Gamkrelidge and Partners Pty Ltd v Randwick Municipal Council

[1988] NSWLEC 34

Land and Environment Court

of New South Wales

CITATION:	Gamkrelidge & Partners Pty Ltd v Randwick Municipal Council [1988] NSWLEC 34
PARTIES:	APPLICANT Gamkrelidge & Partners Pty Ltd RESPONDENT Randwick Municipal Council
FILE NUMBER(S):	10328 of 1988
CORAM:	Bignold J
KEY ISSUES:	:-
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Local Government Act 1919
CASES CITED:	Pioneer Concrete (Queensland) Pty. Ltd. v. Brisbane City Council (1980) 145 CLR 485; Grace Bros. Pty. Ltd. v. Willoughby Municipal Council (1981) 44 LGRA 422; Woolworths Limited v. Bathurst City Council (1987) 63 LGRA 55 ; Shoalhaven City Council v. Inter-Pacific Property Corporation Pty. Ltd. (unreported 18th December, 1987); Morris v. Woollahra Municipal Council (1966) 116 CLR 23 at p.32/33.
DATES OF HEARING:
DATE OF JUDGMENT:	12/07/1988
LEGAL REPRESENTATIVES:

JUDGMENT:

Bignold J.: This is an appeal under s.97 of the Environmental Planning and Assessment Act 1979 against the deemed refusal by the Respondent of a development application to erect a mixed development comprising 3 shops and 4 x 1 bedroom flats on land known as No. 57 Frenchman's Road, Randwick.

The proposed development involves a 2 storey building to be built to the boundary fronting Frenchman's Road, with the 3 shops located at street frontage and 4 undercover garages situate at the rear of the subject premises.

The 4 proposed flats are located at first floor level immediately above the proposed shops. A further 6 open-air car-spaces are provided in the rear yard area of the development site. It is apparent from the drawings accompanying the development application that vehicular access to the rear yard and car spaces and garages is to be gained by a lane (right of way) located at the rear of the development site. Vehicular access is not possible from the street frontage. Pedestrian access to the first floor flats is via a passageway or hallway forming part of the proposed building and flanking the eastern most shop giving access to and from Frenchman's Road.

The development application was made to the Respondent on 7th December, 1987. Both the written development application and the accompanying drawings described the land to which the development application relates as "No. 57 Frenchman's Road, Randwick". The former document also provided as the real property description "lot 15 DP 25257". Apparently the Respondent gave notification of receipt of the development application to a number of nearby occupiers including the proprietor of premises known as No. 49 Frenchman's Road. On 8th January, 1988 the Solicitors for that proprietor wrote to the Respondent raising objection on his behalf to the development proposal for the reason that "the proposal would immensely increase the vehicular use of the right of way to the rear of his premises .......... so as to create a nuisance". The Solicitors advised that they were "presently carrying out further investigations as to the permitted usages of the right of way with a view to seeking injunctive relief if necessary".

Additional written objections to the use of the right of way 'by members of the public' were received by the Respondent from the owners of No. 53, No. 55A and No. 55C Frenchman's Road. Similar objection was also received from the owner of No. 97 Clovelly Road (being the property situate to the north of the aforesaid right of way).

On 22nd December, 1987 the Respondent wrote to the Applicant calling for specified information "to make your application complete" including the following:-

"3. Written consent from the owner of the Right-Of-Carriageway at the rear of the site. In this case it appears to be owned M. Christodoulou and others. Also documentary evidence verifying legal access to the site via the right of carriageway.

4. Plans showing the means of disposal of stormwater drainage from the site."

On 20th January, 1988 the Applicant's Solicitors wrote to the Respondent providing evidence of the creation and operation of the right of way appurtenant to the development site asserting the sufficiency of the legal right thereby created and denying any entitlement of the owner of lot 9 to insist upon his consent being necessary to the use of the right of

way in connection with the development proposed for the development site.

Apparently despite this letter the Respondent on 22nd March, 1988 wrote to the Applicant advising that the development application would not "be given further consideration until such time as the consent of the relevant owners (of the right of carriageway) has been received".

Thereafter on 19th July, 1988 the Applicants commenced the present proceedings.

The Respondent filed at an earlier stage in the proceedings a statement of issues raising the question "whether lot 9 DP 25257 is land to which the subject development application relates so that the consent in writing of the owner of lot 9 to the said application is required by s.77(1)(b) of the Environmental Planning and Assessment Act 1979".

