Hakea Holdings Pty Ltd v Louisiana Properties Pty Ltd

[2018] NSWCA 240

Court of Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Hakea Holdings Pty Ltd v Louisiana Properties Pty Ltd [2018] NSWCA 240

Hearing dates:

28 May 2018

Decision date:

24 October 2018

Before:

Basten JA at [1];
Meagher JA at [113];
Preston CJ of LEC at [114]

Decision:

(1)   Grant Louisiana Properties Pty Ltd (Louisiana) leave to file and rely upon the Notice of Contention attached to the Notice of Motion dated 5 June 2018.

 

(2)   Refuse Louisiana’s application for leave to file and rely upon the Notice of Cross-Appeal attached to its written submissions dated 26 June 2018.

 

(3)   With respect to the appeal by Hakea Holdings Pty Ltd and Caverstock Group Pty Ltd (“the appellants”) from orders made in the Land and Environment Court in proceedings 2016/261922:
(a)   allow the appeal and set aside orders (1)-(10) entered on 24 November 2017;
(b)   in lieu thereof, order that proceedings 2016/261922 be dismissed;
(c)   order that Louisiana pay the appellants’ costs of those proceedings.

 

(4)   With respect to the appeal by Hakea Holdings Pty Ltd from the award of damages made on Louisiana’s cross-claim in proceedings 2016/322081:
(a)   to the extent necessary, grant Hakea leave to appeal against order 4 (ordering payment of $30,000 by way of exemplary damages to Louisiana) entered on 17 May 2017;
(b)   allow the appeal and set aside the order;
(c)   in lieu thereof, substitute an order dismissing the cross-summons;
(d)   order that Louisiana pay Hakea’s costs of the proceedings, in the Equity Division and in the Land and Environment Court.

 (5)   Order Louisiana to pay the appellants’ costs of the proceedings in this Court.

Catchwords:

ENVIRONMENT AND PLANNING – consent – owner of lot constructed road on adjoining lot – owner of adjoining lot sought relief for trespass and breaches of Environmental Planning and Assessment Act 1979 (NSW) – whether road constructed without development consent – whether road constructed otherwise than in accordance with development consent – whether entry onto land for purpose of construction authorised by general right of access – Environmental Planning and Assessment Act 1979 (NSW), ss 76A(1)(a), 76A(1)(b), 124.

 

ENVIRONMENT AND PLANNING – erection of buildings – whether roadway following natural lie of land a “building” – whether construction certificate required – Environmental Planning and Assessment Act 1979 (NSW), ss 4, 81A(2).

 

LAND LAW – easements – section 88B instruments – right of access – description of “right of access” in s 88B instrument did not include right to construct trafficable surface – whether instrument’s express terms varied statutory short form meaning of “right of access” – whether construction a trespass – Environmental Planning and Assessment Act 1979 (NSW), Sch 8, Pt 14.

 

STATUTORY INTERPRETATION – contextual construction – use of dictionaries

  WORDS AND PHRASES – “building” – “erection” – “includes any structure” – “pass over”

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 149B
Conveyancing Act 1919 (NSW), ss 88B, 94, 96, 181A; Pt 1, Pt 14, Sch 8
Environmental Planning and Assessment Act 1979 (NSW), ss 4, 76A, 78A, 81A, 109H, 124
Interpretation Act 1987 (NSW), s 33
Land and Environment Court Act 1979 (NSW), s 20

Environmental Planning and Assessment Regulation 2000, cll 49, 50; cl 1 of Sch 1

Cases Cited:

Bowyer v Manly Council (LEC (NSW), Talbot J, 28 February 1997, unrep)
Eaton & Sons Pty Ltd v Warringah Shire Council (1972) 129 CLR 270
Mulcahy v Blue Mountains City Council (1993) 81 LGERA 302
O’Brien v Shire of Rosedale [1969] VR 112; (1968) 22 LGRA 262
Parramatta City Council v Shell Co of Australia Ltd [1972] 2 NSWLR 632
Royal Motor Yacht Club (Broken Bay) Pty Ltd v Northern Beaches Council [2017] NSWLEC 56
Ryde Municipal Council v The Royal Ryde Homes (1970) 19 LGRA 321

Category:

Principal judgment

Parties:

Hakea Holdings Pty Ltd (First Appellant)
Caverstock Group Pty Ltd (Second Appellant)
Louisiana Properties Pty Ltd (First Respondent)
Central Coast Council (Second Respondent)

Representation:

Counsel:
T S Hale SC / J S Tobin (Appellant)
C R Ireland (Respondent)

  Solicitors:
Watson Mangioni Lawyers (Appellants)
O’Brien Legal (First Respondent)
Central Coast Council (Second Respondent)

File Number(s):

2017/383389; 2018/47791

 Decision under appeal 

Court or tribunal:

Land and Environment Court

Jurisdiction:

Class 4

Citation:

[2017] NSWLEC 37; [2017] NSWLEC 147

Date of Decision:

29 March 2017

Before:

Moore J

File Number(s):

2016/261922; 2016/322081

headnote

[This headnote is not to be read as part of the judgment]

On 16 August 2005, Louisiana Properties Pty Ltd (“Louisiana”) obtained two related development consents. The first approved the development of a medical centre and nursing home on land it owned (“the Louisiana Consent”); the second approved subdivision of the land (“the Subdivision Consent”). Lot 101 (including the proposed nursing home) was to be on the western part of the land, abutting Louisiana Road. Lot 102 (including the proposed medical centre) was to be on the eastern part of the land, abutting Wyong Hospital land (“the Hospital Land”).

The Louisiana Consent contained a condition that Louisiana obtain an easement across the Hospital Land for the purpose of constructing a link road. The link road would connect Louisiana’s land to an existing road on the Hospital Land. The development plan annexed to the Louisiana Consent showed a road running from the Western boundary of Louisiana’s land to its Eastern boundary, meeting the proposed link road.

The Louisiana Consent, as subsequently modified, contained the following condition (“condition 16”):

“Prior to the issue of a Construction Certificate for the project, the layout and design for the part of the link road within and up to the eastern boundary of Lot 102 … is to be submitted to and approved by Council. All works to be designed in accordance with AS 2890. The pavement is to be designed to withstand all proposed loads including construction loads.”

On 28 December 2005 a plan of subdivision was registered. The plan and accompanying s 88B instrument identified a right of access benefiting and burdening both lots.

Lot 101 was purchased by Hakea in 2007; Louisiana retained lot 102. In August 2013, Hakea obtained development consent to construct the nursing home on lot 101 (“the Hakea Consent”). A condition of the consent was the construction of a means of access to, and egress from, lot 101 other than via Louisiana Road. The plans annexed to the consent showed a road running across lot 102 and connecting with the Hospital Land, the path of which differed from the road across the same land shown on the Louisiana Consent.

Hakea, through its building contractor Caverstock, built a road across lot 102 to the boundary of the Hospital Land. The link road on the Hospital Land is yet to be constructed.

Louisiana sought damages from Hakea on the basis that the construction of the road constituted a trespass. It further sought orders that Hakea and Caverstock remove the road and revegetate the land, pursuant to Environmental Planning and Assessment Act 1979 (NSW), s 124.

In his first judgment, the primary judge awarded exemplary damages of $30,000 for the trespass. He deferred for further hearing “the question of discretion” regarding what orders should be made under s 124. Following that further hearing, the judge ordered removal of the road and revegetation of the land under s 124.

The issues raised by the trespass claim and claim for relief under s 124 significantly overlapped; the key issues that emerged on appeal were:

(i)   whether the primary judge erred in holding that construction of the road breached Environmental Planning and Assessment Act 1979 (NSW), s 76A(1)(a) on the basis that it was carried out without development consent.

(ii)   whether the primary judge erred in holding that construction of the road breached Environmental Planning and Assessment Act 1979 (NSW), s 76A(1)(b), on the basis that the work was not carried out “in accordance with” a development consent.

(iii)   whether the primary judge erred in holding that construction of the road breached Environmental Planning and Assessment Act 1979 (NSW), s 81A(2), on the basis that it involved erection of a “building” without a construction certificate.

(iv) whether the entry onto lot 102 to construct the road was authorised by the right of access described by the registered plan of subdivision and accompanying s 88B instrument.

The Court (Basten JA, Meagher JA and Preston CJ of LEC) allowed the appeal and held:

In relation to (i):

(Per Basten JA and Preston CJ of LEC, Meagher JA agreeing)

1. A development consent is impersonal and connects to the land; Hakea, as the successor in title to lot 101, could rely upon the Louisiana Consent insofar as it benefited lot 101. Whether Louisiana consented to the construction was irrelevant to the question whether the construction was not authorised by the Louisiana Consent and in breach of s 76A(1): [30]; [70]; [120]; [122]-[123].

Parramatta City Council v Shell Co of Australia Ltd [1972] 2 NSWLR 632; Eaton & Sons Pty Ltd v Warringah Shire Council (1972) 129 CLR 270; Ryde Municipal Council v The Royal Ryde Homes (1970) 19 LGRA 321, applied.

(Per Basten JA)

2. The Louisiana Consent indicated that access to and from the land comprising lot 101 would be obtained by a roadway across the land comprising lot 102. The Hakea Consent did not apply to lot 102; accordingly, the road across lot 102 shown on the plan annexed to the Hakea Consent was merely indicative: [54]; [68]. The inconsistency between the alignment of that road and the Louisiana Consent road did not preclude the appellants from relying on the Louisiana Consent: [52]-[54]; [68].

(Per Preston CJ of LEC, Meagher JA agreeing)

3. Having implicitly concluded that there was a breach of s 76A(1)(a) in his first judgment, deferring solely the question of discretion under s 124, the primary judge erred by giving further reasons for finding a breach of s 76A(1)(a) in his second judgment: [120].

In relation to (ii):

(Per Preston CJ of LEC, Meagher JA agreeing)

4. Section 76A(1)(b) was not relied upon by Louisiana at trial; the primary judge exceeded his jurisdiction by finding it had been breached: [126].

(Per Basten JA and Preston CJ of LEC, Meagher JA agreeing)

5. To the extent that fresh evidence was adduced at the second hearing going to breach of s 76A(1)(b), it was admitted solely regarding the exercise of discretion under s 124. It was an error for the trial judge to rely on the fresh evidence to find breaches of s 76A(1)(b): [75]; [103]; [132].

6. Condition 16 constrained the circumstances in which a construction certificate could be issued for the project; it did not mandate the issue of a construction certificate before construction could occur. The reference to “the project” in condition 16 was ambiguous; however, even if the clause referred to the construction of the road, commencing construction without a construction certificate did not breach condition 16: [76]; [83]; [130].

(Per Preston CJ of LEC, Meagher JA agreeing)

7. In any event, the prerequisites in condition 16 regulated the “design” of the road; whether the road in fact constructed met those prerequisites was not determinative of whether the condition had been breached: [133].

In relation to (iii):

(Per Basten JA, Meagher JA and Preston CJ of LEC agreeing)

8. Though “building” is defined in the Act to “[include] any structure”, that definition must be construed in its statutory context: [89]; [92]. The Act contemplates a distinction between “buildings” and “works”, with the latter broader than the former, and further contemplates that buildings are “erected”: [95]. A roadway which follows the natural lie of the land is not a “building” for the purposes of the Act: [98].

Mulcahy v Blue Mountains City Council (1993) 81 LGERA 302, applied; Royal Motor Yacht Club (Broken Bay) Pty Ltd v Northern Beaches Council [2017] NSWLEC 56; O’Brien v Shire of Rosedale (1968) 22 LGRA 262, discussed.

(Per Preston CJ of LEC, Meagher JA agreeing)

9. As Louisiana did not rely upon s 81A(2), the primary judge exceeded his jurisdiction by finding it had been breached: [135].

