Hilltop Planners Pty Limited v Great Lakes Council - [2003] NSWLEC 214

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION: Hilltop Planners Pty Limited v Great Lakes Council [2003] NSWLEC 214

PARTIES:
APPLICANT
Hilltop Planners Pty Limited

RESPONDENT
Great Lakes Council

CASE NUMBER: 10540 of 2003

CATCH WORDS: Development Consent

LEGISLATION CITED:
Environmental Planning and Assessment Act 1979 s 65, s 79C, s 90(1), s 91(3)(a), s 91(3)(d), s 91(3)(f), s 91AA, s 91AA(4), s 91AA(5), s 95, s 96, s 96(2), s 99. s 99(1), s 99(5), s 99(8), s 99(10), s 102, s123

CORAM: Talbot J

DATES OF HEARING: 03/09/2003, 04/09/2003

DECISION DATE: 18/09/2003

LEGAL REPRESENTATIVES

APPLICANT
Mr M G Craig QC with Ms A Pearman (Barrister)
SOLICITORS
Bilbie Dan

RESPONDENT
Ms J M Jagot (Barrister)
SOLICITORS
Peter Rees

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

10540 of 2003
Talbot J
18 September 2003

Hilltop Planners Pty Limited

Applicant

v

Great Lakes Council

Respondent

Judgment

Introduction

On 4 December 1987 Great Lakes Council (“the council”) granted development consent to the owners of part lot 104 DP 260058 Mungo Brush Road, Hawks Nest (“the subject land”) for the development of a tourist caravan park subject to conditions. The applicant is the agent of the owners of the subject land. Pursuant to s 99 of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”) as then applied, the development consent would have lapsed on 4 December 1989. Following an application made to the council, on 4 October 1989 the period in s 99(1) of the EP&A Act was extended to 4 December 1990.
Between January 1988 and 4 December 1990 the owners of the subject land carried out works pursuant to a building approval granted on 24 August 1990. There is no dispute in these proceedings that the works carried out relevantly amounted to physical commencement pursuant to s 99.
On 25 August 1992 a recommendation was made to the council that it serve a notice in accordance with s 99(5) of the EP&A Act requiring completion of the development within a period of 18 months from the date of the notice. A notice was issued on 4 September 1992 requiring completion of the development within a period of 18 months, namely by 4 March 1994.
Following applications made to the council by the owners for an extension of time to complete the development the council resolved on 18 January 1994 to refuse those applications on the ground that good cause had not been shown for the extension of time as required by s 99(10) of the EP&A Act.
A further application for extension of time was lodged with the council on 7 February 1994. On 8 March 1994 the council re-affirmed its decision of 18 January 1994.
After further representations made by solicitors acting on behalf of the owners (“the solicitors”) the council resolved on 10 May 1994 to issue a further notice to complete under s 99(5) requiring completion of the caravan park development on the subject land within two years of the date of the notice. The further notice was issued on 26 May 1994.
On 26 August 1994 the solicitors for the owners served on the council a copy of an appeal to the Land and Environment Court pursuant to s 99(8) of the EP&A Act against the May 1994 notice and advised the council that the owners intended to make an application for a staging of the development. In November 1994 the council authorised its Director of Planning Services to negotiate with the owners in relation to the proposed staging of the development.
Following a meeting between representatives of the council and the owners on 20 December 1994 the solicitors wrote to the council on 9 January 1995 in the following terms:-
As a result of the discussions held at the subject meeting we have been instructed to formally put to Council for its consideration the following proposal which is to be regarded as a request for amendment to the current development approval.
1.That the current development approval under DA no 2563 be amended to require that the current works within stage 1 on the enclosed plan be continued and stage 1 completed by 24 May 1997.
2.That that section of the approved plan edged in yellow colour and shown as stage 2 be completed by 24 May 1999.
3.That that section of the approved plan edged in orange colour and shown as stage 3 be completed by May 2001.
As further discussed at our meeting the above request for amendment of the terms of consent is conditional upon Council withdrawing its Notice to Complete of 26 May 1994 and the proceedings in the Land and Environment Court being terminated.
We should be glad to have your confirmation that you are prepared to proceed to a settlement of the matter on the terms outline above.
The council responded to the above letter on 7 February 1995 by advising that it was prepared to withdraw the notice to complete and that it would be prepared to amend the development consent to allow for staging as proposed and in the event that any of the dates are not complied with the consent shall lapse. The letter concluded as follows:-
Upon confirmation of your acceptance of the above proposed amendments to the conditions of consent, we will formally advise of the withdrawal of the Notice to Complete and issue the notice of modification of consent.
