Director General of the Department of Land & Water Conservation v Nunkeri Pastoral Pty Limited [1998] NSWLEC 6 (6 February 1998)

[1998] NSWLEC 6

Land and Environment Court

of New South Wales

CITATION:	DIRECTOR GENERAL OF THE DEPARTMENT OF LAND & WATER CONSERVATION v. NUNKERI PASTORAL PTY LIMITED [1998] NSWLEC 6 (6 February 1998) [1998] NSWLEC 68
PARTIES:	DIRECTOR GENERAL OF THE DEPARTMENT OF LAND & WATER CONSERVATION v. NUNKERI PASTORAL PTY LIMITED
FILE NUMBER(S):	40108 of 1997
CORAM:	Talbot J
KEY ISSUES:	:-
LEGISLATION CITED:	Environmental Planning and Assessment Act
CASES CITED:
DATES OF HEARING:
DATE OF JUDGMENT:	02/05/1998
LEGAL REPRESENTATIVES:

JUDGMENT:

HIS HONOUR: By notice of approval to development under the provisions of s 92 of the Environmental Planning and Assessment Act, the applicant council granted consent for the construction of a retail building at 340 Bay Street, Brighton-Le-Sands, on 14 March 1991. The premises are owned by the first and second respondents, or interests associated with them. The business of a fruit barn selling goods by retail is conducted at the premises by the third and fourth respondent.

Condition 16 of the development consent provided:-

"The proposed pedestrian access at the rear of the property being removed when required by Council due to development on the adjoining Moate Avenue car park site"

On 26 February 1996 the council wrote to Mr A Constantino, who represents one of the owners of the property, setting out the condition to which I have just referred and stating that the development of the Moate Avenue car park site has now commenced and the pedestrian access is required to be removed as soon as possible to ensure the safety of the public. The letter addressed to Mr Constantino was followed by a document purporting to be a notice dated 21 March 1996 under the heading Unauthorised Use of Premises Part VI Division 4 Environmental Planning and Assessment Act 1979 which stated in the first two paragraphs:-

"The use of the premises at No. 340 Bay Street, Brighton-Le-Sands for the purposes of pedestrian access from the Moate Avenue Public Carpark into Brighton Fruit Barn is to cease in accordance with condition No. 16 of Development Consent No. C14/91 dated 14 March, 1991.

You are hereby informed that the use for access is to be terminated ` immediately ’".

Questions arise in these proceedings as to the construction to be placed upon condition 16 and the effect of the correspondence and notice issued by the council.

The evidence is that following the issue of the notice, within a few weeks at least, some building activity commenced on the property adjoining the subject site and known at that time as the Moate Street Carpark. The evidence also establishes that following receipt of the letter and the notice, the rear door to the premises was obstructed by the storing of stock used in connection with the retail business to the extent that it was not practicable to pass through the glass doorway provided in the opening at the rear of the building without removing that stock. Unfortunately, as is the case in many circumstances that come before this Court, difficulties with the construction and meaning of conditions do not become apparent until such time as some challenge is made as to what the real intent and purpose of conditions are.

There are two areas of ambiguity raised by the respondents in connection with the way in which condition 16 should be construed. Firstly, there is an argument regarding what the draftsman intended should be removed and to what extent. The council takes an approach which would have the consequence that the doorway itself should be removed and replaced by some permanent impenetrable fixture within the aperture. That is, it should be bricked up or otherwise enclosed in such a way that pedestrians cannot physically, no matter what arrangements they make, pass through that section of the wall. The respondents, as I understand the argument, regard the pedestrian access as being a reference to the use to which that part of the premises is to be put rather than the structural nature of the wall or part of the building itself. In other words, the respondents would have the Court construe condition 16 as if any requirement of the council could be satisfied by merely making it impracticable for pedestrians to use the doorway for the purpose of gaining access to the car park site at the rear.