In relation to (iv):

(Per Basten JA and Preston CJ of LEC, Meagher JA agreeing)

10. The right of access should be given the meaning attributed by Sch 8, Pt 14 of the Conveyancing Act 1919 (NSW), subject to any variations made by the terms of the s 88B instrument. The terms of the s 88B instrument did not relevantly vary the meaning attributed by Sch 8, Pt 14. Further, there was no reason to read the requirement that the easement be used to “pass across” the burdened lot as limited to entering the land from one boundary and exiting at another. Moving from part of the lot benefited to part of the lot burdened involved “passing across” the land: [59]-[63]; [149].

Judgment

1. BASTEN JA: In 2004 Louisiana Properties Pty Ltd (“Louisiana”) was the registered owner of land comprising a single lot of some five hectares adjoining the western boundary of Wyong District Hospital. Louisiana obtained a development consent from the consent authority under the Environmental Planning and Assessment Act 1979 (NSW), which was then Wyong Shire Council. The consent provided for the development of a medical centre on the eastern part of the land (abutting the hospital land) and a nursing home on the western part, which abutted Louisiana Road (“the Louisiana development consent”).

2. In August 2005 Louisiana obtained consent to subdivide its land, broadly on a north-south axis (“the subdivision consent”). The result was that the western part of the land (with the proposed nursing home) became lot 101 and the eastern part (with the proposed medical centre) became lot 102. There was no access to lot 102 along its eastern boundary, being the boundary with the hospital land. Lot 102 therefore included a panhandle, being a strip of land along the northern portion of lot 101 connecting lot 102 to Louisiana Road to the west. The Louisiana development consent has been modified on four occasions, most recently in 2009.

3. On 28 December 2005 a plan of subdivision was registered, with an instrument under s 88B of the Conveyancing Act 1919 (NSW) granting, relevantly for present purposes, the owner of lot 101 a right of access by way of easement over lot 102. Louisiana retained lot 102, but sold lot 101. Lot 102 is largely undeveloped; some preliminary clearing has been undertaken, but the medical centre has not been constructed. Lot 101 is now owned by Hakea Holdings Pty Ltd (“Hakea”), which has constructed a nursing home on the site. The nursing home was constructed pursuant to a development consent granted in August 2013 to Hakea (“the Hakea development consent”).

4. One aspect of the Hakea development consent was critical in the present proceedings. The Council considered Louisiana Road was flood prone and that the land was subject to a risk of bushfires. It required, as a condition of approval of the nursing home, a means of egress other than by the most direct route onto Louisiana Road. That was to occur by travelling east across lot 102 (still owned by Louisiana) so that a means of access and egress could be obtained across the undeveloped part of the hospital land. (The hospital land was and is owned by the Health Administration Corporation.) The Louisiana development consent had contained a condition that Louisiana obtain an easement across the hospital land and build a link road connecting with a perimeter road around the hospital buildings. The link road was to meet the boundary of lot 102 roughly at the midpoint of its eastern boundary. A plan of the proposed development is annexed to these reasons.

5. In order to satisfy the condition of its consent as to egress to the east, Hakea, through its building contractor, Caverstock Group Pty Ltd (“Caverstock”), built a road close to the northern boundary of lot 102 through to the eastern boundary, and then south to the point where the link road was to meet lot 102. It was that action which has given rise to the current dispute.

Procedural history

6. In order to understand how the issues were disposed of in the Land and Environment Court, it is necessary to provide some brief procedural history of the litigation.

7. For compliance with a further condition of the Hakea development consent relating to bushfire hazards, Hakea needed to clear an “asset protection zone” around the proposed nursing home; the zone extended on to the as yet undeveloped lot 102. In April 2016 Hakea commenced proceedings in the Equity Division seeking an easement over parts of Louisiana’s land in order to provide the required bushfire protection. On 14 October 2016, Darke J transferred the proceedings to the Land and Environment Court under Civil Procedure Act 2005 (NSW), s 149B. The proceedings fell within that Court’s class 4 jurisdiction. [1]

   1. Land and Environment Court Act 1979 (NSW), s 20(1)(cj).

8. In August 2016, whilst the proceedings were in the Equity Division, Louisiana filed a cross-summons, seeking orders restraining Hakea from coming onto lot 102, and claiming damages. Although there was no pleading of any cause of action, it was common ground that the claim was founded in an alleged trespass to land, involving the construction of the road.

9. On 31 August 2016 Louisiana commenced separate proceedings against both Hakea and Caverstock in the Land and Environment Court (class 4 jurisdiction) seeking a declaration that the road had been constructed “without development consent”. Louisiana also sought orders that Hakea and Caverstock carry out remedial work by removing the road and restoring and revegetating the land, such orders being available pursuant to s 124 of the Environmental Planning and Assessment Act. [2]

   2. References are to provisions of the Environmental Planning and Assessment Act as in force at the relevant time; the sections have since been renumbered.

10. The two matters were heard together by Moore J over 6 days in December 2016. On 29 March 2017, Moore J delivered a judgment upholding Hakea’s claim for the grant of an easement over lot 102 for an asset protection zone, and assessed the compensation payable for the easement. [3] There is no ongoing dispute between the parties in that regard. Further, accepting Louisiana’s case that the road had been built without a valid development consent, the judge ordered Hakea to pay exemplary damages of $30,000 to Louisiana with respect to the trespass to land. [4]

    3. Louisiana Properties Pty Ltd v Hakea Holdings Pty Ltd [2017] NSWLEC 37 (“first judgment”).

    4.    First judgment (29 March 2017) and orders made 17 May 2017.

11. The first judgment did not finally dispose of the claims by Louisiana with respect to the road. The proceedings brought pursuant to s 124 of the Environmental Planning and Assessment Act were adjourned to permit the parties to prepare for a further hearing as to whether an order should be made requiring the removal of the road and remediation of the land. An issue as to compensatory damages for the trespass also remained outstanding and was seen to depend on whether the Court would order remediation of the affected land.

12. A second hearing took place on 4 and 5 September 2017. A second judgment was delivered on 2 November 2017 and final orders were entered on 21 and 24 November 2017. [5] The Court ordered the removal of the road and restoration of the land, the cost of which was capped at a little under $600,000 (including interest). The claim for compensatory damages in trespass was dismissed, although the order for exemplary damages was not affected.

    5. Louisiana Properties Pty Ltd v Hakea Holdings Pty Ltd [2017] NSWLEC 147 (“second judgment”).

Issues at trial

13. Hakea contended that it had authority to construct the road over lot 102 because the work was a condition of the Louisiana development consent when Louisiana was the owner of the unsubdivided land, and that it had authority to come onto lot 102 to construct the road pursuant to the right of access granted by the s 88B instrument which accompanied the subdivision. The trial judge rejected the first contention on the basis that the condition did not form part of the Hakea development consent. However, Hakea asserted that it had not relied on its consent as authority to enter lot 102 to construct the road. Between the two hearings, Hakea raised, by a notice of motion dated 30 August 2017, an objection that the first judgment had not addressed Hakea’s submission that the road construction was authorised by the Louisiana development consent and the right of access. The judge accepted that he had not expressly identified a failure to comply with s 76A(1)(a) of the Environmental Planning and Assessment Act and gave reasons for his earlier implicit finding that there had been such a failure. Section 76A(1)(a) prohibits carrying out of development on land where consent is required, in the absence of such consent. This conclusion dismissed Hakea’s reliance on the Louisiana development consent.

13. The Hakea development consent showed an indicative line of the road across lot 102 running close to the northern boundary and directly onto the hospital land; that is, it did not turn south at the eastern boundary of lot 102, as provided in the Louisiana development consent. In the first judgment, the judge had held that, because the alignment of the road as built did not conform to the conditions of Hakea’s development consent, Hakea could not rely upon the Louisiana consent. He further held that, even if Hakea had been entitled on the basis of the Louisiana consent to construct the road, it could not be used as a means of access to or egress from Hakea’s land. That was because, although the road was substantially aligned with the plan which formed part of the Louisiana consent, and met the boundary of the hospital land at the appropriate point on lot 102, it did not connect with any proposed link road across the hospital land to the perimeter road, because none had been built. Accordingly the road did not satisfy the condition in either development consent.

14. In the second judgment, the judge also found a breach of s 76A(1)(b) of the Environmental Planning and Assessment Act, namely that the road had not in any event been constructed “in accordance with” the Louisiana development consent. The reasoning involved two limbs. The first reason depended on findings of non-compliance with two aspects of condition 16 of the Louisiana development consent; the second concerned the alignment of the road actually constructed. The latter finding depended upon further evidence called by Louisiana at the second hearing in an apparent attempt to contradict the finding made in the first judgment that the road did substantially comply with the plan annexed to the Louisiana development consent. Based on the additional evidence, the judge concluded that the alignment of the road did not conform to the Louisiana development consent.

Issues on appeal

16. The structure of the grounds of appeal tended to obscure the issues sought to be raised, which were more clearly revealed in the written submissions and in oral argument. There were nine grounds. Ground 9 asserted that the judge erred in holding that the appellants trespassed on lot 102 when undertaking the clearing and construction of the road. The claim in trespass was the only basis upon which Louisiana could claim damages. Hakea complained that Louisiana’s case as pleaded claimed only the absence of development consent with respect to the construction of the road on lot 102. In response, Hakea had relied upon the Louisiana development consent, as subsequently modified. It asserted that the trial judge had accepted in the first judgment that the line of the road substantially complied with that consent, but nevertheless upheld the claim in trespass.

17. In addition to reliance on the Louisiana development consent, Hakea relied on the right of access by way of easement created with the subdivision. Ground 8 alleged that the judge had erred in construing the right of access, not by reference to the terms in the instrument, but by reference to Pt 14 of Sch 8 of the Conveyancing Act. In response, Louisiana sought to rely on a notice of contention upholding the judge’s findings by construing the right of access, without reference to the terms set out in the Conveyancing Act. Louisiana relied upon an express conferral of such a power with respect to a right of carriageway conferred by the same instrument, but referable only to the panhandle on lot 101.

18. The notice of contention also asserted that, as the construction of the road was not authorised by any development consent, it could not have been authorised by an ancillary right of access under the s 88B instrument (contentions 8 and 9).

19. There was some irony in the fact that, at trial, it was Hakea which relied in part on the terms of Pt 14, Sch 8 of the Conveyancing Act in construing the right of access. For reasons explained below, that approach was correct.

20. Louisiana was permitted to argue at trial that if the work undertaken on its land were to be justified by reference to either development consent, it was not “in accordance with” the terms of either consent and was therefore in breach of s 76A(1)(b) of the Environmental Planning and Assessment Act. That was a question of fact for Louisiana to establish. How it came to be relied upon in relation to the case in trespass, given the unamended pleading that there was no valid development consent, is unclear. However, Hakea did not take issue with that aspect of the matter; rather, it alleged that, having found in the first judgment that (a) the road generally complied with the plan approved in the Louisiana consent, and (b) there was no evidence that the road was not properly constructed, the judge erred in holding that there had been a breach of s 76A(1)(b) (grounds 2(a) and (b)).

21. The factual finding complained of depended on further evidence accepted by the judge in the second part of the proceedings. The evidence was admitted over Hakea’s complaint that it required a reopening of issues already determined and Louisiana made no application to reopen. The trial judge concluded that the evidence should be admitted, but only in relation to the exercise of discretionary powers with respect to relief. On the appeal, Hakea challenged the use of the evidence in establishing breach of the Louisiana development consent and in support of the claim in trespass (grounds 3 and 4).

22. In addition to the issues raised above, the judge held in the second judgment that the construction of the road constituted the erection of a building for the purposes of s 81A(2) of the Environmental Planning and Assessment Act; in that circumstance, both s 81A(2) and condition 16 of the Louisiana development consent required the issue of a construction certificate before the road could lawfully be constructed. No such certificate had been obtained. Hakea challenged the conclusion that the construction of the road constituted the erection of a building, the judge’s reading of condition 16 and the need for a construction certificate (ground 1).