When the appeal came on for hearing the parties had jointly reformulated the questions of law (for which they sought the Court's determinations) as follows:-

"1. Whether lot 9 DP 25257 is land to which development application No. 384/87 relates?

2. Whether the consent in writing of any person other than the registered proprietor of lot 15 DP 25257 is required under section 77(1)(b) of the Environmental Planning and Assessment Act, 1979 in respect of the said development application?

3. Whether the respondent can validly impose as a condition of consent to development application No. 384/87 a requirement for the construction sealing and drainage of right of way registered No. G81570?"

The parties agreed that if either question 1 or 2 and question 3 were answered affirmatively the appeal should be upheld and development consent be granted subject to conditions agreed upon by the parties, but that if questions 1 and 2 were answered negatively or question 3 was answered negatively the appeal should be dismissed.

Accordingly I proceed to answer each of the questions seriatim.

QUESTION 1

This question is capable of involving in addition to a question of fact a question of law. Because the latter aspect is essentially related to question 2 I shall defer its consideration.

As a matter of fact it is clear beyond argument or doubt that lot 9 is not "land to which (the relevant) development application relates". Both the verbal description of "the land to which the development application relates" contained in the prescribed development application form and the graphical description contained in the plans accompanying that development application establish that lot 9 is not land to which the development application relates. The only relevant land is lot 15.

I find as a matter of fact that lot 9 is not land to which the relevant development application relates. Accordingly my answer to question 1 is 'No'.

QUESTION 2

Section 77(1) of the Environmental Planning and Assessment Act provides as follows:-

"77 (1) A development application may be made only by -

(a) the owner of the land to which that development application relates; or

(b) any person, with the consent in writing of the owner of the land to which that development application relates."

Section 77(3) relevantly provides:-

"(3) A development application shall -

(a) be made to the consent authority;

(b) be made in the prescribed form and manner;"

Clause 26(1)(a) of the Environmental Planning and Assessment Regulation 1980 prescribes the form of development application. The prescribed form includes a section A "Description of the land to which the development application relates".

The Note to the prescribed form contains 'Instructions for completing development application' and includes the following:-

"2. A plan ...... of the land to which the application relates must accompany the application indicating the following:-

(a) the location, boundary dimensions, site area .........

3. A plan or drawing ......... fully describing the proposed development shall accompany the application and, where applicable, that plan or drawing shall indicate the following:-

(a) the location of proposed new building or works (including extensions or additions to existing buildings or works) in relation to boundaries of the land; and

..............................................

..............................................

(f) proposed parking arrangements, vehicular ingress, egress and movements on the land (including dimensions where appropriate);"

To the extent that this question (in common with question 1) involves only a question of fact it is answered by my factual finding in relation to, and my answer to, question 1.

However as I have earlier mentioned it is possible that the question may involve a question of law in the sense that it may be possible to say that a development application will be defective unless it accurately, correctly and completely describes as land to which it (the development application) relates, land to which the proposed development also relates. Such a principle of law may be derived from the judgment of Stephen J. in Pioneer Concrete (Queensland) Pty. Ltd. v. Brisbane City Council (1980) 145 CLR 485, a case involving the interpretation of provisions of the City of Brisbane Town Planning Act 1964 including the phrase "the land to which the application relates or applies".

In his brief dissenting judgment at pp.510/511 Aickin J. in my respectful opinion correctly identified the competing interpretive choices (and the reasons why they were available) when he stated (p.510):-

"In the end the determinative consideration appears to be whether the starting point for the application of the Act and the various procedures thereunder is the identification of the land which is the subject matter of the application, or the ascertainment of the proposed use, independently of or at least separately from, the identification of the land."

The majority judgments in Pioneer adopted the latter interpretive choice (decisively influenced it appears by the extended statutory definition of 'use') whereas the dissenting judgments of Gibbs J. and Aickin J. adopted the former interpretive choice.

Pioneer has not been followed in N.S.W. In Grace Bros. Pty. Ltd. v. Willoughby Municipal Council (1981) 44 LGRA 422 Hope J.A. after citing Pioneer went on to say (p.425):-

"It would seem that this decision is inapplicable in New South Wales because of the definition of 'use' in the relevant Queensland legislation."

