Dermer v The Shire of Busselton
[2002] WASC 82
DERMER & ANOR -v- THE SHIRE OF BUSSELTON & ORS [2002] WASC 82
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASC 82 | |
| Case No: | CIV:1056/2002 | 28 MARCH 2002 | |
| Coram: | PULLIN J | 16/04/02 | |
| 17 | Judgment Part: | 1 of 1 | |
| Result: | Application for leave to amend statement of claim refused | ||
| B | |||
| PDF Version |
| Parties: | CHRISTOPHER EDMUND DERMER LORRAINE MARGARET LINGARD THE SHIRE OF BUSSELTON STEPHANIE ROSE FULLARTON J A HOLST PTY LTD |
Catchwords: | Procedure Application to amend statement of claim Property Strata Titles Act Subdivision |
Legislation: | Strata Titles Act 1985, s 4(2), (3) and (6), s 5B(2) and (4) , s 23, s 24 Transfer of Land Act 1893, s 68(1) |
Case References: | Austerberry v Corporation of Oldham [1885] 29 Ch D 750 Dermer & Anor v The Shire of Busselton & Ors [2002] WASC 15 Leros Pty Ltd v Terara Pty Ltd (1992) 174 CLR 407 Ryde Municipal Council v The Royal Ryde Homes (1970) 19 LGRA 321 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- LORRAINE MARGARET LINGARD
Plaintiffs
AND
THE SHIRE OF BUSSELTON
First Defendant
STEPHANIE ROSE FULLARTON
Second Defendant
J A HOLST PTY LTD
Third Defendant
Catchwords:
Procedure - Application to amend statement of claim - Property - Strata Titles Act - Subdivision
Legislation:
Strata Titles Act 1985, s 4(2), (3) and (6), s 5B(2) and (4) , s 23, s 24
Transfer of Land Act 1893, s 68(1)
(Page 2)
Result:
Application for leave to amend statement of claim refused
Category: B
Representation:
Counsel:
Plaintiffs : Mr D W McLeod
First Defendant : Mr A Roberts
Second Defendant : Mr L A Stein
Third Defendant : No appearance
Solicitors:
Plaintiffs : McLeods
First Defendant : Minter Ellison
Second Defendant : KPMG Legal
Third Defendant : No appearance
Case(s) referred to in judgment(s):
Austerberry v Corporation of Oldham [1885] 29 Ch D 750
Dermer & Anor v The Shire of Busselton & Ors [2002] WASC 15
Leros Pty Ltd v Terara Pty Ltd (1992) 174 CLR 407
Ryde Municipal Council v The Royal Ryde Homes (1970) 19 LGRA 321
Case(s) also cited:
Nil
(Page 3)
1 PULLIN J: The plaintiffs have made an application for leave to amend their statement of claim, which is opposed by the defendants. The background to this dispute is set out in my reasons for decision in Dermer & Anor v The Shire of Busselton & Ors [2002] WASC 15.
2 The plaintiffs seek to plead a number of additional facts and conclusions of law, which are set out in the plaintiffs' minute of proposed re-amended statement of claim dated 22 March 2002.
Conditions run with the land
3 The plaintiffs seek leave to plead that certain conditions imposed by the Minister for Planning and by the first defendant in relation to a subdivision of land process engaged in by the second defendant's predecessor in title, "ran with" the land purchased by Mrs Fullarton, the second defendant, and as a result support the plaintiffs' claim for an injunction restraining the second defendant from building her house. The background to this is that the first defendant granted approval to Peter John Dyson, pursuant to its Town Planning Scheme No 5, for a duplex development on Lot 58, by letter dated 25 March 1994 ("the Duplex Approval"). This is pleaded in the proposed par 15A of the minute.
4 A copy of the letter dated 25 March 1994 was handed to me by counsel for the plaintiffs. It was addressed to Mr Dyson's architect, and it gave planning consent for the duplex development, subject to compliance with certain conditions, one of which was that the development was to be in accordance with a plan approved by the first defendant, dated 25 March 1994, and another of which was that the maximum height of the structures was to be nine metres above natural ground level. The letter stated that approval was valid for 12 months, during which time a building licence should be obtained This constituted an approval for the change of use from single residential to duplex use and approval to construct a building in accordance with the plans referred to, providing the building was commenced within 12 months. The letter also stated:
"You are additionally advised that Council also considered the issue of vacant lot strata title applications on March 9, 1994. Council's future policy includes that 'a Duplex Development be fully constructed and landscaped prior to the approval by Council of Strata Titles'."
