Codlea Pty Ltd v Byron Shire Council

[1998] NSWLEC 50

Land and Environment Court

of New South Wales

CITATION:	CODLEA PTY LTD v. BYRON SHIRE COUNCIL [1998] NSWLEC 50
PARTIES:	CODLEA PTY LTD v. BYRON SHIRE COUNCIL
FILE NUMBER(S):	10021 of 1998
CORAM:	Talbot J
KEY ISSUES:	:-
LEGISLATION CITED:	Land and Environment Court Act s 56A Water Supply Authorities Act 1987 Local Government Act 1993 Environmental Planning and Assessment Act 1979
CASES CITED:	Kogarah M.C. v Kent (1981) 46 LGRA 334; Strathfield M.C. v Drew (1985) 1 NSWLR 338; Alumino Australia Pty Ltd v Minister Administering Environmental Planning and Assessment Act 1979 & Ors (1995) 88 LGERA 388 at 393-5
DATES OF HEARING:	27 November 1998
DATE OF JUDGMENT:	12/04/1998
LEGAL REPRESENTATIVES:	Mr D Wilson (Barrister) Mr G Downes QC

JUDGMENT:

1. After a hearing extending over four days, an Assessor of this Court delivered an ex tempore judgment on 24 June 1998 wherein the appeal was upheld and development application to subdivide Lot 73 DP 851902 at Brunswick Heads into 226 residential allotments was approved subject to conditions.

The Appeal

2. The respondent council has appealed to the Court pursuant to s 56A of the Land and Environment Court Act 1979 on the ground that it was not open to the Assessor to grant development consent contrary to cl 45 of the Byron Local Environmental Plan 1988 (the LEP) which provides as follows:-

The council shall not consent to the carrying out of development on any land to which this plan applies unless it is satisfied that prior adequate arrangements have been made for the provision of sewerage, drainage and water services to the land.

The Issues

3. In his judgment, at page 5, the Assessor referred to an Issues Conference convened by the Court where the parties agreed that the only issue was "the adequacy of the arrangements for disposing sewage, ie whether or not cl 45 of the LEP is satisfied".

4. During the hearing of this appeal the council tendered, without objection, a formal note of the issue stated as at 6 April 1998 at the Issues Conference as follows:-

IN CIRCUMSTANCES WHERE THERE IS ADEQUATE CAPACITY IN OCEAN SHORES SEWAGE TREATMENT PLANT TO TAKE EFFLUENT GENERATED BY THE DEVELOPMENT WHETHER AS A MATTER OF FACT THE DEVELOPMENT SHOULD BE PERMITTED TO RETICULATE SEWAGE TO THAT PLANT.

5. Also tendered without objection, by the applicant in the proceedings, the respondent to the appeal, is a copy of the written outline of submissions made to the Assessor on behalf of the council.

The Council's Case

6. The council's argument before the Assessor had two aspects to it.

7. Firstly, that as a matter of fact, it is not good planning, on a number of grounds, to divert effluent from the proposed development to the Ocean Shores STP. Brunswick Heads, where the subject land is situated, is in a different catchment from Ocean Shores. There was no issue before the Assessor that the nearest treatment plant at Brunswick Heads is already loaded to capacity.

8. Secondly, the council argued that as there are no prior adequate arrangements in place for the diversion from Brunswick Heads STP to Ocean Shores STP, cl 45 of the LEP could not be satisfied without an agreement with the council. The Court did not have jurisdiction to make the necessary arrangements or enter into an agreement pursuant to s 25 of the Water Supply Authorities Act 1987 on behalf of the council ( Kogarah M.C. v Kent (1981) 46 LGRA 334 and Strathfield M.C. v Drew (1985) 1 NSWLR 338 and the other authorities referred to in Alumino Australia Pty Ltd v Minister Administering Environmental Planning and Assessment Act 1979 & Ors (1995) 88 LGERA 388 at 393-5).

9. In the final paragraph of his judgment the learned Assessor accepted a submission made on behalf of the council that an approval of the development application by the Court does not compel the council to enter into the required agreement with the applicant.