The respondents point to the manner of expression used in the letter dated 26 February 1996, and the notice dated 21 March 1996, to support their contention by saying that the wording and expressions used reflect the same construction on the part of the council officers. Further, the correspondence and the notice do not, in terms, require the removal of the doorway or the door as the council now contends. The notice itself refers, as I have already set out, to the use of the premises for the purposes of pedestrian access from the car park into the fruit barn. It also requires that the use for access be terminated. On the other hand, the letter of 26 February uses words reflecting condition 16 itself requiring the pedestrian access to be removed.

Conditions of development consent, although they are enforceable at law and are designed to regulate the activities and use of premises the subject of a development consent in accordance with the provisions of the EPA Act, have to be regarded as something other than a statutory enactment, requiring strict construction, and given a working or practicable application by having regard, if necessary in the case of an ambiguity, to the purpose of the condition.

Ms Scott, for the third and fourth respondents, seeks to persuade the Court that the reference to development on the adjoining Moate Avenue Carpark site, where used in condition 16, is to be confined to a reference to actual physical activity involving structural additions or changes in the sense of redevelopment of that land and that the purpose of the condition is to protect pedestrians from danger that might arise as a consequence of the use of equipment and machinery and the like by effectively barring their capacity to access the Moate Avenue Carpark site while the building activity is taking place. Ms Duggan on the other hand, on behalf of the council, argues quite reasonably that the use of the word development must be given the meaning attributed to it by the EPA Act and that the definition encompasses a range of activity and uses not only of a transient nature but those having a permanent and long-standing effect on the land where the development takes place.

Ultimately, in my opinion, nothing of significance turns on the meaning of the word development. The real argument, it seems to me, is whether the council is right to address the condition as if it involves a direction to remove the door and the doorway so there is a permanent rather than a transitory change to the capacity to use that part of the premises for the purposes of ingress and egress by pedestrians. It is not an intervening action according to the council, but rather a permanent change to the structure of the building. On the other hand, when the Court has regard to condition 16 itself, it is open to the construction that the use of the word access indicates the use of part of the premises rather than its structural configuration.

By adopting a purposive approach and thereby seeking to remove the ambiguity that otherwise exists when construing the condition according to the ordinary meaning of the words used, the Court can be satisfied that the intention was to enable the council to require that access be denied in such a way that pedestrians could no longer gain entry to the building or exit from the building across or through the adjoining site. There is no imperative arising from the condition which dictates a specific structural change. It is reasonable to expect that if the council intended for the opening to be bricked up and physically permanently changed as a structure, then it would have said so. It did not, all it required was that the pedestrian access be removed. The language raises a context of use rather than structure. The use can be constrained in a number of ways, including the manner in which the council contends. However, that is not what the council's notice said. The council did not require that the door be removed. The council did not require that the wall be bricked up. The council merely took up the wording of the condition and said remove pedestrian access. It is required that the use for access be terminated.

Although the actions taken on behalf of the respondents, or some of them, may not be the ultimate or most perfect way to achieve the removal of the access, nevertheless the evidence shows that steps have been taken to deny pedestrians the ability to pass through the doorway at the rear of the building. That, according to the construction adopted by the Court, is in accordance with the terms of the letter dated 26 February 1996 and the formal notice dated 21 March 1996 and therefore relevantly compliance with the demands of council.

Accordingly, the Court is not prepared to make the orders which the council seeks. Although they do no more than reiterate the requirements of condition 16 as a consequence of the issue of the notices, it is not necessary for any orders to be made. Having regard to the evidence, the respondents have, in practical effect, carried out the requirements of the law. In those circumstances the Court should not make any orders.

The council has been unsuccessful in the proceedings. The respondents are entitled to an order for their costs. The application is dismissed. The applicant is ordered to pay the costs of each of the four respondents. The exhibits may be returned.

I HEREBY CERTIFY THAT THIS AND THE PRECEDING 4 PAGES ARE A TRUE AND ACCURATE RECORD OF THE REASONS FOR JUDGMENT HEREIN OF THE HONOURABLE JUSTICE R N TALBOT.

ASSOCIATE