(Page 4)
5 That future policy was not applied to Mr Dyson's duplex proposals. Further background facts the plaintiffs wish to plead to support the plea that the conditions "run" with the land are:
"15B. The Duplex Approval was in respect of an existing residence on the western portion of Lot 58 now equating with Strata Lot 1 on Strata Plan 30396, and a proposed residence of a particular design on the eastern portion of the site equating with what is now the Fullarton property. …
15C. By letter dated 21 February 1995 to the then-owner of Lot 58, Peter John Dyson ('Dyson') the Minister for Planning approved a subdivision of Lot 58 under the appeal process of the Strata Titles Act 1985 ('the Minister's Decision'). That subdivision was ultimately registered at the Department of Land Administration on 13 March 1996 as Strata Plan 30396. The Minister's Decision was subject to conditions including the following:
'3. The Bylaws of the Strata Company shall include provisions to the effect that the design and treatment of any new buildings on the site shall harmonise with surrounding development to the satisfaction of both the Strata Company and the Council, and that the Bylaw may not be amended without the consent of the Council.
4. The subdivider making arrangements with the Council to ensure that prospective purchasers and successors in title of the lots created will be advised of those provisions of the Town Planning Scheme which will need to be considered when planning consent is applied for. (LA)'.
- ('the Minister's Subdivision Conditions').
15D. The Council of the First Defendant did on or about 3 May 1995 resolve to approve the strata plan pursuant to section 24 of the Strata Titles Act. The decision to issue that certificate was subject to conditions including the following:
(Page 5)
- '1. Full compliance with Planning Consent conditions and building licence conditions for the duplex development …
…
10. the subdivider to make satisfactory arrangements for Council to ensure purchasers are provided with a copy of Council's Planning Consent letter and approved plans, in that they are to comply with all conditions and are limited to construct to what the consent letter and plans have specified.
…
12. Preparation and endorsement of a Deed of Agreement between Council and the subdivider to ensure that appropriate Strata Company Bylaws are implemented to require development in accordance with the Planning Consent and compliance with Condition 3 of the Minister's letter of approval and that these Bylaws cannot be amended without the consent of Council.'
- - ('the Council Subdivision Conditions').
15E. The planning concerns underpinning the Minister's Subdivision Conditions and the Council Subdivision Conditions were principally:
(a) the maintenance of homogenous appearance of development in the locality;
(b) avoidance of change in design of buildings between approval of subdivision stage and proposal for construction stage, and in particular avoidance of completely different buildings being proposed at construction proposal stage in comparison with strata subdivision approval stage.
15F. The Minister's Subdivision Conditions and the Council Subdivision Conditions ran with Lot 58 and Strata Plan 30396 such that development could not thereafter
(Page 6)
- proceed otherwise than in accordance with the Minister's Subdivision Conditions, the Council Subdivision Conditions, or any deed or agreement entered into pursuant to such conditions.
- 15G. Dyson, entered into a deed with the First Defendant undated but stamped 9 November 1995 to give effect to condition 4 of the Minister's Subdivision Conditions and conditions 10 and 12 of the Council Subdivision Conditions ('the Dyson Deed').
15H. The Dyson Deed required (inter alia) by clause 2(b) that any person who purchased either of the lots the subject of the strata plan would be required to enter into a deed covenanting not to construct on that lot otherwise than in accordance with the Duplex Approval approved plans pleaded in paragraph 15B above.
15I. Upon acquisition by the Second Defendant from Dyson of the Fullarton Property, the Second Defendant entered into a deed with the First Defendant dated 28 February 1996 ('the Fullarton Deed').
15J. The Fullarton Deed was expressed as giving effect to the requirement of the Dyson Deed pleaded at paragraph 15F above. However the Fullarton Deed varied the obligation of the Second Defendant in comparison with the obligation that had pertained to a future owner under the Dyson Deed, in that construction on the Fullarton Property did not need to be in accordance with the approved plans for the Duplex Approval, but could be in accordance with 'such other plans as are approved in writing' by the First Defendant.
15K. Upon the registration of Strata Plan 30396, the bylaws which applied to the strata company in respect of that strata plan were the bylaws set out in schedule 1 to the Strata Titles Act 1985.
…
15N. At no time since the registration of Strata Plan 30396 have bylaws of the strata company been passed in
(Page 7)
- compliance with the Minister's Subdivision Conditions and the Council Subdivision Conditions.
- …
16A. The Application was for a proposal significantly different in substance from the Duplex Approval."
