Bookrill Pty Ltd v Parramatta City Council
[2013] NSWLEC 1202
•16 October 2013
Land and Environment Court
New South Wales
Medium Neutral Citation: Bookrill Pty Ltd v Parramatta City Council [2013] NSWLEC 1202 Hearing dates: 10 October 2013 Decision date: 16 October 2013 Jurisdiction: Class 1 Before: Moore SC Decision: (1)The appeal is dismissed;
(2)Application to modify clause 117 of the conditions of Development Consent granted to DA184/2010 is refused; and
(3)The exhibits, other than exhibits A, C and 1, are returned.
Catchwords: Construction of condition; validity of condition; acquisition of land with or without compensation; conflict of decisions; planning purpose of amendment to a condition; discretion Legislation Cited: Environmental Planning and Assessment Act 1979
Land Acquisition (Just Terms Compensation) Act 1991
Local Government Act 1993
Parramatta City Centre LEP 2007Cases Cited: 1643 Pittwater Road Pty Limited v Pittwater Council [2004] NSWLEC 685
Fairfield City Council v N and S Oliveri Pty Limited [2003] NSWCA 41
House of Peace & Anor v Bankstown City Council [2000] NSWCA 44; [2000] 48 NSWLR 498; (2000) 106 LGERA 440
King, Markwick, Taylor & Ors v Bathurst Regional Council [2006] NSWLEC 505; (2006) 150 LGERA 362
Lean Lakenby and Heywood Liverpool Pty Limited v Baulkham Hills Shire Council [2003] NSWLEC 406
Moto Projects (No 2) Pty Limited v North Sydney Council [1999] NSWLEC 280; (1999) 106 LGERA 298
Moy v Warringah Council [2004] NSWCCA 77, (2004) 133 LGERA 48; (2004) A Crim R 577
Newbury District Council v the Secretary of State for the Environment (1981) AC 578
North Sydney Council v Michael Standley and Associates Pty Limited (1998) 97 LGERA 433
Pyx Granite Company Limited v Ministry of Housing and Local Government (1958) 1 QB 554
Ryde Municipal Council v Royal Ryde Homes [1970] 1 NSWR 277; (1970) 91 WN (NSW) 440; (1970) 19 LGRA 321
Vacik Pty Limited v Penrith City Council in [1992] NSWLEC 8
Valiant Timber and Hardware Company Pty Limited v Blacktown City Council [2005] NSWLEC 747; (2003) 144 LGERA 33
Western Australian Planning Commission v Temwood Holdings Pty Limited [2004] HCA 63; (2004) 221 CLR 30; (2004) 211 ALR 472; (2004) 79 ALJR 414Category: Principal judgment Parties: Bookrill Pty Ltd (Applicant)
Parramatta City Council (Respondent)Representation: Counsel
Mr J Atkin (barrister) (Applicant)
Ms S Pritchard SC (barrister) (Respondent)
Solicitors
Bruce Macdonald Lawyers (Applicant)
Maddocks Lawyers (Respondent)
File Number(s): 10352 of 2013
Judgment
SENIOR COMMISSIONER: Palmer Lane at Parramatta is a modest and otherwise undistinguished dead end thoroughfare. It is proposed by Parramatta City Council (the Council) that the thoroughfare should be modified significantly by turning the present blunt head of it into a proper cul-de-sac with a turning circle. This is identified, in part, through the provisions of cl 25 of the Parramatta City Centre Local Environmental Plan 2007, a provision that identifies and makes provision for land acquisition within certain zones - identifying who is proposed to be the acquiring authority for various classifications of land. The clause provides, in subclause (2), that land in Zone SP2 Infrastructure and marked "local road" is to be acquired by the Council itself. The relevant sheet of the Land Reservation Acquisition map, sheet LRA_001 forming part of that Local Environmental Plan, identified the land at the head of Palmer Lane as being for local road purposes. That sheet was exhibit 5 in the proceedings.
It is necessary to set out, at some length, the history of the interaction between the owners of the land at 21 Sorrell Street, Parramatta, part of which forms the subject of these proceedings, and the Council since 1987. I note that, as will be discussed in more detail later, the then owners of the land (the now applicants in the proceedings) are no longer the owners of the land but have their rights to any compensation that might arise from the transfer of a little over 70 square metres at the head of Palmer Lane to the Council reserved to them although they are no longer owners of the land.
On 30 April 1987, the Council wrote to the then owners, through their solicitor, advising that there was proposed to be road widening in Palmer Lane and that, in that, letter the Council observed "You are further advised that under normal circumstances the Council will acquire the land by dedication upon redevelopment of the site." The words "dedication upon redevelopment of the site" are Delphically undefined and the concept of dedication, a matter to which I will need to return, is undefined.
After a hiatus of several years, in 2001 (on 9 July), the Council wrote to the owners indicating that the Council had, over a number of years, carried out design proposals for the laneway and indicating that the Council had acquired various sections of the land to extend and widen the original land at the rear of the properties by either acquisition or dedication.
Clearly, at least in that letter for that purpose and at that time, this indicated that the Council drew a distinction between acquisition and dedication. That distinction, at that time, is not, in my view, germane in any fashion to the interpretation of cl 117 of the present development consent that is proposed to be modified in these proceedings.
