consent. Mr Pye also directed Mr Bruce to place sandstone rock within the drainage to form weirs. As a result of these discussions Mr Pye sent a letter to Mr Bruce dated 22 April 1997 confirming his instructions in relation to the drainage issues. At this stage Mr Pye was satisfied that modification works to the drainage that Mr Pye had directed Mr Bruce to carry out were in satisfaction of condition 4. Widening of drainage on the eastern side had also been carried out. In a letter to Mr Bruce dated 30 June 1997 Mr Pye was satisfied that condition 4 had been complied with. Mr Pye visited the site after this and directed the manager of the site to take further measures to prevent sedimentation entering a swamp area.

39 Mr Pye gave evidence in chief. He stated that he went to the site several times to see if the Applicant was complying with the conditions of development consent. He has not been contacted since he left the Council in 2008 about condition 4. He recalled having a discussion on site about what should happen with the erosion and sediment control plan (the ESCP). He stated that he felt sorry for DLWC because they had no power in relation to this development to approve conditions relating to soil control as no issue arose relating to permits under Part 3A of the Rivers and Foreshores Improvement Act 1948 (repealed). Mr Pye did not expect any approval to be given by DLWC. He wrote letters dated 22 April and 30 June 2007 to Mr Bruce, the latter requiring sandstone rocks to be obtained to reduce velocity flow in a weir. Mr Pye stated that after the rocks were in place he became satisfied that there was full compliance with the first part of condition 4.

40 In cross-examination Mr Pye stated there were many instances of DLWC advising Council on soil matters and giving responses and recommendations in relation to development applications before Council. He accepted that Mr Bruce had a discussion with an unidentified officer of DLWC. He did not necessarily accept that the proposed changes were what DLWC proposed because he was not happy with the suggested changes which concerned the removal of a number of trees outside the development site. Mr Pye did not believe it was necessary to telephone DLWC as the recommendations made were outside the channel in an area which the Council controlled under its tree preservation order. The EIS contained details of the erosion and sediment control plan (the ESCP) and he understood a mediation was held and some changes made but he knew that DLWC could not issue an approval. Mr Pye stated that he had never seen the letter from Mr El-Chamy dated 15 July 1996 to the Council critiquing the erosion and sediment control plan (the ESCP) provided by the Applicant in April 1996.

41 An affidavit of Colin Hamilton sworn 12 February 2009 was read. Mr Hamilton was a development control officer for the Council from about 1990 until 1999. Mr Hamilton recalled visiting the site on approximately 12 occasions usually accompanied by Mr Pye. He attended the site once with Mr Pye to identify any flora and fauna which could be endangered by the operation of the quarry. On other occasions he inspected the bypass drains and recalled saplings growing in part of the drainage system. Mr Hamilton recalls stating that they should be retained. On that visit Mr Hamilton recalls Mr Pye requesting the sandstone weir arrangement. Mr Hamilton recalls speaking with Mr El-Chamy and Mr Parvarn from DLWC around this time.

42 Mr Brady of CALM (previously DLWC) was subpoenaed to attend to give oral evidence by the Applicant. He had no separate recollection of matters apart from reviewing the departmental file including the letter he sent to the Council in March 1997. He did recall a site visit on 3 March 1997 and attending the mediation the year before. He could not otherwise provide any details of the mediation. He confirmed he was on holidays from 14 December 1996 to 28 January 1997.

Respondent’s affidavit evidence

43 An affidavit of Mr El-Chamy affirmed 16 March 2009 was read. Mr El-Chamy has been an employee of the Department of Water and Energy and its predecessors since January 1991. As an officer of the DLWC Mr El-Chamy responded to the EIS lodged by the Applicant. He attaches a letter from the Soil Conservation Service prepared 1 May 1995 relating to the development application. Mr El-Chamy attests that plans were sent to DLWC from the Council in June 1996. Mr El-Chamy states that if these were the plans referred to in Mr Bruce’s affidavit as the “final plans” then these plans were not considered satisfactory by Mr El-Chamy at the time. Mr El-Chamy raised issues with the Council in relation to the erosion and soil control plan (the ESCP) in a letter dated 15 July 1996. He was not aware of any subsequent amendments to that plan. The Department was invited by the Council to a mediation in December 1996 in relation to the development application. Mr El-Chamy directed Greg Brady to attend.