23. Grounds 2(c), 6 and 7 related to the exercise of the discretion to grant relief under s 124, on the basis that Louisiana had established its case that the roadway had been constructed in contravention of the Environmental Planning and Assessment Act. For the reasons set out below, Hakea has made good its case with respect to liability; accordingly, questions with respect to discretionary relief need not be addressed.

Trespass claim

(a)   the pleadings

24. On 26 October 2016 Louisiana filed points of claim which covered both the cause of action in trespass raised in its cross-claim in the transferred proceedings, and its claim for relief under s 124 of the Environmental Planning and Assessment Act. With respect to the trespass claim, it alleged that in July 2015 solicitors for Hakea had sent it a survey plan of the proposed route of the carriageway for the road, seeking Louisiana’s agreement to establish and construct the road. It stated that no agreement had been reached and that the road had been constructed without its consent at some time prior to September 2015. [6] By points of defence filed on 9 November 2016, Hakea admitted sending the letter seeking consent, but otherwise did not admit the contents of these paragraphs. However, it accepted at trial that there had been no agreement in response to its letter.

    6.    Points of claim, pars 11, 12 and 13.

25. There followed in the points of claim an allegation that the road was constructed “unlawfully … without the knowledge or consent of [Louisiana].” [7] The points of claim also alleged that the road was constructed “generally in the location of the survey plan” provided with the letter seeking express consent. In its points of defence Hakea simply denied the allegation that the construction was unlawful. [8]

    7.    Points of claim, par 15.

    8.    Points of defence, filed 9 November 2016, par 9.

26. The points of claim further alleged there was no development consent authorising the construction of the road and that Hakea and Caverstock had therefore breached s 76A of the Environmental Planning and Assessment Act. [9] Both Hakea and Caverstock denied those allegations. [10] (Only Hakea had been sued in trespass.)

    9.    Points of claim, pars 22 and 23.

    10.    See pars 2 in the respective points of defence.

27. Hakea’s defence to the trespass claim failed to plead a specific justification for coming onto Louisiana’s land and constructing the road. That may have been in part because by denying the absence of development consent, Hakea believed it had raised a justification for carrying out the work on Louisiana’s land. Its submissions at trial suggested that it did not treat the points of claim as relating to the trespass claim.

28. In a written opening with respect to the trespass claim, dated 7 December 2016 (that is five days before the first day of the trial), Hakea outlined its reliance upon the terms of the s 88B instrument annexed to the plan of subdivision of the land which conferred mutual easements and covenants burdening and benefitting each of lots 101 and 102. [11] In short, Hakea relied upon both the Louisiana development consent and the right of access to lot 102 by it, as owner of the dominant tenement, for the purpose of constructing a road required for it to cross the servient tenement, being lot 102.

    11.    Hakea’s reply to Louisiana’s opening summary of argument on the trespass claim, pars 24 and 34. See also Hakea’s supplementary final submissions on the trespass claim, dated 20 December 2016, following the first hearing.

29. The procedural artefact of separate proceedings tended to obscure the legal significance of the separate causes of action. The potential for confusion was continued by the failure to plead the claim in trespass separately from the pleadings in the Land and Environment Court proceedings. The entitlement of Hakea to rely on the Louisiana development consent, for which Hakea contended, was an answer to Louisiana’s claim for relief under s 124 of the Environmental Planning and Assessment Act. However, it was also an essential element of Hakea’s defence to the trespass claim. The right of access under the s 88B instrument could not have justified the construction of the road, if the carrying out of the work was unlawful. It is convenient to commence by considering Hakea’s reliance on the Louisiana development consent.

(b)   Louisiana development consent – history

30. Hakea submitted that, as the successor in title to the land formerly owned by Louisiana, it was entitled to the benefit of the development consent obtained by Louisiana, in so far as that consent benefited lot 101. In Parramatta City Council v Shell Co of Australia Ltd,[12] a case dealing with an earlier but similar statutory scheme, Hope JA (Jacobs P and Manning JA agreeing), addressing the approach to construing a consent, explained:

“As has been held, it is not permissible, in order to determine what development has been approved, to construe the document constituting the approval in the same way as if it evidenced some inter partes transaction, for development approvals operate, as it were, in rem and may be availed of by subsequent owners and other occupiers of the land.”

As a matter of principle, that statement was not challenged by Louisiana.

12. [1972] 2 NSWLR 632 at 637E.

31. It is necessary, therefore, to identify the nature of the right relied on by Hakea. For that purpose some history of the development proposals is required.

32. On 16 August 2005 the Council approved two related applications lodged by Louisiana. The first was for the construction of the nursing home and medical centre and demolition of existing structures. The plan submitted with the development applications included a roadway running east from Louisiana Road along the northern side of the single block to the eastern boundary with the hospital land, at which point it turned south to meet the proposed link road to the adjacent hospital.

33. The second application approved on 16 August 2005 involved the subdivision of the site into lots 101 and 102. Condition 7 required “[t]he registration of a right of access over all internal roads within the development benefiting both lots.”

34. On 16 November 2005 a modified development application was approved including a number of additional conditions to be satisfied prior to the release of a construction certificate. Condition 17 provided as follows:

“17   Prior to the issue of a Construction Certificate for the project, the layout and design for the link road through the Wyong Hospital site is to be submitted to and approved by Council. … Prior to finalisation of this design, the applicant is to consult with Council on the layout for the road, so as to ensure the retention of any potential hollow bearing trees within the Hospital site.”

This condition related to the link road across the hospital land, which, according to cl 84, was only to be used for emergency purposes.

35. On 28 December 2005 a plan of subdivision was registered showing the separate lots, accompanied by an instrument under s 88B of the Conveyancing Act identifying a right of carriageway benefiting and burdening each lot (item 1), an easement for services (item 2) and a right of access benefiting and burdening both lots (item 3). The right of carriageway and the easement for services related to the panhandle on the northern boundary of lot 101. The right of access applied to the whole of both lots. The instrument creating the right of access was expressed in the following terms:

“3.   Terms of Right of Access thirdly referred to in the abovementioned plan.

Full and free right for every person who is at any time entitled to an estate or interest in possession of the lot benefited or any part thereof with which the right shall be capable of enjoyment and every person authorised by him to go, pass and repass at all times with or without vehicles for all purposes through that part of the lot burdened shown on the plan as ‘right of access’. The cost of maintaining and repairing the sites on the Right of Access shall be borne by the owners of the lots burdened.”

36. This description was in similar terms to the right of carriageway (item 1) but omitted the reference (contained as par 1.2 of item 1) to “carrying out work within the site of the easement, such as constructing, placing, repairing or maintaining trafficable surfaces, driveways or structures.”

37. As the Council’s report to its development assessment panel demonstrated, approval had not then been obtained from the Health Administration Corporation to use the hospital land as an alternative access route, given the risk of flooding on Louisiana Road. It appears that that approval was obtained between August and November 2005.

38. No further steps were taken until 12 January 2007, when a further modification of the development consent was approved, but without changes relevant for present purposes.

39. On 27 January 2006 Louisiana sold lot 101 to Thompson Health Care Pty Ltd. The purchaser entered into a deed with Louisiana for the equal sharing of certain subdivision and development costs in respect of lot 101. Thompson Health Care agreed that any purchaser from it must enter into a similar “deed of accession” with Louisiana.

40. On 27 February 2007 Thompson Health Care agreed to sell lot 101 to Hakea, subject to Hakea entering into the deed of accession. That deed was in fact executed on 29 March 2007. The critical provision, for present purposes, was cl 2.1:

“2.1   Louisiana Properties and Hakea shall bear the following costs equally:

2.1.1 any costs in relation to any works required by Council as a condition of the Development Consent, Section 96 Approval and Variation to Section 96 Approval which relates to both the nursing home to be erected on Lot 101 and the medical centre proposed to be erected by Louisiana Properties on the Adjoining Land;

2.1.2 the cost of building the carriageway shown in the section 88B instrument registered with the Deposited Plan;

2.1.3 Future access to Wyong Hospital from the Adjoining Land as described in Section 96 Approval as shown on Annexure ‘D’ to the Development Deed.”

41. There was some imprecision in the drafting of this provision, but the intent is not in doubt. “Development Consent” was not defined, but cl 1.1 defined “Development Approval” to mean the Louisiana consent, a copy of which was annexed to the deed. The “Section 96 Approval” was defined to mean the consent given on 16 November 2005 and the variation to that approval was defined to mean the consent given on 12 January 2007, both being annexed to the deed. It is clear that cl 2.1.1 referred to costs in relation to works required by the Louisiana consent and the two variations to it.

42. Further, the term “Adjoining Land” was defined to mean lot 102. Annexure “D” to the deed was that part of the original plans showing the link road between the hospital and lot 102, on hospital land.

43. On 28 July 2008 a Council officer certified that there had been physical commencement of the Louisiana consent, which would have lapsed if not commenced before 16 August 2008.

44. A fourth modified development consent was issued on 5 March 2009. There were two relevant variations: (a) the removal of an immaterial condition meant that the roads condition which had been 17 became condition 16; and (b) the requirement that the link road be for emergency use only was deleted. The latter variation resulted from a letter by Mr Peter Haxell, a director of Louisiana, dated 18 December 2008 to a Council officer noting that the purpose of the link road “was to ensure that there was the ability for the movement of doctors, staff and patients to flow between the medical centre, nursing home and Wyong Hospital on a permanent basis.” Some further engineering information and background was supplied; the letter concluded:

“It should be noted that existing easements are in place between the nursing home and medical centre allowing the nursing home to be able to utilise the medical centre road network to access the hospital link road.”

45. The substance of the arrangement was confirmed by Mr Haxell in his oral evidence. [13]

    13.    Tcpt, 14/12/16, pp 191-192 and 195-196.

46. On 25 May 2010 Louisiana and the Health Administration Corporation, as the owner of the Wyong Hospital land, entered into a deed regarding responsibility for the construction of the link road. The deed included an appropriate easement, a copy of which was executed by both parties, though it has not been registered.

47. On 24 December 2012 Hakea lodged a development application in relation to its plans for the nursing home on lot 101. Hakea and the Council discussed the relationship between the Hakea application and the existing (modified) Louisiana consent. The Council had already agreed to permit separate commencement dates for the two parts of the development, which meant issuing separate construction certificates. It had also consented to a split of the contributions previously paid by Louisiana under s 94 of the Environmental Planning and Assessment Act. An issue was noted as to a change in the car parking space on the northern boundary of the nursing home site, which had incorporated 20 spaces to service the medical centre. [14] The Council also sought legal advice as to the effect of the proposed application with respect to the Louisiana consent “for the medical centre component of the development.” Advice was provided by letter dated 8 April 2013, which primarily dealt with the splitting of s 94 contributions and proposed the continuation of that arrangement.

    14.    Wyong Shire Council letter, 13 March 2013, par 6.

48. Importantly for present purposes, the Council’s letter of 13 March 2013 commenced with the heading “Link Road” and noted that “documentary evidence will need to be provided at the time of lodgement of the easement or binding agreement for the Link Road between the subject site and Wyong Hospital.”

45. On 3 May 2013 Mr Peter Pardy (Hakea Group) and Mr Peter Haxell (Louisiana Properties) provided an agreement as adjoining owners with respect to the “asset protection zone” applicable to lots 101 and 102. It referred to the intention to create a s 88B instrument prior to the issue of an occupancy certificate (a position from which Louisiana appears at some point to have resiled).

46. Otherwise, the December 2012 application by Hakea appears to have been treated as a replacement of the building design approved under the Louisiana consent, which, in other respects, continued to operate. This provides a basis for understanding cl 84 in the Hakea consent, which was expressed as follows:

“84   The creation of an ‘Easement for Access’ or an appropriate Legal Agreement between the parties over the Wyong Hospital land to provide an emergency evacuation route for the development until Louisiana Road is reconstructed above the 1% AEP flood Level. Note: The easement/legal agreement can be extinguished upon completion of the proposed roadworks adjacent the site within Louisiana Road.”