The matter is also concluded in this Court by the judgment of the Chief Judge in King v. Great Lakes Shire Council (1986) 58 LGRA 366 where His Honour after a close examination of the judgments in Pioneer and Grace Bros. expresses the following conclusion (p.380):-

"It would seem therefore that Grace Bros. is authority for the proposition that the jurisdiction of a council in New South Wales to entertain a development application is not dependent upon there being included in the application land the use of which is necessarily involved in the use the subject of the application. Accordingly, and notwithstanding that the evaporative ponds are a necessary part of the caravan park, I reject the submission that the development application is defective because it did not include in it land intended to be used for the ponds."

The Chief Judge in Woolworths Limited v. Bathurst City Council (1987) 63 LGRA 55 has re-affirmed the principle when he stated (p.62):-

"It has been held that an application is not incompetent or a consent invalid by reason of the circumstance that there is not included in the application land the use of which is necessarily involved in the use of land the subject of the application: see King v. Great Lakes Council (1986) 58 LGRA 366 at 372 and Grace Bros. Pty. Ltd. v. Willoughby Municipal Council (1981) 2 NSWLR 80."

The Respondent, faced with the state of existing authority (which was accepted by the Respondent), sought to distinguish on the facts both Grace Bros. and King on the ground that in the present case the use of the right-of-way was the sole means of vehicular access to the development site and hence was an essential and integral component of the proposed development.

In my opinion King, in particular, is not distinguishable on the facts and the principle established by that decision that I have earlier recited entirely concludes the case against the Respondent.

I would only add that if the matter were free of existing authority and the proper meaning of the phrase "the land to which the development application relates" in s.77(1) was an open question, I would myself construe the phrase as meaning "the land in respect of which the application is in fact made" cf. Pioneer at pp.497/98 per Gibbs J.

This conclusion means that it is strictly unnecessary to determine the alternative argument advanced by the Applicant assuming the right-of-way land was included in the land to which the development application relates. This argument was to the effect that since the registered proprietor of the development site (lot 15) is also the registered proprietor of the right-of-way interest appurtenant thereto and burdening lot 9, he was relevantly the owner of lot 9 for the purposes of s.77(1) of the Environmental Planning and Assessment Act. The argument in my opinion is clearly unsound and founders on the clear fact that though the owner of the dominant tenement is entitled to the benefit of the right-of-way appurtenant thereto and burdening lot 9, he is not the registered proprietor or owner of the servient tenement (lot 9) and hence is not relevantly the "owner of the land" for the purposes of s.77(1) of the Environmental Planning and Assessment Act.

Accordingly I answer question 2 'No'.

QUESTION 3

In his letter to the Registrar of the Court the Respondent's Town Clerk advised of conditions the Respondent "would seek to have imposed should the Court find in favour of the Applicant". The conditions included the following:-

"6. The right-of-way at the rear of the property being constructed, sealed and drained to the satisfaction of the Council's Chief Engineer."

The Respondent submitted that although it did not question the existence of statutory power to impose such a condition, in the circumstances of this case (where the servient tenement is not included within the land to which the development application relates) the suggested condition cannot validly be imposed. It was submitted that the grant of development consent to the subject development application would not extend to the land burdened by the right-of-way.

It is clear that s.91(3)(f) of the Environmental Planning and Assessment Act authorises, as a matter of power, the imposition of the suggested condition. That section is in the following terms:-

"(3) A condition may be imposed for the purposes of subsection (1) if it -

(f) requires the carrying out of works (whether or not being works on land to which the application relates) relating to any matter referred to in section 90(1) applicable to the development the subject of the consent."

The relevant s.90(1) matter in the present case is to be found in paragraph (i): "whether the proposed means of entrance to and exit from the development and the land to which that development application relates are adequate ........."

The Respondent's submission that the suggested condition could not be validly imposed in the present case because the grant of development consent to the development application would not extend to the servient tenement burdened by the right-of-way is contrary to the conclusion expressed by Hope J.A. in Grace Bros. where His Honour stated (p.425):-

"I have come to the conclusion that that part of No. 10 Malvern Avenue which was not suspended from the Willoughby planning scheme and was thus not within the terms of Interim Development Order No. 30 should not be treated as being within the terms of the consent, although a condition concerning it was attached to the consent, and remains a condition notwithstanding that the consent did not extend to that part of the land."

Once it is appreciated that the conclusion in Grace Bros. was reached without the benefit of the enabling power now conferred by s.91(3)(f) of the Environmental Planning and Assessment Act, that conclusion is a fortiori so far as concerns the present case.