Shortly after the receipt of that letter, the owners wrote to the Council suggesting that the Council's proposal "to acquire the rear portion of 21 Sorrell Street should be put on hold pending consideration of a proposed development application". That development application does not seem to have materialised at that time.
In 2004, the Council indicated that it was proposing to carry out works in the laneway and in Sorrell Street but did not discuss the question of acquisition or dedication of the land.
On 29 September 2006, a development application was lodged that included 21 Sorrell Street and an assessment report was prepared for that proposed development. In that assessment report dealing with acquisition and development or reserved land, the assessment report said
"The south-western corner of the site is reserved for an extension of Palmer Lane. This extension would complete the bulb shaped termination point to the end of the lane and ensure that it functions properly as an area used for vehicles to turn around. The plans submitted with the application ensure that the development does not encroach into the area of reserved land. This will ensure that the land can be acquired by the Council when the owner of the land requests that Council acquires the land."
The development application was determined by the granting of development consent on 18 June 2007. The development consent conditions contain no reference to the land at the head of Palmer Lane.
While that development consent was on foot, a further development application was lodged on 15 March 2010 for a mixed use development on 7 and 9 Victoria Street and 21 Sorrell Street. It was accompanied by a Statement of Environmental Effects prepared by Mike George Planning Pty Limited. That Statement of Environmental Effects makes several mentions of the head of Palmer Lane. The first, on page 6, of the Statement of Environmental Effects says:
"Landscaping in the south-western part of the site with the western edge determined by Council's proposed acquisition for a cul-de-sac head on Palmer Lane".
The plans that form part of the Statement of Environmental Effects note, in the south-western corner, the non-inclusion in the plans of the development of the relevant area at the head of Palmer Lane and observe that that area is proposed to be used for the purposes of the land for the turning circle at the head of Palmer Lane.
Finally, on page 28 of the Statement of Environmental Effects, it observes
"The site development has been arranged to assist the Council in acquiring land to construct a cul-de-sac head at the end of Palmer Lane in accordance with its intentions as advised to the owner by letter dated 6 February 2004. This roadwork is unrelated to any traffic demand from the subject site and is outside the ambit of S94 contributions."
As part of the assessment process, the internal Council notification system was triggered and a number of matters arose during the course of that consultation process. First, in a memorandum dated 18 March 2010 from the Council's urban designer to the relevant development assessment officer, the urban designer observed under the heading "Land Acquisition"
"The south-west corner of the site is identified in the LRA_001 local road widening Land Reservation Acquisition map within the city centre LEP. This has been indicated in the plans 'as proposed cul-de-sac to Council's details (if acquired by Council)'".
The architects for this development application, Architex, had a meeting with the Council (apparently with its Parramatta design review panel) on 5 May 2010 and, on 3 June 2010, provided a number of matters - including some drawings for the Council - in response to matters raised during that discussion.
The first of those drawings is a Public Domain Plan which shows the development at the street level set back from Palmer Lane, but does not include the annotation about its future acquisition for the turning circle at the end of Palmer Lane. I am satisfied that nothing arises from this omission.
Of some importance in the proceedings is the development assessment specialist referral undertaken through the Council's engineering department. On 12 May, that is after the meeting between Architex and the Council, the referral was completed and it is notated as having three elements. Firstly, that the proposal is supported. Secondly, that the standard conditions of consent should be imposed. Finally, and relevantly, that there should be a special condition of consent imposed.
After para 19 of the proposed conditions that arise from that review is the notation "Non-Standard engineering condition: Engineering design to culdesac and the road reserve in Palmer Lane frontage," and then it proposes this condition.
"Prior to the commencement of works, detailed drawing plans for the cul-de-sac and the road reserve in Palmer Lane shall be prepared by a competent civil engineer to Council's standards and requirements then submitted to the Service Manager of Civil Infrastructure in Council, for design checking and approval prior to construction, subject to Council's satisfaction."
Then, I interpose, critically, "The cul-de-sac road section shall be dedicated in benefit of Council to be part of Palmer Lane road reserve prior to the release of the occupation certificate." This is, as far as I have been able to ascertain from the voluminous documentation provided to me, is the first and only internal discussion of any originating nature of this proposed condition.
Subsequent to the provision of that report, there was an email exchange between the Council's Supervisor of Civil Assets, and the manager of civil engineering at HKMA Engineers, an engineering enterprise that been acting on behalf of the applicants for that development consent.
At para 4 of an email from the engineering company to the Council, there is mention made of the Palmer Lane cul-de-sac. I do not need to set out this in its entirety - save to note that there is no mention, in this email exchange, either by the applicant or the Council, of the basis of transfer, the notation simply relating to a proposed retaining wall to be constructed along the dedicated boundary alignment of the cul-de-sac.
Plans that are attached to or were provided to the engineering company at that time by the Council - being the Council's Plan No: 14792 - set out a range of sections, both longitudinal and cross-sections, for the proposed works in the lane for road reconstruction and drainage purposes, including some detail concerning the element of 21 Sorrell Street proposed to be incorporated in the turning circle at the head of the laneway.
A development assessment report was prepared for this Development Application - DA No 184 of 2010. Under the heading of 'The Proposal' the analysis by the assessing officer includes the following.
"The works also include provision of an awning over the footpaths of Sorrell Street and Victoria Road, dedication of land at the rear of the site for the purposes of Council creating a turning area at the end of the Palmer Lane cul-de-sac, public domain works."