51. The reference to an agreement between “the parties” was ambiguous; on one view the parties could have been Hakea and the Health Administration Corporation as owner of the Wyong Hospital land. The alternative view would treat “the parties” as including Louisiana, because Hakea had no access to the Wyong Hospital land except over lot 102 owned by Louisiana. The latter view is to be preferred because the plan accompanying the development application and stamped by the Council on 1 August 2013 as the approved development plan showed, at least in indicative form, a roadway continuing across lot 102 and onto the Wyong Hospital land. The road is marked “Emergency access road to hospital”.

(c)   did Hakea have development consent to construct road?

52. It is clear that the original project developed by Louisiana required access to the whole land from Louisiana Road in the west and, at least for emergency purposes, from the Wyong Hospital land to the east. Although the emergency access to the east was no doubt important for occupants of the medical centre, it was equally important for residents and workers in the proposed nursing home. When the land was subdivided, lot 102 retained access to Louisiana Road and lot 101 retained access to the Wyong Hospital land. The plan indicated, however, that access from lot 101 would be obtained by a roadway along the northern boundary of lot 102, which would turn south at the north-eastern corner and join the hospital land approximately half way down the eastern boundary of lot 102. There was no suggestion in the subsequent 2013 development consent obtained by Hakea in relation to lot 101 that there had been any variation of its rights with respect to access and egress across lot 102.

53. One of Hakea’s plans indicated a roadway across lot 102 and directly onto the hospital land near the north-east corner of lot 102, in a manner inconsistent with the Louisiana consent which had, by that time, been supplemented by the deed and s 88B instrument agreed between Louisiana and the Health Administration Corporation in relation to the proposed link road. Further, there was the registered easement permitting Hakea a right of access (subject to the development of the medical centre which had not then occurred) to all parts of lot 102. Finally, there was the deed of accession in relation to which Hakea would bear equal responsibility with Louisiana for the costs of access to Wyong Hospital from lot 102.

54. On that basis, Hakea (and Caverstock) had development consent for the roadway constructed across the northern boundary of lot 102. That consent arose from the Louisiana consent and not Hakea’s 2013 consent. The latter did not apply to lot 102. Accordingly, so far as the plan attached to the 2013 consent identified a roadway across lot 102, it was, as Council described it, merely “indicative” and did not purport to be a modification of the Louisiana consent.

(d)   could Hakea rely on the right of access to construct the road?

55. The second limb of Hakea’s defence to the trespass claim asserted a right of access to lot 102 to carry out the construction work. Hakea submitted at trial that it was entitled to construct the roadway across lot 102 to comply with the condition in its development consent that there be emergency access to and from the hospital land. It asserted that its right to undertake construction work on lot 102 arose under the s 88B notice containing the “right of access”, set out at [35] above, construed in accordance with its terms and the terms of Pt 14 of Sch 8 of the Conveyancing Act.

56. Broadly speaking, the trial judge accepted this analysis in his first judgment. He did so by reliance on Sch 8, Pt 14 of the Conveyancing Act, which identifies the standard rights conferred by an easement providing a “right of access”. Pursuant to s 181A(2) of the Conveyancing Act, the expression “right of access” has effect as if the words identified in Pt 14 of Sch 8 were inserted instead of the expression, “right of access”. Part 14 provides:

Part 14 Right of access

1   The owner of the lot benefited may:

(a)   by any reasonable means pass across each lot burdened, but only within the site of this easement, to get to or from the lot benefited, and

(b)   do anything reasonably necessary for that purpose, including:

•   entering the lot burdened, and

•   taking anything on to the lot burdened, and

•   carrying out work within the site of this easement, such as constructing, placing, repairing or maintaining trafficable surfaces, driveways or structures.

2   In exercising those powers, the owner of the lot benefited must:

(a)   ensure all work is done properly, and

(b)   cause as little inconvenience as is practicable to the owner and any occupier of the lot burdened, and

(c)   cause as little damage as is practicable to the lot burdened and any improvement on it, and

(d)   restore the lot burdened as nearly as is practicable to its former condition, and

(e)   make good any collateral damage.

57. The judge accepted that this provision entitled Hakea to construct a trafficable surface across lot 102. [15] He also accepted that the work had been undertaken by Caverstock in a manner which complied with cl 2 of Pt 14. [16] The difficulty identified by the judge was that Pt 14 permitted Hakea only to “pass across [lot 102] … to get to or from [lot 101]”. Accordingly the judge concluded that “for Hakea to take advantage of the easement and construct a road, that road would need to be constructed to somewhere where those exercising the right under the easement were entitled to go[,] otherwise they would not be going to or from Hakea’s land utilising the easement, they would merely be able to go to the boundary of Lot 102 without having any right to go further.”[17]

    15.    First judgment at [151]-[152].

    16. First judgment at [153].

    17. First judgment at [156].

58. The appellants’ approach to the judge’s reasoning, in the course of the appeal, was somewhat ambivalent. Ground 8 complained that the judge construed the terms of the right of access in the s 88B instrument “on the erroneous basis that the meaning of ‘right of access’ in Part 14 Schedule 8 … should be adopted and applied”. What was intended by that complaint was that, as the plan annexed to the instrument indicated, the right of access applied across the whole of lot 102 and it was, accordingly, inappropriate to restrict the right to a right to pass across lot 102 in order to get, relevantly, from the Wyong Hospital land to lot 101 or vice versa.

59. There are four considerations which apply in considering this issue. First, it is not clear why the phrase “pass across” requires commencing at one boundary and exiting by another. It would be sufficient to go from part of the lot benefited onto the lot burdened: that would include passing across part of the lot burdened and, in so doing, going “from” the lot benefited. To similar effect, once one is on the lot burdened, to return one passes across part of the lot burdened to reach the lot benefited.

60. Secondly, although the adoption of particular meanings for defined expression in s 181A is not said to be subject to a contrary intention, s 181A(3) permits an expression to be varied by the instrument in which it is used.

61. Thirdly, if the particular construction of Pt 14 suggested above were not accepted, the same conclusion may be reached by treating the identification of the right of access as applying to the whole of lot 102 as achieving a similar result, as a variation of Pt 14. In place of the generic description, the intended meaning would be within the contemplation of the drafter of the instrument because staff from the medical centre might need to visit the nursing home and then return to the medical centre, and patients from the medical centre might need to be taken to the nursing home. In other words, the adjacent buildings, albeit on separate lots, would operate so that the services provided by each complemented those provided by the other and the right of access was intended to permit travel to and fro across the boundary.

62. Fourthly, that construction is not inconsistent with the proposition that the right to construct the roadway is located in Pt 14. If one reads the instrument in isolation from Pt 14, it would be necessary to explain why item 1 (the right of carriageway) contained such a power, but item 3 (right of access) did not. The probable answer lies in the fact that the expression “right of carriageway”, given the meaning provided by Pt 1 of Sch 8, includes no statutory reference to construction of a trafficable surface. Accordingly, to allow the benefited party the relevant power, it was necessary for it to be conferred expressly. No such express reference was required in relation to a right of access, because the statutory meaning included that power.

63. It follows that the reasoning of the trial judge based upon the scope of the easement should not be accepted.

(e)   did the road comply with the consent?

64. The gravamen of the objection taken by Hakea, following delivery of the first judgment, was that the judge had failed to address its contention that Louisiana had based its claim in trespass on the absence of a development consent authorising the construction of the road. Thus, the relevant paragraphs in the third amended statement of claim (pars 1, 2 and 5) were based upon the construction of the road “without development consent”. Hakea submitted that the following passage in the first judgment should have led the Court to reject the proposition that the construction had occurred without development consent:

“[187]   As is a matter in contest in these proceedings in a number of aspects and as earlier noted, Hakea commissioned Caverstock to construct a road from the eastern edge of Lot 101 across Lot 102, along a route that can be described as generally coinciding with Louisiana’s approved route for connection to the western boundary of the Wyong Health Campus land. Several air photos confirm that this is the position. I reproduce below an extract from the Louisiana development consent plans, plans which show the location of the road approved by the Council when it granted development consent to Louisiana for the overall development then proposed.

[See diagram attached at end of judgment.]

[188]   An air photo, in evidence for bushfire purposes, shows where Caverstock has constructed the road at Hakea’s instigation. As can be seen, this road generally coincides with the route approved on the Louisiana plans.

65. The trial judge had also accepted that “Louisiana’s consent, having legally commenced, prima facie, remains an operative consent.”[18] Further, the judge held:

“[183]   Louisiana's development consent and Hakea’s development consent each required the provision of an arrangement with the administration of the Wyong Health Campus to permit access, across the element of its site, to the east of the eastern boundary of Lot 102 in order to provide flood-free access and egress as a consequence of Louisiana Road, at the time of the granting of the development consents, not being constructed to a flood-free standard.”

18. First judgment at [180].

66. In the first judgment, the trial judge appears to have upheld Louisiana’s claim that construction of the road involved a trespass on one (or both) of two bases. One basis was that the Louisiana consent conferred an entitlement to build the road on Louisiana (presumably as the owner of land which was to become lot 101) but not on its successor in title. Alternatively, the development consent did not allow the construction of a road across lot 102 unless there was in place an agreement with the Health Administration Corporation to construct a link road across the Wyong Hospital land. [19] Because, as the judge conceded in the second judgment, the reason for rejecting reliance on the Louisiana consent was not expressly articulated, it is necessary to turn to the second judgment to understand those reasons.

    19.    See, eg, first judgment at [185]-[186].

67. The judge commenced the discussion in the second judgment by noting that Louisiana relied upon a breach of s 76A(1)(a) of the Environmental Planning and Assessment Act which, as already noted, stated that where development consent was required, it was not lawful to carry out the development unless such a consent had been obtained and was in force. The first reason given was that there was a discrepancy between the alignment of the road across lot 102 as indicated in Hakea’s 2013 consent and that identified in the Louisiana consent. On the basis that the road as constructed complied generally with the alignment of the road on the earlier consent, the judge held that it was not to be regarded as being “in conformity with Hakea’s own development consent.”[20]

    20. Second judgment at [27].

68. Hakea’s response was that it relied upon the Louisiana consent to justify the construction of the roadway and, in any event, the alignment on lot 102 contained in Hakea’s consent was purely indicative, as that consent did not apply to lot 102 and could not itself have varied the requirement specified in the consent which applied to both lots. That submission should be accepted. The judge’s reason for finding a breach of s 76A(1)(a) on the part of Hakea should not be accepted.

69. The second reason given was in the following terms:

“[28]   In my earlier decision, I also noted that Louisiana had not granted to Hakea Louisiana's consent for this construction. This, in itself, is a sufficient basis upon which to conclude that Hakea could not have had the road constructed in reliance on Louisiana's development consent.”

That reasoning appeared to adopt the view that Hakea could not rely upon the Louisiana consent unless Louisiana separately gave consent for the construction work.

70. To the extent that Louisiana remained the owner of lot 102 which was subject to the Louisiana consent, it could not disclaim the burdens which ran with the benefit of the consent. Indeed, it obtained the consent contemporaneously with the subdivision consent. If its own intention mattered, it must have intended that lot 102 would be subject to the right in the owner of lot 101 to construct a road across lot 102 in order to obtain at least emergency egress and ingress from the Wyong Hospital land. In any event, Louisiana (understandably) did not plead a case in trespass based on lack of “consent” but on lack of development consent. Accordingly the second ground adopted by the trial judge should not be accepted.

71. Thirdly, and by way of alternative to the view that Hakea could not rely on the Louisiana consent, the judge then considered whether Hakea could rely upon the consent in circumstances where, as he ultimately concluded, the development was not carried out in accordance with the consent, contrary to s 76A(1)(b).