10. However, the Assessor then expressed the trust that, as a responsible authority, the council will do those things necessary to implement the decision of the Court.

11. These closing remarks are significant in the context of whether, on an appeal pursuant to s 56A, the Court can accept that there was evidence of an arrangement in the sense of an agreement, or even an understanding which had been reached, with the council.

12. Indeed the indication is to the contrary, namely that the council strenuously opposed the proposal to divert effluent to Ocean Shores STP as planned by the applicant company.

The Response to the Council's Case

13. It is sufficient for present purposes, particularly in the light of the repeal of the relevant division of the Water Supply Authorities Act 1987 by the Environmental Planning and Assessment (Amendment) Act 1997, to note that at the relevant time an authority could enter into an agreement with the owner of any land within its area providing for the construction of such works as may be specified in the agreement pursuant to s 25, or could issue a compliance certificate pursuant to ss 26 and 27 to the effect that the development the subject of an approval under the Local Government Act 1919, the LocalGovernment Act 1993 , or a development consent under Pt 4 of the EnvironmentalPlanning and Assessment Act 1979 complies with the requirements of the division. The council is in the present circumstances an authority within the meaning of the Water Supply Authorities Act 1987 .

14. Mr Wilson, appearing for the respondent on the appeal, points to the obvious difference between prior adequate arrangements having to be made pursuant to the provisions of cl 45 of the LEP and the implementation of the arrangements pursuant to an agreement under the provisions of s 25 of the WaterSupply Authorities Act 1987 on the one hand or a certificate of compliance under ss 26 and 27 on the other.

15. The Court agrees with Mr Wilson that the powers, duties and functions, including discretions, under the Water Supply Authorities Act can be exercised independently of a determination under cl 45 of the LEP. Compliance with the respective statutory requirements are separate hurdles which a developer must overcome before the development can be carried out ( Grace Bros Ltd v Willoughby M.C. & Ors (1979-81) 44 LGRA 400).

16. Mr Wilson contends that it was open for the Assessor to conclude that the proposal for a reticulation system, including pipes and associated structures and equipment facilitating delivery to the Ocean Shores STP, was itself an arrangement contemplated by cl 45. The Assessor, having determined that such arrangement was satisfactory the requirements of cl 45, had been satisfied.

The Findings by the Assessor

17. It is clear from a reading of the whole judgment, including the issue put before the Assessor, that he decided that, in his opinion, what the applicant for consent proposed was reasonable for the reasons contended by applicant's witnesses. This decision was reached over the arguments of the council's witnesses, which were mounted on a number of practical fronts.

18. The Assessor concluded at page 12 in response to the applicant's case that the proposed development:-

* will lead to a short to medium term environmental benefit,

* will not cause any long-term environmental harm and

* will not constrain the council's options for dealing with waste water management.

19. Thereafter followed his opinion that the prior arrangements for sewage are adequate and the intent of cl 45 of the LEP is met. In so doing, the Assessor rejected the argument put by Mr Leggat on behalf of council that since there is no prior contractual agreement between the applicant and the council in relation to the diversion, the prior arrangements for sewage cannot be considered to be adequate. The Assessor went on to recognise that an adequate arrangement does not mean a sealed and signed contractual agreement.

20. The Assessor said he appreciated there could be practical difficulties for any applicant for development consent if an agreement in the form of a contract was required before cl 45 could be satisfied.

21. It is apparent from the judgment that the underlying basis for the decision of the Assessor is that he was unable to accept that the requirement for the completion of a formal agreement for the provision of sewerage services was a necessary prerequisite to the satisfaction of cl 45. To that point the Assessor was correct.

22. He then appears to have proceeded further on the basis that an arrangement for the purposes of cl 45 might amount to no more than a submission by the applicant. The submission was considered by the Court and found to be satisfactory and reasonable after hearing the relevant evidence.

Determination of the Appeal

23. The finding by the Assessor overlooks the express words of cl 45 which refer to "prior adequate arrangements" which "have been made" before the council is entitled to consent to the carrying out of the development. It is clear from the use of the language in cl 45 and the general context that what must be shown is, at least, a willingness on the part of any relevant authorities to cooperate in a consensual way that may bring the scheme to fulfilment.