The settlement terms as outlined above are based on the withdrawal of pending action in the Land and Environment Court with no costs to be borne by Council.
On 8 February 1995 the solicitors notified the council that the terms of the modification of the development consent were acceptable subject to a minor amendment to the condition allowing for staging by the addition of the following words:-
In the event that any one of the above dates are not complied with then the consent to the uncompleted stage or stages shall lapse.
On 14 February 1995 the solicitors stated in a letter to the council as follows:-
We note that you are prepared to agree to the amendments requested in our letter to you of 8 February 1995.
…
Having regard to the terms upon which the parties have now settled this matter, we have been instructed to discontinue the proceedings in the Land and Environment Court.
By letter dated 23 February 1995 the council formally confirmed that the terms set out in the letter dated 8 February 1995 were acceptable. The Notice of Discontinuance of the proceedings in this Court signed on behalf of the council was returned to the solicitors under cover of a letter dated 23 February 1995. The Notice of Discontinuance was filed in this Court on 7 March 1995.
On 13 March 1995 the council wrote to the solicitors and stated that “in accordance with the terms of the acceptance, council now hereby formally advises that it withdraws the Notice to Complete under sec. 99(5) of the Environmental Planning and Assessment Act 1979 issued on 26 May 1994”. The letter also confirmed that in accordance with s 102 of the EP&A Act the council had modified the development consent, including the inclusion of an additional condition, namely condition 37 allowing for the staging of the development and making provision for lapse of the consent as above mentioned.
On 8 May 1997 the applicant wrote to the council on behalf of the owners advising that they acted as agents for the owners of the land. The letter referred to “an active consent for a caravan park” and to the amendment made pursuant to s 102 of the EP&A Act on 13 March 1995 requiring stage 1 of the development to be completed by 24 May 1997. The letter continues as follows:-
…our clients have chosen to halt development of the project until such time as there is a clearer resolution of the future land use pattern of the land under investigation. When this is known, our clients will then be in a better position to either proceed with the tourism project, albeit via a modified design, or develop the land for residential purposes. We therefore give notice to Council that our clients do not intend fulfilling condition 37 of DA 2563, ie. Completion of Stage 1 by 24/5/1997. Consequently consent for the project will lapse after the nominated dates.
We trust Council understands the circumstances of the matter.
The council acknowledged receipt of the letter from the applicant on 13 May 1997 noting that “the consent for the project will lapse after 24 May 1997”. The owners of the land did not complete stage 1 of the development by 24 May 1997. The owners of the land did not complete stage 2 of the development by 24 May 1999. The owners of the land did not complete stage 3 of the development by 24 May 2001. Until 18 March 2003 there was no relevant communication between the owners and the council in respect of the development consent.
The subject land has been under the consideration of the council for future urban development. On 13 December 1994 the council resolved to place on exhibition a new draft Local Environmental Plan for its area (“the 1994 draft LEP”). The 1994 draft LEP proposed that the subject land, together with other land in the North Hawks Nest area, be zoned 1(c) – Future Urban. Until 13 December 1996 the land was within zone 1(a) – Non-Urban under the Shire of Great Lakes Local Environmental Plan No. 28. On 13 December 1996 the 1994 draft LEP was adopted and the subject land was thereafter within zone 1(c) – Future Urban Investigation.
Prior to the preparation of the draft 1994 LEP the council had commissioned and received a number of reports in respect of the land at North Hawks Nest. Between 30 October 1991 and 30 January 1992 the North Hawks Nest Planning Study (“NHNPS”) prepared by Gardiner Browne Planning Consultants was placed on exhibition. The NHNPS identifies the subject land as being capable of development by the creation of residential lots in varying degrees. The land to the north and south of the subject land was similarly identified under the NHNPS.
In mid 1994 the applicant, on behalf of the owners of the subject land and other landowners, agreed to assist the funding of a Local Environment Study (“LES”) for North Hawks Nest. The owners of the subject land paid an amount of $14,258 to the council. The draft LES was not submitted to the council until October 1995.