6 The contention that conditions "ran" with the land purchased by the second defendant appears in par 48D of the minute which reads:
" … by reason of:
(a) the differences between the Duplex Approval and the Planning Consent pleaded in paragraphs 15H; and
(b) the fact that the Minister's Subdivision Conditions and the Council Subdivision Conditions ran with the land as pleaded in paragraph 16A above
- the Planning Consent was a nullity."
7 The second defendant submits that the conditions did not "run with the land"; that the facts therefore do not give rise to any cause of action; and that as a result, leave to amend should be refused. To understand the submissions, it is necessary to refer to provisions in the Strata Titles Act 1985.
8 Section 5B(2) provides that:
"A strata plan lodged for registration shall be accompanied by a certificate given by the local government in accordance with section 23."
9 Section 5B(4) provides:
"When a strata/survey-strata plan is lodged for registration the Registrar of Titles shall allocate a number to the plan, and, if it complies with this Act and the regulations, shall register it in the prescribed manner."
10 Section 4(2) provides:
"Where a strata/survey-strata plan is registered under this Act, the lots comprised in the plan, or any one or more of them, may devolve or be transferred, leased, mortgaged or otherwise dealt
(Page 8)
- with in the same manner and form as land held under the provisions of the Transfer of Land Act 1893."
11 Section 4(3) provides:
"A strata/survey-strata plan shall, for the purposes of the Transfer of Land Act 1893, be deemed upon registration under this Act to be embodied in the Register; and notwithstanding the provisions of that Act, a proprietor shall hold his lot and share in the common property subject to –
(a) any interests for the time being notified on the registered strata/survey-strata plan; and
(b) any amendments to lots or common property shown on that plan."
12 Section 4(6) provides that:
"Subject to this section, any transfer, lease, mortgage or other dealing affecting a lot has the same effect in relation to the lot as a similar dealing affecting a lot on a plan of subdivision lodged pursuant to section 166 of the Transfer of Land Act 1893 has in relation to such a lot."
13 Section 23 provides:
"(1) Subject to this section, the certificate of the local government which is required by section 5B(2) to accompany a strata plan lodged for registration shall be in the prescribed form and shall certify –
(a) that the building shown on the plan has been inspected and that it is consistent with the building plans and specifications that have been approved in respect of the building by the local government or on appeal by order of the Minister to whom the administration of the Local Government (Miscellaneous Provisions) Act 1960 is for the time being committed by the Governor;
(b) in a case where –
(i) a building is divided into lots on the strata plan;
(Page 9)
- (ii) a building contains a lot on the strata plan; or
(iii) a building contains or comprises part of a lot on the strata plan,
that building is, in the opinion of the local government, of sufficient standard to be brought under this Act.
…
- (2) An application for a certificate under subsection (1) shall be granted by the local government and the certificate shall be issued where the local government is satisfied in respect of the matters referred to in that subsection and is also satisfied that –
(a) separate occupation of the proposed lots will not contravene the provisions of any town planning scheme prepared or adopted by the local government under the Town Planning and Development Act 1928;
(b) any consent or approval required under any such town planning scheme or under the provisions of the last-mentioned Act relating to any interim development order, has been given in relation to the separate occupation of the proposed lots; and
(c) the development of the parcel as a whole, the building and the proposed subdivision of the parcel into lots for separate occupation will not interfere with the existing or likely future amenity of the neighbourhood, having regard to the circumstances of the case and to the public interest.
(2a) In satisfying itself in respect of any matter referred to in subsection (1) or (2) a local government shall have regard to such considerations as may be prescribed to be relevant to that matter.
…"
(Page 10)
14 The reference in s 23(1)(a) to "the building shown on the plan" in the circumstances of this case, is a reference to the building that already existed in May 1995 and which stood on what is now Lot 1. It could not have referred to the building which had not been constructed but which was proposed, and plans for which had been approved, under the Duplex Approval back on 25 March 1994.
15 Section 24 of the Act provides that:
(1) Upon or at any time after the submission of building plans and specifications in respect of a proposed strata scheme to the local government in accordance with section 374 of the Local Government (Miscellaneous Provisions) Act 1960, an application may be made to the local government by or with the approval of the proprietor for a determination that a building, if constructed in accordance with those plans and specifications, will be, in the opinion of the local government, of sufficient standard to be brought under this Act as a building in a strata scheme.
