Hillpalm v Tweed Shire Council
[2002] NSWCA 332
•3 October 2002
CITATION: Hillpalm v Tweed Shire Council [2002] NSWCA 332 FILE NUMBER(S): CA 40204 of 2002 HEARING DATE(S): 04/09/02 JUDGMENT DATE:
3 October 2002PARTIES :
Hillpalm Pty Ltd
v
Tweed Shire Council & AnorJUDGMENT OF: Meagher JA at 1; Handley JA at 14; Hodgson JA at 15
LOWER COURT JURISDICTION : Land & Environment Court LOWER COURT
FILE NUMBER(S) :LEC 40066 of 2001 LOWER COURT
JUDICIAL OFFICER :Lloyd J
COUNSEL: Hillpalm: D Officer QC & P McGuire
Tweed: M Einfeld QC & H Irish
Heaven's Door: T F Robertson SCSOLICITORS: Hillpalm: Bolster & Co
Tweed: Stacks the Law Firm with Halliday & Stainlay
Heaven's Door: Woolf AssociatesCATCHWORDS: Land & Environment Court - easements - appeal dismissed with costs. LEGISLATION CITED: Cl 46 (1) Environmental Planning and Assessment Regulation 1994 CASES CITED: North Sydney Council v Ligon 302 Pty Ltd (1996) 185 CLR 470 DECISION: Appeal dismissed with costs.
CA 40204 of 2002
LEC 40066 of 2001Thursday, 3 October 2002MEAGHER JA
HANDLEY JA
HODGSON JA
Facts
An application made by the appellant to declare invalid a subdivision consent granted by the respondent Council to the respondent Heaven’s Door Pty Limited was dismissed by the Land and Environment Court. Land at Tanglewood was subdivided into two lots in 1977. The respondent, Heaven’s Door Pty Limited is the owner of Lot 1, and the appellant, Hillpalm Pty Limited, of Lot 2. The plan of subdivision, which was registered in November 1978 contained a “proposed right of way of 10 wide” but did not disclose the creation of any easement.
On 26 September 2000, the respondent, Heaven’s Door Pty Limited made a development application to the respondent Council to subdivide Lot 1 into five rural residential allotments. Council resolved to grant the application subject to the submission of documentary evidence “demonstrating that the proposed right of carriageway…(had) been created and registered in the Lands Titles Office”. During the preceding twenty five years, the appellant (owner of Lot 2) had not done anything to create the easement of right of way required by the original 1978 subdivision.
HeldThe respondent Hillpalm Pty Limited was not a party to Heaven’s Door Pty Limited’s application. It was not notified of it and did not consent to it.
(i) A development application which relates to a parcel of land can only be made by or with the consent of the owner of that land (Clause 49(1)(b) of the Environmental Planning and Assessment Regulation 2000).
(ii) The trial judge correctly found that the respondent’s application in respect of Lot 1 did not “relate to” in whole or in part, the appellant’s land in Lot 2. What land an application “relates to” must primarily, if not exclusively, be determined by an examination of the terms of the application itself, which, of course, is a written document.
Orders
Appeal dismissed with costs.
CA 40204 of 2002
LEC 40066 of 2001
Thursday, 3 October 2002MEAGHER JA
HANDLEY JA
HODGSON JA
1 MEAGHER JA: This is an appeal from a decision of Lloyd J in the Land and Environment Court which dismissed an application by the appellant to declare invalid a subdivision consent granted by the respondent Council to the respondent Heaven’s Door Pty Limited.
2 The appeal raised one issue only, whereas the trial before Lloyd J raised a multiplicity of issues. The essential facts may be reduced to a handful.
3 Certain land situate at Tanglewood (which is a hamlet in New South Wales) was subdivided into two lots in 1977, pursuant to the development consent of the respondent Council. The respondent Heaven’s Door Pty Limited is currently the owner of Lot 1, and the appellant Hillpalm Pty Limited is currently the owner of Lot 2.