72. The basis upon which the judge addressed that matter was not explained: the reasoning in relation to breach of the Environmental Planning and Assessment Act had commenced with the proposition that Louisiana relied upon a breach of paragraph (a), not paragraph (b) of s 76A(1). In other words, Louisiana had asserted that there was no development consent, not that a consent had been obtained and was in force, but the construction did not comply with it. It may be that that approach underlay Louisiana’s claim for relief in its separate class 4 proceeding. In any event, Hakea only adverted to this consideration indirectly in grounds which challenged the reopening in the second judgment of an issue which it said had been finally determined by findings made in the first judgment. Hakea did, however, challenge the reasoning which followed.

73. The trial judge expressed his “conclusion on s 76A(1)(b) breaches” in the following passages:

“[82]   It is obvious that the question of whether the road constructed by Caverstock, at Hakea’s instigation, should be regarded as a ‘structure’ engaged consideration of questions of fact and degree. On balance, having regard to the nature of that which has been constructed, and the methods that have necessarily been engaged in its construction (including the importation of the cementatious material to form the surface of the road) and having regard to the length over which it has been constructed, it is appropriate to conclude that this road is a structure. It therefore follows that:

(a)   first, the road is a structure which falls within the definition of a building in the EP&A Act;

(b)   as a consequence, the road could not be constructed prior to the obtaining of a construction certificate for Louisiana's project;

(c) no construction certificate for the project for which Louisiana had been given consent by the Council – a breach of s 82A(2) [sic – s 81A(2)] of the EP&A Act;

(d) the failure to satisfy the at least [sic] two of the preconditions in condition (16) of Louisiana's development consent meant that the road, if Louisiana's development consent was potentially available, was constructed in breach of that consent on this basis – a breach of s 76A(1)(b) of the EP&A Act; and

(e) second, the construction by Caverstock of the road along an alignment which was not the alignment approved for a road pursuant to Louisiana's development consent provides a second, separate basis for concluding that, if Louisiana's development consent was available to Hakea, the road was constructed in breach of that development consent – a separate breach of s 76A(1)(b) of the EP&A Act.

[83] On each these separate bases, if I am wrong in my earlier expressed conclusion that a declaration should be made that Caverstock’s construction of the road, at Hakea’s instigation, was a breach of s 76A(1)(a) of the EP&A Act because of not having development consent for construction of the road, there are two separate and sufficient bases why alternative declarations could be made that Caverstock’s construction of the road, at Hakea’s instigation, was in breach of Louisiana's development consent and thus in breach of s 76A(1)(b) of the EP&A Act.”

74. There was some confusion in the reasoning leading to these conclusions. That may have been in part because none of these alleged breaches was pleaded by Louisiana in its points of claim.

75. With respect to the second issue identified in (e), the evidence had not yet been addressed in the reasons. However, the evidence was subject to objection and was admitted only on the basis that it went to the exercise of the discretionary power as to relief pursuant to s 124 of the Environmental Planning and Assessment Act. [21] It therefore could not be deployed for determining whether there had been a breach of the development consent and thus a breach of s 76A(1)(b) of the Act.

    21. Second judgment at [100].

76. With respect to the first issue identified in (a)-(d), the judge’s conclusion appeared to involve two separate elements. The first was that, pursuant to s 81A(2) of the Act, a precondition to the construction of the road was the issue of a construction certificate under the Louisiana consent. No such certificate had been issued. By a process of reasoning which was not fully articulated, the judge concluded that a breach of s 81A(2) resulted in a breach of s 76A(1)(b). The connecting factor appears to have been the separate element identified in par (d), namely the failure to comply with condition 16 of the Louisiana consent. Condition 16 imposed preconditions to the issue of a construction certificate. As it was common ground that no construction certificate had been issued, the relevance of condition (16) was obscure.

(f)   did the road require a construction certificate?

77. Apart from lack of consent of Louisiana, the claim in trespass was based upon the absence of a valid development consent; it is therefore convenient to start with the reasoning based on condition 16 of the Louisiana consent, as it appeared in the fourth modification dated 5 March 2009.

“16   Prior to the issue of a Construction Certificate for the project, the layout and design for the part of the link road within and up to the eastern boundary of Lot 102 … is to be submitted to and approved by Council. All works to be designed in accordance with AS 2890. The pavement is to be designed to withstand all proposed loads including construction loads.”

78. After setting out the condition, the judge stated his conclusions in summary terms:

“[73]   It is abundantly clear that this condition imposes three mandatory prerequisites before construction of the road could commence. The first of them is the submission to, and approval by, the Council of plans for Louisiana’s alignment road prior to the issuing of a construction certificate prior to commencement of construction for ‘the project’. The second is compliance with Australian Standard 2890 (AS 2890), and the third is the load design standard required for the road.

[74]   There is no evidence of any plans for the road constructed by Caverstock, at Hakea’s instigation, were submitted to the Council at all, let alone that they had been considered and approved by the Council.”

79. The judge then noted there was no evidence as to whether the road as constructed complied with AS 2890; however, he relied upon further engineering evidence given by Mr Francis to state that the road as constructed did not comply with the third condition.

80. On one view, the issue was not the nature of the construction, but the design to be submitted to Council. However, if Mr Francis’ evidence could not be relied upon otherwise than with respect to relief, there was error in relying upon it to demonstrate a breach of condition 16. Accordingly, the question is whether the acknowledged failure to submit plans to Council before the construction of the road commenced constituted a breach of condition 16.

81. There was an element of uncertainty as to the scope of condition 16. There was no equivalent provision in the original 2005 development consent. Nor was there any reference to the “link road”. The relevant provision first appeared as condition 17 in the modified Louisiana consent issued on 16 November 2005. However, what was required then was submission of “the layout and design for the link road through the Wyong Hospital site”. At that stage condition 84 referred to the “proposed new link road between the development and the Wyong Hospital site”. The same wording was to be found in the modified development consent issued on 12 January 2007 and the fourth modification on 16 November 2007. The deed of accession between Louisiana and Hakea annexed the modification dated 12 January 2007. The current form of wording was adopted in the modification of 5 March 2009. At that stage condition 84 (later condition 80) was deleted. The new provision accordingly gave a different meaning to the phrase “the link road”.

82. The second element of uncertainty in condition 16 is the reference to “the project”. Prior to the issue of a separate development consent for the nursing home on lot 101 in 2013, it may have been assumed that “the project” referred to the overall development of a nursing home and medical centre, albeit on the subdivided land. There was an implied modification in 2013 by the separate consent given with respect to the modified plans for the nursing home. From that point it may be inferred that “the project” in the modified Louisiana consent referred to the construction of the medical centre and surrounding facilities, and not the development on lot 101. However, there was at that stage no imminent commencement of the construction of the medical centre, but only a minor element of the development ancillary to the nursing home.

83. This was not the first work to be undertaken on lot 102. In 2008, a dam had been constructed with associated works for stormwater retention. A construction certificate had been provided for the earthmoving works. [22] That may have been in compliance with condition 4 which stated:

“Necessary Construction Certificates are to be issued by the Certifying Authority prior to commencement of any works.”

Arguably a specific construction certificate was required with respect to the link road on lot 102 as “works”, but not a construction certificate “for the project” under condition 16. There was no reliance on condition 4. Accordingly, the construction of the link road did not involve development carried out otherwise than in accordance with the consent, for the purposes of s 76A(1)(b).

22.    Wyong Shire Council report on Hakea’s development application, 22 July 2013, p 6.

84. This reasoning was not inconsistent with that of the trial judge in dealing with condition 16. He stated:

“[75]   Given that Hakea purports to rely on Louisiana's development consent as authority for Caverstock’s construction of the road, even if the fact that Louisiana did not consent to the construction of the road is set aside, neither of the two conditions precedent contained in condition (16) of Louisiana's development consent have been satisfied if a construction certificate was required before the road constructed by Caverstock, at Hakea’s instigation, was built.

[76]   I have explained above why a construction certificate was required prior to construction of the road. No certificate was obtained. This resulted in the first breach of condition (16) of Louisiana’s development consent.”

(g)   was the road a building?

85. Thus, whether a construction certificate was required did not turn on the terms of condition 16, but rather on the operation of s 81A(2) of the Act, which provides:

81A   Effects of development consents and commencement of development

…

(2)   The erection of a building in accordance with a development consent must not be commenced until:

(a)   a construction certificate for the building work has been issued by the consent authority, the council (if the council is not the consent authority) or an accredited certifier, …

86. The engagement of s 81A(2) depended upon the construction of the road satisfying the phrase “erection of a building”. The trial judge was satisfied that it did, noting the definition of “building” in s 4(1):

4   Definitions

(1)   In this Act, except in so far as the context or subject-matter otherwise indicates or requires:

…

building includes part of a building, and also includes any structure or part of a structure (including any temporary structure or part of a temporary structure), but does not include a manufactured home, moveable dwelling or associated structure or part of a manufactured home, moveable dwelling or associated structure.

87. As the judge accepted, the only basis upon which the road could satisfy the definition of “building” was if it were appropriately to be regarded as a “structure” for the purposes of the definition. [23] The judge then referred to two authorities. The first, an unreported decision of Talbot J in the Land and Environment Court, Bowyer v Manly Council (1997), [24] held that relevantly identical terminology in the definition of “building” in the Local Government Act 1993 (NSW) did not encompass a road. The second was Royal Motor Yacht Club (Broken Bay) Pty Ltd v Northern Beaches Council,[25] in which Preston CJ concluded that a swing mooring did not constitute a “structure”.

    23. Second judgment at [45].

    24.    (LEC (NSW), Talbot J, 28 February 1997, unrep).

    25. [2017] NSWLEC 56.

88. Before turning to the reasoning adopted by the trial judge in concluding that the road constituted a “building” for the purposes of s 81A, it should be noted that the judge was not making a generic analysis, but rather considering evidence as to the construction of this particular road. Thus he stated that “I am satisfied that a proper understanding of the matters explained by [Preston CJ] leads me to the conclusion that the road constructed by Caverstock, at Louisiana's [sic – Hakea’s?] instigation, is properly to be regarded as a ‘structure’ and, thus, properly encompassed within the definition of ‘building’ in s 4”. [26]

    26. Second judgment at [61].

89. Royal Motor Yacht Club involved similar language concerning the erection of a building, building being defined to include “any structure or any part thereof” for the purposes of cl 59 of the Warringah Planning Scheme Ordinance 1963. The judgment of Preston CJ contains an extensive analysis of the case law dealing with various kinds of structures. The Chief Judge found particular assistance in the characteristics commonly associated with a structure identified by Gillard J in O’Brien v Shire of Rosedale. [27] The trial judge applied a similar approach, which led him to the conclusion that the road was a “structure”.

    27. [1969] VR 112; (1968) 22 LGRA 262; Royal Motor Yacht Club at [155]-[159].

90. There were problems with this approach. O’Brien involved the removal of river gravel from the plaintiff’s land for road making. There was a statutory power to enter the plaintiff’s land for that purpose, but not “within 50 yards of any bridge, dam, jetty or other structure”. [28] In other words, the word “structure” had a freestanding quality and was not an element of the definition of a different term, namely “building”.

    28. O’Brien [1969] VR at 113.

91. The trial judge distinguished Bowyer on the basis that Talbot J had been concerned with the separation of certain functions from the Local Government Act into the Roads Act 1993 (NSW). The judge then identified two aspects of the definition of “structure” in the Macquarie Dictionary, but, after noting reservations about the use of dictionary definitions in the context of statutory construction, stated:

“[57]   For the present purposes, all I draw from these two elements of this dictionary definition is that there is a deal of breadth of its potential application, including dams which, in the broad, can include significant rock or earthworks’ dams and not merely behemoth dams, such as those at Warragamba or Cataract, retaining massive water volumes for human or industrial consumption.”