There is nothing in the assessment report that provides any reason as to why or for what purpose the word "dedication" is used in that paragraph. There is, some seven pages on in the assessment report, a quotation from matters provided by the applicant under the heading 'Land Acquisition' and it says,
"The south-western corner of the site is identified in the LRA_001 local road widening land reservation acquisition map within the City Centre LEP. This has been indicated in the plans as 'proposed cul-de-sac to Council's details if acquired by Council',"
and there is thereafter extracted a small map with a notation that it is an extract from the land acquisition map that arises from cl 25 of the Parramatta City Centre LEP 2007.
In the discussion of the LEP later in the assessment report, p 31 deals with cl 22G of the City Centre LEP. The discussion occurs as part of a sequential discussion of all relevant issues arising under the various clauses of the Local Environmental Plan. As I indicate, cl 22G is discussed on p 31. The discussion of cl 22G is immediately followed, on p 32, by the discussion in the report of the impacts of cl 33A. There is no intervening discussion relating to cl 25 of the LEP.
The assessment report recommends that the project be approved. As the project was to be one (as noted in the assessment report) of a value of greater than $10 million, it was required to be considered by the relevant Joint Regional Planning Panel. The assessment report recommended a wide range of conditions, one of which was in the following terms (as proposed condition 118).
"The cul-de-sac road section illustrated on the approved architectural plan shall be dedicated in benefit of Council to be part of the Palmer Land road reserve prior to the release of the occupation certificate."
The Sydney West Joint Regional Planning Panel met, at the Council, on Thursday 9 September 2010 and considered a range of applications for development consent - including this one.
At agenda item 13, Development Application 184 of 2010 for the mixed use development at 7-9 Victoria Road and 21 Sorrell Street, Parramatta, was considered. It was moved and seconded by members of the Panel that the Council adopt the officers' recommendation to approve the proposal with an amendment. The amendment was of a minor nature, being to correct the words "Palmer Land road reserve" to read "Palmer Lane road reserve." Subject to that amendment to correct the typographical error, the motion was carried unanimously and the development was approved.
A notice of determination, dated 24 September 2010, was issued to the applicant in these proceedings, Bookrill Pty Limited. The first clause in the development consent conditions that are attached to the notice of determination is the setting out of the plans and documentation that are to be included as forming part of the development consent. They comprise the various architectural, stormwater, landscape plans, the schedule of finishes provided by the architect, an acoustic report, a Basics Certificate, and a heritage impact assessment. No other documents arise for consideration in the construing of the development consent as none are imported in a fashion consistent with the decision in Ryde Municipal Council v Royal Ryde Homes (1970) 1 NSWR at 277; (1970) 91 Weekly Notes NSW 440; (1970) 19 LGRA 321.
As a consequence of renumbering (for reasons that were not and do not need to be explored), the proposed condition 118 became condition 117. The typographical error corrected by the Joint Regional Planning Panel was not corrected in the development consent condition - but, in my view, absolutely nothing turns on that.
Following the granting of the development consent, the beneficial owners of the land, that is Mr Muscat and Mr Edgerton, wrote to the Council on 10 November 2007 seeking to have the Council resume negotiations for the acquisition of the land for the Palmer Lane cul-de-sac head. At this time, Mr Muscat and Mr Edgerton sold the site to the ultimate developer, SKF Development Pty Limited, as trustee for the SKF Development Unit Trust. At or about the time of the sale, Mr Muscat and Mr Edgerton entered into a deed with SKF Development Pty Limited on 29 December 2010. In the recital setting out the background to the deed, the deed notes that,
"Under Clause 63 of the Contract the Vendors reserved to themselves all rights to any compensation arising from the dedication/acquisition of part of the land by Parramatta City Council as contemplated in Development Application 184/2010 consented to by the said Council on 9 September 2010."
In the operative part of the deed, at cll 1 and 2, there are express rights of assignment of that interest to Mr Muscat and Mr Edgerton, and an acknowledgement that the purchaser remains bound by the provisions of cl 63 until the rights granted to the vendors therein are satisfied as contemplated by the clause.
From that time onwards, there was a process of negotiation and valuation - with reputable licensed valuers engaged by the Muscat/Edgerton interests and by the Council. In or about July 2012, agreement was reached between the Muscat/Edgerton interests and a Property Program Manager at the Council for a purchase price of about $435,000. However, shortly thereafter, in August 2012, it would appear that the Council's in-house legal advisor indicated that, pursuant to cl 117 of the development consent, the land was to be transferred to the Council free of compensation and that compensation was not to be paid. That was conveyed to the Muscat/Edgerton interests by letter in early August.
By letter of 21 August, the response was provided setting out the nature of the discussions that had taken place over a very considerable period of time and the agreement that had been reached. However, the Council has remained of the view that no compensation is required to be paid and that, at least until these proceedings came to be litigated, the condition required the transfer of the land without payment of compensation.
As a consequence of all that, on 22 February 2013 a modification application pursuant to s 96 of the Environmental Planning and Assessment Act 1979 was lodged with the Council seeking modification of condition 117 and amendment of the description of the front page of the development consent and the modifications sought were set out in that order in the annexure to the modification application. The application sought to add the words:
- "subject to payment by Council compensation in accordance with the Land Acquisition (Just Terms Compensation Act) 1991 (NSW)" to the end of condition 117; and
- to amend the second sentence of the description of the development consent to insert the words after the word "site", the words "which, subject to payment by the Council of compensation in accordance with the Land Acquisition (Just Terms Compensation) Act 1991 (NSW)".