(2) Upon or at any time after the submission of an application to the local government for approval of the development constituted by a proposed strata scheme in accordance with a town planning scheme or other requirement imposed by law, an application may be made to the local government for a determination that the local government is satisfied that the proposed development will not be contrary to any of the requirements referred to in section 23(2)(a), (b) and (c).
…
(5) A determination made by a local government under this section shall be in writing and a favourable determination may be issued subject to conditions relating to the proposed development of the parcel.
…
(7) Where a favourable determination has been made by a local government under subsection (1) and the local government having inspected the building is satisfied that the building is constructed in accordance with the plans
(Page 11)
- and specifications referred to in that subsection and that any condition attached to the determination has been complied with, the local government shall grant the certificate required by section 5B(2) or 8, as the case may require, so long as it is satisfied as to the matters in section 23(1)(c), (d) and (e) and 23(2).
- (8) Where a favourable determination has been made by a local government under subsection (2) and the local government is satisfied that any condition attached to the determination has been complied with, the local government shall grant the certificate required so long as it is satisfied as to the matters in section 23(1)."
16 I should observe immediately that s 24(7) and (8) could not have any application to the facts in this case. Section 24 applies in circumstances where a local government makes a determination about plans for a building to be constructed, the building is then constructed, the local government inspects the building and satisfies itself that the building is constructed and then grants a certificate under s 5B(2). Typically, the section will be employed when there is an application made to strata title an area of land upon which it is proposed to construct, say, home units which are at plan stage only. In such a case, a preliminary determination is obtained from the local government and then, when the home units have been constructed, the local government carries out its inspection and then grants a certificate under s 5B(2).
17 As can be seen from the letter from the Shire of Busselton dated 25 March 1994, the Shire was proposing to deal with all future duplex developments on the basis that if they concerned vacant land, the Shire would require the duplexes to be fully constructed prior to "approval" by council. That policy is understandable in terms of s 24. That would certainly be a way of ensuring that the problem which has developed in this case, did not occur. Section 24 did not apply in this case because, although the first defendant gave its determination about the plans for the proposed building on Lot 2, the building was never constructed, so it could not be inspected, and therefore the first defendant did not, and could not, have satisfied itself that a building on Lot 2 was constructed in accordance with the plans.
18 In this case, the certificate could only have been issued by the first defendant under s 23. It could not have been a certificate "pursuant to s 24", which the plaintiffs seek to plead in the proposed par 15D. Indeed,
(Page 12)
- the pleading is perhaps contrary to the note at the foot of the certificate, which refers to s 23(5), not to s 24. I say "perhaps" contrary, because the note does not state that the section is 23(5) is of the Strata Titles Act 1985. It seems likely, however, that was intended. The certificate was in the following form:
"CERTIFICATE OF LOCAL AUTHORITY
The Shire of Busselton, the local authority hereby certifies that-
(1) (
(b) the building has been inspected and the modification is consistent with the approved building plans and specifications relating to the modification;
(2) the building, in the opinion of the local authority, is of sufficient standard and suitable to be divided into lots pursuant to the Strata Titles Act 1985;
(3) where a part of a wall or building or material attached thereto encroaches beyond the external surfaceboundaries of the parcel on to a public road, street or way the Local authority is of the opinion that retention of the encroachment in its existing state will not endanger public safety or unreasonably interfere with the amenity of the neighbourhood and the local authority does not object to the encroachment;
(4) (a) any conditions imposed by the State Planning Commission have been complied with;
(b)
5-12-1995 [Signed]
Date Town/Shire Clerk
(Page 13)
- Delete whichever is inapplicable Delegated Officer Sec 23(5)"
19 The certificate seems to have been quite inappropriate for the circumstances of the case. The certification that "the building, in the opinion of the local authority, is of sufficient standard and suitable to be divided into lots …", would be appropriate for a high rise building with parts of the building to be strata titled. It was inappropriate for an area of land to be subdivided, with one lot to contain an existing building and one lot to consist of vacant land. The first defendant should have certified that the building (on Lot 1) had been inspected and was consistent with building plans and specifications approved by the local government (see s 23(1)(a)). Nevertheless, the certificate satisfied the Registrar of Titles, who registered the plan, following which separate certificates of title issued for Lots 1 and 2.