Landowners, including the owners of the subject land, agreed to collectively contribute additional funds for further studies in August 1996. The owners of the subject land paid an additional sum of $10,328.75 for their share of the additional funding for further studies. A copy of the draft LES was forwarded to the owners of the subject land on 9 September 1997. The outcome of the LES study was the development of a concept which reduced the potentially developable area of the subject land. On 10 March 1998 the council resolved to place the LES on public exhibition. After consideration of submissions the council resolved to prepare another draft LEP on 13 October 1998 (“the 1998 draft LEP”). Following the submission of the 1998 draft LEP to the Department of Planning on 6 January 1999 the council was directed to prepare an overall planning strategy for the Hawks Nest/Tea Gardens area. In the meantime, the Department refused to issue a s 65 certificate for the 1998 draft LEP. On 23 February 1999 the council resolved to prepare the Hawks Nest/Tea Gardens Conservation and Development Strategy.
On 26 June 2001 the council resolved to request a Commission of Inquiry into the future land use strategies for all land lying north of the village of Hawks Nest to the Myall Lakes National Park. The Commission of Inquiry addressed ecological issues and made recommendations.
On 26 November 2002, after consideration of all studies and reports, including the LES, the Commissioners report and the report of consultants, the council resolved that the study area at North Hawks Nest should be re-zoned Environmental Protection with one dwelling to be permitted, with consent, on each property and that a draft LEP be prepared to reflect those findings.
So far as the Court has been made aware the council has not applied to the Department of Planning for a certificate under s 65 of the EP&A Act in respect of a draft LEP prepared pursuant to the resolution on 26 November 2002.
The applicant has now made an application to the council pursuant to s 96(2) of the EP&A Act to further modify the development consent to allow further time for development of the caravan park proposal in stages. The applicant has appealed to this Court following the failure of the council to grant the application for modification of the development consent.
At this stage of the proceedings the Court has been requested by the council to determine the following three issues as preliminary questions:-
(1)whether there is a consent on which any person is entitled to act within the meaning of s 96(2);
(2)whether the application to the council and this Court was (and is) competent in the particular historical circumstances; and
(3)whether the application to the council and this Court was (and is) competent by reason of the adequacy of the application as lodged.
The validity of condition 37
The final form of condition 37 pursuant to the notice of determination of the application for modification of consent dated 13 March 1995 is as follows:-
37.Stage 1 as outlined on the plan that accompanied the application for modification of consent from Tesoriero Henderson Cotter and Welch dated 9 January 1995 being completed by 24 May 1997 including the construction of all road and intersection works and the provision of reticulated water and sewerage to the development as specified in this consent.
Stage 2 as indicated in the plan referred to above being completed by 24 May 1999.
Stage 3 being completed by 24 May 2001.
In the event that any of the above dates are not complied with, then the consent to the uncompleted stage or stages will lapse.
The council’s case is simply that the meaning of the words in the condition is clear and there is no room for any misunderstanding. The failure to complete stage 1 by 24 March 1997 had the effect that the consent to that stage and the further stages lapsed. Any rights under the consent were thereupon terminated. The applicant, acting on behalf of the owners, fully understood the position in May 1997 when it gave notice that they did not intend to fulfil the requirements of condition 37 and consequently accepted that consent for the project would lapse after the nominated date. That this is so is recognised by the observation that “when there is a clearer resolution of the future land use pattern” they “will then be in a better position to either proceed with the tourism project, albeit via a modified design, or develop the land for residential purposes”. It is consistent with an understanding that the consent had come to an end that the owners recognised that any future alternatives for the tourism project would have to be considered in a modified design.
The effect of the lapse of the consent is, according to the council, that there is now no consent upon which any person is entitled to act and rely for the purposes of making an application pursuant to s 96 of the EP&A Act to modify an existing development consent. This is because the existence of a consent on which a person is entitled to act is a condition precedent to the lodgement of any application to modify a consent. Mr Craig QC recognises, on behalf of the applicant, that if the council’s argument about the effect of condition 37 is correct that is an end to the matter as there will be no subsisting consent upon which the applicant or the owners can rely.