44 Mr El-Chamy attests that had DLWC agreed with the erosion and sediment control plan (the ESCP), it would have done so by either writing to the Applicant or the Council. During a search in 2007 Mr El-Chamy found no erosion and sediment control plans relating to the site which had been submitted and approved. In oral evidence he stated that this paragraph of his affidavit was not referring to the second sentence of condition 4 but arose from the advisory role of DLWC.

45 A letter was signed by an officer Brian Graham on behalf of Mr El-Chamy dated 25 June 2007 which stated that DLWC did not raise any significant concerns with Council about the erosion and sediment control plan (the ESCP). Mr El-Chamy attests that had he written the letter himself he would not have included this sentence. In a further search of files at DLWC’s Penrith office Mr El-Chamy found an undated letter from Mr Brady to the Council referring to a site inspection carried out by Mr Brady on 3 March 1997 and a reply from the Council dated 27 March 1997. Mr El-Chamy attests in response to Mr Bruce’s evidence that an unidentified DLWC officer attended in January or early February 1997 that it is unlikely an officer from a different office of DLWC would have attended the site.

46 Mr El-Chamy identified a plan produced in evidence as the erosion and sediment control plan (the ESCP) dated April 1996 which included his handwritten comments critiquing some of the controls.

47 Mr El-Chamy was cross-examined. He considered DLWC had a role in advising councils and reviewing plans. DLWC regularly commented in writing on development applications. Mr El-Chamy stated that DLWC had no statutory approval authority and had never written a letter concerning any development application stating that a condition of consent had been complied with. Mr El-Chamy stated that between 1997 and 2008 DLWC continued to correspond with the Council about the Tinda Creek development but Mr El-Chamy could not recall having been on site during this time.

Chronology

48 A chronology based on the above affidavit material follows:

(i) The Applicant lodged a development application for use of the site as a sand quarry on 12 June 1995.

(ii) A site inspection occurred on 12 December 1995 with the Applicant, the Council and two representatives of DLWC.

(iii) On 15 December 1995 Mr El-Chamy responded to a request by Council to comment on the Applicant’s EIS. Mr El-Chamy identified problems with the erosion and sediment control proposals in the EIS prepared as part of the development application. The letter stated that new plans should be prepared according to criteria specified in the letter. The Applicant did receive that letter.

(iv) On 29 April 1996 Port Stephens Design Service wrote to the Council on behalf of the Applicant stating that the ESCP, inter alia, had been completed and that a meeting was to be held on 2 May 1996 with CALM.

(v) Three plans prepared by Port Stephens Design Service including the ESCP on the Applicant’s behalf were submitted to the Council on 10 May 1996.

(vi) In a letter of 15 July 1996 to the Council Mr El-Chamy responded to the Applicant’s development application. Mr El-Chamy provided a critique of the ESCP prepared in April 1996. This included that the sediment basin had to be designed for the specific site, that specific types of revegetation were required and that the plan be amended to reflect the seeding and fertilising of the diversion channel. The Applicant’s evidence is that a copy of this letter was not received from the Council.

(vii) On 26 November 1996 the comments of DLWC were reported to a Committee of Council in an assessment report presented to Council. At the meeting the Council Committee referred the matter to mediation after formulating a draft set of conditions for development consent. Some of the conditions proposed in response to the July DLWC letter were deleted at this Committee meeting.