20 The Minister's Subdivision Conditions and the Council Subdivision Conditions were not complied with by Mr Dyson, the then owner of Lot 58. He did not include a provision in the by-laws of the strata company to the effect that the design and treatment of any new buildings on the site should harmonise with surrounding development to the satisfaction of the strata company and the council. The first defendant may have been able to withhold its certificate under s 23 until the by-laws contained such a provision. The proposed by-law provision was a consideration which the first defendant was entitled to take into account when considering the matters set out in s 23(2)(c). However, the council did not insist upon such a provision being included in the by-laws before issuing its certificate. Instead, the first defendant obtained a contractual promise from Mr Dyson, in the Dyson Deed, to give effect to Condition 4 of the Minister's Subdivision Conditions and Conditions 10 and 12 of the Council Subdivision Conditions. Mr Dyson also promised the first defendant, via the Dyson Deed, that any person who purchased either of the lots would be required to enter into a deed covenanting not to construct on the lot, otherwise than in accordance with the Duplex Approval approved plan. This did not happen. When Mr Dyson sold the land to the second defendant, she promised the first defendant, by virtue of the Fullarton Deed, that if she proposed to construct a building on her property, it would be in accordance with " … plans … approved in writing" by the first defendant. According to par 15J of the minute, the first and second defendants expressly agreed that the second defendant "did not need" to construct a house on her property in accordance with the approved plans for the Duplex Approval.
(Page 14)
21 Application was later made by the second defendant to the Shire of Busselton for consent to construct the building which is now under way and which is the subject of the present dispute. In view of the terms of the Fullarton Deed, the first defendant could not have required the second defendant to construct in accordance with the building approved in the Duplex Approval. It considered the application for planning consent in relation to the proposed building, and gave planning consent. That decision is under challenge via the existing pleadings, as explained in my earlier reasons for decision.
22 In my view, the conditions in the Minister's Subdivision Conditions and the Council Subdivision Conditions, did not run with Lot 58 and Strata Plan 30396, as the plaintiffs wish to plead in proposed par 15F of the minute of proposed re-amended statement of claim. The attempt to plead that the conditions "ran" with Lot 58 might be an attempt, by the use of terminology, to harness some common law rules relating to real property. If so, those rules do not assist the plaintiffs. At common law, the burden of a personal covenant affecting freehold land, does not run with the land. See Austerberry v Corporation of Oldham [1885] 29 Ch D 750 at 781-783. The original covenantor's successors in title are not bound. This is so whether the covenant is positive or negative. Thus, if A buys land from B and covenants with B to build a house on the land or not to build a house on the land, and A later sells the land to X, B cannot enforce the covenant against X at common law. This is so, even though X bought with notice of the covenant, and even though the covenant between A and B was expressed to bind A and A's successors in title. See Austerberry (supra) and Butt, "Land Law", 3rd ed par 1704. One device used to make the burden run with a succession of individual owners of land is by a series of contracts. However, that device will fail if one successor in title does not extract a covenant from the next, so that the chain is then broken. The equitable doctrine which allows the burden of restrictive covenants to run with land, is of no relevance in this case.
23 The plaintiffs also referred to the law concerning the effect of planning consents. The benefit of a planning consent inures for the benefit of subsequent owners and occupiers: Ryde Municipal Council v The Royal Ryde Homes (1970) 19 LGRA 321 at 324. A subsequent owner wishing to take the benefit of planning consent, must comply with any conditions imposed. However, the grant of planning consent does not oblige an owner or subsequent owner to construct a building in accordance with the approved plans. The owner or subsequent owner may choose not to build. Another application for planning consent for another building may be made. That is certainly the case here. The first
(Page 15)
- defendant, in the Fullarton Deed, expressly agreed that the second defendant "did not need" to construct a building in accordance with the approved plans for the Duplex Approval.
24 Furthermore, the discretionary authority given to the first defendant to grant planning consent under the Shire of Busselton District Planning Scheme No 20, is not an authority confined by the conditions which are found in the Minister's Subdivision Conditions and the Council Subdivision Conditions. The first defendant or its delegate was, of course, entitled to take into account amenity considerations which may have been similar to those taken into account when considering the proposed development on Lot 58 back in 1994 and 1995, but it or he was not obliged to approve only the plan which had been approved by council on 25 March 1994, ie the Duplex Approval.
25 Finally, registration of the title which Mrs Fullarton acquired from Mr Dyson, was a registration which freed the title from any burden which might run with the land. The plaintiffs' contention that the conditions ran with the land, I take to be a contention that the conditions constituted an "encumbrance", as that word is defined in the Transfer of Land Act 1893. If so, then s 68(1) of the Transfer of Land Act 1893 makes it clear that when the second defendant became the registered proprietor of her land, she held the same "absolutely free" from all encumbrances, other than those notified on the registered certificate of title for the land: Leros Pty Ltd v Terara Pty Ltd (1992) 174 CLR 407 at 418-419.