Mr Craig acknowledges that condition 37 of the development consent remains valid if it appears valid on its face until such time as it is declared invalid (Smith v East Elloe Rural District Council [1956] AC 736 at 769 – 770 and Swadling and Another v Sutherland Shire Council and Others (1994) 82 LGERA 431 at 436). Recognising this as the legal position, the applicant has adopted the course of seeking to have the consent modified by the removal of condition 37 without raising any issue as to the validity of the condition.
The council complains that the issue of invalidity was not raised until the applicant filed its written submissions on 2 September 2003. However, Mr Craig explains that it was only after the council challenged the capacity of the applicant to seek modification as a consequence of the alleged lapse of the consent that the applicant was forced to consider whether the condition had been imposed within power.
Relying on the reasoning adopted by Bignold J Australand Holdings Ltd v Hornsby Shire Council (1998) 98 LGERA 312 Mr Craig submits that the development consent as modified in 1995 is a subsisting consent and one which is susceptible to modification under s 96 of the EP&A Act. Bignold J carried out an extensive review of authorities for the purpose of determining whether a deferred commencement consent granted pursuant to s 91AA of the EP&A Act had lapsed as a consequence of the failure to produce evidence to the consent authority within a period specified in accordance with s 91AA(4). Although Bignold J was only dealing with the specific circumstances and statutory provisions applicable to the operation of a deferred commencement consent he nevertheless embarked upon a wide ranging discussion relating to the purported effect of a condition of consent which he assumed provided for lapse in specified circumstances. There was no such condition in the deferred commencement consent the subject of the inquiry in Australand. Nevertheless, Mr Craig seeks to persuade the Court to adopt the reasoning of Bignold J as it was explained in Australand and apply it to the present case.
Before beginning to deal with the observations made by Bignold J in Australand it is appropriate to have regard to the earlier authorities he referred to and relied upon. I propose to take this course with some misgiving as it is difficult to see what utility will become of the conclusion in the light of the following observations made by the Court in Swadling at p 436 as follows:-
It follows therefore that the Council was not entitled to deal with the s 102 application as if condition 28 had never existed. If the respondents are of a mind to challenge the validity of condition 28 then the appropriate and only course is to commence proceedings in this Court for an appropriate declaration and consequential orders. That has not been done. The present matter must therefore be determined on the basis that condition 28 is valid.
Furthermore, there is a claim by the council that the owners of the subject land are estopped from denying the validity of condition 37 after having regard to the events that led up to its imposition and the formal agreement made between the parties that resulted in the settlement of litigation in this Court and the withdrawal of the notice to complete referred to earlier.
However, I propose to deal with the issue as both parties have fully argued it and the applicant recognises that if the council is right and the condition was effective then the consent has gone for all purposes as a consequence of the condition operating to bring the consent to an end by lapse.
In Adelaide Pistol Club Inc. v District Council of Munno Para and Another (1981) 45 LGERA 119 Wells J had to consider the effect of a condition of a planning permit as follows:-
The consent now given shall lapse and be void if the buildings and structures and engineering and site works and landscaping and planting of flora are not completed in all respects on or before 30th June, 1981.
Bignold J placed considerable weight upon the decision of Wells J in support of his contention “That such a condition is clearly of questionable validity”.
The relevant South Australian legislative provision contained in s 36(8) authorised a consent authority to impose conditions “including conditions limiting the operation or effect of the consent, permission or approval to a limited period”. Wells J relied upon obiter remarks of Jacobs J in Scott Pools Pty Ltd v City of Salisbury (1979) 42 LGRA 366 where Jacobs J had expressed an opinion that a conditional consent is one that requires either an act or a forbearance, the breach of which within a limited period would invalidate the consent. But a simple limitation as to time which calls upon nobody to do or forebear from doing anything by way of a condition attached to a consent is not within the purview of the section. Wells J expressed the view that the legislation permitted:-
…a condition to be formulated rather in the form of a determinable limitation: for example, a consent that is to endure so long as the subject land is used in a particular way represents a consent in which has been incorporated a condition limiting the operation of the consent to a definite period; when the particular use ceases, so does the consent.

