Huntington & Macgillivray v Hurstville City Council (No 2)

[2005] NSWLEC 155

Reported Decision: 139 LGERA 84

Land and Environment Court

of New South Wales

CITATION:	Huntington & Macgillivray v Hurstville City Council & Ors [No 2] [2005] NSWLEC 155
PARTIES:	APPLICANT: Huntington & Macgillivray FIRST RESPONDENT: Hurstville City Council SECOND RESPONDENTS: David and Rosaline Kutcher
FILE NUMBER(S):	10873 of 2004
CORAM:	Pain J
KEY ISSUES:	Question of Law :- operation of s40 of the Land and Environment Court Act 1979 if development consent required for land not part of development application - whether can have deferred commencement conditions if no legal access for development
LEGISLATION CITED:	Conveyancing Act 1919 s 88K Environmental Planning and Assessment Act 1979 s 79C, s 97 Environmental Planning and Assessment Regulations 1994 cl 46 Environmental Planning and Assessment Regulations 2000 cl 49 Land and Environment Court Act 1979 s 40
CASES CITED:	Becton Corporation Pty Limited v Minister for Infrastructure, Planning and Natural Resources & Anor [2005] NSWLEC 197; Billgate Pty Limited v Woollahra Municipal Council [2004] NSWLEC 436; Hillpalm Pty Ltd v Tweed Shire Council & Anor (2002) 119 LGERA 86; Huntington & Macgillivray v Hurstville City Council & Ors [2004] NSWLEC 694; King v Great Lakes Shire Council (1986) 58 LGRA 366; North Sydney Council v Ligon 302 Pty Limited (1996) 185 CLR 470; Weal v Bathurst City Council & Anor (2000) 111 LGERA 181
DATES OF HEARING:	17/01/05 (written subs) 18/02/05 (written subs) 01/03/05 (written subs)
DATE OF JUDGMENT:	05/20/2005
LEGAL REPRESENTATIVES:	APPLICANT: Mr G Newport (barrister) instructed by Mr M Ball (agent) FIRST RESPONDENT: Mr P Rigg (solicitor) SOLICITORS: Deacons SECOND RESPONDENTS: Mr P Tomasetti SOLICITORS: Andreones Pty Limited Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

20 May 2005

10873 of 2004 Huntington & Macgillivray v Hurstville City Council and David and Rosaline Kutcher [No 2]

JUDGMENT

1 Her Honour: These are part-heard Class 1 proceedings before Commissioner Brown. Following my judgment in Huntington & Macgillivray v Hurstville City Council & Ors [2004] NSWLEC 694 in relation to several preliminary questions of law concerning Lots 31 and 32 of Section 1 in DP 1399, being 35-41A Penshurst Street, Penshurst (“Lots 31 and 32”), the Applicant and First Respondent, Hurstville City Council (“the Council”), have raised additional questions of law for consideration. These questions arise because of obiter comments I made at [26] to [29] of my earlier judgment which raised questions about the need for development consent to be obtained before an application under s 40 of the Land and Environment Court Act 1979 (“the Court Act”) can be made. A diagram was attached to my earlier judgment which shows the respective parties’ properties. I have attached the same diagram to this judgment to aid comprehension at Annexure A. The relevant parts of the Statement of Agreed Facts tendered in the earlier proceedings provide as follows:

Land and Ownership
…

Lot 32 is benefited and Lots A and 1 are each burdened by a Right of Carriageway created by Transfer C388369 dated 31 October 1935 (the ROC).

Lot 31 does not have the benefit of the ROC, and currently enjoys no other legal entitlement to use any part of Lot A either by right of carriageway, easement or otherwise.

The ROC is in the terms and for the purposes set out in Transfer C388369.

The Application
On 18 July 2003 the Applicant lodged a development application with the First Respondent for the demolition of the existing buildings and erection of buildings on Lots 31 and 32 being development application DF 567/03 (DF 567/03).

The proposed development consisted of 24 x 2 bedroom units and 3 shops in two buildings, one 5 storeys and one 4 storeys high.
…

The development proposed in DF 567/03 will utilise the ROC for access to the development for the duration of use of the development upon completion and occupation.
…

Owners’ Consents
The Second Respondents have not given their written consent to the making of DF 567/03 as owners of Lot A.