26 As a result, it is my opinion that the proposed par 48D and the pleaded facts leading to it, do not disclose an arguable cause of action, and leave to amend is refused. For the sake of clarity, I refuse to grant leave to amend to add pars 15A to 15K, 15N, 16A and 48D, for the above reasons.
The Williamson and Jancey approval
27 The plaintiffs also seek leave to plead in pars 15L, 15M and 16B to 16E.4, that Mrs Fullarton sought the approval of the present owners of Strata Lot 1 (Mr Williamson and Ms Jancey) to the application for planning consent in relation to the building under dispute; that Mr Williamson and Ms Jancey (who held 61 of 100 unit entitlements) gave approval to the application; and that Mr Williamson and Ms Jancey were "unaware of" the Minister's Subdivision Conditions, the Council Subdivision Conditions, the terms of the Dyson Deed, the variation in the obligation of the second defendant under the Fullarton Deed, and:
(Page 16)
- "16E.5 That the approval which the Second Defendant was seeking from Williamson and Jancey was an approval intended by the Second Defendant to stand as, or in lieu of, and with the effect of, a resolution of the strata company as contemplated by the Minister's Subdivision Conditions, the Council's Subdivision Conditions and the Dyson Deed.
16F. The First Defendant knew or ought to have known of Williamson and Jancey's unawareness of those matters …
16G. Had Williamson and Jancey been aware of these matters, they would not have given their approval to the Application.
16H. In the premises, the approval given by Williamson and Jancey was an approval of a different nature, substance and intent from an approval of the kind contemplated as pleaded at paragraph 16E.5 above.
…
48A. Further and in the alternative, in considering the Application and in granting the Planning Consent, the First Defendant by its delegate had regard, in the exercise of discretion, to the approval of Williamson and Jancey.
48B. In so doing, the First Defendant's discretion miscarried.
PARTICULARS
The First Defendant failed to have regard to the fact that the approval of Williamson and Jancey was not:
- (a) an approval of the strata company; or
(b) an approval given with knowledge of the matters pleaded at paragraph 16E above, and was an approval different in nature, substance and intent from an approval of the kind contemplated as pleaded at paragraph 16E.5 above. In light of the matters pleaded at paragraph 16H above, an approval of the latter kind was necessary and the First Defendant should have satisfied itself that there was such an approval.
(Page 17)
- 48C. In the premises, the Planning Consent was a nullity."
28 In my view, the proposed paragraphs 15L, 15M, 16B to 16H (inclusive) and pars 48A, 48B and 48C, attempt to plead facts which do not disclose any arguable cause of action. In my opinion, the "awareness" of Mr Williamson and Ms Jancey, and the whether the first defendant "knew" or "ought to have been aware" of Mr Williamson's and Ms Jancey's "unawareness" of the fact that their approval of the plans was "intended … to stand as, or in lieu of, and with the effect of, a resolution of the strata company", are all facts which will produce complicated false issues and disclose no arguable cause of action. It was submitted by counsel for the plaintiffs that the paragraphs were being pleaded because of the possibility that the defendants would plead that consent was given by Mr Williamson and Ms Jancey. In my view, this suggests that the pleading is a plea in anticipation, and this is another reason why the pleading of these paragraphs should not be allowed. For the sake of clarity, I refuse to grant leave to amend to add pars 15L, 15M, 16B to 16H and 48A, 48B and 48C, for the above reasons.
Paragraphs 48E and 48F
29 Finally, in proposed par 48E, the plaintiffs seek to plead that the first defendant, by its delegate, failed to have proper regard to considerations relevant to the exercise of its discretion. Two of those matters are said to be the Minister's Subdivision Conditions and the Council Subdivision Conditions. In my opinion, those conditions were not relevant considerations, for the reasons I have mentioned. Leave to amend in terms of par 48E.1 and par 48E.2 is refused. I would also refuse leave to amend in terms of par 48E.3. The particulars are confusing. Leave to add par 48F is refused in consequence. The pleading alleges that the first defendant, or its delegate, failed to have proper regard to relevant considerations, and the particulars then include allegations that the first defendant, or its delegate, "speculated" about certain matters. That is not a particular of a failure to have regard to relevant considerations.
30 I therefore refuse to grant leave to the plaintiffs to make any of the amendments referred to in the minute of proposed re-amended statement of claim dated 22 March 2002 (save for par 11A, which may be pleaded).
0
3
0