(viii) A mediation meeting was held on 4 December 1996. Attendees included Mr Brady as a representative of DLWC, Mr Bruce and council officers. An agreement was reached that condition 4 of the Council’s proposed consent be amended to include a requirement that details shall be submitted and approved by DLWC prior to any works proceeding.

(ix) On 10 December 1996 development consent was granted by the Council subject to conditions.

(x) In January or early February 1997 Mr Bruce, the director of the Applicant, contacted DLWC to organise a site inspection. An unidentified officer subsequently attended the site.

(xi) On 3 March 1997 Greg Brady, an officer of DLWC, visited the site. An undated follow-up letter was sent by Mr Brady to the Council sometime after that visit. Mr Bruce was unaware of this site visit by Mr Brady at that time.

(xii) On 27 March 1997 the Council responded to Mr Brady’s letter and stated that an inspection of the site had occurred and issues regarding compliance with the conditions of development consent had been raised with the Applicant.

(xiii) On 22 April 1997 Mr Pye from the Council inspected the site. Mr Bruce informed him that an officer of CALM had visited and proposed changes in order to comply with the conditions of development consent.

(xiv) Mr Pye sent a letter dated 22 April 1997 to Mr Bruce after the site inspection setting out changes he understood the Applicant was required to make. Mr Pye sent a further letter dated 30 June 1997 to the Applicant regarding compliance with the conditions of development consent.

(xv) By letter of 25 June 2007 Mr Graham on behalf of Mr El-Chamy advised the Council that it had issued no formal approval for the ESCP because it had no jurisdiction to do so under the Rivers and Foreshores Improvement Act (1948). A further letter dated 17 September 2007 from Mr El-Chamy stated that he had reviewed plans dated December 1995 and July 1996 there was no indication that DLWC received details as required by condition 4 subsequent to the consent determination.

(xvi) On 11 November 2008 the Applicant’s s 96 modification application was refused by Council due to non-compliance with condition 4 with the consequence that the consent has lapsed.

Council’s submissions

49 The Council argued that the second sentence of condition 4 had not been complied with. The Council relies on the conditions of development consent and the affidavit of Mr El-Chamy that no approval referred to in condition 4 has been issued by DLWC.

50 The condition is clear on its face that details of erosion and sediment controls beyond those referred to in the April 1996 plan approved in condition 1 were required to be provided to DLWC before work commenced. To find otherwise leaves the second sentence of condition 4 with no work to do. It was up to the Applicant to comply with the conditions of consent. While Mr Bruce states in his affidavit and in cross-examination that he knew he had to talk to DLWC and get them to come out and approve the ESCP, he failed to explain why it did not occur to him that he had to provide additional detail to secure approval of DLWC.

51 In relation to the evidence of Mr Bruce of an unidentified officer from DLWC attending to give vague advice without a clear understanding of why he was there or whether he was aware of condition 4, this is not approval within the meaning of condition 4. He did not say that he was there to give approval. There is no evidence that he had any authority to attend at the site. He did not have any plans with him and there is no evidence that he was aware of condition 4. There is doubt whether the meeting did occur as stated by Mr Bruce given the lack of any documentation of the meeting on DLWC files as attested to by Mr El-Chamy. Mr El-Chamy states that he was in charge and that the usual practice of DLWC is that written advice of satisfaction would be provided. Mr El-Chamy has checked the departmental records and can find no record of anyone from DLWC attending the site in early 1997 apart from Mr Brady’s visit in March 1997.

52 The letter sent by Mr Brady which was received by the Council on 24 March 1997 and refers to the plan does not suggest that there was any kind of approval.

Applicant’s submissions

53 The whole of the condition has to be read and construed on its face as it travels with the land and is not personal to the Applicant, House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498 per Mason P at [37]. No extrinsic evidence can be relied on in the absence of any express or implied incorporation of any document into the consent.