2 In the current proceedings, the questions of law raised are as follows:

1. Does the Court have power to impose a deferred commencement condition which requires the Applicant to obtain the owners’ consent for the use of the right of way and the grant of a consent to a separate development application for the intensification of the Second Respondents’ land?
2. Is the Court empowered to consider the intensification merits of the current development application pursuant to s 79C of the Environmental Planning and Assessment Act 1979 and, if concluding those impacts to be acceptable, to adjourn the proceedings to allow an easement over the right of way to be obtained and a second consent obtained for the intensification of the Second Respondents’ land?
3. In the alternative, is the Court empowered to grant consent to the current development application in the present circumstances with or without a condition averting to the need to obtain a separate consent to the intensification of the Second Respondents’ land?

3 Separately to these questions I had earlier raised the following question for determination:

Lot 31 has no access to Victoria Avenue, suggesting that development consent cannot be granted for this development application. Given this, can s 40 of the Land and Environment Court Act 1979 be used as a basis for the deferred commencement condition relating to Lot A which provides that:

A Right of Carriageway shall be created 3.05 metres wide over the property Lot A in DP 332036 (adjoining the subject site and known as 33A Penshurst Street) to allow access to and from Victoria Avenue. This Right of Carriageway shall benefit the whole of the subject site, that is both Lot 31 and Lot 32 Sec 1 DP 1399, known as 35-41 Penshurst Street, Penshurst. It is acknowledged that only Lot 32 currently has the benefit of the Right of Way.

4 It is necessary to determine the last question first. This issue arises because the Applicant and the Council have presented to the Court in the part-heard Class 1 proceedings, a deferred commencement condition as set out in the question above as a means of Lot 31 gaining access to Victoria Avenue across Lot A. The basis for such a condition is said to be s 40 of the Court Act. Section 40 provides that:

(1) If the Court has determined to grant development consent on an appeal under section 97 of the Environmental Planning and Assessment Act 1979 , the appellant may apply to the Court for an order imposing an easement over land.
(2) The Court, on application under subsection (1), may make an order imposing an easement over land if it is satisfied that:

(a) the easement is reasonably necessary for the development to have effect in accordance with the consent, and

(b) use of the land having the benefit of the easement will not be inconsistent with the public interest, and

(c) the owner of the land to be burdened by the easement can be adequately compensated for any loss or other disadvantage that will arise from imposition of the easement, and

(d) all reasonable attempts have been made by the applicant for the order to obtain the easement or an easement having the same effect but have been unsuccessful.

...

5 The issue I raised in the course of the hearing leading up to my earlier judgment was whether development consent was also needed for the use of Lot A for access by Lot 31. At present Lot 31 has no legal access across Lot A.

Applicant’s/Council’s submissions

6 The Applicant, with the Council adopting its submissions, relied on the decision of Bignold J in Billgate Pty Limited v Woollahra Municipal Council [2004] NSWLEC 436. That case dealt with the location of a drainage easement and the use of s 40 of the Court Act. It was submitted that Billgate is authority for the proposition that the Court can determine a Class 1 appeal and impose a condition which would allow the Applicant to make an application to the Court under s 40 of the Court Act to cure or create the right of way necessary for the development to proceed.

Second Respondents’ submissions

7 The Second Respondents submitted that s 40 of the Court Act could not be used to cure the issue of no access over Lot A for Lot 31 by way of a deferred commencement condition. The Second Respondents argued that in order to obtain access, it is necessary for the Applicant to obtain an easement over the land under s 88K of the Conveyancing Act 1919 (“the Conveyancing Act”) or gain the Second Respondents’ consent to the making of a development application to intensify the use of the access over the land. According to the Second Respondents, s 40 of the Court Act cannot be utilised until the Court has determined that the proposed use of the right of way is reasonable and has granted development consent.

Finding on Lot 31

8 There is nothing in the wording of s 40 of the Court Act to suggest that the obligation under the Environmental Planning and Assessment Act 1979 (“the EP&A Act”) in relation to the requirement to obtain development consent over land to be used for the development is intended to be circumvented using this section. It is fundamental under the EP&A Act that there must be a landowner’s consent to a development application which uses his or her land for development as defined under the EP&A Act. Given that Lot 31 currently has no legal entitlement to use the right of way over Lot A, does an application under s 40 obviate the need to obtain the consent of the land owner whose land is to be used for a development? The answer must be “no” as I consider the obligation to obtain the owner’s consent continues regardless of the provisions of s 40.