An assessment report was prepared to this modification application. The relevant assessing officer undertook an assessment pursuant to s 79C of the Environmental Planning and Assessment Act and wrote as follows:
"The applicant has sought that the dedication of land required under s 117 be made subject to compensation payable to the applicant by Council under the Land Acquisition (Just Terms Compensation) Act 1991. It is not within the scope of this assessment made under s 96(1A) of the EP&A Act 2003 [sic] to ascertain and/or confirm any obligations or requirements that may burden and/or benefit one party over the other under a separate Act. That is a matter for due consideration under that Act irrespective of explicit reference to that Act in condition 117. It would not seem that the wording of condition 117 would confer, add or take away from any entitlement or rights under a separate Act.
In terms of a merit assessment of the proposal put by the applicant under s 96 of the EP&A Act, Council is obligated to consider the planning implications of the modifications and test those against relevant planning criteria. In this regard the following comments are made.
While condition 117 is quiet on the matter of whether compensation is to be paid for the dedication of land, this does not automatically imply that the intention was for compensation to be payable and notwithstanding I refer to the above comments in respect of any obligation and/or requirements which may affect the relevant parties under the Land Acquisition (Just Terms Compensation) Act 1991.
In assessing the planning merit of the proposed modification it is necessary to consider the planning rationale used to justify the amendment by an applicant. In this case, no planning justification has been provided to assist the consent authority".
The assessing officer then considered the appropriateness of the condition against the tests that she describes as the Newbury tests, tests to which I will later refer - they being three in number as conventionally described:
- First, that a condition must have a planning purpose.;
- Second, that a condition must fairly and reasonably relate to a permitted development; and
- Third, that the condition itself must be reasonable.
She then undertakes an assessment that appears to reach the conclusion that the original condition 117 as originally imposed had a proper planning purpose and that there is no planning justification for the amendment to the wording and therefore it should be refused.
On 6 June 2013 the modification application was refused on two bases:
- First, that the Environmental Planningand Assessment Act 1979 does not require Council to consider compensation for land acquisition when assessing development applications; and
- Second, the proposed condition is not in the public interest.
It has been necessary to set out all of those matters to provide an appropriate contextual background for my consideration of the many forks in the path to final resolution of these proceedings.
First, I note that Mr Atkin, counsel for the applicant in the proceedings, agreed when I put the proposition to him that the proposed change of description had no operative purpose and therefore was not a matter that needed to be considered further. As a consequence, I do not propose to deal with that but merely to focus entirely on the substantive change that is proposed to condition 117.
During the course of the proceedings, Mr Atkin also sought leave to amend the proposed addition to condition 117 by inserting the word "calculated" after the word "compensation" where first appearing in the proposed amendment. The result of this would be, if approved, the adding of the words "subject to payment by Council of compensation calculated in accordance with the Land Acquisition (Just Terms Compensation) Act 1991".
The application for leave to amend was not opposed by Ms Pritchard SC for the Council - but on the express basis that the non-opposition to leave being granted to amend did not imply any concession by the Council that either I could or I should make the amendment that was proposed to be sought.
The position that was put by the applicant was, as the proceedings unfolded, in three alternative propositions.
First, that a proper meaning of the condition as presently expressed required the payment of compensation and that the words proposed to be added were merely words of clarification and that such clarification was desirable for reasons of certainty.
Second, if that was not the position and the clause was, for reasons that I will discuss more completely later in this judgment, invalid and it does not require payment of compensation, this can be modified to rectify the clause to breathe life into what might otherwise be invalid and require the payment of compensation.
The third option, if I were not satisfied that I had the power to modify or if I was satisfied that I had the power to modify but did not, as a matter of discretion, propose to modify a clause that was invalid, I should, in effect, delete cl 117 as it now stands and insert - as cl 117B - the complete clause that would be the version proposed to arise if 117 were modified as proposed in these proceedings.
The Council's position was, perhaps, a less complex one:
- First is that, if the clause is there, the word "dedicate" does not mean acquire-that the clause as properly construed does not require the payment of compensation; and
- Then, that, as a consequence, for reasons that will be further discussed, the clause is invalid and a nullity - that is, I should treat it as if it were not there and were notionally severed and therefore there was nothing to modify; and I
- If the clause is there but it is invalid, it is not permissible to modify the clause; or
- If it is invalid and modification is permissible, then as a matter of discretion I should not do so.
In addition, I raised the question of whether the first of the Newbury tests should apply to not only the original clause and any modification of the clause in consideration of the finally modified clause, but also as to the purpose of the modification itself - as separate from either the antecedent or the postmodified clause if approved. I described this, in my discussion with counsel, given that I had not been able to find any authority on this proposition whatsoever, as having a Star Trek moment. That is, the adoption of the third of the objectives of Star Trek's Spaceship Enterprise, "to boldly go where no man has gone before." Despite the split infinitive and the sexist nature of that comment, I will return to my Star Trek moment later.
Condition 117, as I earlier noted, provides that "The cul-de-sac road section illustrated on the approved architectural plan shall be dedicated in benefit of Council to be part of the Palmer Land road reserve prior to the release of the occupation certificate."