54 There is no indication in the consent of what is meant by details or that these are beyond what is contained in the April 1996 plans approved by the Council in condition 1. The letter dated 15 July 1996 from DLWC (Mr El-Chamy) is inferred to be the “detail” to be produced by the Applicant in order to satisfy condition 4. That letter is not referred to explicitly or by implication in the conditions of consent and cannot be relevant to the construction of the consent condition. There is no evidence that Mr Bruce was sent the letter by the Council and his evidence is that he was unaware of it.

55 The minutes of the Council meeting held on 26 November 1996 demonstrate that the Council amended the conditions proposed by DLWC in the July 1996 letter in any event. Further, Mr El-Chamy’s oral evidence is that what he says in par 12 of his affidavit (that approval of the ESCP would have been in writing) was not relevant to condition 4 of the development consent because DLWC is not able to give approval under the legislation it administered for this type of activity.

56 The Applicant argues that there has been actual compliance with condition 4 because Mr Bruce’s evidence establishes that an officer of DLWC came out in January or early February 1997 following his telephone call to DLWC. The officer was shown the ESCP approved in the development consent and shown around the site. He made some suggested changes. His attendance is confirmed by Mr Skarstrom who was there. It is also confirmed by later correspondence and the evidence of Mr Pye as to what Mr Bruce told him and by the actions of Mr Pye and Mr Hamilton. It is also confirmed by the letter from Mr Brady of DLWC to the Council after his site visit on 3 March 1997. It refers to there being no erosion controls in place in accordance with the ESCP. There is no suggestion that a further plan is required. The proper means of complying with condition 4 is confirmed by this letter. Mr Pye stated condition 4 had been complied with by 30 June 1997.

Finding on issue 3

57 Before considering the evidence in relation to the factual issue of whether there has been compliance, it is necessary to construe the consent to determine what the second sentence of condition 4 required to be done. As submitted by the Applicant, a development consent must be construed according to its terms, per Mason P in House of Peace at [37]. Additional documents will only be considered as part of the consent where these are referred to within the consent, see Hubertus Schuetzenverein Liverpool Rifle Club Ltd v Commonwealth of Australia (1994) 51 FCR 213 per Wilcox J at 222 and Woolworths Ltd v Campbells Cash and Carry Pty Ltd (1996) 92 LGERA 244 per Sheller JA at 249 referred to in, inter alia, Loreto Normanhurst Association Inc v Hornsby Shire Council (2002) 122 LGERA 347 at [21]. As the development consent travels with the land in rem, anyone who own the land can utilise the consent. As Mason P stated at [41] in House of Peace:

The enduring nature of a development consent encourages a fair but liberal reading of the rights it confers upon a landowner who may spend considerable money in acting upon it and who is likely to wish to sell the land sooner or later.

58 The letter dated 15 July 1996 from Mr El-Chamy of DLWC which identifies additional matters that DLWC considered required attention is not incorporated as part of the consent either expressly or by implication.

59 The Council’s submissions initially appeared to rely on that letter as being the details which Mr Bruce had to provide but that is not the correct approach to the construction of the consent. In any event, the final contention advanced by the Council’s solicitor in closing submissions was that condition 4 on its face imposed an obligation on the Applicant to provide an amended plan to DLWC for its approval. If not read that way the second sentence of condition 4 had no work to do. The second sentence of condition 4 does not state that amendment of the April 1996 plans, including the ESCP, approved in condition 1 is required. It is not therefore apparent that the second sentence of condition 4, even if read in light of condition 1, requires an additional plan to be prepared. Consequently how the condition is complied with in terms of the provision of details of erosion and sediment control drains to DLWC is undefined. There is no requirement that the plan approved in condition 1 being the April 1996 ESCP (entitled “Rehabilitation Plan” on the copy filed with the Council) had to be amended in order to comply with the second sentence of condition 4.

60 Also as submitted by the Applicant, there is no specific requirement in the condition that DLWC approval be in writing, although such a practice would appear desirable in the interests of certainty, so that oral approval would be sufficient.

