Georges River Council v Eskander

[2024] NSWLEC 98

Land and Environment Court

New South Wales

Medium Neutral Citation:

Georges River Council v Eskander [2024] NSWLEC 98

Hearing dates:

21 May 2024

Date of orders:

26 September 2024

Decision date:

26 September 2024

Jurisdiction:

Class 1

Before:

Robson J

Decision:

See orders at [69]

Catchwords:

APPEAL — Appeal on a question of law — Appeal pursuant to s 56A of the Land and Environment Court Act 1979 (NSW) — Appeal against a Commissioner’s decision — Whether Commissioner was satisfied that adequate arrangements had been made for suitable vehicular access when required — The fact that there was an existing application to obtain an easement cannot amount to an arrangement — Proceedings remitted back to Commissioner for consideration

Legislation Cited:

Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 4.16, 4.17

Georges River Local Environmental Plan 2021, cl 6.9

Land and Environment Court Act 1979 (NSW), ss 40, 56A

Cases Cited:

4nature Incorporated v Centennial Springvale Pty Ltd (2017) 95 NSWLR 361; [2017] NSWCA 191

Ballina Shire Council v Palm Lake Works Pty Ltd [2020] NSWLEC 41

Codlea Pty Ltd v Byron Shire Council [1999] NSWCA 399; (1999) 105 LGERA 370

Crighton Properties Pty Ltd v Kiama Municipal Council [2006] NSWLEC 297; (2006) 146 LGERA 271

El Khouri v Gemaveld Pty Ltd [2023] NSWCA 78

Eskander v Georges River Council [2024] NSWLEC 1006

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28

Sydney Seaplanes Pty Ltd v Page (2021) 106 NSWLR 1; [2021] NSWCA 204

SZTAL v Minister for Immigration and Border Protection; SZTGM v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34

Category:

Principal judgment

Parties:

Georges River Council (Appellant)
Shady Eskander (Respondent)

Representation:

Counsel:
M Seymour SC (Appellant)
T F Robertson SC (Respondent)

Solicitors:
HWL Ebsworth Lawyers (Appellant)
Project Lawyers (Respondent)

File Number(s):

2024/00051891

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Land and Environment Court of New South Wales

Jurisdiction:

Class 1

Citation:

[2024] NSWLEC 1006

Date of Decision:

16 January 2024

Before:

Gray C

File Number(s):

2023/00091345

Judgment

Nature of appeal and outcome

1. In these Class 1 proceedings brought pursuant to s 56A of the Land and Environment Court Act 1979 (NSW) (‘Court Act’), Georges River Council (‘Council’) appeals on a question of law against the decision of a Commissioner of the Court to uphold an appeal by Shady Eskander and to grant development consent for the demolition of an existing dwelling and the construction of a detached dual occupancy at 12 Ogilvy Street, Peakhurst (‘site’).

2. Council has raised two grounds of appeal relating to the manner in which the Commissioner considered and applied cl 6.9 of the Georges River Local Environmental Plan 2021 (‘GRLEP’) which relevantly provides that development consent “must not be granted” unless the consent authority is satisfied that “adequate arrangements have been made to make [suitable vehicular access] available when required”. Effectively, the sole issue pressed by Council in this appeal is whether cl 6.9 prevents development consent from being granted.

3. For the reasons that follow, I find that the Commissioner’s judgment was affected by error on a question of law and that the matter should be remitted to the Commissioner to be determined in accordance with these reasons for judgment.

Background

4. The site is a rectangular-shaped allotment with a 20m frontage to Ogilvy Street. At the rear of the property there is a small narrow lot being Lot 8 in DP 239732 (‘Lot 8’) which is owned by Council. Lot 8 is contiguous with a small section of the site’s southern boundary and separates part of the site from otherwise adjoining David Place by less than 1m.

5. Lot 8 assumed a particular relevance in the hearing before the Commissioner because the proposed detached dual occupancy development provided that one dwelling was to be situated at the front of the site close to Ogilvy Street with vehicular access to Ogilvy Street, and a smaller secondary dwelling situated towards the rear of the site with proposed vehicular access to David Place. Such access from the secondary dwelling would require that vehicles traverse the less than 1m wide part of Lot 8 that separates the site from David Place. Some understanding of the position of Lot 8 in relation to the site is gleaned from the following aerial photograph.