Concerning the first proposition by the applicant, that is, I should read dedication as requiring acquisition, I was in the first instance taken to the provisions of a decision of the Court of Appeal in the House of Peace & Anor v Bankstown City Council [2000] NSWCA 44; [2000] 48 NSWLR 498; (2000) 106 LGERA 440 where the learned President discusses, amongst other things, the use that one might appropriately make of dictionaries at paras 25 and subsequently and then in para 37 deals with how one should read language for the purposes of context.
I draw attention to the passage about dictionaries not being the be all and end all as the position to which the Council takes me is the provision of a number of extracts from various dictionaries, to which I will return as to how I should regard the word "dedication".
But at para 37 the learned President said, and I quote , omitting the relevant citations
"How then is the language of an historical consent to be construed?" In ACR Trading Kirby P, with whom Samuels J and Hunt AJ agreed, referred to "what objectively determined it might be said the Council meant by the permission which it gave to the.... predecessor [in title]". I respectfully agree, but with this emphasis, the search is not for what the Council actually intended or what, if it had been interrogated about various possibilities it would have said it intended. As the instrument having the characteristics referred to by Else-Mitchell J and Stephen J in the passages cited at [23] it must speak according to its written terms construed in context, but having regard to its enduring function."
It is in that context that I approach my consideration of the use of the word "dedicate", that being the critical word in condition 117 - that is, should I regard "dedicate" as being a perfect synonym for the word "acquire".
I was provided by the Council with the definitions in the Oxford English Dictionary where the second of the meanings is:
(2) to give up earnestly, seriously or wholly to a particular person or for a specific purpose,
and
(4) [being a legal definition] to devote or throw open to the use of the public a highway or other open space.
The Macquarie Dictionary is consistent with the legal definition cited in the Oxford English Dictionary, the second of the meanings being:
to give up wholly or earnestly as to some person or end; set apart or appropriate.
In the Fourth Edition of Words and Phrases, Legally Defined, I was taken to the concept of "dedication" which makes it clear that dedication means a giving over and there is no necessary importing of the consequence of compensation attaching to such dedication.
In light of these, therefore, I am unable to accede to the applicant's proposition that I should read the word "dedication" as requiring the payment of compensation.
It, therefore, follows that from that finding and the adding of the words proposed to be added would involve the creation of a right which does not presently exist. I will return to that shortly.
However, it is necessary for me to consider what might be the consequence if I am wrong in reaching that conclusion and, in fact, the proposition put by Mr Atkin - that dedication equals acquisition and therefore a right of compensation is automatically imported - is correct.
The first question is, what would be the utility, if any, of importing the words that Mr Atkin asks me to import?
It would, in my view, be akin to me providing declaratory relief to the applicant of what is said to be on this construction an existing right. There is no reason whatsoever why, in Class 1 proceedings of this Court - that is a merit review process on a development application - I should undertake a process that amounts to the exercise of either Class 4 of the Court's jurisdiction, a jurisdiction which by statute I am precluded from exercising, to make some declaration or to stand in the shoes of some other judicial officer in this or some other tribunal to make such a declaration.
It is, in my view, an entirely inappropriate matter for me, even if the words proposed to be added add no authorisation to the meaning of the condition, for me to give what is, in effect, some form of declaratory statutory or equitable relief to the applicant by making such a declaration.
Therefore, if I am wrong in holding that the word "dedication" does not require the payment of compensation, I am satisfied as a matter of discretion that it is inappropriate for me, in Class 1 proceedings, to add the words that are proposed for the reasons that I have enunciated.
Second, it is my view that there is a real risk, given the vigour with which the interpretation was opposed by the Council that I might be wrong if I were to follow that approach and that I would, in effect, be creating a new right merely by making what is sought as a declaratory statement. That is not to say it might not be appropriate for me consciously to adopt that approach, an approach urged by Mr Atkin and which I subsequently need to address, but it is entirely inappropriate, in my view, for me to do so if it were to be done inadvertently by merely making a declaration that was thought to have no practical consequence.
I now turn to the question of the bases of acquisition by the Council in considering these words if I were to insert the words is in reinforcement of my view that what is sought would not purely be hortatory or declaratory in its nature.
There are only two bases upon which a Council can acquire land.
One is pursuant to the terms the terms of the Land Acquisition (Just Terms Compensation Act) 1991, the concept of which is proposed to be invoked by the application in these proceedings, where the Act provides in Part 2 for compulsory acquisition and in Part 3 Division 4, for the methods of determination of the amount.
If it is not an acquisition that is by compulsory and involuntary acquisition or a required acquisition pursuant to the hardship provisions in that legislation, a council is entitled to acquire land for bona fide permitted purposes under the Local Government Act 1993 by private treaty negotiation, as has been proceeding by the history that I have recounted, between the parties up until August 2012 when the Council's in-house lawyer indicated that such a process was inappropriate.
It is clear that there is no prospect of voluntary acquisition by treaty.
It is, therefore, the position that the sole head of power that the Council would have is by compulsory acquisition that is provided for in the Land Acquisition (Just Terms) legislation. The insertion of the words in the condition would in effect be saying the Council has to do what it is obliged to do by statute.