He nevertheless agreed with Jacobs J that the Act forbade a condition whose sole effect and purpose was to defeat a consent by reason of a lapse of time. Wells J also referred to the provision in s 36(9) of the South Australian legislation for revocation of consent by the consent authority where there is breach of a condition attached to the consent. He considered such a provision would be inconsistent with a determination that enjoins an automatic cesser of consent for breach of condition. His conclusion is summarised at p 124 as follows:-
In my opinion, the combined effect of sub-ss (8) and (9), in their legislative context, is to exclude the power to annex to a consent a condition to the effect that, if specified works are not completed within a time set by the condition, the consent itself becomes automatically null and void.
In Eastern Waste Management Authority Incorporated v City of Tea Tree Gully (1996) 92 LGERA 1 Perry J, with whom Cox and Lander JJ agreed, expressly rejected the construction of the South Australian section by Jacobs J in Scott Pools and expressed the opinion that the reasoning of Wells J in Adelaide Pistol Club was flawed. The opinion of the Full Court expressed by Perry J was that there was no justification to read down the power to include a condition limiting the operation or effect of the consent as a consequence of the provision for revocation following breach of a condition.
Johnson v Lake Macquarie City Counciland Another (1996) 91 LGERA 331 is a decision by Stein J that is also referred to by Bignold J in the course of his judgment in Australand. In Johnson a deferred commencement condition required a licence to be obtained by the National Parks and Wildlife Service (“NPWS”) if required. A note was added to the condition to the effect that the licence be obtained within six months of the date of consent “or the consent will lapse”. It was not necessary for Stein J to determine the effect of the condition and the note in the light of earlier conclusions but he nevertheless concluded that the note formed part of the condition and was not merely advisory and that, in his opinion, the deferred commencement condition was not complied with. Accordingly, assuming its validity, the consent would have lapsed because the deferred commencement condition was not satisfied. The remarks by Stein J were obiter as he subsequently confirmed in Botany Bay City Council v Galeb Kilzi and Another (17 March 1997, Stein J, unreported). His Honour also confirmed that the question of lapse of the consent by effluxion of time in Johnson was a matter of interpretation of the deferred commencement condition.
After referring to Johnson and Kilzi in Australand Bignold J recognised that although Stein J in Johnson had given full effect to the condition it appears that no question had been raised concerning the validity of such a condition.
The Court of Appeal re-considered the decision of Stein J in Johnson in Pulver Cooper & Blackley Pty Ltd v Johnson and Another (1998) 101 LGERA 76. On appeal an issue was raised whether Stein J was correct in determining that the consent had lapsed as a consequence of a failure to produce evidence pursuant to s 91AA(5). Rolfe AJA, with whom Sheller and Beazley JJA agreed, delivered the judgment of the Court. After referring to the decision in Kilzi Rolfe AJA quoted extensively from the deliberations by Bignold J in Australand, including part of his observations in respect of the judgment of Wells J in Adelaide Pistol Club. The citation from the judgment in Australand quoted with approval by the Court in Pulver Cooper included the following:-
“In passing I would wish to add a cautionary word against the imposition of a condition on the grant of development consent which attempts to provide for the lapsing of the consent in the event that some act does not occur within a specified time. In Johnson the relevant condition so provided, and although Stein J in his obiter holding, gave full effect to the condition, it appears that no question had been raised concerning the validity of such a condition.”
Ultimately, Rolfe AJA said that he was of the view that it could not be held that if there had been non-compliance with the deferred commencement condition, which he was not satisfied there was, that caused the development consent to lapse.
It is quite clear from the judgment in Australand that Bignold J was not required to consider the effect of an express condition but rather whether a failure to comply with the requirements of s 91AA itself gave rise to the lapse of a development consent. In Johnson and Pulver Cooper there clearly was a provision that allowed for lapse upon default. With respect, it is not clear to me whether the Court of Appeal was embracing the conclusions by Bignold J in relation to the effect of s 91AA or, more directly for present purposes, his obiter remarks regarding the imposition of a condition on the grant of development consent which provides for lapsing of the consent. The distinction is important in the present case because the development consent upon which the applicant relies is not a deferred commencement consent. I have not been referred to, nor am I now aware of, any decision of this Court which deals specifically with the validity of a condition that specifies lapse of the consent in the manner of condition 37.