6. The relationship between Lot 8 and the proposed access to David Place is also shown on the site analysis plan reproduced at annexure “A” to this judgment which indicates that other adjoining properties, being 28, and possibly 26, David Place, currently enjoy access over part of Lot 8 to David Place.

7. At the time of the hearing of the appeal before the Commissioner, a number of the contentions earlier raised in Council’s amended statement of facts and contentions had been resolved, leaving two remaining contentions. One contention related to the permissibility of the proposed front dwelling close to Ogilvy Street on the basis that Council contended that the extent of floor space dedicated to the “storage and display of art goods” in that dwelling went beyond a dwelling house use and, as such, constituted a separate and independent use of land. Of more relevance to the present appeal was Council’s remaining contention that, as a result of cl 6.9 of the GRLEP, there was no power to grant consent as there was, first, no existing legal right of access over Lot 8 and, second, that adequate arrangements had not been made for vehicular access to the secondary dwelling. Council also maintained that because cl 6.9 was a “jurisdictional precondition”, it could not be satisfied by a deferred commencement condition.

8. As will be seen, the Commissioner was aware that the proponent had initiated Class 3 proceedings in this Court under s 40 of the Court Act for an easement over the 1m wide part of Lot 8 between the site and David Place to facilitate vehicular access. As such, having determined the two remaining contentions in favour of the proposal, the Commissioner granted development consent subject to a deferred commencement condition which provided that the consent would not operate until the proponent satisfied Council (within 24 months) that there were “adequate written documents and plans” to address “[a]n easement for a right of carriageway over Lot 8 … for the benefit of [the site], to provide vehicular access to the secondary dwelling”.

Council’s grounds of appeal

9. In its summons commencing this appeal filed 9 February 2024, Council raises two overlapping grounds of appeal in narrative form each stating that the decision to grant consent was based on an “erroneous question of law”. First, the Commissioner’s application of cl 6.9 of the GRLEP was based on a misunderstanding of, or misdirection on, the content of cl 6.9 because a proper consideration of the requirements of cl 6.9 should have led the Commissioner to form the view that no adequate arrangements had been made for suitable vehicular access with the consequence that there was no power to grant consent. Second, whether, given cl 6.9, development consent could be granted subject to a deferred commencement condition (that adequate arrangements would be in place to provide for suitable vehicular access).

Legislative framework

10. Section 4.15(1) of the Environmental Planning and Assessment Act 1979 (NSW) (‘EPA Act’) sets out the matters that a consent authority is to take into consideration in determining a development application including “the provisions of any environmental planning instrument … that apply to the land to which the development application relates” (s 4.15(a)(i)). Relevantly, such provision was cl 6.9 of the GRLEP which provides:

6.9   Essential services

Development consent must not be granted to development unless the consent authority is satisfied that any of the following services that are essential for the development are available or that adequate arrangements have been made to make them available when required—

(a)   the supply of water,

(b)   the supply of electricity,

(c)   the supply of telecommunications facilities,

(d)   the disposal and management of sewage,

(e)   stormwater drainage or on-site conservation,

(f)   suitable vehicular access. (Emphasis added.)

The Commissioner's consideration

11. In summary, in a detailed judgment ([2024] NSWLEC 1006), having set out the background material and summarised the evidence, the Commissioner determined the two remaining contentions and found that the proposal was permissible. Relevant to the sole issue in the present appeal, the Commissioner was satisfied that adequate arrangements for suitable vehicular access had been made. To provide context for the detailed submissions made by the parties in this appeal, it is appropriate to consider more closely the Commissioner's reasoning in this regard.

12. The Commissioner was conscious that Council had contended that Lot 8 was private land held in fee simple by Council and could not offer suitable vehicular access to the site because there was no legal right of access over Lot 8 and adequate arrangements for vehicular access had not been made. The Commissioner recorded Council’s position that cl 6.9 of the GRLEP was a jurisdictional precondition which Council maintained could not be satisfied by a deferred commencement condition and referred to the various authorities raised in argument by Council.