9 The issue then arises of whether s 40 can be applied, in conjunction with the requirement that development consent be obtained where it is necessary, in these circumstances. If not, the development application in this matter must fail because the Applicant will have no legal access to Victoria Street and no means of acquiring access unless a successful application under s 88K of the Conveyancing Act is made to the Supreme Court of New South Wales or an appropriate commercial agreement is made with the Second Respondents.

10 In Billgate, Bignold J held at [15] that the power conferred on the Court by s 40 could be available if the Court determines to grant development consent over land not the subject of the development application. In this respect, Bignold J rejected the argument that s 40 limited the power conferred on the Court to circumstances where the Court has already granted development consent. Bignold J noted at [16] that the power conferred by s 40 is obviously beneficial and facultative and it should accordingly be liberally construed. Accordingly, His Honour held at [17]:

In this context, there is no justification for construing narrowly the condition specified in subsection (1) which enlivens the power, especially where the statutory language employed naturally covers a case where the Court has either granted development consent or decided (“determined”)to grant development consent but has withheld making final orders for appropriate reasons. Quite apart from the dictates of cl 25(2) of the LEP, an appropriate reason may well be the decision to await the outcome of an application for an order pursuant to s 40 before granting development consent in a planning appeal where the Court has concluded that the proposed development simply cannot be properly or responsibly sanctioned or carried out without the benefit of a necessary drainage easement which is procurable on application made pursuant to the LEC Act, s 40. In the present case, where cl 25(2) of the LEP operates as a condition precedent to the grant of development consent the reason for the Court to withhold granting development consent in the planning appeal until it adjudicates upon an application for an order pursuant to s 40 is of course a fortiori, being mandatory and not merely appropriate.

11 That judgment does not canvass the situation where development consent for the use of land is required in addition to the creation or expansion of an easement over land which is not included in a development application, as is the case here. As considered recently by Lloyd J in Becton Corporation Pty Limited v Minister for Infrastructure, Planning and Natural Resources & Anor [2005] NSWLEC 197 the approach of Bignold J in Billgate means that an application under s 40 can be made once a determination to grant consent has been reached but not actually granted by this Court. If a s 40 application before a judge of the Court is successful it can be the basis for an application in the Equity Division of the Supreme Court of New South Wales to compel a landowner to give consent to a development application if necessary (Becton at [17]).

12 I considered in my earlier judgment at [26] and above at par 8 that a development application for Lot A, the land the subject of the proposed right of way for Lots 31 and 32, is necessary. If s 40 as currently drafted is to have any substantive role to play in the development appeal process where development consent is also required it can only be if the approach in Billgate is applied. I consider therefore that I should apply Billgate so that s 40 can be considered once the Court in Class 1 proceedings has determined to grant development consent but has not actually granted consent. If s 40 is not interpreted in this way applicants for development face a dilemma as they will not be able to rely on s 40 unless they have obtained the consent of the owner of the land to the making of a development application, and development consent has been granted. If no owner’s consent is forthcoming they would not be able to obtain the development consent necessary to ground an application under s 40. Giving s 40 the “facultative” interpretation identified in Billgate overcomes this issue.

13 In terms of the question posed at par 3 I do not consider however that the condition of development consent proposed by the Applicant and the Council enables this development to be approved conditionally. That is not the end of the matter. Rather, it is necessary to consider what other ways this matter can proceed taking the operation of s 40 into account.

Further questions of law

14 I will now address the three questions of law set out at par 2 together as these raise the various options for how this matter can proceed before the Commissioner.

Applicant’s/Council’s submissions

15 The Applicant, with the Council adopting their submissions, contends that in relation to the first question the Court is empowered to grant deferred commencement consent with a condition requiring the Applicant to obtain an easement over the Second Respondents’ land. On the basis of the decisions of Cripps CJ in King v Great Lakes Shire Council (1986) 58 LGRA 366, the High Court decision in North Sydney Council v Ligon 302 Pty Limited (1996) 185 CLR 470 and Lloyd J in Hillpalm Pty Ltd v Tweed Shire Council & Anor (2002) 119 LGERA 86, the Applicant submitted that it is not essential that all land necessary for development be the subject of the development application. The Court is empowered to consider the issue of adequate access and grant consent upon consideration of that issue without the access land being the subject of the development application.