92. There are two factors which arise from this approach. First, unsurprisingly the dictionary definition included the defined term “building” within the concept of a “structure”. Arguably “structure” is a wider term than “building”; on that view, the question is the extent to which the reference to structure in the definition of building expands the concept of a building, not what the term structure in the abstract may encompass. Secondly, though perhaps inherent in the first point, that which is missing from dictionary definitions is the context in which the word is used in the statute. Not only is context provided by the primary unit for conveying meaning, namely the sentence, but also the place of the concept in question within the framework of the statute. Absent that broader context, it is not possible to adopt the purposive construction principle as required by s 33 of the Interpretation Act 1987 (NSW).

93. In Mulcahy v Blue Mountains City Council,[29] this Court considered the lawfulness of Ms Mulcahy’s conduct in placing gates across a sealed road constructed, by mistake, on her land. The Council sought to compel her to remove the gates on the ground that they were “buildings” for which consent was required and had not been obtained. [30] The appeal originally brought against the finding that the gates were buildings was abandoned. Nevertheless, in the course of dealing with the appropriateness of granting discretionary relief Mahoney JA expressed “considerable reservations” as to whether the gates were “buildings”. [31] Mahoney JA continued:

“It has, for example, been suggested that the definitions must be given their literal meanings and that, applied in this case, it follows that: a building may not be erected or altered without approval of the authority; ‘building’ includes ‘structure’; and accordingly a structure of any kind may not be erected or altered unless the Council’s approval has been formally sought and obtained. But, if the definitions be so construed, extraordinary results would follow which, it may confidently be said, the legislature would not have intended, much less espoused. If given their full and literal meaning, words such as ‘structure’ and ‘erect’ have a wide operation….

… It is in my opinion plain that the generality of the expressions used must be restricted if they are to perform the function which the legislature intended and to do so without extending to things which were never envisaged. The too literal construction of definitions of this kind would, in my opinion, be both unsatisfactory and wrong. … If read literally the administration of them would in practice be unworkable ….

The better approach is, in my opinion, to determine what things or actions come within such terms by reference to the purposes which the provisions were enacted to achieve. This is, of course, a long recognised approach to the construction of statutes; more recently, it has been described as ‘purposive’. The construction of statutes in this way was referred to in detail in this Court by McHugh JA in Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 ….

…

In principle, the purposive approach to construction of, for example, ‘structure’ or ‘erect’ would proceed in a manner such as the following. The Court would determine the purposes which the legislature sought to achieve by prescribing that no structure may be erected without council approval. … It would not give to the terms a meaning which had no relevance to the achievement of that purpose.”

29. (1993) 81 LGERA 302 (Mahoney JA, Clarke and Meagher JJA agreeing).

30.    Mulcahy at 303.

31.    Mulcahy at 305.

94. The function of a definition using the term “includes”, followed by a number of separate terms, may itself be ambiguous. Generally, such language cannot be construed as exhaustive; however the list may be (a) illustrative of the word defined; (b) intended to resolve uncertainty as to borderline cases, or (c) expansive of the ordinary meaning of the term defined. Use of the phrase “part of a building” may fit within the second category and indicates that no restrictive approach should be taken to the meaning of “building”. The reference to “any structure” following the words “also includes”, may have the same function. The fact that the term “structure”, in its ordinary meaning, is apt to include a building, but to have a wider connotation, may indicate that it is also intended to be expansionary. The question remains, how far is the defined term expanded?

95. The answer is to be derived from the statutory context. Thus, “building work” is defined in s 4(1) to mean “any physical activity involved in the erection of a building.” Many structures require construction, that is, the putting together of disparate parts, in circumstances where one would not speak of erection. Similarly, many things are built, but do not constitute buildings, despite the common linguistic root. Further, a critical concept in the Environmental Planning and Assessment Act is “development”. That concept underlies the system of regulation. Development is defined in s 4(1) as covering (a) the use of land, (b) the subdivision of land, (c) the erection of a building, (d) the carrying out of a work and (e) the demolition of a building or work. Although not entirely separate and independent concepts, these elements of the definition indicate conceptual distinctions. It is clear that “work” is a broader category than “building”. Thus s 4(2) provides:

(2)   A reference in this Act to:

…

(b)   the erection of a building includes a reference to:

(i)   the rebuilding of, the making of alterations to, or the enlargement or extension of, a building, or

(ii)   the placing or relocating of a building on land, or

(iii)   enclosing a public place in connection with the construction of a building, or

(iv)   erecting an advertising structure over a public road, or

(v)   extending a balcony, awning, sunshade or similar structure or an essential service pipe beyond the alignment of a public road, and

(c)   the carrying out of a work includes a reference to:

(i)   the rebuilding of, the making of alterations to, or the enlargement or extension of, a work, or

(ii)   enclosing a public place in connection with the carrying out of a work, and

(d)   a work includes a reference to any physical activity in relation to land that is specified by a regulation to be a work for the purposes of this Act but does not include a reference to any activity that is specified by a regulation not to be a work for the purposes of this Act, and

…

96. One of the regulatory controls imposed is the requirement for the issue of occupation certificates with respect to new or partly completed new buildings. [32] Although the provision requires a certificate before a person can commence “occupation or use” of a new building, the concept of usage should be understood as related to occupation.

    32. Environmental Planning and Assessment Act, s 109H(1).

97. It is therefore relevant that one does not ordinarily speak of erecting a road or occupying a road except, in the latter case, perhaps, by protestors. On the other hand, one can envisage many structures which are erected which may not be described as a building in ordinary usage. Television towers and radio masts may be examples. A structure which is never described as having been “erected” does not fall within the concept of a building, even on an expansive view of that term. Importantly, unlike terms such as “development” and “work”, the Act demonstrates no intention to give “building” so expansive a denotation as to encompass all kinds of structures. The fact that something may stand above the natural level of the land (such as the gates in Mulcahy or the large piles of rock envisaged by Mahoney JA in Mulcahy) suggests that such a characteristic is not sufficient to make the thing a structure. Nor would it matter that such an item had a level of permanence or was largely immovable. On the other hand, the construction of a roadway would readily constitute the carrying out of a work and thus a development.

98. Bearing all these considerations in mind, a roadway which follows the natural lie of the land (even with the occasional culvert) should not be identified as a “building” for the purposes of the Act. That is, of course, to say nothing about a raised freeway or other kinds of roadway. It follows that the road the subject of these proceedings did not fall within the requirements of s 81A(2) of the Environmental Planning and Assessment Act. Although the judge described his conclusion as involving “questions of fact and degree”[33] the approach to the question of statutory construction was erroneous.

    33. Second judgment at [82].

(h)   conclusions – trespass claim

99. The case in trespass involved the clearing of land and the construction of a road on Louisiana’s land (lot 102). In its proceedings for relief under s 124 of the Environmental Planning and Assessment Act, Louisiana alleged that the work was carried out “without development consent” in contravention of s 76A(1)(a) of the Environmental Planning and Assessment Act. However, in the trespass proceedings Hakea needed to establish that there was development consent for the work and that it had lawful authority to enter onto lot 102 to carry out the work in the absence of the express consent sought from Louisiana. For reasons explained above, that case was made out; Hakea was entitled to rely upon the requirement for the road as a condition of the Louisiana consent (as modified) and on the right of access conferred by the s 88B instrument attached to the subdivision consent.

99. Although the relevant pleadings did not appear to extend to construction pursuant to an extant development consent, but not in accordance with that consent and thus unlawful pursuant to s 76A(1)(b), the case identified by the trial judge has been addressed. On the bases developed in the course of the trial, and the admissible evidence, Louisiana failed to make out its claims of breach.

100. It follows that the construction of the road did not involve a trespass to Louisiana’s land and the relief granted on the basis that it did must be set aside.

Relief under the Environmental Planning and Assessment Act

102. Louisiana’s suit for relief by way of declarations and orders for remediation of its land depended on the work being undertaken without development consent, contrary to s 76A(1)(a) of the Environmental Planning and Assessment Act. That claim depended, first, on Hakea not being entitled to rely on the Louisiana development consent. That basis of the claim has been rejected. The second basis of the claim was that the road as constructed was not “in accordance with” the terms of the consent. This element was not established at the first hearing, as discussed above.

103. Hakea’s notice of appeal challenged the use made by the primary judge of the fresh evidence of Mr Francis (grounds 3 and 4) and the further evidence of Mr Haxell (ground 6). The gravamen of those complaints, which has been accepted, was that the evidence was admitted only in relation to the form of relief and that the primary judge erred in relying upon it as establishing non-compliance with the Louisiana development consent. In other words, without reliance on that material the breaches of the terms of the development consent, as to which Louisiana bore the onus of proof, were not made out. No question of relief under s 124 arose.

104. Accordingly, Louisiana’s proceedings under the Environmental Planning and Assessment Act must also be dismissed.

Orders

105. By notice of motion dated 5 June 2018, Louisiana sought to rely on a notice of contention in relation to the proper construction of the right of access conferred by the s 88B instrument. These issues have been addressed above. Louisiana should have leave to rely upon its notice of contention.

106. Louisiana also sought to rely on a notice of cross-appeal with respect to the dismissal of its claim for ordinary damages for trespass. That claim had been dismissed on the basis that the remedial work required as a result of the proceedings under Environmental Planning and Assessment Act, s 124 sufficiently addressed the loss which would otherwise have been suffered by Louisiana as a result of the trespass. The cross-appeal depended on the assumption that the claim in trespass was upheld. As that claim has been rejected, the proposed cross-appeal is not engaged. Leave to file the notice of cross-appeal should be refused.

107. Hakea submitted that orders made on 17 May 2017 in relation to Louisiana’s cross-summons should be set aside and the proceedings dismissed with costs. More precisely, the orders made on 17 May should be dealt with as follows:

1. Order (1) was a formal order relating to evidence and need not be considered.

2. Orders (2) and (3) related to the easement granted for the asset protection zone and the compensation payable, and are not in dispute.

3. Order (4) required Hakea to pay exemplary damages with respect to the trespass claim brought by Louisiana pursuant to its cross-claim and should be set aside.

4. Order (5) required the cross-claim otherwise to be adjourned to the hearing of the proceedings brought in the Land and Environment Court; that order is now immaterial.

5. Order (6) adjourned the question of costs to the Land and Environment Court proceedings. Up to that point, Hakea had been successful in obtaining its easement, but had failed to resist the claim in trespass. It has now been successful in both respects. There is no need to set aside order (6); however, Hakea should have its costs of the first hearing at trial.

6. Orders (7) and (8) were consequential and need not be disturbed.

108. Hakea also sought to have the orders made on 22 November 2017 set aside and the proceedings dismissed with costs.

109. Some orders were in fact made on 21 November. They related to the cross-summons filed in the Supreme Court. Prayer 1, seeking a restraining order was dismissed; prayer 2, seeking damages for trespass was dismissed so far as it related to the claim for ordinary damages. Costs in relation to both the summons and the cross-summons were reserved. There is no need to vary those orders.

110. Further, orders were made in Louisiana’s proceedings in the Land and Environment Court and entered on 24 November 2017. (The orders were made on 22 November and were presumably those identified in the notice of appeal.)

111. There were 14 orders which should be disposed of as follows:

1. Orders (1) and (2) involved declarations that the road had been constructed on lot 102 without development consent; those orders should be set aside.

2. Orders (3) and (4) required the carrying out of remedial works; they should be set aside.

3. Orders (5)-(10) were consequential orders and fall away once orders (3) and (4) are set aside. For completeness orders (5)-(10) should be set aside.

4. Order (11) was a stay of orders (3)-(9) to allow the present appeal to be brought. It is no longer material.

5. Order (12) dismissed Hakea’s motion filed on 30 August 2017. That motion sought an order setting aside the judgment delivered on 29 March 2017 to the extent that it did not address Hakea’s submission that the construction of the road was authorised by Louisiana’s development consent. The dismissal of the motion followed from the trial judge’s conclusion that the road construction was unauthorised. As the trial judge noted, the outcome of the motion would, in any event, be subsumed within the substantive outcome with respect to the cross-claim. There is no need to set aside order (12); it is sufficient to note that the costs of the motion should be Hakea’s costs in the proceedings.