61 Taking into account the largely undefined obligation of the Applicant to obtain approval for details of DLWC in the second sentence of condition 4, and that approval has a broad meaning of the satisfaction of DLWC (per Issue I par 23), that the factual issue then arises of whether there has been compliance with that condition. The evidence has identified in some detail (as set out in the chronology above) the steps taken by the Applicant and the Council in relation to the lodgement of the development application in June 1995, the Council seeking advice from DLWC which was received in a letter dated 15 December 1995 and the Applicant being provided with that letter, the lodging of three plans including the ESCP in April 1996, further advice to the Council dated 15 July 1996 from DLWC which was not copied to the Applicant, a mediation on 4 December 1996 which an officer of DLWC attended and the grant of development consent subject to conditions on 10 December 1996. As identified above (par 53) the consent granted has to be determined by its terms so that the history of the matter has a negligible role to play in that interpretation. The contents of the Council’s file including the 15 July 1996 letter from DLWC, and the suggestion in cross-examination of Mr Bruce that he should have been aware of that, does not inform what condition 4 required the Applicant to do.

62 The Applicant’s case is that it complied with the condition. The relevant details referred to in the second sentence of condition 4 were contained in the ESCP. The visit to the premises of an unidentified DLWC officer in January or early February 1997 conferred the relevant approval from DLWC to satisfy the condition. The evidence of Mr Bruce, Mr Skarstrom and the later actions of Mr Pye and Mr Hamilton is consistent in establishing that an unnamed officer from DLWC came out and inspected the premises in early 1997. I accept the evidence of Mr Bruce that the unidentified officer from DLWC attended the premises. His credit is not undermined by the fact that he first identified the officer as Mr Brady and later realised he was mistaken and advised Council of this in his letter and statutory declaration dated 22 October 2007. That Mr Brady of DLWC came out to the premises in March 1997 was not known to Mr Bruce according to his oral evidence until the documents obtained on subpoena were shown to him by his solicitor during the preparations for this hearing.

63 The next factual issue that needs to be determined is whether the presence of the unidentified officer and what he said during the inspection constituted the approval of DLWC sufficient to satisfy the second sentence of condition 4. Paragraphs 16,17 and 18 of Mr Bruce’s affidavit state:

16 I cannot remember that Officer’s name but to the best of my recollection he told me he came from another office and not Penrith and complained to me how far he had to come.
When I arrived at the site that officer was already there talking to Steve Skarstrom. They were somewhere between the plant and the shed. The officer seemed to be rather vague about why he had been sent to the site. I said words to the effect that “We need someone to approve of the drainage plans as per our DA and the Erosion and Sedimentation Plan.” He said “Have you got a copy of the plans” and we then went to the shed where I got a copy of the DA and I also showed him the Plan which was attached to the wall of the shed. After looking at the plan I then went and got a copy of the Plan from my car.
17 We walked around the site together and we took with us a copy of the plan. We inspected the existing by-pass drains on the eastern side and he said words to the effect of “You should batter this drain as well”. This drain contained a number of large saplings and I decided to refer to the Council Officer the question as to whether these trees should be removed. I cannot now recall whether I also discussed this with the Officer from DLWC.
18 Apart from those two comments he had no other suggestions to make and appeared to be in agreement with what had already been carried out and what was to be carried out.
…
29 I say that Condition 4 was complied with in 1997 as a result of the inspection by the Officer of DLWC and his verbal approval together with the numerous inspection of Mr Pye on behalf of the Council, his letter of the 22nd April 1997 and his subsequent correspondence which makes it clear that that was no longer an outstanding issue.

64 Paragraph 18 suggests that the approval meaning satisfaction arose by inference as there was no explicit statement to that effect by the officer referred to by Mr Bruce. Rather he states that the officer “appeared to be in agreement with what had already been carried out and what was to be carried out”.