This reinforces my earlier view that the addition of the words would have no utilitarian value because they would merely be restating, in an ineffectual form, what are the legal obligations - if there is an obligation on the Council to acquire, by compulsory acquisition, the land at the head of Palmer Lane. That disposes, in my view, of the first proposition put by Mr Atkin.
Second, I turn to the question of what is the position with the clause as it now stands. The Council and the applicant agree (in their Statements of Facts and Contentions from the applicant and the Amended Statement of Facts and Contentions by the Council) that, if dedication does not mean acquisition, the clause is an invalid one at the time of imposition.
This is as a consequence of the fact that the sources of power for the imposition of requirements for conditions attaching to development consent must come from r s 80A or s 94 or s 94A of the Environmental Planning and Assessment Act. It is long settled (see Fairfield City Council v N and S Oliveri Pty Limited (2003) NSWCA 41) that, for example, a requirement to transfer, to use a neutral word, land to a Council without the Council paying for it is not a power that is provided by the general conditions of consent making head under s 80A of the Act. It held that a Council can, through an appropriate plan under either s 94 or 94A, impose a requirement for the dedication of land with or without some offset to other monetary compensation requirements under such plans if such dedication is required for a proper purpose arising out of the development itself.
In this instance, there is a s 94A development contributions plan dated 9 April 2008 that is the relevant plan and which was Exhibit 7 in the proceedings. That plan, under 3.9 at the final paragraph, deals with the exceptions for the payment of contributions. The only exceptions to the requirement are "where a works in kind, material public benefit, dedication of land or deferred payment arrangement has been agreed by the Council. In such cases the Council will issue a letter confirming that an alternative method has been agreed with the applicant.
There is no such agreement in this case.
There is nothing in the contributions plan that requires dedication of the land at the head of Palmer Lane.
I must therefore consider - the condition clearly being now outside power and invalid - whether I can or cannot modify it.
I have been taken to two conflicting decisions of judges of this Court on this point. It requires me to choose between those two approaches and, in effect, either endorse the approach taken in the original decision, a decision of Pain J in Lean Lakenby and Heywood Liverpool Pty Limited v Baulkham Hills Shire Council [2003] NSWLEC 406 or agree with the view expressed by Bignold J in a subsequent decision Valiant Timber and Hardware Company Pty Limited v Blacktown City Council [2005] NSWLEC 747; (2005) 144 LGERA 33.
It is an unusual and invidious position for a commissioner of the Court to be forced to choose and express the reasons why the choice has been made between conflicting judges of the Court.
Ordinarily one might expect that those several levels up the judicial food chain would be making such a decision.
Tempting though it might be to pull the 20 cent universal decision making tool from one's pocket and make such a choice, it is clearly inappropriate to do so.
In Lean Lakenby, Pain J held that, as a matter of law, in Class 1 appeals it was not appropriate to modify a condition broadly analogous to the condition that is the subject of these proceedings and modify it because, in effect, the condition should be regarded as never having been in existence. She did so relying on what would be regarded as, in the context of the present application, consideration of the conventional assessment processes that would apply for the imposition of such a condition.
Bignold J in Valiant Timber, however, took an entirely different proposition as the basis for his deciding that there was such a power to modify. He referred to her Honour's decision in Lean Lakenby and reached the conclusion that her Honour was wrong. He did so saying from (26) that the basis of power to modify was not to be found by focussing on ss 80A and 94 as providing the potential source of power but by having regard to what he described as the far more readily and satisfactorily answered proposition by reference to the obvious source of power that is conferred by s 96 itself.
His Honour noted that the modification power should be regarded as beneficial and facultative citing the decision, amongst others, of North Sydney Council v Michael Standley and Associates Pty Limited (1998) 97 LGERA 433.
The concept that such a power is to be regarded as beneficial and facultative is now, on my understanding of it, almost universally accepted and has been so described in non-planning proceedings, including, for example, a decision of the Court of Criminal Appeal in Moy v Warringah Council [2004] NSWCCA 77, (2004) 133 LGERA 48; (2004) A Crim R 577, where Sperling J discusses a number of matters at para 80 and says,
"...... s 96, on the other hand, is a facultative beneficial provision, and, as such, it is to be construed and applied in a way that is favourable to those who are to benefit from the provision" (citations omitted).
I am satisfied, on a consideration of the provisions of s 96 that, subject to the satisfaction of the provisions itself, a matter, again, to which I will return the decision of Bignold J in Valiant Timber and Hardware is to be preferred over the decision of Pain J in Lean Lackenby.
It is clear that the analytical process upon which I am required to embark is an assessment pursuant to s 96 of the Act and that those are the processes that I am obliged to follow.
It seems to me that the necessary conclusion that follows from that pathway decision is that s 117, as presently enunciated in the development consent, is a condition that is invalidly imposed. It is, nonetheless, a condition that is within the consent and has not sought to be removed either by application of the applicant in the proceedings, nor, although it might be a novel course if it were to be followed, by application by the Council itself to the Court as, if you like, some form of cross-claim in these proceedings. The question of the permissibility of such an approach is, perhaps fortunately for me, a matter that I do not need to explore in these proceedings as Ms Pritchard did not attempt to do so.
That takes me to what I earlier described as "a Star Trek" moment, and that is whether it is appropriate and necessary for me to have regard to three matters in these proceedings:
- first the initial clause;
- second, the modification that is sought to be made to it; and
- third, the clause that is proposed to be the modified clause if the modification is to be approved.