6. Order (13) dismissed prayers 6-9 in the third further amended summons filed by Louisiana. Those paragraphs sought orders premised on declarations that existing development consents did not permit the carrying out of work to create an asset protection zone for the nursing home on lot 102. Louisiana was unsuccessful in that respect. That order was not challenged in the proceedings and, accordingly, order (13) should stand.

7. Order (14) reserved costs. It appears that no costs orders have been made in the Land and Environment Court. However, as Hakea has been successful in relation to both parts of each proceeding, it should have its costs of both proceedings. It has also been successful on the appeal and should have its costs in this Court.

112. The Court should make the following orders:

1. Grant Louisiana Properties Pty Ltd (Louisiana) leave to file and rely upon the Notice of Contention attached to the Notice of Motion dated 5 June 2018.

2. Refuse Louisiana’s application for leave to file and rely upon the Notice of Cross-Appeal attached to its written submissions dated 26 June 2018.

3. With respect to the appeal by Hakea Holdings Pty Ltd and Caverstock Group Pty Ltd (“the appellants”) from orders made in the Land and Environment Court in proceedings 2016/261922:

1. allow the appeal and set aside orders (1)-(10) entered on 24 November 2017;

2. in lieu thereof, order that proceedings 2016/261922 be dismissed;

3. order that Louisiana pay the appellants’ costs of those proceedings.

4. With respect to the appeal by Hakea Holdings Pty Ltd from the award of damages made on Louisiana’s cross-claim in proceedings 2016/322081:

1. to the extent necessary, grant Hakea leave to appeal against order 4 (ordering payment of $30,000 by way of exemplary damages to Louisiana) entered on 17 May 2017;

2. allow the appeal and set aside the order;

3. in lieu thereof, substitute an order dismissing the cross-summons;

4. order that Louisiana pay Hakea’s costs of the proceedings, in the Equity Division and in the Land and Environment Court.

5. Order Louisiana to pay the appellants’ costs of the proceedings in this Court.

113. MEAGHER JA: I agree with Preston CJ of LEC, and accordingly with the orders proposed by Basten JA.

114. PRESTON CJ of LEC: I have had the advantage of reading in draft the reasons for judgment and the orders of Basten JA. I agree with Basten JA’s resolution of the grounds of appeal, cross appeal and notice of contention and the orders he proposes. I also agree generally with his Honour’s reasons but wish to add some reasons for why I find that the primary judge erred on critical issues. In making these additional comments, I gratefully adopt Basten JA’s summary of the facts and law.

115. Relevant to the issues on the appeal, Louisiana Properties Pty Ltd (“Louisiana”) had made two claims in the Land and Environment Court. The first claim was that Hakea Holdings Pty Ltd (“Hakea”), by instructing its contractor, Caverstock Group Pty Ltd (“Caverstock”), to construct a road on Louisiana’s land (Lot 102), carried out development without development consent, in breach of s 76A(1)(a) of the Environmental Planning and Assessment Act 1979 (“the EPA Act”). This claim was pleaded by Louisiana in the third further amended summons (prayers for relief 1 and 2) and the points of claim (paragraphs 21-23).

116. The second claim was that the construction of the road by Hakea on Louisiana’s land (Lot 102) was a trespass. This claim was implicit in prayer for relief 2 in Louisiana’s claim for damages in its cross summons, filed in the proceedings in the Supreme Court that were later transferred to the Land and Environment Court.

The claim of breach of the EPA Act

Breach of s 76A(1)(a) of the EPA Act

117. In his first judgment of 29 March 2017, the primary judge seemingly determined the first claim by finding that Hakea’s construction of the road was in breach of s 76A(1)(a) of the EPA Act. I say “seemingly” because the primary judge did not expressly find that Hakea was in breach of s 76A(1)(a). Nevertheless, it would seem that the primary judge did so conclude for at least two reasons.

118. First, the primary judge found that the Hakea development consent (granted in August 2013 for the erection of a nursing home on Lot 101) did not authorise the construction of the road on Louisiana’s land (Lot 102): at [189]-[199] of the first judgment. This finding left open the question of whether the Louisiana development consent (granted in August 2005 for the erection of an aged persons care facility and medical centre on the then combined land of Lots 101 and 102) authorised the construction of the road. The primary judge made some findings that the road constructed by Hakea generally coincided with the route approved on the Louisiana development consent plans: see [187], [188] of the first judgment. Nevertheless, the primary judge seems to have found that the Louisiana development consent did not authorise the construction of the road. The primary judge found at [203(1)] that “there was no lawful basis upon which Caverstock was permitted to construct the road on Lot 102”. The primary judge therefore found that construction of the road was not authorised by either the Hakea development consent or the Louisiana development consent.

119. The second reason is that the primary judge deferred to a later hearing “the question of discretion” of what orders under s 124(1) of the EPA Act should be made, if any, to remedy or restrain the breach of the EPA Act: see [199], [200], [203(4)] and [205] of the first judgment. The primary judge could not determine orders to remedy or restrain a breach of the EPA Act if he had not found that there was a breach of the EPA Act.

120. The primary judge revisited Louisiana’s claim that Hakea’s construction of the road breached s 76A(1)(a) in the second judgment of 2 November 2017. The primary judge noted that he had not expressly found in the first judgment that Hakea’s construction of the road was in breach of s 76A(1)(a) but asserted that he had “signalled” his view that there had been such breach: at [23]-[25] of the second judgment. Notwithstanding that the primary judge said he had determined the claim that Hakea’s construction of the road was in breach of s 76A(1)(a), the primary judge still went on to redetermine the claim and give different reasons for finding a breach of s 76A(1)(a) of the EPA Act. To have done so was in error. The primary judge’s deferral for later hearing of the question of discretion of what orders should be made under s 124 of the EPA Act to remedy or restrain the breach of the EPA Act did not empower the primary judge to redetermine whether in fact there was a breach of the EPA Act.

121. In the second judgment, the primary judge found again that Hakea’s construction of the road was carried out “without development consent in circumstances where consent for the development was required”: at [26] of the second judgment. His reasons were twofold. First, the construction of the road was not authorised by the Hakea development consent. The road was constructed along a route that was not the route approved by the Hakea development consent: at [27]. Secondly, the construction of the road was also not authorised by the Louisiana development consent. The reason the primary judge gave was that “Louisiana had not granted to Hakea Louisiana’s consent for this construction”. The primary judge considered that “this, in itself, is a sufficient basis upon which to conclude that Hakea could not have had the road constructed in reliance on Louisiana’s development consent”: at [28] and see also [29]-[33] of the second judgment.

122. This second reason is erroneous not only for the reason given by Basten JA in [70] above, but more fundamentally because it addresses the wrong question. A breach of s 76A(1) of the EPA Act occurs only when a person carries out development, which an environmental planning instrument provides may not be carried out except with development consent, either without obtaining such a consent or not in accordance with the consent and the instrument. The development consent authorises any person to carry out development on the land in accordance with the consent. A person who carries out development authorised by a development consent and in accordance with the consent, does not breach s 76A(1) of the EPA Act. This conclusion flows from the nature of a development consent. A development consent is “not personal to the applicant but enures for the benefit of subsequent owners and occupiers”: Ryde Municipal Council v The Royal Ryde Homes (1970) 19 LGRA 321 at 324. In Eaton & Sons Pty Ltd v Warringah Shire Council (1972) 129 CLR 270 at 293, Stephen J held:

“First, although a consent will no doubt result from an application by an individual it is essentially impersonal in the sense that it does not concern itself with and is not limited to the applicant but is a consent to the world at large in relation to the land which is its subject. Once granted it makes lawful, in a town planning context, what would otherwise be unlawful but does so by reference to the acts done and not to the identity of the actor; I would think that a mere trespasser could justify his use of land in terms of town planning controls by reference to some prior consent successfully applied for by a prior lawful occupier.”

123. There is no requirement in s 76A(1) or in any other provision of the EPA Act for the person who carries out development on land in accordance with a development consent to obtain the consent of the owner of the land to carry out that development. A person does not breach s 76A(1) by carrying out development on land in accordance with a development consent without obtaining the consent of the owner of that land. The carrying out of the development on the land without the owner’s consent might be a private wrong, such as a trespass, but it is not a breach of s 76A(1) of the EPA Act unless the development is not carried out in accordance with the development consent and the environmental planning instrument.

124. This conclusion that a person carrying out development on land in accordance with a development consent does not breach s 76A(1) if the person does not have the consent of the owner of the land is not inconsistent with the statutory requirement to obtain the consent of the owner of the land for a development application seeking development consent to carry out a development on that land (see s 78A(1) of the EPA Act and cl 49(1) and cl 50(1)(a) and cl 1(1)(i) of Sch 1 of the Environmental Planning and Assessment Regulation 2000). Owner’s consent to the development application is a separate and anterior requirement. If owner’s consent is given to the development application, and the consent authority determines the development application by granting consent to the application, for the purposes of s 76A(1) of the EPA Act, the development may be carried out in accordance with the development consent without the need to obtain further owner’s consent.

125. Ground 1(d) of Hakea’s appeal is established.

Breach of s 76A(1)(b) of the EPA Act

126. The primary judge then went on to determine an issue that had not been raised by Louisiana in its third further amended summons or points of claim, of whether Hakea’s construction of the road was not in accordance with the Louisiana development consent and thereby in breach of s 76A(1)(b) of the EPA Act. As I have noted, Louisiana’s claim in the Land and Environment Court was that Hakea had constructed the road “without development consent”. This was a claim of a breach of s 76A(1)(a) of the EPA Act. Louisiana did not claim that Hakea’s construction of the road was not in accordance with any identified development consent, including the Louisiana development consent, and accordingly was in breach of s 76A(1)(b) of the EPA Act. The primary judge’s determination of a breach of the EPA Act that had not been claimed by Louisiana in the proceedings, and hence was not an issue in the proceedings, was in excess of jurisdiction.

127. The primary judge found that Hakea’s construction of the road was not in accordance with the Louisiana development consent and in breach of s 76A(1)(b) of the EPA Act in two ways: first, the road was constructed in breach of condition 16 of the Louisiana development consent and, secondly, the road was constructed along an alignment not approved by the Louisiana development consent. The primary judge’s findings of breach in these two ways involved error.

Breach of condition 16 of the consent

128. I will start with the finding that the construction of the road on Lot 102 was in breach of condition 16 of the Louisiana development consent. This condition provided:

“Prior to this issue of a Construction Certificate for the project, the layout and design for the part of the link road within and up to the eastern boundary of Lot 102 DP 1091897 is to be submitted to and approved by a Council. All works to be decided in accordance with AS 2890. The pavement is to be designed to withstand all proposed loads including construction loads.”

129. The opening phrase of condition 16 inspired the primary judge to embark on an enquiry into “whether or not a construction certificate was required to be issued prior to the commencement of construction of any road on Louisiana’s land pursuant to Louisiana’s development consent”: at [39] of the second judgment. This enquiry was misconceived and in error.

130. The obligation imposed by condition 16 was to submit for the approval of the council “the layout and design for the part of the link road within and up to the eastern boundary of Lot 102 DP 1091897”. The time for performance of this obligation was stated to be “prior to the issue of a Construction Certificate for the project”. As Basten JA has observed in [81] and [82] above, the references to “link road” and “the project” are uncertain. Nevertheless, what is clear is that condition 16 itself does not impose an obligation to obtain a construction certificate prior to the commencement of construction of the road on Lot 102. Hence, it was irrelevant to enquire whether a construction certificate was required for the construction of the road on Lot 102. Even if a construction certificate was required for the construction of the road, that fact could not establish a breach of condition 16. The primary judge erred in finding otherwise.