65 In cross-examination Mr Bruce stated that he considered condition 4 related to the ESCP submitted to Council on 10 May 1996 as part of the development application. Neither the Applicant nor the consultant who prepared the EIS had access to the letter of 15 July 1996 from DLWC which suggested a further ESCP was required. He rang DLWC in early 1997 to ask them to come out and approve the ESCP because that was his understanding of what the condition of the consent required. He considered the ESCP had been accepted at the mediation in early December 1996 as there was a representative of DLWC present and no queries were raised about the plan. Compliance with the second sentence required that he talk to someone at DLWC and gain their approval of the ESCP lodged in April 1996 with the Council. When the unidentified officer came out to the premises he made suggestions about a drain being battered according to the ESCP which provided for a new drain which had to be battered. That work had not been done at that stage. For the other main drain he said he wanted it widened, which required tree removal. Because of the need for tree removal that proposal was raised with the Council. As submitted to him by his counsel in re-examination, Mr Bruce has been consistent in maintaining that sequence of events in relation to the visit by an officer in early 1997 apart from changing his view that the officer was Mr Brady.

66 Mr Pye’s evidence that he had discussions with Mr Bruce about what the unidentified DLWC officer had said is confirmatory of that officer’s attendance at the premises and, to a lesser extent, what was said. He considered condition 4 (being essentially the first sentence) had been complied with by the end of June 1997. Mr Pye’s evidence of his understanding of the role of DLWC under the second sentence of condition 4 does not help either Mr Bruce or the Council. While he was aware that DLWC officers often gave advice in relation to development consents he was also aware that there was no statutory basis on which DLWC could give approval. He did not consider the second sentence of condition 4 had any work to do so that he was not expecting that any formal approval would be provided by DLWC.

67 The satisfaction of the unidentified DLWC officer in relation to the details in the ESCP in early 1997 can be confirmed by the approach of Mr Brady of DLWC following his visit to the premises on 3 March 1997, unbeknownst to Mr Bruce at that time. He was the officer from DLWC who attended the mediation held on 3 December 1996 before development consent was given. Mr Bruce’s uncontested evidence is that he was not asked by anyone at that mediation to change the ESCP. Mr Brady’s follow up letter sent on behalf of Mr El-Chamy in March 1997 stated that no erosion and sediment control measures as indicated in the ESCP were present and that diversionary works for off-site water were actively eroding. That letter by inference confirms the view of Mr Bruce that the ESCP lodged in April 1996 and approved in December 1996 as part of the development consent were the details which required approval from DLWC pursuant to the second sentence of condition 4. That the ESCP contained the relevant details that had to be approved, and that the unidentified officer who visited the site in early 1997 did not require any amendment of that plan, is confirmed by the letter from Mr Brady in March 1997. I consider the inference does arise that the satisfaction of DLWC with the ESCP was provided in early 1997 in person.

68 The Council argues (and has the onus of proving) that the second sentence of condition 4 was not complied with. It argued that an amended plan for the sediment and erosion controls was not provided (which I have held was not required) and further that no approval was given by DLWC. It argues that approval had to be written (which I have also held is not required by the second sentence of condition 4). Mr El-Chamy has given evidence that the usual practice of DLWC would be that written approval/advice would be provided and a search of DLWC’s files discloses no such written advice. He has no direct knowledge of the events the subject of the evidence of Mr Bruce and Mr Skarstrom and does not know who the unidentified officer was. The absence of any information on DLWC’s files about who the unidentified officer was and the absence of any written approval (including satisfaction) does not undermine the evidence of the Applicant. I consider the evidence does support an inference that the attendance by the DLWC officer and what transpired at his visit in early 1997 did give rise to an approval, meaning satisfaction, on the part of DLWC of the ESCP, resulting in compliance with the second sentence of condition 4.

69 I answer the question posed as follows:

The Applicant’s section 96 application can be considered as there has been compliance with condition 4 of the development consent DA 0134/95 and that consent has not lapsed.