I am not satisfied that the authorities to which I have been referred, including those already mentioned, are particularly helpful as they each appear ultimately to depend upon a construction of the legislation as it applies to deferred commencement consents. The present case turns upon the effect of an express condition providing for lapse. Although for the purpose of argument the note in Johnson was incorporated into the consent, Rolfe AJA expressly held that, because NPWS made it quite clear it would not require that a licence be obtained, the condition precedent to the deferred commencement condition for a licence to be obtained from NPWS never arose.
Section 99 of the EP&A Act, at the relevant date, provided that a consent shall lapse unless the development the subject of that consent is commenced generally within two years or where a notice requiring completion of the development had been issued, the development the subject of a consent must be completed within the time specified in that notice.
Section 91(3)(a) at the time provided that a condition may be imposed upon the granting of a consent if it relates to any matter referred to in s 90(1) of relevance to the development the subject of the consent. Under s 91(3)(f) a condition could be imposed to require the carrying out of works (whether or not being works on land to which the application relates) relating to any matter referred to in s 90(1) applicable to the development the subject of the consent. Section 90(1) enumerated and specified the matters which a consent authority shall take into consideration in determining a development application. Included amongst the matters specified were the circumstances of the case and the public interest. No great assistance comes from s 91(3)(f), which is limited to the imposition of a condition for the carrying out of works, because the relevant plans approved by the council in 1995 show that not only works but the erection of buildings is to be carried out in all stages. Ms Jagot, on behalf of the council, concedes that there is a combination of works and buildings involved in stage 1, stage 2 and stage 3. Nevertheless, she says that s 91(3)(a) is sufficiently wide to cover any aspect of the proposal which would at least fall into circumstances of the case. It is the applicant’s case that the provisions for lapse of a consent and the power to issue a notice to complete pursuant to s 99 constituted a code and therefore exhaustively defined the power of the consent authority to provide for lapse of a consent or completion of a development.
In Carstens v Pittwater Council (1999) 111 LGERA 1 Lloyd J concluded that the matters for consideration listed in s 79C(1) of the EP&A Act (the present equivalent of the former s 90(1)) are not the only matters to which a consent authority may have regard. He regarded the dictates of s 79C as only listing the matters which a consent authority must consider and that, accordingly, the consent authority may also take into consideration other matters not listed. However, he qualified his finding by saying that the relevant considerations are confined so far as the subject matter, scope and purpose of the EP&A Act and any environmental planning instrument allow. With respect, I cannot cavil with His Honour’s approach. However, different considerations apply in relation to the effect of s 99. It contains an exception to what is otherwise the statutory power to grant only a final and certain consent in perpetuity, subject to the specific power in s 91(3)(d) to impose a condition which limits the period during which development may be carried out in accordance with the consent.
The grant of a development consent is the exercise of a statutory power. It is not a power at large. The EP&A Act was, and is, circumspect about the extent to which conditions may be imposed. There is no direct reference to a power to impose a condition whereby a consent shall lapse as a consequence of failure to comply with a condition of the consent. Section 99 sets out in concise terms the way in which lapse can be avoided by commencement of building, engineering or construction work relating to the development the subject of the consent. Once development is relevantly commenced the Act provides only for the power of the consent authority to issue a notice requiring completion within a specified time. The legislation does not provide for the lapse or termination of the consent for failure to comply with a notice to complete. That failure to comply relevantly becomes a breach of the EP&A Act which can be constrained by the successful bringing of proceedings in this Court pursuant to s 123 of the EP&A Act.
Accordingly, the whole of the powers and conditions for the lapsing of consent or the completion of development are to be found within the framework of what was formerly s 99 and is now s 95 of the EP&A Act. The agreement of or collaboration with the holder of the consent does not extend the power to deal with lapse or completion. In this case, the acts of relevant commencement meant the opportunity for lapse had long since passed at the date of modification in 1995.
The Court concludes, therefore, that notwithstanding the consent and agreement of the owners of the time the imposition of condition 37 was beyond the statutory power of the council as consent authority. However, whilever the condition remains as part of the consent it does have the legal effect claimed by the council, namely to provide for the consent to lapse. The applicant does not and arguably cannot have a declaration of invalidity in class 1 proceedings. Accordingly, by operation of condition 37, there is no consent upon which the present applicant can rely for the purposes of making an application pursuant to s 96 for modification of that consent (Swadling).