13. The Commissioner then dealt with two arguments raised by Mr Eskander in relation to access over Lot 8. First, an argument that Lot 8 itself was a public road, a position the Commissioner did not accept; and second, that adequate vehicular arrangements had been made. At judgment [61]-[70], the Commissioner accepted the second argument for three reasons.

14. First, the Commissioner found that Lot 8 provides a physical method of access and that it was capable of servicing the proposal in circumstances where there was no requirement for any works to be carried out (noting that Lot 8 is sealed in the same way as David Place) and that part of Lot 8 is already being used by adjacent properties to provide similar vehicular access to 28 David Place. The Commissioner specifically found that there would be no unacceptable impacts from the use of Lot 8 for access to the site.

15. Second, the Commissioner was aware that a process was already in place to obtain a legal right or entitlement to traverse Lot 8 (to access the secondary dwelling) and that discrete proceedings had been commenced for that purpose. Moreover, she did not accept Council's position that an enforceable right is required to be in place prior to the grant of development consent. The Commissioner (at judgment [63]) found that cl 6.9 specifically (and deliberately) provided scope for the Court to be satisfied that “adequate arrangements have been made to make [the services] available when required”, and relevantly, the fact that an easement will need to be obtained to make that service “available when required” did not prevent such satisfaction.

16. Third, the Commissioner found that Council had not provided any evidence that there would be a legal impediment to obtaining the grant of an easement. The Commissioner considered the evidence comprising Council’s internal consideration and documentation leading to Council, at a meeting on 23 October 2023, resolving to refuse to grant Mr Eskander's earlier request for an easement over Lot 8. She found that the evidence in relation to Council’s internal consideration and documentation did not provide, or was not supported by, any strategic planning document or development control plan in relation to any proposed extension of David Place. The Commissioner noted (at judgment [64]) that in Council’s papers for the meeting of Council on 23 October 2023, Lot 8 was described as a “development control strip” which had been created “to prevent an adjoining owner gaining direct access to a public road for which the adjoining owner did not financially contribute to that road’s construction”.

17. In the above circumstances, the Commissioner found that it was appropriate to grant the development consent subject to the consent becoming operative only once the easement was obtained and, accordingly, imposed the deferred commencement condition.

Submissions in this s 56A appeal

Council’s position

18. Noting that the sole issue pressed in this appeal is whether cl 6.9 of the GRLEP prevented consent from being granted for the proposal, Council submits that the Commissioner's satisfaction that adequate arrangements had been made to make suitable vehicular access available was based upon five reasons. First, that the physical means of access to the site over Lot 8 was “suitable” (at judgment [61]); second, that there was a “process … already in place” to obtain “the legal right or entitlement to traverse” Lot 8 (at judgment [62]); third, that Council had not identified a “legal impediment to the grant of an easement” (at judgment [64]); fourth, that development consent could be granted for Lot 8 with no issue of owners’ consent (at judgment [71]); and fifth, that a deferred commencement condition could be imposed until an easement was “obtained” (at judgment [72]).

19. Council submits that an error in respect of any one of those five reasons vitiates the Commissioner's conclusion and submits that there were material errors in relation to two of the “expressed” reasons, with the result that the Commissioner’s conclusion that there were adequate arrangements in place, and therefore “power” to grant consent, was based on an error on a question of law.

20. Council submits that the Commissioner’s decision needs to be assessed as to whether there was a power to grant the consent given the proper construction of cl 6.9 of the GRLEP and the statutory context of ss 4.15(1)(a)(i), 4.16(1) and 4.17 of the EPA Act.

21. Council submits that, read in context, cl 6.9 of the GRLEP requires that all essential services must be provided, and explicitly prohibits the grant of consent unless the particular condition precedent has been fulfilled. The condition precedent being the formation of a positive state of satisfaction that the essential service is either available or that adequate arrangements have been made to make them available when required. And, by force of s 4.15(1)(a)(i) of the EPA Act, a consent authority must reach a state of positive satisfaction before the power becomes available in s 4.16(1) to grant consent and it is only in those circumstances that there is then power to grant consent subject to any condition (including any deferred commencement conditions) under s 4.17.

22. Council submits that there are temporal differences in the state of satisfaction required by s 4.15(1) of the EPA Act such that adequate arrangements must have “been made”, being a point of time in the past, and that “arrangements” for that service to be “available when required”, that is, in the future.