The question arises as to whether the various matters that arise out of what are colloquially called the Newbury tests, should be applied in these proceedings. In doing so it is instructive to return to the original Decision of the House of Lords in Newbury itself Newbury District Council v the Secretary of State for the Environment (1981) AC 578.
Although there are a number of speeches read by their Lordships in the decision, they are, in essence to common purpose with the leading speech being read by Viscount Dilhorne. At p 599 of the report, his Lordship returns to a statement that was made by Lord Denning MR in Pyx Granite Company Limited v Ministry of Housing and Local Government (1958) 1 QB 554, where, amongst other things, Lord Denning said, "The planning authority are not at liberty to use their powers for an ulterior object, however desirable that object may seem to them to be in the public interest".
The consequence of the decision in Newbury has been the formulation of what are described in shorthand terms, the three "Newbury Tests" to which I earlier referred. Although it is clear that, in those simplistic terms, the three Newbury tests have not been expressly imported into Australian or New South Wales planning law, the underlying principles that are derived from them have been so imported and applied on many occasions.
It is clear, for example, that a consideration of the issues in the High Court in the Western Australian Planning Commission v Temwood Holdings Pty Limited [2004] HCA 63; (2004) 221 CLR 30; (2004) 211 ALR 472; (2004) 79 ALJR 414, that regard should be had to those types of matters, including applying what might be described as the first Newbury test in shorthand terms, although it is not discussed in precisely the same terms by either the three judges of the High Court that were in the majority or the two that were in the minority. However, as discussed by McHugh J at para 56, the question of legitimate planning purpose is one that is relevant to the decision-making power, and consistent with what was taken from Pyx Granite via Newbury is adopted in Temwood to say that a condition cannot be imposed for an ulterior purpose.
In these proceedings, I am satisfied that, in broad terms, it not being necessary for me to decide more specifically than that, that the present condition is one which, if valid (which it is not), would be for a planning purpose, that is the orderly and economic use of land in or about the head of Palmer Lane. Similarly, the modified condition would probably satisfy the test as well. However, the amendment that is sought is not an amendment for a planning purpose - it is an amendment intended to require the payment of compensation for something where that something itself might well be a planning purpose.
Although in King, Markwick, Taylor & Ors v Bathurst Regional Council [2006] NSWLEC 505, (2006) 150 LGERA 362, Jagot J, in proceedings that were both in Class 4 judicial review and Class 1 merit proceedings, discussed the question of the conditions about acquisition of land for a road network as not satisfying the Newbury tests, her Honour dealt with that as an element of the totality of the condition that was sought to be imposed (as I read her Honour's decision) rather than considering whether or not the modification itself - confined to the terms of the modification - satisfied the first of the Newbury tests.
I am satisfied that the imposition through modification solely of a requirement to pay compensation, if indeed that were to be the valid effect of the modification, (that being something about which I have a reservation but a reservation that does not need to be explored in these proceedings), would not in and of itself be for a planning purpose but would solely be for a commercial benefit to the applicants in the proceedings.
I am, therefore, satisfied on a Newbury basis, that although I have the power to modify an invalid condition of consent, I have no power to impose the modification that is sought because the modification that is sought is not a modification in itself for a planning purpose.
However, as with many of the elements in this matter, I may well be wrong on that point.
I, therefore, turn to consider whether, if I am wrong in holding that I have no power to impose the modification sought a Newbury basis, I should exercise a discretion to require the modification on the basis that it would fulfil a proper planning purpose.
This, I consider, would require me, standing in the shoes of the Council and undertaking an analysis of the modification as proposed on its merits, to undertake a planning analysis of what would be the state of the development for which consent has been given with the requirement that the 73-odd square metres be excised and without the requirement for the 73-odd square metres to be excised. I have nowhere near any sufficient evidentiary basis upon which to undertaken such a consideration.
The fact that the development was assessed by the conduct of the parties on the assumption that exclusion of the land proposed to be transferred to the Council was necessary and desirable does not provide me with any basis, let alone any sufficient basis, for undertaking a proper merit assessment of whether that would be the position or not.
Although there has been the assumption by the Council that such has been the position since, perhaps, on the material that is in evidence, at least the early 1960s, the analysis that would support such a conclusion is not sufficiently founded before me.
Therefore, I do not consider that on a discretionary invoked merit basis I have any proper basis upon which I could conclude that the modification should be made to enliven the requirement for the transfer of the land to the Council and the attachment of some basis of calculation of compensation therefore.
It is not merely because the exercise of the discretion to modify would be an enlivenment of an otherwise lifeless condition that I should merely have regard to the fact that the modification would provide a basis for calculation of the compensation. What the enlivenment of an otherwise invalid condition does is enliven the requirement for the transfer of the land and attaching to that a basis for calculation of compensation. The revival of the otherwise lifeless corpse of condition 117 requires an analysis that goes well beyond merely the assessment of whether compensation should be paid or not and I do not consider I have any sufficient valid evidentiary basis upon which I could found the exercise the exercise of a discretion to do so.
Finally, Mr Atkin said to me, towards the end of the proceedings, that if I were to conclude that I should treat cl 117 as invalid and that, for whatever reasons, I should not be minded to validate it in any fashion by the adding of the words that are proposed, I could exercise a further and wider-ranging discretion and delete the present condition 117 - render it in effect as if it had never been - and insert a new condition 117B, a proposition to which I will return shortly.