129. The primary judge held that “condition 16 imposes three mandatory prerequisites”, the first being “the submission to, and approval by, the Council of plans for Louisiana’s alignment road prior to the issuing of a construction certificate prior to commencement of construction for ‘the project’”, the second being “compliance with Australian Standard 2890 (AS 2890)” and the third being “the load design standard required for the road”: at [73] of the second judgment. The primary judge found that each of these three “prerequisites” was not satisfied. There was no evidence that any plans for the road were submitted to or approved by the council: at [74]. There was no evidence as to compliance with AS 2890: at [77]. The primary judge found, on the evidence of an engineering expert, Mr Francis, who was called by Louisiana at the second hearing, that the road “cannot be regarded as ‘designed to withstand all proposed loads including construction loads’”: at [78]. The primary judge therefore found that the road was constructed in breach of condition 16 and s 76A(1)(b) of the EPA Act: at [79] of the second judgment.

130. This finding that the construction of the road breached condition 16 involved error. First, the finding was based on evidence that the primary judge had admitted only on the limited basis of “the question of the exercise of discretion” as to whether the primary judge should make an order under s 124 of the EPA Act to remedy or restrain a breach of s 76A(1) of the EPA Act: see [100] of the second judgment. Having limited the use of the expert evidence to the issue of discretion, the primary judge could not use the evidence for the different purpose of establishing a breach of s 76A(1)(b) of the EPA Act, as Basten JA has explained at [75] and [103]. Grounds 3 and 4 of Hakea’s appeal are established.

131. Secondly, the primary judge misconstrued condition 16. The “prerequisites” of the primary judge, concerning compliance with AS 2890 and the load design standard required for the road, did not directly regulate the construction of the road, as the primary judge found, but rather regulated the design of the road. The first sentence of condition 16 requires “the layout and design” of the specified part of the link road to be submitted to the council for approval. The second and third sentences of condition 16 specify certain performance standards that such “design” is required to meet. The second sentence requires the works to be “designed” in accordance with AS 2890. The third sentence requires the pavement to be “designed” to withstand all proposed loads including construction loads. Condition 16 would be breached if the “layout and design” of the road submitted for approval to the council did not meet these performance standards. But condition 16 is not breached by the construction of a road that does not meet these performance standards.

132. The primary judge misdirected himself by asking and answering the wrong question of whether the road constructed by Hakea on Lot 102 complied with AS 2890 or could withstand all proposed loads including construction loads, rather than addressing the correct question of whether the layout and design of the road submitted to the council for approval met these performance standards. The evidence of Mr Francis was directed to the wrong question of the standard of construction of the road as built, but not to the correct question of the design of the road. Ground 1(b) of Hakea’s appeal is established.

Breach of s 81A(2) of the EPA Act

135. The primary judge also misdirected himself and asked the wrong question in enquiring whether Hakea, in not obtaining a construction certificate for the construction of the road on Lot 102, breached s 81A(2) of the EPA Act. The primary judge found that the construction of the road without first obtaining a construction certificate was a breach of s 81A(2): at [71], [82] and [84] of the second judgment. However, Louisiana never claimed that Hakea was in breach of s 81A(2) of the EPA Act. No such breach was pleaded by Louisiana in the third further amended summons or the points of claim. The primary judge’s action in raising and determining the issue of a breach of s 81A(2) of the EPA Act, which was not claimed by Louisiana, was in excess of jurisdiction.

136. The primary judge’s enquiry of whether the construction of the road on Lot 102 was in breach of s 81A(2) also involved misdirection in determining the issue of breach of condition 16 of the Louisiana development consent. Even if under s 81A(2) the construction of the road on Lot 102 could not commence until a construction certification for that work had been issued, that fact could not establish a breach of condition 16. Condition 16 refers to the issue of a construction certificate for “the project”. Whilst the width of the concept of “the project” may be uncertain, it is clear that the project is not limited to the road on Lot 102. The relevant enquiry, required by condition 16, was directed to the issue of the construction certificate for the project, not for the road on Lot 102.

137. In any event, the primary judge erred in finding that a construction certificate was required for the construction of the road on Lot 102. Section 81A(2) requires that the “erection of a building” in accordance with a development consent not be commenced until a construction certificate for “the building work” has been issued by the consent authority. In order for this provision to apply, Hakea’s construction of the road on Lot 102 had to involve the “erection of a building” and “building work”. It did not, as Basten JA has explained in [97] and [98] above. The particular road constructed by Hakea on Lot 102 was not a “building” (within the meaning of that word in s 4(1) of the EPA Act and as used in s 81A(2)) and the construction of that road did not involve “the erection” of a building. Whilst the construction of the road might have involved “the carrying out of a work” (one of the elements of the definition of “development” in s 4(1) of the EPA Act), it did not involve “building work”, as it was not physical activity involved in “the erection of a building” (as “building work” is defined in s 4(1) of the EPA Act). This finding does not mean that the construction of a road can never involve the erection of a building. As Basten JA notes in [98], certain kinds of roads, such as a raised freeway, may involve the erection of a building. Rather, the finding is restricted to the particular road constructed by Hakea on Lot 102.

138. The primary judge’s approach to the question of statutory construction of s 81A(2) and the words and terms used in that provision was erroneous. Ground 1(a) of Hakea’s appeal is established.

Breach of consent by construction on the wrong alignment

139. The other way that the primary judge found that Hakea’s construction of the road on Lot 102 was not in accordance with the Louisiana development consent, and hence was in breach s 76A(1)(b) of the EPA Act, was that it did not follow the route in the Louisiana development consent plans. In the first judgment, the primary judge had concluded that the road constructed by Hakea was “along a route that can be described as generally coinciding with Louisiana’s approved route for connection to the western boundary of the Wyong Health Campus land” (at [187]) and that “this road generally coincides with the route approved on the Louisiana plans” (at [188]).

140. The primary judge reversed these findings in the second judgment, holding instead that “the road alignment upon which Caverstock constructed the road at Hakea’s instigation is not along the alignment approved by the Council in granting Louisiana’s development consent”: at [38] and see also [80] and [81] of the second judgment. The basis for this reversal in findings was the evidence of Mr Francis: see at [80] of the second judgment. The primary judge found that the departure of the constructed road from the alignment approved in the Louisiana development consent was “a second basis for concluding that construction of the road was in breach of s 76A(1)(b) of the EPA Act”: at [81] of the second judgment.

141. The primary judge erred in making these findings in the second judgment. The primary judge had already determined the question of whether there was a breach of s 76A(1) of the EPA Act in the first judgment. The only question left undecided was the question of discretion of what order should be made to remedy or restrain the breach of the EPA Act. The primary judge could not re-determine the question of whether the construction of the road involved a breach of s 76A(1) in the second judgment. Moreover, the primary judge could not rely on the evidence of Mr Francis to find a breach of s 76A(1). Mr Francis’ evidence had been admitted for the limited purpose of discretion as to whether to make orders to remedy or restrain the breach of the EPA Act. It could not be used for the different purpose of establishing a breach of the EPA Act. Grounds 2(a) and (b), 3 and 4 of Hakea’s appeal are established.

142. For these reasons, the primary judge erred, in both the first and second judgments, in various ways in finding that Hakea had breached s 76A(1)(a) and (b) and s 81A(2) of the EPA Act. The primary judge’s declaratory and injunctive orders, founded on these findings of breach, should be set aside.

The trespass claim

143. Louisiana’s second claim was that Hakea has trespassed on Louisiana’s land by constructing the road on Lot 102. The primary judge determined the liability of Hakea for trespass in the first judgment. The primary judge considered that this issue of whether there was a trespass by Hakea turned on “whether easement (C) of the easements created at the time of the subdivision to create Lots 101 and 102 authorised Hakea to construct the road on Lot 102 (of which Louisiana complains) in the exercise by Hakea of its Right of Access pursuant to that easement”: at [146] of the first judgment.

144. The primary judge construed the right of access conferred by easement (C) by reference to Part 14 of Sch 8 of the Conveyancing Act 1919 (“Conveyancing Act”). Hakea contended on this appeal (in grounds 8(a) and (b)) that the primary judge erred in having regard to Part 14 of Sch 8 of the Conveyancing Act, rather than focusing only on the terms of the s 88B instrument creating the easement. I do not agree. Pursuant to s 181A(2) of the Conveyancing Act, the expression “right of access” used in an easement has effect as if the words identified in Part 14 of Sch 8 were inserted instead of the expression “right of access”. Hence, the s 88B instrument creating the right of access over the whole of both Lots 101 and 102 (quoted by Basten JA in [35] above) has effect as if the words identified in Part 14 of Sch 8 were inserted instead of the expression “right of access” in the s 88B instrument. Although the meaning of the expression “right of access” was capable of being varied (see s 181A(3) of the Conveyancing Act), I do not read the s 88B instrument in this case creating the right of access over Lots 101 and 102 as purporting to vary the meaning of the expression.

145. By reference to Part 14 of Sch 8 of the Conveyancing Act, the primary judge found that the road constructed by Hakea on Lot 102 fell within what was permitted to be done of “carrying out work within the site of this easement, such as constructing… trafficable surfaces”: at [152], [153] of the first judgment.

146. However, the primary judge considered that this finding was insufficient to make the construction of the road authorised by the easement; the construction of the road had also to be “done for a purpose permitted by the statutory terms of a Right of Access”: at [153] of the first judgment. The primary judge considered that “Hakea’s purpose was to provide a method by which one could go to or from Lot 101 over Lot 102 from a point on the western boundary of the Wyong Health Campus lands”: at [155]. The primary judge held that:

“for Hakea to take advantage of the easement and construct a road, that road would need to be constructed to somewhere where those exercising the right under the easement were entitled to go otherwise they would not be going to or from Hakea’s land utilising the easement, they would merely be able to go to the boundary of Lot 102 without having any right to go further”: at [156] of the first judgment.

147. The primary judge concluded that, “although constructed in a fashion consistent with the Right of Access the construction was not for a purpose authorised by that Right of Access. This, therefore, necessitates the conclusion that Caverstock’s construction of the road on behalf of Hakea was a trespass on Lot 102”: at [159] of the first judgment.

148. In so concluding, the primary judge misconstrued the scope of the easement. The primary judge erred in finding that the right to pass across each of Lots 101 and 102 required passage to a place beyond those lots, such as the hospital land to the east. The s 88B instrument created mutual easements, including a right of access, benefitting and burdening each of Lots 101 and 102. The right of access applied to the whole of both lots. As Basten JA has explained in [59]-[63] above, the easement gives the right to pass from a lot benefitted (such as Lot 101) onto a lot burdened (such as Lot 102) and to return from the lot burdened to the lot benefitted. There is no necessity to pass beyond either lot, such as to pass beyond Lot 102 onto the hospital land to the east. Under the Louisiana development consent, it had been intended to construct a nursing home on what became Lot 101 and a medical centre on what became Lot 102. It would have been within the contemplation of the drafter of the s 88B instrument that staff from the medical centre might need to visit the nursing home and patients from the nursing home might need to visit the medical centre. The right of access created by the s 88B instrument would permit staff and patients to pass across the boundary between the two lots for these purposes.

149. The primary judge therefore erred in finding that Hakea’s construction of the road on Lot 102 was not authorised by the easement and was a trespass. Grounds 8(c) and 9 of Hakea’s appeal are established. The primary judge’s orders of damages for trespass should be set aside.

The orders to be made

150. I agree with the orders proposed by Basten JA in [112] for the resolution and disposition of the appeal.

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Endnotes

Amendments

03 June 2019 - [102] Amending section to read "s 76A(1)(a)".

[126] Amending section to read "s 76A(1)(b)".

17 June 2019 - [122] - Add "to" before "the identity" in quote.

Decision last updated: 17 June 2019