23. While accepting that cl 6.9 of the GRLEP does not require a formal contract or agreement, Council submits that there must be “something” to be relied upon. That is, some form of objective and tangible proof of the relationship between the site and a “supplier” (of a service) that is sufficient to constitute an arrangement as something that would be made and not merely speculated about: Crighton Properties Pty Ltd v Kiama Municipal Council [2006] NSWLEC 297; (2006) 146 LGERA 271 (‘Crighton Properties’) at [42].

24. Council points to various authorities mandating that proof of “arrangements” must exist such that a consent authority (or the Court on appeal) has before it an arrangement, and only is it then that the consent authority can determine whether such an arrangement is “adequate”.

25. Council submits that the text of the clause effectively requires several discrete items of information for tangible proof that an arrangement has been made, including – first, the identification of a supplier of a service; second, a reliable form of representation as to the availability and/or the type of the service; and third, the time by which the service can be provided.

26. Relying on Ballina Shire Council v Palm Lake Works Pty Ltd [2020] NSWLEC 41 (‘Palm Lake Works’) at [50]-[55] (Preston CJ of LEC), Council maintains that cl 6.9 of the GRLEP requires something tangible in the nature of an actual arrangement and a speculative process that may or may not result in a service being provided cannot form a lawful basis for the satisfaction that there is an adequate arrangement that has been made.

27. In the light of the above, although the Commissioner was required to determine whether an adequate arrangement had been made available for vehicular access to the site, Council submits that the evidence before the Court was that there was no consensual willingness on the part of Council which, as owner of Lot 8, was free to determine what use to make of the lot.

28. Council submits that the Commissioner’s finding, that there was an extant application to obtain an easement, was not an “arrangement”, let alone something that had “been made”, by which the Commissioner could have made an assessment of “adequacy”. The application for an easement could only be a contingent prospect of a future right or potential means for the proponent to gain legal access over Lot 8. Council maintains that the fact that there was an existing application for an easement under s 40 of the Court Act distracted the Commissioner from making proper findings regarding the presence or absence of an “arrangement” within the meaning of cl 6.9 of the GRLEP. Therefore, in the present circumstances, a consent authority simply cannot use a deferred commencement condition to overcome the proper operation of a provision.

29. Council accepts that, despite the relief presently sought in its summons commencing this appeal, if the Court upheld the appeal, the appropriate order would be for the matter to be remitted to the Commissioner for further determination.

Mr Eskander's position

30. Mr Eskander submits that whether the Commissioner had considered that adequate arrangements had been made is a question of fact and Council has not articulated precisely where the Commissioner's decision discloses legal error which is fatal to Council’s appeal under s 56A of the Court Act where the Court’s jurisdiction extends only to reviewing the decision on a question of law.

31. Mr Eskander submits that each of Council’s articulation of the five “reasons” (noted at [18] above) relates to a discrete question of fact and, moreover, that the Commissioner did not rely upon a deferred commencement condition because that condition was a consequence of the Commissioner’s anterior decision that adequate arrangements had been made.

32. Mr Eskander submits that Council’s contention that an “arrangement” must be bipartite, consensual, and necessarily involve the willing “supply” of a particular service is not correct when the terms of cl 6.9 of the GRLEP are properly considered for six reasons.

33. First, although cl 6.9 of the GRLEP refers to “services”, properly understood, vehicular access is not a service, nor is it “supplied”. Second, in any event, the word “supply” (used in subcll 6.9(a), (b) and (c)) is not used in cl 6.9(f), and any reasoning based upon “supply” is not appropriate. Third, “available” more appropriately means that access (which is more in the nature of a facility than a service) must be available (meaning that use can be made of it) at an appropriate time and it does not need to be “supplied” by anyone to be available. Fourth, given this context, an “arrangement” does not necessarily involve a consensual dealing. It can be a “right” or a “facility”, and nothing requires such a right or facility to be bipartite, consensual, or have other characteristics of an arrangement. Fifth, Council’s emphasis on the words “have been made” is only significant if Council’s strained construction of “arrangement” is applied. Moreover, arrangement can be seen as a result of something that imposes or brings order – so what is required is, for example, a plan, which, in the opinion of the decision-maker (here, the Commissioner) will be sufficient when executed to make the facility available when required. Sixth, although Council complains of uncertainty (and maintains that there must be assurance, not speculation, that an easement will be ordered by the Court for access in the Class 3 (easement) proceedings), cl 6.9 does not require this. What is required is an exercise of predictive judgment by the Commissioner on rational (and not speculative) grounds. As such, the Commissioner’s reasons for concluding that access will be available are based on her factual assessments.