Accordingly question 3 is answered 'Yes'.

Before leaving question 3 I would make two further observations concerning the imposition of suggested condition 6.

The first concerns the question whether the works required by condition 6 to be carried out themselves require further development consent. The second concerns the question whether the contemplated use of the right of way in connection with the proposed development is in accordance with the zoning controls operating under the relevant environmental planning instrument.

The first matter was only touched upon in the argument (although in supplementary written submissions it was reagitated on an entirely different basis to which I shall presently refer), doubtless because it raises quite a different question from the question (No. 3) asked. Since it was not fully or properly argued I do not think that I can finally determine the matter other than to say that it would appear that the carrying out of the physical works required to be undertaken on the right-of-way would itself be subject to planning control. This conclusion would appear to be inevitable as a matter of principle and is supported by the reasoning in both Pioneer Concrete and Grace Bros.

At the hearing question 3 was argued on the basis that the works required to be undertaken by condition 6 could be carried out if development consent therefor was obtained from the Respondent. Leave was given to the parties to address further written argument on question 3. The Applicant in its further written submissions advanced the argument that such development consent was not necessary because of the provisions of clause 89 and schedule 6 (clause 7) of the relevant planning instrument (the Randwick Planning Scheme Ordinance). These provisions are in the form of conventional savings provisions found in planning instruments made under Part XIIA of the Local Government Act 1919 (cf. cl.35 and Schedule 1 (clause 8) of the Environmental Planning and Assessment Model Provisions 1980).

Clause 89 provides:-

"Nothing in this Ordinance shall be construed as restricting or prohibiting or enabling the responsible authority to prevent or prohibit -

(a) the carrying out of development of any description specified in Schedule 6."

Schedule 6 (clause 7) provides:-

"The carrying out of any development required in connection with the construction, reconstruction, improvement, maintenance or repair of any county road or other road, except the widening, realignment or relocation of such road."

Relying on the definition of 'road' provided by s.4 of the Local Government Act 1919 and by the Concise Oxford Dictionary the Applicant submitted that the subject right-of-way in this case was properly classified as a 'road' within the meaning of cl.7 of Schedule 6 to the Randwick Planning Scheme Ordinance.

Accordingly it was submitted that no development consent was required for the construction etc of the right-of-way. It was also submitted that "works of drainage in association with the road are ancillary to" such road works and "would not require separate consent".

The Respondent's written reply to this further submission was that Schedule 6 read as a whole extended to "works which will be carried out by public authorities, namely undertakings providing services in railway, gas, electricity, water sewerage and drainage, water transport, air transport and road transport".

It was also submitted that 'road' appearing in cl.7 of Schedule 6, when read in context, meant 'public road'.

Again I do not think I can finally determine the question put in issue in the parties' supplementary submissions. There are four reasons for this conclusion. Firstly there are no relevant facts (either proved or agreed upon) concerning the precise physical state of the right-of-way and the manner in which it is used. Secondly, desirable though it is that all matters in dispute between the parties be resolved, it must be remembered that the question under present discussion arises in class 1 proceedings involving an appeal under s.97 of the Environmental Planning and Assessment Act 1979 which the Applicant has conducted on the basis that the right-of-way land need not be included within the land to which the development application relates. Thirdly the 3 questions in respect of which the parties seek the Court's determination do not directly raise the question now under discussion. Fourthly there remains outstanding the question of the 'use' (in the town planning sense) of the right-of-way which is left untouc

hed and hence unanswered by the Applicant's reliance (even assuming it to be totally effective) on the savings provision contained in the relevant planning instrument.

Moreover I do not think that the Applicant's submissions should be accepted.

In Shoalhaven City Council v. Inter-Pacific Property Corporation Pty. Ltd. (unreported 18th December, 1987) though not purporting to finally determine the question (because the judgment was given in interlocutory proceedings seeking an interlocutory injunction) I expressed the following opinion (pp.9-11) on the counterpart savings provision now contained in cl.35 of the Environmental Planning and Assessment Model Provisions:-

"The Applicant submits that the Respondent's operations on the subject land which it seeks to restrain do not have the benefit of this savings or exempting provision, on 2 grounds viz:-

(i) the requirement to obtain development consent under the Environmental Planning and Assessment Act is not relevantly a restriction or prohibition; and

(ii) the subdivisional roads in Deposited Plan 8770 are not relevantly roads.