4 In 1977 the Council resolved to consent to subdivide the land subject to a condition:
- (a) Provision of a constructed right of carriageway from Clothiers Creek Road. The track shall be at least 2.5 metres wide and constructed with 150mm consolidated thickness of gravel.
A year later the Council resolved to give the subdivision its final approval although that condition had not been complied with.
5 The plan of subdivision was duly registered in November 1978 without the creation of any easement, although it shows the site of “a proposed right of way 10 wide” over Lot 2 in favour of Lot 1.
6 No easement has been formally created since.
7 Lot 2 has been re-subdivided several times.
8 The respondent Heaven’s Door Pty Limited on 26 September 2000 made a development application to the respondent Council to subdivide Lot 1 into five rural residential allotments. On 19 January 2001 the Council resolved in effect to grant that application subject to a deferred date of commencement. The consent is expressed not to operate until the applicant for consent satisfies the Council by producing satisfactory evidence of a number of things, including:
- 1 Submission of documentary evidence to the satisfaction of the Director of Development Services demonstrating that the proposed right of carriageway 10m wide shown on DP 601049 or the amended right of way alignment shown on appendix C of the development application has been created and registered in the Lands Titles Office.
9 Of course, during the preceding twenty five years the owner of Lot 2 had done nothing at all to create the easement of right of way required by the original 1978 subdivision.
10 On 20 October 2000 Heaven’s Door Pty Limited commenced proceedings in Clause 4 of the Court’s jurisdiction against Hillpalm seeking a declaration that there had been a breach of the 1977 condition (a) which I have set out supra. It also sought a mandatory injunction against Hillpalm ordering it to create the easement. Sheahan J on 7 June 2001 made both the declaration and the order sought, and this Court has affirmed his decision in an appeal heard concurrently with the present appeal.
11 The respondent Hillpalm was not a party to Heaven’s Door Pty Limited’s application; nor was it notified of it. It has not consented to it. The issue in the present appeal arises out of that fact. The law is that a development application which relates to a parcel of land can only be made by, or with the consent of, the owner of that land. Such was the law under clause 46(1) of the Environmental Planning and Assessment Regulation 1994, which has now been replaced by clause 49(1)(b) of the Environmental Planning and Assessment Regulation 2000, which is approximately the same terms. The short question, therefore, is did Heaven’s Door’s application in respect of Lot 1 “relate to”, in whole or in part, Hillpalm’s land in Lot 2? Lloyd J found it did not, and he was right.
12 What land an application “relates to” must primarily, if not exclusively, be determined by an examination of the terms of the application itself, which, of course, is a written document. As Mr Einfield SC, learned senior counsel for the Council, pointed out, in what seems to me to be an irresistible argument, the application requests a subdivision of Lot 1, and only that. It does not mention any part of Lot 2. The documents which have to accompany such an application do make mention of the easement over Lot 2, but do not request a development of that easement; they speculate on the creation of that easement, which had been ordered twenty-five years earlier; in some cases they even went so far as to assume that such an easement would be created (by those bound to created it). But at no stage do they suggest that, as a part of this application, something be done to the land over which the easement was originally proposed.
13 For these reasons, the appeal should be dismissed with costs.
14 HANDLEY JA: I agree with Meagher JA.
15 HODGSON JA: I agree with Meagher JA.
16 The application in question, which was made in the prescribed form, identified the “land to be developed” as Lot 1, and the “proposed development” as “subdivision of land” (the other possible choices, namely “use of land/building”, “erection of a building/additions/alterations”, “carrying out of work”, “demolition” and “other”, not being indicated). There was nothing in the application or accompanying documents inconsistent with this identification; and in those circumstances it could not possibly have been contended by the respondent that consent to that application amounted to consent to carry out any work on Lot 2.
17 In those circumstances, the application did not relate to Lot 2: cf. North Sydney Council v. Ligon 302 Pty. Ltd. (1996) 185 CLR 470.
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