30. Mr Eskander further submits that the Commissioner gave specific reasons for concluding that access can be available based upon her factual assessment and as such cannot be challenged in an error of law appeal – even in circumstances where the Court on appeal may disagree with her reasoning process and may not have reached the same conclusion.

31. Mr Eskander submits that Council’s reliance on decisions of the Court in relation to different provisions in different environmental planning instruments would not be accepted. The circumstances and specific provisions in those cases (including Codlea Pty Ltd v Byron Shire Council [1999] NSWCA 399; (1999) 105 LGERA 370 (‘Codlea’), Crighton Properties, and Palm Lake Works) involve taking a statutory exegesis and applying it in a different context.

32. Mr Eskander submits that the appeal in Crighton Properties turned on the difference in temporal elements between the State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (‘Seniors SEPP’) and the Environmental Planning and Assessment Regulation 2000 (NSW) (‘Regulation’) and not on the scope of “arrangement”. In any event, the Court did note that the satisfaction in relation to the relevant clauses (there being, cll 27(1) and 74(1)) of the Seniors SEPP did not necessarily involve an agreement with another as the relevant service could be provided by the developer: Crighton Properties at [43]-[44]. This is a point of distinction with cl 6.9 of the GRLEP which may also be satisfied by a unilateral plan.

33. In any event, Mr Eskander submits that Crighton Properties is at most authority for the construction of “arrangements” in the context of the Regulation and does not assist in the context of cl 6.9 of the GRLEP. Further, in Crighton Properties, the Court specifically excluded from an arrangement under the Regulation, a circumstance where the proposed development itself provided the services. Similarly, Mr Eskander submits that in cl 6.9 that option (to provide suitable vehicular access by a development proposal itself) is clearly available and would satisfy its terms, and it is therefore part of a wider concept of “arrangement”, used in its ordinary and natural meaning. As such, Crighton Properties does not provide the support to the construction of cl 6.9 for which Council contends.

34. Mr Eskander submits that in Palm Lake Works, the Court (on appeal) found that the Commissioner could not be “satisfied” that by imposing a deferred commencement condition (that the proposal will be connected to a reticulated water system and have adequate facilities for the removal and disposal of sewage), the proposed seniors housing development “will” be connected to a reticulated water system in circumstances where that outcome might not occur.

35. Mr Eskander submits that even relying upon (but not accepting) Council’s contention that “supply” required the identification of a “supp[lier] of the service of suitable vehicular access across from the site across Lot 8 to David Place” (as raised in Council’s written submissions at (38)), that “service” will be available, that is, it will be “supplied” upon the making of an order in the Class 3 (easement) proceedings presently on foot.

36. Mr Eskander further submits that the Court would not accept Council’s submission that the Commissioner found that the making of the application for an easement under s 40 of the Court Act was not itself an arrangement (to secure an easement for suitable vehicular access) because the Commissioner did not make that finding. Instead, having reviewed the evidence that Council relied upon to support its earlier decision not to grant the easement, the Commissioner specifically found that there was no physical or legal impediment to the future grant of the easement (at judgment [70]), and as such, she was satisfied that, adequate arrangements had been made.

37. Finally, Mr Eskander submits that the Commissioner agreed (at judgment [72]) that compliance with cl 6.9 of the GRLEP could not be achieved by a deferred commencement condition, however, the Commissioner only turned to the imposition of that condition after finding there was an adequate arrangement in place. And, the deferred commencement condition was to ensure that works did not commence before the easement was granted. That is, a deferred commencement condition was not imposed to overcome a prohibition in cl 6.9. Further, the imposition of the condition was clearly not one of the three reasons noted (at judgment [61]-[64] and [14]-[16] above) for the Commissioner's finding that cl 6.9 had been satisfied.