Again it is not appropriate in these interlocutory proceedings to finally determine the question posed by cl.35 of the Model Provisions.

Nonetheless I do not think the Applicant is correct in submitting that the requirement to obtain development consent is not relevantly a restriction or prohibition within the meaning of the clause.

However I do think that there is considerable force in its submission that the savings or exemption is intended to apply to "roads", that are recognisably roads and not merely "paper roads".

In this respect it is instructive to consider the judgments of Kitto J. and Windeyer J. in The Permanent Trustee case. I do not pause here to cite from their judgments. In the particular context of s.224(3) of the Local Government Act their Honours were able to interpret the word "road" in a manner that included a mere "paper road". (see p.345 per Kitto J. and p.352/353 per Windeyer J.) However it needs to be remembered that in that case the lots fronting the so-called road had been separately disposed of in subdivision.

All this is in marked contrast to the present case where it appears that none of the lots fronting the five subdivisional roads has been separately disposed of and of course the statutory context is far removed. There is precedent in terms of principle for a restrictive interpretation to be given to certain planning savings or exempting provisions eg Morris v. Woollahra Municipal Council (1966) 116 CLR 23 at p.32/33.

It is at least arguable that a similarly restrictive interpretation of cl.35 is called for in the present case, because it it not likely that it was intended that any land the subject of a local environmental plan might be used for the purpose of making and constructing roads without the need for development consent to be obtained therefor. To qualify for exemption the land must be a road.

At all events in view of my tentative opinions concerning the status of the subdivisional roads I am not satisfied that the Respondent's operations on the subject land are clearly and unarguably entitled to the benefit of cl.35 of the Model Provisions."

I am not persuaded by the Applicant's written submissions in the present case that the views I expressed in that case should not be applied in the present case, though as I have noted there is no relevant evidence before me concerning the physical state of the right-of-way and its patterns of use, although it would appear that the present case does not involve a "mere paper road" as was the case in Inter-Pacific Corporation.

If the result in the present proceedings is (as I would hold) that although condition 6 may be validly imposed on the grant of development consent the question whether further development consent in respect of the works required by condition 6 to be undertaken on the right-of-way land remains an open question, this does not mean that the Applicant is at the mercy of the owner of the servient tenement because as the decision of Waddell C.J. in Equity in Kirkjian v. Towers (unreported 6th July, 1987) demonstrates, the Applicant being the owner of the dominant tenement has an enforceable right in equity to compel the owner of the servient tenement to consent, in terms of s.77(1) of the Environmental Planning and Assessment Act 1979, to any development application in respect of the works required to be undertaken on the right-of-way land in accordance with conditon 6 on the assumption that the exercise of that right is in accordance with the Applicant's entitlement as the owner of the dominant tenement (as would

appear to be clearly the case).

Finally this brings me to consider the question of the user (in the town planning sense) of the relevant right-of-way. Although the parties originally argued question 3 on the basis that the works required by condition 6 to be undertaken on the right-of-way were permissible if development consent were obtained, there was no evidence as to how the right-of-way land is zoned under the relevant planning instrument. In the course of writing this judgment I have had cause to look at the scheme map relevant to the Randwick Planning Scheme Ordinance and it appears to me that the right-of-way land is in fact included within a Residential Zone. If this is the case a genuine question may be raised as to whether the use of the right-of-way to provide access to the proposed development is a use that may be authorised by the grant of development consent. In Grace Bros. where the access to the approved shopping centre development involved land zoned residential the trial Judge Wootten J. expressed the view that "under the

Willoughby Planning Scheme Ordinance the use of the land for the road is permissible with the consent of the Council" p.415.

This conclusion was the challenged on appeal to the Court of Appeal. However in the result the Court of Appeal did not have to deal with the question - see pp.424-427 per Hope J.A.

But for the unresolved question concerning the user (in the town planning sense) of the right-of-way I would have upheld the appeal and granted development consent in accordance with my answers to all 3 questions (being entirely favourable to the Applicant).

However until the question of user of the right-of-way is clarified it is not appropriate that I grant development consent notwithstanding my answers to the 3 questions posed.

Accordingly I make the following orders -

1. The 3 questions be answered as follows:-

Question 1 - No

Question 2 - No

Question 3 - Yes

2. Liberty to restore on 7 days notice for the purpose of finally disposing of the appeal.

3. No order as to costs.

4. Exhibits to be returned.