There is no doubt in my mind that the power to insert conditions as discussed by the former Chief Judge McClellan in 1643 Pittwater Road Pty Limited v Pittwater Council [2004] NSWLEC 685 is no longer as constrained as had been treated prior to his Honour's decision in that case.
It is appropriate, at this time, to re-state condition 117, that is
The culdesac road section illustrated on the approved architectural plans shall be dedicated in benefit of Council to be part of the Palmer Land road reserve prior to the release of the occupation certificate.
If I were to accede to approve the course that was proposed by Mr Atkin, I would delete that condition and insert a condition 117B taking, I note in passing, the opportunity to correct the typographical error that had remained (despite the attempt of the Joint Regional Planning Panel to omit it by correction) so that cl 117B would read:
"The cul-de-sac road section illustrated on the approved architectural plan shall be dedicated in benefit of the Council to be part of the Palmer Lane road reserve prior to the release of the occupation certificate subject to payment by Council of compensation calculated in accordance with the Land Acquisition (Just Terms Compensation) Act 1991".
The first difficulty that arises in that regard, and that is to treat condition 117 as if it is not there, is that I need to consider the terms of s 96 itself. That requires me, in particular, to consider the terms of what would be the impact in this assessment of s 96(1A)(b) - that is whether I could be satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted.
On the hypothetical model that Mr Atkin invites me to adopt in this course of action, there would be no cl 117. I would then be amending a development consent by imposing a requirement for land to be dedicated and for compensation in the sum of approximately $435,000 to be paid by the Council to the applicant.
The question of whether some application for modification would result in a development that is substantially the same as the development for which consent was originally granted was originally discussed in a decision of Justice Stein, unreported, in Vacik Pty Limited v Penrith City Council [1992] NSWLEC 8 in which his Honour said:
"In my opinion substantially when used in the section" (that was the section that then applied but in the same terms) "when used means essentially or materially having the same essence".
That interpretation was endorsed by the Court of Appeal in North Sydney Council and Michael Standley to which I have referred. More recently Bignold J, in Moto Projects (No 2) Pty Limited v North Sydney Council [1999] NSWLEC 280; (1999) 106 LGERA 298 at p 309, dealt with the test that had been discussed by Stein J and by the Court of Appeal and indicated that it was not merely a requirement to consider the physical features or components of the project but it required an analysis that was a qualitative as well as quantitative comparative analysis.
I do not consider that a consent for a development on a lesser portion of land than that which was potentially available without the requirement to transfer to the Council, compared to the assessment of a development that would have been on the land that would have required the excision for transfer to the Council together with the payment of a significant sum of compensation, can be regarded as satisfying s 96(1A)(b).
Although it is a matter of fine balance, I am satisfied that a significant exclusion from the site for the purposes of road widening and the payment of a not inconsiderable sum of compensation by the Council to the applicant would not in essence be materially qualitatively the same although the quantitative difference might well be marginal.
As a consequence, the treatment of 117 as if it were not there but with the insertion of 117B as proposed by Mr Atkin, in my view, is not permitted as a result of it not satisfying the test in s 96(1A)(b).
However, as with much I have earlier discussed, it is quite possible that I am wrong on that point.
I, therefore, turn to the question of whether, as a matter of discretion, I should undertake the exercise proposed as his final option by Mr Atkin and impose a brand new condition 117B in a form which he says would satisfy the requirements for acquisition and be a valid condition.
To do so it seems to me would require two things, not merely a valid basis upon which I could undertake a merit assessment of the development application without the dedication of the land compared to a merit assessment of what development application might be permissible with dedication of the land but also a merit assessment of the need and appropriateness for requiring the reconstruction of Palmer Lane.
Although there are fleeting glimpses of what might be a basis for such an assessment contained in the voluminous documents that have been provided to me throughout the history to which I have earlier referred (including the provision of the plan by the Council), the justification for the requirement of it in terms of traffic volume use, for example, or accessibility to buildings or through linkages to other locations in the public domain and the like is not available to me.
As a consequence, I do not consider, as a matter of discretion, I have any proper evidentiary basis on a merit assessment as to why I should impose condition 117B in the terms that are proposed. Although s 56 of the Civil Procedure Act 2005 imposes on me an overriding purpose of civil proceedings to facilitate the just, quick and cheap resolution of the real issues in the proceedings, the proceedings must be appropriate ones for the determination of the issues that are in dispute between the parties.
I am satisfied, for the various reasons that I have enunciated, there is no basis whatsoever of power in Class 1 proceedings of this Court on any of the bases enunciated by Mr Atkin for me to amend condition 117 as is proposed or to insert a condition 117B as postulated as an alternative.
If I am wrong on any of those, I am satisfied that there is no valid reason on a discretionary basis for the applicant to succeed in Class 1 proceedings in this Court. This is not to be taken as any reflection on any other avenues potentially available elsewhere in the judicial system.
In the end, like Palmer Lane, all paths for the applicant in these proceedings come to a dead end.
As a consequence the orders of the Court must be:
(1) The appeal is dismissed;
(2) Application to modify clause 117 of the conditions of Development Consent to DA184/2010 is refused; and
(3) The exhibits, other than exhibits A, C and 1, are returned.
Tim Moore
Senior Commissioner
Decision last updated: 22 October 2013
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