Consideration

42. As the primary issue in this appeal is whether cl 6.9 of the GRLEP, properly understood and applied, prevented consent from being granted, it is appropriate to make some brief observations regarding the construction of statutory instruments.

43. The starting (and end) point is the text itself, and regard may be had to the context (understood in a broad sense) in which it appears and the objective it was designed to promote: SZTAL v Minister for Immigration and Border Protection; SZTGM v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 at [14]; 4nature Incorporated v Centennial Springvale Pty Ltd (2017) 95 NSWLR 361; [2017] NSWCA 191 (‘4nature’) at [51]. And, while the purpose underpinning an instrument guides the preferred meaning to be given to the words being construed (Sydney Seaplanes Pty Ltd v Page (2021) 106 NSWLR 1; [2021] NSWCA 204 at [31]), the natural and ordinary meaning of the words employed is also to be considered and given effect: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [78].

44. Although some allowance must be given to the fact that environmental planning instruments are generally drafted to achieve practical concerns, I remain conscious that there is no principle requiring “laxity or flexibility” in construing such instruments: 4nature at [45].

45. Adopting the principles noted above, and with appropriate parsing reflecting the actual circumstances before the Commissioner, cl 6.9 of the GRLEP provides that consent must not be granted unless the consent authority is satisfied that adequate arrangements have been made to make suitable vehicular access available when required. The determinative words are “adequate arrangements” and “have been made”.

46. Both parties referred to authorities in this Court where not dissimilar wording in various environmental planning instruments has been considered. As will be seen, while persuasive, I do not consider that those authorities are determinative in this appeal.

47. In Crighton Properties, Preston CJ of LEC considered cll 27(1) and 74(1) of the Seniors SEPP, and cl 2(1)(h) of Pt 1 of Sch 1 of the Regulation. The Seniors SEPP relevantly provided:

27(1)   A consent authority must not consent to a development application made pursuant to this Chapter unless the consent authority is satisfied, by written evidence, that the housing will be connected to a reticulated water system and have adequate facilities …

…

74(1)   A consent authority must not consent to a development application made pursuant to this Chapter, to carry out development for the purpose of serviced self-care housing on land that adjoins land zoned primarily for urban purposes, unless the consent authority is satisfied, by written evidence, that residents of the proposed development will have reasonable access to:

(a)   home delivered meals,

(b)   personal care and home nursing,

(c)   assistance with housework.

and cl 2(1)(h) of the Regulation provided:

(1)   A development application must be accompanied by the following documents:

…

(h)   if an environmental planning instrument requires arrangements for any matter to have been made before development consent may be granted (such as arrangements for the provision of utility services), documentary evidence that such arrangements have been made.

48. The question was whether the precondition in cll 27(1) and/or 74(1) of the Seniors SEPP required arrangements to have been made before consent could be granted and therefore fell within the requirement within cl 2(1)(h) of Pt 1 of Sch 1 of the Regulation. If so, evidence that the arrangements had been made was required to accompany the development application. In the absence of such evidence, the council had rejected the development application. In finding that the council had wrongly rejected the development application, Preston CJ of LEC considered that cll 27(1) and 74(1) do not discretely require any “arrangements” for matters referred to in each clause. More relevantly, his Honour found at [42] that the word “arrangements” (in cl 2(1)(h)) bears the meaning given by the Court of Appeal in Codlea at [39]-[40], being “something in the nature of an understanding between two or more persons”.

49. In Codlea, the Court of Appeal considered the nature of “arrangements” in circumstances where the issue was whether, pursuant to cl 45 of the Byron Local Environmental Plan 1988, “prior adequate arrangements have been made for the provision of sewerage, drainage and water services to the land” with the council to connect a sewerage treatment plant to the development upon its completion. The Court of Appeal found that, in those circumstances, the Court (in a merits appeal before a Commissioner) could not stand in the council's shoes because the decision whether to provide the service could only lawfully have been made by the council, as the monopoly provider of sewerage and drainage services, and could only be made after exercising its judgment about the capacity of the plant to provide the service.