16 Secondly, the Applicant argued that the Court could reach a conclusion with respect to the current development application that the intensification merits were acceptable and adjourn proceedings to enable the Applicant to obtain the requisite easement. The Applicant argued that such an approach was consistent with Billgate.

17 Thirdly, the Applicant submitted that the Court was empowered to grant consent to the current development application with or without a condition averting to the need to obtain a separate consent. Relying on King the Applicant submitted that there is no legal requirement for a condition to be imposed requiring a further consent to intensify the use of an easement.

Second Respondents’ submissions

18 In relation to the first question the Second Respondents argued that the Court did not have the power to grant deferred commencement consent with a condition requiring an easement over the Second Respondents’ land until a further development application was made. The Second Respondents submitted that the Court could not consider any proposal to intensify the use of the right of way as the development application has been found by the Court not to relate to the right of way. Accordingly, the Court could not grant deferred commencement of the development application requiring the Applicant to obtain an easement over the Second Respondents’ land because to do so would defer the assessment of an essential aspect of the development application, the issue of adequate access to the site, contrary to Weal v Bathurst City Council & Anor (2000) 111 LGERA 181.

19 In relation to the second question, the Second Respondents argued that the question had effectively been answered as the Court has determined that a new development application is required for the intensification of the use of the right of way. As the Second Respondents’ land is not part of the current development application the assessment of the intensification of the land cannot be considered.

20 The Second Respondents argued in relation to the third question that in the absence of the land to be used for access to the site being included in the development application, it was not appropriate for the Court to consider the adequacy of access over that land.

Finding on questions 1, 2 and 3

21 There is substantial case law before this Court and the High Court which confirms the proposition that a development application need not include in the application land the use of which is necessarily involved in the subject of the application. In King, Cripps CJ held at 380 that it was not necessary that all the land that is required to be used by a particular development form part of the development application. In Ligon it was accepted by the High Court at 476 that development “carried out on one parcel of land may entail a development on an adjoining parcel or on another parcel in the locality”. This proposition was considered and approved by Lloyd J in Hillpalm at 101 (see my earlier judgment at [22] and [23]) and applied by me in my earlier judgment when I determined what land the application related to. Essentially, the decision in Hillpalm and my decision focused on the meaning of “relate to” in the context of the requirements in cl 46(1) of the Environmental Planning and Assessment Regulations 1994 (now cl 49(1) of the Environmental Planning and Assessment Regulations 2000) that a development application can only be made by an owner of land the application relates to, or any person with the consent in writing of the owner of land.

22 This case highlights however the potential problem for an applicant in doing so when the matter comes before the Court for a merit determination if the development does not have legal access to neighbouring land, as is the case with Lot 31 in relation to Lot A. While the development application is legally made it may well be doomed to fail on the merits if there is no legal access. Nor am I convinced that such a matter is appropriate for a deferred commencement condition. In Hillpalm Lloyd J considered that there was a means of gaining legal access by way of a right of way across the neighbouring land not included in the application. He did not consider directly the issue of whether and how development consent for the work on the right of way would relate to the development application before him. Nor was he considering the matter on its merits, rather he was dealing with the preliminary issue of whether the development application was valid.

23 Where the land not included in a development application relates to the legal access for a development however, the Court, or a council, is arguably unable to grant development consent unless satisfied that legal access can be secured and is satisfactory. In this case I have found that development consent is necessary for the use of Lot A by Lots 31 and 32, albeit for different reasons. The Court cannot be satisfied at present that there is legal access for Lot 31 across Lot A in particular as there is no existing easement which can form the basis for legal access.

24 Lot 32 currently has an easement over Lot A, the use of which will intensify if this development is to proceed. I have held in my earlier judgment that development consent is needed in these circumstances.