Nonetheless, even if the condition does not have legal effect, that would not be an end to the matter. The council has always maintained that irrespective of whether condition 37 is legally valid the applicant, as agent of the persons otherwise entitled to act on the consent, is, in the circumstances, estopped from raising invalidity.
Estoppel
The principles stated in the following passage from the judgment of Brennan J in Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 at 423 was applied by this Court in DTR Securities Pty Ltd v Sutherland Shire Council (1993) 79 LGERA 88 at 98 and are equally applicable to the present case:-
The unconscionable conduct which it is the object of equity to prevent is the failure of a party, who has induced the adoption of the assumption or expectation and who knew or intended that it would be relied on, to fulfil the assumption or expectation or otherwise to avoid the detriment which that failure would occasion. The object of the equity is not to compel the party bound to fulfil the assumption or expectation; it is to avoid the detriment which, if the assumption or expectation goes unfulfilled, will be suffered by the party who has been induced to act or to abstain from acting thereon.
At the time condition 37 was inserted in the consent by way of modification the owners entered into an agreement with the council, the conditions of which required the council to:-
(a) withdraw the notice issued under s 99 to complete the development within two years from 26 May 1994;
(b)consent to the filing of a notice of discontinuance of an appeal against the notice to complete; and
(c)modify the development consent by imposing condition 37, the terms of which were in response to the application made by the owners.
The evidence clearly shows that a representation was made on behalf of the owners that the development would be completed in stages by the proffered dates and that the consequence of default would be the lapse of the consent, at least in respect of any uncompleted stage.
The council thereupon lost the opportunity to pursue a requirement for the example, could have serious consequences for certainty in town planning and the proposed future use of the land and ultimately the proposed zoning to permit only the erection of a single dwelling. After modification of the consent by the insertion of condition 37, the withdrawal of the appeal and the notice to complete, the council was entitled to assume that if the development was not completed in stages by the dates prescribed by the owners the development consent would lapse. The actions of the owners induced the council to adopt that assumption by making representations to that effect. It was the clear intention of the owners that the council should rely on the representations made. The council lost the opportunity to require completion of the development in its entirety pursuant to the extant notice to complete.
Leaving aside the circumstances and what occurred in February and March 1995, the owners subsequently elected to accept the lapse of the consent provided for in condition 37 and made a representation to the council to that effect. A representation was made to the council that the owners did not intend to fulfil the terms of condition 37 and that consequently “consent for the project will lapse after the nominated dates”. The election on the part of the owners at that stage creates a further estoppel. Thereafter, the council proceeded with investigations and inquiries for the future use and re-zoning of the land with the understanding that the consent for the purpose of a caravan park had lapsed.
Once the elections were made in 1995 and 1997 the owners are not now in a position where they can approbate and reprobate by seeking to modify a development consent which they have at all relevant times until now represented as being capable of lapse and that actual lapse has occurred.
Moreover, the Court agrees with the submission made by Ms Jagot that the applicant, as the agent of the owners, can hardly be a person who is dissatisfied with the determination of the application for modification, or the failure of the consent authority to determine the application, when indeed it has at all relevant times heretofore embraced the intended effect of condition 37 and the consequences of the failure to complete in accordance with its terms.
Any claimed detriment to the owners as a consequence of continuing to negotiate with the council for re-zoning and by making further contribution to the cost of town planning studies after allowing condition 37 to take effect is irrelevant to the operation of an estoppel.
The Court is therefore satisfied that the applicant is estopped from contending for or relying on the continuing effect of the consent for any purpose and in particular for the purpose of laying the foundation for an application under s 96 for modification and thereafter an appeal to this Court.
Conclusion
The consequence of the above determinations in respect of the continuing effect of condition 37 and the operation of an estoppel against the applicant as the agents of the owners is that the appeal should be dismissed and a formal order to that effect will be made. Although these are class 1 proceedings and it might be expected that the Court will exercise its discretion by not making any orders as to costs unless there are exceptional circumstances, no submissions have been made in that respect and, accordingly, the issue of costs is formally reserved.
The Court makes the following formal orders:-
(1)          Appeal dismissed.
(2)          The exhibits may be returned.
(3)          Costs reserved.