50. As noted above, Mr Eskander submits that cl 6.9 of the GRLEP is quite different to the position in Codlea as it provides a “statutory alternative” to reliance upon any agreement or willingness of a third party to provide suitable vehicular access, whereas there was no option in Codlea but to obtain the council’s agreement and that fact explains the Court’s consideration and meaning given to “arrangements”. I do not accept this submission. As considered later in this judgment, I find that the meaning given to “arrangements” in Codlea and Crighton Properties is appropriate for the application of cl 6.9. I also consider that Crighton Properties was not solely concerned with “arrangements” but required “evidence” that the seniors housing would have adequate sewage and water services. As such, apart from consideration of the meaning of “arrangements”, which I find persuasive, I do not consider that Codlea or Crighton Properties assists either party’s case.

51. In Palm Lake Works, the Court considered cl 28(1) of the Seniors SEPP, which provided:

(1)   A consent authority must not consent to a development application made pursuant to this Chapter unless the consent authority is satisfied, by written evidence, that the housing will be connected to a reticulated water system and have adequate facilities for the removal or disposal of sewage.

52. Preston CJ of LEC found that this clause established a condition precedent to the grant of consent, being the formation by the consent authority of a positive opinion of satisfaction that the water and sewer services “will” be connected, with such opinion to be formed on the written evidence before the consent authority at the time of its determination of the application. His Honour found that the Commissioner at first instance had misdirected herself in forming an opinion of satisfaction where her opinion was dependent upon a later application being made, and approval being given, to carry out works to extend the water and sewer mains in order to service the proposal for the seniors housing development.

53. Relevant to the present matter, Preston CJ of LEC found that the grant of consent with a deferred commencement condition did not enable the Commissioner to be “satisfied” under cl 28(1) of the Seniors SEPP because first, approval for the required water and sewer services might not be granted (in circumstances where the council had expressed serious concerns about the adverse environmental impacts of carrying out the works) and therefore the Commissioner was on notice that there was a likelihood that the council might not approve the works. And, second, the Commissioner’s satisfaction needed to be based on “written evidence” and where there was no such written evidence, such that the only stated basis for the Commissioner's opinion of satisfaction was the deferred commencement condition that was imposed on the consent that was granted.

54. Moreover, Preston CJ of LEC noted that that the deferred commencement condition of consent came into existence upon, and not before, the grant of consent in circumstances where cl 28(1) of the Seniors SEPP required the Commissioner to be satisfied by written evidence that the seniors housing development “will” be connected to a reticulated water system and have adequate sewage facilities before granting consent to the development application for that development.

55. In my view, properly construed, where the consent authority forms the state of satisfaction that suitable vehicular access is available, the prohibition on the grant of consent otherwise in cl 6.9 of the GRLEP is lifted and, subject to other relevant matters requiring consideration under s 4.15(1) of the EPA Act, development consent can properly be granted (with conditions where appropriate). However, if the consent authority cannot form that state of satisfaction, the prohibition remains and, as submitted by Council, cl 6.9 then provides a second pathway being that the consent authority is to be satisfied that “adequate arrangements have been made” that the “essential” service will be available “when required”.

56. I find that the state of satisfaction thereby requires consideration at a different moment in time, such that the adequate arrangements must have “been made”. That is, there must be a current “arrangement” that has “been” made. That “arrangement” is that the “essential” service (here, suitable vehicular access) be “available when required”, that is, in the future. Put another way, the service that is not presently available, will be available, and it will be available because adequate arrangements have “been made” to make it available.

57. Further, while it is clear that something less than a formal or binding promise is required, I find that there must be some form of objective and tangible proof to constitute an arrangement as something “made”. It is in this context that I accept the words quoted by Stein JA in Codlea at 378, to the effect that such an arrangement must be “at least, a willingness on the part of the relevant authorities to co-operate in a consensual way…”. However, as Stein JA also found, proof of such an arrangement must “exist” and must “pre-exist the ‘satisfaction’ of [the] council with [it]”. It is in this sense that I consider the comments of Preston CJ of LEC in Crighton Properties, that “arrangement”, within the context of an environmental planning instrument, means “something in the nature of an understanding between two or more persons” (at [42]), should be seen. Again, considered in this way, the fact that the arrangement is tangible, gives a consent authority the ability then to determine if the qualities or characteristics of an arrangement that has been made for the supply of (in this case, suitable vehicular access) a service in the future, is “adequate”.