24. Although there is some evidence that officers of the council had invited the applicant to make a submission for disposal of effluent to the Ocean Shores STP, there is no evidence that the invitation or any endorsement of the response was embraced by the council itself. The conduct of the council's case below and on this appeal alone confirms that no consensus has been reached with the council.

25. The meaning of "arrangements" in cl 45 is a reference to preparatory measures or plans to carry the provision of sewerage, drainage and water services into effect. Depending on its status it can be something less than an agreement. Even a firm undertaking or an acceptance in principle might suffice if there is a demonstrated level of commitment sufficient to satisfy the council it is likely to come to fruition and be completed. It is a question of fact and degree according to the circumstance of each case.

26. The question of the provision of sewerage services is not strictly a matter the subject of the appeal. It is a matter which is raised as an issue to satisfy cl 45 of the LEP. The matter the subject of the appeal is the refusal of the council to give development consent.

27. The power to reach an agreement or to issue a certificate of compliance under the Water Supply Authorities Act has nothing to do with the development application as such. They are separate and distinct matters that arise independently and generally subsequent to the grant of any consent pursuant to the EPA Act.

28. The question would be more demonstrably free from doubt if the council was not coincidentally the authority for the purposes of the Water SupplyAuthorities Act . If a separate and independent authority had given the same evidence regarding the prospect of the provision of the services, the Court could not have entertained the appeal, because there could have been no argument to justify a finding that prior adequate arrangements have been made as required by cl 45. The authority itself would have denied its acquiescence in the proposal and that would have been an end to the matter.

29. Even if the decision to allow the diversion to Ocean Shores STP could be implicit in the grant of a development consent, the Assessor expressly stood back from making that and recognised he could not bind the council to implement the scheme. His expression of trust that the council will do those things necessary to implement the decision of the Court only serves to emphasise the lack of compliance with cl 45 of the LEP.

30. The agreement to limit the issue to that agreed at the Issues Conference did not free the Court from its statutory obligation to determine the appeal according to the law and within jurisdiction.

31. Section 39 (2) of the Land and Environment Court Act vests the Court with the same functions and discretions as the consent authority. Although the issues in contention between the parties on appeal may be limited by agreement, the Court is not thereby absolved from ensuring that any other matters that must be considered or established before a consent may be granted are taken into account and resolved.

32. In the present case the Assessor was led into error by the way in which the issue was framed. He appears to have assumed that if he reached a conclusion that it was reasonable for the developer to be permitted to reticulate sewage to Ocean Shores STP, then the appeal could be upheld.

33. Ultimately the council conducted the case on the basis that it was not reasonable for the developer to be permitted to reticulate the sewage in the manner suggested. Moreover the council expressly opposed it. The council did not accept that it would be bound to facilitate the implementation of the proposal by any decision of the Court in that respect.

34. The issue of adequacy and capacity to reticulate to Ocean Shores STP only arose in the event that the council failed in its primary submission that the development could not proceed until the "adequate arrangements" had been made. In the circumstances of this case that point should not have been reached.

35. For the reasons explained by the Court of Appeal in Strathfield M.C. v Drew , the making of a decision in respect of a general policy or a planning issue pursuant to a distinct statutory regime, such as the Water Supply Authority Act, is not to be regarded as relevant to a development consent. The Assessor therefore was correct not to take the matter of approval under that Act any further than he did.

36. However, the legal constraint imposed by cl 45 of the LEP leads to the inevitable conclusion that the Assessor, by granting consent, acted outside the jurisdiction of the Court.

37. The appeal is upheld.

Orders

1. Appeal upheld.

2. Development application to subdivide Lot 73 DP 851902 into 226 residential allotments is determined by refusing consent.

3. The exhibits may be returned.

I hereby certify that this and the preceding 8 pages are a true and accurate record of the reasons for judgment herein of the Honourable Justice R N Talbot

Associate