25 In my earlier judgment dealing with Lot 32 I stated at [27] that:

It is a matter for the Commissioner whether he chooses, in circumstances where it is not known whether consent to the more intensive use of the right of way over Lot A by Lot 32 can be obtained, to grant consent to the development application currently before the Court. Theoretically a deferred commencement condition requiring that development consent be obtained for the intensification in use before any development consent granted to this development application commences could be considered. If the Second Respondents’ consent for such a development application is not forthcoming then presumably such a condition will not be fulfilled.

26 I have now given this far greater thought and consider that paragraph is not entirely correct for these proceedings. I held at par 13 that the proposed deferred condition of development consent is not sufficient for Lot 31. Nor is it appropriate for Lot 32 in these proceedings. What needs to be considered is how the current development application before the Court can be dealt with so that the findings in Billgate in relation to s 40 are given effect but the requirement to obtain development consent is also maintained, which necessarily requires that the Applicant has legal access across Lot A before development consent for this proposal is granted.

27 I consider the only possible option is as set out in question 2, with some modifications. Once the Commissioner has determined that access across Lot A is satisfactory and concludes the impacts are acceptable, he should adjourn the proceedings to allow an application to be made to a judge of the Court as required by s 40(3) and also require that the owners’ consent be obtained for a development application for the use of Lot A by Lot 31 and the intensification of use by Lot 32. The existing easement over Lot A benefiting Lot 32 may also need to be considered in any s 40 application.

28 If the s 40 application is successful and if subsequently owners’ consent to a development application over Lot A is obtained, a separate development application to the Council, if granted, can be considered with the current matter. Alternatively, the amendment of the current development application in due course can occur. Once this process is completed and further merit matters considered, if any remain, in relation to the use of Lot A for the proposed development, Commissioner Brown can issue his final determination if he so chooses and grant development consent subject to relevant conditions.

29 Question 1 proposes a deferred commencement condition requiring the obtaining of a separate development consent for the access across Lot A. No reference is made to any measure to achieve legal access based on s 40. I agree with the Second Respondents’ submission that this is not an appropriate way to deal with the key issue of access and leaves unresolved an essential part of the development consent. The answer to question 1 is therefore “no”.

30 Question 3 asks whether the Court can grant consent for the current development application without any reference to the need to obtain a separate consent for the use of the Second Respondents’ land. Clearly the Court must have regard to the access arrangements in granting consent to the current development application and could not grant consent to a development if it was not satisfied that legal access was adequate and available. The answer to question 3 is therefore “no”.

Practicability

31 It has to be said that this approach is somewhat cumbersome, potentially drawn out and leads to duplication. One of the key issues in this merit appeal is whether there will be access available to the development across the Second Respondents’ land. I have held that the Second Respondents’ consent to a development application for the use of Lot A is necessary in respect of Lots 31 and 32. The use of the Second Respondents’ land for access, which is clearly relevant under s 79C(1) of the EP&A Act, must necessarily be considered in the Class 1 proceedings. A similar issue must also be considered in any subsequent application under s 40(2)(a) of the Court Act which can only be heard by a judge of this Court. Assuming the s 40 application is successful any subsequent development application for the use of that right of way by Lots 31 and 32 will also need to be assessed on its merits by the Council in the first instance, and this Court if the matter proceeds by an amended development application.

32 Such duplication imposes on all the parties including the Second Respondents the burden of multiple court actions. If a party opposes the use of their land for access by another party lodging a development application which does not include their land, they must participate in the Class 1 proceedings to argue the merits and, separately, in an application pursuant to s 40 if it arises. If an application under s 40 is made, presumably the same or similar evidence to the Class 1 merit appeal will be necessary. Even if the Class 1 proceedings are heard by a judge it would appear a separate application in relation to s 40 will have to be heard.

33 It logically follows that it is highly desirable as a practical matter that the access land be the subject of a development application relying on it in a merit appeal wherever possible. It is also clear that the scope and operation of s 40 needs to be considered as the current drafting and operation does not appear to be efficient, particularly for parties in a similar position to the Second Respondents in this case.

34 This matter can be remitted to the presiding Commissioner for him to decide the issue of whether or not intensification or use of the right of way over Lot A is warranted. If it is not, the matter would then be at an end as development consent would presumably be refused. If the access is considered acceptable then the future conduct of this matter must be conducted in accordance with this judgment at par 27 and 28.