58. With the above matters in mind, I find that the Commissioner in the present matter has not complied with cl 6.9 of the GRLEP in granting consent to the development application and misdirected herself in forming her opinion of satisfaction that adequate arrangements had been made to make suitable vehicular access available when required.

59. Although the position before the Commissioner was clearly different to the facts in Palm Lake Works, where the council had expressed serious concerns regarding the adverse environmental impacts of works to extend the water and sewer mains, while the Commissioner sought to achieve (or confirm) this result by granting consent subject to a deferred commencement condition, I consider that the deferred commencement condition of consent, while in many circumstances an eminently suitable approach, nevertheless could not enable the Commissioner to be satisfied under cl 6.9 of the GRLEP.

60. Simply stated, I find that the Commissioner's opinion of satisfaction was, to a material extent, dependent upon success being enjoyed by the proponent in the Class 3 easement proceedings brought pursuant to s 40 of the Court Act. As Council maintained its opposition to the grant of the easement, there remained a prospect that the Court would not grant the easement, and this would have been known to the Commissioner.

61. Read properly and literally (and taking into account its purpose), cl 6.9 requires the consent authority to reach a state of satisfaction that arrangements “have been made” and that those words must be given their proper meaning.

62. Although I find that the three reasons outlined (at judgment [61]-[64]) which grounded the Commissioner’s decision that adequate arrangements had been made to make vehicular access available, were findings that were available to the Commissioner on the evidence, they do not amount to arrangements that “have been made”.

63. Further, I do not accept Mr Eskander’s submission that the Commissioner’s expressed satisfaction could be seen as an “anterior” decision to her decision to grant consent with the imposition of the deferred commencement condition. It follows, for completion, that I also do not accept Mr Eskander’s submission that all that needs to be done is to have a “plan” which, in the opinion of the Court, will be sufficient when executed to make suitable vehicular access available when required.

64. For completeness, and not determinative of my findings, I note that Mr Eskander discretely submitted that the satisfaction of the consent authority in cl 6.9 of the GRLEP is not a jurisdictional precondition for the grant of development consent but merely a matter for consideration under s 4.15(1)(a) of the EPA Act based upon various comments of Leeming JA in El Khouri v Gemaveld Pty Ltd [2023] NSWCA 78 (‘Gemaveld’) at [58], [61] and [74]-[75].

65. As I understand Mr Eskander’s submission, he maintains that while s 4.15 of the EPA Act requires the GRLEP to be taken into consideration as a matter of “evaluative judgment” (Tcpt, 21 May 2024, p18(47)), it does not make the satisfaction required by cl 6.9 of the GRLEP a jurisdictional fact and, that, in order for the Commissioner to fall into legal error in the decision-making process, Council must now show that there was an absolute failure to take into account cl 6.9.

66. I do not accept this submission. I consider that it cannot be the case that there only be consideration of, and not satisfaction of, the matters in cl 6.9 as this would fundamentally undermine the objectives of the provision. As such, I do not accept Mr Eskander’s submission as I do not consider that the words of Leeming JA in Gemaveld were meant to overturn what I understand to be previous persuasive authority.

Conclusion

67. I find that the Commissioner erroneously applied cl 6.9 of the GRLEP when forming the view that arrangements for suitable vehicular access had “been made”. The Commissioner substituted the requirement in cl 6.9 – that there needed to be an adequate arrangement to make suitable vehicular access – with a different requirement such as commencement of a process which might result in an easement. This amounts to an error on a question of law which, in the circumstances, vitiates the Commissioner’s decision.

68. Given my findings above, it is appropriate that the Commissioner’s decision and orders be set aside and that the matter be remitted to the Commissioner to be redetermined according to law.

Orders

69. The orders of the Court are:

1. The appeal is upheld.

2. The decision and orders of Commissioner Gray made 16 January 2024 are set aside.

3. The proceedings are remitted to Commissioner Gray to be determined according to these reasons for judgment.

4. The respondent is to pay the costs of the applicant of the appeal.

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Annexure A (1858364, pdf)

Decision last updated: 26 September 2024